text:
    Milton DOSS v. STATE.
    6 Div. 61.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    John C. Nicholson, Jasper, for appellant.
    William J. Baxley, Atty. Gen. and James S.Ward, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at imprisonment in the penitentiary for a term of 35 years. Prior to arraignment it was determined that appellant was indigent and counsel was appointed to represent him throughout the trial proceedings. He pleaded not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

Appellant was 18 years of age at the time this offense was committed and he made application to be treated as a Youthful Offender. His application was referred to a probation officer for an investigation and report. After the report was filed, a hearing was conducted and his application for Youthful Offender status was denied.

The facts are not disputed that at 6:30' a. m. on January 31, 1975, a black male entered the store owned and operated by Mr. Coleman Brown in the town of Parrish, Walker County, Alabama, and bought a package of Kool cigarettes and a box of matches. Mr. Brown looked him squarely in the face for over a minute at close quarters in a well lighted store. After Mr. Brown gave this man the cigarettes and matches, this black male turned as if he was going to leave the store. At this point a second black male entered the store with a sawed-off shotgun and pointed it directly in Mr. Brown’s face and said, “We want your money. We know you cash a lot of checks and we want all of it.” The first black man then turned and walked behind the counter and stuck a small caliber pistol in Mr. Brown’s side. The man with the shotgun told the man with the 'pistol to take Mr. Brown’s gun and billfold. Mr. Brown took all the money out of the cash register and put it on the counter. There was $1,100.00 in U.S. currency made up with 20, 10, and 5 dollar bills. Appellant picked up all the money on the counter while the other robber still held the shotgun in Mr. Brown’s face, and both ran out the store. Mr. Brown was asked if the man with the pistol was in the courtroom and he pointed to appellant sitting at the counsel table and made a positive in-court identification of appellant as one of the robbers.

Prior to trial appellant filed a motion to suppress the State’s evidence both as to the identification of appellant and the confession made by him. Considerable testimony was taken on this motion out of the presence and hearing of the jury. Appellant testified at this hearing. The major contention made by appellant on the motion to suppress was that he was mentally retarded and could not knowingly, intelligently and voluntarily waive his constitutional rights and did not possess sufficient mentality to make a voluntary confession.

After appellant was arrested in Pratt City, Jefferson County, Alabama, and carried to the Sheriff’s Office in Jasper, Alabama, he was given the Miranda rights and warnings. These constitutional rights were read to him from a card by one of the two Deputy Sheriffs before he was interrogated. He was asked if he understood his rights and said he understood them. He then signed the waiver of rights form which was labeled “Voluntary statement,” and reads as follows:

“VOLUNTARY STATEMENT
Date 2-5-75 Place Walker Co. Jail Time Started 3:20 P.M. I, Milton Doss, am IB years old. My date of birth is 12 — 8— 1956. I live at 614 Ave U Pratt City. The person to whom I give the following voluntary statement, Chief Deputy Bunny Cottrell, having identified and made himself known as a Deputy J. R. Myers, DULY WARNED AND ADVISED ME, AND I KNOW:
1. That I have the right to remain silent and not make any statement at all, nor incriminate myself in any manner whatsoever.
2. That anything I say can and will be used against me in a court or courts of law for the offense or offenses concerning which this statement is herein made.
3. That I can hire a lawyer of my own choice to be present and advise me before and during this statement.
4. That if I am unable to hire a lawyer I can request and receive appointment of a lawyer by the proper authority, without cost or charge to me, to be present and advise me before and during this statement.
5. That I can refuse to answer any questions or stop giving this statement any time I want to.
6. That no law enforcement officer can prompt me what to say in this statement, nor write it out for me unless I choose for him to do so.
A. No one denied me any of my rights, threatened or mistreated me, either by word or act, to force me to make known the facts in this statement. No one gave, offered or promised me anything whatsoever to make known the facts in this statement, which I give voluntarily of my own free will and accord.
B. I do not want to talk to a lawyer before or during the time I give the following true facts, and I knowingly and purposely waive any right to the advice and presence of a lawyer before and during this statement.
C. I certify that no attempt was made by any law enforcement officer to prompt me what to say, nor was I refused any request that the statement be stopped, nor at any time during this statement did I request for the presence or advice of a lawyer.
I have read each page of this statement consisting of _2_ pages, each page of which bears my signature, and corrections, if any bear my initials, and I certify that the facts contained herein are true and correct.
This statement was completed at-
M. on the 5_day of Feb. 1975.
WITNESS: (Signed) J. R. Myers
WITNESS: (Signed) Bunny Cottrell
(Signed) Milton Doss
Signature of person giving voluntary statement.”

At the hearing on the motion to suppress appellant denied that he was read his rights from a card by either one of the Deputies and that he did not read any of the papers he signed and that he did not make a confession that he took part in the robbery of Mr. Brown’s store. He did testify that he was 18 years of age and had finished the seventh grade.

On cross-examination he admitted that he understood what it means when someone says, “You have a right to a lawyer”; “you have a right to remain silent”; that “anything you say can and will be used against you in a court of law”; “you have a right to talk to a lawyer, and have him present with you while you are being questioned”; “If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.” He was further asked, “Do you understand what it means when I say, ‘you don’t have to answer any questions’ ?" He replied, “Yeah, I know what you mean when you say I don’t have to answer any questions.” Notwithstanding his affirmative answers to each of the above questions he denied that his constitutional rights were read to him. Upon being further cross-examined he finally said, “He read me rights when he got through talking all that trash to me.” He then recanted his testimony and denied that his rights were read to him.

There was other testimony from school teachers to the effect that they had given appellant tests to determine his I.Q., reading ability and comprehension, and that he was mentally retarded. On some of the tests given appellant he scored from an I. Q. level of fifty percent to ninety-six percent. The normal I.Q. for anyone is 90 to 110.

Mr. Brown testified on the motion to suppress and he stated he had seen appellant on four different occasions. He got a good look at his face when he came into his store and purchased cigarettes and matches. He was called by one of the Deputies to come to the Sheriff’s Office and look at a subject. He was not told that the subject was a suspect or that they thought he was involved in the robbery. Mr. Brown went to the Sheriff’s Office and saw a black male sitting at a desk in an office in the presence of two Deputies. No one said anything to him and he did not say anything. He looked in the office, nodded and left. He recognized appellant on this occasion. He recognized appellant at the hearing on the motion to suppress and the fourth time was at the trial in chief when, as above stated, he made a positive in-court identification of appellant as the man who stuck a pistol in his side when the other robber had the shotgun in his face. He based his identification on seeing him face to face in the store and also at the Sheriff’s Office.

Chief Deputy Sheriff Bunny Cottrell testified that appellant was given the Miranda rights before he agreed to give a statement concerning the robbery; that Cottrell wrote down the statement just as it was given to him by appellant; that after the statement was completed Cottrell read it to him and appellant signed it. He stated that Deputy Sheriff Jimmy Ray Myers was present when appellant signed the waiver of rights form and was present when appellant confessed to his involvement in the robbery.

The motion to suppress was overruled. A great deal of the testimony had on the motion to suppress was given during the trial in chief.

Mr. Brown testified that his identification of appellant was based on the opportunity he had to observe appellant at the time of the robbery face to face and that appellant had nothing over his face.

In summary Deputy Sheriff Jimmy Ray Myers testified that prior to taking the confession from appellant that neither he nor anyone in his presence or hearing offered appellant any promise, hope of reward or any other inducement to get him to make a statement. He stated that no one in his presence or hearing told appellant that it would be better or worse for him if he did not make a statement. He further testified that no one in his presence or hearing threatened, coerced or used any force or violence of any kind toward appellant.

This witness further testified that he read to appellant his “Miranda” rights from a card; that he asked appellant if he understood each of the rights that were read to him and appellant positively stated that he did. He filled out a form that appellant looked over and signed.

Appellant gave the officers the following written and signed confession:

“2-5-75 3:45 P.M.
Walker County Jail
Milton Doss, Jr.
1614 Ave. U. Pratt City, Ala.
D O B — 12-8-56
M.D. Milton Doss gave this statement to Bunny Cottrell and Jim Myers on his own free will and accord. Milton said that he spent Thursday night Jan. 30, 1975 at Henry Paige Home at Ensley. He said he and Henry left about 5AM on Friday Jan. 31, 1975. We came to Parrish, Ala. We got there about 6:30 A M on this same day. We went in Coleman Brown store. I had a 22 pistol and Henry had a 12 Ga. pump shot gun. I bought a pack of Kool Cigr. Henry then come in and put the shot gun on Mr. Brown. Henry told Mr. Brown to give him all his money. He got the money out of the cash register. We got $1100.00. I got $550.00 and Henry got $550.00. We was in Henry Paige 1966 Chev. Black over Green. Tag # 1C7506. This is a true statement. (Signed) X Milton Doss, Witness J. R. Myers.”

After the proper predicate was laid, this statement was admitted into evidence.

Appellant did not testify in his behalf but was contented to rest his case on the testimony of the witnesses who stated he was mentally retarded.

In Payne v. State, 48 Ala.App. 401, 265 So.2d 185, Judge Almon (now Justice Al-mon), held:

“There is no prohibition against viewing a suspect alone particularly when this occurs near the time of the alleged criminal act. Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104. Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245. We conclude that this confrontation was not so unnecessarily suggestive and conducive to mistaken identification as to deny appellant due process of law.”

It is settled law that even if a pretrial confrontation is conducted in such a way as to violate due process, a later in-court identification of a defendant by a witness need not be excluded from evidence if it is shown to have a source independent of the confrontation. Rhodes v. State, 50 Ala.App. 661, 282 So.2d 100; Thomas v. State, 50 Ala.App. 227, 278 So.2d 230; Dawson v. State, 47 Ala.App. 293, 253 So.2d 362.

There can be no doubt that the robbery victim’s identification came from a source independent of the confrontation at the Sheriff’s Office. This independent source was at 6:30 a. m. on January 31, 1975, at Mr. Brown’s store where appellant, and another black man, robbed him. On this occasion Mr. Brown was behind the cash register on the counter of his store when appellant came in. Appellant stood directly in front of Mr. Brown and bought a package of cigarettes and a box of matches, Mr. Brown observing him at close range, face to face, for over a minute. When the second man entered the store with the sawed-off shotgun, appellant came around the counter where Mr. Brown was standing. Appellant got close enough to Mr. Brown to stick a pistol in his side and Mr. Brown saw the pistol. It took four to five minutes to complete the robbery and appellant’s face was not disguised in any manner.

In Mitchell v. State, 52 Ala.App. 174, 290 So.2d 241, this Court said:

“Since the only identification of the appellant by the State witness, prosecutrix, was at the preliminary trial and the main trial, her failure to make a positive identification of the appellant beforehand at a line up or at a showing of pictures, though properly admissible as testimony, is not conclusive, but may and should be considered along with any other testimony showing any and all opportunities that she may have had personally to view or have any contact with the appellant.”

In this case Mr. Brown was unable to identify appellant by looking at pictures. He had ample opportunity to view and observe appellant at the time of the robbery. The fact that he could not identify appellant from photographs is not conclusive to a misidentification in the light of the facts and circumstances of this case. This is a clear case of an independent origin. Hannon v. State, 48 Ala.App. 613, 266 So.2d 825; Houston v. State, 49 Ala.App. 403, 272 So.2d 610.

Appellant does not claim to be insane and there was no special plea entered for him. As a matter of fact on cross-examination on the hearing to suppress he stated that he had never had any mental problem. He testified that he quit school at the age of 16 and had been promoted to the seventh grade and that he was able to read a little. His witnesses claimed he was retarded but was able to understand many words.

In Elrod v. State, 281 Ala. 331, 202 So.2d 539, the Supreme Court said:

“An ‘illiterate’ is one ignorant of letters and books, unlettered, uninstructed, uneducated, unable to read or write, uncultivated, without book learning. State ex rel. Melvin v. Sweeney, 154 Ohio St. 223, 94 N.E.2d 785. Words and Phrases, ‘Illiterate.’ While illiteracy is a great misfortune, it does not mean insanity, and does not constitute a defense to crime or render a confession of guilt, otherwise unobjectionable, inadmissible in evidence against him. Mitchell v. State, 206 Ark. 149, 174 S.W.2d 241. Accused’s intelligence, character and situation at the time of the confession of the crime charged are important considerations in determining whether the confession was voluntary, but the fact that accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary. State v. Ashdown, 5 Utah 2d 59, 296 P.2d 726, affirmed 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed. 2d 1443. Evidence tending to show a defendant’s weak mentality, feeblemin-dedness, and mental stress does not affect the admissibility of the confessions, but rather is a matter that bears on the weight, credibility and effect to be given the confessions by the jury. State v. Stewart, 238 La. 1036, 117 So.2d 583.”

Appellant filed a motion for a new trial and it was set for hearing. On the appointed day no testimony was presented. Appellant merely argued the matters he had already presented to the Court on the motion to suppress and other matters ruled on during the trial. We hold there was no error in overruling this motion.

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

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Shelley WOODS v. STATE.
    7 Div. 386.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.

      Robert T. Meadows, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Sam L. Webb, Jr., Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This appeal is from a judgment of conviction of murder in the first degree and a sentence to imprisonment for life. The alleged victim was Herbert Harding Duvall of Childersburg, the operator of a store in that city.

According to the evidence for the prosecution, the victim left his home about 7:45 A.M. on Friday, March 29, 1974. He had a billfold full of money, according to his wife. Mrs. Duvall went to the store about 10:50 the same morning. She left in about twenty minutes. While there she noticed a boy wearing an unusual kind of a hat, one “without much of a brim and with little button like things scattered around on it”; he had a goatee. Mrs. Duvall identified him as John Henry Lee. While at the store, Mrs. Duvall talked with her husband and telephoned her daughter; it was understood that her daughter would come to work at the store for a while about 12:00 noon. Mrs. Vincent, the daughter, arrived at the store at about 11:2S; she noted scattered merchandise including shoes and shoe boxes and started picking them up. A boy came in to pay on someone else s bill. Mrs. Vincent went to the cash register, noticed it was open and that all the currency was gone, though coins were still in the register. She became concerned and went to the back of the store looking for her father. She found him in the' bathroom but didn’t go in because he had his trousers down. She went to the phone and called her mother but did not get her. She called the police department; she then called her mother again and told her to come to the store. Soon thereafter, Officer Shell and Mrs. Duvall arrived at the store. According to the testimony of the three, Mr. Duvall had been injured. He had a cut on the right side of his head, at his ear, and his temple had some blood on it. He was “addled.” He fought with Officer Shell and attempted to escort Officer Shell out of the front of the store. Mr. Duvall’s spectacles were found in some shoes on the “left side behind” Mr. Du-vall’s “desk.” A battery, a part of Mr. Du-vall’s hearing aid, was found about twelve feet from the front of his desk. There was a claw hammer, which belonged to Mr. Duvall, out of its customary place and lying on the floor behind Mr. Duvall’s desk. Mr. Duvall was taken by ambulance to a hospital about ten minutes before twelve o’clock. His physicians found that he had a fractured skull, and an injury to his brain, from which he never recovered. Surgery was performed, and the physicians removed a blood clot and a necrotic portion of the brain. He contracted pneumonia and died on August 29, 1974. He had been hospitalized or in a nursing home continuously from the date of his injury to the date of his death, having been in four hospitals and one nursing home. At one time he was in intensive care for approximately three weeks. In answer to a question as to what caused his death, a physician answered: “Well, his cause of death was directly due to the pneumonia. The fact that he had sustained major head trauma and was bed-confined from that, results in an increase incidents of pulmonary problems.” Upon being questioned whether the injury to the head was the “approximate” cause of bringing on the bilateral pneumonia of which he died, his answer was, “Yes sir.” According to the doctor, Mr. Duvall never spoke coherently. He was seventy-seven years of age. The physician who first examined Mr. Duvall in emergency said: “My first impression when I saw it (referring to the injury to his head), but before anybody said anything about what it was, or anything, the injury had the appearance of an imprint about the size of a hammer.”

William Pope, a witness for the State, said that on the morning of March 29, he, John Henry Lee and defendant went in defendant’s Ford automobile to several places, including Talladega, that after they returned toward Childersburg, he heard Shelley and John Henry “talking about that they needed to rob somebody or hit somebody for some money or something.” They did not name any place at that time. Thereafter “Shelley Woods kept on talking about it and I said, ‘Well, I have been in trouble one time and I’m not getting in no more trouble’ ... so Shelley just kept on talking about Mr. Duvall and A & P kept a right smart of money and that we needed to hit one of them.” The witness said he again stated to the other two that he wasn’t getting in any more trouble and thereafter Shelley said that he was just teasing. They returned to the business part of Childersburg, where Mr. Duvall’s store was located. He stayed in the car, which John Henry and defendant left. While he was there he looked toward Mr. Duvall’s store and saw Shelley Woods come out of the store. Woods came “down the street back towards J & J and cut through the alley.” Thereafter John Henry joined the witness, getting in the front seat and Woods came to the car “out of this alley.”

Robert Green, the owner of Campbell Auto Parts in Childersburg located a hundred and seventy-two feet from Mr. Du-vall’s store, testified that Woods and about four or five other black boys came into his store between eleven and eleven thirty A. M. March 29. He said Woods wanted to buy some Ford brake shoes, but he told Woods he didn’t have them.

After Officer Shell and the victim’s wife and daughter arrived at the store, and after Officer Shell had enlisted the aid of other officers and members of the Child-ersburg Fire Department, a diligent search was made in the store and in the vicinity outside the store for Mr. Duvall’s billfold or pocketbook, and it was never found. There was about a hundred dollars in Mr. Duvall’s shirt pocket.

About 4:00 P.M. March 29, defendant was arrested. He made a statement in which he said that on March 29 he was not in the vicinity of that part of the business section of Childersburg where Mr. Duvall’s store was located. He made another statement about an hour thereafter, in which he admitted that he was close to Mr. Duvall’s store, that he went into a liquor store there located to pick up a pint of gin. He said he did not take his automobile, but walked.

Several witnesses testified for defendant as to an alibi at about ten, eleven and twelve o’clock on the morning of March 29. Their testimony was far from conclusive.

Defendant testified and positively denied that he was in Mr. Duvall’s store on March 29. He said he was at the liquor store close to Duvall’s store between 9:30 and 10:00. He denied that he had been with William Pope and John Henry Lee on March 29. He said he had been with them on March 28. He said he went into Campbell’s Auto Parts on March 28 and asked Mr. Green for Ford brake shoes but that he did not go in the store on March 29.

Only a fractional part of the evidence is narrated above, but it is sufficient to show that a jury issue as to defendant’s guilt of murder in the first degree was presented. Circumstantial though it is, there is substantial evidence that Mr. Du-vall was hit on the head “with a hammer or some other blunt object” as charged in the indictment; that a felonious attack was made upon him in an effort to rob him; that defendant was a participant in the attack upon Mr. Duvall. The evidence is also sufficient to furnish a basis for the finding that Mr. Duvall’s death was proximately caused by the blow to his head. To accept defendant’s testimony would require us to disregard the testimony of one witness that defendant planned to rob Mr. Duvall and the testimony of another witness that defendant was seen leaving Mr. Duvall’s store about the time Mr. Duvall was injured. A homicide committed in the perpetration of, or the attempt to perpetrate, robbery, constitutes murder in the first degree. Code of Alabama, Title 14, Section 314. For us to hold that the injury received by Mr. Duvall was not the cause of his death would require us to ignore circumstances sufficient to show a causal connection between the injury and death and to reject the opinion of at least one physician.

Appellant also urges that defendant was denied his right to a speedy trial. He relies largely upon Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101, 117 (1972), in which it was held that four related factors must be considered together in determining whether an accused has been deprived of his right to a speedy trial, which are:

“(l)[L]ength of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.”

Defendant did assert his right to a speedy trial. On February 13, 1975, after noting that his case was not scheduled for trial the week beginning February 17, 1975, he filed a motion for a speedy trial. On March 7, 1975, after noting that his case was not set for the week beginning March 24, 1975, he filed another motion for a speedy trial. In that motion he also alleged that his bond was excessive. The indictment for murder was returned on January 10, 1975. The indictment for assault with intent to murder was nolle prossed on motion of the State on January 15, 1975. It seems that there was never any hearing on either of defendant’s motions for a speedy trial. It seems also that defendant never requested any hearing on either of such motions. The record indicates that no hearing was ever held as to the matter of a speedy trial until after trial and conviction of defendant on May 14, 1975, which hearing was in connection with defendant’s motion for a new trial. Most of the contentions of the parties at the hearing on the motion for new trial were based upon stipulations of the parties as to what had occurred as to the docket in the Tal-ladega Circuit Court, between the time defendant was indicted for murder and the time of his trial. In addition, there were some comments by attorneys and some testimony of the clerk of the court and the sheriff. In essence, it seems that one of the two circuit judges of the Talladega Circuit Court had indicated a recusal by him in this particular case, and that the services of the other judge, the judge who tried this case, were well absorbed between the time of the indictment and the time of trial by other pressing cases. When this case was called for trial on May 12, 1975, both parties promptly announced ready.

In charging that there was a delay of thirteen months, appellant includes the time that defendant was charged with assault with intent to murder. The time he was under indictment for murder was approximately four months. That there was good reason for the delay in bringing the charge of assault with intent to murder to trial seems unquestioned and unquestionable. Mr. Duvall was not physically able to attend trial after the date of the alleged crime. Even so, it seems that there was some hope of a recovery and apparently some belief on the part of Mr. Duvall that he would get well, for on the trial of this case the State was prevented from showing a statement by Mr. Duvall connecting defendant with his trouble on the theory that it was a dying declaration, by reason of evidence indicating that he expected to live. The necessary delay in bringing the case to trial on the charge of assault with intent to murder is not chargeable against the State in connection with the indictment for murder. Even if it were, the answer is as stated in Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192:

“Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.”

Appellant argues that he was prejudiced by the delay in that he was caused thereby to be deprived of the benefit of the testimony of Mr. Duvall. The answer is at least two-fold: (1) delay or not, Mr. Du-vall could never have testified, and (2) it cannot be assumed that Mr. Duvall’s testimony would have been favorable to defendant.

Our review of the record convinces us: (1) the length of the delay was not inordinate, (2) there was reasonable cause for the delay, (3) defendant asserted his right to a speedy trial but did not press it until after he was convicted, and (4) no prejudice resulted to defendant by reason of the delay. Defendant was not deprived of a constitutional right to a speedy trial. Barker v. Wingo, supra; Moss v. State, 50 Ala.App. 643, 282 So.2d 82; Sellers v. State, 48 Ala.App. 178, 263 So.2d 156.

We have considered all questions raised by appellant. In addition, we have searched the record for error prejudicial to appellant and have found none. The judgment appealed from should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    James GODFREY, alias v. STATE.
    4 Div. 393.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.

      Randy C. Brackin, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of burglary in the second degree and sentenced to eight years in the penitentiary. Prior to arraignment appellant was found to be indigent and counsel was appointed to represent him. He pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

Appellant was 20 years of age at the time of his trial and the Youthful Offender law was explained to him in the presence of his counsel. After consultation with his attorney appellant waived his right to file an application to be treated as a Youthful Offender.

Appellant was jointly indicted with one Gary Ray Combs but a severance was granted and appellant was put to trial on September 17, 1975.

Counsel for appellant has filed a 12-page brief which is nothing more than a recitation of the facts adduced at trial. Not a single case is cited in the brief. The brief concludes:

“Attorney for appellant has diligently searched the record of the instant case and has been unable to find any reversible error committed in the trial of this case under the existing law of Alabama.”

When the State rested, appellant’s counsel moved to exclude the State’s evidence for failure to make out a prima facie case. This motion was overruled.

Appellant was a resident of Dale County, Alabama, and the offense for which he was convicted occurred in Houston County on the night of April 21, or in the early morning hours of April 22, 1975. In the spring of 1975 there were a rash of burglaries in Dale, Pike and Houston Counties. Appellant, his co-defendant and others became prime suspects during the investigation of these offenses.

Ray Sanders testified that in April of 1975, he operated a beer tavern and pool hall 12 miles west of Dothan, Alabama, known as Ray’s Place. When he closed his business on the night of April 21, 1975, all doors and windows were locked. The windows had bars across them. On the morning of April 22, 1975, when he went to open his place of business, he discovered that the glass in a window had been busted out and the bars were pried up which made an opening 12 to 15 inches wide. Two pool tables had been broken, a color television, cigarettes and some money were missing. He called the Sheriff’s Office and reported the burglary.

On June 12, 1975, Harold Howell, a Deputy Sheriff of Dale County, went to appellant’s home and asked him to come to the Dale County Jail and talk to him. Appellant came in the late afternoon of that date to talk to Deputy Howell. He was given the Miranda rights and warnings by Mr. Howell and told him he understood his rights. Howell further testified that there were no threats made against appellant and no promises, offers of reward or other inducements made to appellant to get him to make a statement. Appellant gave the Deputy the following statement:

“We, referring to Gary Combs, Glen Odom and James Godfrey, were at #3, Glenway Homes. Glen Odom called me and Gary Combs outside and he said he had borrowed a car and needed you to drive for him, so me and Gary Combs went with him, and I drove. He told me where to go, and I drove down Highway 123 below Newton into Houston County. I let Gary and Glen off at the peanut mill on Highway 123 just before getting to Highway 84. They said come by and pick us up in front of Ray’s Place, so I drove around for about 30 minutes and come back and stopped beside the store almost in front of Ray’s Place. They come out of the bushes and got in the car. We come back to Ozark and stopped at #3 Glenway to see if the TV worked. It didn’t work, so Glen took it to the car, and then counted the money. He had $11.00 in money. We went to the Cannon Station, and on the way threw the TV out on the corner of a street, Fairview and Westview Avenue. We bought gas with all of the money. They got about six cartons of cigarettes, and I got one carton of Winstons.”

Prior to the above statement being read to the jury appellant made a motion to suppress and considerable testimony was heard. Appellant testified on direct examination that he was not given his constitutional rights and he was never told that he could remain silent. He was not advised that he was entitled to a lawyer and if he could not afford one the Court would appoint a lawyer to represent him and have him present while he was being interrogated, and he was not told that anything he said could and would be used against him. That he was told if he didn’t make a statement, the officer was going to pick up his wife and put her in jail for 72 hours and let the welfare people look after his children. He said he was told if he made a statement, he would be out of jail the next day.

On cross-examination he recanted his testimony made on direct and admitted he was read his constitutional rights from a card after which he was asked if he understood his right and he stated that he did.

Deputy Howell of Dale County got in touch with the Sheriff’s Department in Dothan and in response to that call Deputy Sheriff Sid Batchelor came to see appellant. Before asking appellant any questions Sid Batchelor again gave appellant the Miranda rights and he signed a waiver of rights form. He was asked if he understood his rights and he told Batchelor he understood his rights and was ready to make a statement.

The trial court overruled and denied the motion to suppress and the jury was recalled to the courtroom.

Deputy Sheriff Sid Batchelor testified that on June 16, 1975, appellant made and signed the following statement:

“Q And what is the statement that he made to you ?
“A At 4:55 P.M. on the 16th day of June, 1975. It says, ‘On April the 21st, 1975, I was at my girlfriend’s house at Apartment #3, Glenway Homes, Ozark, Alabama. Gary Combs was with me. And then Glen Odom came up and told me he wanted me to drive for him. He had borrowed a car from a girl that was up the street. He didn’t tell me where I was going, but I drove, and Gary went with us, and we went to a feed mill on Highway 123 close to Wicksburg. And I pulled off the side of the road and let Glen Odom and Gary Combs out. At this time, Glen Odom told me to come by Ray’s Place and pick them up. Glen carried some tools with him before he left. And he told me to be gone about 30 or 40 minutes and then to come to the front of Ray’s Place, and I did. And when they got in the car, they had a col- or TV and six cartons of cigarettes and about 11 dollars in change. Then we came back to Dale County and went to Apartment #3 Glenway Homes. Then we tried the TV to see if it would work. It didn’t, so we left and went to get some gas, and carried the TV with us, and Glen threw the TV out of the car into the woods at the corner of the street next to Sheriff Walker’s house. We then got gas and they carried the car back to its owner. Then we split the cigarettes and Gary and Glen got all but one carton.’ ”

Appellant testified in his own behalf and stated that when he was asked to drive Gary Combs and Glenn Odom he had no idea what they were planning to do and denied that he was waiting in a getaway car to pick them up.

On cross-examination appellant admitted that around 11 o’clock p. m. on April 21, 1975, Combs and Odom came to his girl friend’s house and asked him to drive them around. At 12:00 p. m. he dropped them off on the side of the road near the feed mill on Highway 123. He noticed that Glenn Odom had two screwdrivers in his back pocket when he left the car. He stated they told him to be gone 30 or 40 minutes and then come to the front of Ray’s Place to pick them up. He drove to Ray’s Place and Combs and Odom came out of some bushes nearby. They had a color TV, six cartons of cigarettes and about $11.00 in change and he carried them back to his girl friend’s house. He got out of the car and they drove away. He admitted getting one carton of cigarettes.

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 the defendant goes to the jury on its credibility.

After hearing the testimony by both the appellant and the State on voir dire the Court held the waiver and confession, admittedly executed by the defendant, to be voluntary and admissible. This ruling was proper. Sheppard v. State, 49 Ala.App. 674, 275 So.2d 353.

It is settled law that when by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. The community of purpose need not be proved by positive testimony. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Stokley v. State, 254 Ala. 534, 49 So.2d 284.

All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must be tried and punished as principals. Mitchell v. State, 51 Ala.App. 411, 286 So.2d 85.

The question of whether or not appellant, acting as the chauffeur for his associates, was thereby an aider or abettor— a derivative principal under Title 14, Section 14, Code of Alabama 1940 — in the crime of burglary committed by them out of his presence was for the jury. Bass v. State, 55 Ala.App. 5, 312 So.2d 576.

The corpus delicti is a fact, proof of which may be shown by circumstantial evidence, and if there is a reasonable inference to prove its existence, the Court should submit to the jury for consideration the question of the sufficiency and the weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Burleson v. State, 52 Ala.App. 399, 293 So.2d 317; Bass v. State, 55 Ala.App. 88, 313 So.2d 208.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Danny BUSH, alias v. STATE.
    6 Div. 142.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.

      William W. Rogers, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

A jury convicted appellant-defendant of assaulting Wiley B. Dawkins, a police officer of the City of Brighton, Alabama, with a deadly instrument (a loaded pistol) while engaged in the active discharge of his lawful duty or duties. An indictment therefor was based on Title 14, § 374(20), Recompiled Code 1958, 1973 Cumulative Pocket Part; 1967 General Acts, p. 1600. The court sentenced defendant to eight years in the penitentiary and denied probation. Judgment entered accordingly and this appeal follows.

The alleged assault occurred at a night spot in Jefferson County, Bessemer Division, in the early morning hours of July 4, 1975, at which place the victim and a fellow officer had entered while both were on active duty.

Defendant was present in the cafe at the time the officers entered or came in soon after the officers entered. He was under the influence of alcoholic beverages and also, according to his own testimony, had been taking some tablets to kill pain.

Defendant approached Officer Ellington and began some “horseplay” by trying to handcuff this officer. He was rebuffed. Both officers took a seat in a booth to which defendant came and sat down. He became incensed because Officer Dawkins refused to shake hands with him; he thereupon, while drinking and infuriated, drew a .38 revolver which he was carrying, cocked it and pointed it at Dawkins and threatened to kill him.

Defendant was dissuaded by the manager of the business from further violence. He then went outside, soon followed by the officers and the manager. The next thing he showed up from the back of a motor vehicle, and the pistol was fired. The victim heard the shot and the singing of a bullet.

Defendant thereupon surrendered the pistol to another person who handed the pistol to the manager who kept it. The pistol was produced in court at defendant’s trial and admitted in evidence.

The officers left without arresting defendant, but later Officer Dawkins, the victim, who was a black, arrested defendant pursuant to a warrant for such arrest.

Defendant took the stand and remembered most of the incidents except producing the pistol in the booth and pointing it at Officer Dawkins and the alleged threat to kill him.

Defendant remembered leaving and going to his trailer and surrendering the pistol. He concluded that the pistol was fired accidentally and without any intention on his part to fire the same. We will not set out the many details of the episode. The jury resolved the conflict against defendant and found him guilty as charged in the indictment. The court fixed the punishment. There was no motion for a new trial so far .as our review of the record reveals.

I

Appellant contends that the trial court committed reversible error by overruling his motion to exclude the evidence at the close of the State’s case-in-chief. This motion was based on the failure of the State’s witness to identify the defendant as being Danny Bush, the alleged perpetrator of the crime charged.

We think it would be a waste of time and space to point out the State’s evidence that fully identified defendant as the guilty person. We have read the record, and there was ample identifying evidence.

II

The next assertion of error is that the court refused to allow defense counsel to question the State’s witness, Sgt. Dawkins, as to the time of appellant’s arrest.

The witness testified that he arrested defendant. The court sustained the State’s objection as to the time. The time element was immaterial and irrelevant. It shed no light on the guilt or innocence of defendant. Sufficient is the fact that he was arrested. We might point out that the evidence shows at another place that no arrest was made at the time of the assault, but later.

III

The refusal of Charge 3 was free of error. It was not based on the evidence, it was abstract. Duchac v. State, 52 Ala.App. 327, 292 So.2d 135, cert. denied 292 Ala. 251, 292 So.2d 139.

IV

For the same reason as Charge 3, supra, Charge 2 was faulty and the court cannot be charged with error in refusing to give it.

V

Written Charge 4 was correctly refused. It, too, had the same fault as 2 and 3, supra.

VI

We cannot agree that the indictment was faulty and defective that it “will not support a jury verdict.” It was statutory in form and was sufficient to support the verdict.

VII

Defendant’s final contention is that the court erred in allowing the jury to separate during the trial without an agreement by defendant.

We are not convinced from the record (by which we are bound and not a statement of counsel in his brief) that the jury separated at any time during the trial. On Page 4 of the record, we find the court reporter’s entry under “Proceedings,”

“ . . . at the conclusion of which the jury was sent to lunch after being duly warned not to discuss the case with anyone and to allow no one to discuss the case with them.”

The aforequoted statement does not affirmatively show that the jury was allowed to separate. They were “sent to lunch,” and we infer, in charge of a bailiff. We cannot speculate that the jury separated. Unless affirmatively shown to the contrary, we presume that the trial court performed its duty and kept them together. We again note that no motion for a new trial appears in the record.

The judgment is affirmed.

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

AFFIRMED.

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


author: TYSON, Judge.

text:
    Edison MATTHEWS v. STATE.
    8 Div. 805.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Robert M. Shipman, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with the robbery of Austin Bullard, doing business as Bullard’s Beverage, by taking some $1,118.75, in money and property from his person. The jury found appellant guilty as charged and fixed punishment at 14 years. The trial court then entered judgment in accordance with this verdict.

Austin Bullard testified that on the late evening of May 20, 1975, he was at Bul-lard’s Beverage on Highway 20, in the City of Madison, in Madison County. He stated that two black males entered the store and the appellant first handed him a one-dollar bill and asked for the change for the cigarette machine. Mr. Bullard handed him four quarters and as the appellant turned, his companion drew a pistol on him! Appellant told him to get over against the wall and took out his billfold which contained over $400. His companion then opened the cash register and removed the proceeds and then the two men took a portable radio, pistol, and one case of Millers beer. He estimated the total value of items taken in excess of $1,000., or about $1,100.

After the two men left, he notified the police and they came right over. He testified that he went over to the police station and looked at mug book and selected one individual.

A few days later, Detective Smiley came by the store and handed him six or eight photographs. On this occasion, he selected one photograph as being one of the men in the store on the night of the robbery and that photograph was that of the appellant, Edison Matthews. He testified that later that week, Detective Smiley brought another group of photographs over and as before, without giving any indication as to who the persons were, he also selected one photograph and this too, was of the appellant. This identification was from a group of eight to ten photographs handed him by Officer Smiley.

At the trial, Mr. Bullard made an independent in-court identification of appellant.

Police Officers Smiley and Darrell Hale testified they investigated the robbery of Bullard’s Beverage on the evening of May 23, 1975; they testified Mr. Bullard gave a description of two black males and later identified the appellant from photographs.

Each officer stated that they handed a group of photographs to Mr. Bullard on two separate occasions and that without any suggestion by them whatever, Mr. Bul-lard selected the photograph of the appellant.

Appellant presented the testimony of Bertha Tibbs, who is a sister of appellant and testified on the night in question, appellant spent the night in her home and did not go out. This was corroborated by Jimmy Banks who told of working on an automobile on the night of May 20, 1975, with the appellant.

I

Appellant argues that the accused had a right to counsel at the time of the photographic identification, stating at this point, adversary judicial proceedings had been commenced against him.

We have carefully considered the totality of circumstances presented by this record as required by Simmons v. U. S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, and are of the opinion that the in-court identification of appellant was not in any way tainted by the exhibition of the group of photographs to Mr. Bullard, so as to have become unduly suggestive. Terry v. State, 50 Ala.App. 299, 278 So.2d 748, and cases therein cited.

Moreover, as to the issue of the assistance of counsel at the time of the out-of-court photographic identification process, this question has twice been determined adversely to the appellant. McGhee v. State, 48 Ala.App. 330, 264 So.2d 560, and Terry v. State, 50 Ala.App. 299, 278 So.2d 748.

This question was subsequently laid to rest by the Supreme Court of the United States, in U. S. v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619.

We have carefully considered the record and find same free from error, the judgment is therefore

AFFIRMED.

All the Judges concur.


text:
    Darnell Kenneth MADISON v. STATE.
    3 Div. 415.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.

      Raymon, Russell & Nathanson, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found appellant guilty of grand larceny, and the court sentenced him to imprisonment in the penitentiary for ten years. The indictment charged him with robbery, but at the conclusion of the oral charge, defendant requested that the court charge as to lesser included offenses. The court then charged the jury as to grand larceny and asked attorneys for the parties if they had any exceptions, to which State’s counsel said it was satisfied and defendant’s counsel said, “No, sir, the Defendant is satisfied, Your Honor.” The court then gave three forms of verdict, including one finding defendant guilty of grand larceny.

Only one question is raised by appellant: Whether there was a variance between the indictment and the evidence, by reason of the allegation in the indictment that the property involved was “the property of James B. Walden” and the evidence that showed that Central Jewelry and Loan Company owned the property, that Walden was the manager of the store of Central Jewelry and Loan Company and that the property was in his custody at the time it was taken.

As to robbery, it is established that “the indictment need only name the person having the immediate special property of the thing which the robber seeks to take.” Riggens v. State, 44 Ala.App. 275, 207 So.2d 141, 142. To the same effect are Burke v. State, 44 Ala.App. 379, 209 So.2d 859 and Bray v. State, 47 Ala.App. 308, 253 So.2d 531.

As to larceny, the question has been dis-positively answered, adversely to appellant, by Presiding Judge Cates in Davenport v. State, 53 Ala.App. 326, 299 So.2d 767, cert. denied 293 Ala. 751, 299 So.2d 771 (1974), as follows:

“The allegation of ownership of property in the name of a bailee or trustee does not affect the sufficiency or validity of the indictment. Fowler v. State, 100 Ala. 96, 14 So. 860, and Viberg v. State, 138 Ala. 100, 35 So. 53.
“From Viberg we quote:
‘The evidence showed that the money stolen was proceeds of cattle which Thomas, in whom the ownership of the money is alleged, had been entrusted to sell for his father. This constituted him a bailee of the money, and the ownership of it was properly laid in him.’
“The Alabama rule is in accord with the majority rule. See generally 50 Am.Jur. 2d, ‘Larceny, § 132, pp. 309-310.
“Larceny is an offense against possession, Kilpatrick v. State, 43 Ala.App. 667, 199 So.2d 682. It might be noted that the element of larceny here in issue regards proof that the property was in a person other than the accused. Possession in a bailee or trustee meets the proof of the element and comports with the averment in the indictment sub judice.”

We have searched the record for error prejudicial to defendant and have found none.

The judgment appealed from should be affirmed.

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

AFFIRMED.

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


author: CATES, Presiding Judge.

text:
    Willie James RICHARDSON v. STATE.
    4 Div. 363.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Rufus R. Smith, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

First degree burglary: sentence, thirty years imprisonment.

Though an opinion in a case such as this is the equivalent of sending every subscriber to the Southern and official reports a collect telegram, yet we offer a written explication lest this decision get laid aside in computing the totalisation of our records.

We have- studied the entire record and the briefs and consider that error is not ¡apparent on the record except that the minute entry fails to show that the jury was duodecimal.

Burglary was a crime at common law. Hence, on the trial of an indictment therefor a defendant is constitutionally entitled to a jury of twelve. Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651.

Prior to Pendleton v. State, 295 Ala. 325, 329 So.2d 142, the omission of an affirmative showing that there were twelve jurors would have necessitated reversal. However, here the transcript of the evidence shows that twelve jurors were selected and put in the box. Here there was no fatal omission in the record.

We have reviewed the record under Code 1940, T. 15, § 389. The judgment below is due to be

AFFIRMED.

All the Judges concur.


text:
    William Edward RETOWSKY v. STATE.
    8 Div. 746.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.

      Jack Livingston and Ronald A. Drum-mond, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for first degree murder of his wife, Lonnie S. Retow-sky, “by beating her with his fists and choking her with a cord.” The jury found the appellant guilty of murder in the first degree and fixed punishment at life imprisonment. The trial court then entered judgment in accordance with this verdict.

Walter Simmering testified that he lived in Scottsboro, Alabama, and was employed at the Revere Copper and Brass Company. He testified he was the father of Lonnie S. Retowsky, the deceased. Mr. Simmering testified the appellant and the deceased were married in 1958 and moved to Scotts-boro in 1968 where his son-in-law, the appellant, was also employed by Revere Copper and Brass. He stated that the appellant and the deceased had three children. He testified that the appellant and deceased had been separated in September 1974, but that in December 1974 during the Christmas holidays, they had made a trip to Baltimore, Maryland, where they each had visited some relatives and returned to Scottsboro just before the first of the year. Mr. Simmering stated that he last saw his daughter alive on the last Sunday in December 1974.

Gerry Cook testified that he had known the appellant about four years and also knew the deceased, his wife Lonnie. He testified that on New Year’s Eve 1974-75, he went to a party at the V.F.W. Club in Scottsboro. He testified he saw the appellant and his wife there at the party and that they were dancing. He testified that later, the appellant and the deceased, his wife Lonnie, and a girl by the name of Judy, who worked at the same Holiday Inn where the deceased was employed, all came over to an apartment, No. 115, Carriage House Apartments. Cook stated that at this particular time, the appellant, W. E. “Bo” Retowsky had moved into the apartment with one Fennie Ping. He testified that when he arrived at the apartment, the girl Judy was asleep on the couch and that the appellant and his wife were talking and having some drinks. He said he stayed there about an hour and had a drink and that when he left about 4:00 A.M., Mrs. Retowsky was still alive.

On cross-examination he testified that he had been with the Retowskys and had had some drinks with them at the V.F.W. Club prior to going over to the apartment.

Fennie Ping testified that he lived at 385 Mitchell Drive, Hollywood, Alabama, and was employed by Revere Copper and Brass. He testified that he had known the appellant and his wife for about ten years and that after the appellant had separated from Mrs. Retowsky that the appellant moved into an apartment which they shared at the Carriage House Apartments in September 1974. Ping testified that he saw the appellant on the night of December 31, 1974, and that he stated he was going to take his wife to a dance at the V.F.W. Club. He testified he went back to his apartment about 10:00 that night, and the appellant was not there and that he did not return to his apartment until about 10:00 the following morning and that he found police officers there.

Judy Dawson Kay testified that she worked at Wilma’s Beauty Shop and at the Holiday Inn in Scottsboro. She testified that after getting off work at 10:00 on the night of December 31, 1974, she went to the V.F.W. Club dance with the appellant and Lonnie Retowsky. She testified that they had several drinks and danced there until after midnight and then went to an apartment at the Carriage House Apartments. She said she had a drink and that she next remembered dozing off to sleep on the sofa. She said that a Gerry Cook had come by for a short time, but that she had gone to sleep and that she waked up the following morning about 9:20 on January 1, 1975; that she walked into one of the bedrooms and saw the body of a person which was covered with blood; that the bed and bed clothes were bloody and blood was on the walls. She stated that there was a cord around the neck of the body. She said that at first she could not tell who it was so she telephoned the police department and asked for her father, who was a city police officer, and she told the police where she was and that “someone is dead.”

Keith Smith testified that he was a captain with the Scottsboro Police Department on January 1, 1975. He testified that in response to a telephone call, he went to Apartment No. 115, Carriage House Apartments, shortly before 10:00 on the morning of January 1, 1975. He testified he was accompanied by Officer Truman Dawson. He stated that upon arriving at the apartment, they were met by a reserve officer, Potter, and that one Judy Dawson Kay was sitting on the steps to the apartment front door which was open and that she was almost hysterical. Smith said he walked into the living room and into a bedroom where he discovered a body partially covered with a sheet and that the bed and covers on the bed were spattered with blood; there was blood on the walls on the rug and other furniture. He testified there was a cord around the neck of the body which was tied very tight with a bow-type knot. He testified that he then telephoned for his police photographer and other officers and that they then made photographs of the scene. Smith testified that he left the apartment for a short time and went to police headquarters and that upon arrival there, one of the officers introduced him to the appellant, W. E. “Bo” Retowsky. He stated that the first thing he did was to read the appellant a Miranda-type warning and cautioned him that he did not have to make any statement or say anything at all. He stated that the appellant stated to him immediately after he gave him this warning, “I think I killed my wife.” Smith stated that he then placed the appellant under arrest for first degree murder and then returned to the apartment to complete his investigation at the scene.

Captain Smith then testified that he had the appellant brought to his office at 12:15 noon time on January 1 and there for a second time, read the appellant a Miranda card warning and advised him he did not have to make any statement whatever and that if he wished to stop talking that he had the right to do so; that he had secured an attorney for him and that there had been no promises, hopes of reward, threats or any type abuse whatsoever administered to the appellant. At this time he took down a recorded taped interview with the appellant which was typed up and that Officer Earl Bishop was present with him during the interview.

After the jury was excluded in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, both the pre-Miranda and Miranda predicates were inquired into before the trial court determined the statement of appellant to be voluntary. Captain Smith testified that he was first introduced at police headquarters to the appellant by Police Officer John Childress and that the appellant did not appear to be intoxicated, but appeared rather to be in deep thought and that he had come to police headquarters voluntarily and turned himself in. The appellant’s interview is fully set forth on pages 83-87 of the record with reference to their activity at the apartment, we find the following in the interview:

“MR. RETOWSKY: We come back from the dance, me and Lonnie, Judy, I don’t know her last name.
“MR. SMITH: Judy; could it have been Judy Dawson, used to be Dawson?
“MR. RETOWSKY: Yes, she is a Dawson; her father is a policeman, or fireman, or something; and we danced and drank; and Gary (sic) Cook came in; and Lonnie started; she got mad at me and started trying to hit me, and all. I was laughing at her; then Cook left; and me and her went into the bedroom; she hit me; I started hitting her and choking her and hitting her and choking her; I think I put a cord around her throat; honest to God, I don’t know; I think I did but I don’t know.
“MR. SMITH: What were you hitting her with ?
“MR. RETOWSKY: My hand.
“MR. SMITH: Did you use anything else?
“MR. RETOWSKY: I don’t think so.
“MR. SMITH: Okay, how many times would you say you hit her ?
“MR. RETOWSKY: I honestly don’t know.
“MR. SMITH: Okay, can you tell me why you were in Fennie Ping’s room instead of your room ?
“MR. RETOWSKY: She didn’t want to go into my room because she said I had other people in there.
“MR. SMITH: Said you had other people in there ?
“MR. RETOWSKY: Yes.
“MR. SMITH: Who was in there ?
“MR. RETOWSKY: She didn’t mean that; she meant.
“MR. SMITH: Oh, because you have had other people in there in the past?
“MR. RETOWSKY: Yes.
“MR. SMITH: I see; okay, what were you and her fighting about ?
“MR. RETOWSKY: Just fussing, nothing in particular.
“MR. SMITH: Nothing in particular?
“MR. RETOWSKY: She said, one thing she said, she would, if she asked, I would come right back; and I told her as much as I cared for her, I wouldn’t come back cause she had hurt me so bad. Just, really, I don’t know what we were really fighting about.
“MR. SMITH: How long have you lived with Fennie Ping, shared an apartment with him ?
“MR. RETOWSKY: About the middle of September or the first of November.
“MR. SMITH: Okay, what kind of cord did you tie around her neck ?
“MR. RETOWSKY: I don’t know; I don’t even know if I did; I think I did.
“MR. SMITH: You don’t remember?
“MR. RETOWSKY: I don’t; I think I did but I’m not sure.
“MR. SMITH: Okay, let me show you a piece of cord and ask you if it, if you remember if this could be the cord that you used to tie around her neck ?
“MR. RETOWSKY: I don't know.
“MR. SMITH: Okay, you don’t remember?
“MR. RETOWSKY: No.
“MR. SMITH: Okay, you just remember?
“MR. RETOWSKY: I think I did.
“MR. SMITH: You think this is ?
“MR. RETOWSKY: I don’t.
“MR. SMITH: You think you remember tying something around her neck?
“MR. RETOWSKY: Yes, I think.
“MR. SMITH: I see; okay. You say you lived there for several months ?
“MR. RETOWSKY: Yes, sir.”

Further, through Captain Smith, some photographs were admitted as being made at the scene on the morning of January 1, 1975. The State also brought before the jury a cord which was indicated as having been found at the scene by the officers and retained by them since their investigation, but upon objection and motion by the appellant, the trial court instructed the jury not to consider same and declined to admit this into evidence. The appellant then moved for a mistrial with reference to exhibition of the cord to the jury. After appropriate instructions were given the jury not to consider this, the State rested.

The appellant then presented the testimony of a number of character witnesses, of persons who knew him in the community, in civic work and in his employment at Revere, and testified that his reputation was good.

The appellant then took the stand in his own behalf and told of his marriage; that he was thirty-nine years of age; that he was employed by Revere Copper and Brass for fifteen years and held the position of foreman. He testified that he and the deceased had three children; had formerly lived in Baltimore, Maryland, before moving to Scottsboro in 1968. He testified he was active in his free time in pee wee football, baseball and basketball and that he enjoyed working with young people in sports. He testified that he and his wife had separated for a short time in February 1974, but went back together and remained together until September 1974, at which time they separated. Appellant testified that his wife was employed at the Holiday Inn and that in September, he had moved into an apartment with a friend named Fennie;Ping at the Carriage House Apartments. He stated that around Christmas of 1974, he and his wife had driven to visit some relatives in Baltimore and that he and Gerry Cook had stayed with some relatives and that his wife and the other two children stayed with her sister. He testified that they all returned to Scottsboro late on Sunday evening and that after work on Monday, he had dinner with his wife.

Appellant stated that Tuesday was New Year’s Eve and that he made plans to get together with some friends and go to a dance at the V.F.W. Club. He testified that he met his wife and Judy Kay, who worked with his wife at the Holiday Inn, and that they went to the V.F.W. Club dance. He stated there was no argument or disagreement at the dance. He further stated that sometime after midnight, he, accompanied by his wife Lonnie and her friend Judy, went over to the apartment at the Carriage House Apartments. He stated that they had gotten a bottle from one Donald Johnson and they fixed some drinks and that later Judy sat down on the sofa and went to sleep.

Appellant stated that later, shortly after three o’clock, his friend Gerry Cook came over and that he saw Cook get up to take a cover from the bed of Fennie Ping and put over Judy Kay as she was sound asleep; that later Cook left and that there was some conversation about his wife leaving and that at one time his wife said “take me home,” and he asked her to wait, and then from the record:

“Q. Did anything happen while Cook was there between you and Lonnie ?

“A. She said, she was just swinging at me, roundhouse swinging; and I kept ducking; and we were fussing; and one time, I ducked and she hit the wall or something and busted her thumb there; and that’s when I grabbed her and hugged her, you know; and she bit me, not hard, just bit me here when I was holding her; and I asked her, I was kidding her, but let’s not hurt each other.

“Q. This was at the time that Cook was there ?

“A. Yeah.

“Q. Did you know when Mr. Cook left?

“A. Yeah, he got up and went to the door and Lonnie said something about taking me and Judy over to her house; and I said, ‘Go ahead, Cook, I will take them home.’

“Q. What did your wife say about that?

“A. She didn’t say nothing.

“Q. She didn’t say anything ?

“A. No.

“Q. Did Mr. Cook leave there ?

“A. He left.

“Q. Tell the Court and jury what happened next.

“A. Well, I don’t know, when we finished a drink or had another drink then we went, I don’t know, somehow or another, we went in the bedroom, Fennie’s bedroom.

“Q. What happened in the bedroom ?

“A. We laid on the bed.

“Q. Were you clothed at that time ?

“A. Yes, sir; and we kissed and we got to talking; and she said, I don’t know how I got around to it, she said, ‘Would you still shit to get back to me ?’ And I slapped her.

“Q. You slapped her ?

“A. Yes, sir.

“Q. Where?

“A. Across the mouth.

“Q. Go ahead, please.

“A. Then I went in the bathroom and got a towel and wet it and brought it back in the bedroom; and while I was in the bathroom getting a towel and wetting it down, she had taken all her clothes off.

“Q. This was your wife ?

“A. Yes.

“Q. Where was she when you came out of the bathroom ?

“A. Laying on the bed.

“Q. Did she have any clothes on at all then?

“A. No, sir.

“Q. Did she say anything to you at that time?

“A. She said, ‘Come on and get in bed with me.’

“Q. What, if anything, did you do ?

“A. I took the towel and wiped where I busted her lip, and we laid there; and I took my — We always had a habit, I didn’t have any shorts on; I took my pants off; and I don’t know whether I had, if I had underwear on or not; sometimes, I do and sometimes, I don’t; and I got in bed with her; we fooled around some; and then I got on top of her; and I don’t know whether I entered her or not; but she pulled me down to her; and she had a way of letting me know that things weren’t right; she had a way of kissing me that’s been for years, that used to kiss me like (witness demonstrated) that; and she kept saying, T don’t want you and I don’t want you’; and that’s when I started hitting her.

“Q. Did she do this to you at the time when you got on top of her ?

“A. Yes, sir.

“Q. What did she do ?

“A. She pulled me down and gave me one of those kisses.

“Q. What kind?

“A. One of those like that (witness demonstrated).

“Q. And did she say anything to you?

“A. ‘I don’t want you; I don’t want you.’

“Q. This is what she said to you ?

“A. Yes, sir.

“Q. What did you do ?

“A. That’s when I started beating her; I don’t know how much I beat her; I don’t remember; I tied something around her throat; God only knows what I did.

“Q. Do you remember what all you did?

“A. No, sir; I remember parts of it; I must have, I don’t know all of what I did; I couldn’t swear what I didn’t do.

“Q. Do you even remember leaving the apartment ?

“A. I remember being home with the gun; I had to drive home because my car was over there. Captain Smith asked me if I washed up, my hands were clean; so I remember her bleeding and all; so I must have; I don’t know if I did that there or over at the house; or I don’t know; I had a different shirt on; and I don’t remember even putting that on; and I went home.

“Q. You say you went home, you went to Walsh Street, did you?

“A. Yes, sir; and it seemed like I loaded Billy’s 12-guage and his .410; and I think I was going to kill myself; and then, I remembered it was daylight; and that’s, I think I looked at the clock; but I can’t, I don’t know, I think it was around ten til ten or something like that; I seemed like sticking in there; and that’s when I went to the police station and told them I thought I killed my wife.

“Q. Nobody came to your house and arrested you?

“A. No, sir.

“Q. You drove down to the police station?

“A. Parked my car.

“Q. And you told them you thought you killed your wife ?

“A. Yes, sir.”

I

Appellant’s counsel asserts that Captain Smith and Officer Dawson lacked probable cause and, therefore, should have obtained a search warrant before entering the apartment where they found the body and made a “search” which produced the cord found on the person of the deceased and photographs of the scene.

We do not agree.

The several exceptions to the warrant requirement are ably stated in the opinion of Mr. Justice Bloodworth in Daniels v. State, 290 Ala. 316, 276 So.2d 441. It is clear here that the officers knew that a homicide had taken place upon arrival at the scene and seeing the door open and Officer Dawson’s daughter sitting in the doorway crying in a very upset condition clearly gave rise to the necessary probable cause to enter the premises and determine what had occurred.

Clearly the authorities which are construed under the provisions of Title 15, § 154, Code of Alabama 1940, permit an officer to make an investigation where, as here, he has been notified of the commission of a felony and enters the scene unaccompanied by a warrant. Many of these were reviewed by Mr. Justice Lawson in Duncan v. State, 278 Ala. 145, 176 So.2d 840. Recently, this Court has also determined, as here, that probable cause existed and we do so determine now. Bridges and Rogers v. State, 52 Ala.App. 546, 295 So.2d 266; Burrow v. State, 55 Ala.App. 24, 312 So.2d 596. The search of the apartment where the homicide took place was in all respects proper.

II

Objection was made to the admission in evidence of the photographs made at the scene of the homicide as being too gruesome. These were properly received in evidence. Smarr v. State, 260 Ala. 30, 68 So.2d 6; Nichols v. State, 267 Ala. 217, 100 So.2d 750; Brodka v. State, 53 Ala. App. 125, 298 So.2d 55.

III

The appellant next asserts that his statement given Captain Smith was not “voluntary” and, therefore, should not be admitted.

We find here that prior to any questioning whatsoever, Captain Smith fully advised the appellant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, and in addition, the record here discloses a full pre-Miranda predicate. We are of the opinion that the trial court properly determined the voluntary nature of this statement and such was, therefore, properly admitted at the trial. Hardy v. State, 51 Ala.App. 489, 286 So.2d 899; Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583; McClendon v. State, 54 Ala.App. 327, 307 So.2d 723; Fleming v. State, 57 Ala.App. 556, 329 So.2d 616.

IV

Appellant asserts that his motions for a mistrial were improperly overruled. In the first instance, he calls attention to the examination of Police Captain Smith wherein following his description of his investigation on the morning of January 1 at the apartment, he described removing a cord tied very tight around the neck of the deceased with a bow-type knot and then stated that it had been in his custody since that time. Though the trial court declined to admit the cord on the objection of the appellant, we believe that the trial court here correctly overruled the motion for a mistrial as follows:

“THE COURT: Sustain the objection.
“MR. LIVINGSTON: If it please Your Honor, we would like to move for a mistrial. The cord is still in the presence of the jury, and we would like to move for a mistrial.
“THE COURT: Your motion is denied and overruled. Gentlemen of the jury, the Court has sustained the objection to certain items about which this witness has testified to some cord of some sort. You are not to consider the cord in arriving at your verdict; you are to disregard the cord altogether. That is not to say that you can disregard the testimony of what the witness has said about it; he has a right to testify as to what he says he saw; but as to the cord itself, we have sustained the objection to the cord. You are to disregard the physical evidence of the cord itself altogether in arriving at your verdict in the case.
“MR. LIVINGSTON: We except, Your Honor.”

We note here the trial judge took the necessary steps to remove any possible prejudicial effect of the exhibition of the cord to the jury. Moreover, we are of the view that the cord could have been properly admitted under the testimony of the investigating officers. No error in this respect is here shown. Poellnitz v. State, 48 Ala.App. 144, 262 So.2d 631, and authorities therein cited.

The rule covering this has been stated by our Supreme Court in Shadle v. State, 280 Ala. 379,194 So.2d 538:

“ . . . [I]t is well recognized that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury’s ability to decide the defendant’s fate fairly and justly. And we will not interfere with the trial judge unless there had been a clear abuse of discretion. . . . ”

During the cross-examination of the character witness, called in rebuttal by the State, the following answer was given by the witness Mr. Roden (R.p. 175). Appellant also moved for a mistrial.

“Thank you, sir. Yes, sir; I knew it very well; the man attacked me.”

The trial court then promptly admonished the jury that the altercation between this witness and the appellant had no bearing on the issues in this case; that such had no bearing on the guilt or innocence of the appellant and was to be disregarded entirely. The trial judge then asked the jury if there was anyone among them who could not obey his instructions and that such response was not responsive to the question and should not have been given. The record indicates that no juror responded to the trial judge’s inquiry, and in light of these instructions, we are of the opinion that no error was here shown. Adair v. State, 51 Ala.App. 651, 288 So.2d 187, and authorities therein cited.

V

On the next instance, the appellant asserts that the following question asked on cross-exmination with reference the reason the appellant did not sign the statement given in the interview with Captain Smith constitutes reversible error:

“CONTINUATION BY MR. ARMSTRONG:
“Q. The only reason you didn’t sign it is because your attorney advised you not to?
“A. Yes, sir.
“MR. LIVINGSTON: We object.
“THE COURT: Overrule.
“THE COURT: You may come down, please.”

As may be seen from reviewing the above cross-examination, the defense counsel did not object until after the question was answered. Clearly, his objection came too late. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353, and authorities therein cited. Moreover the appellant did not move to exclude or invoke a further ruling from the trial court, hence such answer is not properly before us for review. Veith v. State, 48 Ala.App. 688, 267 So.2d 480.

VI

After an extensive oral charge, the appellant announced “no exceptions.” The trial court then gave thirteen of the written requested charges and refused six others. We have carefully examined each of the refused charges and determined they are either affirmative in nature, and therefore properly refused under the evidence, or were incorrect statements of the applicable legal principles, hence their refusals were proper. Title 7, § 273, Code of Alabama 1940.

We have carefully examined the record as required by law and find same to be free from error. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. TYSON, Judge

text:
    Virgil M. WILCOX v. STATE.
    8 Div. 671.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Rehearing Denied June 1, 1976.
    Harvey B. Morris and Nancy S. Gaines, Huntsville, 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, represented here and below by employed counsel, was indicted and convicted by a jury for possessing codeine, a controlled substance. Act No. 1407, Acts 1971, p. 2378, T. 22, § 258 (29), (c)(4)(5), Code of Alabama 1940 (Recom.1958). The court fixed punishment at five (5) years imprisonment. This appeal followed.

It appears from the evidence that Patrick A. Edwards, a deputy sheriff, procured a lawful search warrant thereby authorizing him to search the residence occupied by defendant and a woman at 1814 Ballard Drive in Huntsville, Alabama.

Deputy Sheriff Edwards, with the assistance of two fellow officers, initiated the search under the warrant about 7:30 A.M., Saturday, March 2, 1974. They searched the residence and premises.

It appears that Sherry Shelton, the female occupant of the premises, responded to the officer’s knock and opened the front door. She had on a wrap or housecoat, and after being shown the search warrant, admitted the officers; one went to the back door. The officers found defendant in bed, but covered up from his waist down. He had on a visible undershirt. In another room they found defendant’s brother in bed where he had apparently been sleeping.

In making the search they found on the premises the codeine tablets mentioned in the indictment; they also found on the premises numerous other narcotic items, bottles, containers, and tablets that were listed on the return attached to the search warrant. This return covered eight to nine pages, typewritten single-spaces of items that were seized and brought to the trial court or kept available therefor. Some of the items were drugs, related narcotics, empty containers or bottles. We will not undertake to list them. All were found inside the dwelling house or just outside the door in a garbage container and a suitcase.

All these items, including the codeine tablets, were taken, along with a return, to the magistrate who had issued the search warrant. The magistrate designated the returning officer to keep the items in his possession. He produced them in court or kept them available therefor.

The codeine tablets mentioned in the indictment were selected at random by the State toxicologist and were examined by him. He found them to be a controlled substance, namely, a codeine derivative. These tablets were on the searched premises. The magistrate observed the items and released them to Deputy Edwards, the officer who made the return.

I

Appellant asserts that the seized items or property should have been suppressed because the issuing magistrate should have kept the items in his possession and not released them to Officer Edwards, who made the return. Appellant cites T. IS, § 113, Code of Alabama 1940 (Recomp. 1958), which purports to require the issuing magistrate to retain the property in his possession, “ * * * subject to the order of the court to which he is required to return the proceedings, or of the court in which the offense is triable, in respect to which the property was taken.” See also, T. IS, § 116, Code 1940, with respect to search warrant, return and depositions. No mention is made in this section about the seized property.

We construe T. 15, § 113, to authorize the magistrate to deliver the items to Deputy Edwards as a bailee of the magistrate and to hold said items in his custodial possession for use in court; and, also to authorize the bailee to deliver the codeine tablets to the State toxicologist for examination and testing. It appears from the evidence that all the items delivered to the Deputy were produced in court, or kept available therefor at the trial of defendant. The defendant was not prejudiced by the actions of the magistrate in releasing the items to the deputy. At most, the custodial procedure was an irregularity about which defendant cannot complain. He was not prejudiced thereby.

II

We note appellant’s contention that Deputy Edwards, the authorized officer making the search, should not have been permitted to testify as to what was found in the kitchen and bedroom at the Ballard Street premises. In one bedroom, the officer found the white tablets; in another bedroom he testified he found numerous pharmaceutical-type containers— some broken — and their labels; also, that he found outside the house under some garbage bags, a large zipper suitcase, inside of which was a brown paper bag containing 27 containers with labels.

The State, over defendant’s objection, was allowed to introduce into evidence, Exhibit “3”, which was a cardboard box containing 8176 tablets seized under the search warrant. This box (Exhibit 3) contained substances other than the codeine with which the defendant was charged in the indictment.

Judging from the listed items seized as shown in the lengthy return, their pharmaceutical character, names, labels and containers, a reasonable person would be impressed that the several rooms, residence and the curtilage room were used as a storage place for drugs and empty drug containers.

All of this evidence shed light on the use of the premises for drug use and traffic on this residential property. The presence of these items so listed on the return, which was introduced in evidence, created an atmosphere of drug possession and traffic. It is true that only the codeine tablets were mentioned in the indictment, but most of the seized items so listed were related thereto. The presence of the listed items on the premises was a part of the res gestae of the search. They were a part of the same transaction. Brantley v. State, 55 Ala.App. 493, 317 So.2d 337; Miller v. State, Tex.Cr.App., 469 S.W.2d 180; Tyra v. State, Tex.Cr.App., 496 S.W.2d 75, cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 247.

We hold that the evidence as to items found on the premises and listed in the return was admissible, and likewise the codeine tablets listed on the indictment. Defendant suffered no prejudicial injury thereby.

Ill

Appellant asserts prejudicial error by the court in refusing the following charge:

“DEFENDANT’S CHARGE NO. 8
“I charge you, Members of the Jury, that the innocence of the Defendant is presumed until his guilt is established by the evidence in all the material aspects of the case, beyond a reasonable doubt, and to a moral certainty, and to the exclusion of every other reasonable hypothesis, and, it may also be said that evidence of guilt must be strong and cogent, and unless it is so strong and cogent as to show that the Defendant is guilty to a moral certainty, the Defendant should be acquitted.
“Refused
“/s/ John D. Snodgrass, C. J.”

The court correctly ruled that Charge 8 was inadmissible. It is not based on the evidence and is abstract. Duchac v. State, 52 Ala.App. 327, 292 So.2d 135(8).

Refused Charges 9, 13 and 14 argued by appellant are either abstract and not based on the evidence, covered by the oral charge, or given charges, or are not applicable to the facts. Duchac, supra; T. 7, § 273, Code 1940 (Recomp.1958).

The judgment of the court is affirmed.

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

AFFIRMED.

All the Judges concur.

ON REHEARING

Appellant reasserts his contention as follows :

“Issue Presented for Review Number Two is as follows: ‘Where the Defendant is on trial under indictment charging illegal possession of ten tablets containing codeine, it is reversible error on the part of the Court below to allow testimony about and the actual introduction of numerous pharmaceutical containers, labels and over 8,000 pills and tablets where there is no evidence of the actual chemical content of the substances and where an objection to such testimony and the introduction of such evidence was timely made by the Defendant ?’ ”

It appears that appellant objected to the introduction in evidence of certain items that are listed on the lengthy return (Exhibit 1, Tr. 128) to the search warrant that authorized the seizure of the narcotics and related items, including over 8,000 pills and tablets. We note that as to most of these several listed items so introduced there is no evidence of the actual chemical content. Objections to such introductions and evidence relating thereto were timely made and overruled. Appellant cites Parks v. State, 49 Ala.App. 82, 268 So.2d 498 in support of his contention of error in the Court’s ruling.

We are not willing to say that the introduction in evidence of these items created prejudice in the minds of the jury. The listings on the return admitted in evidence of the several hundred alleged narcotics and related items fully informed the jury as to the fruits of the search, and the introduction of the physical items, if error, was error without injury. Supreme Court Rule 45, T. 7, p. 1182. In Parks there was no introduction of a return to the search warrant. The same may be said about Tadlock v. State, 45 Ala.App. 246, 228 So.2d 859.

The application for rehearing is overruled.

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

TYSON, Judge

(concurring specially).

Whatever misgivings the Court of Crimi-mal Appeals may have had with reference to the admission of “other hard drugs” in a possession case, were resolved by a divided (5^1) Supreme Court of Alabama in Brantley v. State, 294 Ala. 344, 317 So.2d 345.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


text:
    Johnny POWERS v. STATE.
    4 Div. 431.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.

      Robert H. Ford, Troy, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The grand jury of Houston County, Alabama, charged the appellant with forgery of a check drawn on the First National Bank of Ashford, Alabama, payable to the order of James Johnson for $25.00, dated March 23, 1975 and signed by “Charles Weeks,” with the words, “Weeks Trucking, Ashford, Ala.” and the account number shown thereunder. The jury found the appellant “guilty of forgery as charged” and the trial court then entered judgment setting sentence at six years imprisonment.

Joe Towns testified that during March, 1975, he operated the North Side Food Store, a convenience store located at 1004 Airport Road in Dothan, Alabama. He testified that on at least two occasions prior to March 31, 1975, the appellant Johnny Powers had come to his store and transacted business. He stated that on the night of March 23, 1975, the appellant presented him with a check for $25.00 drawn on the First National Bank of Ash-ford, Ashford, Alabama, dated March 23, 1975, and signed by “Charles Weeks, Weeks Trucking.” He testified that the appellant came in and endorsed the check on the back side and wrote his phone number on it and that he bought seven or eight dollars worth of groceries and he gave him the difference in cash. In court he positively identified the appellant as the party presenting the check in question. He stated that this check was deposited in his account at the First National Bank of Doth-an and returned to him later as being a forgery.

On cross-examination he admitted that from being shown photographs at a previous time by the appellant’s attorney, he could not positively state that the appellant was the man in the photographs but that “he looked like the man.” Mr. Towns then identified the check and over objection the same was received in evidence.

Charles Weeks testified that he lived at 705 Wildwood in Dothan, Alabama, and that he operated the Charles Weeks Company, Incorporated, in Ashford, Alabama. Upon being shown the check in question, he testified that that was not his signature nor had he authorized anyone to sign his name to the check in question.

Joe Towns was then recalled and positively identified the appellant as being the party who endorsed the back of the check and wrote his phone number on same. The appellant made a motion to dismiss which was overruled by the trial judge, but did not offer any evidence at trial.

I

Appellant contends there was a fatal variance between the pleading and proof and that his motion to dismiss should have been granted.

In Ex parte State, 213 Ala. 1, 104 So. 40, we find:

“A consideration of the cases will disclose as elements of forgery (1) that there must be a false making — and this may be accomplished by ‘the fraudulent application of a false signature to a true instrument, or a real signature to a false’ instrument; (2) that the essence of forgery is an intent to injure or defraud when the act complained of is done (Agee v. State, 113 Ala. 52, 21 So. 207; Denson v. State, 122 Ala. 100, 26 So. 119), and it is not necessary that any actual injury should result from the offense (Denson v. State, supra); and (3) it is of ‘no consequence whether the counterfeited instrument be such as if real would be effectual to the purpose it intends so long as there is a sufficient resemblance to impose on those to whom it is uttered.’ Burden v. State, 120 Ala. 388, 25 So. 190, 74 Am.St.Rep. 37; L.R.A.1918B, p. 1192, note; 7 Ency.Dig.Ala. Rep. 477.”

In Hamilton v. State, 35 Ala.App. 570, 50 So.2d 449, we find:

“Forgery in the first degree is defined in Section 199, supra [Title 14, Section 199, Code of Alabama 1940]. It pertains to the altering, forging, or counterfeiting of any bill, note, draft, check, certificate or other evidence of debt issued by banks, either state or national. . . .”

We are of the opinion that the applicable elements of forgery were here established and that the evidence clearly supports the conviction in question. Jones v. State, 53 Ala.App. 497, 301 So.2d 260; Simmons v. State, 55 Ala.App. 679, 318 So.2d 374.

II

The appellant contends that the trial judge erroneously allowed the back of the check in question to be considered by the jury. We do not agree, as while it is true that the back of the check did not necessarily constitute a part of the purportedly forged instrument, Brown v. State, 30 Ala.App. 339, 7 So.2d 24, since the testimony of the State’s witness indicated that the appellant had endorsed the check in question, such was properly allowed to be presented to the jury. The other writing on the back of the check was not to be considered as “a part of the check,” and the State’s offer of proof was not for this purpose. The State’s witness simply testified that this check was in the same condition as when it was returned to him by the First National Bank of Dothan. Thus, no error is shown.

We have carefully reviewed this record as required by law and find no error therein and the judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.