author: CLARK, Supernumerary Circuit Judge. DeCARLO, Judge, PER CURIAM. CLARK, Supernumerary Circuit Judge.

text:
    Myrtle HOSEY, alias v. STATE.
    4 Div. 462.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    On Rehearing March 1, 1977.
    Rehearing Denied March 29, 1977.

      Samuel L. Adams, Adams & Bates, Do-than, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

Appellant was convicted of arson in the first degree and sentenced to imprisonment for fifteen years.

At the close of the State’s evidence, defendant moved to exclude the evidence on the ground that the ownership of the property had not been proved as charged in the indictment. Appellant now urges as error the action of the trial court in overruling the motion. The indictment charged defendant with “the burning of an uninhabited dwelling house, the property of another, to wit: Felton Hosey.” Felton Hosey was her husband of many years at the time of trial. Appellant has apparently overlooked some of the testimony in the case. One of the first witnesses testified as follows:

“Q Did you know Mrs. Hosey back in May of 1975?
“A Yes, sir. I did.
“Q Do you recall when Felton Hosey’s house over on South St. Andrews burned?
“A Yes, sir. I do.”

Thereafter there was lengthy testimony ,of the witness with reference to the house that was burned, as identified by him in the quoted testimony. Furthermore, before the State closed its case, there was testimony by an insurance adjuster who referred to insurance on the house in the name of Fel-ton Hosey, whose testimony as to various details of transactions relative to the insurance furnished a basis for a reasonable inference that the house was the property of Felton Hosey, as alleged.

Code of Alabama, Tit. 14, § 29 provides:

“Any person who wilfully sets fire to or burns the property of his wife or her husband, or of his landlord, without the express consent of the owner, to burn such property, shall be guilty of arson in the same manner and to the same degree, and shall be punished in the same manner and in the degree as if the relation of husband and wife or landlord and tenant did not exist.”

Prior to the Code of 1907, which first contained the law just stated, a wife in possession of property owned by her husband could not be convicted of arson thereof. By adopting the Code of 1907, the legislature removed a defense which the named persons were, under the law, previously authorized to make to indictments charging them with arson. Williams v. State, 177 Ala. 34, 58 So. 921; Williams v. State, 4 Ala.App. 92, 58 So. 925.

Quinton Johnson was the chief witness against defendant. He testified that he himself burned the house at the direction of defendant, who promised to pay him therefor and who did in fact pay him five hundred and eighty dollars after he committed the crime. He testified that she promised to pay him six hundred dollars. He testified that a short while before he set fire to the house the defendant handed Mrs. Johnson twenty dollars with which to buy some cigarettes. Mrs. Johnson kept the change after returning from the store to buy the cigarettes. At the time of the purchase of the cigarettes, the defendant, Mr. and Mrs. Johnson and two of their children were in Mrs. Hosey’s automobile, which she drove to the store where the cigarettes were purchased. Thereafter, Mrs. Hosey drove them around in the automobile for a few minutes while Mr. Johnson was let out of the car in the vicinity of the house that was burned. According to the testimony of Mrs. Johnson, the automobile was then driven around by Mrs. Hosey with Mrs. Johnson and the two Johnson children therein for about ten or fifteen minutes, when it returned to the point where Mr. Johnson left the car. He was there picked up; he was asked by Mrs. Hosey, “Is it burned and he said yeah. And he said let’s get out of here and we took off.” They then went to the home of Mr. Johnson’s sister, where Mrs. Johnson and the Johnson children debarked, and at which time Mrs. Hosey gave Mr. Johnson a white envelope, which Mr. Johnson gave Mrs. Johnson, telling her to keep it until he returned, which she did. She testified that the envelope contained five hundred and eighty dollars. She also testified that at the time her husband left the automobile he had a can of lighter fluid in his hand.

Appellant relies upon Code of Alabama, Tit. 15, § 307, as follows:

“A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

Mr. Johnson was indicted for the particular felony; he pleaded guilty and was sentenced to imprisonment for two years and granted probation. Even though there is some indication in the evidence tending to exculpate him of a felonious intent, we doubt not that he was an accomplice, and that if his testimony was not corroborated “by other evidence tending to connect the defendant with the commission of the offense,” other evidence that does not “merely” show the “commission of the offense or the circumstances thereof,” the judgment should not stand.

There may be basis for suspicion of complicity on the part of Mrs. Johnson, but our review of the record convinces us that there is no reasonable basis for a finding that she was guilty as a principal or an accessory before the fact. Her husband had worked often for the Hoseys in various capacities. According to her, her husband had been working for them all day before the fire, and he told her that Mrs. Hosey had the money for that day’s work and that they went to Mrs. Hosey’s house that night to get his money. Her testimony was seriously challenged by defendant’s counsel, but not on any basis that she was in any respect particeps criminis. Defendant’s contention was to the contrary, that Mr. Johnson had burned the house by reason of a grudge he had against the Hoseys, without any involvement of either Mrs. Johnson or Mrs. Hosey. A weaker case for implicating Mrs. Johnson in the crime is presented than that shown in Magouirk v. State, 49 Ala.App. 420, 272 So.2d 625, 629, where it was held:

“There is no evidence in the record which we find implicating witness George as an accessory before the fact to the murder. The evidence of defendant does not implicate George. Defendant pivoted his justification solely to his plea of self defense. It may be that George was an accessory after the fact in aiding defendant in removing and concealing the body. Tit. 14, § 15, Recompiled Code, supra. Violation of this section is a separate and distinct offense, made so by this section. Belser v. State, 16 Ala.App. 504, 79 So. 265.
The fact that George was indicted with defendant does not per se raise the presumption that he was an accomplice or accessory before the fact. Steel v. State, 37 Ala.App. 621, 73 So.2d 573. The mere presence of George at the scene of the homicide, without more, is insufficient to show him to have been an accomplice to the homicide. Snowden v. State, 27 Ala.App. 14, 165 So. 410; Davis v. State, 257 Ala. 447, 59 So.2d 592.”

In addition to the corroboration by Mrs. Quinton Johnson of the testimony of Quinton Johnson, we find that Mr. Sid Batchelor, an investigator with the Houston County Sheriff’s Department, testified that after the commission of the crime, a short time before Mr. Quinton Johnson was to appear before the grand jury in connection with the matter, Mr. Batchelor overheard a telephone conversation between defendant and Mr. Johnson, wherein she implored him to testify that he “got drunk and the last time you seen me the day of the fire was about five o’clock that evening” and that for doing so he would be paid four hundred dollars cash or given “a little ole trailer.” Such testimony, pointing strongly to defendant’s consciousness of guilt, constitutes sufficient corroboration to meet the requirements of the statute. Ross v. State, 74 Ala. 532; Crumbley v. State, 26 Ala.App. 24, 152 So. 55, cert. denied, 228 Ala. 45, 152 So. 57.

The punishment for arson in the first degree that does not produce the death or maiming of any person is “not less than two nor more than twenty years.” Code of Alabama 1940, Tit. 14, § 23. Promptly after the return of the verdict and the release of the jury, the following occurred:

“THE COURT: Myrtle Hosey, the Jury having found you guilty of Arson in the First Degree, as charged in the indictment, on that Jury Verdict I hereby adjudge you guilty of Arson in the First Degree as charged in the indictment. Do you have anything to say why sentence of law should not be pronounced upon you at this time?
“MRS. HOSEY: Judge, I am not guilty.
“THE COURT: I hereby sentence you to imprisonment in the penitentiary of the State of Alabama for a period of 15 years. You are in the custody of the Sheriff.
“MR. ADAMS: Give notice of appeal and ask that the sentence be suspended pending the appeal, Judge.
“THE COURT: I want the record to show that in connection with the Court’s sentencing in this case, that I took into consideration a case that I have had previously, a civil case, that I have had previously where Mrs. Hosey was sued for the recovery of certain personal property that she took from an individual where fraud was involved. I took that into consideration. Now your having — where the Jury rendered a verdict, a substantial verdict against Mrs. Hosey. Now this Court having sentenced you to imprisonment in the penitentiary of the State of Alabama for a period of 15 years, your having given notice of appeal to the Alabama Court of Criminal Appeals and having moved that your sentence be suspended pending appeal, your sentence is suspended pending appeal. And, your bail is set in the amount of $15,000.00. You are in the custody of the Sheriff.

“PROCEEDINGS CONCLUDED.”

We admire the commendable candor and the obvious dedication to his sense of duty of the trial judge in the statement of his reason for the severity of the sentence. Nevertheless, we do not feel that the reason stated constituted a sufficient ground for a substantial increase in the sentence from what it would have otherwise been. We are not saying that the trial judge did not have sufficient information that would have warranted such an increase, but the incident referred to was not, standing alone, we think, sufficient. As the trial court based its reason on the narrated incident alone, we must review its action as based upon the narrated incident alone.

We must, and gladly endeavor to, adhere to the principle that it is the prerogative of the trial court to assess punishment within the legal limits, as sound discretion should dictate, and that the appellate courts should not usurp or invade the discretionary authority of the trial court in fixing punishment, within lawful limits. Goolsby v. State, 283 Ala. 269, 215 So.2d 602. Unquestionably, it was within the discretionary authority, under the circumstances of this case, of the trial court to sentence defendant to imprisonment for fifteen years, but that alone is not what we are now called upon to decide. Before us now is the question whether we should approve or disapprove the court’s action in allowing the incident referred to to increase defendant’s punishment.

The range of outside matters entitled to consideration by the trial judge in fixing punishment is extremely broad. Few limitations are to be found. However, it is hardly questionable that there are limitations, that there are circumstances not growing out of the particular case in which the defendant is sentenced, that would furnish no justification whatever for an increase in the punishment. We do not find definite precedent for or against the action here considered. A scholarly and comprehensive review of authorities on the subject by Presiding Judge Cates is found in Scopolites v. State, 50 Ala.App. 115, 277 So.2d 389, cert. denied 291 Ala. 797, 277 So.2d 395, cert. denied, 414 U.S. 977, 94 S.Ct. 299, 38 L.Ed.2d 221. In that case, the court was considering the effect of information conveyed to the trial court by the prosecuting attorney at the time of sentencing, that defendant “had other narcotic charges in California which were dismissed.” In affirming the sentence, the court said:

“. . . [T]he two California narcotics charges were not denied by Scopolites. . The fact that somewhere in the judicial process the charges were dismissed does not wipe out the fact that two offenses were charged.”

The court also held that as to the reference to the narcotics charges in California:

“Defense counsel, ready at other times to object, here chose to remain silent. We treat his silence as a waiver.”

In Scopolites, the record does not conclusively show that the court increased the punishment by reason of the information as to the narcotics charges in California.

In the case before us, we do not have any reference to criminal charges. We do not say that gross misconduct not amounting to a crime is not a proper subject of consideration by the trial court in the sentencing process. We recognize that all criminal fraud involves scienter and that in most civil fraud scienter is an element, but not always. Implied perhaps, but not necessarily, in reference to the civil fraud case involving the taking of personal property from another, is the charge that she was guilty of the crime of obtaining personal property under false pretense. Even so, this is no more than conjecture, from our standpoint. The waiver charged against defendant’s counsel in Scopolites, by reason of his silence at the time the objectionable matter was brought to the attention of the trial court, was by reason of the special circumstances narrated in that case, which do not exist here. It may well be that counsel fully understood the nature of the other case, that it was reprehensible and that it was worthy of consideration by the trial court in fixing the punishment. On the other hand, it could have been that he was not aware of it or that he could have convinced the trial judge that the other case should not be a substantial factor in the consideration of punishment, if he had had adequate opportunity to do so.

The question would be easier for us to resolve, if the trial court, after stating the reason for the severity of the sentence, had gone more into detail as to what was involved and had given defendant and her attorney an opportunity to state her side, if any, to the matter. Perhaps this could be accomplished at this late date, but under all the circumstances we think it better that final action be taken now on what has been presented to us. In our opinion, the judgment of conviction should be affirmed and the cause remanded to the trial court for resentencing, by a reduction of the sentence to the punishment that would have been imposed without any consideration of the civil case to which reference was made by the trial court.

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

AFFIRMED.

REMANDED FOR PROPER SENTENCING.

TYSON, P. J„ and CATES, HARRIS and BOOKOUT, JJ., concur.

DeCARLO, J., concurring specially.

DeCARLO, Judge,

concurring specially.

I join in the opinion of this court but by doing so point out that this opinion is not to be construed as a procedure for the revision of sentencing by the trial court.

All the judges concur.

ON REHEARING

PER CURIAM.

The application for rehearing is hereby granted, and that portion of this Court’s opinion on original deliverance which would remand this cause for proper sentence is stricken.

APPLICATION GRANTED: JUDGMENT AFFIRMED.

HARRIS, DeCARLO and BOWEN, JJ., concur.

TYSON, P. J., and BOOKOUT, J., adhere to their views as expressed on original deliverance.

On Rehearing

CLARK, Supernumerary Circuit Judge.

Pursuant to application filed by counsel under ARAP, Rule 39(k), we add to the statement of facts to the opinion in this cause the following:

“Frances Oran, Myrtle Hosey’s daughter, testified that on May 27,1975, the date of the fire at 903 South St. Andrews, she and her three children lived in the house which was burned.”

OPINION EXTENDED.

APPLICATION OVERRULED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte Myrtle HOSEY.
    SC 2483.
    Supreme Court of Alabama.
    May 6, 1977.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    Damon Shelton NAPIER v. STATE.
    1 Div. 725.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.

      David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and James S. Ward, Asst. Atty. Gen., for the State.
   PER CURIAM.

On an indictment charging that appellant, Damon Shelton Napier, did unlawfully give away heroin to Steven Wayne Rhodes, and that said Damon Shelton Napier has heretofore been convicted of an offense under the Uniform Alabama Controlled Substances Act, on, to-wit: February 24, 1976, the appellant was convicted and sentenced to twenty-five years imprisonment in the penitentiary.

This cause was submitted to this Court on briefs. Appellant was at all proceedings in the lower court represented by counsel of his choice, and is here represented by court appointed counsel.

Counsel for appellant argues that the trial court erred in overruling his objection to the following wording in the indictment: “and that said Damon Shelton Napier has heretofore been convicted of an offense under the Uniform Alabama Controlled Substances Act, on to-wit: February 24, 1976”. The way to raise the question as to the proper wording of an indictment is by demurrer. The record in this ease fails to show a demurrer to the indictment, but does show that appellant was in open court, attended by counsel, waived reading of the indictment, and entered a plea of not guilty. The appellant was not prejudiced by the overruling of his objection to the wording of the indictment, because his objection to the wording of the indictment was obviously without merit. Uniform Alabama Controlled Substances Act provides as follows:

“Sec. 258(53). Second or subsequent offenses. — (a) Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term outherwise (otherwise) authorized, fined an amount up to twice that otherwise authorized, or both.
(b) For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs. (1971, No. 1407, p. 2397, Sec. 407, appvd. Sept. 16, 1971.)”

We hold that it is proper for an indictment for an offense in violation of the Uniform Alabama Controlled Substances Act to contain the averment that the defendant has heretofore been convicted of an offense under the act. Title 22, Sec. 258(58) of the Code of Alabama, supra; Mamie Delores Funches v. State, 56 Ala.App. 22, 318 So.2d 762; certiorari denied, 294 Ala. 757, 318 So.2d 768.

Appellant also contends that the court erred in refusing to grant his motion to exclude all the evidence. This motion was made by appellant at the close of the state’s case. The state had introduced evidence of five witnesses namely: Stephen Wayne Rhodes; Officer Diegan; James L. Small, State Toxicologist; Ronnie Quarles; and his wife, Deborah Quarles. Mr. and Mrs. Quarles had testified that they went to Mexico with appellant and that appellant bought heroin in Mexico. From their testimony, if believed, they had assisted the appellant in securing the heroin in Mexico and bringing it into the United States and to Mobile, Alabama. The witness, Stephen Wayne Rhodes, testified in substance that the appellant had the heroin in the kitchen of a house in Mobile, Alabama, in which witness had a room. That appellant mixed the heroin with dextrose and placed some of it in a tin foil package and gave it to the witness. On the next day Rhodes gave the package to Mr. Quarles and went with him and saw him give it to Officer Diegan. There is no evidence in the record that Rhodes had anything to do with the heroin except to take it from appellant and deliver it to Mr. Quarles to give to the police officer Diegan. The proper way to determine if a witness is an accomplice is, could the witness have been indicted and convicted of the offense charged either as principal or accessory. If he could not, he is not an accomplice. Guyward Wayne Miller v. State of Alabama, 290 Ala. 248, 275 So.2d 675.

We hold that the witness Rhodes is not shown by the facts in the record to be an accomplice, and that his evidence together with the other evidence offered by the state, if believed by the jury, is sufficient to sustain the jury verdict finding the appellant guilty as charged in the indictment. The court did not err in overruling appellant’s motion to exclude the evidence.

Next the appellant contends that the court erred in overruling his objection to the introduction of State’s Exhibit 2. In the record we find the following:

“MR. HUGHES: At this time I would offer State’s Exhibit 2 in evidence.
MR. STEPHENS: I would object Your Honor. It has not been proven that what’s in that little piece of tinfoil is in fact heroin.
MR.-HUGHES: I think that Mr. Small testified that it was heroin and that he got it from Mr. Diegan and Mr. Diegan got it from Mr. Quarles and that Mr. Quarles got it from Stephen Rhodes.
THE COURT: Overrule the objection.
(State’s Exhibit 2 was.placed in evidence.)”

There is evidence in the record before us that appellant gave the substance contained in State’s Exhibit No. 2 to the witness Rhodes, that Rhodes did nothing to change it and gave it to witness Quarles, that Quarles did nothing to change it and gave it to Deputy Diegan, that Deputy Diegan did nothing to it to change it and gave it to Jim Small, a State Toxicologist. Jim Small testified that the substance contained in State’s Exhibit 2 was 36% heroin, a controlled substance. There was no objection to any of the testimony of witness Small.

We hold that under the facts the trial court did not err in overruling the appellant’s objection to the introduction in evidence of State’s Exhibit 2.

The appellant contends that the trial court erred in admitting evidence of his prior conviction when the prior conviction is still on appeal. In the record we find that State’s Exhibit 3 is a certified copy of a judgment of the Circuit Court of Mobile County showing that Damon Shelton Napier was, on February 24, 1976, found guilty of possession of narcotics, was sentenced for five (5) years imprisonment and assessed a fine of $25,000.00, that notice of appeal was given, that in open court the defendant’s attorney was present. The appellant testified in his behalf and on direct examination stated that just last month he was convicted for embezzlement, just prior to that he was convicted of possession of narcotics, that there was a gun case and he was sentenced to two years, as ex-felon in possession of firearms. Nowhere in the record do we find an objection to the introduction of State’s Exhibit No. 3. Of course, the appellant could not complain of evidence brought forward by him. We find no evidence in the record that an appeal of appellant’s former conviction was pending.

A former conviction of a person for an offense against the law may be proven by a certified copy of the judgment of the former conviction and, when necessary, a certified copy of the indictment or complaint in the former case, and proof that the person on trial and the person named in the certified judgment is one and the same person, or by the admission of the defendant. Evidence of such former conviction is admissible under an indictment charging a former conviction as in this case. Mamie Delores Funches v. State, supra; Rogers v. State, 34 Ala.App. 617, 42 So.2d 642; Robert Pitts v. State, 56 Ala.App. 10, 318 So.2d 750; Anderson Hunter, alias v. State, Court Of Criminal Appeals, 1976, 331 So.2d 406; Steel v. State, 35 Ala.App. 163, 44 So.2d 795.

The question as to the effect, if any, a pending appeal has on a judgment of conviction is not presented to this .Court under the facts in this record. We hold when the state introduced a certified copy of the judgment .showing a former conviction of the appellant for possession of narcotics, it made out a prima facie case. If such former conviction, for any reason was void, or insufficient to justify the enhancement of punishment provided for in the statute, the burden would be on the accused to present evidence of such matters. Am.Jur.2d, Vol. 39, Sec. 25, Burden Of Proof, at page 329. Justice Taylor speaking for the Supreme Court of Alabama in the case of Gee, Administrators v. Nicholson, 2 Stewart’s Reports 512 said: “The suing the writ of error can make no difference. We cannot presume the decree to be reversed until this is shown by proof, but must consider it as yet in full force.”

Justice Tyson, of the Supreme Court of Alabama, speaking of a judgment of a former conviction pending on appeal in the case of Viberg v. The State, 138 Ala. 100, at page 107, 35 So. 53, at page 55, said:

“Our conclusion is, that the judgment of conviction remained in full force and effect in so far as it was an adjudication of the guilt of the defendant for the purpose for which it was offered in evidence.”

See also cases of Collier v. Alexander, 142 Ala. 422, 38 So. 244; Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So.2d 795.

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

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment of conviction is affirmed.

AFFIRMED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Damon Shelton NAPIER.
    SC 2496.
    Supreme Court of Alabama.
    May 6, 1977.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.


author: BOWEN, Judge.

text:
    Ronald SMITH v. STATE.
    6 Div. 957.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    As Corrected On Denial of Rehearing March 29, 1977.

      P. Wayne Thorn, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Richard S. Jaffe, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

Robbery; sentence: ten years.

The appellant was convicted for the robbery of one hundred dollars from Alley Drugs. He maintains that this conviction should be reversed because two blackboards containing conflicting notations were allowed in the jury room during the jury’s deliberations where the blackboards had not been introduced and admitted in evidence, and because of statements made by the prosecutor during closing argument.

The evidence reveals that on the afternoon of October 26, 1974, Richard Craig drove the appellant to visit his sister. On leaving, they went to Alley Drugs because Craig wanted to purchase a wallet. The appellant did not accompany Craig into the store. At the cash register, Craig pulled a pistol from his pocket and the store employee put one hundred dollars into a bag held by Craig. This store employee testified that the appellant was standing beside Craig when this pistol was drawn and Craig and the appellant left the store together. Craig confirmed the fact that the appellant was in the store during the robbery, but testified that he did not tell the appellant of the robbery and denied that the appellant was standing beside him when he pulled his pistol. Craig further testified that when he and the appellant left the store, the appellant had no knowledge that a robbery had been committed.

Upon a description received from the store employee and information obtained from others near the store, a Birmingham City policeman stopped the car driven by Craig. The automobile was searched and the officer found a bag of money on the front seat between Craig and the appellant, and a pistol under the appellant’s seat.

Craig pleaded guilty to the robbery of the Alley store before the trial of the appellant.

I

The appellant urges that the trial court committed reversible error in allowing two blackboards to be taken into the jury room to be observed by the jury during their deliberation. Appellant asserts error because the blackboards had not been formally admitted into evidence, were given to the jury without the consent or knowledge of trial counsel, and allegedly contained conflicting testimony and notations. The blackboards contained diagrams of the general layout of the interior of Alley Drugs. The diagrams were drawn by v/itnesses for the prosecution and the defense during the course of the trial and were used to illustrate the testimony of the witnesses as to the events of the robbery.

After the verdict was returned by the jury and the trial judge had pronounced sentence upon the appellant in accordance with that verdict, the following occurred:

“THE COURT: It is the judgment and sentence of this court that you be imprisoned in the penitentiary for a term of ten years.
“MR. THORN: I would like to make one point at this time. There were some charts which were taken into the jury room that were not introduced into evidence.
“THE COURT: Those are diagrams marked as Court’s Exhibits. The one that had testimony on it I did not allow in the jury room.
“MR. THORN: We would like to take exception to that Your Honor and give notice for appeal.”

This exception, even if it be considered an objection, was untimely and not seasonably made. Defense counsel should not be allowed to gamble upon the possibility of' a favorable answer or verdict. The objection must be made as soon as the ground becomes apparent. McCormick, The Law of Evidence, § 52; Wigmore, Evidence, § 18; 6A Alabama Digest, Criminal Law @=*690.

The record is devoid of any indication as to when it became apparent that the blackboards were present in the jury room or when defense counsel gained knowledge of this. Under these circumstances, we must conclude that where the objection to the presence of demonstrative evidence in the jury room during the deliberations of the jury is made after the verdict is returned, the objection is waived.

Furthermore, had the objection been timely, the assigned objectionable character of the blackboards (that they were not introduced or admitted in evidence) is insufficient. Where a diagram has not been formally introduced in evidence, the fact that it has been used in connection with the giving of testimony makes it evidence in the case and proper to go before the jury in its deliberations. 1 McElroy, The Law of Evidence In Alabama, 291, § 123.01. Where the jury has had an adequate view of real evidence it is not strictly needful to make a formal introduction of it in evidence. Rainey v. State, 48 Ala.App. 530, 266 So.2d 335 (1972) and cases cited therein. Under the authorities cited above, the action of the trial court was proper in permitting the blackboard without testimony on it to go to the jury.

In his brief on appeal, appellant’s counsel assigns an additional ground for error in permitting the blackboard in the jury room. Indeed he insists, apparently, that both blackboards, were in the jury room. This insistence is simply not sustained or supported by the evidence. The trial Judge specifically stated that he did not allow the blackboard with testimony on it in the jury room. Additionally, as the appellant did not assign this ground when he stated his objection at trial, it was waived. Lackey v. State, 41 Ala.App. 46, 123 So.2d 186, cert. denied, 271 Ala. 699, 123 So.2d 191 (1960); Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973). The appellant is bound by the objection which he asserted at trial. Roynica v. State, 54 Ala.App. 436, 309 So.2d 475, cert. denied, 293 Ala. 772, 309 So.2d 485, cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 85 (1974).

II

During the course of the State’s closing argument the following occurred:

“MR. JOHNSON: He admitted on the stand that he (Richard Craig) and Mr. Smith (the appellant) are friends.
“MR. THORN: I object to that.
“THE COURT: You remember the testimony, ladies and gentlemen, as you heard it. What he says is not evidence.”

Liberal rules are allowed counsel in drawing inferences from the evidence in their arguments to the jury, whether they are truly drawn or not. Mitchell v. State, 57 Ala.App. 601, 329 So.2d 658, cert. denied, 295 Ala. 412, 329 So.2d 663 (1976); Binion v. State, 57 Ala.App. 234, 327 So.2d 729, cert. denied, 295 Ala. 391, 327 So.2d 732 (1975). In view of the testimony of Craig to the effect that he had taken the appellant to visit the appellant’s sister in his own car, that they had visited there for fifteen or twenty minutes, and that they had then gone to Alley Drugs together, we think the Deputy District Attorney was within the bounds of allowable inferences deducible from the evidence in this instance.

The appellant also argues that error resulted from the following statement of the Deputy District Attorney in closing argument:

“MR. JOHNSON: Richard Craig was either lying to you yesterday or he was lying to Tommy White about what, the day after, about what did happen.
“MR. THORN: I object. I don’t think there has been any testimony about a Tommy White. I ask that that be excluded.
“THE COURT: Go ahead. Let’s don’t state evidence that’s not in evidence.”

The Deputy District Attorney had cross-examined Craig in the course of the trial in regard to some statements Craig made to a Sergeant White the day after the robbery. Craig admitted telling Sergeant White that he “never intended to rob the store at anytime” and that “it was all just an accident”. He denied telling White that the appellant was standing right next to him when he pulled the gun. Sergeant White did not testify nor was he identified as Tommy White.

The witness admitted talking with Sergeant White; he admitted making some statements and denied making others. Under these circumstances, the Deputy District Attorney’s argument went to the credibility of the witness and as such was within the proper scope and limit of argument. The credibility of witnesses as shown by the reasonableness of their story and many other considerations, are legitimate subjects of criticism and discussion. Peek v. State, 19 Ala.App. 370, 97 So. 374 (1923); Jackson v. State, 239 Ala. 38, 193 So. 417 (1940); Wall v. State, 2 Ala.App. 157, 56 So. 57 (1911); Cook v. State, 152 Ala. 66, 44 So. 549 (1907); Thomas v. State, 206 Ala. 416, 90 So. 295 (1921). The prosecutor’s remarks were grounded on some testimony given by the witness himself. The appellant made a motion to exclude and the trial Court cautioned the prosecutor not to argue facts not in evidence. No further action was requested of the court in relation to this statement. There is no legal standard by which prejudicial qualities of improper remarks of the District Attorney can be gauged. Each case must be determined on its own merits. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1967); Atchinson v. State, Ala.Cr.App., 331 So.2d 804, cert. denied, Ala., 331 So.2d 806 (1976). We do not believe that the remarks in question were so prejudicial to the appellant as to have a natural tendency to influence the jury adversely to the appellant or to have denied him a fair trial.

We have carefully examined the entire record as required by law, including each and every ruling and action of the trial Court adverse to the appellant. We have found none which affected the substantial rights of the appellant.

The judgment of conviction is hereby

AFFIRMED.

All Judges concur.


text:
    Ex parte Ronald SMITH.
    SC 2492.
    Supreme Court of Alabama.
    May 6, 1977.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.


text:
    Alton SANDERS, alias v. STATE.
    3 Div. 447.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
   ON REHEARING

This case was first before us as Sanders v. State, 56 Ala.App. 120, 319 So.2d 739, wherein the judgment of conviction with a sentence of seven years imprisonment was reversed and the cause remanded for the failure of the evidence to show the value of the property allegedly bought, received or stolen. After another trial, conviction and a sentence to imprisonment for ten years, it came before us again. By opinion of October 12, 1976, the judgment of conviction was affirmed and the case was remanded for appropriate sentencing consistent with the principle that the showing of the existence of a reason why the second sentence was longer than the first is a prerequisite to an increase in the sentence. Simpson v. Rice, 395 U.S. 711, 89 S.Ct. 2072, 22 L.Ed.2d 655; Newsome v. State, 49 Ala.App. 248, 270 So.2d 680. The directions given included the requirement that defendant must be credited with the time, if any, he served on the first sentence. In accordance with directions, as shown by a supplemental transcript, appellant’s sentence was reduced to seven years and defendant was “credited with 471 days which he served on this sentence before the case was reversed.” On December 29, 1976, appellant by his present attorney filed a motion or similar document requesting, inter alia, that this court “withdraw its decision of October 1976.” Largely as a basis for the motion, movant alleged that he did not have the benefit of counsel at the time of the submission of this case on appeal in that his then appointed counsel had died and that his present counsel was not appointed until December 21, 1976. An order was entered on December 30 denying the motion to withdraw decision but ordering that the appeal be placed on rehearing ex mero motu with appellant’s attorney to file briefs in support of his application for rehearing, with which order appellant’s attorney has complied.

Two points are now raised by appellant: (1) that upon the resentencing or reduction of the sentence, defendant was not requested whether he had anything to say why sentence should not be pronounced upon him and (2) the record on the second conviction, the one from which this appeal is taken, does not show a proper verdict of the jury.

As to (1), there was full compliance with the directions on remand. There was no necessity for a formal resentencing, in view of the fact that by the reduction of the sentence and the accreditation of time spent in imprisonment, defendant obtained every benefit available to him. The sentence as modified was in melioration of a sentence that had been previously pronounced with all of the formal requirements.

As to the validity of the purported verdict, our attention is called to the following part of the record:

“THE COURT: See if the jury has reached a verdict.
“THE BAILIFF: They have, sir.
“(Whereupon, the jury returned to the courtroom and the following proceedings were had.)
“THE COURT: If you have arrived at a verdict, pass it to the bailiff.
“Let the defendant stand. Is the verdict of the jury, we, the jury, find the defendant guilty? Let the defendant come forward.”

Thereafter, in a rather extended colloquy between the court and defendant, in which it is shown clearly that defendant fully understood that the jury had rendered a verdict of guilty, the court adjudged him guilty and pronounced sentence upon him. During all that time he was represented by counsel and not once was any question raised as to the finding and verdict of the jury. The oral charge of the court shows that two forms of written verdict — only two — were submitted. The indictment set forth various items of personal property alleged to have been bought, received or concealed, most of which were alleged to have been of the value of more than twenty-five dollars. There was testimony on the second trial as to the value of many of said items, including particularly, an item found upon defendant. There was no contention on the trial that defendant could have been guilty of buying, receiving or concealing stolen property of the value of less than twenty-five dollars. No issue was submitted to the jury as to his guilt of buying, receiving or concealing stolen property of the value of less than twenty-five dollars, and no request was made for the submission of such an issue.

Appellant takes the position that “No verdict was read. No response was made by the jury. The record fails to reflect the proper rendition of a verdict.” We do not agree. The record shows that after sentencing of the defendant before the jury had been released from the courtroom, defendant’s trial attorney requested that the jury be polled, and the following occurred:

“THE COURT: All right, I am requested to poll the jury. Now, I am going to ask you, is that your individual verdict, sir?
“(Whereupon, the jury was polled and all answered in the affirmative.)”

In addition, we note that probably a typographical self-correcting error occurs in the following sentence of the court:

“Is the verdict of the jury, we, the jury, find the defendant guilty?”

Punctuation marks in a transcript or record of what one said do not necessarily reflect the meaning of what one said. Furthermore, what one says as a declarative statement can be readily misunderstood at times as interrogative. Although not absolutely essential to our decision in this case on the point, it seems to us logical that almost certainly the court said: “It is the verdict of the jury, we, the jury, find the defendant guilty.” This conclusion is corroborated by the verdict in handwriting on the indictment, “We the jury find the defendant guilty” and signed by the person shown by the minutes of the court to have been the foreman of the jury.

After the case was placed on the rehearing docket, appellant’s counsel made a request for a finding of facts in accordance with ARAP 39(k), but the request is not supported by any portion of appellant’s brief and argument on rehearing. We would be disposed to answer the request if we could see any necessity or good reason therefor. No contention is made, and we see no basis for any reasonable contention, that the evidence was not sufficient to justify the verdict. Neither on the appeal from the conviction on the first trial nor on the original submission on this appeal nor on rehearing has any suggestion been made that there was any necessity for the statement of any more facts than have been previously stated, and appellant has not even indicated that he “is not satisfied with” any previous statement of the facts, which is a predicate for the application of Rule 39(k) ARAP. We note in appellant’s “Statement Of The Facts” attached to his request for a finding of facts the following:

“The verdict of the jury was never read to defendant.
“The verdict was never read into the record. The jury never responded to the court’s question.”

with which we are in disagreement. We think the verdict was read in the presence of defendant and his counsel; that the record shows a verdict of the jury signed by its foreman and that the verdict was unanimous. The application for rehearing should be overruled.

OPINION EXTENDED.

APPLICATION OVERRULED.

All Judges concur.


text:
    Ex parte Alton SANDERS.
    SC 2409.
    Supreme Court of Alabama.
    April 22, 1977.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.


text:
    Charles Herbert GENTRY v. STATE.
    3 Div. 607.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied March 29, 1977.

      Frank L. Thiemonge, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted of robbing Kevin Webb of $67.54. The jury set punishment at ten years with a recommendation for probation. Judgment and sentence were entered accordingly with probation being denied.

It is undisputed that around 2:00 A.M. on December 6, 1975, one John Meyer entered the Zippy Mart on Forbes Road in Montgomery, Alabama. About five minutes later, the appellant entered the store carrying a .22 caliber rifle. The evidence presented by the state tended to show that the appellant told Kevin Webb, a store employee, that “this was a holdup and to get behind the counter and open the cash register”. After Mr. Webb placed the money in a paper bag, the appellant told him to leave the store. Mr. Webb saw Meyer and the appellant drive away together and telephoned the police giving them a description of the robbers and the get-away car.

As a result of this description, the appellant and Meyer were apprehended about two miles from the Zippy Mart. An unloaded .22 caliber rifle was found on the front seat of the automobile the appellant and Meyer were in. A .22 cartridge was found on the floor of the car on the passenger’s side where the appellant had been sitting. Additional cartridges were found in the appellant’s pocket.

The appellant testified and admitted his participation in the robbery but maintained that he was coerced and that Meyer threatened that if he didn’t cooperate “that the kids or the wife or myself one would pay”.

On the witness stand, the appellant admitted throwing the sack of money out of the car window when they first saw the police. The money and a torn paper bag taken in the robbery were recovered by the police about one mile from the Zippy Mart on the same road the appellant and Meyer were traveling when arrested.

The appellant maintained that the rifle belonged to Meyer and was not loaded during the robbery. According to the appellant, Meyer threw the bullets on the floor of the ear when he saw the police car and told the appellant to “pick up the stuff out of the floor”.

I

There was no error in allowing the introduction in evidence of the .22 rifle, after an eye witness had stated that in his judgment it was the rifle which the defendant used in the robbery. In addition, it was afterwards admitted by the appellant that the rifle so admitted in evidence was the rifle he used. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955); Payne v. State, 261 Ala. 397, 74 So.2d 630 (1954); McGuffin v. State, 178 Ala. 40, 59 So. 635 (1912); Moore v. State, 57 Ala.App. 668, 331 So.2d 422 (1976). Compare Washington v. State, 56 Ala.App. 555, 323 So.2d 738 (1975) where the admission of the rifle was error where the only evidence tending to show that the rifle was used by appellant was a statement by the Sheriff that someone in authority at the hospital told him that appellant brought the rifle with him and said he had shot six people.

Furthermore when the rifle was offered in evidence, the appellant made no objection or motion to suppress. Reese v. State, 49 Ala.App. 167, 269 So.2d 622 (1972).

Although the .22 cartridges had no identifying markings on them, they were properly admitted into evidence where a Montgomery police detective testified they were the cartridges he took off the appellant when arrested. Lewis v. State, 220 Ala. 461, 125 So. 802 (1930). Additionally, the appellant admitted having .22 cartridges in his pocket when arrested.

The sack of money which the appellant testified he threw out of the car window was properly identified and admitted into evidence. The detective who recovered this evidence testified that the money and the paper sack were the same ones he recovered because he initialed each individual item. Willis v. State, 37 Ala.App. 185, 66 So.2d 753 (1953); Bills v. State, 49 Ala.App. 726, 275 So.2d 706 (1973).

II

The appellant filed a demurrer to the indictment and a motion to produce well in advance of trial. The appellant alleges that he was denied a hearing on these motions, both of which were denied.

From the record it appears that the demurrer was filed after arraignment and the entry of the plea of not guilty. It is not incumbent on the court to consider the demurrer filed after a plea to the merits has been entered. Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied, 291 Ala. 801, 277 So.2d 389 (1973). By first pleading to the merits of the indictment, the appellant waived his right to demur. Whether to allow the plea withdrawn or to strike the demurrer is within the trial court’s discretion. Oakley v. State, 135 Ala. 15, 33 So. 23 (1902); Whittle v. State, 205 Ala. 639, 89 So. 43 (1921).

The denial of the motion to produce without a hearing was not error where the appellant, at trial and on appeal, does not even assert that exculpatory documents or evidence exist. A hearing was not required. Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973), recommending that when it is doubtful whether there exists a “statement”, the trial judge should confer with counsel to reach a determination as to the existence of any alleged document or statement. Here the existence of any exculpatory evidence is not even alleged.

“When the defendant, in effect asks for the State District Attorney to produce a document, he should at least establish that the State official has such document or a copy thereof in his possession before the trial court will be put in error.” Strange v. State, 43 Ala.App. 599, 197 So.2d 437 (1966), followed in Giddens v. State, Ala.Cr.App., 333 So.2d 615 (1976).

Ill

Finally, the appellant contends that it was error for the trial judge not to follow the recommendation of the jury setting punishment. The jury’s fixed sentence at ten years with a recommendation for probation. After a “probation investigation” was conducted, the request for probation was denied and sentence was fixed in accordance with the jury verdict at ten years.

The action of the trial judge was correct and he was not bound by the jury or recommendation. Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716 (1975). Here the jury was not only polled but had requested during their deliberations and had been advised by the trial judge that any recommendation for a suspended sentence would only be a recommendation, “would have no automatic effect”, and would not “by necessity be carried out”.

After reviewing the entire record as required, we are of the opinion that this appeal is without merit. The judgment of the trial court is therefore due to be and is hereby

AFFIRMED.

All Judges concur.


text:
    Ex parte Charles Herbert GENTRY.
    SC 2480.
    Supreme Court of Alabama.
    May 6, 1977.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.


author: BOWEN W. SIMMONS, Retired Circuit Judge. BOOKOUT, Judge,

text:
    Napolean COLEMAN v. STATE.
    6 Div. 240.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied April 19, 1977.

      Hiram Dodd and J. Louis Wilkinson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was convicted of possessing prohibited narcotics. Title 22, § 258(25) et seq. Supplement 6, 1958 Recompiled Code. The court sentenced him to four years imprisonment to run concurrently with prior sentence of two years for which he was on probation, which the court revoked.

The drugs listed in the indictment, six in number, are: heroin, cocaine, codeine, opium, marihuana, and secobarbital. The possession of such drugs is a felony. Title 22, § 258(47). But the possession of marihuana for personal use is a misdemeanor, otherwise, it is a felony. Title 22, § 258(47), supra.

I

Appellant, an indigent, asserts that his demurrer to the indictment should have been sustained instead of being overruled as was the case. He contends that ground six of the demurrer has merit. This ground reads:

“For that the indictment improperly charges the Defendant with a misdemeanor and a felony in the same indictment.”

It is to be noted that possession of marihuana for personal use (Title 22, § 258(47)) only is a misdemeanor offense embraced in a felony charge of possession of marihuana. This inclusion is by operation of law. Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied 294 Ala. 758, 312 So.2d 414.

Charge of murder includes assault with intent to murder. Thomas v. State, 125 Ala. 45, 27 So. 920. Letcher v. State, 145 Ala. 669, 39 So. 922. Assault and battery with a weapon is included in a charge of assault with intent to murder; also in manslaughter, includes assault and battery. Beason v. State, 5 Ala.App. 103, 59 So. 712. For other inclusions see Alabama Digest, Vol. 12, Indictment & Information &wkey;191-(4)(5)(8)(9)(10).

Felonies and misdemeanors cannot be joined in the same indictment, let alone in the same count. Pryor v. State, 48 Ala.App. 465, 265 So.2d 907; James v. State, 104 Ala. 20, 16 So. 94; Brandies v. State, 44 Ala.App. 648, 240 So.2d 404.

We hold that this rule against joinder (a felony and a misdemeanor) has no application to an indictment when the charge embraces a misdemeanor by operation of law as here involved. To hold otherwise would entail much difficulty, if not an impossibility, in framing an indictment for felonies so as to exclude the lesser offense embraced by such operation. The demurrer was properly overruled.

However, we do quote briefly the trial court’s oral charge on the subject:

“Now it is the law of the State of Alabama that if anyone possessing marijuana for his personal use, for his own personal use, that is as opposed to possessing it for the purpose of selling it or for the purpose of giving it away or for the purpose of sharing it with other people, either giving it away or selling it, that is to smoke himself, then that is a misdemean- or. So if you believe from the evidence beyond a reasonable doubt that the only item, the only substance of these six named that this Defendant possessed or constructively possessed was marijuana, and you further believe that marijuana was possessed and held for his own personal use, personal use, that is as opposed to selling it to someone or giving it away to someone, then the form of the verdict would be, we the jury find the Defendant guilty of possession of marijuana for his personal use. Now that verdict would only be returned, ladies and gentlemen, if you believe that were the only substance in this case that this Defendant was in possession of.
“If you are convinced beyond a reasonable doubt, ladies and gentlemen, that this Defendant possessed any of the other items in this indictment, that is either the heroin, the cocaine, the opium, the seco-barbital and the codeine, if you are convinced beyond a reasonable doubt that the Defendant possessed any of those items, any of them, or marijuana for other than his personal use, that is for sale or for dissemination to other people, then the form of your verdict would be, we, the jury, find the Defendant guilty of violation of the Uniform Controlled Substances Act as charged in the indictment. . . .”

See also Palmer v. State, 54 Ala.App. 707, 312 So.2d 399.

II

Appellant insists that there is no evidence to show, in addition to constructive possession, that he knew the drugs were in the house. He cites Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520, from which he quotes:

“The well established rule in eases involving possession of prohibited liquors is that where actual manucaption is not shown and constructive possession is relied upon, the state must show beyond a reasonable doubt, in addition to the constructive possession, that the accused knew of the presence of the prohibited beverages. . The rules of evidence in a prosecution for possession of marijuana are the same as those applicable in every other criminal case.” (Citations omitted.)

We think there was sufficient evidence from which the jury could infer such knowledge:

(a) When the officers arrived to make the search and entered the front door, they found defendant sitting in the living room sans clothing or garments of any kind. Such appearance indicated relaxation and comfort that occasionally one enjoys in his own house which he occupies, but is contrary to the opportunity afforded a guest or a co-tenant. There is no evidence that anyone else occupied the house or that defendant shared it with another.

(b) The officers also seized a letter addressed to the accused at the address when the search was made. This was relevant evidence to show that accused lived there. Lucy v. State, 46 Ala.App. 484, 243 So.2d 756.

(c) One of the officers testified that another officer went into a bedroom and got some clothes for defendant before they left the apartment and that defendant put them on. This officer testified that defendant asked for his clothing to put on. Later he testified that he did not remember his exact words.

(d) It appears from the evidence there were two bedrooms in the house. Officer Price searched one bedroom and Officer Sims the other. Each officer found items in the bedroom he searched and turned the findings over to Sgt. Bailey who was in the kitchen to receive what the officers found. The officers were scattered over the house. The findings of Sgt. Sims were put in an envelope and marked Exhibit No. 4. Officer Price’s findings were placed in an envelope and marked Exhibit No. 5. All the findings of the several officers were turned over to the State Toxicologist, Craig Bailey, who was qualified as competent.

The Toxicologist testified that Exhibit No. 4, found in a bedroom, contained 17.9 grams of marihuana. He testified that the contents of Exhibit No. 5 in evidence was 0.8 of heroin.

Thus it appears that marihuana, a controlled substance, was found in one bedroom and heroin, also a controlled substance, was in the other. It further appears that defendant’s clothes, for which he called, were in one of these two bedrooms.

We think the evidence sufficiently supported an inference for the jury’s consideration that defendant knew the controlled substances were in the house; also that he had possession of the apartment. Lucy v. State, supra; Rueffert v. State, supra.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Retired 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, P. J., and HARRIS, DeCARLO, and BOWEN, JJ., concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge,

concurring specially:

Through the Lucy analogy, supra, the jury could infer that appellant was an occupant of the premises. The fact that appellant was sitting completely unclothed in the living room adds to this inference.

However, the Lucy case does not stand for the proposition that a letter addressed to an appellant, at the address searched, proves control of the premises plus knowledge of the presence of contraband. The presence of such a letter at the place searched is a circumstance which would indicate that the appellant resided at that address. A boarder or a co-tenant may reside at a house, receive his mail there, have joint use of the living room and kitchen, but have absolutely no control over the bedrooms of other tenants.

My concern in these type cases may be best expressed by a hypothetical. Suppose three young ladies, say nurses, rent a three bedroom house. They each have a private bedroom, but have common use of all other areas. A valid search turns up marijuana in a bedroom. One of the tenants is arrested while sitting in the living room in a nightgown. A letter is found in the house addressed to her at that residence. No attempt is made to show in which bedroom the contraband is found. The State merely relies on the letter and her state of dress as circumstantial evidence to show that she resided there.

In such a hypothetical, do we have sufficient proof that the young lady charged either possessed or had knowledge of any contraband in an area which she controlled? I think not.

In the Lucy case, there was more incriminating evidence to connect that defendant with the contraband than just letters addressed to her at the place searched. The defendant in that case was found in a bedroom in which various containers of marijuana were found. One container was by a television set about six feet from the defendant. Marijuana was also found in her pocketbook. The letters and documents addressed to her at that residence were in a chifforobe and a dresser in that bedroom. This Court said that the letters and papers were relevant on the issue of whether or not the bedroom was hers and as to her control of the contents of the bedroom, not the entire house.

In Williams v. State, Ala.Cr.App., 340 So.2d 1144 (1976), cert. denied, Ala., 340 So.2d 1149 (1977), this Court found there was insufficient proof of constructive possession on facts very similar to those in the instant case. There the defendant was found sitting in the living room of a residence, wearing rumpled clothes and without shoes. Amphetamines were found in another part of the house.

I concur in the instant case only because of the following:

1. There were only two bedrooms in the house.

2. Both bedrooms contained prohibited drugs.

3. Appellant’s clothes were in one of the bedrooms which contained drugs (although it is not shown which one).

4. The letters and his nudity, combined, would infer he resided in the house, and his clothes would infer he controlled one of the bedrooms containing drugs.

It would be a simple matter for the prosecution to put on proof of ownership or leasehold interest in most of these type cases. It would normally be simple to connect a defendant to a particular bedroom. But in many cases coming before this Court, the prosecutors are simply relying on the mere presence of a defendant where contraband is found to establish constructive possession. The State barely made out a case in the instant prosecution.


text:
    Zollie Hamilton CHURCH, Jr. v. STATE of Alabama.
    6 Div. 353.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied April 19, 1977.
    Randolph P. Reaves, Montgomery, for appellant.

      William J. Baxley, Atty. Gen., and Richard S. Jaffe, Asst. Atty. Gen., for the State.
   PER CURIAM.

The Appellant was indicted by the Grand Jury of Cullman County, Alabama August 6, 1976 on three charges of burglary of a motor vehicle. September 13, 1976 Appellant appeared before the Circuit Court of Cullman County, Alabama with court appointed counsel for arraignment. Appellant made known to the Court that he desired to plead guilty to each of the charges. Appellant filed a written request in each case to be permitted to enter guilty pleas. The written request signed by Appellant and his attorney contains a statement of his Constitutional rights and his waiver thereof. After detail discussion between the Appellant and the Court in which the Court, among other things, informed Appellant of his Constitutional rights and the effect of his waiver of these rights, the pleas of guilty were accepted. Thereupon Appellant was convicted in each case upon his plea of guilty and punishment was fixed at two years in the State penitentiary, in each case, the sentences to run consecutively. Appellant stated he did not desire to apply for probation. After formal sentence Appellant gave notice of appeal and bond was fixed pending appeal.

Appellant questions the adequateness of the lower court’s explanation of his Constitutional right against compulsory self-incrimination and raises the question of the voluntariness of his pleas of guilty under the circumstances.

The written form filed by the Appellant, a part of this record, is not in the exact form and language set out in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 or the exact form and language set out by Judge Harris’ appendix to Cooper v. State, 53 Ala.App. 36, 297 So.2d 169. The pertinent part of the Ireland form reads:

“Under the Constitutions of the United States and the State of Alabama you have the privilege not to be compelled to give evidence against yourself.”

The pertinent part of the Harris form reads:

“Q. and you could testify at your trial, but you would not have to if you choose not to?”

The pertinent part of the form signed by Appellant reads:

8(c) “The right to have witnesses subpoenaed to give evidence in my favor and to testify myself or remain silent at my own choosing.”

We hold that the form signed by the Appellant using the above quoted language has the same meaning as the “Ireland” and “Harris” forms and is a sufficient compliance with them.

In addition to the written form filed by the Appellant the Court questioned Appellant at length before accepting the pleas of guilty. The Court explained to Appellant his Constitutional rights and the effect of his pleas of guilty. The Court in explaining Appellant’s right against forced self-incrimination used the following language: “You give up the right also to subpoena witnesses to help defend yourself and to testify or not as you may elect, do you understand that? Answer by Mr. Church: Yes sir.” While these words used by the Trial Court are not in the same language of Boykin v. Ala., 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, or the “Ireland” or “Harris ” forms we hold them sufficient to appraise the Appellant of his right against forced self-incrimination and that his pleas were voluntary.

We think it appropriate to re-state our recommendation contained in Cooper v. State, 53 Ala.App. 36, 297 So.2d 169.

“(2) The so-called Ireland waiver form is a useful document as it memorializes what occurred at the guilty plea hearing and we commend its use. But a guilty plea must not rest alone on the execution of a written form. There must be a personal interrogation by the trial judge and a record made of the defendant’s responses to the judges’ inquiries. By personally interrogating the defendant, not only will the judge be better able to ascertain the pleas’ voluntariness, but he will also develop a more complete record to support his determination in a subsequent post-conviction attack ‘and forestalls) the spin off collateral proceedings that seek to probe murky memories.’ There is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant’s understanding of the nature of the charge against him and the consequences the plea connotes.”

The lower court is

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Leroy BROWN v. STATE.
    3 Div. 609.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of assault to murder Richard Stubbs and sentenced to imprisonment in the penitentiary for a term of twenty years.

Around midnight on December 5, 1975, appellant and two of his brothers, Gregory Brown and Zane Brown, robbed Stubbs who was employed at the Eastern Petroleum Station in Montgomery. The facts relating to the robbery, kidnapping and shooting of Stubbs are almost identical with those narrated in Brown v. State, Ala.Cr.App., 339 So.2d 125; Brown v. State, AIa.Cr.App., 338 So.2d 1050, and Brown v. State, 342 So.2d 1367, released by this Court on March 1, 1977. Reference to those cases is here made for a more definitive statement of the facts, circumstances and issues that resulted in the affirmance of those three cases.

The legal issues raised in this ease on which appellant predicates error to reverse have already been decided adversely to him in the above-cited cases and there is no need to restate them.

As mandated by Title 15, Section 389, Code of Alabama 1940, we have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. The evidence was more than sufficient to sustain the judgment of conviction.

AFFIRMED.

All the Judges concur.


author: SIMMONS, Retired Circuit Judge.

text:
    John L. RUPERT v. STATE.
    3 Div. 616.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.

      No brief for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Conviction for robbery. Sentence by the jury was fixed at thirty-seven years.

Appellant qualified as an indigent on this appeal. Appointed counsel did not file a brief; the State complied. We have examined the record and find no error that mandates a reversal or remand.

We note that defendant filed a motion for a new trial. It was not ruled on. This motion was filed within the time required by T. 13, § 119, Code of Alabama 1940, Recompiled 1958. It was not called to the attention of the court as mandated by said Code § 119, supra. It was not incumbent on the clerk of the court to call said motion to the attention of the trial judge. This duty was imposed upon the movant and his failure to do so within thirty days terminated the power of the court to act upon the merits of the motion. Arrick v. Fanning, 35 Ala.App. 409, 47 So.2d 708.

The judgment of the trial court is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Jerome HAYES v. STATE.
    3 Div. 623.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    William E. Skinner, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State.
   PER CURIAM.

The appellant, Jerome Hayes, was indicted by the grand jury of Montgomery County on a charge of aiding a convict to escape from a place of confinement, was convicted as charged, sentenced to thirty months imprisonment in the penitentiary, and appeals to this Court.

The appellant was represented by court appointed counsel at all stages of his trial in the court below, and is here so represented. This cause was submitted to the Court upon briefs and letter of no merit.

The evidence tends to show that on April 1,1976, one Christopher Cooper was lawfully confined in the Montgomery County Jail under a judgment of conviction in the Circuit Court of Montgomery County on a charge of murder in the first degree. One Foster Streeter was at the same time and place confined on a charge of grand larceny. Streeter’s bond was $1,000.00. Appellant, Hayes, with intent to assist Cooper to escape, assisted Cooper in making a bond for $1,000.00 in the name of Foster Street-er, knowing that Cooper would assume Foster Streeter’s name and identity. Appellant further assisted Cooper by addressing Cooper as Foster Streeter in the presence of a deputy sheriff, knowing that Christopher Cooper was not Foster Streeter. The State’s evidence further tends to show that on April 1,1976, Cooper was released on the bond signed in the name of Streeter, and was arrested by the F.B.I. in Washington on April 3, 1976.

Code of Alabama 1940 Recompiled, Title 14, § 157, reads as follows:

“Aiding convicts to escape from place of confinement; rescue. — Any person who conveys into the county jail, or into the penitentiary, or into any convict prison, or into any other lawful place of confinement, any disguise, weapon, tool, instrument, or other thing useful to aid any prisoner to escape therefrom, with intent to facilitate the escape of any prisoner lawfully confined therein under a charge or conviction of felony, or who, by any other act, or in any other way, aids or assists such prisoner to escape, whether such escape be attempted or affected or not, or who rescues, or attempts to rescue, any such prisoner therefrom, or from the lawful custody of any officer or person, shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than ten years.” (Emphasis added.)

We hold there is sufficient evidence in the record to sustain the verdict of the jury finding the appellant guilty as charged in the indictment.

We have examined carefully the entire record, and find from such examination that there is no error in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Johnny B. WOOD v. STATE.
    4 Div. 530.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.

      David C. Emery, Ozark, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon an indictment charging him with murder in the first degree. At arraignment, in the presence of counsel, he pleaded not guilty. The jury returned a verdict finding appellant guilty of murder in the second degree and fixed his punishment at thirty years in the penitentiary. On proper motion the Court found appellant indigent and directed that he be furnished with a free transcript. Trial counsel was appointed to represent him on this appeal.

The evidence was in sharp conflict which made and presented a jury question. The evidence adduced by the State tended to show that appellant fired a pistol at his wife while she was holding their young son in her arms. The shot was made at close range — not more than three or four feet— and grazed his wife’s cheek and entered the head of the child resulting in his death. Appellant did not testify but his wife testified in his behalf saying that when she went in the bedroom to pick the child up from the couch, she turned and bumped the pistol in her husband’s hand and the pistol went off and entered the head of their child. If her testimony was believable the pistol went off accidentally when she bumped it in her husband’s hand. She denied that she and her husband had had a quarrel before the shooting. She stated that her husband was drunk or well under the influence of intoxicating liquors and she saw him go in the back room and come out with a pistol in his hand and she told him to put the pistol up as she was afraid of guns. She admitted that her husband was violent when he was drinking and he had struck her before when he was drunk or drinking and that he had also gotten in fights with the police. She decided to get her baby child and the other children and leave home until her husband sobered up. She claimed she did not know her husband had followed her into the bedroom with the pistol until she picked the child up in her arms and turned to leave the bedroom and that in turning she bumped the pistol in her husband’s hand causing it to discharge. She was thoroughly impeached on the question of whether she and her husband had a quarrel prior to the shooting.

After the shooting appellant took the three-year-old child and drove him to the emergency room of the hospital in Ozark, Alabama, and was admitted to the hospital by Mr. Cody Cain, a security guard on duty at the hospital the night of the shooting which was April 17, 1976. Mr. Cain testified that appellant was cursing and threatening everyone in the hospital saying he had shot his baby and if they let him die, he was going to “kill every _ _ _in Ozark.” Mr. Cain further testified that appellant’s wife came in the hospital and sat on the floor just outside the emergency room and he saw she was bleeding from her face. Mr. Cain went to the telephone and called the Ozark Police Department. After making the call he saw appellant run out of the hospital, get in his car and leave at a high rate of speed.

Police Officers John Nicholson and Gor-dan Kemp responded to the call and stopped appellant as he was driving away from the hospital at high speed without lights at ten o’clock at night. Appellant made a physical attack on the officers and had to be subdued. Appellant kept telling the officers over and over again that they “were going to have to kill him because he had just shot his baby.” The officers finally subdued appellant and put him in the back seat of the patrol car and he either kicked or knocked out the ear window. A Deputy Sheriff arrived at the scene and they put appellant in the Deputy’s car and he was carried to the hospital and then to jail. Officer Kemp stated that during the fight to control appellant he smelled alcohol on him and in his judgment appellant was intoxicated.

Somewhere between appellant’s house and the hospital he threw the pistol out of the car. The pistol was found and turned over to the officers.

Dr. G. R. McCahan, Jr., an Assistant State Toxicologist, performed a postmortem examination on the body of the deceased child and determined the cause of death to be the result of hemorrhage and trauma from a penetrating projectile to the head and brain. He removed the slug from the brain and turned it over to Mr. Dale Carter, a Criminalist and Director of the Enterprise Laboratory of the Alabama Department of Toxicology and Criminal Investigation.

Mr. Dale Carter testified that he received the slug from Dr. McCahan and also received a pistol from one of the officers which was identified as being used in the shooting of the child. His qualifications as a ballistics expert were shown and he stated that he test-fired the pistol several times and made a comparison with the bullet removed from the skull of the deceased. He further testified that the bullet identified to him as being removed from the body of the child was fired through the barrel of the pistol that was turned over to him.

Deputy Sheriff Nelson McLeod testified that after he put appellant in jail he went to his house that night with Officer Nicholson and in the living room either on the floor or the couch they found four .38 caliber unspent bullets.

The pistol was introduced into evidence over the objection of appellant that it was not shown to be connected with appellant. The State countered that the ballistics expert testified that the slug removed from the body of the deceased was fired from the barrel of that particular weapon. The Court overruled the objection and the pistol was admitted into evidence.

At the close of the State’s case in chief appellant moved to exclude any evidence concerning murder in the first degree as the State had failed to establish any sort of intent or premeditation. The Court overruled the motion saying:

“THE COURT: I’m going to overrule it. There’s two possible theories in the case as far as first degree murder is concerned and one would be an actual premeditated, malicious, willful and deliberate intent to shoot the boy. The other would be a willful, deliberate, malicious and premeditated attempt to shoot the mother and accidentally shoot the boy, but there are two — the jury has the option to either believe that he willfully and premeditat-edly and maliciously and deliberately shot the boy or that he willfully, premeditat-edly, deliberately and maliciously shot at the mother and then hit the boy. It’s up to the jury to decide from the facts as the jury has heard them.”

Several witnesses testified for the defense regarding their contacts with appellant and his wife during the day of the shooting. They all testified that appellant was drinking during the day but they did not observe any visible conflicts between appellant and his wife. The testimony developed that appellant and some of his friends had been drinking whiskey, vodka and beer all day and they consumed the whiskey and vodka and went to the State store and got a new supply.

Appellant’s fourteen-year-old son testified that he had seen his father drunk before and that he was drunk on the night of the shooting.

On rebuttal the State called Mr. Cody Cain and Police Officer John Nicholson. Mr. Cain testified that appellant’s wife made a statement to him at the hospital the night of the shooting which he wrote down. He was permitted to read the statement as follows:

“She told me that when he got the pistol, she grabbed the baby and started to run. He shot at her and the bullet hit the baby and she did not know she had been shot until she got to the hospital.”

Officer Nicholson stated that Mrs. Wood told him that on the night of the shooting she and her husband had been arguing; that she picked up her son and started to leave the room and her husband took a pistol and shot her.

Appellant filed a motion for a new trial but this motion was not kept alive and a discontinuance resulted thereby. The Court did not err in granting the State’s motion to strike the appellant’s motion for a new trial where a discontinuance had occurred. Kennedy v. State, 39 Ala.App. 588, 106 So.2d 257.

Appellant contends that the trial court abused its discretion in denying his motion for a mistrial after two empaneled jurors made known to the Court that they knew appellant’s wife. Upon further questioning by the trial court one of the jurors said she could render a fair and impartial verdict but juror Gassett said he could not and he was excused from the jury. One of the prosecuting attorneys suggested to the Court that he could order some talesmen to come in. The defense attorney agreed saying, “We can see who is still here.” Three women came forward, one of whom said she would be biased in rendering a verdict and the other two told the Court they were not biased and could render a fair and impartial verdict. The trial judge asked defense counsel if he would be satisfied to accept one of the women to replace Mr. Gassett and he chose Jeanette Turner to replace Mr. Gassett and the exchange was made.

From the record:

“THE COURT: Now at this time, I want to know if the — if you waive your right to a struck jury and if the jury as sitting is acceptable?
“MR. EMERY: Yes, sir. We waive that right and the jury is acceptable.
“THE COURT: Mr. Wood, do you understand what has transpired?
“MR. WOOD: Yes, sir.
“THE COURT: Do you go along with what your counsel has said?
“MR. WOOD: Yes.
“THE COURT: You’re satisfied with the jury as it sits?
“MR. WOOD: Yes, sir.
“THE COURT: And you’re satisfied that Mrs. Turner will be substituted for Mr. Gassett?
“MR. WOOD: Yes, sir.”

It is crystal clear that appellant and his counsel expressly waived a struck jury and that the trial court did not abuse his discretion in failing to grant a mistrial. McGuire v. State, 239 Ala. 315, 194 So. 815.

In Singleton v. State, 288 Ala. 519, 262 So.2d 768, the Supreme Court held that with the consent of the State and the prosecuting attorney a defendant charged with a noncapital felony could waive a jury trial, enter a plea of not guilty and be tried by the Circuit Judge without a jury, and that such waiver is not violative of public policy.

We hold that the trial court in no wise abused his discretion in allowing appellant and his counsel to choose a replacement for a juror who was disqualified. The substituted juror was their choice and their choice alone.

There was no error in denying appellant’s motion to exclude the charge of murder in the first degree from consideration of the jury. In the case of Simpson v. State, 59 Ala. 1, the Supreme Court said:

“So, also, if there is the felonious intention to kill one, and the fatal blow falls on another, causing death, it is murder * * *.”

The trial court charged the jury on all four degrees of homicide and the action of the trial court in so doing was proper under the facts and circumstances of this case.

The trial resulted in the conviction of this appellant of murder in the second degree. This verdict of the jury resulted in the acquittal of the defendant of the charge of murder in the first degree. It follows therefore that questions presented relating to murder in the first degree only need not be considered. Davis v. State, 21 Ala.App. 474, 109 So. 385; Jarrell v. State, 22 Ala.App. 304, 115 So. 146; Goodwin v. State, 53 Ala.App. 498, 301 So.2d 261.

The order of proof and rebuttal testimony rests largely in the sound discretion of the trial judge, and this rule applies to testimony which more properly should have been offered as part of the case in chief. Snow v. State, 50 Ala.App. 381, 279 So.2d 552; Emerson v. State, 281 Ala. 29, 198 So.2d 613.

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.


text:
    Anthony Jerome BRUMMITT, alias Tony Brummitt, alias Willie Jackson v. STATE.
    5 Div. 322.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    W. Larry Ray, Opelika, for appellant.

      William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant, an indigent at nisi prius and on this appeal, was indicted for assault with intent to rape, convicted therefor, with punishment fixed by the trial court at twenty years imprisonment.

It appears that at the time of the offense appellant, a black, was 17 years of age. The alleged victim, a white female, was 18 years of age. Essential details of the evidence in chief will follow. The trial court heard and denied defendant’s motion to be tried as a youthful offender pursuant to Title 15, Section 266(l)-266(6), Code 1940 as amended. See Supplement, Vol. 5, pp. 162-3. We will not disturb the court’s denial of the motion.

Since the alleged victim named in the indictment was a minor, we deem it unnecessary to give her name. We will refer to her as the prosecutrix.

The evidence goes into detail as to the prosecutrix’s itinerary leading up to the res gestae of the alleged assault. We will omit many of the details. It is sufficient to state that the prosecutrix was at the home of her parents when two young men, both white, and neither of adult age, drove up and asked the prosecutrix to go swimming with them. One of the hosts was Jody String-fellow, 16 years of age, and the other was David Brown. After swimming, they decided to look for a black girl, a friend of the prosecutrix. They drove to the neighborhood where this black friend, Brenda, was believed to live. While driving in the neighborhood looking for Brenda, they saw defendant crossing the street in front of them. This was approximately 4:30 or 5:00 P.M. David recognized appellant and they spoke to each other. Appellant was asked if he knew Brenda. He said he did. David then invited him to get in the car and show them where Brenda lived. The prosecutrix made no objection. As we stated, supra, appellant was 17 years of age. David then asked him if he wanted to smoke some “dope”, which he explained to mean marijuana. The prosecutrix in her evidence referred to the defendant as “Tony”. We will also in this opinion use the name of Tony, meaning the defendant-appellant.

With Tony being permitted to take over the driving at some juncture of the ride, the parties continued the ride in search of marijuana and wine. Procurement of the latter was proposed at some juncture of the ride. Continuing their quest for the stimulants, they rode up to a house where several black youngsters were assembled. After inquiring for marijuana, one of the assembled blacks, Robert Summers, got into the car and the ride was resumed. Tony, over the protest of one or more of the occupants finally drove to an isolated spot on a dirt road where the car was stopped. The white boys alighted from the car leaving the victim in the middle between Tony and Robert Summers. At this stop and point the res gestae of the offense took place.

It appears from the evidence of the victim that the defendant, Tony, began his approach to get the prosecutrix to have intercourse with him. He used vile and vulgar language in this aggression. Robert Summers tried to protect the female against the approaches of defendant. Anyway, defendant, according to the state’s evidence, pulled a knife and opened the blade. Summers testified that Tony told the prosecutrix “if she didn’t give him nothing, he was going to cut her”. It also appears from the state’s evidence that Tony had stopped the car, removed the keys from the switch, and would not let anyone have them. He disregarded requests to go home. Tony, with his knife in his right hand, placed his right arm around the girl’s shoulder and with his left hand unbuckled her jeans, put his hand under her underwear and touched her private parts. Not only did the girl start crying but while telling Tony to leave her alone, she attempted with both of her hands to pull his hand out of her underwear. One of the riders, Jody Stringfellow, testified that he told Tony to leave her alone. With his knife in hand, Tony threatened, in her presence, “to mess up” Jody Stringfellow if he did not cooperate with him. At this point, according to the evidence, Tony told Jody Stringfellow he was going to mess him up if the prosecu-trix would not “do something” with appellant.

It also appears from the state’s evidence that Tony cut one of Robert Summers’ fingers when the latter tried to take the knife away from Tony.

Another witness, David Brown, testified that Tony took Jody Stringfellow by the shirt saying, “Now, you better talk her into it, too, or I’ll cut all three you little butots up”. The state’s evidence further showed that Tony hit Jody on his nose with his fist, not hard enough to make it bleed, but enough to let Jody know where Tony stood.

We will not undertake to delineate all the physical and threatening aggressions of Tony during his efforts to intimidate the prosecutrix into yielding to his uninvited approaches and physical efforts to satisfy his sexual desires with the girl. We do state that the record is replete with his intimidations to force sexual intercourse. He never did succeed. The police arrived during the progress of Tony’s intimidating efforts. This arrival broke up the assembly.

Defendant testified and denied these intimidating approaches. He admitted having a knife open in his possession. He claimed he used the knife to clean his fingernails. He denied all the state’s evidence about threats and also that he put his hands under the victim’s jeans and on her private parts. The state’s evidence and defendant’s denials made factual issues for the jury. The jury evidently believed the evidence adduced by the state. We see no reason to disturb. Whether the conduct of Tony indicated an assault with intent to rape the victim presented a factual issue for the jury.

It is said in Pumphrey v. State, 156 Ala. 103, 47 So. 156, as follows:

“ . . . each particular case, we think, must stand upon its peculiar facts and circumstances. .
“ • • . Intent, we know, being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.”

The offense of assault with intent to rape includes all of the elements of rape except consummation of the sexual act, with constituent elements being intent to have intercourse with woman by force or fear and against her consent. Smith v. State, 36 Ala.App. 209, 55 So.2d 202, certiorari denied, 256 Ala. 444, 55 So.2d 208.

Rape is the carnal knowledge of a woman by force and against her will. Harris v. State, 2 Ala. App. 116, 56 So. 55.

A person is guilty of rape, without reference to his ulterior intention in the event of resistance, if the woman yields through fear of, or to, superior force. Hooper v. State, 106 Ala. 41, 17 So. 679.

To constitute rape, the degree of force used need not be such as to place prosecutrix under such reasonable apprehension of death or bodily harm as to overpower her will; it being sufficient if she was under such duress that the act was accomplished against her consent. Cole v. State, 19 Ala.App. 360, 97 So. 891, certiorari denied, Ex Parte Cole, 210 Ala. 179, 97 So. 895.

We hold that the evidence was sufficient to present a jury question as to defendant’s guilt or innocence of the offense charged in the indictment. The court did not err in denying defendant’s motion for a directed verdict and also in denying the motion for a new trial.

Appellant contends that the trial court committed error in permitting the state to cross examine defendant, who took the stand in his own behalf, without first laying a predicate that the impeaching statements were voluntary. We do not credit this contention with merit. The Supreme Court in Brown v. State, 243 Ala. 529, 10 So.2d 855, observed:

“(1) As well-known, confessions of guilt under the law of Alabama are deemed involuntary, and are inadmissible without first laying a predicate showing they were made in the absence of an inducement of hope or fear.
“(2) In some states where this rule prevails it is held the defendant, on becoming a witness for himself, cannot be impeached by cross-examination touching a confession out of court unless it first be shown the confession was voluntary. See Annotation, 9 A.L.R. 1358. But in Alabama and other states, it has long been declared that when the defendant becomes a witness in his own behalf, he submits himself to cross-examination as any other witness; and he may be cross-examined touching his statements out of court in conflict with his testimony, without a showing that such statements were voluntary and were, therefore, inadmissible as a confession.”

We note that the signed statement, the subject of the cross examination, was not offered in evidence. Defendant denied making the statement which tended to impeach his direct testimony and his credibility.

We do not find any reversible error in the record. We affirm the judgment.

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

AFFIRMED.

All Judges concur.