author: BOOKOUT, Judge. DeCARLO, Judge

text:
    Louis E. NEUGENT, alias v. STATE.
    8 Div. 655.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Rehearing Denied Jan. 20, 1976.

      Robert M. Hill, Jr., Florence, James L. Hunt, Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Illegal possession of amphetamines; sentence: eight years imprisonment.

On August 9, 1973, a search warrant was executed against the appellant for the search of his residence located west of Neu-gent’s Truck Stop on Highway 43, Tuscum-bia, Alabama. John Cooke, Detective Sergeant for the City of Tuscumbia, executed the affidavit upon which the search warrant was issued. The affidavit was based upon hearsay information given to the officer by an undisclosed informant. The affidavit set out the premises containing amphetamines as, “Neugent Truck Stop and/or Lewis Neugent Residence,” however, the search warrant listed only the residence. Both were searched, but drugs were found only in the residence.

Since the search and seizure in this case are based solely on the hearsay information of an undisclosed informant, it is important to determine whether sufficient evidence establishing probable cause was before the issuing magistrate. The evidence upon which the warrant was issued is contained in the following affidavit:

“STATE’S EXHIBIT A
“STATE OF ALABAMA!
“COLBERT COUNTY J
“Personally appeared before me, Jerry M. Vanderhoef, Judge of the Colbert County Court of Colbert County, Alabama, John Cooke, who after first being duly sworn by me, and who is personally known to me, deposes and says as follows:
“I have received information from a person whose record of reliability for correctness has been good; that there is presently contained on the premises of Neugent Truck Stop and/or Lewis Neu-gent Residence, the residence being located some 150 to 200 yards West of said truck stop, the residence being reached by traveling West on a dirt road within approximately 50 feet of said truck stop. The truck stop to be searched is reached by traveling South on U. S. Highway 43 from its intersection with U. S. Highway 72 for approximately one to one and one-half miles; the truck stop being located on the West side of U. S. Hwy. 43. The truck stop being a truck stop and restaurant combination contained in one white block building, approximately 100 feet West of U. S. Hwy. 43, the residence of Lewis Neugent being reached by traveling West on a gravel road located approximately 50 feet North of said truck stop for a distance of 150 to 200 yards. The residence being the only dwelling house located on said gravel road, the residence being a brick or masonry building in the police jurisdiction of Tuscumbia, Colbert County, Alabama, illegal drugs, to-wit: Marijuana, amphetamines and barbiturates. The aforesaid informant stated that he saw the said iiiegal drugs on said premises described on the 9th day of August, 1973, 3 hours prior to making this affidavit. The informant also stated that Lewis Neugent, who resides at the above address, was seen selling amphetamines at the truck stop but the amphetamines are brought from the residence. This information was given to me by said informant August 9th, 1973.
“Based on all the above information received from my reliable informant, I have probable cause to believe and do believe that there are contained in the residence of Lewis Neugent and Neugent Truck Stop, located at Highway 43 South Tuscumbia, Colbert County, Alabama, illegal drugs, to-wit:. marijuana, amphetamines and barbiturates.
“I make this affidavit for the purpose of securing search warrants for the purpose of searching Lewis Neugent and the premises located at Neugent Truck Stop and Lewis Neugent residence West of Highway 43 South, Tuscumbia, Colbert County, Alabama.
“/s/ John Cooke
Affiant
“Sworn to and subscribed before me, this the 9th day of August, 1973.
“/s/ Jerry M. Yanderhoef
Judge”
(Emphasis supplied.)

Appellant filed a motion to suppress the fruits of the search and seizure, which was overruled. During trial, he objected to admitting into evidence two bags of pills and one bag of capsules on grounds that such were obtained by an illegal search and seizure. The trial court overruled his objection and admitted the exhibits into evidence.

I

A search warrant based on hearsay of an undisclosed informant is not defective provided proper facts or circumstances are presented to the issuing magistrate upon which probable cause could be based. Fourth Amendment decisions by the United States Supreme Court require that magistrates make an independent determination of probable cause based upon evidence or “underlying circumstances.” The Court expressed in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948):

“ . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.”

That Court, further, has required that the issuing magistrate not depend solely upon the conclusions of the affiant. This limitation was applied to search warrants in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), and to arrest warrants in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). In the latter case, the Supreme Court stated:

“The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime.
“The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.”

In 1960, the Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, held that hearsay may be the basis for the issuance of a warrant by a magistrate. From that point forth, the problems confronting the police officer, the issuing magistrate and the appellate courts, due to hearsay information provided by an undisclosed informant, have been compounded. In 1964, in an attempt to clarify the law in this regard by establishing certain guidelines for the magistrate to evaluate hearsay information, the Court rendered the landmark decision of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. That decision was further refined in a second landmark decision, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Judge Charles E. Moylan, Jr., of the Maryland Court of Special Appeals, makes an excellent analysis of the problem with which we are here confronted in his “Hearsay and Probable Cause: An Aguilar and Spinelli Primer,” Mercer Law Review, Vol. 25, p. 741 (1974). At pages 750-751, Judge Moylan states:

“ . . . Whether the magistrate is dealing with a primary, a secondary or even, theoretically, a tertiary source, he must still (1) assess the credibility of that source and (2) then weigh the information furnished if he believes it to be true. “Whether the information being evaluated is the direct observation of the affiant or is hearsay information, the issuing magistrate is required to perform the same intellectual surgery. In determining the existence vel non of probable cause, the magistrate must make two distinct determinations. The number and the nature of these determinations do not vary, whether the specimen being analyzed is direct observation or hearsay information. He must:
“(1) Evaluate the truthfulness of the source of the information; and “(2) Evaluate the adequacy of the factual premises furnished by that source to support the validity of the source’s conclusion.

“In the first instance, he is judging the integrity of a person. In the second instance, he is judging the logic of a proposition. .

“Just as the magistrate must satisfy himself as to the credibility of a primary source by administering an oath to him and by looking at him, so too must he, by some alternative means, satisfy himself as to the credibility of the secondary source. In neither case may he accept someone else’s conclusion in lieu of arriving at his own. Just as he may not permit an affiant’s assertion as to his own credibility to serve as dispensation for the oath, neither may he permit the affiant’s assertion as to his informant’s credibility to serve as dispensation for the required recital of all necessary data about that informant that will permit the magistrate to draw his own conclusion as to credibility. This, simply, is the ‘credibility/reliability’ or ‘veracity’ prong of Aguilar.
“Once the magistrate has decided that the informant is believable, he has still only half completed his ultimate determination. He must still decide what the information is worth. He has decided that the source is not lying, but he has not yet decided whether the source is mistaken. The magistrate’s second function is now to evaluate the information which he is accepting as true and to see what probabilities emerge from that available data. Again, he may not accept the conclusion of either the affiant-ob-server or the non-swearing informant. He must take from either of those sources his facts and then arrive at his own conclusion as to the significance of those facts.”

We have had Aguilar with us some fifteen years and Spinelli for nine years. While those cases placed somewhat of a burden upon law enforcement officers in composing an adequate affidavit, and upon a magistrate in determining the sufficiency of the affidavit, there should now have been sufficient time since those decisions were rendered that law officers, magistrates and trial judges should be familiar with the basic requirements enunciated in those decisions. Not only has this not happened, but we find great differences of opinion in most decisions rendered by appellate courts concerning the sufficiency of affidavits.

This Court, being bound by the decisions of the United States Supreme Court and the Supreme Court of Alabama, must apply to affidavits and warrants the tests set out in the opinions of those courts when such is brought before us on appeal. Those courts and this Court, repeatedly and with unanimity have pronounced the legal principle that a warrant is invalid where the supporting affidavit is nothing more than the bare conclusion of the affiant, as to the integrity and reliability of the unnamed informant, or as to the matter alleged in the affidavit. The courts differ, however, in application of that principle of law to the facts in various cases.

In Aguilar, the affidavit read in part, “Affiants have received reliable information from a credible person.” In Spinelli, it was stated that the F.B.I., “has been informed by a confidential reliable informant.” In the instant case, the affidavit states, “I have received information from a person whose record of reliability for correctness has been good.”

We find the identical wording in the affidavit in Davis v. State, 46 Ala.App. 45, 237 So.2d 635 (1969), affirmed in State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970). There, the affidavit recited in summary form, “Information from a person whose record of reliability for correctness has been good . . . .” This Court reversed on grounds, inter alia, that such wording was an unsupported conclusion of the affiant. However, on certiorari the Alabama Supreme Court affirmed on other grounds, but held that the above wording in the affidavit was adequate to show the basis for the officer’s conclusion that the informant was reliable. The Court there stated that such wording was more than the showings disapproved in Aguilar and Spi-nelli.

Since the Alabama Supreme Court has held the above language to be adequate, it would appear that this Court would be bound thereby. While we recognize the import of the holding in State ex rel. Attorney General, supra, we likewise recognize that it was decided in 1970. Since that time, numerous holdings by the Federal courts as well as the tenor of some decisions by the Alabama Supreme Court itself would indicate that the language approved of in State ex rel. Attorney General may no longer be held to be valid.

We have analyzed a number of Federal cases as well as decisions by the Alabama Supreme Court and this Court wherein the conclusion of an affiant as to the reliability of an informer has been held to be sufficient. In each of those cases, there was substantially more underlying circumstances supplied by the affiant than in the instant case or in the Davis case, supra. We likewise note that the above quoted statement in the instant case is objective in nature whereas in most other cases, the statement concerning reliability of the informant has been subjective. For instance, in Funches, infra, after stating the conclusion that the informer was reliable and credible, the affidavit went on to state, “My informer is reliable because he has given me information in the past two months concerning narcotics, which has led to arrests and convictions in courts in Mobile County.” There, the officer was making a subjective statement as to the reliability of his informant. The informant was reliable because he had given the officer information. In the instant case, no such allegation is made. The statement in the instant case is a mere abstract conclusion that the information was from a person whose record for reliability and correctness has been good. No personal knowledge or personal dealings with the affiant is alleged to show reliability. Also see: Goodman v. State, 50 Ala.App. 281, 278 So.2d 729, cert. denied 291 Ala. 780, 278 So.2d 733 (1973).

For cases where a subjective allegation as to reliability has been tendered, or where substantiating facts and additional underlying circumstances have been given by the affiant, see: United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Damitz, 495 F.2d 50 (9 Cir., 1974); Funches v. State, 53 Ala. App. 330, 299 So.2d 771, cert. denied 293 Ala. 752, 299 So.2d 778 (1974); Russell v. State, 53 Ala.App. 447, 301 So.2d 214 (1974); Buckles v. State, 50 Ala.App. 548, 280 So.2d 810 (1972).

The Circuit Court of Appeals, Fifth Circuit, in United States v. Acosta, 501 F.2d 1330 (1974), held an affidavit to be insufficient for want of facts to enable the magistrate to conclude that the informant was reliable. In the affidavit in Acosta, there was a recitation that the informant had on other occasions assisted Federal agents in initiating cases. In that case, the informant had been the source of information on which the magistrate had issued previous warrants and therefore the magistrate, based upon his own personal knowledge and his past experience with the informant, issued the warrant. The Fifth Circuit held that to be insufficient; that the information must be supplied from the affidavit to the magistrate.

An affiant’s assertions as to the reliability of his informant was upheld by this Court and by the Alabama Supreme Court where such was bolstered by the statement that, “[t]his informer has given information on other occassions (sic) that has proven correct and has resulted in some arrests.” Additional underlying circumstances were also given to support the conclusion of the affiant in that case. Bates v. State, 51 Ala.App. 338, 285 So.2d 501, cert. denied 291 Ala. 773, 285 So.2d 506 (1973).

In United States v. Hill, 500 F.2d 315 (1974), the Fifth Circuit Court of Appeals held the affiant’s conclusion that his confidential informant was credible to be sufficient because the following additional underlying circumstances were given in support of the conclusion:

“ ‘. . . (1) the allegation of the affi-ant that he regarded the informant as “prudent”; (2) the detail provided in the tip; (3) the fact that the affidavit also alleged that the accused had a reputation for being a trafficker in nontax-paid liquor; and (4) the fact that the information given, with the allegations of the informant’s purchases, was a declaration against the informant’s penal interest.’ ”

We have discovered other Federal cases where the allegation as to reliability was upheld due to a declaration against the informant’s penal interest.

In United States v. Counts, 471 F.2d 422 (1973), the Second Circuit Court of Appeals held the recitation of reliability in an affidavit to be sufficient, but again there was more information supplied the magistrate than in the instant case. In Counts, there was a recitation that information previously received from the same informants had been reliable and that three arrests were pending grand jury action which had been based upon such information, with names and dates specifically supplied.

In Haynes v. State, 50 Ala.App. 96, 277 So.2d 372 (1973), we held an affidavit to be deficient for lack of underlying circumstances wherein the affiant merely concluded that his informant was “truthful” and his information was “reliable.”

While we agree that no specific “batting average” of an informant is mandatory to establish an informant’s reliability, the rule appears to be that sufficient facts or underlying circumstances must be given in the affidavit upon which the magistrate can make an independent determination that the informant is reliable. We have reason to believe that the unsupported statement that, “I have received information from a person whose record of reliability for correctness has been good,” will someday be held to be insufficient by higher authority than this Court. However, we have been unable to find a United States Supreme Court decision holding that language to be insufficient, and in light of approval given to that language by our Supreme Court in State ex rel. Attorney General, supra, we have no alternative but to hold it to be sufficient.

We must now press forward to the second prong of the Aquilar test; that of determining if sufficient underlying circumstances are set forth in the affidavit upon which the issuing magistrate may find probable cause to send officers of the law forth to search the residence of the appellant.

II

In reviewing the substance of the affidavit in question, we find that it meets the “time” test of Davis, supra, and Walker v. State, 49 Ala.App. 741, 275 So.2d 724 (1973), in that the informant states that he saw illegal drugs on the date of, and three hours prior to making the affidavit. It fails to meet other standards however.

Cates, P. J., writing for this Court in Horzempa v. State, 52 Ala.App. 153, 290 So.2d 217 (1973), affirmed 292 Ala. 140, 290 So.2d 220, held the following recitation in an affidavit to be insufficient:

“ ‘Affiant has received information from two different reliable informants that they have been in the above described residence on several occasions recently and there have been drugs that are above described in the residence Both informants have made numerous drug buys for affiant in the past two weeks and their reliability has been established. The last buy was made three days ago and was a good buy. Both informants state the above drugs of Marihuana and Mescaline are now in the house which is described above . . . ’ ”
There Judge Cates wrote: “But the instant affidavit . . . does not state how the informants learned of the drugs being in the house. Nor does it show how they arrived at the statement as to the presence of drugs being there ‘now.’ Nor does it show whether the informants saw, touched, smelled, bought, or otherwise came in contact with the drugs on the several ‘recent’ occasions when they were in the residence.”

Thus, this Court concluded that the affidavit failed to give sufficient underlying circumstances from which the informants exhibited probable cause that the drugs were where they claimed them to be.

In Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966), the Supreme Court, through Justice Coleman, stated:

“The affiant must state evidence, other than hearsay, to justify a conclusion that the article to be searched for is where he says it is. The affiant must state evidence, other than hearsay, to justify a conclusion that the hearsay is reliable.

. ” (Emphasis supplied)

In evaluating “the adequacy of the factual premises furnished by that source to support the validity of the source’s conclusion,” we find the strongest statement in the affidavit, to-wit:

“ . . . The aforesaid informant stated that he saw the said illegal drugs on said premises described on the 9th day of August, 1973, 3 hours prior to making this affidavit . . .”

As strong as that statement is, it is still uncertain for failure to state on which of the two premises described, and in whose possession the informer saw those drugs. Did the informant see them at the truck stop, or at the residence, or at both places? That statement refers to “said premises described,” which appears in the affidavit as “Neugent Truck Stop and/or Lewis Neu-gent Residence.”

The affidavit goes on to read: “ . . The informant also stated that Lewis Neugent . . was seen selling amphetamines at the truck stop but the amphetamines are brought from the residence . . .” (Emphasis supplied)

Here, the affiant does not tell us that his informant personally saw the appellant selling amphetamines, only that the appellant “was seen” doing so. “Was seen” by whom and when? He states that appellant was seen selling amphetamines at the truck stop, but the warrant was issued to search the residence. He does not say that his informant saw amphetamines at the residence, or that he personally saw them brought from the residence. How the informant determined this, is left to conjecture and speculation.

In Haynes v. State, 50 Ala.App. 96, 277 So.2d 372 (1973), in a similar situation, Judge Harris stated:

“ . . . Affiant does not set forth the underlying circumstances surrounding his observation of the ‘stolen parts’ entering the premises described by him. He does not say where he was when he claims to have seen what he said he saw. . . ”

See also Justice Faulkner’s affirming opinion of Horzempa, supra.

In Miller v. State, 54 Ala.App. 230, 307 So.2d 40 (1974), the affidavit stated that the informant had seen the defendant with the drugs in his possession. He also stated that he had obtained illicit amphetamines from the defendant. In reversing that case, this Court stated that the affidavit was insufficient to support a search warrant of the appellant’s premises, stating:

“ . . . The warrant authorizes a search of the business premises of appellant and not a search of his person. “Nowhere in the affidavit does it appear that the informer had seen the drugs on the premises of the appellant. . . . ”

Thus, using the reasoning in Miller, it is difficult to see how a magistrate, on being informed that drugs “were seen” being sold at the truck stop, would authorize a search warrant to be issued for the residence. The majority of this Court, being bound to apply the tests of Aguilar and Spinelli, therefore, find that the instant affidavit fails to state sufficient facts and underlying circumstances to exhibit probable cause to issue a search warrant for the residence of the appellant. The appellant’s motion to suppress should have been granted, and the fruits of the search should not have been admitted in evidence over objection. For comparison of the instant affidavit with affidavits in similar cases held to meet the minimum legal requirements of validity, see: Funches v. State, 53 Ala.App. 330, 299 So.2d 771 (1974), cert. denied 293 Ala. 752, 299 So.2d 778, cert. denied 419 U.S. 1114, 95 S.Ct. 793, 42 L.Ed.2d 813 (1975), and Funches v. State, 56 Ala.App. 22, 318 So.2d 762, cert. denied 294 Ala. 757, 318 So.2d 768 (1975). Likewise, Cates, P. J., in Tyler v. State, 45 Ala.App. 155, 227 So.2d 442, cites us to Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, as to how to compose a narrative affidavit.

This Court realizes that it is a disheartening experience to a conscientious law enforcement officer seeing an otherwise valid case dissolve when his search warrant has been held to be invalid on appeal. A law enforcement officer, not trained as an attorney, armed with the results of his investigation or information furnished by his informant, goes before a magistrate who is a judicial officer and who is more familiar with the requisites for a valid affidavit. Where, as here, the affidavit fails to set forth sufficient underlying circumstances upon which a valid warrant may issue, the magistrate may, and in most cases should, question the officer for additional facts and take sworn testimony bearing on the “underlying circumstances.” In this way, an otherwise defective affidavit may be bolstered by sworn testimony, thereby saving the warrant and the fruits of the search. Oliver v. State, 46 Ala.App. 118, 238 So.2d 916 (1970); Funches (1974), supra. Or, the magistrate may direct the officer to furnish a more comprehensive affidavit, if such is possible, and save the State the expense and effort of a futile trial.

Ill

The appellant argues other issues: (1) the misdescription of the premises to be searched, and (2) allowing Officer Cooke’s affidavit to go to the jury as an exhibit, where the affidavit states that Neugent was seen selling amphetamines, whereas he is only charged with possession in the indictment. While these issues raise serious doubts with this Court, we pretermit discussion and ruling thereon as this case must be reversed and remanded on the grounds hereinabove set forth.

REVERSED AND REMANDED.

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

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting).

In the present case, the affiant swore that his informer’s “record of reliability for correctness has been good.” This in my judgment goes beyond the conclusory statement that the unidentified informant was a “credible person.”

Unlike Aquilar, the affirmation in question provides a means to judge the informant’s reliability. The officer here swore to a basis for accepting the informant’s story and that was his attestation to the informant’s previous record of reliability for correctness. This statement presents just as good a foundation for belief as one detailing the number of times the informant has given correct information.

The Supreme Court of Alabama in State, ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640, denounced the “batting average” requirement in this language:

“ . . . [N]o ‘batting average’ is required to establish the reliability of the informer. If the affiant so desires, he may cite prior instances of proven reliability, but it is not a requirement.”

Perhaps more important is the fact that Aguilar’s other test has been satisfied.

The affidavit does contain a sufficient statement of the underlying circumstances from which the informer concludes that Neugent was in possession of illegal narcotics.

We are told in the affidavit that:

“ . . . The aforesaid informant stated that he saw the said illegal drugs on said premises described on the 9th day of August, 1978, 3 hours prior to making this affidavit. The informant also stated that Lewis Neugent, who resides at the above address, was seen selling amphetamines at the truck stop but the amphetamines are brought from the residence. This information was given to me by said informant August 9th, 1973.” (Emphasis ours).

It is alleged that the informer has personal knowledge that the drugs were on the said premises three hours before the affidavit in question was executed.

The report details the means by which the information was gathered and describes the criminal activity in a manner that enabled the magistrate to know it was not a casual rumor or an offhand remark obtained at the truck-stop.

Although the affidavit does not specifically say the informer saw Lewis Neugent sell the amphetamines, it does say that the “amphetamines are brought from the residence,” and that the informant stated Lewis Neugent resided at the above address.

What was alleged in the informer’s tip certainly was cause to believe that a crime was being committed. It provides a substantial basis for the magistrate to conclude that narcotics were probably present on the premises and that was sufficient.

I do not believe this affidavit falls short of the standards set forth in Aguilar, and as explained in U. S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684.

“ . . . [Affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers. from submitting their evidence to a judicial officer before acting.”

Mr. Justice Goldberg went on to say:

“ . . . [W]here reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hyper-technical, rather than a commonsense, manner.”

For these reasons, I respectfully dissent.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    In re Louis E. NEUGENT, alias v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1679.
    Supreme Court of Alabama.
    June 4, 1976.
    Rehearing Denied July 2, 1976.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State, petitioner.
    Robert M. Hill, Jr., Florence, for respondent.
   BLOODWORTH, Justice.

We granted this petition for writ of cer-tiorari, filed by the State, seeking our review and reversal of a decision of the Court of Criminal Appeals, Ala.Cr.App., 340 So. 2d 43, wherein that court- reversed and remanded a judgment of conviction of one Neugent for illegal possession of amphetamines.

The reversal was based upon the conclusion of a majority of that court that the affidavit, supporting the search warrant, did not sufficiently aver “probable cause” in that it failed to meet the first “prong” test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), i. e., requiring that the magistrate be informed of some of the “underlying circumstances” from which the informant concluded that the drugs were where he claimed they were.

Thus, the question is: “Are there sufficient allegations in the affidavit as to the underlying circumstances from which the magistrate could conclude that the informant’s information was ‘reliable’?”

We answer in the affirmative and reverse and remand the judgment and decision of the Court of Criminal Appeals.

The affidavit in question was executed by Detective Sergeant John Cooke of the City of Tuscumbia Police Department before Judge Jerry M. Vanderhoef and reads as follows:

“ ‘STATE’S EXHIBIT A “ ‘STATE OF ALABAMA! “ ‘COLBERT COUNTY J
“ ‘Personally appeared before me, Jerry M. Vanderhoef, Judge of the Colbert County Court of Colbert County, Alabama, John Cooke, who after first being duly sworn by me, and who is personally known to me, deposes and says as follows:
‘I have received information from a person whose record of reliability for correctness has been good; that there is presently contained on the premises of Neugent Truck Stop and/or Lewis Neugent Residence, the residence being located some 150 to 200 yards West of said truck stop, the residence being reached by traveling West on a dirt road within approximately 50 feet of said truck stop. The truck stop to be searched is reached by traveling South on U. S. Highway 43 from its intersection with U. S. Highway 72 for approximately one to one and one-half miles; the truck stop being located on the West side of U. S. Hwy. 43. The truck stop being a truck stop and restaurant combination contained in one white block building, approximately 100 feet West of U. S. Hwy. 43, the residence of Lewis Neugent being reached by traveling West on a gravel road located approximately 50 feet North of said truck stop for a distance of 150 to 200 yards. The residence being the only dwelling house located on said gravel road, the residence being a brick or masonry building in the police jurisdiction of Tuscumbia, Colbert County, Alabama, illegal drugs, to-wit: Marijuana, amphetamines and barbiturates. The aforesaid informant stated that he saw the said illegal drugs on said premises described on the 9th day of August, 1973, 3 hours prior to making this affidavit. The informant also stated that Lewis Neugent, who resides at the above address, was seen selling amphetamines at the truck stop but the amphetamines are, brought from the residence. This information was given to me by said informant August 9th, 1973.
“ ‘Based on all the above information received from my reliable informant, I have probable cause to believe and do believe that there are contained in the residence of Lewis Neugent and Neugent Truck Stop, located at Highway 43 South Tuscumbia, Colbert County, Alabama, illegal drugs, to-wit: marijuana, amphetamines and barbiturates.
“ T make this affidavit for the purpose of securing search warrants for the purpose of searching Lewis Neugent and the premises located at Neugent Truck Stop and Lewis Neugent residence West of Highway 43 South, Tuscumbia, Colbert County, Alabama.
“ 7s/ John Cooke Affiant
“ ‘Sworn to and subscribed before me, this the 9th day of August, 1973.
“ 7s/ Jerry M. Vanderhoef
Judge’
“(Emphasis supplied.)”

The affidavit describes the premises to be searched as “Neugent Truck Stop and/or Lewis Neugent Residence,” although the warrant was issued only to search the resi dence. Both places were searched but drugs were found and seized only at the residence. This search and seizure formed the basis for the subsequent prosecution.

I.

First, we should note that the Court of Criminal Appeals held that the assertion in the affidavit [“I have received information from a person whose record of reliability for correctness has been good”] was sufficient to support the second “prong” of Aguilar, the test as to “credibility” of the informant. In so doing, the Court seemed to invite our comment as to the viability of our “Possum” Davis case [State ex rel. Attorney General (In re: Horace E. Davis, alias v. State), 286 Ala. 117, 237 So.2d 640 (1970) (per Merrill, J.)], because the court wrote that subsequent holdings by federal courts and by our Court “would indicate that the language approved of in State ex rel. Attorney General may no longer be held to be valid.” The affidavit in the instant case is identical in wording to that in Davis, “I have received information from a person whose record of reliability for correctness has been good; . . . .” We respond by taking this opportunity to reaffirm Davis, holding this averment to be sufficient for the reasons stated in Davis. We know of no United States Supreme Court decision to the contrary.

II.

The Court of Criminal Appeals concludes that the second prong of Aguilar is not satisfied. This is the basis for the reversal and presents us with the question: “Are the allegations in the affidavit sufficient to satisfy the reliability of the informant’s information?”

The affiant states that an otherwise reliable informer says he saw the drugs on the premises three hours before making the affidavit. Affiant then adds the informer stated that Neugent, who resides at the residence, was seen selling drugs at the truck stop but they were brought from the residence.

We think these statements are sufficient to satisfy the Aguilar test as to the “reliability” of the informant’s information. Admittedly, if the affiant had stated the informer saw the selling take place, and when, the case would have been much stronger. Nonetheless, we think the timely observation of the drugs at the house coupled with the statement that Neugent was seen selling drugs at the truck stop, which were brought from the residence, is sufficient.

The Court of Criminal Appeals finds further fault with the affidavit because it describes the premises as “Neugent Truck Stop and/or Lewis Neugent Residence.” Although use of “and/or” has been held to be “slovenly pleading,” “equivocal, uncertain, and indefinite,” by some courts, and as “textually dangerous” and “indefinite and uncertain,” by our courts in civil cases, their use has been held not to be demurrable. (See special concurrence in Air Engineers, Inc. v. Reese, 283 Ala. 355, 363, 217 So.2d 66, 77 (1968).) We do not consider their use here to be fatal to the state, particularly in view of the fact that the warrant was only for the residence and the seizure was of drugs in the residence. Moreover, our Court has held “and/or” to allege in the disjunctive. Hays v. McCarty, 239 Ala. 400, 195 So. 241 (1940). And, as to one of the disjunctives (i. e., the residence), the aver-ments are in compliance with Aguilar.

The best generally accepted definition of “probable cause” is that it exists where “. . . the facts and circumstances within their [the officers] knowledge and of which they had reasonable trustworthy information [are] . . . sufficient in themselves to warrant a man of reasonable caution in the belief that [an offense has been or is being committed].”

Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925).

We think “probable cause” was satisfied here. To reach any other conclusion, in our judgment, would subject the affidavit in this case to the sort of hypertechnical construction condemned by the United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), quoted with approval in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, SHORES and EMBRY, JJ., concur.

ALMON, J., concurs in the result.

HEFLIN, C. J., not sitting.


text:
    Louis E. NEUGENT v. STATE.
    8 Div. 655.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
   AFTER REMAND FROM THE SUPREME COURT OF ALABAMA: Judgment of the Circuit Court AFFIRMED on mandate of the Supreme Court of Alabama, 340 So.2d 52.

Rehearing denied, Ala.Cr.App., 340 So.2d 55, certiorari denied, Ala., 340 So.2d 60.


author: BOOKOUT, Judge.

text:
    Louis E. NEUGENT, alias v. STATE.
    8 Div. 655.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.

      William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State, petitioner.
    Robert M. Hill, Jr., Florence, for respondent.
   AFTER REMANDMENT

BOOKOUT, Judge.

This Court originally reversed the appellant’s.conviction, Ala.Cr.App., 340 So.2d 43. We were reversed by the Alabama Supreme Court, Ala., 340 So.2d 52. Following re-mandment by that Court, we summarily affirmed, on mandate of the Supreme Court, on August 24, 1976, 58 Ala.App., 340 So.2d 55. On rehearing the appellant raises certain points which were raised but not considered by this Court on the original appeal. Since we had concluded that the affidavit was insufficient to support the search warrant, we had pretermitted consideration of other alleged errors. We must now address ourselves to the following issues:

Í. Was the misdescription of the premises to be searched of such a magnitude as to make the search warrant invalid?

2. Was it reversible error to allow the officer’s affidavit to go to the jury where appellant is charged with possession of amphetamines and the affidavit states that appellant was soon selling amphetamines?

3. On cross-examination, may the prosecutor ask appellant’s character witnesses if they knew that appellant had committed specific offenses?

I

Although there appears to be some mis-description of the premises to be searched, we do not find this to make the warrant fatal under the circumstances in the instant case.

We have held that the description in a search warrant is sufficient if officers can, with reasonable effort, ascertain and identify the place to be searched. If a prudent officer is able to locate the property definitely and with reasonable certainty from the face of the warrant, the description is sufficient. “The description must be such that any person familiar with the locality can, by inquiring, identify the premises described.” Tyler v. State, 45 Ala. App. 155, 227 So.2d 442 (1969).

Here, the premises were described in the affidavit attached to the warrant as, “Neugent Truck Stop and/or Lewis Neu-gent Residence.” The search warrant described the residence to be searched as being located, “West of said Neugent Truck Stop on Highway 43, Tuscumbia, Alabama . .” The geographical location was set out in the affidavit with sufficient certainty to lead officers there:

“. . . The truck stop to be searched is reached by traveling South on U. S. Highway 43 from its intersection with U. S. Highway 72 for approximately one to one and one-half miles; the truck stop being located on the West side of U. S. Hwy. 43 . .”

Although the description was not fully accurate as to the type of construction of the buildings in question, the misdescription was not sufficient to mislead the law enforcement officers. The officers, by following the directions set out in the affidavit and warrant found the premises by proceeding on the highway set out therein the appropriate distance stated. There, they saw a large sign which read, “Neugent’s Truck Stop.” Therefore, pursuant to Tyler, supra, we believe the description was sufficient.

II

The trial judge did not conduct a pretrial hearing on the appellant’s motion to suppress the fruits of the search. After the jury was impaneled and the trial commenced, the trial judge held a hearing on the motion to suppress, outside the presence of the jury. At that time, witnesses testified as to probable cause for issuance of the search warrant. The affidavit and search warrant were admitted into evidence in the probable cause hearing over appellant’s objection that (1) the documents were not properly authenticated; (2) a photostatic copy was not the best evidence; (3) the official capacity of the magistrate was not shown; and (4) the return on the warrant was not dated.

The trial court overruled the appellant’s motion to suppress, the jury was returned to the courtroom, and the trial resumed. During the course of the testimony of Officer Cooke, the State again offered the search warrant and supporting affidavit into evidence. Appellant renewed his previous objection thereto. The appellant did not object to the introduction of those documents on the ground of hearsay. However, during closing argument when the District Attorney apparently read from the affidavit, the appellant objected for the first time on the ground that such evidence was hearsay. The following transpired:

“MR. HUNT: We object to his reading that on the grounds that it is not evidence, it is hearsay.
“MR. PATTON: It is probable cause to secure a search warrant.
“BY THE COURT: Wasn’t that introduced in evidence?
“MR. PATTON: Yes, sir.
“BY THE COURT: If it is evidence, it can be argued.
“MR. HUNT: We renew our objection on the grounds that the defendant has not had an opportunity to question this informant and to cross examine him on the statement he made.
“BY THE COURT: Overruled.”

A.

It would have been preferable to have had a pretrial hearing on all the appellant’s motions so that hearsay evidence to support probable cause could not get intermingled with primary evidence in the trial. Hearsay evidence may be used in a probable cause hearing to support the issuance of a warrant. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). However, it may not be used as primary evidence to establish guilt during the trial. Tanner v. State, 259 Ala. 306, 66 So.2d 836 (1953); Pierce v. State (Okl.Cr.1955) 278 P.2d 852. In People v. Silverman, 26 A.D.2d 890, 274 N.Y.S.2d 190 (1966), the Supreme Court of New York, Appellate Division, stated the proper rule:

“The introduction into evidence of a search warrant is for the sole purpose of demonstrating that the search was lawful, as distinguished from unlawful. It has no probative value in establishing the guilt of the accused. . .

In Brinegar v. United States, 338 U.S. 160, 172, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, 1889 (1949), the United States Supreme Court found that there is a great difference between what is required to prove guilt in a criminal ease and what is required to show probable cause for a search. In that case, Mr. Justice Jackson stated, in pertinent part:

“. . . There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.
“For a variety of reasons relating not only to probative value and trustworthiness, but also to possible prejudicial effect upon a trial jury and the absence of opportunity for cross-examination, the generally accepted rules of evidence throw many exclusionary protections about one who is charged with and standing trial for crime. Much evidence of real and substantial probative value goes out on considerations irrelevant to its probative weight but relevant to possible misunderstanding or misuse by the jury.
“The court’s rulings, one admitting, the other excluding the identical testimony, were neither inconsistent nor improper. They illustrate the difference in standards and latitude allowed in passing upon the distinct issues or probable cause and guilt. Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard.
* * * * * *
“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.”

While the better or more efficient procedure may be to hold a pretrial hearing on motions to suppress, we find no prejudicial effect upon the appellant so long as the matter is heard outside the presence of the jury. Childers v. State (1976) 58 Ala.App. -, 339 So.2d 597. And, further providing that the appellant is not prejudiced by having evidence from the suppression hearing improperly introduced against him during the trial on the merits of the case. However, evidence from a probable cause hearing, which may be inadmissible as primary evidence of guilt, may nevertheless end up before the jury where proper and timely objection is not made by the appellant.

B.

The State contends that the appellant’s objection during oral argument was not sufficiently clear to apprise us of what the prosecutor was doing that was objectionable. It is true that the objecting party must state into the record enough of the remarks of the prosecutor to inform the court as to what was really said and what was objectionable. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973).

The objection in question here was:

“We object to his reading that on the grounds that it is not evidence, it is hearsay.” (Emphasis supplied.)

Further:

“We renew our objection on the grounds that the defendant has not had an opportunity to question this informant and to cross examine him on the statement he made.”

When the affidavit and warrant were admitted into evidence during the trial, the appellant renewed the objection he raised during the suppression hearing. He did not object on the ground that it was hearsay. The trial judge was not in error in overruling the objection on the grounds specified, although the documents were clearly hearsay and subject to exclusion upon proper objection. Where the appellant made objection on specific grounds when the documents were introduced, all grounds not specified were waived. Roynica v. State, 54 Ala.App. 436, 309 So.2d 475, cert. denied 293 Ala. 772, 309 So.2d 485 (1974); Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). Proper objection must have been made at the time the evidence was offered. An objection during closing arguments to reading from an exhibit already in evidence comes too late. Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956).

Ill

One of appellant’s character witnesses was asked by the prosecutor:

“Q. I will ask you, Mr. Louis, if you knew the defendant, Louis Neugent, was charged with transporting in 1970?”

The court overruled the appellant’s objection, and the following occurred:

“MR. PATTON CONTINUES: Did you know that this defendant plead (sic) guilty to violation of the Prohibition Law on March 3, 1967, in Colbert County Court in Colbert County, Alabama?
“A. I didn’t.
“Q. Would either one of these facts change your opinion as to reputation, if they are facts, as to the reputation of this defendant?
“A. I don’t believe it would.”

The rule applying to this situation is clearly stated in Johnson v. State, 260 Ala. 276, 69 So.2d 854 (1954):

“. . . Where a witness testifies as to the general reputation or character of the defendant, the knowledge of the witness as to such reputation or character may be tested on cross examination by asking him if he has not heard of specific acts of bad conduct on the part of the accused. But the witness may not be interrogated as to the fact of such particular acts. . ” (Emphasis supplied.) (Citations omitted.)

Even though the questions here propounded were improper and the appellant’s objections should have been sustained, the trial judge’s ruling resulted in no prejudicial error since the answer of the witness was favorable to the appellant. The witness stated that he did not know the appellant had pled guilty to the charge in question, and further that if it was a fact, it would not change his opinion as to appellant’s reputation.

Again we quote from Johnson, supra:
“. . . Furthermore, no prejudicial error resulted to the defendant from the line of questions asked his character witnesses. Each of the witnesses testified that he had not heard of any such conduct on the part of the defendant. The overruling on an objection to a question not answered by the witness or favorably answered to the objector, is not prejudicial error. Stephens v. State, 250 Ala. 123, 33 So.2d 245. But it is insisted that even though the questions were answered favorably to the objector, the very asking of the questions resulted in prejudice in the minds of the jurors toward the defendant. We cannot assent to this position. A matter of this kind is largely in the discretion of the trial court. Snead v. State, 243 Ala. 23, 8 So.2d 269. . . .”

We distinguish this decision from our holding in Sexton v. State, 54 Ala.App. 665, 312 So.2d 71 (1975), where the improper question elicited a reply which was prejudicial to'that appellant. In the instant case, Johnson, supra, applies, and no error results from the witness’ answer which was favorable to the appellant.

APPLICATION FOR REHEARING OVERRULED.

AFFIRMED.

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


author: SHORES, Justice.

text:
    In re Louis E. NEUGENT, alias v. STATE of Alabama. Ex parte Louis E. Neugent, alias.
    SC 2166.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Robert M. Hill, Jr., Florence, for petitioner.
    No appearance for the State.
   SHORES, Justice.

Petition of Louis E. Neugent, alias, for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Neugent, alias v. State, 340 So.2d 43.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    John STENNETT v. STATE.
    6 Div. 84.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      Hugh A. Nash, Oneonta, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant, John Stennett, with the unlawful sale of “500 mgs. of an amobarbital” to Ray Don Edwards, contrary to law. The jury found the appellant “guilty as charged in the indictment,” and the trial court entered judgment, setting sentence at five years imprisonment.

Ray Don Edwards testified that he was a Birmingham Police Officer and. had been assigned to work as an undercover narcotics agent in a seven county’ area, north of Birmingham. He testified that on January 6, 1973, he went to Blount County with Sergeant George Haze of the Birmingham Police Department in an effort to .make undercover buys. He testified that they arrived in Oneonta between 3:30 and 3:45 in the afternoon and went to the Sheriff’s Department. He testified that he left in an automobile alone, but that Sergeant Haze followed him in another automobile, and that they drove to Route 1, Sand Valley Road, to the residence of the appellant. He testified that the appellant’s wife and daughter were there. He said that there were some other persons there whom he did not know. From the record:

“Q. What did you do when you arrived there, then?
“A. I parked in the back yard, and two white males that were in the truck, they were leaving. John Stennett walked up to my car and I told him I wanted to buy some pills, and he said that he had just gotten some — well, no. He told me that he had some and that he was trying to get some more. We went — He told me to come on inside the house. We went inside the house and he stopped in the dining room and pulled the dresser out and got a white paper sack from behind the dresser. I went on in the living room and sat down. He took some capsules out of the sack and he told me that [sic] cost sixty cents a piece.
“Q. What were you looking for?
“A. What was I looking for?
“Q. What kind of pills? Did you specify what kind of pills you wanted?
“A. No, sir. I didn’t specify.
“Q. Where was his wife at that time? “A. Back in the back room.
“Q. Where was his daughter?
“A. She had came in and left back out. “Q. Was anyone in the room at the time he brought the sack with the pills in it— “A. No, sir.
“Q. —in there, besides you and he?
“A. No, sir.
“Q. Had the white people, the two white males, had they already gone?
“A. Yes, sir.
“Q. I believe you said they were leaving when you pulled up?
“A. Yes, sir.
“Q. Did you buy these pills?
“A. Yes, sir.
“Q. How many pills were there?
“A. Twenty capsules.
“Q. How much did you pay for them? “A. He said they cost sixty cents a piece. I gave him a twenty and two ones, and he gave me ten dollars change. It was twelve dollars.
“Q. Do you know how many pills was in that sack?
“A. No, sir.
“Q. What color were the pills?
“A. A dark blue and orange with ‘F-47’ wrote on them.
“Q. What did you do then?
“A. I left.
“Q. What time was this when you made the purchase?
“A. It was 4:05.”

Officer Edwards testified that he then drove back to the Sheriff’s office where he placed the twenty capsules in a clear plastic bag, sealed them, and then put his initials on the envelope, and that Sergeant Haze did likewise in his presence.

On cross-examination, Officer Edwards testified that he had been to Blount County on two other occasions with Sergeant Haze, that on one occasion he had been to the appellant’s home and drank beer with him prior to the date on which the purchase in question was made. He testified that on the occasion of the purchase the appellant told him that the pills were sixty cents each, and that he gave the appellant a twenty dollar bill and two one dollar bills toward the purchase price.

Sergeant George Haze testified that he was a Police Sergeant with the Birmingham Police Department. He testified that he was working in a seven county area) north of Birmingham, on a Federal grant, assisting in policing drug traffic. He testified that on January 6,1973, he, accompanied by Ray Don Edwards, drove to Oneonta and went to the Sheriff’s office. He testified that they arrived there at approximately 3:45 in the afternoon. He testified he instructed Officer Edwards to go to the home of the appellant, John Stennett, and that he followed Officer Edwards in a separate vehicle as he proceeded out Sand Valley Road. He testified that a short time later, he met Officer Edwards back at the Sheriff’s Department at about 4:30 in the afternoon, and that Officer Edwards produced twenty blue and orange capsules. He testified that he placed these capsules in an envelope at that time, and that each officer then placed his initials on the envelope. Sergeant Haze testified that he kept possession of the envelope containing the capsules until he delivered them to the office of the State Toxicologist on January 10, 1973.

On cross-examination, Sergeant Haze testified that he had used a physician’s desk book and determined that the capsules in question were Amosect tablets, manufactured by Eli Lilly Company. He testified that he had also been in Blount County on other occasions, assisting in drug investigations, that he was present on February 23, 1973, when the warrant of arrest was issued for the appellant, John Stennett, and that he was with Sheriff’s Deputies on the occasion when the appellant was arrested.

John M. Case testified that he had been with the State Department of Toxicology for a little over six years. He testified that he made approximately thirty to forty drug identifications each month. He testified that he received an envelope from Sergeant George Haze on January 10, 1973, that he examined the capsules contained in the envelope, and determined that each contained “twenty-five milligrams of amobarbital each.”. He testified that amobarbital is a controlled substance within the meaning of the Alabama Controlled Substances Act, and that these capsules were sold under the trade name of Amosect, and manufactured by Eli Lilly Company. He testified that these capsules required the prescription of a registered medical doctor.

Ray Don Edwards was recalled to the witness stand and testified that he did not have a prescription of a medical doctor when he purchased the capsules on January 6, 1973, from the appellant.

Earl Deavers took the stand and testified that in the Fall of 1972, he had carried Ray Don Edwards out to the house of the appellant, John Stennett. He testified that he had known the appellant for five or ten years. He testified that he saw Edwards on three occasions in Oneonta, and that on one occasion they went “running around looking for women,” that they had bought some beer and whiskey together, but that he did not see the appellant with Edwards, nor did he go to the appellant’s home on January 6, 1973.

Elouise Henderson testified that at times she had lived with the appellant as his wife. She said that on January 6,1973, the appellant was staying down at Calvin Davis’ house, which was down the road from her home. She said that the appellant had gone by her house that day, and that Ray Don Edwards had not been by her house at all.

On cross-examination, Mrs. Henderson admitted she had had a nervous breakdown about two years previously, but said she was at home all day on January 6, 1973, because she did not go anywhere else that day, and that she did not see Officer Edwards at her house at all. She does remember a later date when officers came out and arrested the appellant.

John Lee Stennett, Jr., testified that on January 6, 1973, he was renting a house from Calvin Davis “over on Cherry Hill.” He testified that on January 6, 1973, he did not know Officer Ray Don Edwards, and that, in fact, on that day he had been in Huntsville, and did not return to Oneonta until that night about 6:00. He testified that he had been in Huntsville about three days. He testified that he remembered one earlier time when Ray Don Edwards had come to Oneonta, and that they had gone out and “got falling-down drunk together.” He denied that he had ever sold Officer Edwards any drugs at any time, or sold drugs to anyone.

On cross-examination, the appellant admitted going to Mrs. Henderson’s home when he returned from Huntsville on January 6, 1973, but denied seeing Ray Don Edwards, or selling drugs to him on that date. The appellant further testified that he was a disabled Veteran, and at one time had worked with the Board and Recreation Center at Oneonta, and used to drive a school bus.

I

In the opening statement to the jury, we find the following:

“THE COURT: All right. Make your opening statements to the jury.
“MR. ROBINSON: You are fixing to hear a case about the Defendant selling marijuana—
“MR. NASH: We object, Your Honor.
“MR. ROBINSON: Judge, this is an-— Let’s have this off the record. “(Whereupon, there was an off the record discussion at the bench between counsel for the respective parties, and the Court, out of the hearing of the Court Reporter, after which, the following occurred:) “THE COURT: Ladies and gentlemen of the Jury, it looks like we have had a little bit of a misunderstanding here, which may be rectified. This is a felony charge. You don’t know anything about it yet, other than what you have been qualified on. It will be necessary for you to stay together for the time being at least. Sheriff, when can you get them to dinner?
“THE SHERIFF: Any time.”

Subsequently, the respective attorneys and the court reporter returned to the courtroom, and a discussion was had outside the presence of the jury pertaining to the comment of the district attorney above set out. At this time, defense counsel made a motion for a mistrial, which was overruled by the trial court outside the presence of the jury. The discussion is as follows:

“MR. ROBINSON: Judge, of course. I was really under the impression that the case was a marijuana case. However, I see no difference in maybe an analogy such as this. If the man had been charged with murder and I made the statement that he is charged with manslaughter, I don’t see that the Jury could take it from this statement that I made that there is any other cases pending. “THE COURT: As I recall it, the only thing that was said was that you started to make your opening statement under this case involving the sale of marijuana, and there was an immediate objection. I don’t recall anything else being said in the presence or hearing of the Jury that would create that impression.
“MR. NASH: If it please the Court, excuse me now. There was further statements made that — in the presence of the Jury — that this involved a mix up of cases, or something of that nature. I believe I am right in this. Which makes it a clear implication that there is other cases pending in which the selling of marijuana is charged. I think the statement — I know Mr. Robinson did not make it with the intent to do anything to prejudice this Defendant, but nevertheless we respectfully submit it has prejudice to the Defendant in the trial before this Jury. “THE COURT: I don’t believe it has. I have full confidence in the jurors of this County going by the evidence in each case. Unless the State consents to it, I will overrule the motion for a mistrial. “MR. ROBINSON: I just don’t believe it would be — I mean the only thing I would have to think of, would be what the Supreme Court might do about it. I just don’t believe that—
“THE COURT: Most of them have had enough courtroom experience, I don’t think they will consider a Jury would be influenced any way by that.
“MR. NASH: We respectfully except to the Court’s ruling.”

As may be seen in examining the above discussion, counsel for defendant made an objection to the district attorney’s argument which was sustained by the trial judge. At this point, a recess was declared and the jurors were sent to lunch. Thereafter, the ensuing discussion, which included a motion for mistrial was made outside the presence of the jury. The trial court made the observation that it believed the jurors would go by the evidence in this ease and overruled the motion for a mistrial.

The rule covering this situation is well set forth in an opinion of the Supreme Court of Alabama in Lambert v. State, 208 Ala. 42, 93 So. 708, wherein it pointed out that where counsel for the appellant merely objects to the argument, and such objection is sustained, and counsel did not request the court to instruct the jury to disregard such argument, or to invoke a further ruling by the court on such argument in the presence of the jury, and on the record, then no ruling is presented for review on appeal by such objections. Woodard v. State, 34 Ala. App. 391, 40 So.2d 737; Veith v. State, 48 Ala.App. 688, 267 So.2d 480, and authorities therein cited.

II

During the redirect examination of Earl Deavers, witness for the appellant, he was being interrogated about where he carried Officer Edwards on occasions other than January 6,1973, which were answered, and as to other places where the appellant lived when the following occurred:

“Q. Where you carried Ray Edwards? “A. I carried up to John Stennett’s wife’s house. That’s where we went. “Q. That’s Elouise Stennett?
“A. That’s right.
“Q. At that time, John wasn’t living there?
“A. He wasn’t living there at that time. “Q. John wasn’t there?
“A. He wasn’t living there at all.
“Q. John wasn’t there, was he?
“A. No.
“Q. You all get out over there?
“A. No, sir. We didn’t get out of the car.
“Q. Was John’s car there?
“A. No sir. Not the one John drives, but three of his cars were up there; but not the one he drives.
“Q. Did you go on down to the other house that you say—
“MR. BAINS: We object to this. This is evidently another day.
“A. We did not.
“MR. BAINS: He just goes on and on about where he went to, which car, and all of that.
“THE COURT: I don’t see the relevancy to this, Mr. Walker.
“MR. NASH: If it please the Court, this — the man we are talking about, talking and asking him where he went, has been on the stand and testified as to certain things he did and didn’t do. I think we are entitled to come in with testimony establishing what we contend the actions were that were made by this Ray Edwards.
“THE COURT: Of course the issue is just this: Whether or not on the date alleged, which I believe was January 6th, 1973, did this Defendant sell the substance alleged—
“MR. NASH: I realize that, but— “THE COURT: Where he went to and who he saw several months later with other people, I just don’t quite see the relevancy of it.
“MR. NASH: We reserve an exception, may it please the Court.
“THE COURT: All right.
“MR. WALKER: No further questions. “MR. BAINS: No questions.
“MR. NASH: You can come down Earl.”

Appellant’s counsel asserts the ruling of the trial court as above set forth as erroneous, being an improper comment upon the evidence by the trial judge.

We do not agree, as it is clear that the trial judge was simply pointing out that he did not see the relevancy of the testimony as to other places on other occasions, and as such, this was simply an explanation of his ruling and its legal effect, rather than as a comment upon the evidence. Therefore, no error is shown. Beddingfield v. State, 47 Ala.App. 677, 260 So.2d 408; and Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218.

We have carefully examined this record, as required by law, and find same to be free from error. The judgment of conviction is therefore due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    In re John STENNETT v. STATE of Alabama. Ex parte John Stennett.
    SC 1718.
    Supreme Court of Alabama.
    July 16, 1976.

      Hugh A. Nash, Oneonta, for petitioner.
    William J. Baxley, Atty. Gen. and Jack Curtis, Asst. Atty. Gen., for the State, respondent.
   JONES, Justice.

John Stennett was convicted of selling “500 mgs. of an amobarbital” to a police officer in Oneonta and sentenced to five years in the penitentiary. The Court of Criminal Appeals, Ala.Cr.App., 340 So.2d 60, affirmed the conviction and denied the defendant’s application for rehearing. On preliminary examination, we granted his petition for certiorari in which he alleges that the decision of the Court of Criminal Appeals conflicts with Lambert v. State, 208 Ala. 42, 93 So. 708 (1922);

The portion of the record in which the defendant alleges error is as follows:

“THE COURT: All right. Make your opening statements to the jury.
“MR. ROBINSON [The District Attorney]: You are fixing to hear a case about the Defendant selling marijuana—
“MR. NASH: We object, Your Honor.
“MR. ROBINSON: Judge, this is an— Let’s have this off the record. “(Whereupon, there was an off the record discussion at the bench between counsel for the respective parties, and the Court, out of the hearing of the Court Reporter, after which, the following occurred:)
(I 4s * *
“(Whereupon, the Jury was excused for the noon recess.)
U * X X
“THE COURT: I will sustain the objection at this time.
“MR. NASH: ... We move that there be a mistrial granted in this case in that the Jury now sitting in this case has been prejudiced after being paneled and the opening statement being made by the District Attorney in which the District Attorney has alleged, or read to the Jury from the prior indictment, that the Defendant was charged with a different offense for which he is being tried here, namely the offense of selling marijuana, which is a different charge, different indictment.
“We further base our grounds for a mistrial upon the fact that it would show to the Jury that there are other indictments, which are clearly inadmissible and prejudicial to the rights of this Defendant in this case.
<< X * X

“THE COURT: ... I will overrule the motion for a mistrial.”

The Court of Criminal Appeals declined to reach the merits of the defendant’s appeal because “no ruling is presented for review.”

The pertinent portion of the Court of Criminal Appeals’ opinion states:

“The rule covering this situation is well set forth in an opinion of the Supreme Court of Alabama in Lambert v. State, 208 Ala. 42, 93 So. 708, wherein it is pointed out that where counsel for the appellant merely objects to the argument, and such objection is sustained, and counsel did not request the court to instruct the jury to disregard such argument, or to invoke a further ruling by the court on such argument in the presence of the jury, and on the record, then no ruling is presented for reviéw on appeal by such objections. Woodard v. State, 34 Ala. App. 391, 40 So.2d 737; Veith v. State, 48 Ala.App. 688, 267 So.2d 480, and authorities therein cited.”

The Court of Criminal Appeals based its decision upon the defendant’s failure to move to exclude the prejudicial statement or to request the trial Court to instruct the jury to disregard it. This is a misconstruction of Lambert and overlooks the fact that the defendant did move for a mistrial on the record. Lambert is inappo-site to the instant case because, in Lambert, the defendant did not invoke any ruling of the trial Court from which an appeal could be taken. There, the defendant’s objection was sustained. He received a favorable ruling on the only action requested. Thus, there was no adverse ruling upon which error can be predicated. In the instant case, the defendant’s motion for a mistrial based upon the prosecutor’s opening statement was overruled — a ruling adverse to the defendant.

The denial of a motion for mistrial is a reviewable ruling. (See Ala.Digest, Criminal Law @=867.) There is no requirement that the motion be made in front of the jury, and at least one case has affirmed a denial of a motion for mistrial on the ground that it came too late where the defendant’s attorney waited until the jury was in the courtroom. Clark v. State, 280 Ala. 493, 195 So.2d 786 (1967).

Furthermore, it should be noted that a requirement that the defendant requests the Court to instruct the jury to disregard the prosecutor’s statement could be construed to constitute a waiver of his motion for a mistrial because of the antithesis of the two conflicting requests. The motion for a mistrial proceeds on the premise of the ineradicable nature of the remarks. A request for instructions, on the other hand, concedes that the trial Court, by appropriate charge, may disabuse the jurors’ minds of any prejudicial effect of such statements and allow the defendant to receive a fair trial. It is at least arguable that unless alternatively made, or so separated by time as to constitute separate motions, a request for the latter (instruction to disregard) could be said to waive the former (motion for mistrial).

Because of our limited scope of review, we express no opinion upon the merits of the defendant’s motion for mistrial in this case; only that the issue cannot be avoided on the basis on Lambert. We remand this case to the Court of Criminal Appeals to decide whether the defendant’s motion for mistrial was properly overruled.

REVERSED AND REMANDED.

HEFLIN C. J., and MADDOX, FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.

      . Certain omitted portions of the record, not re essential to our review, are contained in the opinion of the Court of Criminal Appeals.


text:
    John STENNETT v. STATE.
    6 Div. 84.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.

      Hugh A. Nash, Oneonta, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Judge.

During the opening statement to the jury, the State’s attorney made the following statement:

“THE COURT: All right. Make your opening statements to the jury.
“MR. ROBINSON: You are fixing to hear a case about the Defendant selling marijuana—
“MR. NASH: We object, Your Honor.”

This was followed by a motion for a mistrial by defense counsel, which was overruled by the trial court.

.Mindful of our obligation under the re-mandment in this cause, we note that here the motion in question is based upon the premise of the ineradicable nature of the remarks.

While it could be argued that such comment was an inadvertence on the part of the State’s attorney, yet here we have no clarifying instructions by the trial judge to the jurors. An example of where instructions to disregard such argument were given and an inquiry made, could the jurors “cast such comment out of their minds,” may be found in this Court’s opinion in Adair v. State, 51 Ala.App. 651, 288 So.2d 187.

In Adair, this Court determined such to be harmless beyond a reasonable doubt, in light of the trial judge’s actions.

The reference above shown to another pending case against this appellant is clearly prejudicial.

Moreover this record fails to show any such clarifying instructions or a polling of the jury, hence, we believe such remark falls within that line of cases which deem such comment ineradicable, and therefore prejudicial error. Watts v. Espy, 211 Ala. 502, 101 So. 106; Stain v. State, 273 Ala. 262, 138 So.2d 703; Bozeman v. State, 25 Ala.App. 281, 145 So. 165; Renfroe v. State, 49 Ala.App. 713, 275 So.2d 692, and authorities therein cited.

It therefore follows that this cause is due to be and the same is hereby

REVERSED AND REMANDED.

CATES, P. J., and DeCARLO and BOOK-OUT, JJ., concur.

HARRIS, J., concurs in the result.


text:
    In re John STENNETT v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2149.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    William J. Baxley, Atty. Gen. and Jack Curtis, Asst. Atty. Gen., for petitioner, the State.
    No appearance for respondent.
   SHORES, Justice.

Petition of the State by its Atty. Gen. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Stennett v. State of Ala., 340 So.2d 67.

WRIT DENIED.

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


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

text:
    Willie James WRIGHT, alias, v. STATE.
    3 Div. 418.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.
    Rehearing Denied March 16, 1976.
    William J. Fuller, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., Montgomery, for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-Defendant, an indigent below and here, was indicted for carnally knowing, or abusing in an attempt to carnally know, a girl under twelve years of age. The jury, on defendant’s plea of not guilty, and not guilty by reason of insanity, found him guilty and fixed punishment at life imprisonment. The same appointed counsel represented defendant below and represents him here.

We do not think it necessary to parade in this opinion any of the brutal facts concerning the alleged attack. Suffice it to say, the evidence for defendant, including his own, was largely addressed to defendant’s plea of not guilty by reason of insanity. The State’s evidence tended to show that defendant committed the offense after picking the victim up in his automobile while she was on a sidewalk, and taking her to an isolated area. The controverted issue centered around defendant’s sanity vel non at the time, and when he made an alleged confession to the officers.

I

Be that as it may, one contention of error is the form and substance of the jury’s verdict, which reads:

“We the jury find the defendant guilty and fix punishment at life in the penitentiary.”

An asserted ground in defendant’s motion for a new trial, which was overruled, is that neither the verdict nor the judgment entry specified “What the defendant was found guilty of, and therefore void, as a matter of law . . . .”

We are not in accord with this insistence as here argued. Justice Brickell, speaking for the Supreme Court in Blount v. State, 49 Ala. 381(2), observed:

“The verdict was responsive to the issue, ascertained and declared the guilt of the appellants, and authorized the judgment rendered. That the words ‘as charged in the bill of indictment,’ or words of similar import, are not added to the finding of guilty, does not render the verdict incomplete. The law supplied them by referring the finding to the indictment, and the offence therein charged. State v. Jones, 5 Ala. 666.”

Likewise, this Court held in Baldwin v. State, 27 Ala.App. 259, 170 So. 349(2), that a verdict finding the defendant guilty and fixing his punishment at ten years imprisonment in the State penitentiary was amply definite.

II

It appears from the evidence that defendant, while under arrest and in custody, and after Miranda warnings were given by a police officer, so the officer testified, signed a voluntary confession of the alleged crime.

There was considerable testimony supporting the plea of insanity, which embraced that phase where an accused, although knowing right from wrong, is not legally responsible if mental disease destroys power to choose and alone causes crime. Boyle v. State, 229 Ala. 212, 154 So. 575.

We have held that the duty rests in the first instance on the trial court to determine whether a confession is voluntary. McNair v. State, 50 Ala.App. 465, 280 So.2d 171(4), cert. denied 291 Ala. 789, 280 So.2d 177; Wallace v. State, 290 Ala. 201, 275 So.2d 634.

We now hold that the Miranda rights, as appear in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 are so interwoven with and predicatory to admission in evidence of a confession that the trial court should have first determined that this defendant did knowingly and intelligently waive his right to remain silent. The interrogations conducted by the law enforcement officers, while defendant was under arrest, had the impact on him of continuous periods of questioning. In fact the questioning continued at intervals for a period of two days, during which time the defendant cried.

III

We further observe from the testimony of Officer Clifford L. King that after he gave defendant the Miranda warnings, the defendant said he wanted to talk with a lawyer; that “We” called Lawyer Cameron, and defendant talked with him over the phone; that the defendant said the lawyer told him to tell the truth; that he (defendant) signed the rights form, and two days later signed the statement.

Thus, it appears that defendant expressed a desire for an attorney, but was accorded only the privilege of talking with one over the phone—about as satisfactory and protective as a lawyer striking a jury over the phone, or a doctor diagnosing a physical ailment over the phone.

At any rate, the officer, in further interrogating the defendant two days later, did not comply with the mandates of Miranda, which hold, and we quote:

“. . .If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” [384 U.S. 436, at page 474, 86 S.Ct. 1602, at page 1628, 16 L.Ed.2d 694, at page 723]

Under the circumstances, the trial court committed reversible error in admitting the confession in evidence over defendant’s objection. The trial court was informed in camera that defendant wanted an attorney and none was present when the confession was obtained. The confession should have been suppressed. We again note that defendant was an indigent.

IV

We also think the Court committed reversible error in granting the State’s motion to exclude the public from the courtroom during the trial of the case. The trial court assumed, and the defendant’s counsel expressed agreement, that he had the discretionary right to grant the motion. In so doing, the court denied defendant a public trial under our State and Federal Constitutions. Section 6, Constitution of Alabama (1901) provides that “in all criminal prosecutions, the accused has a right to . a speedy, public trial.”

This provision has been construed in Reynolds v. State, 41 Ala.App. 202, 126 So.2d 497. This case has application to the instant exclusion. The defendant was denied his constitutional right to a public trial. The denial is not cured by the fact that the trial judge and counsel for defendant were mistaken in this conception that the law gave the court discretion to effect the exclusion.

The judgment is reversed and the cause remanded.

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

We reverse and remand the judgment addendum.

REVERSED AND REMANDED.

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

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting).

Under the facts and circumstances of this case, I would affirm this conviction.

I

The waiver of the presence of counsel by appellant was clear. An evidentiary hearing was held out of the jury’s presence to determine the voluntariness of the confession. At its conclusion, the trial judge found the evidence sufficient to show that the admission in question was freely given by the appellant.

The record showed the appellant was arrested at approximately 5:30 P. M., on August 13, 1974, and was brought to jail. He was advised of his constitutional rights by Officer King, who read them to him from a “Miranda Card.”

On being informed of these rights, appellant asked to speak to his lawyer, George Cameron. At that point, the officers contacted Mr. Cameron.

Prom the record:

“Q. (By Mr. Thomas) Did he ask for a lawyer?
“A. The day this was signed and read or the day that we picked him up and it happened?
“Q. The day you picked him up and it happened?
“A. He did. He wanted to talk to a lawyer that day.
“Q. Now, did you all contact his lawyer?
“A. We did.
“Q. Who was that?
“A. Mr. George Cameron.
“Q. Did he talk with his lawyer?
“A. Let him talk to the lawyer, himself.
“Q. What, if anything, did he say after he got through talking with Mr. George Cameron?
“A. He said Mr. George Cameron—
“MR. FULLER: (Interrupting) Excuse me—
“MR. THOMAS: (Interrupting) This is what the defendant said.
“MR. PULLER: Oh; all right.
“Q. What did he say?
“A. The defendant said Mr. Cameron told him to tell the truth.
“Q. And told him to talk with you all?
“A. (Nods head affirmatively).”

Here this man was afforded the right to confer with his own counsel and only after he talked with his attorney was any interview conducted. As is shown from the record, the appellant acted on the advice of his counsel when he made the incriminating statement.

The statement made to the police was two pages in length and was signed at the bottom of each page by the appellant. Near the middle of the last page, the appellant initialled a correction. It was dated August 15, 1973, and indicated a time of 12:05 P. M.

In addition to the written confession, appellant also executed a written statement delineating his constitutional rights. Included in this statement of rights was the admonition concerning the right to confer with, presence of, and appointment of counsel.

Also, in the confession proper, at the very beginning, we find that appellant again was apprised of his right to counsel in this language:

“STATE’S EXHIBIT 5
“I, Willie James Wright, hereby make the following statement to Det. G. J. Vail-lancourt & Sgt. C. L. King who I know as police officers of the City of Montgomery. I have been advised of my rights and I know that I may have an attorney present if I wish and if I cannot afford to hire one the court will appoint one for me. I make this statement of my own free with (sic) and no threats or promises have been made to me. . . . ”

Prom the time of this man’s arrest until the time the statement was executed, approximately 43 hours elapsed. Nothing in the record indicates that the statement was the product of an uninterrupted period of continuous questioning. On the contrary, the record reflects the following in Officer King’s testimony:

“Q. . . . And how long did you observe him?
“A. I stayed with him approximately— well, near about two days.
“Q. Yes, sir. Now, during that time— “A. (Interrupting) Off and on, we took him—
“Q. (Interrupting) Sir?
“A. Off and on for two days, we would take him out and when he got tired of talking, he didn’t want to talk to us, we would take him back.”

No evidence was presented that made it appear appellant was refused access to his family, friends or counsel, or that he had been physically abused and not given food or drink.

At no time after the initial “Miranda Warning” on August 13, 1974, and his telephone conversation with Cameron, did appellant ever request counsel. As can be seen from the foregoing, he was in fact, made aware of this right to presence of counsel at two other instances.

Miranda, supra, says a man has a right to confer with his attorney and have him present during questioning. It does not say that after he has talked to his attorney, he cannot then make a valid waiver of counsel.

The appellant at bar was not a first offender. He had been convicted and sentenced on two prior occasions for similar offenses. His only request was to speak to his attorney, which was granted, and not to have him present. In my judgment, a voluntary waiver of right to counsel was shown, and the confession was properly admitted.

II

I now turn to the point of error that the appellant was denied a public trial.

The record indicates that the court stated it would exercise its discretion to “clear the court.” Whether it was within the court’s discretion seems to be resolved by the apparent emasculation of the pertinent statute through the adoption of the Judicial Article, supra.

Even so, the mere statement that the courtroom was to be cleared, is not sufficient. In Washburn v. State, 42 Ala.App. 7, 150 So.2d 398, Judge Cates writing for this court, acknowledged there must be a “showing” that the public was excluded.

This is shown in the following language from Washburn, supra:

“ ‘. . . [I]t is said that to show that the judge below denied a public trial as demanded by Constitution 1901, § 6, there must be some ‘showing’ that ‘the public construed the language used by the trial judge as requiring them to leave or that the public did leave after the trial judge made his statement.’ ”

Without some indication that on-lookers did in fact leave after the judge’s announcement, it cannot be successfully contended that appellant was denied a public trial.

For the foregoing reasons, I respectfully dissent.

ON REHEARING

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Deputy District Attorney Thomas, prosecuting for the State, commented to the trial court that the facts were repulsive and the alleged victim was eight years old. He asked the court to strongly consider whether or not the courtroom should be cleared. The judge then asked Mr. Fuller, defendant’s attorney, if he had any objections. He replied: “Your Honor, I believe it is within the Court’s discretion, in any case. . After a short discussion about certain witnesses being excused from the rule, the Deputy Solicitor again observed, “. we would request that the courtroom be cleared. The court then stated: “I am going to exercise my discretion in favor of the State, Mr. Fuller, and clear the courtroom.” Thus, it appears that the motion of the State was granted.

The State contends, in its application for rehearing now under consideration, that there is no notation in the record that any exclusion of the public actually took place; that the instant opinion of this Court is in direct conflict with Washburn v. State, 42 Ala.App. 7, 150 So.2d 398, quoting therefrom as follows:

“In Lang v. State, 271 Ala. 1, 122 So.2d 533, it is said that to show that the judge below denied a public trial as demanded by Constitution 1901, § 6, there must be some ‘showing’ that ‘the public construed the language used by the trial judge as requiring them to leave or that the public did leave after the trial judge made his statement.’ (Italics added.) On the record before us, we do not need to decide whether Washburn purported to waive a public trial. Cf. interpretation of Alabama cases in 23 C.J.S. Criminal Law § 963(8), to effect that an accused may not waive public trial.”

Thus it appears in Lang that there must be a “showing” that the public was impressed by the court’s language that they were required to leave or that the public did leave — they had no option. There is not before us in this case any language used by the court that the public could misconstrue, as in Lang, or that they were given the option to remain or go — permissive language. The record is silent as to how the court went about executing the motion that it granted. In other words, so far as the record shows, the court did not use language that tended to create confusion as to what the court intended. If the record had noted that the public had left after the judge made his statement, then it would appear that the public understood the court mandated them to get out or leave.

But as we have noted, the record before us does not show that the court used any language requiring construction by the audience. The court granted the State’s motion and stated he was going to clear the courtroom. As to how he went about doing it or the mechanics employed to make the clearance is not shown. Suffice to note that he granted the motion and made a positive statement that he would clear the room. This was a ruling not addressed to the public in the courtroom.

We hold that the court, in the absence of anything to the contrary, and no confusing language appearing, performed his duty and cleared the room as he indicated in his ruling he would do. We are unwilling to hold that the court was derelict in performing his duty. There is nothing in the record to indicate such dereliction, or confusion on the part of the public as in Washburn and Lang, supra. A presumption, nothing appearing to the contrary, obtains that the court performed its duty.

OPINION EXTENDED, APPLICATION OVERRULED.

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

DECARLO and BOOKOUT, JJ., dissent.

      . Former § 169, Constitution 1901, which authorized exclusion of the public from the court room in cases of rape and assault with intent to ravish is hence no longer in our constitution as a modification of § 6—public trials. Amendment 328 repealed all of Article VI of the Constitution 1901 and substituted §§ 6.01-6.21, inclusive for former Article VI (§§ 139-172) and Amendments 317 and 323.