author: BOOKOUT, Judge.

text:
    Curtis Barry BARBOSA v. STATE.
    4 Div. 433.
    Court of Criminal Appeals of Alabama.
    April 4, 1976.
    Douglas M. Bates, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Possession of marijuana for other than personal use; sentence: five years and a fine of $500.00.

The sole question on appeal concerns the search of the appellant’s automobile. From the record, it appears that officers, armed with a warrant to search the apartment where appellant lived, also searched his automobile which was parked adjacent to the apartment building. No controlled substances were found in the apartment, but a brown paper sack was found under the seat of the appellant’s car which contained fourteen “lids” of marijuana.

Appellant filed a motion to suppress the marijuana on the ground that the warrant to search the apartment did not encompass the automobile.

Hearing on the motion to suppress was held immediately prior to the trial of the case. No sworn testimony from witnesses and no evidence was presented during the hearing on the motion. The entire hearing consisted of argument by opposing counsel concerning the search of the automobile. Neither the warrant, nor the supporting affidavit were introduced during the suppression hearing, nor during the trial and neither appears in the record. At the end of argument on the motion, the trial court overruled the motion stating, “I have heard no evidence. No evidence has been presented as to how this search was made.”

Trial on the merits began immediately after the trial court overruled the motion to suppress. Officers Charles Blount and James R. McCord testified as to the search of the apartment and of appellant’s automobile. Melinda Long of the State Toxicology Lab testified after the defense stipulated as to her qualifications. She identified the substance removed from appellant’s car as being marijuana. No motion was made to exclude the testimony of any of the State’s witnesses.

The appellant testified in his own behalf. He testified that he accompanied the officers to the car and that they found a brown paper bag containing fourteen bags of marijuana which was placed partially under the front passenger seat of his automobile. Appellant testified that the marijuana did not belong to him, but that it belonged to James Lawrence. He said that he did not know that it was in his car until Lawrence told him that he had put the marijuana there shortly before the police arrived.

The State contends that the warrant to search the apartment would include the automobile, as it was parked within the curtilage. Since the warrant appears nowhere in the record, and was introduced by neither the State nor the defense, we are unable to declare what the warrant encompassed. The illegality of the search and seizure, even if it had been properly presented in the trial court and on appeal, would be no basis for a reversal under the circumstances of the instant case.

The appellant did not deny that the marijuana was in his automobile, but he did deny any proprietory or possessory interest in the marijuana. He emphatically stated that the marijuana was not his and that it belonged to James Lawrence. To quote from Justice Merrill in Guenther v. State, 282 Ala. 620, 623, 213 So.2d 679, 682 (1968):

“Appellant contends that the evidence . was inadmissible because it was the result of an illegal search and seizure.
“The answer to this contention is that the right to protection against an unlawful search is personal, and a defendant in a criminal case who denied any proprietory or possessory interest in seized property has no standing to object to the method of seizure. Aldridge v. State, 278 Ala. 470, 179 So.2d 51, and federal cases there cited.”

A similar holding is found in Baldwin v. State, 282 Ala. 653, 213 So.2d 819 (1968), and in Jones v. State, 49 Ala.App. 438, 441, 272 So.2d 910 (1973).

Pursuant to the above cited authorities, the appellant had no standing to object to the search and therefore the trial court committed no error in overruling the motion to exclude.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


source: Caselaw Access Project

author: HARRIS, J.

license: Public Domain

text:
    William Henry DAVIS v. STATE.
    8 Div. 475.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Ralph E. Slate, Decatur, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, J.

Appellant was convicted of manslaughter in the first degree and sentenced to ten years imprisonment in the penitentiary. At arraignment and trial he was represented by retained counsel who represents him on this appeal. He pleaded not guilty. After sentence was imposed he gave notice of appeal and his sentence was suspended pending appeal and bond was set at $10,-000.00.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment William Henry. Dayis, whose name is to the Grand Jury otherwise unknown, unlawfully and with malice aforethought killed Mildred Davis by beating her with his fists, or by stomping or kicking her with his feet, or by striking her with a blunt instrument a more accurate description of said instrument being to the Grand Jury unknown, or by some other means to the Grand Jury unknown, but without premeditation or deliberation, against the peace and dignity of the State of Alabama.”

Appellant and the deceased had been married for more than 20 years and two sons were born as a result of this marriage —Tim Davis, 9 years of age, and Tony Davis, 13 years of age. Appellant was 38 years of age at the time of his trial. The deceased was 47 years of age at the time of her death on August 16, 1972. She had a son by a previous marriage—Grady Dollar—who was 30 years of age at the time of appellant’s trial. Their marriage was fraught with difficulties and personal problems leading to quarrels and fights and many calls to the Police -Department. They both drank alcoholic beverages and after her death, the officers found 34 empty beer cans in the home.

Mr. Vann Pruitt, Assistant State Toxicologist, performed an autopsy on the body of Mrs. Davis on August 19, 1972, and his qualifications were admitted by the defense. According to Pruitt he found on the external examination that both eyes were markedly discolored or bruised and swollen and there was a bruise on the forehead. He found three areas that were extremely dark bruises, almost bluish black in color, in the area of the left breast and a reddish purple bruise on the back of the left shoulder. There were four distinct bruises, each measuring one inch in width and three inches in length about the left back of the body. He stated that palpation of the head indicated marked swelling on the top and back portion, and there were multiple contusions across the back of the hands and about the forearms. He noted multiple bruises about both upper legs.

The internal examination of the underside of the scalp revealed extensive evidence of hemorrhage about the entire area of the underside of the scalp, but the major focus and swelling seemed to be at the very back or the occipital area. Upon making entry into the cranial cavity, Pruitt found massive hemorrhage within the in-tracranial cavity, that is the space between the skull and brain, there was a partial laceration of the right cerebral peduncle. He also found numerous pinpoint hemorrhages throughout the temporal lobes or hemorrhages in the uppermost portions of the brain proper. Pruitt was asked his opinion as to the cause of death and stated:

“It was a result of subdural and hemorrhage or as a result of the trauma sustained to her body.”

Pruitt further testified that the injuries sustained by the deceased were not necessarily the result of a fall and that this occurred in a short period of time prior to death—maybe hours—less than 24 hours.

Robert Clark, a Police Officer of the City of Decatur, testified that he was called to appellant’s home on the night of August 13, 1972, around 8:50 and had a conversation with the deceased in the presence of appellant and she told the officer that her husband had beaten her up. He stated that Mrs. Davis appeared to have been beaten and that both of her eyes were black and swollen and she had bruises on her arm. He said appellant had been drinking and appeared to be under the influence of alcohol. He could not say at that time if Mrs. Davis was drinking as she was in bed.

The officer further testified that later that night the Police Department got another call to go back to appellant’s home but he did not answer this call. The call was taken by Officer Joe Anders.

Police Officer Mike Harvey testified that he was called to appellant’s home on August 12, 1972, that actually it was 12:02 a. m. which would be August 13th. He stated that Mrs. Davis complained in the defendant’s presence that he had beaten her and she had some bruises and small cuts on her head. He and his partner tried to get her to go to the hospital but she refused at that time. He said another man and woman were present and all appeared to be drinking but that the defendant appeared to be more intoxicated than Mrs. Davis.

Police Officer Joe Anders testified that he went to appellant’s house on August 13, 1972, between 9:00 and 10:00 p. m. He observed Mrs. Davis and both of her eyes were swollen shut and it was obvious that she had had a pretty good beating. They called for an ambulance and took her to Decatur General Hospital Emergency Room. Appellant was highly intoxicated and was cursing the ambulance attendant and making a nuisance of himself. The officer placed him under arrest for disorderly conduct. He gave appellant the Miranda rights and he asked him what happened. Appellant told him his wife had fallen in the bathroom but when they picked her up to take her to the ambulance she was either in the hall or right in the door to the bathroom. The officer continued to question appellant and he admitted he might have hit her or slapped her two or three times, but he didn’t mean to go that far. He further stated that some other police unit carried appellant to the City jail.

Grady Dollar, son of the deceased by a previous marriage, testified that he came to the Davis’ home on August 12, 1972, repaid them $80.00, had two beers with them and took the two boys to spend the night with him. He said he next talked to his mother Saturday evening and that she was drinking but was not intoxicated. That he next saw her the following evening when he picked her up at the hospital. That her eyes were black and she had bruises all over her. That he took her home with him that night and to her home the next morning as she wanted to see her boys. He further testified that on Monday afternoon when he got off work he called to see about his mother and appellant answered the phone. He asked appellant how his mother was feeling and was told she was all right. He stated that later that evening appellant called him and said his mother was lying on the floor and had been for two or three hours and had not moved or said anything and asked Dollar if he thought he should call an ambulance. He told appellant to call an ambulance at once and get her to the hospital, that something bad might be wrong with her and she might be dying.

Dollar further testified that the Decatur Hospital called him and said they were going to carry his mother to Huntsville, that this was Tuesday night and she died Wednesday evening.

Dr. Byre F. Sibrams testified that he examined Mrs. Mildred Davis on August 15, 1972, in the emergency room at Decatur General Hospital and that she was unconscious, that she had multiple bruises and abrasions on her face, left arm and left breast. That the left pupil dilated, indicating a probable subdural hematoma and he made arrangements to transfer her to Dr. Bell, a neurosurgeon, at the Huntsville Hospital.

James Adkins testified that he took an ambulance to appellant’s home on the night of August 13, 1972, around 9:00 p. m. and picked up Mrs. Davis and carried her to Decatur General Hospital. That appellant rode in the front seat with him and there was an attendant in the back with Mrs. Davis. That en route to the hospital Mrs. Davis called appellant a SOB and said he was going to pay for what he had done to her and that appellant turned around and told her to shut up. He further testified that he went back to the same residence on August IS, 1972, and took Mrs. Davis back to Decatur General Hospital and then carried her to Huntsville to the hospital there.

This witness further testified that on August 13, 1972, Mrs. Davis was lying on the floor in the hallway. That when he went back on August IS, she was in bed and she was unconscious.

David Reed, Police Officer with the City of Decatur, testified that on the night of August 16, 1972, he saw appellant at the Huntsville Hospital and placed him under arrest on the charge of assault with intent to murder. He said appellant was taken from a small sitting room in the hospital and put in an automobile where Detective Ward read him the Miranda rights and warnings from a printed card. Appellant stated that he understood his rights. That appellant was not threatened or coerced to get him to make a statement, nor were any promises or other inducements made to him and he was offered no rewards of any kind. According to Officer Reed appellant told them that he may have slapped his wife on the shoulder and that he might have slapped her on the side of her face.

Appellant gave Lt. E. C. Bowman, Police Officers Doyle Ward and David Reed written permission to search his home. Ward and Reed conducted the search and removed from appellant’s home a claw hammer, a pair of pants, a telephone directory, an undershirt, two bedsheets and a pillowcase. These items were taken to the Toxicology Department in Huntsville for examination.

It was stipulated by the defense and the prosecution that human blood of Group AB was found on the undershirt of appellant and on the bed sheet and the blood of the deceased was Group AB. The claw hammer and the pair of pants contained no human blood. The other items contained human blood but the type was not determined.

Officer Reed took photographs of the interior of the house which were introduced in 'evidence without objections. He described bloodstains on the floor, on the bottom frame of the door, and a wash rag in the bathroom.

Mr. Harry Collier testified that he rented a house to the Davis family and that he went there the day before Mrs. Davis died. He found a broken tank on the commode and replaced it. He said appellant told him that he raised the lid up and it fell apart and broke.

The two young sons of the deceased testified for their father. They both stated that they heard their mother fall in the hall and their father called the ambulance. They went to where their mother was on the floor and their father was standing over her. They further stated they were not in the house all the time and did not know what happened when they were not present.

Appellant testified in his behalf. He stated, he and his wife drank beer and at the same time she was taking medicine. He said she fell on the coffee table and broke all the legs and she fell in the bathroom. He claimed he looked after his wife the way a loving husband should. That he stayed off from work from the first time she fell until she passed away.

On cross-examination he denied that he hit, shoved, pushed or slapped his wife at any time from Saturday, August 12, 1972, until the time she was carried to the hospital on August IS, and died the next day. He denied that he had ever hit or slapped his wife but admitted when they were in the ambulance going to the hospital the first time, his wife called him an SOB for what he had done to her. He denied telling Officer Joe Anders that he might have hit and slapped her but he didn’t mean to go that far. Upon being further pressed about his wife telling the officers that he beat her he finally admitted that he slapped her. In his own words, “Well, just like I said, the first time she fell that night and then later I slapped her because she was cussing me.”

He further stated that his wife killed herself by stumbling and staggering and falling around the house. He was asked if his sister, Louise Coliman, didn’t tell the police officers in his presence that he had beat his wife and he replied, “I will say that I didn’t hear it.”

Appellant further denied that when Grady Dollar called to ask about his mother he told him that she had been lying on the floor for two. or three hours and had not moved. He said that was Dollar’s statement—not his.

On rebuttal the State called Police Officer Mike Harvey who testified that he went to the home of the defendant and the deceased on August 12, 1972, right before midnight and between 1:00 and 2:00 a. m., on August 13, 1972, in the presence of the defendant and his wife, appellant’s sister, Louise Coliman, made the statement that appellant and his wife had a fight earlier in the evening, before they arrived, and that appellant beat his wife.

There was no motion to exclude the State’s evidence on the ground the State failed to make out a prima facie case. There was a request for the affirmative charge which was refused. A motion for a new trial was made and it was overruled and denied.

In a prosecution for murder it is permissible for the State to prove that the defendant entertained feelings of hostility toward the deceased, and for this purpose, the fact, but not the details or particulars, of recent former difficulties may be shown. Jones v. State, 17 Ala.App. 394, 85 So. 830.

In Judge McElroy’s “Law of Evidence in Alabama, 2nd Ed. Vol. 1, page 107” it is stated:

“In a series of opinions by the Court of Appeals, written by Judge Hárwood, and apparently approved by the Supreme Court’s denial of certiorari, the rule now seems to be established that the extent to which the facts (whether called details or some other name) of a former difficulty may be proved is committed in measurable degree to the discretion of the trial court.” (Citing cases)

In this case the details of former difficulties between appellant and his deceased wife were limited to the bare fact that appellant had beat his wife, (a fact which he admitted) and the details thereof were not shown. Appellant’s counsel withdrew his objections to the events which began on Saturday, August 12, to August 15, 1972, when she was transferred from the hospital in Decatur to the hospital in Huntsville where she remained unconscious until her death on the evening of August 16, 1972.

The acts, declarations, and demeanor of an accused, before or after the offense, whether a part of the res gestae or not, are admissible against him, but unless a part of the res gestae are not admissible for him. Smarr v. State, 260 Ala. 30, 68 So.2d 6; Espey v. State, 270 Ala. 669, 120 So.2d 904.

If there is a reasonable inference to prove the existence of the corpus delicti, the Court should submit to the jury for consideration the question of the sufficiency and the weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296.

Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer the crime has been committed, the question must be submitted to the jury, and other evidence tending to implicate the defendant is thereby rendered admissible. Johnson v. State, 247 Ala. 271, 24 So.2d 17; Phillips v. State, 248 Ala. 510, 28 So.2d 542; Harnage v. State, 49 Ala.App. 563, 274 So.2d 333.

Incriminating statements made to officers in the presence of the defendant are not inadmissible as being hearsay. Hall v. State, 11 Ala.App. 95, 65 So. 427; Payne v. State, 261 Ala. 397, 74 So.2d 630.

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

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

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


author: TYSON, Judge.

text:
    Herman ASKEW v. STATE.
    5 Div. 320.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.

      James T. Gulláge, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the second degree murder of Alvin M. Caden-head, “by stabbing him with a knife.” The jury found the appellant guilty of manslaughter in the first degree and' the trial court pronounced judgment setting sentence at three years imprisonment. Prior to trial the appellant had requested Youthful Offender Treatment and following a hearing and explanation of appellant’s rights, this was denied.

This cause arose from a homicide which occurred on June 21, 1975, at the Polka Inn on Alabama Highway 14 in Lee County, Alabama. The State’s evidence established that the appellant and the deceased were in the Polka Inn, that the appellant was seated when the deceased Alvin M. Cadenhead came over to the table and took a sip of wine from a bottle which belonged to the appellant. The appellant told the deceased, “Don’t be drinking out of the wine. If you want some, ask for some.” The appellant then got up and went to another part of the club near the bar. A few minutes later the appellant came back near the table and a fight ensued. The appellant was much smaller than the deceased and appellant without dispute asked one Barbara Lockhart for a fingernail file, but instead she gave the appellant a knife. The tenor of the State’s evidence is to the effect that the two men began “swinging at each other, the appellant with knife in hand was cutting at or stabbing at the deceased.” The employees at the Polka Inn stopped the affray and escorted the two men outside. The deceased lay on a bench outside the club and the appellant remained there until the deceased was carried to the hospital where he died en route.

The cause of death was determined to be hemorrhage and shock as a result of a stab wound to the right groin. The knife used by the appellant was placed in evidence and there was evidence of other stab wounds on the person of the deceased.

The appellant contended that he was acting in self defense because of the relative size of the parties, 130 pounds versus 200 odd pounds.

I

Appellant contends the trial court committed error in its ruling on Record Page 130-131, when the trial court refused to allow appellant to testify in response to the question, “Do you know of your own knowledge whether or not the deceased, Alvin Cadenhead, usually carried a knife prior to June 21 ?” The trial court at this point permitted voir dire by the District Attorney which showed that “on one Saturday night the appellant had seen the deceased with a knife.” Since this is the only evidence offered as to the appellant’s alleged knowledge of whether or not the deceased was armed, we cannot say that error here occurred. There simply was insufficient proof presented as to the alleged habit of the deceased for carrying a weapon. Jackson v. State, 147 Ala. 699, 41 So. 178. The trial court’s ruling in this respect is fully supported by the cases. Nicholson v. State, 22 Ala.App. 635, 118 So. 814; Frasier v. State, 48 Ala.App. 210, 263 So.2d 511, cert. denied, 288 Ala. 743, 263 So.2d 516.

II

Appellant next contends the trial court erred in not charging the jury on the elements of involuntary or second degree manslaughter. We believe the law in this respect to be well set forth in the opinion of Mr. Justice Stakely in Williams v. State, 251 Ala. 397, 39 So.2d 37, wherein he quoted with approval from Smith v. State, 243 Ala. 254, 11 So.2d 471, as follows :

“ ‘It has long been the settled law of the state that where the evidence shows that the blow which produced death was with a deadly weapon intentionally aimed at the person slain, the homicide, if not excusable on the gound of self-defense, is either murder or manslaughter in the first degree. The law in respect to manslaughter in the second degree is not applicable in such case.’ ”

Further from Smith v. State, supra:

“An actual intent to take life is not an essential element of manslaughter in the first degree. The voluntary setting in motion or application of unlawful force, whereby death ensues, suffices to supply the legal element of evil intent, however free the action may be from actual purpose to kill.”

We are clear to the conclusion that under the evidence in this cause the trial court here properly declined to charge on manslaughter in the second degree. Title 14, Section 320, Code of Alabama 1940. King v. State, 48 Ala.App. 154, 262 So.2d 764, cert. denied 288 Ala. 744, 262 So.2d 767, cert. denied 409 U.S. 986, 93 S.Ct. 339, 34 L.Ed.2d 252.

III

We have carefully examined the trial court’s oral charge including its charge on self-defense and the seven given written charges which were requested by the appellant. As to the refused written charges, we have examined each of these, and find that they were either covered by the trial court’s oral charge or the given charges, or were abstract, or were affirmative in nature under the evidence in this case, or incorrect principles of law, hence, their refusals were proper. Title 7, Section 273, Code of Alabama 1940.

The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.


author: HARRIS, Judge.

text:
    George BROWN v. STATE.
    5 Div. 331.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.

      James R. Bowles, Tallassee, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the second degree, and the jury fixed his punishment at 35 years in the penitentiary. The sentence was in accordance with the verdict of the jury. At arraignment and trial he was represented by court-appointed counsel. He pleaded not guilty and not guilty by reason of insanity. He gave notice of appeal and was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The evidence for the State was circumstantial and was put to the jury on circumstantial evidence. There were no eye witnesses to this killing. Appellant did not testify but offered some evidence tending to establish an alibi.

Around 6:00 a.m., on August 31, 1975, the body of a Negro woman, Cora Askew, was found on the side of the Ashurst Bar Road just off Highway 49 in East Tallas-see, south of the city of Carrville, Talla-poosa County, Alabama. She was found by Mr. Thomas Crawford Smith who notified the Carrville Police Department. Mr. Smith drove back to the intersection and waited until the police arrived so that he could guide them to the body of the deceased. He testified that when he got back to the body with Police Officer William Durham, the body was in the same condition as it was when he first observed it.

Mr. Smith further stated that a number of people soon gathered and everyone was trying to get an identification of the woman. Prior to this time Mr. Smith did not know appellant but he came to the scene a little later that morning and said he knew the woman. He identified her as Cora Askew.

Officer William Durham of the Carr-ville Police Department testified that he was familiar with the Ashurst Bar Road and that he was on routine patrol on the morning of August 31, 1975, and got a radio call to go to the place where the body was found. He said the body was a black female with her head in the ditch with her feet facing the pavement on the side of the Ashurst Bar Road. He stated he made a casual examination to see if she was dead and there was no form of life at all, pulse, heartbeat, or anything. That he observed blood on her head and face and blood was coming out her right ear and nose. The body was cold. He was present when Chief Ray Sides arrived and the body had not been moved when the Chief got there.

This witness further testified that he did not know appellant but that he drove up in a 1973 green Chevrolet with a Fulton County, Georgia tag on it. That appellant stopped his car and got out and asked the officer if he could look at the body to see if he knew her. He was told to look at the body but not to disturb anything. Appellant observed the body and identified her as Cora Askew and said she was his girl friend. He stated that he and the deceased had been living together in Atlanta, Georgia. Durham stated that one Frankie D. Smith drove appellant’s automobile from the scene to the Carrville Police Department and he followed in his patrol car.

On cross-examination Durham testified that appellant arrived at the scene around 6:30 a.m. and there was another black male in the car with him.

On redirect examination he stated that when appellant arrived the first time, and after he identified the body, he made the statement that he thought he knew who she was with that night. The officer told appellant he was protecting the scene until the proper authorities arrived as it was out of his jurisdiction and he asked appellant to wait until the proper authorities came to the scene and appellant said he would wait. However, appellant left the scene saying he wanted to go and notify the family. The officer asked him again to wait but appellant left anyway. A short time later he returned and waited for the arrival of other officials.

The Chief of Police of Carrville, Alabama, Ray Sides, testified that the radio operator called him at his home and told him that a body had been found on the Ashurst Bar Road and the Deputy down there was not working that morning and asked him to go to the scene until the State officers got there. When the Chief arrived, he saw appellant sitting in his car and asked him his name and where he was from. Officer Durham told the Chief that appellant had informed him that he was a boy friend of the deceased. The Chief asked appellant how long it had been since the deceased came down from Atlanta. About that time Deputy Sheriff Moore arrived and the appellant drove from the scene.

While appellant was gone, another black male, Lawrence Hodnett, drove up and told the officers that the last time they had seen the deceased was at the house with appellant. The officers radioed Tallassee to be on the lookout for him and in a few minutes, appellant came driving back to the scene at which time the Deputy took appellant into custody.

Deputy Sheriff Moore had appellant’s automobile moved to the Carrville Police Department where it was locked in a large storage room behind City Hall and locked the car and the doors to the storage room.

Deputy Sheriff Lewis G. Bowman of Tallapoosa County testified that he met the State Toxicologist at the Carrville Police Department at 2:45 p.m. on August 31, 1975. He stated he unlocked appellant’s car and let the Toxicologist take samples of blood stains and also scrapings from different parts of the automobile. He said he stayed with the Toxicologist until he got through with his examination of the automobile and then he inventoried the car. The inventory, among other things not necessary to set forth, consisted of 14 live rounds of .38 caliber cartridges, five live rounds of .32 caliber Smith and Wesson longs, and one live round of .32 caliber Browning short.

On cross-examination he testified that he did not find a pistol in the car. He further stated he saw a good deal of blood or spats of blood in different parts of the automobile.

Mr. Richard James Jackson testified that the deceased was his first cousin and that on the night of August 30, 1975, appellant brought the deceased to her father’s house —Willie Hodnett. That he stayed at Willie Hodnett’s house until about 11:30 that night talking to the deceased. He left to go to his house and that was the last time he saw Cora Askew alive. He stated that the deceased had been living in Atlanta but was a native of Tallapoosa County and was there on this occasion to visit her family. She was married to Jessie Askew and had two children, a boy and a girl. That the boy was living with him and the girl was living with her grandfather, Willie Hodnett.

Willie Hodnett testified that the deceased was his daughter and came to his house on August 30, 1975. He left home early that night and his daughter was there when he left. He returned around 1:00 a. m. and she was not at home. He did not see her alive again.

Mr. Henry L. Anderson was called as a witness for the State. He was a deaf mute and had to testify through an interpreter. The interpreter was Mr. Spencer Mason who testified that Anderson was 27 years of age and that he was born on his and his father’s place. They raised him from an infant and looked after him as a son. They sent him to school in Talladega where he studied sign language for a period of ten years and since that time, he had been working in the tire store with Mr. Mason.

Mr. Mason testified before the Court that he could intelligently communicate with Anderson with his fingers, motions and gesticulations and had done so for a great many years. He told the Court that Anderson would not tell an untruth for anything but he was a deaf mute lacking the sense of hearing and the faculty of speech. He said Anderson learned the official sign language at the Talladega school and that he had become familiar with it to the point that he spelled every word with his fingers and other motions and that this was the only way Anderson could understand. He further told the Court that he was not interpreting what he thought Anderson was trying to say but he merely related what he was saying and he would repeat the questions to him to be sure he was telling the truth.

Appellant’s counsel objected to Mr. Mason asking questions to Anderson on the ground that the Court and jury would be getting the testimony of Mr. Mason rather than the testimony of Mr. Anderson. The Court overruled the objection, saying the jury could take the testimony for what it is worth. Thereupon, the Court swore Mr. Anderson to speak the truth through Mr. Mason saying, “At this time, the questions are being asked Henry Lee Anderson by Mr. Tom F. Young, through Mr. Mason, and Mr. Mason is orally responding the answers to the Court.” We think it well to set out Mr. Anderson’s testimony to questions posed by Mr. Mason.

“DIRECT EXAMINATION:
“BY: TOM F. YOUNG:
“WITNESS: HENRY LEE ANDERSON (DEAF AND DUMB)
“Q. Ask him what his name is.
“A. (Mr. Mason talking) Henry Lee Anderson.
“Q. Ask him how old he is.
“A. 27.
“Q. Ask him where he lives.
“A. Tallawycka.
“Q. Ask him if he has ever seen the defendant, George Brown.
“A. Yes sir.
“Q. Ask him, did he see George Brown, on the early morning of August 31st, when the body of Cora Askew was found on Ashurst Bar Road.
“A. Yes sir.
“Q. Ask him where he saw him.
“A. This side of Five Points.
“Q. Did he ask George Brown for a ride, or did he get a ride with George Brown on that occasion.
“BOBBY R. BOWLES: I don’t want to be unduly harsh, but, I want to object to Mr. Young leading the witness. I realize his difficulty in getting out what he wants, but, I still think that in the interest of Mr. Brown, I will have to ask that he not lead.
“COURT: Don’t lead.
“Q. I will ask you to ask him, whether or not he got a ride with Mr. Brown.
“A. He said, Mr. Brown stopped and picked him up.
“Q. Ask him where he went, with the Defendant, George Brown.
“A. He went to the housing project.
“Q. What did the witness do when he went to the housing project, what did he see?
“A. He saw George go in the house, he got a rag, and come back out to the car, he helped George clean the car.
“Q. What was it he helped him clean off the car?
“A. Blood.
“BOBBY R. BOWLES: Your Honor, I don’t see Henry Lee Anderson doing anything but shaking his head, I’m having a hard time believing he’s saying these things.
“COURT: Let him testify.
“BOBBY R. BOWLES: I think he told Mr. Mason in the past, and now, Mr. Mason is just repeating it, to the Court.
“MR. MASON: I ask him, did he see blood.
“BOBBY R. BOWLES: And that was not the question.
“TOM F. YOUNG: I will ask him that then.
“Q. Did you see blood ?
“A. Yes.
“Q. Where was the blood ?
“A. On the door.
“COURT: I think his objection is somewhat good. See if you can get him to tell you, without you reiterating—you see what I mean? You are leading the witness, perhaps, instead of Mr. Young.
“A. He told Henry Lee to stay in the car, he went in the house, and come back, he saw him wipe the door.
“COURT: Then what happened?
“A. Then they got in the car and they drove over and saw the body.
“COURT: Was anybody there?
“A. Him and George were together.
“COURT: Do you have any idea about the time?
“A. About, 6:00 o’clock.
“BY: TOM F. YOUNG:
“Q. Did he see any blood on the clothes or the shoes of George Brown.
“A. Yes sir.
“Q. Ask him whether or not he saw any blood on the shoes-—
“BOBBY R. BOWLES: He already asked that, may it please the Court.
“Q. I said, clothes and shoes.
“A. Yes sir.
“Q. Ask him, what, if anything, did he see done about that blood on George Brown’s shoes.
“A. He just saw specks of blood.
“Q. On his shoes ?
“A. Yes sir.
“Q. Ask him, whether or not, anybody wiped the specks of blood off of George Brown’s shoes.
“A. George wiped it off.
“TOM F. YOUNG: Take the witness.
“CROSS-EXAMINATION:
“BY: BOBBY R. BOWLES:
“Q. Ask him, whose house George Brown went into to get those rags, he was talking about.
“A. He doesn’t know her name.
“Q. Ask him if he knows which apartment it was.
“A. On the right hand side.
“Q. Ask him if it was a woman by the name of Robatta Pace.
“A. He doesn’t know her first name.
“Q. Was the last name Pace ?
“A. I asked him, ‘Pace,’ he said it is Pace, but, that’s all he knows.
“Q. Ask him, when he got in George Brown’s automobile, if he found a pistol in that car.
“A. No, he didn’t.
“Q. Ask him what color shoes George Brown had on that morning.
“A. White shoes.
“Q. Did he say whether or not there was blood on the clothing of George Brown ?
“A. No, he didn’t see any on George Brown.
“THAT’S ALL.
“REDIRECT EXAMINATION:
“BY: TOM F. YOUNG:
“Q. Ask him, if he saw George Brown wiping the car door, and the blood on his shoes, before he went down to where Cora Askew was—
“BOBBY R. BOWLES: We are going to object to a leading question.
“Q. State whether or not,—
“COURT: Overruled.
“Q. This was before he went down to where Cora Askew was laying on the side of the road.
“A. Before.
“THAT’S ALL.”

The State then called four witnesses from the State Department of Toxicology, Taylor Nogles, William H. Landrum, Carlos Rabren, and Tellis V. Hudson, who collectively established the fact that the deceased was killed by a gunshot wound to the head and that such wound was caused by a .32 caliber slug. They further testified as to blood samples and gunpowder particles found in the automobile of appellant. All of the evidence collected by these experts was carefully preserved in sealed envelopes and properly initialed so as to assure there was no missing link in the custody and control of this evidence. There was no contention that there was a missing link in the chain of the evidence.

On August 31, 1975, an autopsy was performed on the body of Cora Askew by State Toxicologist Carlos Rabren and he found an entrance wound in front of the left ear and he traced the path of this wound into the brain and found a .32 caliber slug. He recovered the slug and it was admitted in evidence without objection. He stated the cause of death was trauma, shock, and intracranial hemorrhage, associated with a gunshot wound. He took a blood sample from the heart of the deceased which was turned over to Mr. William H. Landrum of the Department of Toxicology for a serological analysis and comparison with the blood samples found in appellant’s car. The serological tests of the blood found in appellant’s car and the blood taken from the heart of the deceased proved to be the same type known as Group O-MN.

State Exhibits 14 and 15 were photographs of the head and face of the deceased showing the entrance wound just in front of the left ear and blood on her face, nose and left eye. These photographs were introduced in evidence over appellant’s objections that they tended to prejudice and inflame the jury against him.

As we have pointed out appellant did not testify in his behalf but he offered alibi testimony.

Appellant’s father testified that his son (defendant) came to his home on the night of August 30, 1975, arriving about 9:00 p. m. and stayed until shortly after 12:00. As he was leaving, appellant said he was going to pick up his girl friend and go and eat some chicken.

Vatta Pace testified that she lived in Tallassee, Elmore County, Alabama, and that she knew appellant. She denied that appellant came to her house on the morning of August 31, 1975, and got some rags out of her house.

On cross-examination she admitted appellant came to her house early that morning and the man who could not hear or talk was with him.

Tooth Pace, the daughter of Vatta Pace, testified that appellant came to her mother’s house about 1:30 a.m. on August 31, 1975, and stayed until 5:30 a.m. She denied that anyone came with him.

It is permissible for a deaf mute to testify as against the objection that the party against whom such testimony is given will be put to a great disadvantage in cross-examination to test the deaf mute’s credibility. Burgess v. State, 256 Ala. 5, 53 So.2d 568; Pruitt v. State, 232 Ala. 421, 168 So. 149.

In Burgess v. State, supra, the Supreme Court held:

“In determining the qualifications of such witness to testify and the selection and qualification of the interpreter, much must be left to the sound discretion of the trial court who has full opportunity to see and observe the witness, and the interpreter, in the presence and hearing of the interested parties and their counsel, much of which cannot be portrayed on the written pages of the record. Pruitt v. State, supra; 53 Am.Jur. p. 44, § 29. We, therefore, hold that the circuit court did not err in permitting the witness Grace Payne to testify against the defendant. Nor was error committed in allowing her brother Frank Payne to act as the interpreter of her testimony.”

We hold the trial court did not abuse its discretion in allowing Mr. Mason to act as the interpreter of the testimony of Henry Lee Anderson.

There was no error in the admission of the photographs of the deceased. Such photographs are admissible in a murder prosecution when they shed light upon the character and location of the wounds on the victim’s body and when the proper predicate has been laid. Snow v. State, 50 Ala.App. 381, 279 So.2d 552; Boulden v. State, 278 Ala. 437, 179 So.2d 20.

Gruesomeness is not ground for excluding evidence consisting of photographs if it has a reasonable tendency to prove or disprove some material fact which is in issue or which at the time appeared to be probably in dispute or material, and, if it illuminates the issues in any way even though possessing a tendency to inflame the minds of the jury. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

As we have pointed out, the State relied on circumstantial evidence to convict appellant. Circumstantial evidence is entitled to the same weight as direct evidence is entitled to provided it points to the guilt of the accused. In cases where the State relies on circumstantial evidence for a conviction very wide latitude is allowed in making proof. Creel v. State, 53 Ala.App. 504, 301 So.2d 267; Lowery v. State, 38 Ala.App. 505, 88 So.2d 854; McDowell v. State, 238 Ala. 101, 189 So. 183.

Where there is a reasonable inference to prove the existence of the corpus delicti, the Court should submit to the jury for its consideration the question of the' sufficiency and weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Felton v. State, 47 Ala.App. 182, 252 So.2d 108.

The corpus delicti in a homicide prosecution, and evidence sufficient for a conviction of the crime of murder, may be established through circumstantial evidence and such evidence is sufficient if its effect on the jury’s mind is to produce a conviction of guilt of the defendant beyond a reasonable doubt. Payne v. State, 48 Ala.App. 401, 265 So.2d 185.

According to the tendencies of the State’s evidence the deceased was appellant’s girl friend and she was last seen alive with him. At 6:30 a.m. on the day her body was found on the roadside he came to the scene of the crime and identified her body and left the scene after being requested by a police officer to await the arrival of State officers. Blood of the same type of the deceased was found in his car. We cannot overlook the testimony of the deaf mute that appellant went to a house and got some rags to wipe blood off his automobile and his shoes before returning to the place where the body was found.

All of these facts and circumstances along with his claimed alibi made and presented a jury question as to the guilt vel non of appellant. Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Brown v. State, 229 Ala. 58, 155 So. 358; Gillis v. State, 242 Ala. 550, 7 So.2d 563.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

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


text:
    Thomas James PROCTOR, alias v. STATE.
    6 Div. 9.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.

      Robert R. Bryan, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of robbery and a sentence of fifteen years imprisonment in the penitentiary.

According to the testimony of Ella Mae Monroe, the owner of Monroe Grill, in Birmingham, she was robbed about midnight on a Saturday night in July, 1974, while the grill or store was open to the public and she was in charge. Soon after appellant arrived, a young man, later identified as Johnny Cobb, entered the store carrying a shotgun. An exchange of words ensued between the owner of the store and the man carrying a gun. The owner attempted to secure a shotgun kept behind the counter. Cobb told Proctor to get the gun. Proctor turned and grabbed the shotgun, grabbing it at about the same time as the owner. They scuffled, and Cobb, was hitting her at the same time with the shotgun he had. According to the witness, one hundred and twenty-five dollars was taken from the store.

That defendant participated in the robbery was corroborated to some extent by the testimony of Officers Howard Von Hagle and Fred Dunn, who arrived before appellant left the scene. They said he was standing in the doorway of the grill holding a shotgun.

Defendant took the stand and testified that he was present on the occasion involved, but he denied that he participated in the robbery and said that he never had a gun in his hand.

The circumstances, including the testimony of defendant, give rise to some doubt as to defendant’s guilt, but assuming the correctness of the testimony of the victim and the officers, there can be no doubt that a jury question as to the guilt of defendant was presented, and appellant makes no contention to the contrary.

Appellant asserts that the “primary issue” on this appeal is “whether the offense of robbery is a capital felony thus entitling a defendant during jury selection to strike from a list of a minimum of thirty-six jurors.” Before the process of selecting a jury commenced, defendant requested that the jury be selected (stricken) from a list of thirty-six, insteád of twenty-four, jurors. His request was not granted, and the parties were required to strike from a list of twenty-four jurors. To this action, defendant reserved an exception.

The parties are in agreement that the governing statutory provisions are Code of Alabama 1940, Recomp.1958, Appendix §§ 713-726, applicable to jury trials in Jefferson County. It is provided therein that in the selection of a jury, the parties are enti-tied to strike from a list of twenty-four jurors, but that in capital felonies they shall strike from a list of thirty-six jurors. Appellant argues that notwithstanding Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), rendering ineffective the death penalty in a robbery case, reference statute as to selecting a jury in Jefferson County requires that in a case designated by statutory law in Alabama as a capital case defendant is entitled to strike from thirty-six jurors.

Appellant relies upon Ex parte Bynum, 294 Ala. 78, 312 So.2d 52 (1975), and Ex parte Carlisle, 295 Ala. —, 326 So.2d 776 (1976). In each of the cited cases the question before the court was the effect of Furman upon the right of defendant to bail in cases in which, prior to Furman, defendant could suffer the death penalty. We need not discuss in detail the rationale of the decisions in the cited cases, as it is clear that a different policy would be involved as to the effect of Furman upon the right of a defendant to bail and its effect upon his rights relative to the selection of the personnel that compose a jury to try his case. The cases cited by appellant are not inconsonant with Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975) and Usrey v. State, 54 Ala.App. 448, 309 So.2d 485, cert. denied 293 Ala. 776, 309 So.2d 489 (1975). In Dean, in a first degree murder case permitting the death penalty prior to Furman, it was held:

“The defendant did not stand indicted for a capital felony; observance of the statutory mandates of this section [relative to a special venire in capital cases] was not required.”

In Usrey, the principle was reaffirmed that statutes requiring a special venire in cases in which capital punishment could be imposed, but for Furman, no longer apply. The special considerations relative to the right of a defendant to bail are not involved in this case. Consistency with Dean and Usrey, and with the reasons prompting the decisions therein, requires a determination that the trial court was correct in limiting the parties to a list of twenty-four jurors from which they were to select a jury. Fisher v. State (1976) 57 Ala.App. —, 328 So.2d 311, cert. denied 295 Ala. —, 328 So.2d 321.

Appellant contends that the trial court unduly restricted defendant in its cross-examination of witnesses in two particulars: (1) in its effect to show bias, interest, prejudice, or partiality of the principle witness for the prosecution, Ella Monroe, and (2) in his efforts to show a similar attitude or feeling on the part of two of the police officers.

Code of Alabama 1940, Title 7, Section 443, provides:

“. . . [R]ight of cross-examination thorough and sifting, belongs to every party as to the witnesses called against him.”

Where a witness' testimony is of major importance and is strongly adverse to the party against whom he has testified, the usual discretion of a trial court has a narrow range, and it generally is required to allow proof of any important fact indicating bias of the witness. Green v. State, 258 Ala. 471, 64 So.2d 84; Sowell v. State, 30 Ala.App. 18, 199 So. 900. In Wells v. State, 292 Ala. 256, 292 So.2d 471, it was held:

“ . . . [W]here the witness’ testimony is important to the determination of the issues being tried, there is little, if any, discretion in the trial judge to disallow cross-examination on matters which tend to indicate the bias of the witness.”

Appellant commences his argument that there was undue restriction upon his cross-examination of Monroe by reciting the following lines from the record:

“Q. All right. Now, did you not at the preliminary hearing indicate Cobb as the one that initially struggled with you over the gun?
“A. Struggled with me over the gun—
“MR. PENNINGTON: Your Honor, we object to this.
“THE COURT: Sustained.”

The portion of the record just quoted was on re-cross examination of the witness in which, for two pages of the record, counsel for defendant interrogated her as to her testimony at the preliminary hearing, which interrogation included the following:

“Q. Mrs. Monroe, I will ask you whether you said this or this in substance at the preliminary hearing, that Cobb was the one that struggled with the gun. Did you testify to that, that Johnny Cobb, and not Thomas Proctor, was the one?
“A. No, I didn’t say that. I said that Cobb had the shotgun and that he was struggling with my shotgun. (Indicating.)
“Q. All right. Now, I am asking when you were first asked by the assistant or the deputy district attorney, yes or no, did you or did you not testify initially at the preliminary hearing that Cobb was the one that struggled with you with the gun? Did you or did you not testify to that?
“A. No.”

After cross-examining the witness as to her testimony on the preliminary hearing, counsel proceeded to interrogate her as to what she had said in a telephone conversation with defendant’s mother, and counsel referred to previous testimony on cross-examination relative to the same telephone conversation. As a part of his argument, appellant quotes from the record:

“Q. Well now, did you or did you not also tell her in the same conversation that, well, I am not sure if he was involved, but I tell you what, if he gets out of this, I am going to kill him or have him killed ? Answer yes or no.
“MR. PENNINGTON: Now, your Honor, he has gone over this, and this is repetitious.
“THE COURT: Do you have anything new ?”

During previous cross-examination of the witness, questions were asked and answers given as follows:

“Q. Have you also made the statement that if you didn’t get Thomas Proctor in the courtroom, you were going to see that he was killed when he got out of the courtroom?
“A. No, sir. I haven’t made that statement either.
“Q. You haven’t said anything like that to anyone?
“A. No, sir.
“Q. And as a matter of fact, didn’t you say that to his mother ?
“A. I didn’t tell his mother that.”

From the foregoing quotations from the record, it can be seen, we think, that whatever restrictions were placed upon defendant in cross-examining the particular witness were restrictions against asking repetitious questions. The right to a thorough and sifting cross-examination does not entitle a party to repeat questions that have already been definitely and fully answered. Lloyd v. State, 53 Ala.App. 730, 304 So.2d 232. No special circumstance appears that would require an exception in this case to the general rule in this respect.

In an effort to show bias upon the part of the police officers who testified for the State, counsel for defendant attempted to show or imply, by questions propounded to one of them, that defendant was beaten when placed under arrest. The court at first sustained objections of the State to such questions. Thereafter the following occurred:

“THE COURT: All right now, before we bring the jury back in, Mr. Bryan, if you want to do it, I will give you the opportunity to call the witness back to testify as to whether or not he kicked him.
“Do you want to recall him for the purpose of asking him whether he kicked him or hit him or whatever you want to do?
“MR. BRYAN: No.
“THE COURT: Well, I think that I was probably mistaken on that on the question of bias. It is probably admissible. He is out there if you would like to call him back.
“MR. BRYAN: No, your Honor. In view of what has transpired during lunch, I don’t believe so.
“THE COURT: Well, I was going to allow you to do it to show bias.
“MR. BRYAN: Well, no, your Honor, but we do have a stipulation.”

The quoted action of the court purged the record of any error in previous action of the court in not allowing defendant to attempt to show bias on the part of the officers by showing violence to defendant at the time of his arrest.

We find no error in the record prejudicial to defendant, and the judgment of the trial court should be affirmed.

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

AFFIRMED.

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


text:
    Patrick BATTEASTE v. STATE.
    1 Div. 638.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    J. D. Quinlivan, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: twelve years imprisonment.

The sole issue in this appeal is whether the Miranda warning given the appellant prior to his inculpatory statement to police officers was legally sufficient. The warning, which was- read to the appellant, read by him and also signed by him, is as follows :

“YOUR RIGHTS
"Place Saraland P.D._
Date December 3, 1974
Start Time 4:30 P.M,
End Time 5:05 P.M.
“Before we ask you any questions, you must understand your rights.
“You have the right to remain silent.
“Anything you say can and will be used against you in Court.
“You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
“If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
“If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
“WAIVER OF RIGHTS
“I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises, threats, or inducements have been made to me and no pressure or coercion of any kind has been used against me.
"SIGNED Patrick Batteaste
"WITN ESS Frank Mann
"WINESS T. Earl Uptagrafft
"WITNESS_
“Note: At 4:25 P.M. December 3, 1974, Patrick Batteaste called Lt. F. Mann back to his cell and stated that he wished to make a statement concerning his part in the robbery.”

A predicate was laid as to the voluntariness of the appellant’s statement as well as to the Miranda warning being given to him outside the presence of the jury. The trial court ruled appellant’s inculpatory statement to be admissible. In that statement, he admitted to being an accomplice to the robbery by assisting and planning the robbery and driving the get-away car although he did not personally hold the weapon on the victim and take the money.

Appellant contends the Miranda warning was defective in two areas. We quote from appellant’s brief:

“. . . First, it fails to inform the appellant that a lawyer would be appointed for him free of charge. Secondly, the document fails to inform the appellant that he has the right to stop answering at any time after he starts answering questions until such time as he can have the PRESENCE of a lawyer with him during questioning.”

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, in its exact wording requires:

“In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him .
******
“. . . [I]f police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. . . .”

The verbiage used by the United States Supreme Court in Miranda does not require the use of the words “free of charge.” We conclude that the verbiage in the instant statement, “If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish,” fully complies with the requirement on that point set forth in the Miranda decision.

Appellant’s second allegation is not well taken. The warning given him clearly stated, “You also have the right to stop answering at any time until you talk to a lawyer.”

Appellant contends that the instant case is governed by Square v. State, 283 Ala. 548, 219 So.2d 377 and Trott v. State, 51 Ala.App. 40, 282 So.2d 392. Both Square and Trott were properly distinguished from this case in the State’s brief. Square was informed, “‘. . . . We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to Court. . . .’” The appellant, Batteaste, was offered an attorney prior to interrogation or at any time during interrogation, whenever he wished. He was not told that there was no way of providing him with an attorney as was the case in Square.

In the Trott case, the defendant was not advised that an attorney could be provided him prior to questioning. Neither was he advised that an attorney would be appointed for him if he could not afford one. Appellant in the instant case was clearly and unequivocally advised of both such rights.

We have reviewed the entire record as required by statute and find no error committed by the trial court prejudicial to the appellant.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


text:
    Bobby Clifton HUNT v. STATE.
    6 Div. 63.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.

      Charles Tarter, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. General, Montgomery, for the State.
   TYSON, Judge.

The Grand Jury charged the appellant with unlawfully buying, receiving, concealing, or aiding in concealing four tires and four mag wheels, the personal property of Leonard McCray. The jury found the appellant “guilty as charged,” and fixed the value of the stolen property at $200.00. The trial court then set sentence at five years imprisonment.

Leonard McCray testified that on February 25, 1974, his 1964 Chevrolet Impala was stolen from the Sears and Roebuck parking lot in downtown Birmingham in Jefferson County, Alabama. He stated that subsequently on March 18, 1974, while looking for another car, Ije found the tires and mag wheels from his old car on a 1957 Chevrolet at Lawley Motor Company on 3rd Avenue. McCray said that the tires and wheels were worth $200.00.

James Swindle, a car salesman for Jerry Lawley Motor Company, testified that Larry Hodges traded in the 1957 Chevrolet with the tires and wheels in question on it for a 1968 Chevrolet Camero.

Edgar Hodges testified that he lived at Route 2, Box 828, Gardendale, and that he had known the appellant, Bobby Hunt, ever since he, Hunt, had been living in the community, which had been “quite a while.” He stated that on March 19, 1974, he went to the City jail to pick up his son Larry who had been arrested that afternoon. Mr. Hodges testified that after leaving the jail, he and Larry went by home and then proceeded to the appellant, Bobby Hunt’s house about one-half mile away, where he told the appellant that Larry had been arrested because of the tires and wheels the appellant sold him; that the police said they were stolen. Hodges testified that at this point the appellant offered to repay the money and write out a bill of sale, explaining that he had taken the tires and wheels in on a trade, not realizing they were stolen, but that the bill of sale would clear Larry.

On cross-examination Edgar Hodges testified that he did not actually see the appellant hand over the bill of sale to Larry, but that when he and his son returned home, he noticed that Larry had a slip of paper. Hodges stated that he did not read the slip of paper himself but that his wife read it aloud and it contained a description of four wheels and tires, a price of $50.00, and a signature that read Henry Matthews.

Detective Carl T. Wideman of the Birmingham Police Department testified that Leonard McCray’s 1964 Impala was found March 3, 1974, on Flat Top Road in the western part of Jefferson County, stripped of tires and wheel assemblies, battery, and carburetor. Wideman testified that he accompanied Leonard McCray to Jerry Law-ley Motors on 3rd Avenue West on March 19, 1974, at which time McCray pointed out a.. 1957 Chevrolet and identified the tires and wheels on it as the ones that had been removed from his car. Detective Wideman stated while at Lawley Motor Company on March 19, he arrested Larry Hodges who happened to drive by.

On cross-examination, Detective Wide-man testified that Larry Hodges made no statement on the day of his arrest, but that the following morning, March 20, he and his mother returned to police headquarters with a bill of sale signed Henry Matthews and stated that Larry had bought the tires and wheels from a black man, Henry Matthews, who lived in Fairfield. Wideman stated that a week or two later Larry Hodges returned to police headquarters again, this time accompanied by his father, that it was on this occasion that he, Wide-man, was told that it was Bobby Hunt who sold Larry Hodges the tires and wheels and who made out the bill of sale, signing it Henry Matthews.

Mary Ruth Hodges testified that she was married to Edgar Hodges; that Larry Hodges was their son. She stated that on the evening of March 19, 1974, her husband and son after returning from the City jail, went to Bobby Hunt’s house. Mrs. Hodges testified that they returned several hours later with a bill of sale for four tires and wheels, that the following morning she and Larry drove to police headquarters where they showed Detective Wideman the bill of sale and explained to him that Larry had gotten it from Bobby Hunt the night before.

At this point in the trial the defense recalled Detective Wideman who testified that there was no mention made of Bobby Hunt on the morning of March 20, 1974, that he was not implicated until several weeks later when he, Wideman, met with Edgar and Larry Hodges.

Following Wideman’s testimony, both sides rested. Appellant subsequently filed a motion for a new trial which was overruled.

I

Appellant contends that the State failed to prove venue and his motion to exclude should have been granted.

However, after reviewing appellant’s motion, we are of the opinion that the venue issue is not now before us for review, inasmuch as said motion is couched in general terms only and fails to specifically refer to the sufficiency of the evidence to prove venue. Haynes v. State, 45 Ala.App. 31, 222 So.2d 183.

Moreover, the issue may not be raised for the first time on appeal. Daly v. State, 47 Ala.App. 681, 260 So.2d 412.

II

Appellant next contends that the trial court erred in denying his motion to exclude the evidence on the ground that the State had failed to prove that appellant had knowledge that the goods were stolen at the time he allegedly bought them. In Jordan v. State, 17 Ala.App. 575, 87 So. 433, cert. den. 205 Ala. 114, 87 So. 434, we find the following:

“In order to sustain a charge of buying, receiving, concealing, or aiding in the concealment of stolen property, knowing that it was stolen, and not having the intent to restore the same to the owner, etc., it is necessary to show by the evidence, beyond a reasonable doubt and to a moral certainty: (1) That the goods in question had been feloniously taken and carried away, as charged in the indictment, by some one; (2) that the defendant bought, received, concealed, or aided in concealing these goods, knowing at the time that they were stolen; and (3) that he so bought, received, concealed, or aided in concealing these goods knowing that they were stolen, and not having the intent to restore same to the owner. James v. State, 15 Ala.App. 569, 74 So. 395; Jeffries v. State, 7 Ala.App. 144, 62 So. 270; Thomas v. State, 109 Ala. 25, 19 So. 403; Sanders v. State, 167 Ala. 85, 52 So. 417, 28 L.R.A.,N.S., 536; Aline Clisby v. State, ante [17 Ala.App.] p. 475, 86 So. 140.”

We are of the opinion that the evidence here was sufficient for the trial judge to submit this matter to the jury for its determination, and therefore, the appellant’s motion was properly overruled. Johnson v. State, 41 Ala.App. 351, 132 So.2d 485; Paul v. State, 48 Ala.App. 396, 265 So.2d 180, cert. den. 288 Ala. 747, 265 So.2d 185; Holt v. State, 7th Div. 196, 49 Ala.App. 582, 274 So.2d 356, cert. den. March 8, 1973, 290 Ala. 367, 274 So.2d 360, and cases therein cited. See also Bills v. State, 49 Ala.App. 726, 275 So.2d 706 and Scott v. State, 55 Ala.App. 318, 314 So.2d 921.

Clearly, the State here adduced evidence which if believed would prove that appellant bought or traded for the tires and wheels which he later sold to Larry Hodges at a deflated price. Furthermore, the requisite scienter for the offense of buying, receiving, concealing, or aiding in concealing stolen property may be inferred from recent possession of the stolen goods. Rhone v. State, 53 Ala.App. 338, 299 So.2d 781. The appellant offered no evidence to rebut this inference.

We have carefully examined the record as is required by law and find no error therein. The judgment of the trial court is thereby due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.


text:
    James Andrew IMPSON v. STATE.
    4 Div. 389.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.

      Gary E. Davis, Phenix City, for appellant.
    William J. Baxley, Atty. Gen., and Jack Curtis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found appellant guilty of robbery and fixed his punishment at thirty-one years and a day in the penitentiary. The court rendered judgment and pronounced sentence accordingly.

The alleged victim, Danny Clyde Wade, testified that he went to the Georgia Grill in Columbus, Georgia, about 10:30 P.M. September 27, 1974; he and defendant drank some beer there and left in defendant’s automobile to go to Phenix City. After arriving in Phenix City, defendant stopped the automobile, pulled a knife with his right hand and put it on Wade’s side; Wade opened the right door with his right hand and went out, and defendant followed him, and they scuffled and fought. He said he left the scene of the first scuffle, defendant caught up with him about a block and a half or two blocks away, and they had another scuffle. Wade said that when he first got out of the automobile, he had about twenty or twenty-five dollars in his shirt pocket, that in his scuffling with defendant his shirt pocket was ripped off and he did not recover the money in it. He further said that he lost his wallet in the scuffle and contents of it were scattered on the ground. He became unconscious during the last scuffle and regained consciousness in the ambulance that took him to the hospital, where he was treated for bruises.

A resident of the area of the second scuffle, Luther Boyd Tew, said that about midnight September 27-28, he was asleep, something woke him up and he heard some moaning and groaning. He looked outside and saw “one guy down on another one, beating on him, going through his pockets, and it looked like he threw something out in the middle of the road and then when a car topped the hill, the lights of the car hit on him and then he took out running. It looked like a billfold out in the middle of the road.” He called the police, who arrived in about three or five minutes. He and the policemen went to the man still on the ground and noticed that he had blood all over him and stated that his ribs were broken. The policemen radioed for an ambulance. He looked on the ground in the area where the person was lying and noticed some credit cards and “such as that had been thrown around in the yard—identification cards and such.” He said that the man on top of Wade “was going through his pockets at that time and he looked like he had his billfold, going through it, and when the light went on him, he threw the billfold.”

Officer Johnny Phillips testified that he answered a call to the scene of the alleged crime and while turning into Eighth Avenue toward 917 Eighth Avenue, from where he received the call, he saw a man at the corner of Eighth Avenue and the street from which he was making the turn, whom he identified as the defendant, who was afterwards arrested.

Witnesses for defendant testified that defendant remained in Georgia Grill until about 1:30 or 1:45 A.M. One of them said that Wade left the Georgia Grill about two hours before defendant. Defendant did not take the stand.

We see little basis for any substantial doubt that defendant was correctly identified by Wade and Officer Phillips. There is no basis for substantial doubt that a robbery was committed. The trial court charged the jury as to robbery and as to the crime of attempting to rob, having in mind doubtless the possibility that defendant did not succeed in taking money, or other property, from Wade. The evidence was ample to support the verdict, and the court was justified in overruling defendant’s motion for a new trial.

During the interrogation by the prosecution of Danny Wade as a witness, the following occurred:

“Q. I will ask you to look at the defendant seated at the table with Mr. Davis there, and I will ask you if that is one and the same man that stuck a knife in your side and assaulted you at 917 8th Avenue in Russell County, Alabama and took your personal effects ?
“MR. DAVIS: Again, Your Honor, we would object to that question; his identification is being based on prejudicial viewing of photographs.
“THE COURT: Overruled.
“A. Yes, sir.”

Appellant urges that the “prejudicial viewing of photographs” is referable to a viewing, as shown by the testimony of Danny Wade, of a number of photographs in the hands of the police and that one of them was a photograph of defendant. He argues that the evidence in the case subsequently showed that the print of the photograph of defendant had his name under his picture. Other evidence, however, indicated that in identifying such photograph, Wade was not influenced in any way by the name, even though he knew that the first name of defendant was James. Negligible at the most was any chance of irreparable misidentification of defendant by Wade, who had seen defendant on about two occasions prior to the night of the alleged crime, who had been with him, drinking with him, at Georgia Grill, ridden with him in his automobile, and engaged in two scuffles or fights with him. An answer to appellant’s contention in this respect is Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, in part as follows:

“. . . [C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

During the interrogation by the State of Officer Alsobrok as a witness, he said, “We obtained photographs of Mr. Impsom from Columbus Police Department.” Defendant then asked for a hearing out of the presence of the jury and thereupon moved for a mistrial. The motion was overruled.

It was unfortunate, we think, that the witness said that the photographs were obtained from Columbus Police Department, but we cannot say that the trial court abused the discretion vested in it in overruling defendant’s motion for a mistrial. The corporate limits of Columbus, Georgia, and Phenix City, Alabama, are contiguous. The events pertinent to the alleged crime took place in Columbus and in Phenix City. It would have been natural for the police of Phenix City to call upon the police of Columbus for information as to the alleged victim and the alleged robber, both of whom, it seems, lived in Columbus. That Phenix City authorities obtained photographs from Columbus authorities does not necessarily mean that one photographed had a criminal record. During the discussion of defendant’s motion for a mistrial out of the presence of the jury, counsel for the prosecution stated:

“. . .I would ask the Court to also take notice that the Columbus Police Department in addition to Police records, keep a file on certain type people holding different jobs and taking pictures of them, taxi-cab drivers among others. If the court felt that this was prejudicial, we just ask that the Court instruct the jury to exclude it from any consideration in this case.”

Counsel for defendant then stated:

“It is impossible to wipe that from the minds of the jury since it is so highly prejudicial.”

The apparently undesigned reference to the photographs as Columbus Police Department photographs was not properly a matter of evidence in the case, but we cannot say that in light of all of the other evidence, as surveyed by the trial judge, the reference was so highly prejudicial to defendant as to require a mistrial.

During the cross-examination of the witness Alsobrook, counsel for defendant made the point that the warrant for the arrest of defendant was based on an affidavit by Wade that, in the alleged robbery, defendant had taken fifty-five dollars from Wade. He did so by having the witness read from the affidavit, and thereafter he pursued the matter as follows:

“Q. And then it is signed ‘D. C. Wade’ ?
“A. Yes, sir.
“Q. Will you tell the jury again what the amount that he swore to was that was taken from him ?
“A. Fifty-five dollars.
“Q. He swore to that, right ?
“A. Yes, sir.
“Q. Were you present when he swore to that?
“A. Yes, sir.
“THE COURT: Mr. Davis, don’t get over there and talk to the jury like that, you are making a speech to the jury. You are going to have your opportunity later on to make a speech to the jury.
“MR. DAVIS: I would except to that, Your Honor; I am merely making a point about the fifty-five dollars.
“THE COURT: Well, don’t make a speech to the jury; you are going to have your opportunity to make your speech to the jury.
“MR. DAVIS: No further questions.”

Of course, there is no way for the record to reflect where counsel was at the time, other than that he was in the court room, but it seems that it was the view of the court that counsel, while close to the jury, was unduly gesticulating, or otherwise emphasizing the point he had made, or was making, in a manner more appropriate in argument, or a speech, to the jury, than in the cross-examination of a witness. We do not consider that there was any serious breach of propriety by counsel in his commendable enthusiasm in fully developing a point favorable to his client, nor do we think the trial court treated the incident as such, but was content with a mild, admonition, which on its face fails to reveal any harshness or bitterness of feeling.

The trial court refused two of defendant’s requested written charges:

“IX The Court charges the jury that an indictment for robbery also embraces the charge of assault and battery.”
“XII The Court charges the jury that an indictment for robbery also embraces the charge of larceny.”

Appellant correctly asserts that an assault and larceny are lesser included offenses in a charge of robbery and that where the evidence justifies a finding in effect that robbery was not committed, but that one of the lesser of said lesser included offenses was committed defendant is entitled to a charge, if requested, that would permit a finding by the jury that defendant was guilty of the lesser included offense. Kelly v. State, 235 Ala. 5, 176 So. 807; Rambo v. State, 134 Ala. 71, 32 So. 650; Taylor v. State, 48 Ala.App. 443, 265 So.2d 886.

The principle relied upon would not justify the giving of Charge XII. Under the undisputed evidence, any taking from the victim would have been “by violence to his person,” which precluded a finding that defendant was guilty of larceny only. As to charge XI, appellant argues that under the evidence as a whole it could have been found that no money, or other property, was taken from Wade by defendant. Even so, the undisputed evidence affords no basis for an inference that there was no attempt to take money, or other property, from the victim. The trial court covered the question of lesser included offenses by submitting to the jury for its determination the issue as to assault with intent to rob. The trial court in its oral charge made it clear to the jury that if defendant did not obtain any money or other property from defendant, he would not be guilty of robbery but at most of the lesser included offense of an assault with intent to rob. At the conclusion of the oral charge, counsel for both parties stated that they were “Satisfied.”

We have fully considered all of appellant’s assertions of error and have searched the record as a whole for any error prejudicial to defendant and have found none.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

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