author: BOWEN, Judge. DeCARLO, Judge, BOWEN, Judge.

text:
    Ben THOMAS, III v. STATE.
    6 Div. 691.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    On Rehearing Oct. 31, 1978.

      Roger C. Appell of Bryan, Wiggins, Quinn & Appell, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Eddie Hardaway, Jr., Asst. Atty. Gen. for the State, appellee.
   BOWEN, Judge.

Ben Thomas, III, was convicted of robbery and sentenced to ten years’ imprisonment. On appeal he contends that the evidence was insufficient to support his conviction. We agree.

Viewing the evidence presented by the prosecution in its most favorable light, Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1969), the state proved that Michael Jackson and Ronald Evans robbed the Zippy Mart at 2016 — 21st Street, Ensley, Alabama, on November 3, 1976. These two men ran across the street into the parking lot of the Pike Road Church and entered an automobile where Thomas was sitting in the driver’s seat. Sergeant Jessie Jackson, having been alerted by a silent alarm, immediately drove his police vehicle in front of the parked automobile. He testified that the engine of the blocked automobile was not running but started as he drove in front of it, stopped his automobile and opened his door.

Sergeant Jackson drew his service revolver and ordered the three occupants out of the car. Evans then stated that, “We ain’t did nothing”. An automatic pistol and forty-five dollars, the approximate amount taken in the robbery, were found on Evans inside his coat pockets. No money or weapon was found on Thomas. The evidence was undisputed that Thomas did not participate in the actual robbery. With this testimony the state rested its case. Defense counsel moved for a directed verdict of acquittal on the grounds that the state had failed to prove Thomas’ knowledge of or participation in the robbery. The motion for a directed verdict of acquittal served the same purpose and function as a motion to exclude the state’s evidence and should have been granted.

In reviewing the action of the trial court in overruling a motion to exclude the evidence, only the evidence before the trial court at the time the motion was made can be considered. James v. State, 351 So.2d 693 (Ala.Cr.App.1977); Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1969). The standard of review is whether there exists legal evidence before the jury, at the time the motion was made, from which the jury could by fair inference find the defendant guilty. Stewart v. State, 350 So.2d 764 (Ala.Cr.App.1977). In applying this standard, this court will not substitute itself for the jury in determining the probative force and weight of the evidence, Toles v. State, 170 Ala. 99, 54 So. 511 (1911); Leach v. State, 24 Ala.App. 423, 136 So. 493 (1931); Martin v. State, 17 Ala.App. 73, 81 So. 851 (1919), but will only determine if legal evidence was presented from which the jury, by fair inference could have found the defendant guilty beyond a reasonable doubt. Daniels v. State, 343 So.2d 566 (Ala.Cr.App. 1977); Howell v. State, 339 So.2d 138 (Ala. Cr.App.1976).

While a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction. Smith v. State, 345 So.2d 325 (Ala.Cr.App.), cert. quashed, 345 So.2d 329 (Ala.1976); Colley v. State, 41 Ala.App. 275, 128 So.2d 525 (1961). A defendant should not be convicted on mere suspicion or out of fear that he might have committed the crime. Harnage v. State, 49 Ala.App. 563, 274 So.2d 333 (1972). While reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt, Royals v. State, 36 Ala.App. 11, 56 So.2d 363, cert. denied, 256 Ala. 390, 56 So.2d 368 (1952), mere possibility, suspicion, or guesswork, no matter how strong, will not over turn the presumption of innocence. Sauls v. State, 29 Ala.App. 587, 199 So. 254 (1941); Riley v. State, 28 Ala.App. 389, 187 So. 247 (1939); Rungan v. State, 25 Ala.App. 287, 145 So. 171 (1932); Guin v. State, 19 Ala. App. 67, 94 So. 788 (1922).

An inference is merely a permissible deduction from the proven facts which the jury may accept or reject or give such probative value to as it wishes. Roberts v. State, 346 So.2d 473 (Ala.Cr.App.), cert. denied, 346 So.2d 478 (Ala.1978); Hale v. State, 45 Ala.App. 97, 225 So.2d 787, cert. denied, 284 Ala. 730, 225 So.2d 790 (1969); Orr v. State, 32 Ala.App. 77, 21 So.2d 574 (1945). It is a logical and reasonable deduc tion from the evidence and is not supposition or conjecture. Guesswork is not a substitute. Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640 (1940); Bolt v. Davis, 70 N.M. 449, 374 P.2d 648 (1962). A supposition is a conjecture based on the possibility or probability that a thing could have or may have occurred without proof that it did occur. Louisville & N. R. Co. v. Mann’s Adm’r, 227 Ky. 399, 13 S.W.2d 257 (1929). The possibility that a thing may occur is not alone evidence, even circumstantially, that the thing did occur. Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967); Miller-Brent Lumber Co. v. Douglas, 167 Ala. 286, 52 So. 414 (1910).

The mere fact that a defendant is sitting in the driver’s seat of an automobile into which a robber enters immediately following the robbery affords no legal inference that the defendant is the “get-away” driver or a participant in the robbery. While such circumstances do raise a suspicion that the defendant might be involved in the crime, they alone afford no circumstantial evidence of involvement or participation but only tend to support the possibility.

We have examined a number of robbery convictions of a “get-away driver” and in each ease considerably more evidence was present to connect the defendant with the commission of the offense. In Smith v. State, 57 Ala.App. 151, 157, 326 So.2d 680, 685, cert. denied, 295 Ala. 424, 326 So.2d 686 (1975), it was noted that:

“Mere presence of appellant in the car would not make him a principal. Rail-ford [Raiford] v. State, 59 Ala. 106. Such facts as his presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which partici-pancy may be inferred.”

Circumstantial evidence may afford an inference of participation, Cost v. State, 30 Ala.App. 182, 2 So.2d 466 (1941), as where the defendant-chauffeur had prior knowledge of the robbery as shown by his statements to the police, Brown v. State, 39 Ala.App. 149, 96 So.2d 197 (1957), and even though he advised his companions against commission. Bass v. State, 55 Ala.App. 5, 312 So.2d 576 (1975). Other circumstances affording logical and legal inferences of participation by the driver of an automobile in a robbery are that some of the money taken in the robbery was found on the defendant, McKinnon v. State, 349 So.2d 87 (Ala.Cr.App.), cert. denied, 349 So.2d 89 (1977); the presence of the defendant near the scene of the crime before the robbery with two of the three men identified as the robbers, the defendant’s knowledge that one man carried a shotgun in a brown paper bag, and the conflicting statements of the defendant after his arrest, Childers v. State, 338 So.2d 1058 (Ala.Cr.App.1976); the suspicious conduct of the defendant in slowly backing the automobile up in front of the store being robbed, the presence of a weapon under the driver’s seat, and the defendant’s statement that the two robbers were her brothers where the relationship was denied by the men, Johnson v. State, 57 Ala. App. 470, 329 So.2d 160 (1976). The defendant’s conduct in meeting the robber in an alley behind a store miles from the scene of the robbery allowing the robber to change vehicles and leave the automobile from which he fled from the scene of the crime may afford a sufficient inference of participation to support a conviction. Stinson v. State, 55 Ala.App. 629, 318 So.2d 325, cert. denied, 294 Ala. 772, 318 So.2d 329 (1975). While mere presence is insufficient, the fact that two men got into a Ford automobile which was “standing by” with the “motor running and radiator steaming” and driven away from the scene by the defendant may also authorize a conviction. Cost v. State, 30 Ala.App. 182, 2 So.2d 446 (1941).

In the case under review, there was no evidence at the time the motion to exclude was made which would justify or support an inference that Thomas was present with the robbers near the scene of the robbery before the commission of the crime or that he had any knowledge that a robbery was going to be committed. The evidence shows no consciousness of guilt by Thomas upon his capture and arrest. The state simply proved that Thomas was present in an automobile which was entered by two robbers. Such evidence, while creating a suspicion of guilt, is wholly insufficient to support a conviction. For this reason this case is reversed.

The Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States, and also the Constitution of Alabama, precludes a second trial once a reviewing court has found the evidence insufficient to sustain the jury’s verdict of guilty. The prosecution cannot be afforded another opportunity to supply the evidence which it failed to muster in the first proceeding. Therefore this case must be reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed. 2d 1 (1978).

REVERSED AND RENDERED.

HARRIS, P. J., and TYSON and BOOK-OUT, JJ., concur.

DeCARLO, J., dissents.

DeCARLO, Judge,

dissenting.

This case is being reversed and rendered on the basis that there was not sufficient evidence to connect this appellant with the robbery.

I do not agree.

The evidence submitted at trial showed that the two who had just robbed the Zippy Mart, “jumped into” the automobile where Thomas was seated behind the “wheel.”

It showed that the car was on the Pike Avenue Baptist Church parking lot, backed into a parking space and “facing” the street.

At the time Sgt. Jackson received the call concerning the alarm, he was within two blocks of the Zippy Mart. He testified that he saw the two robbers run, and jump, into the car where the appellant was seated behind the steering wheel. According to Jackson, at the very moment he pulled the police car on the parking lot in front of the vehicle, occupied by Thomas, the car “cranked up. . ”

In my judgment, it was logical and reasonable for the jury to deduce that Thomas was the intended driver of the “get-away” car. The robbery occurred at 10:00 o’clock in the morning, and the car occupied by Thomas was parked within two blocks of the place that was robbed. At the moment the two robbers entered the car, occupied by Thomas, the car was “cranked.” Had the appellant driven the car a few feet from its parked position, no question could be raised that he was not in truth, and in fact, the “get-away driver.” The only reasonable and logical conclusion that could be drawn from this set of facts is that Thomas was the “get-away” driver, and would have completed his purpose, had it not been for an alert police officer.

It defies reason to infer that the appellant was parked at the Pike Avenue Baptist Church for any other purpose. On the contrary, the jury would have to have been totally oblivious to reality to have concluded that appellant was not involved. He was certainly not seated there in the car awaiting church services. Any other conclusion would unquestionably be the result of surmise, speculation and conjecture.

Based on the foregoing reasons of fact, I respectfully dissent.

On Rehearing

BOWEN, Judge.

All the evidence against the appellant was circumstantial.

Circumstantial evidence is not inferior evidence but is evidence only if it along with the other evidence is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt. Sumeral v. State, 39 Ala.App. 638, 106 So.2d 270 (1958). It is the inference of a fact in issue which follows as a natural consequence from known collateral effects. White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975).

For circumstantial evidence to be sufficient to justify a jury in convicting upon it, the circumstances proved must not only be consistent with the hypothesis that the defendant is guilty but inconsistent with the hypothesis that he is innocent, and inconsistent with every other rational hypothesis except that of his guilt. Ex parte Acree, 63 Ala. 234 (1879); Ott v. State, 160 Ala. 29, 49 So. 810 (1909); Lloyd v. State, 50 Ala.App. 646, 282 So.2d 85 (1973). Circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence. Pickens v. State, 115 Ala. 42, 22 So. 551 (1897); Tanner v. State, 291 Ala. 70, 227 So.2d 885 (1973). Circumstances, no matter how strong, which merely arouse a suspicion of guilt will not serve as a basis for conviction. Black v. State, 52 Ala.App. 528, 294 So.2d 777 (1974); DeSilvey v. State, 245 Ala. 163, 16 So.2d 183 (1944). Circumstances merely consistent with guilt or causing suspicion thereof are insufficient to justify a conviction of crime. Jordan v. State, 229 Ala. 415, 157 So. 485 (1934).

Here, the circumstantial evidence did nothing more than create a suspicion that the appellant was guilty of a criminal act. It was therefore an insufficient basis for a conviction. Facts are not proved by circumstances merely consistent with their existence. Fuguay v. State, 22 Ala.App. 243, 246, 114 So. 892 (1927).

On rehearing the State has simply refiled its original brief and has not specifically and clearly called to this court’s attention any alleged error in our original opinion. Refiling a brief filed on submission as a brief supporting an application for rehearing is not permitted. DeGraaf v. State, 34 Ala.App. 137, 144, 37 So.2d 130 (1948).

“After an appellate court has discharged its duty by full consideration of the questions raised in a record, and has issued its opinion, then clearly it is the duty of an applicant challenging the correctness of that opinion to point out clearly and intelligently the errors which he alleges infect the opinion and decision. The only way this can be done is of course in a proper brief filed in support of the application for rehearing.”
* * * * * *
“While the appellate courts of this State have been inclined toward a liberal construction of Rules 10 and 38 in determining the adequacy of briefs, yet as stated by the Supreme Court in Ogburn-Griffin Grocery Company v. Orient Insurance Company, 188 Ala. 218, 224, 66 So. 434, 435, ‘we cannot permit them (the rules) to be ignored or entirely disregarded, however innocently, for they were framed and adopted to facilitate the business and be an aid to the court in its prompt and orderly disposition, a result (in) which the profession and those whom it represents are greatly interested’.
“The office of an appellate brief is to aid an appellate court to understand quickly the issues involved, and by points, propositions and argument, supported where possible by citation of authority, present to the court the questions in controversy.”
DeGraaf, 34 Ala.App. at 144, 37 So.2d at 136.

A motion to dismiss an application for rehearing on the grounds that a party in a criminal case has refiled on application for rehearing a brief substantially identical to that filed on the original submission, where such facts exist, is well taken and due to be granted.

Therefore, the appellant’s motion to strike the State’s application for rehearing is granted. Because the appellant cannot be retried, he is due to be discharged from custody.

OPINION EXTENDED; APPLICATION FOR REHEARING DISMISSED.

HARRIS, P. J., and TYSON and BOOK-OUT, JJ., concur.

DeCARLO, J., adheres to dissent.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Hazel KONTOS v. STATE.
    6 Div. 695.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      William N. Clark, Maurice Bishop, L. Drew Redden, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The appellant was indicted for the murder of her ex-husband, James Barney Coon-er by shooting him with a pistol. The jury found the appellant guilty of murder in the first degree and fixed punishment at life imprisonment. Thereafter, the trial judge set sentence accordingly. The appellant made timely motion to exclude the State’s evidence, request for the affirmative charge and motion for new trial. The trial judge denied each motion.

The trial commenced with the voir dire examination of Sergeant William T. Gaut. Sergeant Gaut testified that, in response to a telephone call from Attorney Maurice Bishop, received by his partner, Sergeant Albert Wallace, he (Gaut) and Wallace went to Mrs. Hazel Kontos’ home at 936 South 54th Street, Birmingham, Alabama, on November 15, 1976. Upon arriving at this address, the officers met Mr. Jerry Colvin, who identified himself as an attorney from the office of Mr. Bishop. Mr. Colvin waited in the yard while the officers went to the front door and knocked. Mrs. Kontos answered the door. The officers then identified themselves, and Mrs. Kontos said, “The corpse is in there” (R. p. 50). According to Sergeant Gaut, he asked Mr. Colvin to enter the house with the officers, at which point the three of them entered. Sergeant Gaut stated that he went to a hallway leading to a bedroom in the back of the house. In the doorway to the bedroom he saw a large bundle which appeared to be a body wrapped in a gold drapery. Sergeant Gaut recalled that the smell of decaying flesh permeated the house. Sergeant Gaut returned to the front hallway where Mrs. Kontos was seated with Mr. Colvin. At this point Sergeant Gaut informed Mrs. Kontos that she was under arrest and read to her from a standardized card her Miranda rights. In response, Mr. Colvin stated that Mrs. Kontos would not make a statement at that time.

Near the front door in the seat of a chair a nickel plated pistol with a pearl handle was found. Sergeant Wallace asked Sergeant Gaut who owned the pistol (R. p. 40). Mrs. Kontos replied, “That pistol is mine” (R. p. 47). Sergeant Gaut recalled that Mr. Colvin told Mrs. Kontos not to say anything further. In the living room, underneath a chair, on the floor, another pistol was found, this one in a cocked position. Sergeant Wallace asked Sergeant Gaut how this pistol got there. Again, Mrs. Kontos blurted out, saying, “I put it there” (R. p. 48).

Sergeant Gaut testified that he was present at Cooper Green Hospital at about 2:00 p. m., on November 15, 1976, when an autopsy was performed on the deceased. Sergeant Gaut indicated that Mrs. Kontos identified the corpse as James Barney Coon-er, her ex-husband (R. p. 53). The State introduced numerous photographs during Sergeant Gaut’s testimony on voir dire examination. Some of these photographs had been taken at the scene while others were taken during the autopsy. At the close of the voir dire examination, the trial judge ruled that certain photographs were inadmissible, but allowed others into evidence. All three of the statements made to the officers by Mrs. Kontos while she was at her home were ruled admissible. However, the trial judge ruled inadmissible a statement made by Mrs. Kontos on November 16, 1976, to Sergeant Gaut while she was in custody at the City Jail, but without her counsel being present (R. p. 102). The statement, which was neither recorded, transcribed, nor signed, contained a confession of the killing in substantial detail (R. pp. 59-60). Although ruled inadmissible during the State’s case in chief, the substance of the statement ultimately came into evidence on rebuttal by the State (R. pp. 743-744).

Voir dire examination concluded, the Judge called the jury into the courtroom to hear testimony of the State’s first witness, Wayne Cooner. Mr. Cooner, the brother of the deceased, identified State’s exhibit one as a photograph of the deceased.

Deputy Coroner Jack Parker testified that he was summoned to the home of Mrs. Kontos on November 15, 1976, arriving at 10:41 a. m. Mr. Parker took several photographs at the scene depicting the body as it was found. State’s exhibit two was a photograph taken by Mr. Parker at the scene showing the body with the gold drapery partially removed, showing other layers of wrappings around the body. Mr. Parker testified that at the foot of the bed in the bedroom in which the deceased was found, a large roll of clear plastic material was found standing on its end.

Mr. Parker stated that he was present during the autopsy at Cooper Green Hospital. The autopsy revealed two apparent gunshot wounds to the head. Mr. Parker identified several photographs that he had taken during the autopsy. Mr. Parker observed a bullet being removed from the deceased’s brain during the course of the autopsy. Mr. Parker sealed the bullet in a vial and delivered it to the evidence technician, Officer Crocker, in the Birmingham Police Department.

Chief Medical Investigator Jay N. Glass testified that he accompanied Mr. Parker to the appellant’s home where he began an investigation of the death of the deceased. Mr. Glass later performed the autopsy on the deceased at Cooper Green Hospital (R. p. 130). Mr. Glass stated that the wrappings on the body were removed during the autopsy, layer by layer, with a dictated description and photographs taken of each layer. Mr. Glass identified the photographs of the body taken at the scene and those taken during the autopsy.

Mr. Glass was shown to possess the necessary qualifications to express his opinion as to the effect of injuries upon the human body. Mr. Glass testified that there were two apparent gunshot wounds of entry to the head of the deceased and one apparent wound of exit. Based on his experience and his examination of the body, Mr. Glass formed an opinion that these wounds were the cause of the deceased’s death. Mr. Glass estimated roughly that the time of death was between twenty-four and forty hours prior to 2:00 p. m. on November 15, 1976. In his judgment, Mr. Glass stated that it was more likely that death occurred more than forty hours prior to the autopsy than that death occurred less than twenty-four hours prior to the autopsy.

Sergeant Albert Wallace testified that he received a call at Police Headquarters at 10:05 a. m. on November 15,1976, from one identified to him as Attorney Maurice Bishop. The caller said that, if the police went to 936 South 54th Street, the home of Mrs. Hazel Kontos, they might possibly find a dead body there. Upon arrival at the appellant’s home, Sergeant Wallace and Sergeant Gaut met Mr. Jerry Colvin in the front yard. He identified himself as an attorney from Mr. Bishop’s office. The remainder of Sergeant Wallace’s testimony was substantially the same as the admissible part of Sergeant Gaut’s testimony on voir dire. A number of photographs taken at the scene were identified by Sergeant Wallace and admitted into evidence during his testimony, including a photograph of the mattress in the bedroom where the deceased was found. The photograph showed a large red stain on the mattress which appeared to be blood (R. p. 161). Sergeant Wallace identified State’s exhibits seventeen and eighteen as being, respectively, the nickel plated pistol with the pearl handle and the pistol found under a chair in a cocked position.

On cross-examination, Sergeant Wallace recalled finding some broken glass and a broken picture frame in the living room of the appellant’s house (R. p. 195). During his on-the-scene investigation, Sergeant Wallace was called to testify in court on another case. His investigative involvement with the instant case ceased when he left the scene.

Evidence Technician Leonard M. Robbins testified that he was summoned to the appellant’s address on November 15, 1976. He arrived about 10:45 a. m. with Officers Wyatt and Brown. Officer Robbins’ duties during the investigation at the scene included taking photographs, collecting and marking evidence and diagramming the scene. Officer Robbins identified State’s exhibit seventeen from his inscription as being the pistol that he photographed in a chair at 936 South 54th Street. Officer Robbins “dusted” State’s exhibit seventeen, but was unable to recover any recognizable fingerprints. Officer Robbins noted that the pistol, labeled State’s exhibit seventeen, was a five-shot revolver which, when found, had one loaded cartridge and four spent cartridges in its chambers (R. p. 207). Officer Robbins similarly identified State’s exhibit eighteen from his inscription as being the pistol found under a chair in the living room of the appellant’s house. State’s exhibit eighteen was a .38 caliber six-shot revolver which, when found, was fully loaded, and in a cocked position. A third pistol, State’s exhibit twenty-three, was found partially under the bed in the other bedroom of the house. Officer Robbins identified this pistol from his inscription and also identified a photograph of the pistol taken as it was when found.

Officer Robbins identified a photograph of the wall next to the bed in the bedroom in which the deceased was found. The photograph, State’s exhibit twenty-five, showed two bullet holes in the wall. Officer Robbins testified that he cut out a portion of the wall surrounding the bullet holes and recovered a bullet from the wall (R. p. 220). Officer Robbins listed numerous household articles, clothing (some men’s clothing), etc., that he collected at the scene. All of the evidence that Officer Robbins collected was turned over to the property room at the Police Department where it was sealed in boxes marked for identification. The three pistols, the ammunition found in them, and the bullets recovered were turned in to Mr. Robert Johnson, weapons expert with the Birmingham Police Department, on November 19, 1976 (R. p. 272). Officer Robbins later recovered these items from Mr. Johnson and placed them in the property room at the Birmingham Police Department on December 14, 1976 (R. pp. 264 and 272).

Evidence Technician C. R. Wyatt identified two scale diagrams that he made showing the relative locations of the body, the pistols, the roll of plastic material, etc., within the floor plan of the appellant’s house. Officer Wyatt stated that the diagrams were made from his measurements and observations at the scene on the morning of November 15, 1976. The diagrams were admitted into evidence.

Evidence Technician Jimmy S. Brown participated in the investigation of the scene at the appellant’s house on November 15, 1976. Officer Brown identified a photograph taken of the wall in the bedroom showing two apparent bullet holes. Officer Brown stated that he helped in removing a section of the wall surrounding the hole which led to the discovery of the bullet (R. p. 322).

Officer Brown stated that Mr. Colvin took him into the other bedroom of the house and showed him where to find a shoe box which contained a large sum of money in cash. Custody of the money, which totaled over $40,000.00, was taken by Mr. Colvin and a receipt given to the police.

Evidence Technician R. K. Crocker of the Birmingham Police Department testified that he was present at Cooper Green Hospital when the autopsy was performed on the deceased. Officer Crocker took several photographs during the autopsy which he identified. These photographs were admitted over defense counsel’s objections. Officer Crocker identified a vial containing a bullet removed from the deceased’s brain, which Officer Crocker received from Coroner Parker during the autopsy and later delivered to Mr. Robert Johnson.

Mr. Robert Johnson, Supervisor of Scientific Investigation, with the Birmingham Police Department, testified concerning the results of his ballistics comparisons in this case. When shown State’s exhibits seventeen, eighteen and twenty-three, Mr. Johnson identified them from his inscriptions as the pistols he received from Officer Robbins on November 19, 1976. In Mr. Johnson’s opinion as an expert in ballistics, State’s exhibit seventeen, at that time, had been fired recently, but neither State’s exhibits eighteen nor twenty-three had recently been fired.

Mr. Johnson testified further concerning the results of his test firings of the three pistols. Mr. Johnson compared test fired bullets from each pistol with the two evidence bullets that he received from Officer Robbins (bullet taken from bedroom wall) and Officer Crocker (bullet taken from deceased’s brain). Based upon microscopic comparison of the lands and grooves in each bullet and upon his experience and training, Mr. Johnson concluded that State’s exhibit seventeen (pearl handled, nickel plated pistol) fired the evidence bullets to the exclusion of all other weapons (R. pp. 351 and 357).

Sergeant William T. Gaut testified to substantially the same events as he had previously recounted on voir dire examination. Again, the Judge ruled that portion of Sergeant Gaut’s testimony inadmissible which related to the appellant’s statement to Sergeant Gaut made while she was in jail and without counsel present. The State rested at the close of Sergeant Gaut’s testimony.

At this point the appellant’s counsel moved to exclude the State’s evidence on the ground that it was insufficient as to each charge in the indictment as a matter of law. The trial Judge overruled the motion.

The first witness for the defense was Dr. George S. Graham, a Birmingham physician specializing in internal medicine. Dr. Graham testified that the appellant had been his patient for twenty-five years. Dr. Graham stated that the appellant suffered from petit mal, a variant of grand mal, which is epilepsy (R. p. 466). During the course of his treatment of the appellant, Dr. Graham had prescribed medication which had been effective in preventing the occurrence of the mild seizures known to accompany the disease. Dr. Graham noted that a situation of extreme stress could bring on a seizure in the appellant which might result in loss of consciousness or memory.

Dr. Graham diagnosed another condition in the appellant, known as hypoglycemia or low blood sugar. This condition could produce symptoms such as a feeling of being very weak, nervous or shaky. However, these symptoms would be remedied by consuming nutritious food or drink.

Mrs. Hazel Kontos, the appellant, stated that she was fifty-six years of age. She had been married to Charlie Kontos for twenty-five years until his death in February of 1975. The appellant met the deceased in October of 1975, and they were married in January of 1976. The appellant obtained a final divorce from the deceased in July of 1976, having separated from him in April.

The appellant testified that sometime after Mr. Kontos’ death she found a total of $100,000.00 hidden in the house. These funds were listed on the estate tax return for Mr. Kontos’ estate. During the course of the appellant’s marriage to the deceased, he was unemployed. The appellant worked as a beautician at Ja-Von’s Beauty Salon.

On November 12, 1976, late in the afternoon, the deceased came to Ja-Von’s Beauty Salon for a haircut and a manicure. After the appellant cut his hair, the deceased went to the front part of the salon for a manicure. While getting a manicure, the deceased had said that he intended “to perform kidney surgery” that night. Then he said he was going to go to Hawaii and never work again. At this point the appellant became frightened and left the salon via the back door. The appellant recalled that she drove home, changed into night clothes and went to sleep early on the sofa in the den, where she customarily slept.

It appeared from the record that the deceased had harassed the appellant on several occasions after their divorce. On one occasion about a month prior to November 12, 1976, the deceased called the appellant at work and threatened to kill her if she did not do as he wished. On this occasion, one of the appellant’s customers moved her automobile from its customary parking space so that it was hidden. On another occasion, after their divorce, the appellant refused to admit the deceased into her home. With an ax the deceased broke windows and repeatedly chopped at the appellant’s front door. The appellant ran to the home of her next door neighbors to escape the intruder, her ex-husband.

On the night of November 12, 1976, at about 11:00 p. m., the appellant was awakened by loud knocking on her front door. She went to the door and admitted the deceased. The appellant and the deceased then went back into the den where the deceased called her obscene names. At this point the deceased went back into the bedroom and returned with a pistol, the same being State’s exhibit eighteen. The deceased cocked the pistol, placed it to the appellant’s throat and threatened to kill her. The appellant recalled that the deceased held the pistol at her throat for about ten minutes. The entire confrontation lasted about two hours. During this time the deceased slapped the appellant in the face, forbade her from reading the Bible, smashed some religious pictures, and made offensive remarks about religious personages. The appellant was allowed to go to the bathroom, but the deceased insisted on accompanying her. Inside the bathroom, the deceased jerked a gold religious medallion from the appellant’s neck and flushed it down the toilet (R. p. 519). Afterwards, they went back into the den.

Finally, the deceased went into the back bedroom, undressed and lay down on the bed to sleep. The appellant recalled that the deceased took the pistol, State’s exhibit eighteen, with him to the bedroom. The appellant then got a pistol out of a drawer, went to the back bedroom and shot the deceased as he lay on the bed (R. p. 523). The appellant identified State’s exhibit seventeen as the pistol she used. The appellant could not remember how many shots she fired. In fact, her memory was vague about events which occurred after the shooting. During the time between 1:00 a. m. on November 13, the approximate time of the shooting, and the morning of November 15, 1976, when the police arrived, the appellant could not account for her activities.

The appellant stated that, during the course of their marriage, she had given the deceased money on several occasions from the funds left to hér by Mr. Kontos. The appellant purchased two vehicles for the deceased and financed a business venture that never materialized. The appellant estimated that she had given the deceased funds totalling $20,000.00 during and after their marriage (R. p. 543). The last time the appellant had given the deceased money was shortly before his death. The appellant recalled that she gave the deceased $1800.00, telling him to leave her alone.

On cross-examination, the appellant testified that, after her divorce from the deceased, she had bought groceries and cooked meals for him. A small note pad was identified by the appellant as containing her own and the deceased’s handwritten notes to each other on several pages.

Dr. Creighton C. Farguson, Jr., testified that he was employed as company physician for the American Cast Iron Pipe Company during and after the period of the deceased’s employment by that company. Dr. Farguson characterized his practice of medicine as a general practice which often functioned as a referral to company-retained medical specialists. During the course of his employment, Dr. Farguson observed and treated the deceased, James Barney Cooner. Dr. Farguson referred the deceased to the Kay Clinic for psychiatric treatment. Dr. Farguson diagnosed a mental illness in the deceased, known as paranoid schizophrenia (R. p. 598). Dr. Farguson explained that the deceased continually suffered from persecution complexes, thinking that everyone was against him. Dr. Farguson stated that this condition could lead to violent behavior in certain situations.

Dr. John D. Elmore, a psychiatrist, testified that he was employed by the Kay Clinic. During the course of his employment, Dr. Elmore observed and treated the deceased as a result of his referral from Dr. Farguson. Dr. Elmore first saw the deceased as a patient in 1968, but other psychiatrists in the Kay Clinic had seen him as early as 1959. Dr. Elmore diagnosed the deceased’s condition in 1968 as paranoid schizophrenia. Dr. Elmore explained that the deceased’s illness was chronic, tending toward cyclic alterations in its severity. The deceased’s illness manifested itself in the form of occasional hostility to others or to his environment. Prescribed medication was effective in suppressing the hostility only when taken as directed. The medication was not curative in nature. At the time of the deceased’s last visit to the Kay Clinic, in 1969, his condition was judged to have improved.

Vonda Rice, the appellant’s employer, testified to the events of November 12, 1976, when the deceased came into the beauty salon for a haircut. Ms. Rice’s account of those events was substantially the same as that of the appellant. Ms. Rice recalled that on other occasions the deceased had telephoned the beauty salon, using obscene language and threats when Ms. Rice had told the deceased that the appellant could not talk to him.

Mrs. Sara N. Crabtree, an employee at Ja-Yon’s Beauty Salon, testified to substantially the same events that occurred in the beauty shop on November 12, 1976, with reference to the conduct of the appellant and the deceased. Mrs. Crabtree recalled an occasion prior to November 12, 1976, when the deceased had telephoned repeatedly asking to speak with the appellant.

Nettie Hyatt, an employee at Ja-Von’s Beauty Salon, testified that she gave the deceased a manicure on November 12,1976, after the appellant had cut his hair. The witness’ testimony concerning what occurred and what was said on that afternoon in the beauty shop substantially corroborated the testimony of the appellant, Ms. Rice and Mrs. Crabtree.

Mrs. Opal Brake and Mr. Homer Brake both testified that they lived next door to the appellant. During the marriage of the appellant and the deceased, Mr. and Mrs. Brake had on numerous occasions heard loud, profane and abusive language from a male voice inside the appellant’s house. Both Mr. and Mrs. Brake recalled an occasion when the appellant had come to spend the night with them because she was afraid of the deceased. Mr. and Mrs. Brake testified that the appellant’s reputation for truth and veracity in their community was good and that they would believe her under oath in a case in which she had an interest in the outcome.

Levene Brasher testified that she was married to the deceased from March, 1966, until July, 1967, when they were divorced. The witness testified that the deceased’s reputation for violence, bloodthirstiness and dangerousness was bad.

Evelyn Bentley testified that she was married to the deceased from March, 1968, until April, 1969, when they were divorced. The witness testified that the deceased’s reputation for violence, bloodthirstiness and dangerousness was bad.

Teresa Bagwell testified that she was the daughter of Evelyn Bentley, who had previously testified. Ms. Bagwell was twelve years of age at the time of her mother’s marriage to the deceased. Ms. Bagwell’s testimony concerning the deceased’s reputation was corroborative of that of Ms. Bentley and Ms. Brasher.

Jean Downey, a regular patron of Ja-Von’s Beauty Salon, testified that she had known the appellant since September, 1975. Ms. Downey recalled an occasion shortly before November 12,1976, when, as a result of a conversation between herself and the appellant, Ms. Downey moved the appellant’s automobile from its customary parking space to another less conspicuous place.

The appellant next presented the testimony of eleven character witnesses. Each of these witnesses had known the appellant for many years prior to the death of her ex-husband. Each witness testified that the appellant’s general reputation in the community was good and that the appellant had a reputation in the community for being a truthful, honest, peaceful and quiet person. Each witness stated further that he or she would believe the appellant under oath in a case in which she was interested in the outcome.

At the close of this character testimony, defense rested its case. The State then recalled Mrs. Levene Brasher to the stand as part of its case on rebuttal. On redirect examination, the appellant attempted unsuccessfully to introduce the divorce decree dissolving the marriage of J. B. Cooner, the deceased, and the witness then known as Levene Cooner.

The State next recalled, over defense counsel’s objection, the appellant to the stand. On recross-examination, the State attempted unsuccessfully to go into the discussion between appellant and Sergeant Gaut at the jail on the day after her arrest when she did not have counsel present to advise her. The trial judge sustained defense counsel’s objection.

The State recalled Sergeant Gaut to the stand. Sergeant Gaut was allowed to testify over objection that on the day after her arrest, the appellant voluntarily told Sergeant Gaut at the jail, after having been advised of her Miranda rights, that she had become fed up with the deceased’s treatment of her, that she waited until the deceased was asleep and then went into the bedroom and shot him in the head, that after the shooting she pulled the sheet off the bed, pulled the body off the bed onto the sheet and wrapped the body several times, intending to dispose of it, but was unable to do so.

The final witness for the State was Mildred Battles, sister of the deceased. Through Mrs. Battles’ testimony, the State sought unsuccessfully to have admitted into evidence a note pad which she found in the deceased’s apartment after his death. The note pad had been identified earlier by the appellant through her recognition of the handwriting contained therein. The trial judge sustained the defense’s objection to the introduction of the note pad.

At the close of the testimony of Mrs. Battles, the State rested its case on rebuttal. During closing argument by the defense, the State objected to a reference to the appellant as being the deceased’s fifth wife. The trial judge sustained the objection.

I

The first issue presented for our review concerns whether, as a matter of law, the trial judge should have granted the timely motion to exclude the State’s evidence, which motion alleged that the State failed to make out a prima facie case. Specifically, the appellant points to the lack of sufficient evidence with respect to the requisite elements of premeditation and deliberation. In making its timely motion to exclude the State’s evidence, request for the affirmative charge, and motion for a new trial, the appellant squarely presents the issue of the sufficiency of the evidence before this Court. Cf. Robinson v. State, Ala.Cr.App., 342 So.2d 1331.

The appellant contends that this Court’s review of the trial judge’s denial of the motion to exclude made at the close of the State’s case is limited to consideration of the sufficiency of the evidence having been presented at that point in the proceeding and viewed in the light most favorable to the State. Williams v. State, Ala.Cr. App., 340 So.2d 1144, cert. denied, Ala., 340 So.2d 1149; Livingston v. State, 44 Ala. App. 559, 216 So.2d 731 (1968); Tooson v. State, 56 Ala.App. 613, 324 So.2d 327 (1975), cert. denied, 295 Ala. 426, 324 So.2d 333. We believe that the appellant’s contention in this regard is a correct statement of the law, notwithstanding some early cases to the contrary. See Britton v. State, 15 Ala. App. 584, 74 So. 721 (1917); Sandlin v. State, 8 Ala.App. 396, 62 So. 386 (1913). The more recent cases cited in the appellant’s brief are based on the rationale that a timely motion to exclude made at the close of the State’s case, which is insufficient as a matter of law, entitles the defendant to be discharged at that point. To hold that the error, which occurs when a trial judge improperly denies a timely motion to exclude, can be cured by subsequent evidence presented by the defense is to hold that a trial judge can be put in error in denying a motion to exclude only when the defense subsequently fails to supply the missing elements of the State’s case. Such reasoning would lead to the demise of the motion to exclude as a procedural corollary to the defendant’s presumption of innocence and the State’s burden of proof, and has, therefore, been several times rejected by the courts of this State.

The question to be decided is whether vel non the evidence presented by the State prior to the motion to exclude, if believed by the jury, would be sufficient to convince the jury beyond a reasonable doubt of the defendant’s guilt. Randolph v. State, 100 Ala. 139, 14 So. 792 (1894); Morton v. State, Ala.Cr.App. (1976), 338 So.2d 423, cert. denied, Ala., 338 So.2d 428. It is apparent that much of the State’s evidence in this case was circumstantial. However, it is well settled that 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. Scroggins v. State, Ala.Cr.App. (1976), 341 So.2d 967, cert. denied, Ala., 341 So.2d 972 (1977). See also, Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

While mere speculation, conjecture, or surmise, will not authorize a conviction, the jury is under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inference it chooses to draw. United States v. Strickland, 509 F.2d 273 (5th Cir. 1975).

Unquestionably this case was close. However, it is clear from a careful examination of the State’s case in chief that the facts and circumstances in evidence, as presented in this cause, were sufficient, as a matter of law, to require submission of the case to the jury. Specifically, we find the following facts and circumstances sufficient to support our ruling that there was no error in denying the motion to exclude:

1. The body of the deceased was found in the appellant’s bedroom on the floor, wrapped in several layers of various material;

2. A roll of clear plastic, identical to that in which the body was wrapped, was found in the same bedroom;

3. A large red stain, which appeared to be blood, was found on the mattress of the bed in the bedroom where the body was found;

4. The cause of death was determined to be two gunshot wounds to the left side of the head (there was one exit wound on the right side of the head);

5. A bullet recovered from the deceased’s brain and a bullet recovered from the blood-splattered wall adjacent to the bed were determined to have been fired from State’s exhibit seventeen (pearl-handled, nickel plated pistol);

6. The appellant’s statements to the police at the scene, to wit:

“The corpse is in there.”
“That pistol is mine.” (the murder weapon)
“I put it there.” (State’s exhibit eighteen)

7. The fact that the police were first notified of the possibility of a homicide by the appellant’s attorney, whose representative was also present when the police arrived at the appellant's home address; and

8. The discovery of several articles of men’s clothing in the closets of the appellant’s home, notwithstanding her divorce in July, 1976, about three months before the homicide.

The proof by the State on its case in chief of the above collateral facts and circumstances was sufficient for the, jury to infer that the appellant committed the offense charged in the indictment.

II

The appellant next asserts that, if this Court determines that the State’s case in chief was sufficient as a matter of law, error to reversal occurred in refusing to give the affirmative charge and in denying the appellant’s motion for new trial. The appellant argues that, as a matter of law, the killing of the deceased was in self-defense.

In Barnes v. State, Ala.Cr.App., 361 So.2d 390 (1978), cert. denied, Ala., 361 So.2d 396 (1978) this Court stated:

“Briefly, the elements of self defense are (1) that the defendant must be free from fault in bringing on the fatal difficulty; and (2) that there must be a present impending peril to life or danger of great bodily harm, either real or so apparent as to impress on the mind of a reasonable person a reasonable belief of an existing necessity to take life, and the defendant must so believe; and (3) that a man as required by law must, though he may be free from fault and though he may be in danger, either real or apparent, of losing his own life or receiving serious bodily harm, flee or retreat if by retreating he could prevent the taking of life and not increase his own danger.
“. . . It is elementary that one need not retreat from his or her own .home.

The evidence in the instant case unquestionably establishes that the fatal affray took place in the appellant’s home. It follows, then, that the appellant was not required by law to retreat from her assailant.

Whether vel non the first and second elements of self-defense listed above existed at the time of the killing must be determined from an examination of the testimony of the appellant, the sole witness to the shooting. The appellant contends that her uncontroverted testimony establishes that she was free from fault in bringing on the fatal difficulty. However, it is well settled that the jury is free to consider the interest of the appellant in the outcome of the case when weighing her testimony. Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975); Bryer v. State, 34 Ala.App. 561, 42 So.2d 496 (1949), cert. denied, 252 Ala. 609, 42 So.2d 500.

The same reasoning is applicable with respect to whether the appellant believed that there was a present impending peril to life or danger of great bodily harm, either real or so apparent as to impress on the mind of a reasonable person a reasonable belief of an existing necessity to take life. In Wall v. State, 49 Ala.App. 285, 270 So.2d 831 (1972), this Court stated:

“In determining this question the jury is entitled to look at all the testimony offered by the State and the defendant. And even though the evidence of defendant with regard to the elements of self-defense may have been without dispute, its credibility was for the jury. They were not bound to accept it as true and to draw any inference of imminent danger or freedom from fault in bringing on the difficulty. In their discretion they had a right to reject it as they apparently did in the case at bar. Cooley v. State, 233 Ala. 407, 171 So. 725 (1937); Kemp v. State, 278 Ala. 637, 179 So.2d 762 (1965).”

Therefore, we find no error either in refusing to give the affirmative charge or in denying the motion for new trial.

III

The appellant contends that the trial judge erred to reversal in refusing to give the appellant’s requested written instructions on self-defense and on the burden of proof. We are satisfied after a careful examination of the trial judge’s oral charge that the refused charges were fairly and adequately covered by the oral charge. § 12-16-13, Code of Alabama 1975. Therefore, refusal was proper. Ingram v. State, Ala.Cr.App., 356 So.2d 761 (1978).

IV

The appellant contends that the trial judge erred in sustaining the State’s objection during the following excerpt from closing argument by the defense (R. p. 768):

“MR. BISHOP: Let’s take married life. The testimony in this record is undisputed that Hazel Kontos lived with Charlie Kontos, who enjoyed an unquestioned excellent reputation for twenty-three years of married life and until he died. Two wives of, she was Cooner’s fifth .
“MR. JOHNSON: Judge, I want to object. There has been no evidence about any . . .
“THE COURT: Sustained. Disregard that.
“(Thereupon, Mr. Bishop continued addressing the jury . . . .)”

We find no evidence in the record showing that the appellant was the deceased’s fifth wife. Furthermore, the evidence does not support the assertion concerning the reputation of Mr. Kontos. Therefore, we find no error in the trial judge’s ruling. Smith v. State, 261 Ala. 270, 73 So.2d 916 (1954); Espey v. State, 270 Ala. 669, 120 So.2d 904; Nix v. State, 32 Ala.App. 136, 22 So.2d 449 (1945).

We have carefully examined this record and find same to be free of error. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Jack AVERY v. STATE.
    5 Div. 415.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.

      Mickey L. Johnson, Pelham, for appellant.
    William J. Baxley, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. Appellant was represented by counsel of his own choice and at arraignment pleaded not guilty. After sentence was imposed appellant gave notice of appeal and trial counsel represents him on this appeal.

There was no motion to exclude the State’s evidence; there was no request for the affirmative charge, and no exceptions were reserved to the oral charge to the jury. Appellant did file a motion for a new trial on the ground, among others, that the evidence was insufficient to sustain the verdict of the jury. This puts us to a recital of the evidence.

Wallace Hubbard testified that he lived in Jemison, Alabama, and that he was married to the victim in this case for thirty-two years. On August 1, 1977, shortly after eight o’clock that evening, Hubbard and his wife walked out on the carport of their home. Hubbard testified that he had been talking to his wife four or five minutes, when he heard a gun shooting and saw his wife fall, bleeding at the mouth. Hubbard did not see appellant until after his wife had fallen. Then, appellant fired “some more, but I don’t know where he shot.” After the shots were fired, Hubbard got a single barrel twelve-gauge shotgun and fired at appellant. Police arrived on the scene at that time, and Hubbard turned his weapon over to Jeff Townsend, one of the officers. Shortly thereafter, an ambulance arrived and carried Mrs. Hubbard from the shooting scene. Hubbard further testified that his wife was buried two days later.

Hubbard further testified that his shotgun was in the house at the time appellant shot and killed his wife. Appellant did not testify and no evidence tending to show self-defense was presented to the jury.

On cross-examination, Hubbard testified that appellant had lived across the street from him for a year and a half. During that time, appellant had frequently “cussed” Hubbard or someone at the Hubbard residence. At the time the shooting occurred Hubbard testified that he had a cigarette in his hand.

Donald Porter testified that on August 1, 1977, he lived next door to appellant, whose house was directly across the street from the Hubbard residence. That evening, approximately 8:15, Porter heard appellant cursing and walked around the comer of his house. There he saw appellant in his front yard holding a shotgun. Porter further testified that appellant shouted at Hubbard, “. . . if he was a man to get him a gun, . . . and start out toward the road, that he would drop him before he got out there.” In a few seconds Porter saw appellant raise the shotgun and saw Hubbard standing in front of his pickup. At that same time, Porter heard a gunshot coming from Avery’s direction. Porter turned to go inside his house and then heard two more gunshots come from the same direction as the first blast. About ten or fifteen minutes later Porter heard another shot and saw police arrive on the scene.

On cross-examination, Porter testified that he saw Hubbard holding something in his hand but he could not be sure what it was, saying, “It could have been one of ten or fifteen things, a hoe, a shovel or anything.” Porter also testified that he had previously had trouble with appellant and had torn down a fence between their houses.

On redirect examination, Porter testified that he saw three shotgun shells, two red ones and a green one, in appellant’s yard after the shooting.

T. J. Lockhart testified that he was Sheriff of Chilton County on the night of August 1, 1977. Lockhart found three spent shotgun shells in appellant’s yard. They were gathered by Investigators Beutler and Smitherman to preserve as evidence.

Sherrill Hilyer testified that he lived sixty-five to seventy yards from appellant’s house. About 8:15 p. m. on the evening of August 1,1977, Hilyer heard a man cursing and stepped out on his front porch, seeing a man standing in Avery’s yard. As he stepped back inside his house he heard two gunshots and looked back out again, seeing this man fire a gun, lower it, light a cigarette and walk back towards the Avery residence. Prom the distance he was from the Avery home, Hilyer could not identify the gunman.

John Beutler testified that he was an investigator for the Chilton County Sheriff’s Department. On the evening of August 1, 1977, Beutler investigated an incident at the Hubbard home. After a conversation with Jeff Townsend, Beutler armed himself with an automatic weapon, went to the Avery home and placed appellant under arrest. Beutler was given a twelve gauge pump shotgun by appellant’s wife. Subsequently Beutler turned this weapon over to the State Toxicologist, Dr. Richard Roper. Beutler also testified that he recovered three spent shotgun shells from the front yard of appellant’s home. These shells were also given to Roper. Beutler testified that, from the site of the shells to the location of Mrs. Hubbard’s body, there was a clear view.

Doctor Richard Roper testified that he was an employee of the State of Alabama, Department of Toxicology and Criminal Investigation. Appellant stipulated to Roper’s qualifications as an expert in his field.

Roper testified that he conducted a postmortem examination on the body of Velma Hubbard on August 2, 1977. At that time Roper observed a pattern of small penetrating wounds, numbering in excess of eighty, twenty-nine inches by seventeen inches. This pattern was widely distributed over the face, chest and abdomen of the body. In Roper’s opinion, Mrs. Hubbard’s death was caused by “acute internal hemorrhaging or massive bleeding within the body as a result of a shotgun wound to the body.” The pellets, some of which Roper recovered from Mrs. Hubbard’s body, he described as “duckshot”. These were turned over to Thomas Hopen at the Montgomery laboratory of the Department.

Thomas Hopen testified that he was a Crime Laboratory Analyst with the Department of Toxicology and Criminal Investigation in Montgomery, Alabama. Hopen conducted numerous test firings of the shotgun taken from appellant’s home and formed the opinion that the spent shells found in appellant’s yard were fired from the same weapon. An examination of pellets removed from Mrs. Hubbard’s body revealed that they were number four shot. The shotgun, pellets, and spent shells were received in evidence without objection. Ho-pen’s testimony concluded the State’s case.

Annie Ruth Brown testified that she lived in Clanton, Alabama, and frequently visited the Averys. Mrs. Brown testified that Hubbard and appellant fussed “time after time,” Hubbard two or three times threatening to shoot appellant. On August 1,1977; Mrs. Brown saw Hubbard out by his truck drinking beer at approximately 6:30 p. m. In the truck on a rack was a gun.

Michael Duran testified that he lived in the same neighborhood as Hubbard and appellant. Usually every weekend the two men would “holler and scream and cuss one another.” Hubbard initiated these shouting matches when he was drunk. On cross-examination, Duran admitted having been convicted once of grand larceny.

Rhonda Jo Avery testified that she was appellant’s daughter. She further testified that Hubbard drank frequently and used profane language. On cross-examination, Miss Avery testified that she was not at home at the time of the fatal incident.

Miley Jackson Avery testified that he was appellant’s son. He testified subsequently to the same facts as did his sister, and also testified that he was not home at the time of the shooting. Jackson Avery’s testimony concluded the defense.

The State then recalled Mrs. Annie Ruth Brown. She testified that she was at the Avery home until seven the evening of August 1, 1977. Appellant was not drinking.

The State’s case against appellant consists of overwhelmingly strong circumstantial evidence. Although no one actually saw appellant pull the trigger, a review of the facts above shows that appellant was standing in his front yard with a shotgun; that appellant “called out” Hubbard and threatened him; that a man standing in appellant’s front yard fired a shotgun in the direction of Hubbard’s home; that three spent shotgun shells were found in appellant’s front yard; and that a shotgun recovered in appellant’s home fired the spent shells recovered from the yard of appellant’s home.

In a criminal prosecution circumstantial evidence is entitled to the same weight as direct evidence, provided that it points to the guilt of the accused. Hudson v. State, Ala.Cr.App., 354 So.2d 328. Here the State’s evidence of such a cogent degree pointed directly to appellant as the gunman who killed Mrs. Hubbard and it is sufficient to sustain his conviction.

After appellant’s case was called for trial, and a jury struck and sworn, it was discovered that one of the jurors was a second cousin of the victim. The trial court discharged the jurors asking all of them with the exception of the “related” juror to return to the jury panel. Then the trial court stated that another jury would be selected from the same panel from which the first jury was struck. Appellant moved for a mistrial and asked that the case be continued till the next term of court. The trial court denied the motion and another jury was struck.

Appellant contends that such a procedure was erroneous and a continuance should have been granted, citing, Murray v. State, 210 Ala. 603, 98 So. 871, and Johnson v. State, 53 Ala.App. 354, 300 So.2d 392, cert. denied, 293 Ala. 760, 300 So.2d 396.

While we are aware that the procedure requested by appellant is mandated in capital cases, Murray and Johnson, supra, it is not required in a non-capital case. Special venire rules are not applicable to first degree murder cases since it is no longer a capital felony. Usrey v. State, 54 Ala.App. 448, 309 So.2d 485. For numerous other authorities to the same effect, see 13 Alabama Digest, Jury, ®=»70(1).

In Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied, 291 Ala. 794, 282 So.2d 417, the trial court required the defendant to strike a jury from a panel which included members of a jury which had previously been struck. This Court wrote,

“The court below did not abuse its discretion in requiring appellant to strike a second jury from the same venire after the first jury was struck. The trial judge offered appellant an option: (1) keep the first jury, or (2) strike another jury from the rest of the venire. Appellant argues that he was greatly disadvantaged by the action of the trial court because the state was then familiar with his strikes and could more intelligently strike the second jury. This is true, but the state suffered in kind and degree. Davis v. Wingard, 269 Ala. 535, 114 So.2d 450.”

A careful search of the record reflects no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Larry KYLE v. STATE.
    6 Div. 589.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.

      James F. Burford, III, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was indicted by the grand jury of Jefferson County, Alabama, for indecent molestation of his seven-year-old daughter. In the presence of counsel, appellant was duly arraigned, entering a plea of not guilty to the charge. Appellant was found guilty and was sentenced to five years imprisonment in the State penitentiary. Appellant was found to be indigent and was furnished a free transcript. New counsel was appointed to represent him on this appeal.

The sufficiency of the evidence in this case is not presented for review. Appellant did not move to exclude the State’s evidence; did not request the affirmative charge; no exceptions were reserved to the oral charge of the Court; there was no motion for a new trial; and there were no adverse rulings which contained any merit.

Appellant’s first contention of error is that his daughter, the victim in this case, was not competent to testify and should not have been allowed to do so. The preliminary examination of this witness by the State’s attorney is set out below:

“BAILIFF McCOMBS: Judge, do you want to swear her in or—
“MR. RUSSELL: Wait a minute. Let me do something first.
“THE COURT: All right.
“MR. RUSSELL: Teresa, you remember me?
“THE WITNESS: (Nodding head affirmatively)
“MR. RUSSELL: Huh?
“THE WITNESS: Yes.
“MR. RUSSELL: Okay. Do you remember what we talked about?
“THE WITNESS: (Nodding head affirmatively)
“MR. RUSSELL: Say yes or no. Don’t you?
“THE WITNESS: Right.”
“MR. RUSSELL: Okay. Do you know what it means, that if you don’t tell the truth what will happen to you if you don’t tell the truth? Have you ever head of — Have you ever heard of the term hell?
“THE WITNESS: (Shaking head negatively)
“MR. RUSSELL: You never heard that. Have you ever heard of the term heaven?
“THE WITNESS: (Shaking head negatively)
“MR. RUSSELL: No? Do you know that it is bad to tell a lie?
“THE WITNESS: (Nodding head affirmatively)
“MR. RUSSELL: Huh?
“THE WITNESS: (Nodding head affirmatively)
“MR. RUSSELL: Speak up, Honey. Yes or no?
“THE WITNESS: No.
“MR. RUSSELL: Do you know it’s bad to tell a lie?
“THE WITNESS: (No response)
“MR. RUSSELL: Pardon?
“THE WITNESS: No.
“MR. RUSSELL: You don’t know that it’s bad?
“THE WITNESS: (Shaking head negatively)
“MR. RUSSELL: Would you tell a lie? “THE WITNESS: No.
“MR. RUSSELL: You would not. Why wouldn’t you tell a lie?
“THE WITNESS: (No response)
“THE COURT: Because it’s bad to tell a lie?
“THE WITNESS: (Nodding head affirmatively)
“MR. RUSSELL: You just know that it’s good to tell the truth about things? “THE WITNESS: Yes.
“MR. RUSSELL: Okay. Do you know what it means, Teresa, to raise your hand and say that I swear to tell the truth?
“THE WITNESS: Yes.
“MR. RUSSELL: Okay. • Do you swear that you will tell these gentlemen here today the truth?
“THE WITNESS: Yes.
“MR. RUSSELL: Okay. How old are you?
“THE WITNESS: Eight.”
* * * * * *
“MR. RUSSELL: Okay. Would you tell a lie to get your daddy in trouble?
“THE WITNESS: No.
“MR. RUSSELL: Okay. When you were living with your daddy did your daddy do something to you?
“THE WITNESS: Yes.
“THE COURT: She has never been sworn. Do you want to see to that?
“MR. RUSSELL: Judge, you can go ahead. I think she understands. Do you think she’s qualified?
“THE COURT: I believe she is.
“MR. SAWYER: Are you going to make a ruling on whether she is qualified?
“THE COURT: The Court says she is qualified.”
Code of Alabama, 1975, Section 12-21— 165, states:
“(a) Persons who have not the use of reason, such as idiots, lunatics during lunacy and children who do not understand the nature of an oath, are incompetent witnesses.
“(b) The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness or infancy.” (Emphasis added)

In Conner v. State, 52 Ala.App. 82, 289 So.2d 650, 654, cert. denied, 292 Ala. 716, 289 So.2d 656, we find the following language:

“We believe that the Alabama cases are clear to the effect that, while the trial judge ex mero motu may reject a tendered witness of tender years, nevertheless, he may rely on the adversary process and swear the witness without error if no objection is raised.” (Footnote omitted)

Further discussion of appellant’s contention is pretermitted.

Next appellant contends that he was not allowed to elicit testimony showing bias and prejudice by his wife against him. During cross-examination by appellant, Mrs. Kyle testified that she had not told her husband that she would get even with him for asking her for a divorce in order to leave her for another woman.

Then during the appellant’s testimony, the following occurred:

“Leading up to the events of — going back a little bit, when the alleged incident happened on the 25th of January, 1977, had your wife ever left you?
“A. Yes, sir.
“Q. The time that she went to Gadsden and took the children and you came back up there, what lead into that and what happened?
“A. I don’t know what lead into it. But I’m a truck driver. And I was in Ohio when she left me. And I usually call home and let her know what time I’m coming in.
“And I called home and there was no answer. So, I turned around and called my brother—
“MR. RUSSEL: We object to all of that. “THE COURT: Sustained.
“Q. Did you go after her?
“A. Yes, sir.
“Q. What were the results of your going to Gadsden to get her?
“MR. RUSSELL: Judge, we still object to that.
“THE COURT: Sustained.
“MR. SAWYER: Your Honor, we are trying to prove a motive on why she swore out a warrant.
“THE COURT: All right. You may ask him.”

Out of the presence of the jury, on voir dire examination, appellant testified that his wife had wanted him to take their children and care for them because she could not feed them. This occurred a year before the alleged offense, while appellant’s wife was staying with her mother in Gadsden, Alabama. At some later point appellant’s wife returned home for the sake of the children. Appellant further testified as follows:

“Q. At any time did she come in asking for a divorce?
“A. She asked me for a divorce so many times and I would tell her that I would give her one if she wanted it. But then I told her, I said I had rather not have a divorce on account of the five kids.
“Q. And all of this time you were supporting her, right?
“A. Right.
“Q. Is it not true that you have — that she has confronted you with that she is having affairs with both Albert—
“THE COURT: This is a leading question of your witness.
“MR. RUSSELL: It’s voir dire.
“THE COURT: I know it. But I still— All right. If you don’t object.
“MR. RUSSELL: I don’t object to it on voir dire.
“THE COURT: All right.
“Q. Is it not true that she has given you the reasons why she wants a divorce?
“A. Yes. She told me that she found somebody else. She come out one night and told me about Matthew Clowdus. And I told her okay, that I would give her a divorce.
“Q. Is there anybody else?
“A. I don’t know of nobody else except that this Watkins lived next door to me.
“Q. When you told her that you had found you a girl friend what was her reply?
“A. She said well, you date who you want to date and I will date who I want to date. And I said well, if that’s the way you want it, if you don’t want a divorce. I said I want a divorce, but if you don’t want one, well, it’s okay with me. I will go on and support my kids.
“And I said if you want to run around while I’m gone, I said it’s all right with you.
“Q. Was she using it in a vindictive way, in a getting even type of way or anything because you had a girl friend?
“A. No. She didn’t say nothing that night . . .

Following this testimony, the Court sustained the State’s objection to this line of questioning, agreeing with the State that appellant’s evidence failed to show any bias or prejudice on the part of Mrs. Kyle.

A party against whom a witness has been called may question him in regard to his feelings toward him. Anything which tends to show bias, unfriendliness, or enmity by the witness against the party is admissible. Nichols v. State, 276 Ala. 209, 160 So.2d 619; Gamble, McElroy’s Alabama Evidence, 3rd Edition, Section 149.01(1). However, the trial court has discretionary power to allow or disallow proof of specific facts to show the witness’s bias and that discretion is not to be disturbed unless it clearly appears that the defendant is prejudiced thereby. Benefield v. State, 44 Ala. App. 339, 208 So.2d 449, cert. denied, 282 Ala. 19, 208 So.2d 455.

The evidence which appellant sought to adduce in no way corroborated the alleged occurrence that his wife had told him that she would “get even” with him for wanting a divorce. In fact, appellant testified, as seen above, that it was his wife who requested the divorce.

Furthermore, were it held that appellant’s testimony indicated his wife’s bias or prejudice, Mrs. Kyle testified that her marriage to appellant had been a troubled one and that she had filed for a divorce. Mrs. Kyle’s possible bias or hostility against her husband was squarely before the jury, and the Court’s sustaining of the State’s objection to appellant’s testimony was not error. See Allen v. State, 55 Ala.App. 549, 317 So.2d 517.

Finally, appellant urges that he was not allowed to cross-examine his daughter concerning prior inconsistent statements made by her at a preliminary hearing. The record shows that appellant only asked the witness if she had been unable to answer some questions at the preliminary hearing, which she was able to answer at trial. Without specifying the content of the alleged prior inconsistency, appellant failed to establish the proper predicate for impeachment. Gamble, McElroy’s Alabama Evidence, 3rd Edition, Section 157.01(1).

A careful search of the record reflects no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    James Jacob ISRAEL, Jr. v. STATE.
    6 Div. 756.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    David S. Hassinger, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was indicted by the September, 1976, session of the grand jury of Jefferson County, Alabama, on three counts: (1) burglary in the second degree, (2) grand larceny, and (3) buying, receiving, concealing, or aiding in concealing stolen property. Subsequently, appellant in the presence of counsel was duly arraigned, entering a plea of not guilty to the charges against him. A jury tried and convicted appellant for burglary in the second degree and he was sentenced to five years imprisonment in the penitentiary. Having been found indigent, appellant is in this court with appointed counsel and a free transcript.

This case arose from a burglary at the home of John F. Angwin, Sr., on 2617 Dolly Ridge Road in Birmingham, Alabama. Mr. Angwin testified that, on July 1, 1976, he and his family left their home for approximately one and one-half hour. Before leaving the residence, entrances to the home were secured. However, upon returning home, Mr. Angwin discovered that a sliding glass door and a chain lock had been broken. A search of the premises revealed that numerous items were missing, including sixteen rifles and shotguns, jewelry, coin collections, and a television set, aggre-gately valued at over six thousand dollars. The recovered guns were identified by Mr. Angwin by matching serial numbers of which he had kept a record.

Thomas H. Swatek testified that he was employed by the Jefferson County Sheriff’s Department as a sergeant of detectives. On July 1,1976, Swatek investigated a burglary at the residence of Mr. Angwin. At some later time, on the twelfth or thirteenth day of July, Swatek had a conversation with Sergeant Richard Watkins of the Mountain Brook Police Department at Mountain Brook City Hall. Appellant was also present and Swatek interviewed him.

On voir dire examination, Swatek testified that Sergeant Watkins informed appellant of his constitutional rights by reading them to him from a card. Following this, appellant made a statement. It was shown that no one threatened or coerced him and no reward or hope of reward was promised him to get him to make a statement.

From the record:
“Q. What did he say to you?
“A. I ask him about the Angwin burglary in particular, since that was the one I was working on, and I made reference to the Buffalo Bill Winchester rifles that Mr. Angwin had stolen and he stated that he had gone in the house with Jones and Cook and I believe that Israel said he was supposed to get jewelry, one was supposed to get guns and one was supposed to get TVs.
“Q. Did he say anything else about going into that Angwin residence and taking property out of it?
“A. Nothing other than they got a lot of guns.”

On cross-examination during voir dire, Swatek testified that appellant rode with him and Watkins and pointed out the Ang-win residence at the scene of the burglary. While appellant was making the statement at City Hall, appellant’s father was present and told him that “you and those other so-and-sos better get that stuff and tell these people what you did with it and go and show them the places.” Swatek further testified that he told appellant, who pointed out other homes that had been burglarized, that he would not be charged in those cases. Appellant was under investigation on the Angwin burglary because one of appellant’s cohorts informed Watkins that appellant was “with them on it.” Swatek further testified that he told appellant, following Miranda warnings, that he knew appellant was involved in the Angwin burglary because he had been told so by someone. During the ride appellant pointed out the Angwin home and told the officers this was the house where they got the guns.

Appellant then objected to the admission of the statement into evidence. From the record:

“MR. PICKARD: I move to exclude the statement.
“THE COURT: Overruled.
“MR. PICKARD: On the grounds it is not voluntary and this defendant had been threatened with prosecution in a case wherein the police had no legal evidence to sustain the issuance of a warrant and it constituted a veiled threat on their part to induce this person to make a statement and, in effect, was telling him he might as well do it, that they had the evidence, which they didn’t.
“THE COURT: Overruled.”

Back in the presence of the jury, Swatek testified to appellant’s admission over appellant’s objection. Swatek further testified that appellant told him some of the stolen property was at the home of Joe Dallas in West End and some was at a place on Southside. Later that same day, Swatek obtained a search warrant for Joe Dallas’s home and, upon executing the warrant, the officers found three of the weapons taken from the Angwin residence. These items were later turned over to Mr. Angwin’s son at the Mountain Brook Police Department.

Swatek’s testimony conclude the State’s case. The defense produced no evidence.

After his conviction, appellant filed the following motion for new trial, which was denied.

“MOTION FOR A NEW TRIAL
“TO THE HONORABLE WILLIAM COLE, JUDGE OF THE TENTH JUDICIAL CIRCUIT OF JEFFERSON COUNTY, ALABAMA, CRIMINAL DIVISION.
“Comes now the defendant James J. Israel, Jr., by and through his attorney of Record, Fred Pickard, and moves the court to set aside the verdict of the jury and the judgment of the court imposed in the above entitled cause and to dismiss the case against the said Defendant, and for grounds of said motion, sets down and assigns the following separately and severally:
“1. The verdict of the jury was contrary to the law and the evidence.
“2. The verdict of the jury is not sustained by the great preponderance of evidence.
“3. Newly discovered evidence has been produced which would greatly tend to exonerate the defendant, to-wit: During the course of the trial an alleged confession was testified to by Sgt. Tom Swatek of the Jefferson County Sheriff’s Department. In substance, Sgt. Swatek told the jury that James J. Israel was taken into custody at the Mtn. Brook Police Department on July 13,1976, in connection with a burglary which occurred at the home of a John F. Angwin, Sr., on July 1, 1976. Sgt. Swatek stated that on that same date of July 13, 1976, James J. Israel, Jr. admitted to him that he took part in the burglary and that a number of guns taken in the burglary were carried to the home of a man named Joe Dallas. In substance, Sgt. Swatek further testified that based on that information, he obtained a search warrant for the home of Joe Dallas and recovered the guns in question from that house on July 13, 1976.
“After the trial, a phone call was made to the Mtn. Brook Police Department by the attorney for your Petitioner and he was advised by Mrs. Robin Shaling that according to the Police Records at Mtn. Brook, James J. Israel, Jr. was taken into custody at Mtn. Brook on July 16, 1976. The Petitioner, James J. Israel, Jr., advised his attorney that he believed the date of July 16, 1976, to be correct because he remembered reading a newspaper article about the search of Dallas’s house days prior to his ever being interrogated. A further check was made of the District Attorney’s file and it was learned that a warrant for James J. Israel, Jr. was not issued until July 20, 1976. The District Attorney’s file on Joe Dallas also verified that the search of his house was made on July 13, 1976.
“The State’s case was based entirely on the confession, testimony of Sgt. Swatek and the corroborating evidence that the stolen property was recovered as a result of the confession. The confession was not written or signed or tape recorded in any manner, thus magnifying the importance of the recovery of the stolen property to point to the guilt of James J. Israel, Jr. by corroborating the obviously questionable confession.
“Petitioner contends that the newly discovered evidence mentioned heretofore would tend to exonerate him and would greatly alter the nature, quality, and quantity of the evidence produced by the State tending to show his guilt.
“4. That the petitioner, James J. Israel, Jr., was denied a fair and impartial trial in violation of his constitutional rights, afforded by the State of Alabama and the United States of America in that Sgt. Tom Swatek testified to the jury incorrectly with regard to material evidence during the trial of the State of Alabama vs. James J. Israel, Jr.”

At the hearing on the motion, appellant testified that he recalled Sergeant Swatek’s testimony at his trial and denied ever having made a confession to him and that he ever pointed out the Angwin home to Swa-tek. The following then occurred. From the record:

“THE COURT: I think this testimony is absolutely inadmissible.
“MR. PICKARD: Judge—
“THE COURT: I think it has nothing to do with this situation, and I will tell you why it irritates me:
“He didn’t take the stand in front of—
“MR. PICKARD: That’s right, he didn’t because of that rebuttal evidence.
“That has a bearing—
“THE COURT: Because he has a record a mile long. That’s why he didn’t take the stand.
“MR. PICKARD: Maybe that, but that also had some bearing on it.
“THE COURT: And, then, he stands up here and disputes what the officer said on a motion for a new trial.
“I think it’s inadmissible.
“MR. PICKARD: We were advised that they had rebuttal evidence. I know that they have got rebuttal evidence to show — to back up what they say.
“That goes a great deal in determining whether he takes the stand — I am not saying that he would have, but he does have that weight to it.
“THE COURT: With a record like he has, he wouldn’t take the stand in a million years.
“But I think it is absolutely inadmissible to come up here and testify on a motion for a new trial, put in a motion for a new trial record that which was not before the jury, and he stands up here and disputes the testimony given.
“I have never — I have never, in my many years, heard such a thing on a motion for a new trial, that kind of testimony.
“MR. PICKARD: Well, we are not asking the Court to believe it, or not, but we would have had that opportunity, whether we chose to take it, or not, for him to tell the jury that.
“In part, one of the reasons we didn’t was because of their testimony.
“I am not saying—
“THE COURT: Oh, I want to hear it, what he has got to say about Dallas’s gun, and what he has got to say about when he was arrested.
“What he would have said had he testified before the jury this week, I don’t want to hear about it.”

On cross-examination appellant was thoroughly impeached when he admitted that he had many previous felony convictions. Appellant further testified that he remembered having gone to trial on the charge against him before when the case ended in a mistrial. During the present trial, appellant claimed that he told his counsel about three quarters through the trial that he had not confessed to the crime and that he was arrested over a week after the Dallas residence had been searched and the property recovered.

Counsel then entered into the following stipulation. From the record:

“THE COURT: Now, something should be said for the record about the agreement, if there be an agreement, with reference to the fact that—
“MR. PICKARD: Yes, sir.
(Reporter’s Note: Drowning out the next word of the Court)
“THE COURT: —about the facts set forth in this motion for a new trial.
“MR. PICKARD: Yes, sir. I would like to say, for the record, that the District Attorney, Mr. Burton Dunn, has agreed to stipulate that, in substance, the facts, as they were set out — I am talking about the facts in the case in the motion for a new trial — are true and accurate, and I am not speaking of any argument in support of those facts that I might put in there.
“MR. DUNN: I do stipulate as to the facts stated in the motion for a new trial as being true and correct.
“However, my contention is that the facts alleged in the motion do not warrant, or merit, a granting of the motion for a new trial.
“THE COURT: Now, let me see if I get the picture, and I will try to state it succinctly for the record:
“During the trial, the deputy sheriff testified that he had interviewed the defendant at the time of his arrest, on the 13th day of July, that the defendant indicated where the guns were, mainly, at Dallas’s.
“And, on the same day, July 13th, he went out with a search warrant, and got one, or more, guns from the place called
‘Dallas’, who was a fence.
“That is what the testimony was.
“And, in truth and in fact, you two have agreed that the correct stage and the correct procedure was that on the 13th of July a search warrant of the Dallas house revealed two, or more, guns taken from Angwin.
“That was before the defendant was arrested, before he was in custody. I guess that’s all I have to say.
“But, on the 16th, he was then arrested and was interviewed, I gather, and he did — well, I don’t know whether you want to add that part.
“There seems to be some dispute as to whether he — ‘he’ meaning the defendant — named the Dallas house. Of course, the defendant said that he didn’t. I don’t know.”

Further:

“THE COURT: Well, but did the man still make the confession on the 16th, as he did on the 13th?
“I gather that the mistake is only in dates.
“MR. DUNN: Yes, sir.
“THE COURT: Not what the testimony was.
“I am not, on those dates — in other words, the only mistake you all said—
“MR. PICKARD: Well, Your Honor, if there is a mistake in the dates, then there is no testimony to support the conclusion that he made the confession on the 16th.
“It’s — the first testimony of Sergeant Swatek was incorrect.
“THE COURT: You mean, as to the date, or to the whole thing?
“MR. PICKARD: Well, he said that he testified on the 13th — confessed on the 13th, when, in fact, he did not, and there is no evidence before the Court that he did confess on the 16th.
“It’s a conclusion that will be drawn by the Court if you draw that inference from the testimony.
“MR. DUNN: We will call Sergeant Swatek, then.”

Sergeant Swatek then testified that he was mistaken as to the dates of the search at the Dallas house and of appellant’s confession. The search was conducted on the 13th of July, while appellant was not arrested until the 16th. However, the guns taken at the home of Joe Dallas match the description of weapons given by appellant in his subsequent statement. In fact that information in the affidavit for the search warrant of Dallas’s home came from Charlie Jones, who originally implicated appellant in the Angwin burglary.

In rebuttal, appellant testified he never took Swatek to the Angwin home and never told Swatek that the guns were at the home of Joe Dallas. Appellant did point out other homes that had been burglarized to Swa-tek. Appellant denied committing any burglaries.

Excerpts of Swatek’s testimony during appellant’s case ending in a mistrial were admitted into evidence. That transcript shows that appellant did confess to complicity in the Angwin burglary on July 19,1976. The testimony is summarized in the trial judge’s order denying the motion for new trial. That order is set out below:

“This the 15th day of February, 1978, defendant files Motion for New Trial, and same is hereby set for hearing February 17th, 1978.
“This the 21st day of February, 1978, the Motion for New Trial heretofore filed in this ease and the facts in this case was first tried before Judge Gibson on March 10, 1977 and a mistrial was declared by failure of jury to agree. The attorney representing defendant in instant trial represented him in the mistrial. Mrs. Jean Moreland was the court reporter and she has reported to this Court excerpts of testimony given by witness Swatek in March 1977 trial. He testified in substance defendant was arrested July 16, 1976 and questioned Monday, July 19, 1976; that defendant told him that he, the defendant, took guns to the house of a ‘fence’ later identified as Dallas and that Swatek had recovered the guns before defendant’s arrest. Jones, who was apparently involved with defendant, was arrested July 10, 1976 in Mountain Brook according to police department records. Should defendant’s attorney wish to have this testimony written up and it is contrary to this Court’s impression of the testimony, this Court will reconsider the order below if done within ten (10) days. “Defendant and his attorney knew or were exposed to the testimony given in March, 1977. Defendant knew the facts now characterized as newly discovered evidence as early as March, 1977. The witness Swatek apparently made a mistake twice as to the date of questioning. This Court does not consider this a case of newly discovered evidence. But if by some stretch it is so considered, it is this Court’s considered judgment: that it will not change the result if tried again; it was not discovered since the trial; it could have and should have been discovered 10 months before this trial by defendant and his attorneys in the exercise of due diligence and at best the so-called new evidence is merely impeaching and discrediting.
“The said Motion being duly considered by the Court, it is ordered, adjudged and decreed that Motion be and the same is hereby overruled and denied.”

To further confirm the trial judge’s finding that the allegedly “newly discovered evidence” was available to appellant at the time of trial, one must look only to appellant’s statement at time sentence was imposed. From the record:

“THE COURT: You have heard the verdict and in accordance with the-verdict, the Court adjudges you guilty. Do you have anything to say why sentence should not be pronounced upon you?
“DEFENDANT: Yes, sir. Because I’m not guilty of this crime.
“THE COURT: Do you understand that as far as this Court is concerned, that has already been solved by this jury?
“DEFENDANT: Yes, sir. But if I may speak, all the people that were arrested and the merchandise that was recovered was recovered before I was ever arrested. This guy Joe Dallas that they busted his house and confiscated all of the weapons, I read that in the paper. I was free. I wasn’t out on bond or anything.”

The trial judge properly overruled appellant’s motion for new trial. In Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, cert. denied 295 Ala. 430, 325 So.2d 539, we find the following language:

“The general principles applicable to a motion for a new trial on the claim of newly discovered evidence are found in Hodge v. State, 32 Ala.App. 283, 26 So.2d 274. Specifically, the court stated that such a motion must be predicated on the following requirements:
“ ‘. . . (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative or impeaching.’ ”

From the evidence detailed above, it is clear that the evidence on the hearing was not only available and discoverable through due diligence, but was actually known to appellant at the time of the trial. Nor would its admission in a new trial change -the result of the outcome of the ease. Swatek’s testimony still remains that appellant did confess to his participation in the Angwin burglary; only that confession was made on July 19, 1976, not July 13, 1976. Furthermore, appellant’s testimony upon the hearing on motion for new trial was only in the nature of impeachment of Swatek’s testimony at trial.

Appellant further contends that the confession testified to by Swatek was the product of a promise that appellant would not be prosecuted in exchange for his cooperation on other burglary cases. This deserves no discussion other than to point out that Swatek informed appellant that he would not be prosecuted on other cases in which he supplied information. Since this statement occurred at a time and place separate and subsequent to appellant’s confession to his involvement in the Angwin burglary, it could not be considered a collateral benefit, a test of voluntariness which was impliedly disapproved in O’Tinger v. State, Ala.Cr.App., 342 So.2d 1343, and expressly held erroneous by the Alabama Supreme Court in Ex Parte: Alfred Holt, Ala., M.S. October term 1977-78 (reversing this Court’s opinion affirming the rule). Thus, no error resulted in the trial court’s ruling the statement admissible, the weight and credibility of it within the province of the jury. Jones v. State, 292 Ala. 126, 290 So.2d 165 (cited by the majority in Holt, supra).

The evidence to support appellant’s conviction for burglary in the second degree is sufficient. The State’s evidence at trial was uncontradicted that Mr. Angwin’s home was broken into on July 1, 1976, while he and his family were away. The intruders made away with approximately six thousand dollars in property. To this appellant confessed his involvement.

A careful search of the record reflects no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.