author: HARRIS, Judge.

text:
    Howard PATTERSON v. STATE.
    7 Div. 383.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.

      Patrick H. Tate and Winfred M. Watson, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree. At arraignment, attended by counsel, he pleaded not guilty. The jury rendered a verdict of murder in the second degree and fixed his punishment at ten years in the penitentiary. Notice of appeal was given in open court. Appellant was found to be indigent and he was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

State Trooper Thomas Gregory Cole was the first witness called by the state. He testified his home station was Piedmont, Calhoun County, Alabama, but he worked a three-county area including Cherokee County; that on Sunday morning, April 14, 1974, he received a radio dispatch concerning an accident at the Turkey Foot Service Station in Cherokee County. He entered the station and found the deceased sitting in a chair. He observed two bullet wounds in the upper chest and the man was dead. The deceased had his right hand hanging over one arm of the chair and on the floor directly under this hand was a smoking pipe. He found a .9 mm automatic pistol on the counter near the chair in which the deceased was sitting. He further stated that this pistol had been recently fired. He smelled the odor of alcohol on the deceased.

The trooper found appellant in an automobile that had run off the edge of a roadway near the edge of a lake on Highway 278 near the Georgia State line. He stated that appellant was in the front seat lying down or had slumped over in the seat. He further testified that appellant was drunk or highly intoxicated, but started coming to himself a short time later. He handcuffed him and moved him from the car. Someone assisted him in carrying appellant up the bank from the lake. He searched him and found a .25 caliber pistol in appellant’s back pocket. He turned this pistol over to Sheriff Garrett who came to the scene between 7:30 and 8:00 a.m., probably thirty minutes after the trooper got there.

On cross-examination this witness stated that in his opinion appellant was intoxicated but he didn’t run any tests on him and did not get a blood alcohol analysis.

Photographs were taken at the scene of the shooting and photographs of the body of the deceased were made. All were introduced in evidence without objections.

Sheriff Mac Garrett testified that he went to the scene of the shooting on the morning of April 14, 1974. He stated that he found the body of the late Osto Fletcher sitting in a chair in a slumped position and that he was present when photographs were made of the interior of the service station. He said he found a .9 mm pistol near the cash register and that it appeared to have been fired recently. He also found two spent cartridges at the scene and he turned the pistol and spent cartridges over to Mr. Van Pruitt, a State Toxicologist. The Sheriff further testified that Fletcher was dead when he first saw him and that he appeared to have two holes in him in the area of the chest. He stated that he searched Fletcher’s body for weapons and did not find any and that he did not see any weapons near the body.

The Sheriff further testified that he arrested appellant between 7:30 and 8:30 a. m. and that he appeared to have been drinking. He stated that he did not formally place him under arrest until he got him to the county jail. He said he started to talk to appellant around 9:00 that morning relative to the death of Fletcher and that neither he nor anyone else made any threats toward appellant or offered him any promises of reward or immunity to get him to make a statement.

At this point a voir dire examination was conducted out of the presence and hearing of the jury. At this hearing the Sheriff testified that he first saw appellant between 7:30 and 8:00 o’clock and that when he questioned him at 9:00 o’clock he had sobered up considerably.

From the record:

“Q. Sheriff, from the time you first saw the defendant, Mr. Patterson, between 7:30 and 8 o’clock and 9 o’clock when you questioned him, had he sobered up considerably ?
“A. Yes, he was soberer than he was when I first saw him.
“Q. At that time did you explain to him his rights?
“A. Yes.
“Q. Did you read the card to him ?
“A. Yes.
“Q. Do you have the card with you?
“A. Yes sir.
“Q. Will you read the card to the Court as you read it to him on this occasion?
“A. ‘You have the right to remain silent. Anything you say can be and will be used against you in a Court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questions if you wish one.’
“Q. I’ll ask you if after you read that to him he told you he understood it ?
“A. Yes sir.
“Q. Did he tell you he’d make a statement about the death of the late Mr. Fletcher ?
“A. Yes sir.
“Q. What did he say ?
“A. He said, T just wanted to kill somebody.’ He didn’t know why he did it.
“Q. Did he tell you that he shot him?
“A. Yes.
“Q. He didn’t know why he did it, just wanted to kill somebody ?
“A. Yes.
“Q. Did you ask him at that time if the dead man had any weapon or threatened him in any way?
“A. I don’t believe I did.
“Q. His statement was that he killed him and he didn’t know why he did, he just wanted to kill somebody?
“A. Yes.
MR. BLACK: Your witness.
CROSS-EXAMINED BY MR. TATE:
“Q. Sheriff, did you make the statement that you did not ask Mr. Patterson if the other man had a weapon ?
“A. I could have. I don’t remember if I did.
“Q. You don’t remember if you asked him that question or not ?
“A. Yes sir.
“Q. I believe you said he had been drinking and now you say he had sobered up considerably. How much had he been drinking?
“A. I couldn’t say. He was pretty drunk when we first got up there.
“Q. But you said he had sobered up considerably.
“A. Yes, he had sobered up considerably.
“Q. How long had it been from the time you arrested him until you talked to him ?
“A. Oh, an hour, an hour and a half, an hour and fifteen or twenty minutes, over an hour.
“Q. Was he pretty drunk at the time you arrested him but he wasn’t that drunk at the time you questioned him?
“A. No sir.
“Q. How long does it normally take somebody to sober up when they’ve been intoxicated ?
“A. It’s according on how much they drink. Sometimes it takes a good while.
“Q. Isn’t the maximum anybody can sober up .025 per hour per alcohol content?
“A. I wouldn’t say about that.
“Q. You don’t know about that ?
“A. No sir.
“Q. Who was present when you questioned him?
“A. I believe one of the deputies and the jailer was present before we locked him up.
“Q. You questioned him before you locked him up ?
“A. Yes sir.
“Q. You advised him of his rights?
“A. Yes sir, did that to start with.
“Q. He didn’t have any of his kinsmen or anybody else there when you talked to him, did he ?
“A. No sir.
“Q. He hadn’t had a chance to confer with a lawyer, had he ?
“A. No sir, he said he didn’t want one.
“Q. You said he sobered up some, was he still intoxicated when you talked to him?
“A. I wouldn’t say he was drunk.
“Q. Was he under the influence ?
“A. Some, yes.”

In addition to the above testimony the court asked the Sheriff the following questions and received the following answers:

“COURT: Sheriff, did you carry on any conversation with the defendant immediately prior to reading him his rights ?
“A. Yes sir.
“COURT: Was he able to converse with you and engage in conversation with you?
“A. Yes sir, he even talked all the way from over there to over here.
“COURT: Was what he was saying understandable ?
“A. Yes sir, very.
“COURT: Was he slurring his speech in any way at that time ?
“A. Not too much that I could tell.
“COURT: Did he respond to your instructions when you would tell him to do something ?
“A. Yes sir.
“COURT: Did he appear to understand what you were saying to him ?
“A. I think he did, yes sir.”

At this voir dire hearing appellant took the witness stand and testified that he heard the Sheriff’s testimony about his confession concerning the shooting of Osto Fletcher and was asked if he recalled any of it at all, to which he replied, “No, sir.” He stated that he did not recall talking to the Sheriff or any of his deputies and the first thing he remembered on that morning was after he was put in jail. Appellant further testified that he remembered shooting Fletcher but the last thing he remembered was when hs car ran off the roadway and that he woke in the bullpen area in the county jail at which time he believed it was around 10:00 a.m.

On cross-examination appellant testified that he had taken two drinks out of a half pint of whiskey that he and Fletcher had gotten around 11:00 p.m. on the night of April 13, 1974. He stated he was not drunk but only had two drinks and that he was injured when he ran off the highway and that his head struck something inside the car. He admitted that he did not tell the Sheriff that he had injured himself. He continued to testify that he was not drunk and that he had only taken two drinks but did not recall talking to Sheriff Garrett or making any statement to him.

The Sheriff was recalled and testified that appellant told him who he was, told him his birthdate, stated his weight and height, and gave him the name of the man he had killed and did all of this in an intelligent manner.

At this point appellant’s counsel objected to the admission of the confession made to the Sheriff on grounds to the effect that the testimony adduced by the state showed that appellant was still intoxicated at the time he made the confession and that his state of mind was such that he could not remember anything from the time of the shooting and the car wreck, and he could not make an intelligent waiver of his constitutional rights.

From the record:

“COURT: Gentlemen, before the Court rules on that objection, I want to ask the Sheriff a question or two. Sheriff, did the defendant make any complaint to you about having received an injury the night before, or was he complaining of any injury when he was arrested or placed in custody?
“A. No sir.
“COURT: Did you observe any apparent injury to him at that time ?
“A. No sir. It wasn’t noticeable if there was.
“COURT: Did you ask him these questions or advise him of his rights prior to placing him in jail?
“A. No sir, he was inside the jail. We hadn’t locked him up, but he was in the jail.
“COURT: He was not yet in the cell ?
“A. No sir.
“COURT: Approximately how much time had elapsed from the time that you first arrived at the scene around 8 o’clock and the time that you advised him of his rights ?
“A. It was an hour, an hour and fifteen minutes, something like that.
“COURT: Gentlemen, I’m going to overrule the objection and allow the statement to be admitted.”

The jury returned to the courtroom and the trial continued. The Sheriff gave the same testimony before the jury concerning appellant’s confession, all after the proper predicate was laid.

He further testified that when he read appellant his rights from a Miranda card, he thought he was still under the influence of alcohol but that he had no difficulty in speaking, walking, and understanding what he said. That appellant told him he knew his rights and did not want a lawyer. He said he would make a statement and told the Sheriff that, “he just wanted to kill somebody,” and, “he didn’t know why he did it.”

The Sheriff further testified he found two spent slugs in the station on the morning of April 14, 1974. One was found in some bottle crates and the other was in the door facing. He found a claw hammer in a drawer in the back of the station and took the door facing off to get this slug. He denied that there was a hammer or other weapon near the chair in which the deceased was sitting when he was shot. He said he delivered the two spent cartridges and the .25 caliber pistol to Mr. Van Pruitt at the laboratory of the Toxicology Department in Huntsville.

Mr. Van Pruitt testified that he was the Regional Laboratory Director of the Huntsville Division for the State of Alabama, Department of Toxicology and Criminal Investigation, and had been so employed since 1964. Counsel for appellant admitted that Mr. Pruitt was a qualified toxicologist and criminologist and was an expert in his field.

Pruitt performed an autopsy and described his findings as follows:

“I determined that the upper wound in the left chest entered the left chest cavity through the fifth innerspace which would be the musculature between the fifth and sixth ribs. From that point it passed through the apex of the heart which would be the tip or the lower cone of the heart and exited the left back at the level of the tenth rib. The lower wounds in the left chest entered the chest cavity passing through the lower lobe of the left lung and across the diaphragm muscle which is the muscle across the lower portion of the chest that separates the so-called chest from the abdomen. And from that point passed across the top surface of the liver and exited the body on the right side at the level of the eighth rib.”

Mr. Pruitt expressed his opinion as to the cause of death in these words:

“Gunshot wounds as I have described primarily producing injury to the heart, lung and liver.”

He further testified that he made a blood analysis of alcohol of the deceased and determined that he had a 0.34 percent level of alcohol and this showed that he was intoxicated at the time of his death.

Mr. Pruitt further testified that he received two spent slugs and a .25 caliber pistol from Sheriff Garrett and he test-fired the pistol to make a comparison with the known bullets found in the service station. He stated that the two slugs were fired from the .25 caliber pistol.

At the conclusion of the state’s case appellant made a motion to exclude the state’s evidence on the ground that the state failed to prove a prima facie case. This motion was overruled and denied.

Appellant, appellant’s son, and two character witnesses testified in his behalf. According to appellant’s testimony he lived in Cedartown, Georgia. He stated that his son ran a service station in Cherokee County, Alabama, known as Turkey Foot Lake Gas Station. That his son employed him to work three days each week and serve as night watchman. That he was working on Saturday night, April 13, 1974, and that his son was there until about 11:00 p. m. That the deceased, whom he did not know, and some other people came to the station to fish in a nearby lake and they arrived around 5:00 p. m. He observed them drinking beer and dancing to the music made by a record player. He identified these people as the deceased, Bill Stewart, Stewart’s wife and two children.

He further testified that some time after midnight the deceased came to him and asked him to take him to a package shop over the Georgia State line to get some more beer, the package shop being some two and a half miles away. He agreed to carry the deceased provided Stewart would look after the station. Appellant stated they were gone about fifteen minutes and when they returned, he found the door to the station had been kicked open and the Stewarts were gone. He further stated that the package shop was closed and they could not buy any beer, but that the deceased bought two half pints of bootleg whiskey. The deceased opened a bottle of whiskey and gave appellant a drink. Appellant offered the deceased a blanket so that he could sleep in appellant’s car until the next morning but the deceased remained in the station and kept sitting around and drinking from his bottle of whiskey. Appellant went to the back of the station to check the merchandise and as he came back toward the front he saw the deceased coming at him with a hammer in a drawn position. That when he saw the deceased approaching him with a hammer, he fired the first shot and a few moments later he fired the second shot and the deceased fell backwards into the chair. He stated that the shots were fired six to eight feet from the deceased.

On cross-examination appellant said that after firing the shots he went out to the highway to try and stop traffic to go for help. When he did not see any traffic, he decided to drive into Georgia toward Ce-dartown to use a telephone to call for help. He denied making the statement to the Sheriff about wanting to kill someone. He further stated that he had only two drinks of whiskey that night. Appellant continued to testify that he did not remember being arrested by Trooper Cole or Sheriff Garrett and did not recall talking to the Sheriff either at the lake or on the way to the jail. He said he did not recall the Sheriff advising him of his rights and did not recall the conversation in which the alleged confession took place.

Appellant’s son testified that he ran the station known as the Turkey Foot Lake Gas Station in Cherokee County, Alabama, and that he employed his father on a part-time basis as a night employee to guard the station and wait on customers. That he owned a .9 mm pistol and a .25 caliber automatic pistol and that he gave these pistols to his father for his self protection. He further testified that he saw the deceased between 5 :00 and 6:00 on the afternoon of April 13, 1974, and he was drinking beer at the time and appeared to be drunk at that time.

Appellant offered the testimony of two witnesses from Cedartown, Georgia, who testified to his good character and reputation in the community. They both testified that appellant’s reputation for truth and veracity was good and that his reputation for non-violence was also good.

In rebuttal the state recalled the Sheriff who once again testified that the hammer he found at the gas station was found in the back of the gas station and was not found in the interior of the station near where the deceased was sitting in a chair when his body was found. To like effect was the testimony of Mr. Ken Phillips, an investigator for the District Attorney’s Office, who went to the crime scene with the Sheriff and assisted him in removing the bullet from the door frame.

The only issue appellant raises on appeal concerns his alleged confession to Sheriff Garrett. He contends that the confession was not voluntary because he was intoxicated or otherwise incapacitated at the time.

The evidence tended to show that appellant was intoxicated at the time Trooper Cole arrived at the scene. The Sheriff said when he first saw appellant, he appeared to have been drinking, but when he questioned him later, he had sobered up considerably. The Sheriff further stated that appellant was not drunk at the time he talked to him but he was to some degree still under the influence, yet he answered all questions in an intelligent manner.

In Anderson v. State, 45 Ala.App. 653, 235 So.2d 902, appellant contended that his alleged confession was inadmissible because he was intoxicated at the time it was alleged to have been made, thus rendering anything he might have said involuntary.

In Anderson we said:

"Evidence was heard on the voluntariness of the alleged confession out of the presence of the jury in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. There was ample evidence, even though conflicting, from which the trial judge could conclude that appellant was not intoxicated to the extent of mania. We conclude that the trial judge did not abuse his discretion in admitting the alleged confession for the jury’s consideration. Intoxication which would affect the voluntariness of a confession is primarily a question of fact which first addresses itself to the trial judge to determine admissibility and later to be submitted to the jury for whatever consideration it may deem appropriate.
The rule is well established in this jurisdiction that intoxication short of mania or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words will not render a confession inadmissible. Warren v. State, 44 Ala.App. 221, 205 So.2d 916, cert. denied 281 Ala. 725, 205 So.2d 920; Ray v. State, 39 Ala.App. 257, 97 So.2d 594; Smith v. State, 25 Ala.App. 297, 145 So. 504; Eskridge v. State, 25 Ala. 30.”

In Carter v. State, 53 Ala.App. 43, 297 So.2d 175, we held:

“Appellant contends that he was intoxicated at the time he made the confession and therefore the confession was involuntary and inadmissible. The law is clear that proof of intoxication amounting to mania or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words renders a confession so made by him inadmissible, but a lesser state of intoxication will not render the confession inadmissible. The voluntariness of an alleged confession is a question of law for the court and should be decided by the trial court upon preliminary proof, showing the circumstances surrounding the alleged confession, taken outside the hearing of the jury, and such finding will not be disturbed unless it appears contrary to the great weight of the evidence or is manifestly wrong. Stewart v. State, 49 Ala.App. 681, 275 So.2d 360.”

To like effect are the holdings in the following cases: Otinger v. State, 53 Ala.App. 287, 299 So.2d 333; Daniels v. State, 53 Ala.App. 666, 303 So.2d 166; Mergner v. United States, 147 F.2d 572.

The facts and circumstances attending the taking of the confession in this case were sufficient for the trial court to establish its voluntariness and to make the weight and credibility of the confession the province of the jury. Jones v. State, 292 Ala. 126, 290 So.2d 165.

The judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

author: CATES, Presiding Judge.

license: Public Domain

text:
    Cecil Green SELLERS, Jr. v. STATE.
    6 Div. 708.
    Court of Criminal Appeals of Alabama.
    April 1, 1975.
    Rehearing Denied April 22, 1975.
    E. Calhoun Wilson, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Murder in the second degree: sentence, twenty years imprisonment.

We have carefully reviewed the entire record under the strictures of Code 1940, T. 15, § 389 and consider that there is only one arguable question presented on this appeal.

The appellant employed the firm of Chestnut, Sanders, Sanders and Forte, holding themselves out as attorneys of Eu-taw. The contract of employment in nowise singled out any one member of the firm with whom the appellant was in the attorney-client relationship. Accordingly, he had employed all the partners in his service. In 7 C.J.S., Attorney and Client, § 65 we find:

“A retainer of one member of a firm of attorneys is a retainer of the firm, in the absence of an agreement to the contrary. Any member may attend to the business intrusted to a firm of attorneys, for the act of each is the act of all, and such a general contract does not give the client the right to demand that any particular member of the firm shall render the services or conduct the litigation. * * *

After the jury had been qualified, sworn and empaneled and three witnesses had testified on behalf of the prosecution, the senior member of the firm, Honorable J. L. Chesnut, appeared in the courtroom (the jury having withdrawn). The trial judge told him that as he had not been present at the qualification of the jury, the court was exercising his discretion not to allow him to participate, other than to sit at the counsel table with his partner, Mr. Booker T. Forte and advise the junior.

In this instance we believe that the trial judge did not abuse his discretion.

General Rules 1 and 2 (Code 1940, T. 7, Appendix, p. 1001) read:

“(1) The clerk of every court of record in this state shall keep in his office a book to be called the ‘book of appearances.’ Any attorney or solicitor, desiring to appear in any civil cause, shall make in said book, or cause to be made therein by the clerk, an entry of his name, stating the cause in which he appears, and, if there be several of the same name, its number, or other mark of identity, the party of person for whom he appears, and the date of such entry. Such entry shall be considered an appearance of record. The counsel whose name shall be so first entered shall be considered the leading counsel in the cause, for the party or person for whom he so appears, until he abandons the cause, and then the counsel whose appearance shall be next in date, and so on. Such notices, etc., as are authorized to be served on the attorney of a party, shall be served on his leading counsel.
“(2) No one shall be permitted to appear in a cause as counsel or attorney, unless he has been employed therein, and his appearance has been entered as aforesaid, or unless he represents other counsel whose appearance has been so entered, or may have the special leave of the court.”

In Owens v. State, 40 Ala.App. 36, 109 So.2d 141, the former Court of Appeals held that the tardy entry of a special prosecutor in a homicide case did not justify the granting of a mistrial. There, various procedural motions were absent and the Court of Appeals construed the lack of a request for qualifying the jury nunc pro tunc constituted a waiver.

In Davis v. State, 292 Ala. 210, 291 So. 2d 346, our Supreme Court held that there was an abridgment of the constitutional right of representation. In Davis it appears that the Honorable Lou Walden had associated junior counsel, but there was nothing to show that junior counsel was a partner of Mr. Walden. Accordingly, we distinguish that case from the one of instant concern.

Furthermore, the instant record is bare of any prior request by Mr. Forte that the case be delayed for the appearance of Mr. Chestnut. Moreover, Mr. Forte evidently failed to qualify the jury as to any acquaintanceship with the other members of the firm except for himself. This part of the record, of course, has been omitted under the extant rules of the Supreme Court. No point has been made on this appeal that Mr. Forte was precluded from qualifying the jury in the normal manner under the direction of the trial judge as contemplated by statute. As stated by the Supreme Court of Mississippi, in Clifton v. Clark, Hood & Co., 83 Miss. 446, 36 So. 251:

“ * * * This contract entitled the clients to the services of the firm, but was not a contract for the individual services of any name member of the firm. Either partner may attend to business intrusted to a firm of attorneys, for the act of each is the act of all, and such a general contract does not give the client the right to demand that any particular member of the firm shall render the services or conduct the litigation. * * *»

Accordingly, we distinguish the instant case from that under the facts of Davis, supra, and consider that the judgment below is due to be

Affirmed.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Cecil Green SELLERS, Jr. v. STATE. Ex parte Cecil Green Sellers, Jr.
    SC 1264.
    Supreme Court of Alabama.
    Nov. 6, 1975.
    E. Calhoun Wilson, Tuscaloosa, for petitioner.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State, respondent.
   SHORES, Justice.

On preliminary examination, the petition for the writ of certiorari to the Court of Criminal Appeals, 56 Ala.App. -, 321 So.2d 706 was granted. Upon further consideration, we hold that the writ was improvidently granted and is due to be quashed.

Writ quashed.

All the Justices concur.


author: TYSON, Judge.

text:
    Marvin HILL, Jr. v. STATE.
    8 Div. 466.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oet. 21, 1975.

      Roger H. Bedford, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Marvin Hill, Jr., was indicted for unlawfully selling eighteen grams of Marihuana to Mike Mason on May 15, 1973. The jury found the appellant guilty, and the trial court set sentence at three years imprisonment in the penitentiary.

Mike Mason testified that he was in Russellville, Alabama, working as an undercover agent for the Police Department on May 14, 1973. He stated that he had worked in this capacity for approximately two and one-half years, and that on the date in question, accompanied by one Roger Gandy, he went to the home of the appellant on Hamilton Avenue at about 8:15 in the evening. He stated that he had been furnished money by the Police Department of the City of Russellville in an effort to make an “undercover buy.” He stated that he and Gandy called to the appellant, and that the appellant replied by asking them what they wanted. From the record:

“A Mr. Hill stuck his head out the window and asked us what we wanted and we told him we wanted to get a six-pack of beer and Hill replied he was out of beer, at this time, and I then asked Mr. Hill if he had any marijuana and he asked me how much I wanted and I replied I wanted a lid, which is one ounce or $20.00 worth and Hill told me and Gandy both to come into the house and we both went into the house and to sort of explain the way you get into the house, you go through a hallway, then you come to another room which has tables and chairs like a cafe, then he’s got another room back there where a bar is. There were two other men back there, at this time, and I don’t recall what their names were and Hill then told us, he would have to go get the marijuana, so Hill then left and stayed gone approximately 15 to 20 minutes and Hill returned back to the house where me and Gandy were waiting and he called me over to the hallway where we first went into the house and I went over to where he was standing- and he handed me a plastic bag containing the green plant material.”

Mason further stated that he gave the appellant a twenty dollar bill for the green plant material, that he and Roger Gandy then left and drove to the Colonial Inn Motel where he delivered this to Captain Burns Saint of the Russellville Police Department shortly before 9:00 p. m. The plastic bag containing the green plant material was then placed in a white envelope and sealed, that each of them then placed their initials across the envelope label, and the date was then written on it, May 15, 1973.

Mason stated that he next saw this envelope in the possession of Russellville Police Officer Carl D. McNatt on May 29, 1973, when he picked this officer up at his home on the morning of the 29th. He testified that Officer McNatt, Roger Gandy and he then drove to the State Toxicology Office in Huntsville, Alabama, where the envelope in question was delivered to John H. Kilburn, that it was still sealed with the initials on it at the time of this delivery.

Mason further testified that the sale in question took place in Franklin County, Alabama, on May 15, 1973.

On cross-examination, Mr. Mason testified that Dr. Kilburn gave him a receipt for the white envelope which contained the green plant material at the Toxicology Office, which receipt he then turned over to the Russellville Police, who, in his presence, gave it to the District Attorney’s Office.

Carl D. McNatt testified that he was a police officer in the City of Russellville on May 29, 1973. He stated that on the preceding evening at Police Headquarters, Captain Saint called him in and explained that he was going to have to be out of the city the next morning and asked him to lock a white envelope with the initials of Mike Mason and Roger Gandy in his locker overnight. He testified that the envelope was sealed at the time of delivery, that he did not unseal it, that he removed it the following morning and took it with him to his apartment house where Mike Mason and Roger Gandy picked him up shortly after 8:00 in the morning, and that the three of them then drove in Mike Mason’s automobile to the State Toxicology Office in Huntsville, Alabama. He testified that the envelope was handed to Dr. John Kilburn, that Dr. Kilburn’s secretary made out a receipt for the white envelope, which Dr. Kil-burn signed and handed to Mike Mason. Officer McNatt testified that the envelope was still sealed when it was handed to Dr. Kilburn.

Roger Gandy testified that he accompanied Mike Mason on May 15, 1973, to the home of the appellant, Marvin Hill. He testified that the two of them drove over in a 1969 black and white Chevrolet Impala about 8:00 that evening. He stated that they first asked the appellant for some beer, that the appellant told them he was sold out. They then asked him for some Marihuana and he told them he would go get it, that he was gone for about fifteen or twenty minutes and when he returned he handed a plastic envelope to Mike Mason. He stated that Mike Mason and the appellant were standing down the hallway at the time a short distance from him. He testified that within a few minutes thereafter, he and Mason drove to the Colonial Inn Motel and there met his uncle, Captain Burns Saint, Chief of the Russell-ville Police Department. He stated that he and Mike Mason delivered this plastic bag containing the green plant material to Captain Saint, that they were in Mike Mason’s motel room, that it was placed in a white envelope and sealed, and that each of the three of them put their initals and the date, May 15, 1973, on it. He testified that he next saw this envelope in the possession of Russellville Police Officer Carl D. Mc-Natt about 8:00 on the morning of May 29, 1973, when he and Mike Mason picked up Officer McNatt at his apartment. He testified that the three of them then drove to Huntsville, and that he was present when this envelope was handed over to State Toxicologist John Kilburn, who gave a receipt for it to Mike Mason.

Captain Burns Saint testified that he was a Captain with the Russellville Police Department on May 15, 1973. He testified that he met his nephew, Roger Gandy, and Mike Mason about 8:45 on the evening of May 15, 1973, at the Colonial Inn in Mike Mason’s room. He testified that the two men delivered to him a plastic bag containing a green plant material, which they stated had just been purchased that evening. He stated that at this time it was placed in a large white envelope and sealed, and that each of the three of them placed their initials on the envelope, then wrote the date. Captain Burns testified that he then took this envelope, placed it in his personal locker at Police Headquarters and that he was the only person who had a key to his locker. He stated that on the night of May 28, 1973, he called Officer Carl D. McNatt, who then went with him, Saint, to his locker, that he opened it and handed the envelope, still sealed, to Officer Mc-Natt. He testified that at no time while he was in possession of the envelope was it opened. He further testified that he asked Officer McNatt to contact Mike Mason and Roger Gandy.

John H. Kilburn testified that he was State Toxicologist in a Huntsville, Alabama, office. He testified that at about 10:10 on the morning of May 29, 1973, a Russellville Police Officer, called McNatt, and Mike Mason, accompanied by Roger Gandy, delivered one white envelope, which bore a Russellville letterhead, and which was sealed, with the initials of Mason, Gandy and Captain Burns Saint, with the date May 15, 1973, 9:00 p. m., across it, to him. The envelope also contained the words, “Purchased from Marvin Hill, May 15, 1973, at 8:35 p. m., for $20.00, Hamilton Avenue, Russellville, Alabama.” He testified that his secretary wrote out a receipt in his presence, which he signed, and gave to Mike Mason for this envelope. He testified that his office then made several tests and examinations of the material and determined that it was “Marijuana.”

On cross-examination, Dr. Kilburn testified that the material in question was sometimes known as “Cannabis Sativa L,” and that also under Title 22, Section 258 (29) (d) (17), as amended 1971, it is referred ed to as “Tetrahydrocannabinols.” He stated that he had made several chemical tests in determining the nature of the material in question. He further testified that he had examined possibly as many as 3,000 samples over a three-year period which had been submited to him for examination, and that of this number perhaps fifty to sixty had been ruled out as not being “Marijuana,” but that the material submitted to him by the three men of Rus-sellville on May 29, 1973, was “Marijuana.”

The appellant’s motion to exclude the State’s evidence was overruled.

Marvin Hill, Jr., testified that he lived in the City of Russellville, and that he remembered the evening when Roger Gandy and a man with him, who identified himself as Mike Mason, came by a soft drink stand, which he had at the rear of his house. He stated that the two men asked him for some beer, because they had a “fast date.” He said that they also asked him if he had any “pills or grass, or something,” and that he told them he did not fool with things like that. He said that while the two men were there he had a telephone call, that he told them he would have to leave, and that a couple of months later, Russellville Police Captain Saint and Sheriff’s Deputy Buckshot came out. They told him that he was charged with the possession of “Marijuana.” He testified that he had never seen Mike Mason before the night in question, and that he did not sell him anything.

In rebuttal, the State called Mike Mason, who testified that on the night of May 15, 1973, he made the purchase from Marvin Hill, and that there was no conversation at all about his having a “fast date,” and that he did not ask for any “pills.”

I

The appellant argues that his motion to exclude the State’s evidence should have been granted since the State did not prove a prima facie case, and that his conviction could not be based upon the ‘•‘uncorroborated testimony of an accomplice.”

In Grissom v. State, 51 Ala.App. 285, 284 So.2d 739, cert. denied 291 Ala. 780, 284 So.2d 740, this Court held:

“The appellant contends that he cannot be convicted on the ‘uncorroborated testimony of a paid informer.’ An undercover police officer engaged in attempts to uncover violations of law is not an accomplice of one charged with such violation. Brown v. State, 44 Ala.App. 135, 203 So.2d 700, and cases therein cited. Morover, here the testimony was corroborated by Piedmont Police Officer Baker.
“The conflicting testimony of the appellant and that of an undercover police agent presents a question for the jury, Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538, and as such was sufficient to sustain the conviction. Cases cited.”

In the case at bar, both Mike Mason and Roger Gandy testified that the purchase was made from the appellant on the evening of May 15, 1973, in Russellville, Alabama, between 8:00 and 8:30 p. m., at appellant’s home on Hamilton Avenue. Each testified that they immediately drove to the Colonial Inn Motel, there met Russellville Police Captain Burns Saint, where the green plant material, which was in a clear plastic bag, was placed in a white envelope, then sealed, and the two men and Captain Saint each placed their initials on the envelope and dated it.

Captain Saint testified that he placed this envelope in his police locker that evening, that no one else had a key, that the envelope remained there until the night of May 28, 1973, when he removed it in the presence of Officer Carl McNatt and handed it to this officer, still sealed.

Officer McNatt testified that he kept this envelope in his locker overnight, that the following morning he removed it, still sealed, shortly before 8:00, and that no one else had a key to his locker, that he drove to his apartment in Russellville where he met Mike Mason and Roger Gan-dy. The envelope was not opened at any time. He testified that the three of them then drove to Huntsville and delivered this envelope, still sealed, to Dr. John Kilburn at the State Toxicology Office.

Without question, the matter of venue was clearly established, as well as the State’s chain of possession of the evidence, therefore the appellant’s motion to exclude the State’s evidence was properly overruled. Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169; Grissom v. State, supra.

II

This Court has carefully examined the testimony of Dr. John Kilburn and finds that he properly identified the green plant material as being “Marijuana,” or “Marihuana,” as required by law. Title 22, Section 258(25) et seq., Code of Alabama 1940, as amended 1971. See particularly Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied 294 Ala. 758, 312 So.2d 414.

III

Appellant argues that the State should not have been allowed to have its witness, Mike Mason, testify in rebuttal that he had not said anything to the appellant about a “fast date” [R. p. 70],

This rebuttal was allowed since the appellant had testified [R. p. 64] that Mason and Gandy had asked him for beer and also “pills or some grass” as they had a “fast date.” Such was clearly material testimony in this cause, and the appellant was not impeached upon an immaterial matter.

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

Affirmed.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    In re Marvin HILL, Jr. v. STATE. Ex parte Marvin Hill, Jr.
    SC 1531.
    Supreme Court of Alabama.
    Nov. 13, 1975.
    Bedford & Bedford, Russellville, for petitioner.
    None for respondent.
   BLOODWORTH, Justice.

Petition of Marvin Hill, Jr. for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hill v. State, 56 Ala.App. —, 321 So.2d 708.

Writ denied.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    R. D. DULANEY v. STATE.
    6 Div. 848.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Rehearing Denied Oct. 1, 1975.

      John Self and A1 Tidwell, Hamilton, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant and one Chervis Scott were jointly indicted for grand larceny of four hogs and buying, receiving, concealing or aid in concealing stolen property. A severance was granted and the state dismissed the grand larceny count in the indictment. Appellant was put to trial on count two of the indictment which, in pertinent part, reads as follows:

“The Grand Jury of said County charge that before the finding of this Indictment, Chervis Scott, and R. D. Dulaney, whose names are to the Grand Jury otherwise unknown, did buy, receive, conceal, or aid in concealing two black hogs or shoats weighing about forty pounds each, of the value of about forty dollars each, and two white hogs or shoats weighing about sixty pounds each, of the value of about fifty dollars each, all of the total value of about one hundred and eighty dollars, the personal property of Floyd Long, which had been stolen from Floyd Long, the said Chervis Scott and R. D. Dulaney knowing or having reasonable grounds for believing that they had been stolen and not having the intent to restore them to the owner, against the peace and dignity of the State of Alabama.”

Scott was tried and convicted of buying, receiving, concealing, or aiding in concealing stolen property and was sentenced to five years in the penitentiary. His appeal to this court was affirmed on June 17, 1975.

Appellant was convicted under the above quoted count of the indictment and was sentenced to five years in the penitentiary.

Mr. Billy Miles, the Sheriff of Marion County, Alabama, testified that his office got a call from Mr. Floyd Long reporting he had four hogs missing from his hog lot. The hogs were described as two black ones and two white ones. He stated that later he found three hogs in a freshly built fence in a wooded area of Marion County.

From the record:

“Q Would you please tell the jury when, where and how you came across these hogs, please sir.
A It was Northwest of Hamilton here near the Cherry Hill Church of Christ. We were out just checking the country and checking on stills, and this Mr. Kelley that had lived there had committed suicide, and there wasn’t anyone living in this house at the time, and I told the ABC boys, ‘Let’s drive by this house and check it . . .No one is living in it’, so we got out and I found three hogs there in a pen that was just freshly built, and I told the ABC boys, I said, ‘Well, from the way Mr. Long described his hogs, right here is some of his hogs’, so I came back and called Mr. Long, and he and Mr. Johnson went out and looked at the hogs and . . . ”

The Sheriff further testified that after discovering the hogs he called Mr. Long and told him where he found the hogs and to meet him and see if he could identify the hogs. Mr. Long told the Sheriff the hogs belonged to him after he looked at them. The Sheriff further testified that the closest home to the place where he found the hogs was occupied by Mr. John Loyd Cochrane; that later he went to Hackleburg to the home of Mr. Manuel Cochrane where he viewed some more hogs.

On cross-examination he testified that he was not in his office when the call came from Mr. Long, but his secretary took the message and made a note of the description of the missing hogs. According to the note there were two black hogs and two white hogs missing and they weighed 40 to 60 pounds; that two of them had their tails off and two had long tails. He further testified that he told Mr. Long and Mr. Johnson to meet him that afternoon and they would pick the. hogs up. Both Long and Johnson helped the Sheriff load the hogs.

In the course of the Sheriff’s investigation as to the theft of the hogs he said he interviewed Mr. John Loyd Cochrane, and Mr. Cochrane told him he bought the hogs and he gave a written statement concerning the persons he bought the hogs from. He told the Sheriff he paid $80.00 for the four hogs. The statement Cochrane gave the Sheriff is as follows:

“A The statement he made to me was that he was getting ready to go to the Christmas Parade, and they brought one hog and he had $5.00 and gave them the $5.00, then he went to buy some cigarettes. They later brought three more and he had to borrow $75.00 to pay for those three, and he said that R. D. Dula-ney, and James Ray and Chervis Scott broght (sic) them; that he paid Chervis the money, and then he signed the statement.”

After getting the signed statement from Mr. Cochrane, warrants were sworn out for Dulaney, Rea and Scott.

Mr. Willie Johnson testified that he had known Mr. Long for about three years and that they were in business together. They traded hogs, cows and farmed together. He stated that Mr. Long had a farm about eight or nine miles northwest of Hamilton, Alabama, that Johnson owned 80 acres and there was a 40 between his farm and Mr. Long. He stated he was farm manager for Mr. Long and that they worked on “halfs.” That it was his duty to take care of all the hogs and cattle.

He further stated that Mr. Long gave him $120.00 in August to buy some hogs. He bought four black hogs weighing 35 to 40 pounds each and took them to Mr. Long’s farm and put them in the pasture; that he traded a cow for five white hogs and put them in the same pasture with the black ones. That he fed the hogs every day and counted them every time he fed them. That he fed the hogs on the morning of December 11, 1973, around nine o’clock and that at that time there were about 25 hogs including pigs and shoats. After feeding the hogs that morning, he loaded up a load of cows and carried them to Florence, Alabama, and got back home at nine-thirty that night. The next day, December 12, he went to feed the hogs and found four missing — two white and two black. He said one of the whites was “straight eared” and the other white was “flop-eared,” and the two black hogs were almost identical. He stated that the tails on the white hogs were cut off very short, but the tails on the black hogs were not cut. Mr. Johnson further testified that he observed fresh car or truck tracks leading right up to the gate to the pasture and the ground and leaves looked like something had been drug over the ground near the gate.

Mr. Johnson called Mr. Long and reported the four missing hogs to him. He went with Mr. Long to the place where the Sheriff told Mr. Long he had found some hogs. There were three hogs in the pen and they identified two of them as their hogs. They went to Hackleburg and identified the other two. The four hogs were put back in the pasture from which they were stolen. Mr. Johnson further testified that the fair and reasonable cash market value of these hogs on the day they were stolen was $70.00 to $80.00 each.

Mr. Floyd Long testified for the state and his testimony corroborated Mr. Johnson’s testimony in all pertinent details.

Mr. John Loyd Cochrane testified for the state. He stated that on the night of December 11, 1973, around seven o’clock, three men drove to his house and sounded the horn. He went out to the truck and recognized Chervis Scott, James Rea, and he thought the third man was one of the Dulaney boys. This third individual had long hair about an inch below his ears. They had two hogs they wanted to sell for $30.00 each. Cochrane told them he would pay only $20.00 for each hog and they accepted his offer. They told Cochrane they had two more hogs and they would deliver them later that night. Cochrane had only $5.00 at that time but he went to his brother’s house and borrowed $75.00. These same three men came back later that night with two more hogs and he paid them $80.-00 for the four hogs.

This witness further testified that he gave the Sheriff a statement as to whom he bought the hogs from. The Sheriff wrote out the statement and read it to him and he signed it. The last name on the statement was “R. D. Dulaney.”

The most charitable thing that can be said about Mr. Cochrane’s testimony as to the identity of the third person that was in the pickup truck that delivered the four hogs to his home on the night of December 11, 1973, is that it was most confusing and uncertain. This was manifested on direct examination, cross-examination and to questions propounded to him by the court. He stated that he had been knowing the Dulaney twins for four or five years and knew their names were R. D. and R. C. Dulaney. He described the third person in these words, “Well, he was, I would say, medium build and kind of slim. He had long hair.”

We will quote the questions posed by the court to Mr. Cochrane and his answers.

“THE COURT: Mr. Cochrane, I have a feeling that the jury is confused about the third individual when you testified about Mr. Scott and Mr. Rea Tell the jury if you have seen the individual that you saw there that night that you bought the hogs around this courthouse today?
WITNESS: You mean, really identify the one I saw that night ?
THE COURT: No, sir. Let me put it this way: Are you able to tell this jury that it is your best judgment that the third individual you saw there, that is, in addition to Chervis Scott and James Rea, is one of two people? Is this what you are telling the jury?
WITNESS: That was my opinion. That is what I thought, it was one of the two.
THE COURT: Which two individuals was that, in your opinion ?
WITNESS: Which two?
THE COURT: Yes, sir.
WITNESS: I thought it was one of the twins . . .the Dulaney boys.
THE COURT: Who are the Dulaney boys? Who are they? Tell the jury their names.
WITNESS: R. C. and R. D. Dulaney.”
******
“THE COURT: Mr. Cochrane, I’m still confused about it, and I feel like the jury is too. Without any characterizing at all, other than what I give you in the form of this question I want to know whether on the night of December 11, in addition to Chervis Scott and James Rea, it is your best judgment that one of the Dulaney twins was present there with James Rea and Chervis Scott. Just answer ‘yes’ or ‘no’, one of the two.
A I would say I thought it was one of them, I believe, you know, that was who I thought was one of the twins. This is as far as I could go with it, definitely.”

The state called R. C. Dulaney as a witness and he testified that on December 11, 1973, he ran a cotton picker in Winston County and got home just before dark. There was a Christmas parade in Hamilton that night and he carried his children to see the parade; that when the parade was over he went back home and did not leave again that night. That the parade lasted about an hour and started at seven o’clock. He further stated that he did not go to John Loyd Cochrane’s house on the night of December 11, 1973, and that he did not get near his house any time that day or night. He further testified that the longest he had ever worn his hair was about half way down his ear.

Appellant testified that on December 11, he was working in Tupelo, Mississippi, that he left at four o’clock in the morning and did not get back home until seven or eight o’clock that night. That he did not see Chervis Scott, James Rea or John Loyd Cochrane at any time that day or night and that he had nothing to do with the delivery of any hogs to Cochrane’s home that night.

On cross-examination he stated he was hanging sheetrock in a house that was being constructed in Tupelo, but he could not recall the name of the contractor he was working for. He stated he was riding with Arthur Rea, brother of James Rea. He said he didn’t know where Mr. Coch-rane lived and had never been to his house. He was asked if he had ever worn his hair completely below his ears, and he replied, “I guess I have.” He was asked what kind of vehicle he was riding to work in with Arthur Rea, and he said, “He had an old Plymouth, or something.”

On rebuttal, Deputy Sheriff, Herman “Pete” Corkran, testified that he saw appellant’s brother, R. C. Dulaney, on December 19, 1973, and his hair was not long.

Sheriff Miles testified that on December 22, 1973, appellant’s hair was over his ears, “kind of down to his collar.”

We note here that appellant did not call Arthur Rea to support his alibi as to where he was on December 11, 1973.

Appellant made a motion to exclude the state’s evidence on the ground that a prima facie case had not been made out. He requested the affirmative charge, and it was refused. He made a motion for a new trial and it was heard and denied.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court said:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

Alibi testimony, like all other evidence in a criminal prosecution, is an issue to be determined by the jury. The jury resolved this issue against appellant simply because they did not believe his testimony. Brown v. State, 229 Ala. 58, 155 So. 358; Mosley v. State, Ala.App., 304 So.2d 613; Price v. State, 53 Ala.App. 465, 301 So.2d 230.

It is settled law in this case that a fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Gray v. State, 38 Ala.App. 508, 88 So.2d 798; Nabors v. State, 82 Ala. 8, 2 So. 357; Smith v. State, 53 Ala.App. 27, 296 So.2d 925.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Whether there is evidence of the defendant’s guilt is a question of law and its weight and probative value is for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Bolton v. State, 21 Ala.App. 373, 108 So. 631; Washington v. State, Ala.App., 313 So.2d 544; Taylor v. State, Ala.App., 314 So.2d 104.

Conflicting evidence always presents a question for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Jones v. State, Ala.App., 307 So.2d 59.

In Hill v. State, 207 Ala. 444, 93 So. 460, the Supreme Court held:

“In every criminal prosecution the burden is on the state to prove beyond a reasonable doubt that the crime charged has been in fact committed, and that the accused is the person who committed it. Winslow v. State, 76 Ala. 42, 47; Smith v. State, 133 Ala. 145, 150, 31 So. 806, 91 Am.St.Rep. 21; Perry v. State, 155 Ala. 93, 46 So. 470; Sanders v. State, 167 Ala. 85, 52 So. 417, 28 L.R.A. (N.S.) 536.
[2, 3] Circumstantial evidence may afford satisfactory proof of the corpus de-licti ; and if any facts are shown from which the jury may reasonably infer that the crime has been committed, the question must be submitted to the jury, and other evidence tending to implicate the accused is thereby rendered admissible. Cases supra; Matthews v. State, 55 Ala. 187; Ryan v. State, 100 Ala. 94, 14 So. 868.”

After a witness has testified that he has previously seen a man, it is permissible to ask his opinion or judgment as to whether or not a man he saw later was the same person. Miller v. State, 43 Ala.App. 257, 189 So.2d 576.

Notwithstanding the confused testimony of Mr. Cochrane, the totality of the facts and circumstances in this case presented questions for the jury’s determination and the evidence was sufficient to sustain the verdict. There was no error in the denial of the motion to exclude the state’s evidence, in the refusal of the requested affirmative charge nor in overruling the motion for a new trial. Ellis v. State, 43 Ala.App. 157, 182 So.2d 910.

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

The judgment of conviction is affirmed.

Affirmed.

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


text:
    In re R. D. DULANEY v. STATE of Alabama. Ex parte R. D. Dulaney.
    SC 1498.
    Supreme Court of Alabama.
    Nov. 13, 1975.
    John Self and A1 Tidwell, Hamilton, for petitioner.
    None for respondent.
   BLOODWORTH, Justice.

Petition of R. D. Dulaney for writ of certiorari to the Court of Criminal Appeals to review and revise judgment and decision of that court in Dulaney v. State, 56 Ala.App. —, 321 So.2d 713 (1975), is denied.

By denying the writ, we point out that writs of certiorari are frequently denied without any consideration on the merits. Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So.2d 388 (1961). A denial of cer-tiorari should never be considered on the merits of the controversy. See Hamilton Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916). Furthermore, our denial of the writ should not be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Criminal Appeals. See Cooper v. State, 287 Ala. 728, 252 So.2d 108 (1971).

Writ denied.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    Randolph SMITH, alias v. STATE.
    7 Div. 338.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Rehearing Denied Oct. 1, 1975.

      Myron K. Allenstein, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was tried and convicted of robbery and sentenced to a term of forty years in the penitentiary. He was represented at arraignment and throughout the trial by retained counsel. He pleaded not guilty. After conviction he was found to be indigent and a free transcript was furnished him. Trial counsel represents appellant on this appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charges that before the finding of this Indictment Randolph Smith, alias Randolph Lowe, alias Randy Smith, alias Rudolph Smith, whose name to the Grand Jury is otherwise unknown than as stated, felo-niously took one (1) set of wedding rings, of the value of $350.00; one (1) dinner ring, of the value of $150.00; and One Thousand Four Hundred Eleven and No/100 Dollars ($1,411.00), lawful United States currency, the exact denomination of which is unknown to the Grand Jury, of the value of One Thousand Four Hundred Eleven and No/100 Dollars ($1,411.00), all of the aggregate value of One Thousand Nine Hundred Eleven and No/100 Dollars ($1,911.00), the property of Lorene Cagle, from her person or in her presence, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same, contrary to law and against the peace and dignity of the State of Alabama.”

Appellant filed a pre-trial motion to suppress the eye witness identification of the defendant and a full hearing was held. Mrs. Lorene Cagle testified at this hearing that appellant robbed her at gun point on July 5, 1974, and that he was only two feet from her at the time. She positively identified the defendant as the robber. She made this identification at a lineup at City Hall basing it on her personal observations of the defendant at close range. She further testified that she neither needed nor received aid from the police officers in making this identification.

On cross-examination defense counsel questioned Mrs. Cagle at great length but was unable to shake her positive identification. He questioned her about a photograph of the lineup at City Hall and offered the photograph in evidence. It was accepted as defendant’s Exhibit No. 1. At the close of Mrs. Cagle’s testimony, the trial judge found that Mrs. Cagle’s identification was based on her own personal observations and overruled defense counsel’s objection thereto. According to her testimony she was at all times sure that she could identify the robber if she saw him again and she identified him on July 18, 1974.

At the trial in chief Mrs. Cagle testified that she was employed at Cotton’s E-Z Curb Store and had been so employed since 1962. She was alone in the store on July 5, 1974, when two Negroes entered the store at 4:30 p. m. One of the men handed her a dollar bill and asked for a pack of Kool filter cigarettes. She got the cigarettes and rang up the amount on the cash register. She handed one of them the change and this man stuck a pistol in her face and told her to stand back and leave the cash register open. While still holding the pistol on her, the other man got all of the money from the cash register and put it in a brown shopping bag. Then one of them reached under the counter and got her purse. She had a $106.00 in her purse along with her wedding band, engagement ring and dinner ring. The robbers took the contents of her purse and told her to get down on the floor and not move until they left the store. She testified that there was over $1,300.00 in the cash register. She valued her purse at $35.00 and her rings at $500.00 in the aggregate.

She further testified the men were about two feet from her, and it took them about two minutes to complete the robbery. It was broad daylight, and they were not disguised. She got a good look at them during the robbery.

In answer to questions posed by the trial judge Mrs. Cagle testified that she looked the robbers straight in the face and viewed them fully. She told the court that her identification of the defendant was based upon her observation of him during the robbery and was not based on photographs or the pre-trial lineup identification.

After the men left the store Mrs. Cagle got up from the floor and went to the front door to see what direction the men went, but she did not see them. She then called the Gadsden Police Department and reported the robbery. Several police officers arrived in less than five minutes and she gave them a description of the men. She told them the man with the pistol, who she subsequently identified as the appellant, was wearing a maroon shirt and striped pants. She said the other man was wearing dark clothing that more or less matched, that both men were wearing glasses and appeared to be 18 to 21 years of age. She said one man was taller than the other and they weighed between 135 and 140 pounds.

The officers asked Mrs. Cagle to come to Police Headquarters and sign a written statement and she did. Over the next several days she viewed numerous photographs that were in a book at Headquarters and did not see a picture of either man that robbed her. Later she was asked to come back and view some new photographs and in this stack of pictures she identified appellant and the other man who robbed her on July 5, 1974. Later she attended a lineup of five black men and immediately identified appellant and the other man. The other man was one Richard Benjamin. Appellant was No. 1 in the lineup and Benjamin was No. 4 looking from left to right. A photograph was taken of this lineup and was introduced in evidence by appellant’s counsel at the pretrial hearing.

Mrs. Cagle made a positive in-court identification of appellant as the man who stuck the pistol in her face and held it on her while Benjamin got the money from the cash register and stole the contents of her purse.

Appellant did not testify but offered alibi evidence in his defense.

Richard Benjamin testified that he and appellant were together in Anniston, Alabama, on July 5, 1974, and were in Annis-ton most of the day and did not get back to Gadsden until around 6:00 p. m. Benjamin said he went to Anniston to purchase an automobile and he bought a car.

Charles Daniels testified that he sold Benjamin a car on July 5, 1974, shortly after 4:00 p. m. on that date. Daniels’ signature does not appear on the conditional sales contract, a copy of which was introduced in evidence. He further testified there was another man with Benjamin at the time but he did not pay any attention to this man and would not attempt to identify appellant as that man.

Police Officer Gartman was called as a witness for the defense and was asked by defense counsel if Mrs. Cagle said that Randolph Smith was not the one with the gun. Gartman answered yes, sir, according to his notes. The counsel for appellant never attempted to introduce those notes in evidence. The statement given by Mrs. Cagle to Gartman on July 5, 1974, affirmatively showed that the man wearing dark-rimmed glasses held the pistol, and Mrs. Cagle, in her testimony, identified appellant as the man wearing the dark-rimmed glasses.

Counsel for appellant filed a motion for a new trial alleging the trial court committed reversible error in permitting the jury to separate during the progress of the trial and that they were allowed to go to their respective homes for the night prior to reaching a verdict.

The record is replete with statements by the trial court that there was an agreement by the state and defense counsel for the jury to separate and this agreement was made in the presence of the defendant. Appellant’s counsel admits this but contends that notwithstanding that appellant was present when the agreement was made that the court should have asked appellant directly and personally if it was agreeable with him for the jury to separate during the trial. It is to be noted that appellant registered no protest or objection to his counsel’s agreement for the jury to separate. He remained silent and speculated on the verdict of the jury. When he lost his case, he sought to take advantage of a technicality and gain a new trial.

Out of an abundance of precaution the trial judge set the motion for a hearing and directed the Clerk to issue a subpoena to each juror who sat on the case. Each juror was sworn all testified that they did not discuss the case with anyone nor did anyone attempt to discuss the case with them, that no outside influences were brought to bear on their deliberations and that they based their verdict solely and exclusively on the evidence that came from the witness stand.

The trial court overruled the motion for a new trial, and rightly so.

The evidence presented by the state was sufficient upon which to base a verdict of guilt. Appellant was viewed by the victim at close quarters for more than a minute, in the face without disguise, during daylight hours, and the in-court identification was positive and unequivocal. Rhodes v. State, 50 Ala.App. 661, 282 So.2d 100; Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336; Poole v. State, 53 Ala.App. 156, 298 So.2d 85, reversed on other grounds, 292 Ala. 590, 298 So.2d 89.

Appellant presented a fairly strong alibi case. Alibi testimony, like all other evidence in a criminal prosecution, is an issue to be determined by the jury. The jury resolved this issue against appellant and that is that. Brown v. State, 229 Ala. 58, 155 So. 358; Gillis v. State, 242 Ala. 550, 7 So.2d 563; Mosley v. State, 55 Ala.App. 59, 304 So.2d 613; Price v. State, 53 Ala.App. 465, 301 So.2d 230.

A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Gray v. State, 38 Ala.App. 508, 88 So.2d 798; Nabors v. State, 82 Ala. 8, 2 So. 357; Smith v. State, 53 Ala.App. 27, 296 So.2d 925.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Whether there is evidence of the defendant’s guilt is a question of law and its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Bolton v. State, 21 Ala.App. 373, 108 So. 631; Washington v. State, 55 Ala.App. 116, 313 So.2d 544; Taylor v. State, 55 Ala.App. 184, 314 So.2d 104.

In Palmore v. State, 283 Ala. 501, 218 So.2d 830, the Supreme Court laid down the following rule governing the separation of the jury after trial and before the verdict :

“The prevailing rule in this jurisdiction is that a separation of the jury, after the trial has been entered upon and before verdict, creates a cause for reversible error in favor of defendant unless the state affirmatively shows that defendant was not injured thereby. Lynn v. State, 250 Ala. 384, 386, 34 So.2d 602.
Such separation pending a trial is not necessarily ground for a new trial but is sufficient to show a prima facie right to it, and the burden is upon the state, after such separation is shown, to prove that the jurors conversed with no one affecting the prisoner’s guilt and that no other influences were exerted which may have biased their deliberations.”

We hold that the state met the burden resting upon it in the instant case and that the denial of the motion for a new trial was not error.

The record shows that the lineup in the instant case occurred before the defendant had been indicted or otherwise charged with robbery. Therefore, he was not entitled to counsel at that time. Giles v. State, 52 Ala.App. 106, 289 So.2d 673; Ratcliff v. State, 49 Ala.App. 77, 268 So.2d 858; Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L.Ed.2d 411.

We find no error of a reversible nature in the record. Accordingly, the judgment of conviction is affirmed.

Affirmed.

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


author: MERRILL, Justice.

text:
    In re Randolph SMITH v. STATE. Ex parte Randolph Smith.
    SC 1499.
    Supreme Court of Alabama.
    Nov. 6, 1975.
    Myron K. Allenstein, Gadsden, for petitioner.
    No appearance for respondent.
   MERRILL, Justice.

Petition of Randolph Smith for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Smith v. State, 56 Ala.App. -, 321 So.2d 719.

Writ denied.

HEP'LIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. PER CURIAM.

text:
    William Jimmy SMITH v. STATE.
    8 Div. 641.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Rehearing Denied Oct. 1, 1975.
    William Lowe Chenault III and Wesley M. Lavender, Decatur, for appellant.
    William J. Baxley, Atty. Gen. and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

The jury convicted defendant-appellant, an indigent, of robbery as charged in an indictment. The jury also fixed punishment at thirty years imprisonment. Judgment pursuant to the verdict was entered and this appeal follows.

The victim of the robbery was Bobby Jean McNutt, who, at the time, was employed by Billy's Mini Market where the alleged robbery occurred at about 11 p.m., on November 6, 1974, in Morgan County, Alabama.

Mrs. McNutt testified that the robber came into the store wearing a blond “afro” wig and his face was blackened and he had a brown paper sack in his right hand with a gun in his left. Pursuant to the robber’s order, she opened the cash register and put the money in the sack which defendant was holding. The robber left after he ordered Mrs. McNutt to the back of the store and she obeyed. Mrs. McNutt did not give any evidence that identified the defendant as the robber; she was not asked.

Defendant was later arrested and signed a confession, after “Miranda” warnings, that embraced the robbery of Billy’s Mini Market on November 7, 1974, plus four other robberies in the vicinity. We will later advert to these robberies.

The trial judge heard evidence, voir dire outside the presence of the jury, and determined therefrom that the confessions (Exhibit 1 in the record) were voluntary and admitted them in evidence over defendant’s objection to which we will later refer.

Exhibit 1, offered and admitted in evidence, embraced the following confession of different robberies:

November 7, 1974. This was the robbery on trial. He admitted the offense and that he had his face covered with a bronze make-up and wore an “afro” wig.

October 24, 1974. He admitted robbing Pizza Hut, at which time he had a gun and his face masked with a white pillow-case with holes cut in it.

October 30, 1974. He robbed U-Totem Store using a gun and a pillow-case over his head.

November 1, 1974. The victim of this robbery which he committed was the Quick Shop. He covered his fact with another pillow-case and carried a gun.

November 8, 1974. He robbed Warehouse Groceries. He wore a brown wig and a pair of sun glasses.

Defendant objected to the admission in evidence of Exhibit 1, with the several confessions, supra, also defendant moved to exclude the confessions for which he was not on trial.

The court overruled the objection and the motion to exclude. It thereupon instructed the jury that the defendant was on trial “at this time for only one offense and that’s the offense that has been made known to you at the beginning of this trial,” and the other offenses “goes (sic) to you as it may reflect upon guilt with reference to this alleged robbery and you would not use it for any other purpose.”

Defendant thereupon reserved an exception and moved for a mistrial which the court overruled.

The case of Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847, is a bedrock decision which set forth conditions under which evidence of other crimes is admissible in the trial of an offense charged in an indictment. The exceptions were summarized as knowledge, intent, plan or design, motive, identity and inseparable crimes.

The only exception here involved is identity. On that issue, Justice Stakely, writing for the court, quoted with approval from Judge McElroy’s “The Law of Evidence in Alabama” as follows :

“ ‘All evidence tending to prove a person’s guilt of the offense charged may loosely be said to identify him as the guilty person. But identity, as here considered, assumes what may be called a “mark” upon the guilty person; and proposes to show that defendant is the person having that mark, as evidenced by its being there in his commission of another similar offense. Wigmore, Sec. 410-412. Thus, when it is shown that the person who committed the offense committed it in a novel and peculiar manner, it may be shown that the defendant committed other offenses in the same novel and peculiar manner. * * * But evidence of accused’s commission of other offenses which does nothing more than indicate the accused’s inclination or propensity to commit the type of crime charged is not admissible as tending to show identity. Brasher v. State, 249 Ala. 96, 30 So.2d 31.’ ”

We observe, as the principle was stated in People v. Romano, (1903) 84 App.Div. 318, 82 N.Y.S. 749, that there is always more or less similarity between the commission of independent crimes of this class, robbery, for which defendant was tried, and in many instances features that are common to one are found in the other; in other words, pistols or guns are usually employed and faces are disguised so as to hide identity.

In the cases to which defendant confessed in Exhibit No. 1, supra, the instant disguise was a bronze make-up and an “afro” wig (a very common hair adornment), while in three of the robberies, pillow-cases were used, and in the other, sun glasses and an “afro” wig. They were all disguises but lacking in similarity with the bronze make-up. We do not think the other offenses to which defendant confessed bore the identifying ‘mark’ mandated in Mason, supra. The trial court committed prejudicial error in overruling defendant’s objection to the admission in evidence of the other offenses set forth in Exhibit No. 1, and in overruling his motion to exclude.

We note parenthetically that the credibility of the confession relative to the offense on trial was acceptable to the jury. It must have been, or the jury would have acquitted, there being no witnesses as to identify. The evidence of the other crimes was unnecessary. The confessions, all five, came from the same person and the same lips and the credibility as to the confession of the other four offenses added nothing to the credibility of the confession as to the offense on trial. The confession of the commissions of the four offenses was calculated to influence the minds of the jury as to guilt and fixation of punishment.

We pretermit consideration of other contentions of error. These contentions may not arise at the next trial, but if so, the trial court will properly consider them.

The judgment below is hereby reversed and the cause is remanded for new trial.

Reversed and remanded.

TYSON and BOOKOUT, JJ., concur.

HARRIS and DeCARLO, JJ., dissent.

CATES, P. J., not sitting.

ON REHEARING

PER CURIAM.

The confession of the robbery charged in the indictment admitted identity and the commission of the robbery so charged. Collateral confessions of other robberies were unnecessary to establish the robbery which defendant had already admitted. Such collateral evidence invited the jury to fix harsher punishment for the offense on trial by reason of the multiple crimes in evidence. Defendant did not take the stand.

Opinion extended; application overruled.

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

HARRIS and DeCARLO, JJ., dissent.


author: JONES, Justice.

text:
    In re William Jimmy SMITH v. STATE. Ex parte STATE of Alabama.
    SC 1507.
    Supreme Court of Alabama.
    Nov. 6, 1975.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for petitioner.
    No appearance for respondent.
   JONES, Justice.

Petition of the state for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Smith v. State, 56 Ala.App. -, 321 So.2d 724.

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.


text:
    Tommy Earl GROSS, alias v. STATE.
    6 Div. 919.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Rehearing Denied Oct. 1, 1975.
    P. Wayne Thorn, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery and David L. Weathers, Asst. Atty. Gen., Birmingham, for the State.
   HARRIS, Judge.

Appellant was indicted and tried for robbery. The jury found him guilty of grand larceny and fixed the value of the stolen property at $150.00. He was and is an indigent. He was represented at arraignment and trial by a court-appointed lawyer. He pleaded not guilty. After conviction he gave notice of appeal and requested that the five-year sentence imposed on him be suspended pending appeal. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

This is a strange case indeed. Only one witness testified for the state and that was the woman, Lucille Jackson, who had her $150.00 taken from her. Appellant did not testify and offered no evidence in his behalf.

She testified that she lived at 5917 57th Avenue, North in the city of Tarrant, Jefferson County, Alabama, and was employed at JCCEO as a food monitor.

On July 26, 1974, between 12:30 and 1:00 p. m. she was leaving Eastwood Mall in Birmingham from the north exit. As she left the mall, two unidentified Negroes followed her and entered her car when she unlocked it. After they entered the car, they began talking about how much money they had and how much money they were going to get. Lucille told them she didn’t have any money and if they didn’t believe her, they could look in her purse. One of the men looked in her purse and found no money but saw two checks made payable to her. One was her salary check in the amount of $70.00 and the other check in the amount of $80.00 was her gas mileage check. The man in the front seat told her “for your own good you will have to cash the checks.” She was instructed to drive to Gate City.

When they arrived in Gate City, the man in the front seat told her to stop at an apartment complex. He got out of the car and went in one of the apartments and returned in a few minutes with another Negro whom she later identified as appellant. Appellant got in the back seat with the other Negro. The man who had threatened her to cash the checks got in the front seat with Lucille and told her to drive to the Birmingham Trust National Bank in Tarrant. Lucille went in the bank followed by appellant. They entered the bank about the same time. Lucille had a deposit box in this bank but she did not have an account there. She went to a teller and put the checks on the counter and requested they be cashed. The teller asked her if she had an account in the bank and she said no and the teller told her she could not cash the checks. Appellant was standing nearby and heard this conversation. Lucille did not tell the teller that the appellant had followed her in the bank nor did she say two more Negroes were waiting in her car. Lucille and appellant went back to her car and she told the two men she could not get the checks cashed and appellant confirmed her statement.

The man in the front seat who had done all the talking and who threatened Lucille told her to drive to the Roebuck First National Bank saying this bank would cash any check. She drove as instructed and she and appellant went in the bank together. She got her salary check cashed but had to show some identification to get the gas mileage check cashed. She put the money from both checks in her billfold and put the billfold in her purse. She and appellant walked out of the bank. She did not tell anyone in this bank that appellant followed her in the bank nor did she mention two other Negroes were waiting in her car to take her money. She got back in her car and appellant re-entered the back seat. She put her purse on the front seat between her and the Negro who had threatened her to get the checks cashed for her own good. This man told her to take them back to Gate City. On the trip to Gate City, the man on the front seat picked up her purse and removed the $150.00 from the billfold. When she got to Gate City, she was told to stop and the three Negroes got out of the automobile and the man who took the money said, “We will see you later Miss Jackson.”

After the man left Lucille went back to the mall and reported the theft of her money to the police. She gave the officers a description of the three Negroes. Some time later a detective brought some photographs to her to see if she could identify any one of the three Negroes. After looking through the photographs she identified appellant as one of the trio. Some time later she viewed a lineup and again identified appellant. In addition to this she made a positive in-court identification of appellant as the man who walked in the two banks with her when she was trying to get her checks cashed. She was never able to identify the other two Negroes.

Lucille further testified that she was in the presence of these three men for an hour and a half to two hours and at no time did she see a knife, pistol, club or any other type of a weapon.

When the state rested, counsel for appellant made the following motion, “I would like to make a motion to exclude the evidence at this point, Your Honor.”

It will be noted that the motion to exclude failed to set out any specific grounds therefor.

In Turner v. State, 266 Ala. 250, 96 So.2d 303, the Supreme Court held that the trial court will not be put in error in overruling a motion to exclude where the motion is made without setting out the grounds therefor.

Where several persons participate in a robbery, it is immaterial which one takes the property as they are all guilty as principals. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457; Johnson v. State, 52 Ala.App. 277, 291 So.2d 369.

The loss of property to felonious taking may be proved by facts and circumstances as well as by direct and positive evidence, and if the evidence affords an inference that larceny has been committed, its sufficiency is for the jury. Jones v. State, 51 Ala.App. 570, 287 So.2d 886.

In Haggler v. State, 49 Ala.App. 259, 270 So.2d 690, this court held that where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury.

There was no motion for a new trial; no request for the affirmative charge; no exceptions reserved to the court’s oral charge, and no adverse rulings on the admission of evidence which contained any merit.

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

The judgment of conviction is affirmed.

Affirmed.

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


author: ALMON, Justice.

text:
    In re Tommy Earl GROSS v. STATE. Ex parte Tommy Earl Gross.
    SC 1503.
    Supreme Court of Alabama.
    Oct. 30, 1975.
    P. Wayne Thorn, Birmingham, for petitioner.
    No appearance for respondent.
   ALMON, Justice.

Petitioner for Tommy Earl Gross for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Gross v. State, 56 Ala.App. -, 321 So.2d 727.

Writ denied.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.