text:
    Bennie Thomas BROWN v. STATE.
    6 Div. 903.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Rehearing Denied June 29, 1976.

      W. Wheeler Smith, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State, appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

A jury decided the defendant, an indigent, was guilty of robbery as charged in an indictment and fixed his punishment at twenty-one years imprisonment in the penitentiary. A judgment was duly entered and is the basis of this appeal in forma pauperis.

The victim of the robbery, occurring April 1, 1974, about 5:45 P. M., was the office manager of a housing project located in the city of Birmingham. As noted, the robbery occurred late in the afternoon and was perpetrated by two blacks, one short and the other tall in physical size, neither of whom the victim could identify. She described their dress and appearance, one with a rubber (Halloween) mask over his face and the other, a stocking over his head and face. One brandished a pistol, made the victim and his associate lie on the floor. He got the chest containing the money, picked it up and put it in a pillow case, it looked like to the witness.

Another woman who lived in the project observed enough of the transaction to arouse her suspicion, and she telephoned the police.

A patrol car containing two police officers, Kimbrough and Bailey, picked up the radio alert describing the two robbers, and almost immediately observed two suspects who they thought met the description, about two blocks from the scene of the robbery.

As they drove up to make further investigation, one of the suspects, according to their testimony, fired a pistol in the direction of the patrol car. The bullet fired from the pistol struck the automobile. One of the officers returned the fire, but did not hit either suspect. The two suspects took off on foot. One officer failed to overtake the taller black, while the other officer pursued defendant and tried to stop him. The officer shot the defendant in the face with a pistol bullet as he failed to obey the officer’s command to “hold it.” He was taken to the hospital forthwith where after medical treatment, he got well and was tried. The other fleeing suspect was never caught.

The officers found at the scene of the apprehension the money box, a rubber mask and pillow case, all identified by the victim and placed in evidence.

The defendant took the stand and admitted that he was present about two blocks from the scene of the robbery when the officers drove up, and also a> .nitted that when he saw them, he fired his pistol in the air and ran because he was on parole at the time and was carrying a pistol in violation of his parole.

He contended that he was in this particular neighborhood to find a girl friend, but denied he was guilty of the robbery. He said he saw two blacks, one short and one tall.

He admitted that in each of the years 1955, 1962, 1963 he was convicted of robbery, and in 1961 was convicted twice for grand larceny. These convictions were addressed to his credibility as to his truthfulness on the stand.

Conflicts of evidence as to the dress of the defendant and the color and caliber of the pistol fired by defendant and the one used in the robbery were for the jury to resolve, which they did, and is not for resolution in this Court.

We think the motion to exclude the evidence when the State rested was properly overruled.

Appellant contends that certain arguments of the prosecuting Deputy District Attorney were error. We think that these arguments to which objections were made were free of prejudicial effect. It was a way the prosecuting attorney had in appealing for law enforcement and the suppression of crime. It is common practice of the news media to inform the public of the seriousness of law violations, likewise it was the prerogative of the prosecution to appeal to the jury for cooperation in law enforcement. Vol. 6A, Ala.Digest, Criminal Law, § 723(3).

We have read the entire record and hold that the circumstantial evidence presented a factual issue of guilt vel non for the jury to decide. We affirm this verdict and the judgment of guilt.

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

AFFIRMED.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    Reginald Reese ROBINSON, alias v. STATE.
    3 Div. 503.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Rehearing Denied June 29, 1976.

      George W. Cameron, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack Curtis, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

A jury convicted appellant-defendant, an indigent here and at nisi prius, of murder in the first degree for which the court sentenced him to life imprisonment. Lawful judgment was entered. The defendant entered a plea of not guilty.

The victim was Manferd E. Furr who was felled and died immediately from a gun blast which, according to expert evidence, was fired at a distance of five feet or less.

The homicide took place on Dexter Avenue in Montgomery in the morning of October 12, 1974, about 9:30 o’clock, under such circumstances as we will try briefly to relate.

The evidence tends to show that defendant and some other involved black people assembled at the house of Arthur 0. Lewis, alias Arthur X., from which point two of them rode in an automobile to Commerce Street (an extension of Dexter Avenue) where they got out and proceeded, armed with a gun, to Dexter Avenue; that Arthur X. and two other involved persons rode in another automobile to a point on Dexter Avenue, fully armed with guns, where they alighted on the south side of the street from which point they proceeded across Dexter Avenue to the north side. There, all five met each other.

One of the five involved parties was Alfonzo Davis, who was also indicted for the murder of Mr. Furr. After being advised of his rights by his attorney, who was present in court, Mr. Davis elected to testify as a witness for the State.

It appears from his testimony, much of which is corroborated by other witnesses not involved, that he moved into Arthur X.’s house on Wednesday night before the shooting on Saturday, October 12, 1974, where the said Arthur X. was teaching Islam religion. Defendant, Reginald Robinson, Julian Davis, Amos Williams and Charles Williams were there, all being taught Islam religion by Arthur X. Lewis. He said Arthur X. taught them that God would come to judge the people and that people would'be fighting and dying; that he had people he could contact who would support or fight for him; that he had enemies and they could not be trusted and that he had rather see his enemies dead.

“Q. What if anything did he tell you about who the good people were and who the evil people or the devil — who were the devil’s people?
“A. Oh, when he said the devil, he meant mostly white people.”

The witness further testified that on Saturday morning, the day of the incident, they had another meeting at which time Arthur X. said they would take up donations downtown and sell tickets; that present were Arthur X. Lewis, Reginald Robinson (defendant), Julian Davis and Amos Williams. Arthur X. told them that they were going to take donations and, “we wasn’t going to mess around or play around but if anyone hasseled us about it, we were to fight them,” that his instructions about fighting were “to disable someone and to maim them.”

The witness further testified that he and Charlie Williams went to town in his car and that defendant, Julian Davis, Arthur Lewis (referred to as Arthur X.) and Amos Williams went in Charlie Williams’ car; that he parked on Commerce Street, and the others parked near Belk Hudson’s on Dexter Avenue; that he and Charlie Williams walked up Dexter Avenue; that he had his weapons; these were two twelve gauge shotguns. Further, as he was near the Bible Store, he saw Arthur Lewis, dé-fendant and Julian Davis walking “toward us,” that “we” stopped and waited on them. No collections were taken up that morning.

The witness testified that he noticed Arthur Lewis was talking loud and saying for no one to say anything to him; he approached an old man standing there drinking wine or something. The man mumbled something; that he saw Arthur Lewis reach across “his back” and draw a machete, held it out in front of the old man who had mumbled and cut him with it. (Other evidence shows that Lewis cut a very severe wound across the “old man’s” face.) Then all three, Lewis, defendant and Julian, ran across the street toward their car in front of Belk Hudson’s. The witness and Charlie Williams went back to their car, and the witness said he left town.

The witness testified on cross-examination that he had a weapon, but did not know what he was doing with it, “I just had one.”

On redirect, he said he did not see Amos Williams when the three ran back across the street. Amos was the sixth man.

It further appears from the evidence, as we read the record, that Mr. Furr, informed of the cutting, left his post of duty as an officer in H. L. Green’s store and went across the street toward the automobile of the foursome that was parked there. When he got out there, he was assaulted by Arthur X., one of the three who had gone across Dexter Avenue. Arthur X. was the one who cut the “old man” with the machete and fled. It was there that Mr. Furr was shot at close range by Arthur X. and killed. Defendant got out of the parked car with a gun.

The three, Lewis, defendant and Julian, took off in their parked automobile, but were intercepted by a police car that blocked their, path and a collision ensued. Then the three fled the scene on foot and escaped from the police officers.

As we further read the record, they showed up at WAPX Radio Station bearing their arms and took over the station. Present at the time was a secretary and Alfonso Kent Dixon, both of whom were employed at the station. The secretary went to answer the door and came back with Arthur Lewis who had a sawéd-off shotgun. He told Dixon if he did not want to die, to get “in there and start talking.” He was bleeding. After Lewis had. completed his first broadcast, the defendant “came back toward the back.”

The State prosecutor produced Exhibit 10, which was a taped recording of the broadcast by Lewis, defendant and some by the male employee. The broadcast was monitored by the witness-employee and played to the jury. There were interruptions for identifications by the witness as to who was broadcasting. We will not weight this opinion with details of the broadcasts. Suffice it to say that both defendant and Lewis were appealing for the black community to come to their support — in other words, they were trying to rally the black people who were listening to appear on the scene and rally to their support. So far as the record shows, the appeal was futile. The trio finally surrendered to the police, coming out waving “a white flag.”" They were arrested.

The evidence further shows that shotguns and ammunition therefor were found in the radio station after the surrender. Identifying expert testimony as to the use of the guns during the res gestae was admitted.

The record further shows that there was-considerable gunfire between the trio and the police after Mr. Furr was killed, and before the trio escaped in the car; also during their getaway in the car and before the collision; also while they were in WAPX.

We note in one broadcast appeal defendant said:

“Everybody, everybody black on the streets. Ain’t no use talking to you niggers. You all ain’t never thought nothing like this would happen in- Montgomery, Alabama, did you? Yeah? Well, here it is. Right here in you all’s capítol. It is going to be ours in a few days, because we are going to stand up and take it, or die trying.”

At another replay, defendant broadcast as follows:

“Yeah, they are tying to kill us all right, and don’t think we ain’t trying to kill them. So, come on and get you one, because I’m going to get mine.”

Defendant took the stand and testified as to his conversion to Islam religion under the guidance and teaching of Arthur X. Lewis; that on this Saturday morning, he, Alfonzo Davis, Charlie Williams, Arthur Lewis, Julian Davis (“and the one I don’t know anything about”) took off for downtown Montgomery to raise money for their religious purposes, donations toward “the school and the hospital that we were trying to build.” A gun that belonged to defendant was in the automobile. The witness testified that he was present when Mr. Parham (the old man) was cut. He said, “I didn’t see anything.” Somebody said run, “and I ran,” to that car and got the gun out of the back seat, but he did not fire it; but later he fired it, “when we were in the station.” He said he had the gun, bandoliers, fire bomb and the Molotov cocktail for his protection. The witness testified that he did not shoot Officer Purr and did not know who shot him.

The State:

“Q. But you were, from the time you left that house, ready, willing and able with all of these guns and all of this ammunition to help your brothers if they needed it?
“A. Yes, sir.”

While we have not included in this opinion a full and complete record of all details, we think it is clear from the evidence that the defendant (appellant), his brothers and his leader, Arthur X., all left for town, with guns, shells and other explosives, looking for trouble. The first act of maiming was leader X. cutting Mr. Parham on his face with the sharp blade of a machete; then two fled, and defendant, with his two brothers proceeded to their automobile, but. before leaving in it, one of their number killed Mr. Furr. Further shooting ensued, but no one else was killed or maimed. They accomplished their mission to kill or maim as a starter, but they failed in their radio appeal to start a conflagration of wholesale violence — the black people using good judgment and common sense, refused to respond to the revolutionary invitation. After the appeal failed, then the white flag was hoisted and defendant and his “brothers” were all jailed.

While it does not appear that appellant-defendant was one of the trio who actually fired the shot that killed Mr. Furr, sufficient evidence was adduced from which the jury drew a reasonable inference that he was an accomplice and equally guilty as a principal with the one who fired the fatal shot. Title 14, § 14, Recompiled Code 1958; Lee v. State, 51 Ala.App. 382, 285 So.2d 495, cert. denied 291 Ala. 787, 285 So.2d 500.

The jury could reasonably infer that defendant, along with the others, including their leader Arthur X., set out on a mission of wholesale violence and accomplished their objective to a limited extent, namely, the slashing of one person with a machete and the death of another. The good judgment of other black people not to respond to the radio appeal prevented more violence. We might state parenthetically that the good sense of the black people not to respond to such an appeal for violence is very commendable.

We are constrained to hold that appellant’s assertion that the trial judge committed prejudicial error in charging the jury, in response to the latter’s inquiry after deliberations had begun, as to the operation of the Pardon and Parole Board of Alabama.

We quote from the record as follows:

“THE COURT: I understand that you have a question to pose. Are you the foreman?
“THE FOREMAN: Yes, sir.
“THE COURT: All right. State the question.
“THE FOREMAN: There seems to be some misunderstanding among the jury. There is a part of the law we want to get clarified after we reach our verdict.
“In the first instance, if we the jury find the defendant guilty of murder in the first degree, we understand that his punishment is fixed at life. All right. If that is the case, is the defendant eligible for parole after any number of years?
“THE COURT: I will answer your question in this way: The jury’s decision concerns itself with the application of law to the facts, and the application only of the law that the Court has charged you concerning, and the Court has in no way charged you concerning the law of the State of Alabama as it pertains to a convict receiving or not receiving parole. So, it should riot have any effect or weight upon your consideration.
“Now, I will give it to you by way of information only. There is in the State of Alabama a board of pardons and paroles. It consists of three people. They are appointed for staggered terms of six years duration. They are full time employees of the State of Alabama. The laws grant to the parole board absolute authority to parole any prisoner who is an inmate in any state penal institution, or to parole any inmate who is serving time in the county jail. They have the right to parole a person the moment that they enter prison. They have that authority to parole the very moment a person enters prison. They have certain rules and regulations, and their experience has been that people who receive life sentences are given parole consideration at the exploration of ten years and if two of the three members of the parole board vote in favor of granting a parole to a person who, under a life sentence, has served ten years that person is paroled and placed out of the penitentiary under the supervision of a parole officer.
“But I charge you once again: The questions involving parole and the policies and practices of the parole board of the State of Alabama should not in any way be considered by you. But I do answer your question in that capacity.
“Does that answer your question, sir?
“THE FOREMAN: Yes, sir, I think so. Do any jurors have a question?
“THE COURT: All right. State?
“MR. THOMAS: Satisfied, Your Honor.
“THE COURT: Defense?
“MR. CAMERON: Judge, the defense would take exception to that part of the Court’s charge where the Court instructed the jury as a matter of information that there was a pardon and parole board inside the State of Alabama and that they did have authority to parole and that they had authority to parole instantly and after a period of so many years. All though (sic) the Court did instruct the jury not to consider it, we feel that the Courtmade an error by even instructing them as a matter of information as to the existence of a pardon and parole board and what their functions were.
“THE COURT: Well, the Court would only observe to that that it would be highly unlikely that these twelve jurors, or any citizens, would not be conscious of the existence of a parole board.
“Did you wish to have them further illuminated into any of those aspects of parole board operations?
“MR. CAMERON: Well, actually, we feel like, Your Honor, that the damage has been done in that the jury, if they had known, would not have asked the Court and that the Court has charged this jury — as it did a moment ago — that there is a pardon and parole board and that they did have certain authority. And, of course, our position would be that that would be error and either — just ask the Court to either declare a mistrial or either give us an error — an exception to the record.
“THE COURT: Your motion for a mistrial is hereby denied. I believe the Court has admonished, caution (sic) and counseled the jury that this does not in any way have any effect upon their deliberations. They should deliberate in such fashion as if there was no such thing as a parole.
“All right. Now, you can retire and resume your deliberations.”

It is our opinion that the pronouncements of the Supreme Court of Alabama in Lawley v. State, 264 Ala. 283, 87 So.2d 433, a case wherein similar instructions as to the operation of the Pardon and Parole Board were given, are dispositive of the instant charge. We quote from Lawley as follows:

“In the present case, it is reasonable to assume that the jury wished to punish the defendant by having him serve a certain number of years in the penitentiary, and in order to insure that he serve that length of time, the jury was planning to add to the length of the sentence in order to compensate for a parole before the entire sentence was served. In Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797, which is quoted in McCray v. State [261 Ala. 275, 74 So.2d 491], supra, the court said that when confronted with an inquiry such as the one in this case, the trial judge should instruct the jury to impose such sentence as seemed to be • just, with no regard to what might happen to the sentence in the future. The trial court in the instant case gave the damaging information to the jury; It is true that when objection was made to his remarks, he told the jury not to consider what he had said, and stated that he withdrew the remarks. We are of the opinion that the attempted remedial action was not sufficient. The information could not be eradicated from the minds of the jury. We cannot say that they considered it in arriving at their verdict, but they might have done so.”

This Court is bound by Lawley.

We are constrained to reverse and remand this cause. We are not unmindful of an observation of the Supreme Court of Alabama in Watts v. State, 282 Ala. 245, 210 So.2d 805, as follows:

“The worst wretch that walks the earth is entitled to a fair trial, for the law is superior to all persons. As much as we may regret some results of the law, the law must be preserved if this constitutional democracy is to survive.”

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

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

REVERSED AND REMANDED.

All the Judges concur.

DeCARLO, J., concurs specially.

DeCARLO, Judge

(concurring).

It is hard to believe that, any experienced trial judge in Alabama would discuss the possibility of an accused’s parole with the jury trying his case.

This is especially true in light of the long-standing authority condemning such action and proclaiming that such wrong is ineradicable.

It is sad indeed when an appellate court is placed in the position of reversing such a serious case for this kind of an infraction. Even more distressing is the fact that the people of Alabama are given the burden of paying for a second trial.

The distinguished trial judge, by his action, has given us no other choice. The law, long settled by the Supreme Court of Alabama, must be followed.


author: BEATTY, Justice.

text:
    In re Reginald Reese ROBINSON v. STATE. Ex parte STATE of Alabama.
    SC 1953.
    Supreme Court of Alabama.
    July 30, 1976.
    William J. Baxley, Atty. Gen., and Jack Curtis, Asst. Atty. Gen., for petitioner.
    None for respondent.
   BEATTY, Justice.

Petition of the State of Alabama for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Robinson v. State, 58 Ala.App.-, 335 So.2d 420.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, JONES and SHORES, JJ., concur.


text:
    Thomas Wilborn LEWIS v. STATE.
    4 Div. 367.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Rehearing Denied Dec. 9, 1975.
    Don C. Dickert, Brundidge, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent here and at nisi prius, was indicted for robbery and convicted therefor with punishment fixed at twenty years imprisonment. The same appointed counsel who represented defendant below represents him on this appeal.

It appears from the evidence that James E. Davis, the robbery victim, operated a small grocery store at a rural site not very' far from Troy; that about 6:45 p. m. on Tuesday, November 30,1974, a male person, later identified as Roy Sims, entered the store, seized a paper sack, and, brandishing a pistol, demanded that Mr. Davis put his money in the bag. Mr. Davis complied. He put between $1,000.00 and $1,100.00 in the sack. Sims thereupon proceeded to use the telephone on the wall at which time Mr. Davis seized his own rifle close at hand and fired several shots at the robber therefore immediately killing Sims.

During this shooting someone, not known at the time, fired a shotgun blast through the screen mesh of the back door. A pellet from the blast hit Mr. Davis in the bend of his left leg. The wound was not serious, but caused considerable bleeding.

The Sheriff, his deputy, and a state investigator, Mr. Gatland, responded to a call and made an investigation that led to the arrest of appellant-defendant, Thomas Wil-born Lewis, as the person who fired the shotgun blast, and his indictment for the robbery.

There was no evidence by anyone who saw defendant at the scene, but the evidence was circumstantial and of such character as to convince the jury beyond a reasonable doubt that defendant was the guilty person and was an accomplice in the robbery. T. 14, § 14, Code 1940.

Ron Sutton, investigator for the City of Troy Police Department, on November 30, 1974, testified he arrived at the scene of the robbery soon after it occurred. He testified about finding a piece of shotgun wadding at the scene; also, he identified two shotgun shells (not expended) which he found just outside the back door; also, he identified an expended shotgun shell which, he too, found just outside the back door. These shells were turned over to the State Department of Toxicology located at Enterprise.

Mrs. Ruth Sims, widow of the slain robber, testified that defendant Lewis came to her home in Crenshaw County between 7 and 8 o’clock, “more towards 8:00 o’clock on the night of November 30, 1974, and asked me if Roy (her husband) was there,” and that she told him “no.” “And he said that well, he put him off at the ‘Oilwell’, [a filling station] and went on and eat supper and had come back to see if he come home, and said he was drinking, and the law come down there to tell them that Roy left my house a walking.”

“Q. (District Attorney) Didn’t he say on that occasion that if he went off and got in any trouble it was after he put him off?
“A. Yes, sir.”
“Q. All right. Did he say anything further at that time? Did he say anything about ‘tell them this because I have got a wife and children’?
“A. Yes. He told me he had a wife and children — two children. That he had to look out after, and Roy was not with him. That he put him off at the ‘Oil Well’.”

Officer Ed Taylor, Deputy Sheriff of Pike County, testified that on the night of April 30, 1974, he found out who the slain robber was and where he lived; that the officers found the shotgun shells; that he went to Crenshaw County about 10 o’clock that night. Sgt. Gatland and Sheriff Davis were with him. The house was very near Rutledge in a trailer park.

The defendant wasn’t at home, so they went a short distance to the home of defendant’s father. He there noticed a green Chevrolet pick-up sitting there and he “shined my (his) light over there in the front window and saw the stock of a gun lying in the back seat which appeared to me to be a shotgun * * The officers seized the gun. They did not have a search warrant.

The truck containing the gun, so the evidence shows, was the property of defendant’s father and was not the property of defendant. The gun was subsequently turned over to the Department of Toxicology as were the shotgun shells.

Sheriff Mosely of Pike County testified that he went with other officers to the home of defendant in Crenshaw County; that defendant was not at home when Ke arrived there, but he, (defendant) with his wife and children came up just after “we arrived.” Witness further testified that he found out later that the shotgun found in the truck belonged to defendant.

Dale Carter, a qualified criminalist with the State Department of Toxicology, specializing in firearms and tool marks, testified about examining the shotgun shells and the shotgun mentioned, supra. This witness identified the expended shotgun shell as having been fired from the shotgun in evidence, the gun taken from the truck. He could not say that the unexpended shells came from the shotgun. We will not burden this opinion with the details of the tests from which he concluded that the expended shell was fired by the shotgun. The expended shell was the one found at the back door of the robbery victim’s store.

Sgt. B. J. Gatland, state investigator, testified about an interview he had with defendant and his inculpatory statement, voluntarily made and after Miranda warnings (in detail) were given. The witness testified:

“Q. All right. Just tell the Court and the Jury what he told you?
“A. He told us he was with Roy Sims most of the day, Saturday, November 30, 1974, and that Roy Sims had indicated to him that he wanted to talk to him in confidence and that his brother Mike was with him. That he carried Mike home, and came back to the ‘Oil Well,’ in Lu-verne, and met Roy Sims, and Roy told him that he needed some money and was going to get some money and asked the Defendant if about going with him and he stated that he already had been to the penitentiary one time, and didn’t want to go back again.”
♦ **♦**
“A. That Roy didn’t want to get involved, that Roy loaned him his automobile and his car, and that Roy carried him to G. L. McCloud’s house at about 5:30 Saturday afternoon, November 30, 1974, and that he stayed there and did not leave, except one time to go the store from G. L.’s, and that two cars drove up in G. L. McCloud’s yard sometime after 9:00. One of the cars stayed in the yard, that being his own car, and the other car left.
“He did not know who was in the other automobile, and his wife and he left to go home at approximately 10:00 o’clock. He went to his brother’s trailer, and took the shotgun out of his car and placed it behind the seat of his father’s pickup truck. And I asked him why he placed it in there, and he said he knew I was going to ask him that question, but he didn’t have an answer for it.
“Q. All right. Where did you say his father’s pickup truck was parked?
“A. At his brother’s trailer, Mike’s trailer.
“Q. At Mike’s trailer at Rutledge, is that right?
“A. Yes, sir.

The State rested.

Defendant did not take the stand, but offered his wife and G. L. McCloud, also a relative, as alibi witnesses. These witnesses testified that defendant was at the McCloud’s home on or about the time of the robbery. Suffice it to say this testimony was not accepted by the jury.

I

Appellant asserts in propositions I, II, and III that the search and seizure of the .gun without a valid search warrant was illegal, and that the burden shifts to the prosecution to justify the search with persuasive testimony.

We again note that the searched automobile or truck was not the property of defendant and he had no right or proprietary interest in it; he had no right of possession; he was not there at the time and none of his property rights were invaded: the shotgun was in plain view. Defendant did not have standing to object to the search or admission in evidence of the seized shotgun. Davidson v. State, 48 Ala. App. 446, 265 So.2d 888(4), cert. den., 289 Ala. 741, 265 So.2d 897; Sanders v. State, 278 Ala. 453, 179 So.2d 35(17); Bridges v. State, 52 Ala.App. 546, 295 So.2d 266.

II

We cannot agree that the evidence of Sgt. Gatland as to defendant’s oral statement to him was inadmissible because not produced in response to the defendant’s motion to produce recorded or written statements to the officers. The motion was limited and did not refer to oral statements. We pretermit consideration of a motion seeking enlightenment as to oral statements.

III

We are not persuaded that the evidence was insufficient to sustain the jury’s verdict of guilt as appellant claims. The evidence was circumstantial. Nevertheless, it was sufficient to sustain the verdict.

We have read the entire record and made a search for errors prejudicial to defendant. We conclude that there were none and that the judgment should be and it is affirmed.

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

Affirmed.

All the Judges concur.

      . Douglas v. State, 42 Ala.App. 314, 163 So.2d 477 (reversed on another ground, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934) cites Kyzer v. State, 250 Ala. 279, 33 So.2d 885 for the proposition that a jury may properly compare markings on shotgun shells and Douglas, supra, went on to approve the admissibility — though without comment as to the weight — of opinion evidence of the origin of the markings made by the breech block and firing pin of a shotgun. Shotgun marks may not be as distinctive as riflings but this deficiency is a question of the weight to be given them. Compare Evans v. Commonwealth, 230 Ky. 411, 19 S.W.2d 1091, 66 A.L.R. 360, the leading case on Ians and grooves.


author: HEFLIN, Chief Justice.

text:
    In re Thomas Wilborn LEWIS v. STATE. Ex parte Thomas Wilborn Lewis.
    SC 1613.
    Supreme Court of Alabama.
    July 30, 1976.
    Don C. Dickert, Brundidge, for petitioner.
    None for respondent.
   HEFLIN, Chief Justice.

Petition of Thomas Wilborn Lewis for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Lewis v. State, 58 Ala.App.-, 335 So.2d 426.

WRIT DENIED.

BLOODWORTH, JONES, SHORES and BEATTY, JJ., concur.


author: DIXON, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Katherine GREEN.
    No. 57151.
    Supreme Court of Louisiana.
    June 21, 1976.
    Dissenting Opinion July 29, 1976.
    C. 0. Brown, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., L. Paul Gianfala, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant was convicted of aggravated battery, a violation of R.S. 14:34, and was sentenced to three years imprisonment at hard labor. From this conviction and sentence she appeals, raising sixteen assignments of error.

Assignments of Error Nos. 1, 2, 4, 6 and 16

These assignments were raised when defendant sought to introduce evidence of the victim’s threats against the accused, but was prevented by the trial court’s finding that a proper foundation had not been laid. The trial court’s determination was based on the following relevant testimony.

State witness Elbert Green: Green was married to defendant but lived separate and apart from her. As he and Foster Harris, to whom he refers as his foster son, were walking toward Harris’ bail bondsman’s office, they saw defendant and she asked them over to her nearby house. She spoke to Green “like she always do,” kissed him on the cheek, and asked them inside her home. There was another man already in the house, but Green did not know him. Once in the front room, defendant told Green she wanted part of the social security disability income he received each month. He told her he had no money, and she began “cutting on (him) with a knife.” Green had no idea from where defendant had produced the knife, and said he could not run away because the front door was fastened. The next thing Green could remember was being taken to the hospital where he had more than one hundred stitches put in his head. Green had a history of seizures which caused him to become unconscious, and he remembered having one in the hospital while being treated. Prior to that night he had been “cut” on “a bunch” of occasions.

State witness Foster Harris: Twenty-three years old, he referred to Green, who helped raise him, as his stepfather. Harris and Green were walking down Lee Street when defendant asked them into her home. She immediately began to ask Green about money, and he denied having any money. They started to argue and went into the kitchen. Defendant told “Chewing Tobacco,” the other person present in defendant’s home, to lock the front door; he did. Harris unlocked the door and returned to the kitchen to find defendant hitting Green in the head with a knife. Harris asked Green to leave, and defendant interjected that she would not let him. She then called “Chewing Tobacco” to come into the kitchen to hold Green while she cut him, and at that time Harris ran from the house and called the police. Later, Harris returned with police, knocked at defendant’s door and asked to see Green. Defendant answered through the closed front door that Green had gone, but Harris told police Green was too badly hurt to have left. The police then began knocking and “Chewing Tobacco” opened the door after about two minutes. On cross-examination Harris admitted he had been convicted of two burglaries and of passing a forged check.

State witness Officer Ralph Creel: On May 16, 1975 he received a call from a person who reported a woman was cutting his stepdaddy. He and Sergeant Holmes met Harris and went to defendant’s home. While the others were knocking at the front door, Creel went around to the back door. From this position he heard people inside “whispering, rumbling around in the pots and pans,” and “turning on the water.” After waiting awhile, Creel returned to the front door, and Robert Bush opened the door to let them in. After opening the door, Bush sat in a living room chair and did not talk to the officers. They proceeded into the middle bedroom and found Green lying on the floor with blood on and around him; an ambulance was summoned. From the look of the floor, it appeared as though someone had tried to mop the floor, but had only smeared the blood around. Creel fully searched the dwelling and did not find defendant, though he did find a mop and bucket. The mop was standing in the bucket, submerged in bloody water. There were footprints on the floor. Officers Holmes and Creel searched underneath the kitchen sink, where pots and pans were stored, and found a butcher knife with blood on it.

State witness Officer Ronald Holmes: Holmes responded to a call concerning a “cutting.” When he knocked at the door he heard a woman’s voice ask who was knocking; they identified themselves, and about two minutes later the door was opened by Robert Bush. When asked, Bush said he didn’t know what had happened. They proceeded to the bedroom, found Green lying on the floor covered with blood, and began to search for a woman Harris had told them did the “cutting.” They searched the house completely and found no one; a bloody knife was found under the sink by the kitchen utensils, and there was blood in the sink.

State witness Detective Daren Coutee: Coutee interviewed Robert Bush the night of the incident. Bush told him Green came to the house but that he (Bush) saw nothing happen, that he heard a commotion in the bedroom but did not leave his chair because he was “used to this scuffling” and didn’t get involved, that he never saw defendant cut Green, and that all he knew was that an ambulance came to the house and took Green away. Bush could not read or write so he put his “X” on the statement after Coutee read it back to him. Defendant was arrested on May 22,1975, six days after the incident.

Defendant Katherine Green testified on her own behalf. She had just returned from outside her house when she heard a voice call to her. She asked who it was and the voice said, “Elbert Green, Cooter, your husband.” She entered the house and Green and Foster Harris followed her in, uninvited. Green shoved her down onto the floor and cut her on the back with a butcher knife. She rolled out from under him, ran to the kitchen to get a mop and knocked the knife from his hand with the mop. She grabbed the knife and ran to the bedroom where she kept swinging the knife back and forth, but Green “kept on coming up on me and that’s how he got cut.” She was frightened. At this time Foster Harris ran from the house. When Green fell to the floor, defendant threw the knife on the floor and “hid up in the closet.” She thought Green “probably” had a seizure when he was lying on the floor; having lived with Green, she had seen him have seizures “plenty” of times and knew he would fall down and “just kick like a mad dog foaming at the mouth.”

When police came, she could hear them in the room but could not understand them because sh§ was “too scared;” she stayed in the closet the entire time they were in her house. She was arrested about midnight May 21, 1975 and she didn’t understand why, when she was arrested, police told her they had been looking for her because she had always been in her house.

During the incident Robert Bush was in the front room of her shotgun style house.

She showed the jury several cuts on her back, at least one of which she testified was from her first husband (Green was her second husband). Though at the preliminary hearing she said the knife she threw on the floor did not have blood on it, she testified at trial that it did have blood on it.

Defense witness Robert Bush, also known as “Chewing Tobacco,” shared a house with defendant. On the night of May 16, 1975 Bush was inside their house when defendant entered and was followed by Green and Harris. Inside, Green pushed her down, pulled a knife from his pants and “hit” her with it; defendant made it to the kitchen, got a mop and knocked the knife out of his hands. She was swinging it back and forth and Green “kept walking up on her.” After Green fell to the floor, defendant just “stood up and looked” at Green, and when police came “she disappeared” and he did not know where she went. Bush saw police search the entire house, “closets, kitchen and everywhere,” and knew they did not find defendant. Until the police arrived, Bush never got out of his chair, he remained watching television. Bush denied giving police a statement to the effect that he did not see anything. He admitted three convictions for burglary. After the incident and until trial he and defendant continued living together.

Defendant does not deny she cut Elbert Green; she claims she did so only in self-defense. R.S. 14:20. In support of her claim of justification, she sought to introduce evidence of threats against her allegedly made by Green. Finding that no proper foundation had been laid, the trial court gave the following reasons for refusing to admit evidence of threats by the victim:

“BY THE COURT: The question before the Court—this is with respect to whether or not an adequate foundation has been laid to permit defendant to show prior threats, and under Title 15 of the Louisiana Revised Statutes, Section 482, there must be some showing of overt acts before they are admissible. The Court is given discretion to determine whether or not there has been a sufficiency of evidence to show that. It also includes a credibility evaluation and at this time it is the ruling of the Court that a sufficient foundation has not been shown. The Court relies on the cases of State vs. Foreman, 256 La. 999, 240 So.2nd, 736; State vs. Mitchell, [La.] 290 So.2nd, 829; State vs. Walker, [La.] 296 So.2nd, 310.”

Evidence of the victim’s dangerous character or threats against the accused supports a plea of self-defense because it is relevant to show that the victim was the aggressor and because it is relevant to show that defendant’s apprehension of danger was reasonable. State v. Lee, La., 331 So.2d 455, Rendered November 3, 1975, reaffirmed on rehearing March 29, 1976; 1 Wigmore, Evidence § 63 (3rd ed. 1940); McCormick on Evidence § 295 (2d ed. 1972).

The foundation for the admissibility of such evidence is found in R.S. 15:482:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

And the term “overt act,” as used in connection with prosecutions where the plea of self-defense is involved, means any act of the victim which manifests to the mind of a reasonable person a present intention on his part to kill or do great bodily harm. See State v. Brown, 172 La. 121, 133 So. 383 (1931).

Prior to 1952 R.S. 15:482 required “proof” of an overt act before evidence of the victim’s threats was admissible. We then held the overt act must be established to the satisfaction of the trial court. State v. Terry, 221 La. 1109, 61 So.2d 888 (1952); State v. Tobias, 218 La. 226, 48 So.2d 905 (1950).

But the legislature amended R.S. 15:482 in 1952 to require “evidence” rather than “proof” of an overt act. In State v. Lee, supra, we held this amendment meant that “. . when appreciable evidence is in the record relevantly tending to establish the overt act, the trial court cannot exercise its discretion to infringe on the fact-determination function of the jury by disbelieving this defense testimony and, thus, deny the accused a defense permitted him by law.”

This is precisely what the trial court in the case before us did: he exercised a “credibility evaluation” to refuse defendant the right to have the jury determine the merits of her plea of self-defense.

Both defendant and Robert Bush testified Green attacked defendant first and that she acted only to protect herself; whereas both Green and Foster Harris testified defendant attacked Green without justification. Testimony by investigating officers also may have contradicted that of defendant and Bush. However, it cannot be said that there is the “absence of evidence of hostile demonstration or of overt act on the part of the person . . . injured” required by R.S. 15:482 to make evidence of the victim’s dangerous character or threats against the accused inadmissible.

In making his ruling, the trial court relied upon three cases rendered by this court after the 1952 amendment. In the first two, State v. Foreman, 256 La. 999, 240 So.2d 736 (1970) and State v. Mitchell, 290 So.2d 829 (La.1974), evidence of the victim’s dangerous character and threats against the accused was held inadmissible' because of the trial court’s “reasonable evaluation of the credibility of the witnesses and the sufficiency of the evidence.” These cases were expressly overruled by our decision in State v. Lee, supra. In the third case relied on by the trial court, State v. Walker, 296 So.2d 310 (La.1974), evidence of the victim’s threats against the accused was held inadmissible because the foundation evidence tended to show only that the victim walked near the accused; hence this evidence did not tend to show an overt act or hostile demonstration. The holding of Walker does not support the trial court’s ruling in the case before us.

By refusing to admit evidence of the victim’s threats against the accused on the basis of the credibility of the witnesses,, the trial court ignored the 1952 amendment and applied the pre-1952 test.

For the reasons expressed herein, defendant’s conviction and sentence are reversed and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

SUMMERS, Justice

(dissenting).

I adhere to the reasons assigned by this Court in State v. Groves, 311 So.2d 230 (La.1975), at page 238, declaring,

“It is not any testimony which will satisfy the requirement of Section 482 of Title 15 that there be ‘evidence’ of hostile demonstration or overt act. It does not become evidence unless, in the opinion of the trial judge charged with determining the weight of the testimony, it is credible and competent to establish the facts which are necessary to constitute a hostile demonstration or overt act. Hostile demonstration or overt act must moreover be of such a character that they indicate a purpose to do defendant serious bodily harm. If the testimony is so incredible because of its self-serving character and the contradictions established against it that it has no weight in the judgment of the trial judge it is, in effect, no evidence. Thus, to be evidence, the testimony of hostile demonstration or overt act must be such that its reception would establish hostile demonstration or overt act, otherwise it is not evidence of these facts.” See also II Wigmore on Evidence § 246 (3d ed. 1940).

The case at bar overrules the proposition announced in State v. Lee, 331 So.2d 455 (La.1975), that “evidence” as used in Section 482 meant that “. . when appreciable evidence is in the record relevantly tending to establish an overt act, the trial court cannot exercise its discretion to infringe on the fact determination function of the jury by disbelieving this defense testimony . . . .” For, in the case at bar, there is no “appreciable” evidence.

Under the decision in the case at bar, evidence of the dangerous character of the person slain or injured, or of his threats against the accused, will always be admissible. For, under this decision the mere statement of the defendant that the victim raised his hand will suffice as “evidence” of a hostile demonstration or overt act.

I do not believe that the Legislature, by inserting “evidence” in Section 482, intended such a result.

This brings us to Wigmore’s assertion that unless our law is to become a mass of quibbles which no practitioner can master and every murderer will welcome, the question whether an overt act is sufficiently evidenced to lay the foundation for the reputation evidence must be left in the hands of the trial judge. II Wigmore on Evidence § 246 (3d ed. 1940).

I respectfully dissent.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Archie LAUNEY.
    No. 57436.
    Supreme Court of Louisiana.
    June 21, 1976.

      John Saunders, Mamou, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pucheu, Dist. Atty., A. Bruce Rozas, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Archie Launey was charged by bill of information with committing a theft of an Evinrude outboard motor belonging to Larry J. Broussard and having a value over $100. La.R.S. 14:67. Having waived trial by jury, he was found guilty in a bench trial and sentenced to serve six months in the parish jail; five months of the sentence were suspended; and he was placed on probation for one year. He appealed and relies on four assignments of error for reversal of his conviction and sentence.

Larry Broussard testified that in September 1970 he purchased an Evinrude outboard motor from Mamou Hardware, in the town of Mamou, Louisiana. At the time of purchase he was given a sales receipt imprinted with Mamou Hardware’s address and phone number, which showed the amount paid. The sales receipt also contained the motor serial number and was marked “Paid in Full”. Broussard later received in the mail an owner’s registration card from the Evinrude factory containing the identical motor serial number.

The motor was stored at Broussard’s residence in a room beneath the garage. Frequently the motor was loaned to friends, including Archie Launey who borrowed the motor several times. On August 1, 1973 Launey appeared at Brous-sard’s place of employment and asked to borrow the motor. Broussard consented and told Launey to go for the motor. Launey returned shortly and told Brous-sard that the motor was not in the storeroom, where Broussard’s wife testified it had been a day or two earlier.

Later Broussard received information that one Joe Johnson had a motor fitting the description of the missing outboard. Although the conspicuous serial number at the foot of the motor had been obliterated, Broussard had learned, by a letter from the Evinrude factory in Wisconsin, that another serial number could be found on that model in an inconspicuous location on a freeze plug, pressed into the powerhead of the motor. Guided by this information, Johnson determined that the motor bore the same serial number as Broussard’s.

The first three assignments of error relate to the introduction into evidence of the Mamou Hardware sales slip, the Evin-rude ownership registration card and the letter from Evinrude in Wisconsin advising of the alternate location of the motor serial number. The defense contends upon timely objection that it was error to introduce these documents into evidence because the writers were not present in court to verify their correctness under oath or to be subjected to cross-examination. For these reasons, it is asserted, the documents contained inadmissible hearsay evidence.

The rule that hearsay evidence is inadmissible is recognized by statute in this State. La.R.S. 15:434. It is evidence of an unsworn, out-of-court statement, written or oral, made by a person other than the testifying witness and offered for the purpose of establishing the truth of its content. State v. June gain, 324 So.2d 438 (La.1975). Thus the three documents in question would be properly classified as hearsay unless they fall within one of the exceptions to the rule. Decisions of this Court have accepted traditional exceptions to the rule. State v. Smith, 285 So.2d 240 (La.1973).

Under the above definition of hearsay a statement or writing is not hearsay if it is introduced solely for the purpose of proving the fact of its utterance and not the truth of the statement. State v. Monk, 315 So.2d 727 (La.1975). For this rule to apply, however, “. . . the mere fact that the statement was made (by the person not under oath) must itself be a relevant and important fact. But, if the fact that the statement was made . . . would be of no importance except for the truth of the statement. . . .” it is not admissible under the hearsay rule. State v. Green, 282 So.2d 461 (La.1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1580, 39 L.Ed.2d 882 (1974).

A careful consideration of this evidence permits the conclusion, advanced by the State, that the sales receipt and the owner’s registration card were part of the sales transaction whereby Broussard testified he acquired the outboard motor. These were relevant facts of which he had knowledge and about which he could be cross-examined. These documents were as much a part of his acquisition of the motor as the delivery of the motor itself; they were, in fact, evidence of delivery and manifested his ownership. They are original and material evidence, not hearsay, introduced to establish his ownership not alone to prove the serial numbers to which the hearsay objection is directed. The fact that a sales receipt and owner’s registration card were issued to Broussard is itself important. Since these documents are properly admitted for this limited purpose, the fact that they otherwise contain hearsay evidence does not render them objectionable.

Aside from this, these documents were business records of Mamou Hardware and Evinrude. As such they fall within a well-recognized exception.

“A permanent record made in the ordinary course of business, by a person unavailable for testimony, from personal knowledge of the facts recorded or from information furnished by one having a business duty to observe and report the facts, is admissible as proof of the facts recorded, in the absence of a strong motive to misrepresent if the record is the first collected and recorded memorial.” 'Comment, Business Records in Louisiana as an Exception to the Hearsay Rule 21 La.L.Rev. 449, 451 (1961), quoted in a footnote to State v. Hodgeson, 305 So.2d 421 (La.1974).

Business records are admissible in evidence if relevant and material without the necessity of identifying, locating or producing as witnesses the individuals who made the entries in the regular course of business. While some question may surround the failure to establish the unavailability of the Mamou Hardware representative who wrote the sales receipt, no such doubt exists with respect to the person who prepared the owner’s registration card for Evinrude in Wisconsin. Considering the distance and expense involved in requiring that person to appear at the trial, it can be considered that he was, for all practical purposes, unavailable. Because the Mamou Hardware sales receipt contained the same information it was merely cumulative and the failure to establish the unavailability of the writer was harmless.

The letter from Evinrude in Wisconsin to Broussard pointing out where the inconspicuous serial number could be found does not offend the hearsay rule. The letter was received by Broussard and was introduced to show its effect upon him, giving directions where the serial number could be found. The letter does not in any manner purport to establish the ownership of the motor in Broussard; it is a generalized statement giving directions for finding a serial number without any reference to the serial numbers of any particular motor.

When writings or utterances are offered to show the effect on the reader, they are generally classified as admissible non-hearsay. See State v. Singleton, 321 So.2d 509 (La.1975).

In a bench trial the judge is especially qualified to confine consideration of such evidence to the limited purpose for which it may properly be admitted.

In his assignment of error number four defendant argues that it was error for the trial court to admit the outboard motor into evidence because the documents already referred to, being inadmissible, did not properly establish the ownership in Broussard and because there were discrepancies in the serial numbers. Since we have held that the documents were admissible for the limited purpose for which they were offered and since the trial judge found the discrepancies in the numbers to be unimportant, this assignment of error is without merit.

A reading of this record conveys the impression, undoubtedly shared by the trial judge, that Broussard’s ownership of the motor was not seriously contested, the defense being that Launey was not the thief, having bought the motor from one Roy Fontenot. Fontenot never testified, no receipt for the purchase was presented and the circumstances surrounding the alleged purchase were such as to confirm the trial judge’s rejection of the defense.

For the reasons assigned, the conviction and sentence are affirmed.

DIXON, J., concurs.