author: CLARK, Supernumerary Circuit Judge.

text:
    Larry Donell NICHOLSON v. STATE.
    4 Div. 330.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    James M. Prestwood, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State. •
   CLARK, Supernumerary Circuit Judge.

This appeal is from a revocation of probation.

On April 18, 1973, appellant, after pleading, guilty, was found guilty of manslaughter in the first degree and sentenced to imprisonment in the penitentiary for a term of a year and a day. He was placed on probation for a period of five years. On December 6, 1974, his probation was revoked, after a hearing on a charge that he had violated one or more of the conditions of his probation.

The judgment appealed from recites as the basis for the revocation of probation the following:

“The Court having heard the evidence finds from the evidence that the Defendant violated the conditions of his probation in that he was in possession of Marijuana, possession of Marijuana smoking paraphernalia and using marijuana.”

There was evidence on the hearing that appellant had been convicted in the recorder’s court of the City of Florala on charges of possession of “marijuana” (hereinafter spelled accordingly and in accordance with the record and briefs) and possession of narcotic paraphernalia and fined $200 and costs in each case. The chief of police of Florala testified that he had arrested appellant, after finding at appellant’s home a small quantity (“a penny match box full”) of marijuana and a pipe, in which there was residue, and that appellant stated he had “used it [the pipe] to smoke marijuana with.” Appellant testified he had admitted that he had smoked marijuana in the pipe and that he had had marijuana in his possession. Upon being asked whether he stated to the probation officer that he had the marijuana and had smoked it in the pipe, he stated:

“If I recall correctly, he asked me on the way bringing me in have I ever smoked the stuff? If I were using it for my personal use or for sale? I told him it was for my personal use?”

Appellant’s only insistence on error in the revocation of probation may be divided into two parts:

(1) That appellant was not provided counsel at the hearing in the Recorder’s Court of Florala and “this illegality was compounded when the conviction in the Recorder’s Court served as a vehicle by which the Appellant’s probation was revoked.”

(2) That possession of marijuana was not proved by competent evidence on the revocation of probation hearing.

As to (1), appellant finds comfort in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, holding; that an order of imprisonment by a municipal court is invalid as unconstitutional when imposed upon a defendant without counsel, in the absence of a knowing and intelligent waiver of his right to counsel. We see no occasion to delve into implications or extensions of A'rgersinger, in the absence of any contention by appellant for the application of any such implication or extension. Furthermore, the record here shows that the trial court based its judgment of revocation chiefly upon appellant’s admission in open court on the revocation hearing, while testifying as a witness called by his counsel. In response to the argument of his counsel that it was not a case for revocation, the trial judge stated:

“I don’t know whether there was or not before the defendant got up and admitted having it. But I am going to revoke his probation.”

As to appellant’s other asserted reason for a reversal, we are confident that there was sufficient evidence, separate and apart from the records of his conviction in the recorder’s court admitted without objection in evidence on the revocation of probation hearing, to justify the judgment of the trial court that defendant was in possession of marijuana, possession of marijuana smoking paraphernalia and using marijuana. As stated in Martin v. State, 46 Ala.App. 310, 241 So.2d 339:

“As was said in State v. Duncan, 270 N.C.241, 154 S.E.2d 53:
‘Probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime. Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566. A proceeding to revoke probation is not a criminal prosecution, and we have no statute requiring a formal trial. Upon a hearing of this character, the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt.’ * * * n

It was stated in Phillips v. State, 52 Ala. App. 297, 291 So.2d 751:

“There is no criterion or measure of proof required to revoke probation. Only a gross abuse of discretion will justify disturbing the trial court’s conclusions. Williams v. State, 40 Ala.App. 139, 109 So.2d 145.”

In view of our citation of Phillips, it possibly should be noted here that in this case there was a warrant of arrest issued by the trial judge, which is one of the alternate prerequisites to a determination of probation prescribed by T. 42, § 24, Code of Alabama 1940, and that in the case now before us no attack is made upon the original judgment of conviction and sentence, the opposite being true in Phillips, wherein it was rightly held that a failure to observe one of the statutory prerequisites invalidates a revocation of probation and that a failure to comply with the requirements of Boykin v. Alabama, 359 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, vitiates the original conviction on a plea of guilty as well as any revocation of probation thereafter ordered.

The judgment of the trial court should be affirmed.

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

Affirmed.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Charles Edward JEMISON v. STATE.
    6 Div. 775.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Jesse W. Shotts, 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 the crime of rape. At arraignment, with his counsel present, he pleaded not guilty. The jury found him guilty as charged in the indictment and fixed his punishment at twenty years and one day in the penitentiary. The court adjudged him guilty and sentenced him in accordance with the verdict of the jury. He gave notice of appeal. He was found to be indigent and a free transcript was furnished him. Trial counsel was appointed to represent him on appeal.

This is another inter-racial rape case. Appellant did not testify at his trial but offered the testimony of his mother, father and two employers in support of his alibi.

The prosecutrix was a fifty-six year old married woman living with her husband and three children on July 19, 1973. She was employed by the Birmingham News and had been so employed for nine and a half years. She testified that she left for work that morning just before S :00 A.M. and was driving her own car. She parked her car on 22nd Street between 5th and 6th Avenues right beside the First Baptist Church which was just a short distance from the News building. She placed the time between 5:15 and 5:20 that morning. She stated that she backed into the parking place, took the keys out of the ignition and put them in her purse and got her parking money out. She picked up her lunch and turned to open the door and saw a black man at the window with a knife in his left hand. It was breaking day at the time and she could clearly see the man. She hollered and the man opened the door and told her to get out and not say a word. She got out and he closed the car door. He told her to put her right arm around his waist and she kept saying, “No, No.” He threatened her with the knife if she didn’t do what he said. She put her right arm around his waist and he put his left arm around her waist. He started walking her to the corner of the church and started up 6th Avenue. She saw two or three cars coming and she tried to pull away from him to attract the attention of the people in these cars. When she made this attempt to get away from him, he hit her on her nose with his right fist causing it to bleed. The blow to her nose stunned her and she dropped her purse. She attempted to pick it up and he would not let her. He warned her not to try and do that again or he would kill her, saying, “He didn’t have anything to lose.”

He led her about middleway the block and then crossed the street. He kept telling her to get closer to him and not try to pull away from him again. He asked her if she had ever loved a black man and she said, “No, of course not,” and he said, “Well, you are now.” She began pleading with him not to do anything to her and he told her not to say anything and wake any of the people up in the housing project. He led her down the stairwell of an apartment complex and told her to lie down on her back and remove her underclothes. He still had the knife drawn on her and still warned her not to say anything. She removed her underclothes and he proceeded to have sexual relations with her. He tried two or three times to penetrate her without success and finally took his hand and forced his private part into her private parts. According to her testimony the sexual act did not last over ten minutes and he did not climax. He got up and told her she wasn’t fit for a dog to touch and left her saying he had to go catch a bus.

After he left she put her clothes on as best she could and ran toward Twenty-second Street trying to stop traffic. Finally she stopped a cab driver and told him what had happened and he radioed his cab stand to notify the police. Two uniformed police officers arrived and she told them what had happened and described her assailant and how he was dressed. The officers carried her to the University Hospital where she was seen and examined by Dr. Wallace Evans.

During- appellant’s trial she was asked if the man who raped her was in the courtroom and she answered, “Yes, sir.” She was asked to point him Out and she pointed to appellant and said, “Right there (indicating) no doubt in my mind, absolutely.”

On cross-examination she testified the man was clean shaven and did not have a mustache or a goatee. She stated he had on dark trousers and they were flared legs. That he had on a black seersucker sport shirt and the shoes or boots he was wearing were patent black with heals about two inches high. She said he had been drinking and she could smell the odor of whiskey on his breath but he was not intoxicated. She further stated that he was five feet ten or eleven inches tall and weighed 170 to 175 pounds; that he kept his knife in his hand at all times.

She further testified that when she got to the hospital the whole front of her dress was bloody.

The husband of the prosecutrix testified that he saw her in the hospital around seven o’clock that morning and she was crying and her face was bloody and her whole chest was bloody. She was still in the emergency room when he saw her.

Police Officer M. L. Howell together with his partner, Officer Rhodes, responded to the rape call from the cab stand. The call came in at approximately 5 :20 A. M. They found prosecutrix standing by the taxi cab on Twenty-second Street. He testified that she had blood on the front of her clothing and on her stockings where they had been torn and she was bleeding around the nose and mouth. Her hair was in disarray at the time he first saw her.

The prosecutrix was recalled to the witness stand and testified that around 1:30 P.M., on August 4, 1973, she viewed a lineup of six Negroes at the City Jail and immediately identified appellant as the man who raped her on July 19, 1973. She said he was number three in the lineup of six Negroes all about the same height and build.

On cross-examination she testified she was wearing a solid beige dress on the occasion and that it had blood all over the front of it. She further testified that a man working with a construction crew near the place where she dropped her purse found it and turned it over to the Police Department and a policeman brought it to her.

The prosecutor for the state and defense counsel stipulated the testimony of Dr. Wallace Evans, the gynecologist who examined the prosecutrix on the morning of July 19, 1973.

In sum, his testimony was that he graduated from the University of South Carolina in 1969 with a Bachelor of Science Degree. In 1973, he graduated from the University of Alabama School of Medicine with an M.D. Degree and began special training in obstetrics and gynecology and completed a year of that special training.

He examined the prosecutrix at 7:00 A. M. on July 19, 1973, in the emergency room at the University Hospital. He observed some redness on her face. There were abrased areas under the left eye and cheek and there was blood coming out of her nose, especially on the left side. She also had some abrased areas on her back over the shoulder blade and her right forearm. The bruises were recent. He observed some abrased areas on examination of the vagina and inside the vagina. She was very excited. She was crying at the time. Her blood pressure was quite elevated and her pulse was very rapid. He did not find any sperm in the vagina. It was his opinion that she had recently had sexual intercourse as the entrance to her vagina was bruised and there were some small tears in the skin at the entrance to the vagina.

In support of appellant’s alibi, his mother testified that appellant was separated from his wife on July 19, 1973, and was living with her, his father, a brother and a sister. She stated that she got up and cooked breakfast for the family, that, she waked appellant about 5:15 o’clock that morning and he left for work with his father at about ten minutes to six.

On cross-examination she testified that appellant worked for the Royal Cup Coffee Company and that his hours of employment were from 6:30 A.M. until 5:00 P.M. She was asked specifically if appellant wore a goatee on July 19, 1973, and answered, “I don’t know.”

The father testified that neither he or appellant ate breakfast on July 19, that they only drank coffee. He said he worked for South Central Bell and that he probably dropped his son off near the Royal Cup Coffee Company at five minutes to six o’clock that morning.

Mr. Raymond R. Hendon testified that he was Vice-President of Royal Cup, Incorporated and that appellant was an employee of the company. He said the week time book showed that appellant was at work on July 19, 1973, and the starting time was six-thirty. He stated that appellant had a goatee when he hired him and when he left. He estimated the goatee was about an inch and a half long.,

On cross-examination he testified the company kept a time book on the number of hours its employees worked. He said he had no hours marked for appellant during the week of July 19, “not as such.” The time sheet did not show when appellant reported for work. He was asked if he saw him at seven o’clock that morning and he said he could not remember.

Mr. J. O. Capps testified that he was employed by the Royal Cup Coffee Company and that appellant worked directly under his supervision. He stated that appellant had a goatee an inch to an inch and a half all the time he worked for the company.

On cross-examination he was asked what time appellant reported for work on July 19, 1973.

From the record:

“Q You don’t even know what time he got to work that day do you ?
A Well, that far back I couldn’t know. He wasn’t too bad late, anyway, when he come to work.
Q You don’t know where this man was at five o’clock, five fifteen, or five thirty on that day, July 19, 1973, do you?
A No sir.”

The time frame as to the alibi evidence was weak and uncertain in many instances. Alibi testimony, like all other evidence in a criminal prosecution, is an issue to be determined by the jury. This alibi evidence was considered and rejected by the jury. Brown v. State, 229 Ala. 58, 155 So. 358; Gillis v. State, 242 Ala. 550, 7 So.2d 563; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Smith v. State, 53 Ala. App. 27, 296 So.2d 925.

Likewise, conflicting evidence is always a question for the jury to determine. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

The jury may convict upon the prosecutrix’s testimony alone if such evidence convinces the jury beyond a reasonable doubt that the accused is guilty. White v. State, 37 Ala.App. 448, 70 So.2d 287; Robinson v. State, 53 Ala.App. 145, 298 So.2d 75.

On the question of photographic identification the Supreme Court of the United States in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, held:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden-tification. * * * ”

The sufficiency of the evidence to convict appellant is not presented in the record before us. There was no motion to exclude the state’s evidence; there was no motion for a new trial; there was no request for the affirmative charge; there were no exceptions reserved to the court’s oral charge to the jury, and there were no adverse rulings on the admissions of evidence that in any wise affected the substantial rights of appellant. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Grant v. State, 46 Ala.App. 232, 239 So.2d 903; Robinson v. State, 46 Ala.App. 684, 248 So.2d 583.

We have carefully examined the entire record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the case is affirmed.

Affirmed.

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


text:
    Robert PITTS v. STATE.
    5 Div. 293.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Michael A. Nix, Auburn, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment ROBERT PITTS, ALIAS ROBERT PITTS, whose true Christian name is otherwise unknown to the Grand Jury, on or about the 13th day of December, 1974, and subsequent to the effective date of the Alabama Uniform Controlled Substances Act, did unlawfully posses, (sic) Marihuana, a controleled (sic) substance, after having been previously convicted of possession of Marihuana, contrary to the provisions of the Alabama Uniform Controled (sic) Substances Act, against the peace and dignity of the State of Alabama.”

Prior to arraignment the court ascertained that appellant was indigent and counsel was appointed to represent him at arraignment and throughout the trial below. He pleaded not guilty. After conviction he gave notice of appeal and he was furnished a free transcript and trial counsel was appointed to represent him on appeal.

On December 13, 1974, two Deputy Sheriffs of Lee County went to the home of appellant to serve a non-support warrant on him. His mother told the officers appellant was at home and he came to the door. The officers told him they had a warrant for his arrest for non-support. He told the officer he had signed a bond on that charge that morning. The officers asked him to come with them to the patrol car so that they could radio in and verify his statement. They radioed police headquarters but were unable to verify that appellant had made bond on the non-support charge and appellant was then arrested and he resisted arrest. He was finally arrested, handcuffed and put in the patrol car and carried to the station house. They made him put both hands on the counter at the book-in desk and upon being searched, one of the officers found a partially burned hand-wrapped cigarette in the left pocket of a jacket he was wearing. This cigarette was placed in a manila envelope and sealed. Deputy Sheriff Robert Taun-ton was the officer who found the cigarette. After placing it in the envelope he put his initials on the seal and turned it over to Deputy Sheriff L. C. Thomas who locked the envelope in the evidence locker and later personally delivered it to Dr. John R. McDuffy at the laboratory of the Department of Toxicology in Auburn, Alabama.

Dr. McDuffy, whose qualifications were admitted by defense counsel, conducted a chemical analysis on the contents of the envelope and found the substance to be marihuana. He resealed the envelope, put his initials on it and kept it in his possession until he brought it to court during appellant’s trial. The envelope was properly identified and introduced in evidence over the objections of appellant that there was a missing link in the custody of the cigarette in question.

To prove appellant’s prior conviction for possession of marihuana the state called the circuit clerk of Lee County, who was ex-officio clerk of the District Court of Lee County (formally the Court of Common Pleas of Lee County). The clerk brought the original and official court docket of that court which stated:

“On November S, 1973, on hearing the evidence in this case, the court is satisfied of the guilt of the defendant and hereby awards the following punishment: $100.00 fine and the cost of this proceeding. C. S. Whittelsey, Judgé.”

From the record:

“THE COURT: Are you introducing this, with leave to withdraw — ■
MR. MYERS: Yes. We would introduce the official docket sheet from that date, Your Honor, with leave to withdraw.
THE COURT: Very well.
Now, let the record show that this is the original docket sheet of the Court of Common Pleas of Lee County, Alabama, in Case No. 2614-M, and the State has introduced it as evidence in this case but the Court knows that this is the original so the Court will grant permission for the State to withdraw this original docket sheet and substitute in lieu thereof, a photostatic copy, which you can make, can’t you, Mr. Smith ?
THE WITNESS: Yes, sir.
THE COURT: And put a photostatic copy in the file?
THE WITNESS: Yes, sir.
MR. MYERS: That would be perfectly satisfactory with the State.
MR. NIX: That’s fine, Your Honor.
(Thereupon, the instrument herein-above referred to was marked as 'State’s Exhibit Number Two,’ and was received into evidence.)”

The admission into evidence of the above docket sheet was agreed to by counsel for appellant.

Appellant testified in his behalf and denied that he had a partially smoked hand-wrapped cigarette in his pocket prior to being carried to police headquarters on the night of December 13, 1974. He admitted that the officers removed the described cigarette from his clothing but he did not know how it got in his pocket. He further testified that the jacket he was wearing belonged to a friend of his and he had borrowed it and did not know it contained a hand-wrapped cigarette as claimed by the officers.

Appellant’s counsel moved to exclude the state’s evidence on the ground the state failed to make out a prima facie case, and, also there was a missing link in the chain of custody. The motion was overruled.

The docket” sheet was shown to be the only book of record of the Lee County Court of Common Pleas, and the one in which the final record of judgments in that court was kept. The Court of Common Pleas of Lee County was not a court of record. Not being a court of record the method used by the state in proving appellant’s prior conviction for possession of marihuana was permissible. Gandy v. State, 86 Ala. 20, 5 So. 420.

In Lockhart v. State, 34 Ala.App. 297, 39 So.2d 40, this court held:

“A minute entry constitutes the final record of a judgment. It cannot, in a court of record, be impeached or aided by the judge’s bench notes, or memoran-da, which operate only as a direction to the clerk as to what judgments and orders shall be entered on the court’s records. Calvert v. State, 26 Ala.App. 189, 155 So. 389. While a County Court is ordinarily not a court of record and its judicial acts are not required to be formally recorded or enrolled, nevertheless if a transcript of the proceedings in a County Court contain a formal judgment or minute entry, we see no reason why the same principles applicable to judgments of a court of record should not also apply to such formal judgments duly entered by the County Court.”

The evidence as to the custody and possession of the envelope and its contents sufficiently established there was no missing link in the chain of identification. The identification and continuity of possession were sufficiently shown, affording ample assurance of the authenticity of the envelope and its contents and the analysis conducted by the toxicologist. Powell v. State, 47 Ala.App. 582, 258 So.2d 923; Green v. State, 42 Ala.App. 439, 167 So.2d 694; Dennison v. State, 259 Ala. 424, 66 So.2d 552; Oury v. State, Ala.App., 298 So.2d 661.

Appellant was originally sentenced to fifteen years in the penitentiary, but the trial court, within time, reduced the sentence to ten years.

This court received a letter from appellant’s counsel stating, in part, “I have thoroughly and conscientiously studied the transcript of Mr. Pitts’ trial in the Lee County Court. On the basis of my search, I find no error in his trial. I therefore send this to you as a letter of no merit.”

We are in full accord with the letter from appellant’s counsel. Accordingly, the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Frank WILSON, Jr. v. STATE.
    6 Div. 605.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.

      Ralph C. Burroughs, Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, for the State.
   BOOKOUT, Judge.

First degree murder: sentence, life imprisonment.

The State’s first witness, Dr. James W. Sherwood, testified that he examined John Clay Smith, Jr., in Druid City Hospital, Tuscaloosa, on November 24, 1972. He testified that Smith died of a wound from a shotgun fired at close range.

Mrs. Dorothy Bryant testified that on November 24, 1972, she was working under an arrangement with the Veteran’s Administration to board certain veterans in her home, one of which was John Clay Smith. She stated that her half-brother Frank Wilson, Jr., came to her home on that date. He had an argument with Smith, whereupon, she ordered him from her home and he left. She then went into her child’s room and no longer than thirty minutes later, she heard two shotgun blasts. At that time, she locked the bedroom door and heard the appellant then begin knocking on the door, saying: “open up, open up, I’m gonna to kill you, I’m gonna to kill you.” She did not open the door and appellant left.

Smith called to her, and she found him lying wounded in the corner of his bedroom. She did not see a knife or other shiny object in the room near Smith. She looked out the window and saw her half-brother, the appellant, going down the driveway with a shotgun in his hands. She saw Thurman Crummie, Jr., drive up in an automobile.

Thurman Crummie, Jr. testified that on November 24, 1972, he drove to Dorothy Bryant’s home and saw Frank Wilson come out of the house with a shotgun in his hands. Wilson told him he was going to turn himself in, that he had just killed John Clay Smith. Wilson unloaded the shotgun, handed two shells to Crummie, put the gun in the car, and the witness drove him to the home of Jenny Kemp where James Wilson picked up the defendant and drove him off.

Johnny Wilson testified that he was the first cousin of the apppellant. On the date in question, the witness was in Dorothy Bryant’s home. He saw the appellant leave in his automobile and return about a half hour later with a shotgun. The appellant walked through the den where the witness was sitting with an elderly veteran, went upstairs, and then two quick shots were heard. He saw the defendant then leave the house with a shotgun. The witness went to Smith’s room and tried to help another veteran carry Smith to the car in order to take him to the hospital, but they were unable to do so.

Witness Jenny Kemp stated that she was a first cousin of Dorothy Bryant and of the appellant. She said Thurman Crummie brought the appellant to her home on the date in question. The appellant had a shotgun in hand and asked her to take him to town and turn him in, but she called her brother to take him. The appellant told her he had shot John Smith twice. The appellant did not mention Smith having a knife or any weapon, neither did he mention that the gun accidentally fired. In relating her conversation with the appellant, the following transpired:

“A.’ He told me he had shot Smith.
“Q. All right, did he tell you how many times ?
“A. He told me he shot him twice.
“Q. All right, did you ask him for any explanation of why he shot John Smith ?
“A. I asked him what happened and he just said they had a round, something like that, something pertaining to that.”

James Wilson testified that he was a first cousin of the appellant and that Jenny Kemp was his sister. He said he lived about three or four thousand feet from Dorothy Bryant’s house. On November 24, 1972, he received a call and went home where Thurman Crummie, Jenny Kemp and the appellant were waiting. The witness stated that the appellant had a shotgun at that time. He carried the appellant to the county jail. He further stated that he had never seen the deceased with a knife.

Cecil Simpson, a Tuscaloosa County Deputy Sheriff, testified that he and Deputy Sheriff John Colburn went to the scene of the shooting on the date in question. They found the deceased, John Clay Smith, Jr., lying in a back bedroom wounded. The witness did not see a knife or shiny object around Smith. The officers did not observe a scabbard on the deceased. The witness stated that Smith was still alive at the time he and Deputy Colburn were in the bedroom.

James Ronald Owen, Tuscaloosa County Jailor, testified that the appellant came to the jail on November 24, 1972. He asked the appellant if he could help him, and the appellant replied: “Yes, I believe y’all looking for me. I just shot sombody.” The appellant did not mention the gun firing accidentally or that the deceased had a knife.

Bill Hobson, an investigator for the Tuscaloosa County Sheriff’s Department, stated that he went to the Bryant home on the date in question. He examined the room of the deceased and did not find a knife or other weapon. He took photographs of the room.

At the conclusion of the State’s evidence, the appellant moved to exclude on grounds that no corpus delicti had been proved and that the evidence did not establish a prima facie case of homicide. The trial court overruled, and the defense proceeded with its evidence which was later followed by rebuttal witnesses on behalf of the State.

Deputy Sheriff Prentiss Gardner was asked by defense counsel if he had heard firearms go off in confined areas and whether it would be difficult to tell if one or two shots were fired when a gun goes off once. He said that four or five months earlier, he had heard one shot fired in the county jail that sounded like two shots to him.

Frank Wilson, Sr., testified that he was the father of the appellant. He stated that Dorothy Bryant was his daughter by his first wife and that he knew her reputation in the community for truth and veracity and that it was bad. He stated that his daughter and the deceased were having an affair. He said he knew the reputation of his son in the community for peace and quietude and that it was good. He further testified that the deceased usually carried a dirk or hunting knife and scabbard on his belt.

Jessie Riggs stated that he, his wife and two children, Dorothy Bryant, her daughter and the deceased went to Disney World in Florida, the previous summer. He said Mrs. Bryant and the deceased shared the same motel room for four nights. He stated that the deceased used to carry a small knife and a scabbard on his belt.

Bobby Wilson, brother of the appellant, testified that Dorothy Bryant’s reputation for truth and veracity in the community was bad and that she was having an affair with the deceased. Mrs. Francis Tierce, likewise, testified that Mrs. Bryant’s reputation for truth and veracity was bad.

Woodford Wilson, also known as James Wilson, testified that he was the appellant’s brother. He stated that on the afternoon of the shooting, the appellant came by his home, stayed about twenty minutes and left. He said the appellant did not take a shotgun with him when he left, but did take two dogs and a hunting vest. He said the appellant appeared normal to him.

Frank Wilson, Jr., the appellant, testified in his own behalf. He stated that he knew John Clay Smith, that Smith was a veteran staying at the home of Dorothy Bryant,, the appellant’s half-sister. He said his relationship with Smith was friendly. He testified that Mrs. Bryant and Smith were having an affair.

On the day of the shooting, he said he got up early and went deer hunting. After hunting, he went to the Bryant house. Before entering, he put his shotgun in an old automobile standing in front of the house and then went inside. From there, John Clay Smith and Mrs. Bryant gave him a ride to a friend’s house. He said their attitude was friendly. Sometime later that afternoon, they picked him up and brought him back to the Bryant house.

On this occasion, he engaged in an argument with Pat Wilson, the white wife of his brother, telling her he did not believe in racially mixed marriages. He said she got mad, and Mrs. Bryant asked him what he did to make Pat cry, and he replied that he had done nothing. He said Mrs. Bryant then ordered him out of the house saying she would have Smith throw him out if he did not leave.

The appellant said he left the Bryant home and drove to his father’s leaving his gun in the old car outside the Bryant house. He planned to go rabbit hunting with his brother that afternoon. He walked back to the Bryant house, got the gun from the car, and began unloading it as he walked and reloaded it with another type shot for rabbit hunting. He was hunting as he walked away from the Bryant house, but then decided to return to tell his brother in which direction he was going hunting. He walked through the Bryant house where he said he was attacked by Smith.

The appellant claims that while walking through the Bryant house, Smith attacked him in a hallway with a knife. He said he hit at Smith with the gun, apparently in self-defense, and it discharged without the trigger being pulled. He said Smith jumped back into his bedroom, then Mrs. Bryant came out of one room and went into another. He knocked on her door, but she did not reply. Since he knew there were other guns in the room where Mrs. Bryant entered, he decided to leave the house. The appellant said he did not know then if he had shot Smith. He said Smith usually carried a hunting knife which had a blade of about nine inches in length.

The appellant testified that he did not touch the trigger when the gun fired and that it fired only one time. He said that he told one of the officers at the county jail when he turned himself in that Smith had a knife at the time of the shooting, and then refused to answer any further questions without an attorney.

On cross examination, the appellant said he had never fired a shotgun or any type gun into his father’s house. He said his father had him arrested for public drunkenness or disturbing the peace on an earlier occasion, but not for threatening him with a shotgun. On further cross examination, the appellant stated that he did not beat on the door of Dorothy Bryant’s room and threaten to kill her. He testified that he told Thurman Crummie that he had “shot” Smith, not that he had “killed” him. He did not, however, tell Crummie that Smith was coming on him with a knife.

Mrs. Francis Tierce and Bobby Wilson were recalled and both stated that they knew the appellant’s reputation in the community to be good. Robert Shirley testified that Dorothy Bryant’s reputation for truth and veracity was bad. On cross examination by the State, the witness admitted that he had been in prison for “making whiskey,” and that the appellant’s attorney was also the attorney for the witness’ son.

The State, next called several rebuttal witnesses. Patricia Riggs testified that Dorothy Bryant was her aunt and that during the trip to DisneyWorld she and Dorothy Bryant and their children slept together in one room, and the men slept in another room.

Dorothy Bryant, recalled by the State on rebuttal, testified that since the shooting the appellant’s father had been to her home four times. She said he had talked to her regarding her testimony; on one occasion, telling her that if she did not actually see the shooting, that is all she had to say in her testimony. She said he told her he was going to get enough whites friends and enough money to get the appellant the kind of lawyer needed.

Mrs. Lillie Smith, mother of the deceased, stated that she went to Druid City Hospital where her son was undergoing treatment just before he died. She said Frank Wilson, Sr., came there at her request. She told him she was going to press charges against the appellant. She stated that the appellant’s father said he would do what he could to get the appellant off as he was his oldest son.

Bill Hobson was recalled and testified concerning his interrogation of the appellant after the shooting. He established the voluntariness of the statement made to him by the appellant and established that a full Miranda warning had been given. He said the appellant stated that he did not want to say anything else until he went to court, but then made additional statements. He testified that the appellant, while in jail, told him that he used a .12 gauge Browning automatic, that it was in the car, and that he had fired twice. He testified that he asked the appellant if Smith had any weapons coming on him and that the appellant said, “No, sir.”

On cross examination, the witness said the appellant made an offer to him to give some blood to Smith. He said that during the statement, the appellant said he did not know if he had hit Smith in the stomach, but hoped he had not. On redirect examination, the witness said he examined the scene of the shooting and found no blood in the hall or in the doorway.

Frank Wilson, Sr., was recalled by the appellant and stated that he had never talked with Mrs. Smith at the hospital. He said he did not discuss Dorothy Bryant’s testimony with her either. The State and the defense then rested. There was no further motion to exclude the State’s evidence at this point. There was no exception to the oral charge of the trial court, but the appellant excepted to the trial court’s refusal to give his requested charges.

I

During the cross examination of the appellant, the prosecution went into the interview of the appellant by Investigator Bill Hobson at the police station, which is in part as follows:

“Q. And you made a statement to him?
“A. I did not make a statement. I told them I didn’t want to make one unless I had an attorney present.
“Q. Told you you had the right to a lawyer ?
“A. I told him I didn’t want an attorney. Now, he might have told me this, he told me something about the rights of a lawyer.
“Q. And you told him you didn’t want an attorney?
“A. I told him I didn’t want to say anything unless I had an attorney present, and I don’t. know what — he told me something about the law, I can’t quote every word he said, ‘cause I don’t know what he said.
“Q. But he told you — (interrupted)
“A. He told me something about it. Yes, sir.
“Q. All right. But you told him some things there at the County Jail ?
“A. I don’t know what he got on it. I told them — he told me he wanted — he turned on a tape recorder and told me he wanted my name, age, and address.
“Q. All right. And that was about 4:15 p. m., wasn’t it?
“A. Something like that, I don’t know.
“Q. Same day of the shooting ?
“A. That’s right.
“Q. As a matter of fact, at that time and place, didn’t you tell Mr. Hobson that you shot him twice ?
“A. I told him I think I shot him, I don’t know nothing about — (interrupted)
“Q. All right. Let me ask you this, at that time and place, did you tell — did Mr. Hobson ask you this question: ‘Do you remember how many times you fired it?’
“MR. THOMPSON: We object to cross-examining any further, Judge. This came after the point when he said he wanted an attorney; he did not want to speak without an attorney.
“THE COURT: Sir?
“MR. THOMPSON: I object, Judge, to-the cross-examination concerning any statements made by the defendant here after the defendant stated this, that ‘I’d rather not say anything until I have my attorney.’
“THE COURT: I overrule.
“MR. THOMPSON: We except.”

The State later recalled Bill Hobson in rebuttal, who established that a proper Miranda warning had been given the appellant and that the appellant’s statements to him were voluntarily given. The following sequence then occurred without objection on the part of the appellant:

“Q. Would you tell us please sir what that conversation was ?
“A. He told me he shot the man.
“Q. All right, sir. Did he go any further than that ?
“A. And he said he didn’t want to say anything else until he went to Court.
“A. All right, sir. After that did he make any further statements?
“A. Yes, sir, he made several statements further.
“Q. Would you give us those please?
“A. I believe I asked him what kind of gun he shot him with and he said it was a 12 gauge Browning automatic. I asked him where the gun was and he told me that one of the jailers — he told one of the jailers about it being in his car, that he had the gun. I asked him how many times he’d fired the gun. He said twice.”

There is some inconsistency between the testimony of the appellant and that of Officer Hobson concerning whether or not the appellant stated that he would rather not make a further statement until after he had talked with an attorney. Officer Hob-son’s recollection (from his transcription of the tape-recorded interview with the appellant) is to the effect that the appellant said he would rather not say anything further until he went to court. In any event, the appellant, after receiving the Miranda warning, made known his desire to make no further statement at that time.

On March 19, 1975, the United States Supreme Court rendered a decision directly in point with the question presented in the instant case. In Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), the appellant had been given a full Miranda warning and later told officers he would like to telephone an attorney, but was told that he could not do so until they reached the police station. The appellant then provided inculpatory information, which was not used in proving the State’s case in chief, but was used by the State solely for impeachment purposes. The United States Supreme Court granted cer-tiorari in that case, it appears, to clear up any misconstruction of its prior decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).

In Harris, the Court held that an inculpatory statement made by a defendant which could not be used in the State’s case in chief due to a failure to give the Miranda warning, nevertheless, did not prevent the State from using such inculpatory statement for the- purposes of impeachment.

In Oregon v. Hass, supra, the Court stated:

“We see no valid distinction to be made in the application of the principles of Harris to his case and to Hass’ case.
“As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, always provided that ‘the trustworthiness of the evidence satisfies legal standards.’ Again, the impeaching material would provide valuable aid to the jury in assessing the defendant’s credibility; again, ‘the benefits of this process should not be lost’; and again, making the deterrent effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosection in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass’ case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.”

We, therefore, hold in the instant case that the trial judge did not err in overruling the appellant’s objection to further cross examination concerning statements he may have made after apprising the officers that he wished to make no further statement to them. The appellant’s inculpatory statement was not used by the State in its case in chief, but was only used in cross examination of the appellant and on rebuttal for impeachment purposes. Also see: Roberson v. State, 53 Ala.App. 472, 301 So.2d 237 (1974).

II

Frank Wilson, Sr., father of the appellant, testified during the trial that the appellant had a good reputation in the community for peace and quietude. On cross examination by the prosecution, the following occurred:

“Q. Did you not sign a warrant, yourself, for Frank Wilson, Jr. for assault with intent to murder ?
“A. I had him arrested. I didn’t sign a warrant to that effect, but I did have him arrested.
“Q. All right. I’ll show you a warrant, marked for identification as State’s Exhibit 7, and ask you if that’s your signature?
“A, That’s my signature, yes, sir.
“Q. And you see the wording ‘unlawfully and with malice aforethought did assault Frank Wilson with intent to murder him?’
“A. Can I see that? (exhibit is examined by witness and Mr. Thompson.)
“MR. THOMPSON: Judge, let the record show, it’s all crossed out, Judge.
“Q. And that you came in later and talked with Mr. Foster and got it settled up in Judge Mayfield’s Court, is that not a fact?
“A. Naw, sir. I haven’t talked with him.
“Q. But you did go in and get it changed to another charge in Judge Mayfield’s Court.
“A. I haven’t went anywhere. I went —only went in after I learnt how it was, when Mr. Warren Miller — -(interrupted)
“MR. HARRIS AND MR. FREEMAN: Object, if the Court please, not responsive.
“THE COURT: Sustained.
“Q. But you did sign a warrant for your son?
“A. I signed the warrant.
“Q. And this is your signature ?
“A. That’s my signature. If I signed warrants for that it was not — he ain’t never shot at me, you know, nothing like that.”

The State moved to introduce the warrant into evidence, but upon objection, the court disallowed this admission.

During the course of oral argument by the prosecution, the following transpired:

“And he told you that he had his son arrested once for assault with intent to murder, but that he just didn’t understand what it was about. He — somebody told him something and he just . (interrupted)
‘,‘MR. THOMPSON: We object "to the statement that he had his son arrested for assault with intent to murder. This is contrary to the evidence.
“THE COURT: All right, sir. The jury will pass upon the evidence.”

Although the warrant, State’s Exhibit 7, was not introduced into evidence, testimony was given concerning the warrant and the charge contained therein. The purpose of the State’s cross examination on this point and its offer to put the warrant into evidence was not for the purpose of proving the State’s case in chief, but was presented in rebuttal of the witness’ statement that the appellant had a good reputation for peace and quietude.

Considering the testimony concerning the issuance of the warrant, hereinabove set out, it would appear that the argument of the prosecution alluding thereto would not be an unreasonable inference to be drawn from that evidence. The witness admitted signing the warrant for his son’s arrest, however, the evidence is in dispute as to whether the charge was for assault with intent to murder, and if so, whether the witness had the charge reduced.

The prosecution, in its argument to the jury, may make expressions of opinion based upon facts brought out in the evidence, or may point out reasonable inferences or impressions drawn from the evidence. Brothers v. State, 236 Ala. 448, 183 So. 433 (1938); Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960).

In Anderson v. State, 209 Ala. 36, 95 So. 171 (1922), the Alabama Supreme Court set out at length many rulings dealing with improper or prejudicial remarks or argument of counsel. The Court, in part stated:

“Generally, improper argument of counsel to or in the presence of the jury is not a ground for a new trial, or the subject of review on appeal, unless there is prompt and appropriate objection by opposing counsel, a ruling by the court, and exception thereto, or a refusal of the court to rule on the question presented by the obj ection. .
“The objection or motion must be such as to invoke judicial determination — ruling or action by the court thereon.
“Where the statement of counsel is only objectionable because of matter of fact not in evidence, the objection and motion should point out the improper statement and separate it from the proper matter of the context. .
“An exception to the general rule requiring appropriate objection or motion invoking corrective instruction or action by the trial court is where the remark or argument of counsel is so grossly improper and highly prejudicial to the opposing party as that neither retraction nor rebuke by the trial court would have destroyed its sinister influence...."

In the instant case, objection was made that the argument was contrary to the evidence, however, no ruling was invoked on the part of the trial court. The court’s statement, “All right, sir. The jury will pass upon the evidence,” is not a ruling on the objection. Counsel for the appellant did not insist upon a ruling nor object to the failure of the court to rule. Neither was the argument of the prosecution of such a sinister and prejudicial nature as to bring it within the exception to the general rule of requiring a ruling by the trial court and an exception thereto. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Washington v. State, 259 Ala. 104, 65 So.2d 704 (1953); Espey, supra.

III

We have carefully reviewed the refused charges requested by the appellant. Charges 1 and 2 are affirmative and properly refused as the State made out a prima facie case. Morrow v. State, 52 Ala.App. 145, 290 So.2d 209 (1973). .

Charges 4, 5, 7 through 11, 14, 16, 17, 18, 20, 21, 22, 26, 27 through 47, 49 through 71 and 74 all contained propositions of law (though sometimes misstated or ungrammatical) which were correctly, substantially and adequately given to the jury in the trial court’s oral charge. Title 7, § 273, Code of Alabama 1940.

Charge 6 was abstract and misleading and was not properly predicated upon the evidence in this case, thus properly refused. The subject matter attempted to be covered in that charge was correctly put to the jury by the trial court’s oral charge.

Charge 12 refers to charges given at the request of the appellant. None were given, thus such a charge was an incorrect and misleading statement. Charges 15 and 16 were held bad in Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942), and in cases cited therein.

Charge 19 was held to be bad in Daniels v. State, 243 Ala. 675, 11 So.2d 756 (1943).

Charge 48 was argumentative and not predicated upon the evidence in the case in that it assumed the homicide to be an “accident,” thus invading the province of the jury. The effect of killing by mere negligence or accident was properly set forth in the trial court’s oral charge.

Charges 72 and 73 are misleading and abstract where such charges infer that the State’s evidence consisted of testimony from a single witness, whereas the State’s case consisted of testimony from numerous witnesses. The proper rule concerning credibility of a witness is that the jury may disregard his testimony if they believe it to be willfully false, but where other witnesses’ testimony would establish a pri-ma facie case, the jury should not he instructed to acquit if they disbelieved the one. A similar charge to 72 and 73 was held bad in Register v. State, 34 Ala.App. 505, 42 So.2d 519 (1949). Also see: Outler v. State, 147 Ala. 39, 41 So. 460 (1906).

The trial judge gave a very comprehensive charge to the jury which we consider to be outstanding. The record discloses the case to have been fairly tried and the judgment and verdict to be supported by the evidence and the law. The rulings of the trial court, challenged by appeallant, did not constitute harmful error.

Affirmed.

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


text:
    Mamie Delores FUNCHES v. STATE.
    1 Div. 581.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.
    Rehearing Denied July 29, 1975.

      David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon a two-count indictment charging, (1) possession of heroin, and (2) possession of cocaine. She was represented throughout the trial by retained counsel who represents her on this appeal. At arraignment she pleaded not guilty.

At the conclusion of the case, the court charged out count two (2) of the indictment. Count 1, omitting the formal parts, reads as follows :

“The GRAND JURY of said County charge, that, before the finding of this indictment MAMIE DELORES FUNCHES whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully possess heroin on to-wit: August 3, 1973, and that said Mamie Delores Funches has heretofore been convicted of an offense under the Uniform Alabama Controlled Substances Act on, to-wit; March 28, 1973 against the peace and dignity of the State of Alabama.”

This is another search warrant case. For a better understanding of the issues involved on this appeal we deem it necessary to set out the affidavit and search warrant:

“AFFIDAVIT FOR SEARCH WARRANT 0158
“STATE OF ALABAMA \ COUNTY OF MOBILE J
DOCKET NO_
CASE NO_
“Before me, the undersigned Municipal Judge of the City of Mobile, Alabama, personally appeared Walter Pickett who being duly sworn deposes and says:
“That he has reason to believe that on the premises known as 652 Rickarby Street, in the City of Mobile, Alabama, or its police jurisdiction, there is now being concealed certain property, namely heroin and other narcotic drugs, which are illegally kept used and/or sold, and that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:
“I am Officer Walter Picket (sic) of the Mobile, Alabama Police Department, assigned to Criminal Investigation Division, presently working with drug violations.
“Yesterday I talked with a reliable informant. This informant has given me reliable information in the past, which information led to arrests and convictions of drug abusers.
“This informant told me that he had been inside the above listed residence within the past three days and had while there observed the above drug inside this residence and in the possession of a subject known to the informant as ‘Bonnie’. The informant knows this subject to be the occupant of the above residence.
“/s/ Walter Pickett_
Signature of Affiant
Official Title, if any
“Sworn to and subscribed before me, this 26th day of July, 1973.
“/s/ T. Dwight Reid_
Judge of Municipal Court
City of Mobile, Alabama
“1. A search warrant must be served in the daytime unless the affidavit states positively that the property is on the person or place to be searched, in which case it may be served at any time.
“SEARCH WARRANT 0158
“STATE OF ALABAMA COUNTY OF MOBILE J
DOCKET NO_
CASE NO_
“TO THE CHIEF OF POLICE OF THE CITY OF MOBILE, ALABAMA OR OTHER LAW ENFORCEMENT OFFICER OF THE CITY OF MOBILE OR STATE OF ALABAMA
“Affidavit having been made before me by Walter Pickett that he has reason to believe that on the premises known as 652 Rickarby Street, in the City of Mobile, Alabama, or its police jurisdiction, there is now being concealed certain property, namely heroin and other narcotic drugs, which are illegally kept used and/or sold, and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described and that the foregoing grounds for application for issuance of the search warrant exist.
“You are hereby commaned (sic) to search forthwith the place named for the property specified, serving this warrant and making the search in the daytime and if the property be found there to seize it, leaving a copy of this warrant and a receipt for the property taken, and prepare a written inventory of the property seized and return this warrant and bring the property before me forthwith at the Municipal Court of the City of Mobile.
“Witness my hand this 26th day of July, 1973.
“/s/ T. Dwight Reid_
Judge of Municipal Court
City of Mobile, Alabama
“1. A search warrant must be served in the daytime unless the affidavit states positively that the property is on the person or place to be searched, in which case it may be served at any time.
“RETURN
“I received the attached search warrant 7-26, 1973, and have executed it as follows:
“On 8-3, 1973 at 9 o’clock 00 A. M., I searched (the person) (the premises) described in the warrant and I left a copy of the warrant with Mamia (sic) Funches together with a receipt for the items seized.
“The following is an inventory of property taken pursuant to the warrant:
“1 Ea. Pink Balloon containing 8 capsules with brown substance.
“This inventory was made in the presence of Sgt. J. Orso and Off. W. Pickett.
“I swear that this Inventory is a true and detailed account of all the property taken by me on the warrant.
“/s/ Walter Pickett
“Subscribed and sworn to and returned before me this_day _, 19_

Appellant filed a pre-trial motion to suppress the evidence and to controvert the legality of the search warrant. A fullblown hearing was had on this motion and considerable testimony was taken. At the conclusion of the hearing the court entered an order denying the motion to suppress.

The main thrust of the motion to suppress is grounded on the lack of probable cause for issuing the search warrant in that the affidavit was insufficient in failing to state with specificity, and corroborating evidence to establish, the reliability of affiant’s unidentified informer and, too, the affidavit upon which the search warrant was issued was based upon hearsay and upon information and belief, failed to state the source of such information, and failed to set forth any facts upon which to base belief that there were narcotics on the described premises.

During this hearing appellant moved for a mistrial on the ground that the indictment specifically alleged that appellant had previously been convicted of an offense under the Uniform Alabama Controlled Substances Act on, to-wit: “and that said Mamie Delores Funches has heretofore been convicted of an offense under the Uniform Alabama Controlled Substances Act on, to-wit: March 28, 1973, etc.”, on the ground that it would be advising the jury that she had previously been convicted of another offense and would be highly prejudicial in the trial of her case.

Title 22, Section 258(53), (a), (b), Code of Alabama 1940, provides as follows:

“Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term outherwise [otherwise] authorized, fined an amount up to twice that otherwise authorized, or both.
“For purposes of this section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs. (1971, No. 1407, p. 2397, § 407, appvd. Sept. 16,1971.)”

Appellant had previously been convicted of unlawful possession of a controlled substance and was sentenced to five years imprisonment in the penitentiary. She appealed and this court affirmed the judgment of conviction. Funches v. State, 53 Ala.App. 330, 299 So.2d 771, certiorari denied, 293 Ala. 752, 299 So.2d 778.

In Amerson v. State, 40 Ala.App. 540, 117 So.2d 406, it is said:

“When there is an averment in the affidavit or indictment as to a former conviction for a like or similar offense, ‘it becomes an issue in the case, and evidence of it on the trial is necessary for it to have operation.’ Yates v. State, 245 Ala. 490, 17 So.2d 777, 779.”

In order to make operative Title 22, Section 258(53) (a) (b), supra, evidence of a former conviction is not admissible unless it is alleged in the indictment and proof offered in support thereof. Ex parte State ex rel. Davis, 206 Ala. 546, 90 So. 278; Steel v. State, 35 Ala.App. 163, 44 So.2d 795. A certified copy of the previous judgment of conviction was made by the circuit clerk and introduced in evidence.

There was no error in overruling appellant’s motion for a mistrial because of the averment of a previous conviction contained in the present indictment.

On the motion to suppress it developed by the testimony of Police Officer Walter Pickett that he got a call from an informer that he had some information for him and to meet him on Davis Avenue at Broad Street in the City of Mobile. This was on July 25, 1973. The informer told Pickett that he had been in the residence known as 652 Rickarby Street the day before (July 24, 1973) and had observed heroin in the possession of one “Bonnie”, who resided at this address and that he was there by invitation. Pickett further testified that he considered his informer reliable as he had given him reliable information in the past several months relating to drug cases (as well as other cases) and that the information so imparted to him led to the arrest and conviction in five or six drug cases. On cross-examination he was asked to give the names of the persons arrested and convicted and he did so. Based upon the information given him by his informer he prepared an affidavit and went before Judge T. Dwight Reid, Judge of the Municipal Court and secured a search warrant on the morning of July 26, 1973. He and another officer went to the address described in the warrant on five or six occasions in an attempt to execute the search warrant. It was not until August 3, 1973, that they were able to find appellant at home. The house had an iron door and was locked. There also were burglar bars all around the house. They did not attempt to tear the door down for fear that if appellant was lodged therein, she would have had time to destroy the contraband and the search would have proved fruitless.

Finally on August 3, 1973, they returned to appellant’s address and parked about a half a block north of the residence. While parked they observed a boy go to appellant’s residence and knock on the door. A woman opened the door and was talking to the boy. Officer Pickett and his partner, James Orso, drove their car in front of the residence and walked to the door while the woman was still talking to the boy. They identified themselves as police officers and told the woman they had a search warrant. They observed the wood door was open but the iron door was locked. After telling the woman they had a search warrant, she said, “just a minute” and went in the back of the house. She was gone 3 or 4 minutes and came back and unlocked the iron door and said, “okay, come on-in.”

Appellant took the stand for the limited purpose of testifying on the motion to suppress. She denied she was in possession of heroin either on July 24 or July 25, 1973.

The motion to suppress was overruled.

During the trial in chief, Officer Pickett testified that after appellant let them in the house, he went in the first bedroom and Officer Orso went directly to the bathroom where he heard water running. Officer Orso found two balloons in the commode and he retrieved both of them. One of the balloons was opened and he did not find anything in the opened one. He untied the other balloon and found eight (8) capsules. He called Officer Pickett and showed him the capsules. These capsules were placed in an envelope and turned over to Lieutenant McCarty on the same day. McCarty personally delivered the contents to Allilie Pillman, a laboratory technician in the State Department of Toxicology, who receipted for the envelope in the presence of Mr. Nelson Grubb, the toxicologist in charge of the Mobile Branch of the Department.

Pillman made a laboratory examination on the capsules under the direct supervision of Mr. Grubb and the capsules were found to be heroin with a trace of cocaine. These capsules were kept in the continuous possession of Pillman until they were produced in court and introduced in evidence. The pre-Miranda predicate was laid before the capsules were allowed in evidence.

After placing appellant under arrest she was given the Miranda rights and warnings and stated she knew her rights.

Appellant made an oral statement to the officers stating that she had bought eleven capsules the day before, “that she had used three of them for herself, that they were heroin.”

At the conclusion of the state’s case, appellant made a motion to exclude on the following grounds:

1. The state has failed to establish the corpus delicti of the offense charged.
2. The evidence has failed to establish a prima facie case.
3. As to Count 2, the evidence is totally lacking of any evidence of knowledge of possession of cocaine by the defendant.

The trial court overruled appellant’s motion as to grounds 1 and 2, but granted the motion as to ground 3 and Count 2 was stricken from the indictment.

Appellant strenuously insists that the affidavit leading to the issuance of the search warrant is wholly insufficient to meet the test of both state and Federal cases.

The affidavit in this case is strikingly similar to the one approved by this court in Funches v. State, supra; Russell v. State, 53 Ala.App. 447, 301 So.2d 214; Keller v. State, 54 Ala.App. 127, 305 So.2d 402.

In this case the credibility of the informer was substantiated through prior successful and reliable information from which arrests and convictions were made and obtained. The informer was personally within appellant’s home the day before he imparted to the officer that he saw heroin in appellant’s possession. The informer knew the location where the heroin could be found and was personally acquainted with appellant.

We hold the affidavit in this case to be legally sufficient when tested by the standards laid down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Clenney v. State, 281 Ala. 9, 198 So.2d 293; Myrick v. State, 45 Ala.App. 162, 227 So.2d 448, and the cases cited herein.

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.


author: MADDOX, Justice.

text:
    In re Mamie Delores FUNCHES v. STATE. Ex parte Mamie Delores Funches.
    SC 1405.
    Supreme Court of Alabama.
    Sept. 18, 1975.
    David L. Barnett, Mobile, for petitioner.
    No appearance for the State.
   MADDOX, Justice.

Petition of Mamie Delores Funches for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Funches v. State, 56 Ala.App. 22, 318 So.2d 762.

Writ denied.

All the Justices concur.


author: SIMMONS, Supernumerary Circuit Judge. BOOKOUT, Judge

text:
    Stewart WEAVER v. STATE.
    8 Div. 385.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Rehearing Denied Aug. 19, 1975.
    Ralph E. Slate, Decatur, for appellant.
    William J. Baxley, Atty. Gen. and Kermit M. Downs, Asst. Atty. Gen., for the State.
   SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, Stewart Weaver, was indicted jointly with one Charles E. Guntharp for murder in the first degree for that they killed James Floyd Davis by shooting him with a pistol. The trials were separate. The instant appellant was convicted by the jury of manslaughter in the first degree, an offense embraced in the indictment, with punishment fixed at ten years imprisonment.

It appears from the evidence that Gun-tharp suspected the victim of having a romantic affair with his (Guntharp’s) wife.

Motivated thereby, Weaver arranged a meeting between Guntharp and Davis which took place at a shopping center in Morgan County. Both Guntharp and Weaver were present.

We observe from the evidence that Gun-tharp fired the fatal shot resulting in the death of Davis. The State asserted in the trial that Weaver was an accessory to the homicide and was a principal pursuant to Title 14, Section 14, Recompiled Code, 1958.

We will not delineate the evidence which appears in two volumes filed in this Court. The trial was vigorously prosecuted and defended. We will advert to the argument of the prosecutor and rulings of the Court.

We quote from the record as follows:

“MR. SLATE: Now, we object to any statements by the counsel as he walked over to the counsel table and pointed at this man, ‘not only broke the laws of man, but God Almighty as handed down to Moses at Mount Sinai,’ and again pointing at the defendant and saying, 'and he is doomed to the everlasting death of hell* and damnation for it,’ as being outside the prerogative of the district attorney, and we move to exclude that and ask for an instruction, your Honor.
“THE COURT: Sustained.”
* * * * * *
“MR. SLATE: I believe at this time I will have to object to the statement by the attorney general that we haven’t gotten many inconsistencies of statement of the defendant, and if the lawyer had got there before we talked to him, we wouldn’t have had any inconsistencies.”
* * * * * *
“MR. SLATE: Now, I believe that I am going to object to the statement that Mr. Slate is knowingly misleading you and that is what he is paid to do.
“MR. BAXLEY: Well, if that’s the case, I will apologize and withdraw that.”
* * * * *
“MR. SLATE: No, we object to pointing to the defendant and saying that the reason that he didn’t make the phone call, or that he didn’t go to the hospital was because he knew that he was guilty under the law of helping or conspiracy or aiding and abetting, that caused that man’s death, and he knows that now, and he knows that today. And we object and we move to exclude.
“THE COURT: I will let him argue any inference.
“MR. SLATE: We respectfully except to any of the Court’s rulings.”
******
“MR. SLATE: Now, we are going to object to the statement that they took. And the attorney general — certainly he is going to say something in there favorable to him, for the law, specially with this lawyer lurking around the office door, and we obj ect.
“MR. BAXLEY: I withdraw my statement and apologize. I didn’t mean to insinuate Mr. Slate was lurking around anywhere.”
******
“MR. SLATE: We object to the statements by the attorney general that Mr. Slaté in his closing argument drew a smoke screen, and the reason that he did it was because he knew his client was lying. And we would like to at this time make a motion for a mistrial.
“THE COURT: Well, I deny your motion for a mistrial.
“MR. SLATE: We except. ■
“MR. SLATE: We object to the argument of counsel that Stewart Weaver —Did Stewart Weaver ever tell you from the witness stand he was sorry that this happened. That he had sent a cake by his wife to the Davis family showing that he was sorry this was happening. Or did he say from the witness stand that he was sorry that the Davis children had no father or words to that effect, and we object to it as outside the scope of the evidence.
“THE COURT: Overruled.
* * * * *
“MR. SLATE: Now then, your Hon- or, what he is saying now is not only illegal, but it borders on something worse when he says to a jury, don’t you know that if Stewart Weaver were innocent and just an innocent bystander, that he would beat down the doors of this courthouse to get on the witness stand and testify in the trial of Charles Guntharp. And we move that that be excluded and make a motion for a mistrial.
“MR. BAXLEY: Your Honor, he mentioned that very point in his opening argument, and I feel like it is legita-mate [sic] for us to mention the fact about him being subpoenaed and the fact why he wouldn’t let him take the stand. He said that he wouldn’t have let him take the stand if he wanted to, if I recall that is what Mr. Slate said, and I think that we have a right to answer that.
“THE COURT: Overrule the objection.
“MR. SLATE: Now, your Honor, we object to the attorney general saying that if you turn this man loose, he is a suspended police officer and he will be going down there wanting his job back. That is what we are objecting to, and that as being an inference that the man charged with murder would be put back on the police force, and it would make it look bad.
“THE COURT: Overruled.”

This Court observed in Lowman, 38 Ala.App. 612, 91 So.2d 697, as follows:

“However, in his argument to the jury the Solicitor made reference to the “widow and a bunch of little children being left to raise,’ and 'his wife and six kids left and hungry.’ Defendant objected to this argument and the court overruled the objections. These remarks were highly improper and were calculated to inflame the minds of the jury. ‘Such unauthorized remarks have no place in a trial where on the one hand a defendant’s life or his liberty is involved, and on the other the proper administration of the law is concerned.’ Thomas v. State, 18 Ala.App. 268, 90 So. 878, 880. See also Wyres v. State, 32 Ala.App. 630, 29 So.2d 155.”

We advert to Blue v. State, 246 Ala. 73, 19 So.2d 11, wherein the Supreme Court made pronouncements which we think are applicable to the instant appeal of the prosecution aforequoted. We quote excerpts therefrom as follows:

“In determining the question before the court, we do not think that each of the above statements must be analyzed separately to see whether or not, if standing alone, it would create the ineradicable bias or prejudice. We think, on the contrary, that these various statements should be considered together to determine whether or not, in their cumulative effect, they created a prejudicial atmosphere. It may be that some of the statements of the solicitor were replies in kind to statements made by counsel for defendant, and we fully recognize, as said in Arant v. State, 232 Ala. 275, 167 So. 540, 544, ‘a trial'is a legal battle, a combat in a sense, and not a parlor social affair.’ The record shows that the presiding judge exercised great patience and in most of these incidents did what he could to disabuse as far as possible the minds of the jury of any prejudicial impression; but it is our duty to see to it that trials are free from prejudice and passion and that the courthouse means that where a conviction is obtained, it is obtained in an impartial atmosphere. The foregoing remarks were made in the presence of the jury. Considering them in their cumulative effect, we think that they were calculated to inject the poison of bias and prejudice into the minds of the jury. They created an atmosphere of bias and prejudice which no remarks by the court could eradicate. This is not justice and prejudicial error has been shown.”

Kabase v. State, 244 Ala. 182, 12 So.2d 766; Pointer v. State, 24 Ala.App. 23, 129 So. 787, 789, 790; DuBose v. State, 148 Ala. 560, 42 So. 862, 863; Mitchell v. State, 28 Ala.App. 119, 180 So. 119; Emerson v. State, 30 Ala.App. 248, 4 So.2d 183; Cassemus v. State, 16 Ala.App. 61, 75 So. 267, 268.

We also advert to Fisher v. State, 23 Ala.App. 544, 129 So. 303, wherein this court held it was error to overrule appellant’s objection to the argument of the solicitor to the jury trying the case, to wit:

“ * * * ‘Gentlemen of the Jury when you go out there to make your verdict don’t forget the children which defendant left fatherless, made orphans of and left without a breadwinner — they are entitled to some consideration too.’ ”

It is our opinion that the cumulative effect of the aforementioned argument was to create a prejudicial atmosphere which we hold was error to reverse.

We pretermit considering other contentions with respect to error by the trial court. Suffice it to say that these same contentions may not be predicated by rulings at the next trial.

The judgment below is hereby

Reversed and remanded.

TYSON and HARRIS, JJ., concur.

DeCARLO, J., concurs in result only.

BOOKOUT, J., concurs specially with opinion.

CATES, P. J., recuses himself.

BOOKOUT, Judge

(concurring specially):

I disagree with the majority opinion that the actions of the Attorney General created an atmosphere of prejudice in this case which requires reversal.

It is the duty and responsibility of the Attorney General and the District Attorneys to prosecute criminal cases with vigor and with zeal. Very often in the heat of a trial, the attorneys for both sides drift out of bounds with their arguments. The trial judge is there as an impartial referee to see that neither side does this.

If either counsel crosses the bounds of legal argument into a questionable area, upon objection, the trial judge should limit the scope of such argument and where appropriate, admonish the jury to disregard such statements or give them other proper instructions.

To quote from Arant v. State, 232 Ala. 275, 167 So. 540 (1936):

“Counsel for the state and defendant are allowed a rather wide latitude in drawing their deductions from the evidence....
“. . . Such statements are usually valued by the jury at their true worth . . . and not expected to become factors in the formulation of their verdict. .
“. . . But, after all, we must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair. ...”

There are many reported cases dealing with what arguments are permissible on behalf of the prosecution. Many of those decisions amount to no more than the appellate courts exercising 20-20 hindsight without the benefit of having been present during the “combat” of the trial, as was the trial judge. Since the trial judge had the opportunity to see the attorneys during argument, observe their demeanor and any visible effect their comments may have had upon the jury, we should exercise extreme caution in reviewing his rulings.

Many of the comments herein complained of, while hard and hitting, were nevertheless permissible inferences which could have been drawn from the evidence. We should only be persuaded to a reversal where an argument goes to prejudicial matters not in evidence which either cannot be eradicated from the minds of the jurors, or being eradicable, where the trial court overrules objection thereto or fails to properly instruct the jury. See: Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973).

I concur only in the result of the majority opinion, based upon the ruling of the trial court in reference to argument concerning the wife and fatherless children of the deceased. Such argument was not based upon the evidence, and there is a clear-cut precedent that such an argument is prejudicial whether or not it was inadvertently made during the heat of the trial.

I am of the opinion that even though prejudicial, it was such that could have been eradicated from the minds of the jury by proper instruction of the court. The court gave no such instruction and in fact, overruled the defendant’s objection to such argument. Thus, pursuant to both Lowman and Fisher, cited in the majority opinion, supra, the case is due to be reversed.


author: JONES, Justice.

text:
    In re Stewart WEAVER v. STATE. Ex parte STATE of Alabama ex rel. ATTY. GENERAL.
    SC 1430.
    Supreme Court of Alabama.
    Sept. 11, 1975.
    Rehearing Denied Oct. 2, 1975.
    William J. Baxley, Atty. Gen., Kermit M. Downs, Asst. Atty. Gen., for the State, petitioner.
    No appearance for respondent.
   JONES, Justice.

Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Weaver v. State, 56 Ala.App. 29, 318 So.2d 768.

Writ denied.

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


text:
    Billy Rayford MARTIN v. STATE.
    8 Div. 611.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Rehearing Denied Aug. 19, 1975.

      Robert S. Thomas, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston III, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

Appellant was tried on an indictment charging murder in the first degree. His plea was not guilty. He was found guilty of manslaughter in the first degree and sentenced to imprisonment in the penitentiary for eight years, in accordance with the verdict of the jury. A motion for new trial was duly filed on behalf of defendant and was overruled by the trial court.

The only question presented by appellant on appeal is that of the sufficiency of the evidence as to the guilt or innocence of defendant to justify the court’s action in overruling his motion for a new trial. In accordance with our duty, we have searched the record for a basis for any additional charge of error prejudicial to defendant on the trial and in the proceedings related thereto and have found none.

The deceased was an uncle of defendant. There is little, if any evidence, to indicate that prior to the tragedy involved there was any bad blood between them. That the death of decedent was attributable largely to alcohol there can be no doubt. The evidence reeks with it.

Just how much beer was consumed by defendant, by his deceased uncle and by a third person, a fishing companion, as they proceeded on their fishing trip, and while they were in a boat in the Tennessee River, in Jackson County, is difficult to determine, but the undisputed evidence is to the effect that together they had consumed enough for themselves and for at least two or three more additional companions. The number of beers was estimated by'the pack and not by the can. Defendant’s intoxication is hardly subject to question, he himself saying that he doesn’t remember much that occurred, but the extent of his intoxication cannot be accurately assayed, although it is clear that he was at least bellicose drunk.

Defendant was charged in the indictment with killing Carl Davis Martin by pushing or knocking him away from a boat “into” the river in one count of the indictment, and in another count of the indictment he is charged with killing him by pushing or knocking him away from a boat “in” the river.

Although there is some evidence to indicate credibility weakness on the part of some of the witnesses testifying for the State, some of which may have been due to the extraordinary excitement on the occasion and perhaps some to their recent fluid intake, we view the testimony in general as that of impartial, unprejudiced, sincere witnesses. There was positive evidence that there was much cursing going on in the boat, much of which was attributable to defendant, that defendant was a part of thé time at least in the middle of the boat, his uncle at the back of the boat and the companion at the front of the boat. The uncle went off the rear end of the boat. There was some evidence to the effect that defendant was hitting his uncle at the back of the boat. There was also some evidence that the uncle attempted to get back into the boat and could not do so. By one of the witnesses it was stated that the man in the middle of the boat was slapping the man in the back of the boat and that it looked like defendant struck the man, but the witness did not know whether defendant struck the man in the back of the boat physically or pushed him from the boat. One witness stated that defendant pushed him in the water away from the boat. There was considerable testimony that appellant cursed his uncle while they were struggling in the boat and that appellant told his uncle that he was going to kill him. All three left the boat. Defendant and the third man arrived safely on the shore. The uncle never landed alive. His drowned body was removed from the water and thereafter examined by the laboratory director of the North Alabama Regional Laboratory of the Department of Toxicology, Criminal Investigation.

Appellant lays great store upon the testimony of the laboratory director. His testimony was to the effe'ct that there were no cuts, bruises or skinned places upon the deceased. It is argued that the absence on the body of deceased of any objective signs of a fight or a struggle is inconsistent with evidence to the effect that defendant caused the death of his uncle by the method alleged in the indictment. We appreciate the commendable efforts of counsel, his loyalty to his client and his dedication to his duty to him, but we are unable to agree with the conclusion.

It is our view that in general the description, particularly by others not in the boat with the decedent and defendant, of what took place is consistent with the verdict of the jury and with the testimony of the laboratory director. It is our view that the force that was necessary to accomplish the death as alleged in the indictment would not necessarily result in bruises, scratches or skinned places upon the victim.

The out-and-out factual question of whether defendant pushed or knocked the victim away from a boat into the river, whereby he was drowned, was clearly within the province of the jury, and we are convinced that the finding of the jury in respect to such issue was not against the weight of the evidence.

As to the mixed question of law and fact, whether defendant’s state of intoxication precluded guilt of manslaughter in the first degree, the court’s charge on the subject was clear and correct, certainly not unfavorable to defendant, and we are convinced that the evidence fully justified the jury in finding defendant guilty of manslaughter in the first degree, that is, voluntary manslaughter but without malice and without a specific intent to kill, as to which voluntary drunkenness is not a defense. Gosa v. State, 273 Ala. 346, 139 So.2d 321; Rogers v. State, 49 Ala.App. 78, 268 So.2d 859; Wyman v. State, 47 Ala.App. 643, 259 So.2d 849.

The judgment of the trial court should be affirmed.

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

Affirmed.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    In re Billy Rayford MARTIN v. STATE. Ex parte Billy Rayford Martin.
    SC 1442.
    Supreme Court of Alabama.
    Sept. 18, 1975.
    Robert S. Thomas, Scottsboro, for petitioner.
    No appearance for the State.
   BLOODWORTH, Justice.

Petition of Billy Rayford Martin for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Martin v. State, 56 Ala.App. 33, 318 So.2d 772.

Writ denied.

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


author: CATES, Presiding Judge.

text:
    Jerome TARVER v. STATE.
    5 Div. 256.
    Court of Criminal Appeals of Alabama.
    Jan. 21, 1975.
    Guy F. Gunter, III, Opelika, for appellant.
    Charles A. Thigpen, Sp. Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Robbery: sentence, ten years imprisonment.

The only point of error in the record before us is the lack of a minute entry to show that the trial judge referred the defendant’s Youthful Offender Act petition to the probation officer. Act No. 335 of February 10, 1972, § 1, provides that the court shall — in cases enumerated — cause the charged youth to be investigated. Section 5 makes it the duty of the probation officer to investigate upon request of the judge.

This precise point was decided in Edwards v. State (1974), 55 Ala.App. 544, 317 So.2d 511.

To elaborate: —the sole pertinent minute entry (R. 3) recites:

“MINUTE ENTRY
“5-22-74. Defendant makes application for Youthful Offender Treatment.
/s/ L. J. Tyner, Judge
“5-23-74 Defendant’s application for Youthful Offender Treatment is hereby denied.
/s/ L. J. Tyner, Judge”

True, there is in the transcript of testimony a question and answer form of proceeding under date of May 22, 1974. R. 14-18. This occurred before Edwards, supra, was decided.

Courts of record speak only through their recorded minutes, at least as far as showing substantially all that was done at the trial, which the law requires to be done. Crist v. State, 21 Ala. 137; Naro v. State, 212 Ala. 5, 101 So. 666; and Evans v. State, 215 Ala. 61, 109 So. 357. Conversely, the silence of the minutes admits of but one conclusion, that if the clerk omits mandated matters from the record then they were not done. Walker v. Commonwealth, 144 Va. 648, 131 S.E. 230(6); State v. Underwood, 130 W.Va. 166, 43 S.E.2d 61. (“What is not disclosed by the records of courts of record does not legally exist.”).

In McDonald v. Crawford, 28 Ala.App. 163, 180 So. 130, our erstwhile Court of Appeals said:

“It is a rule, and the only safe one, says Stone, Judge, that in judicial proceedings nothing is to be left to unrecorded memory. The record must speak by and for itself, without the aid of oral proof or human recollection. First Brickell’s Digest, 78, 79. The record must be so complete that a succeeding officer, coming into the place of the one before which the business was transacted, cannot reasonably mistake what was done. The rule as stated by the Supreme Court in Looney v. Bush, Minor 413, is: ‘So to describe the paper by its date, amount, parties, or other identifying features, as to leave no room for mistakes in the transcribing officer.’ The above has consistently been the rule in this state since that time.”

Let us suppose that Tarver had chosen not to appeal. Then the court reporter would have been under no duty to transcribe his shorthand notes. The record proper (or common law record) would, as to the question of instant concern, only have shown the two cryptic entries first above quoted.

On authority of Edwards, supra, this cause is remanded for a reference to the probation officer and thereafter a hearing on the merits of the Youthful Offender petition.

Remanded with directions.

All the Judges concur.


text:
    Jerome TARVER v. STATE.
    5 Div. 256.
    Court of Criminal Appeals of Alabama.
    June 30, 1975.
    Rehearing Denied July 29, 1975.
   After return to remand, Ala.Cr.App., 56 Ala.App. 36, 318 So.2d 775. Affirmed without opinion.

Certiorari denied, 294 Ala. -, 318 So.2d 777.


author: FAULKNER, Justice.

text:
    In re Jerome TARVER v. STATE. Ex parte Jerome Tarver.
    SC 1404.
    Supreme Court of Alabama.
    Sept. 4, 1975.
    Guy F. Gunter, III, Opelika, for petitioner.
    No appearance for the State.
   FAULKNER, Justice.

Petition of Jerome Tarver for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Tarver v. State, 56 Ala.App. —, 318 So.2d 777.

Writ denied.

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