author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Shirley Delores BROOKS v. STATE.
    6 Div. 307.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Frank S. Buck, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was tried on an indictment charging her with murder in the first degree of J. P. Carmack, by shooting him with a pistol. A jury found her guilty of murder in the second degree and fixed her punishment at imprisonment for twenty-five years. She was sentenced accordingly.

Defendant was represented on the trial by employed counsel. After her conviction, she was declared an indigent; she is represented on appeal by counsel appointed by the court, who did not represent her on the trial.

Most of the material facts are undisputed. Defendant had driven an automobile to the drive-in window of Milo’s Hamburgers in Birmingham and had opened the door of the automobile on the driver’s side; Mr. Carmack was standing near the drive-in window and had some difficulty in getting to or from the window on account of the open door of the automobile. He made some remarks about the open door, and then he partially or completely closed it himself. Defendant obtained a pistol from the glove compartment of the automobile and shot Carmack, the bullet entering his “right flank, meaning to the right back below the ribs,” severing the inferior vena cava and lodging underneath the skin of the victim’s left side. He was promptly taken to the hospital and died on the operating table.

Three witnesses for the State said they heard Carmack ask defendant to close the door of the automobile. Their testimony was to the effect that he did not ask her in a rude manner. One of them did not thereafter observe defendant, or Carmack, until the shot was fired. Two of them testified that defendant told Carmack not to close the door but that Carmack either completely or partly closed it. One of these witnesses testified that defendant then got out of the automobile and shot Carmack. The other did not see where defendant was at the time she fired the pistol.

The only witness for defendant on the trial was her sixteen-year-old sister, Sharon Brooks, who was in the automobile with defendant at the time they arrived at Milo’s Hamburgers. She testified that defendant, twenty years of age at the time, had taken her in the automobile, which belonged to their brother, to a dentist and thereafter went to the hamburger place, drove up to the drive-in window, where defendant “got out of the car to ring the bell” and give her order, and then “got back into the car and left the door open.” Then a Mr. Thompson, a witness for the State, went to the window and was followed there by Mr. Carmack, who said to Mr. Thompson, “Why don’t you close that damn door?” and thereafter said, “The — damn niggers always trying to take over.” She said that Carmack walked up to the door and said, “Close this damn door,” took the door with his hands and pushed the door, that defendant had one leg outside the door and the other inside; that defendant’s leg was caught in the door and that she and defendant attempted to push the door off defendant’s leg and Carmack continued to push or shove the door to close it and in doing so he used “his rear end” and that defendant reached into the glove compartment, took the gun therefrom and shot Carmack from inside of the automobile, at which time she said that Carmack had his “rear end side” against the door.

The evidence was sufficient to support the verdict of the jury, and no contention is made to the contrary.

Appellant urges as error the trial court’s action in overruling defendant’s motion for a new trial, in which defendant set forth as ground 7 the following:

“For that jury venireman number 234, Norman J. Wehby, failed to respond to the following question propounded by attorney for defendant during voir dire: ‘Has any member of the jury venire been the victim of a crime of violence?’ Defendant alleges and believes that venireman Wehby, who became a member of the jury, had, at a time prior to trial, been the victim, in his capacity as Manager of Parisians, Inc., of a shoplifting attempt wherein he was required to participate in the physical restraint of the perpetrators of the attempt (who were black persons), and that, because of the nature of this specific shoplifting attempt, said Norman J. Wehby had in fact been the victim of a crime of violence. “Said venireman Wehby’s failure to answer the above question prejudiced defendant’s right to examine jurors as to their interests and bias and to have a fair trial by impartial jury.”

Testimony was taken on the hearing of the motion, particularly as to ground 7. Mr. Wehby testified that about a year before the testimony, while he was the manager of a department at Parisian’s, two black males were detected by someone else in the act of shoplifting in the store and that as he saw them running out of the store, he ran after them. He did not touch them; others restrained them and held them for the police. He further testified that he had forgotten about this incident until reminded of it upon being interrogated about it in connection with the motion for a new trial.

According to the evidence on the hearing of the motion for new trial, the juror had not been “the victim of a crime of violence” and could not truthfully have made an affirmative response to the question asked him on the subject. His failure to respond to the question furnishes no basis for complaint. Thomas v. State, Ala.Cr.App., 338 So.2d 1045; Flurry v. State, 52 Ala.App. 64, 289 So.2d 632, writ denied, 292 Ala. 720, 289 So.2d 644; Poellnitz v. State, 48 Ala.App. 196, 263 So.2d 181.

Appellant’s argument, that since the perpetrators of the “incident in which Mr. Wehby was involved were black . and Appellant is black, . . Mr. Weh-by was not impartial and therefore, his service on the jury” was a violation of defendant’s right to an impartial jury, finds no support in the record and is pressed no further than the bare assertion thereof. The trial court was not in error in overruling defendant’s motion for a new trial.

At the conclusion of the court’s oral charge, defendant’s counsel announced several objections or exceptions. In most of such instances, we feel there was no meeting of the requirement that the objector or exceptor select and recite what the court said, or state the substance of what the court said, and thereby specifically bring to the attention of the court and the appellate court the matter and ruling as to which complaint is made. Fuller v. State, 269 Ala. 312, 113 So.2d 153; Knight v. State, 273 Ala. 480, 142 So.2d 899; Ward v. State, 52 Ala.App. 392, 293 So.2d 307; Burns v. State, 57 Ala.App. 281, 327 So.2d 920, cert. denied, 295 Ala. 423, 327 So.2d 927; Magourik v. State, Ala.Cr.App., 339 So.2d 168.

The only part of the court’s oral charge which may have been sufficiently particularized by an exception or objection (but whether it was is unnecessary to decide) and which, standing alone, could reasonably be claimed to have been prejudicial to defendant is referred to in defendant’s objection as follows:

“We object to his definition of self-defense in that he did not state that it must be real or apparent. She does not have to be in serious—facing serious or grievous bodily harm or death actually, but it only need be apparent. She need believe in her mind after considering all the circumstances that she is in real or apparent danger to life of body.”

In two parts of the court’s oral charge, in referring to the imminent danger that must exist before one can legally take the life of another in self-defense, the court did not say that the requisite danger could be either real or reasonably apparent. However, immediately after first calling the jury’s attention to such imminent danger requirement, the court said:

“Now, the law says this in that regard, that a person may act upon the reasonable appearance of things. That is, if the situation which has presented itself would appear to a reasonable person— and reasonable, that term reasonable I am going to use that many times. That just means—you know what it means. I don’t have to explain what reasonable means. But the appearance of things would show reasonably, to a reasonable person that they were, in fact, in danger of losing their own life or of having grievous bodily harm committed to them by the act of another, then that person may act on that reasonable appearance of things even if they were not actually so and in such danger of losing their own life or of having grievous bodily harm committed upon their body.”

In saying that there must be danger, the court did not make the error of saying the danger must be real. The objection was not to what the court said but to what it “did not state.” Whatever a particular part of a court’s charge may lack may be adequately supplied by its presence in another part of the charge. No part is to be tested in isolation, but the court’s charge is to be considered as a whole. Whittle v. State, 205 Ala. 639, 89 So. 43; Mosley v. State, 241 Ala. 132, 1 So.2d 593; Gosa v. State, 273 Ala. 346, 139 So.2d 321; Nixon v. State, 268 Ala. 101, 105 So.2d 349; Smith v. State, 36 Ala.App. 646, 62 So.2d 473.

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Johnnie Cleveland ABERHART v. STATE.
    6 Div. 362.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.
    Albert D. Lipscomb, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the second degree and was sentenced to 60 years imprisonment in the penitentiary. He was represented by retained counsel throughout the trial proceedings and at arraignment he pleaded not guilty. At the time sentence was imposed he gave notice of appeal. Trial counsel represents him on appeal.

The evidence was conflicting in the extreme. The testimony presented by the State tended to show that appellant shot the deceased while he was either sitting or leaning on the hood of an automobile, talking to several men. Appellant asked the men around the automobile to get out of the way and when they moved, he shot the deceased one time with a shotgun, using number — buckshot. The deceased was transported to the hospital but was dead on arrival.

The shooting took place in front of-a “shot house” and there was testimony that the deceased was drunk or “very high” from drinking alcoholic beverages, and had made several threats to kill appellant before the day was over. These threats were made directly to appellant in the presence of several defense witnesses. The deceased cursed appellant during these threats, calling him all kinds of bad names. Some of the State’s witnesses testified they did not hear the deceased threaten or curse appellant, and that at the time appellant made the fatal shot the deceased was not armed.

It is undisputed that early in the morning the deceased had an automatic rifle and that he shot the rifle several times in an alleyway and under a neighbor’s house. The aunt of the deceased came out of her house and took the rifle from the deceased and took him into her house. Later the deceased got the rifle and took it to the car on which he was sitting or leaning when he was shot. The barrel of the gun was placed downward in the car with the stock sticking up above the level of the window.

Appellant admitted that the woman who ran the “shot house” requested that he go purchase her some whiskey and he left the house to comply with her request. On the trip to purchase the whiskey appellant went to a store and bought three number 4 buckshot shells. Before he returned he loaded the shotgun by putting one shell in the chamber and one in the magazine and he put the shotgun on the floorboard of his car.

When he returned from his errand he claimed that he had to stop at a stop sign near the house where the deceased was at the car and that his car choked down. At this point appellant claimed that the deceased again threatened to kill him and that he got out of his car with his shotgun. He stated that at this time he saw the deceased reach into the car and put his hand on the rifle and when he saw this, he shot toward the deceased, but he was not sure at that time that he had hit him. Appellant denied that he told the other men near the deceased to get out of the way. He did not recall cocking the shotgun but knew he fired it.

Appellant further testified that after he shot the deceased he got in his car and drove to the Police Department where he told an officer that he had just shot the deceased. He had a .38 caliber pistol on him at the time he was searched at the Police Department but claimed that he did not have the pistol on him at the time he killed the deceased with the shotgun blast. He explained the possession of the pistol by saying that while he was at the police station he went to his car to get some cigarettes and when he opened the glove compartment to his car he saw the pistol and put in in his pocket.

Several witnesses testified that the deceased had a bad reputation in the community in which he lived. They also stated the deceased had a bad reputation for being bloodthirsty, turbulent and violent.

Appellant testified that he and the deceased were friends and they were supposed to go fishing together the day after the shooting so that the deceased could teach him how to shoot the shotgun that he had owned for only three or four weeks. He stated there were times when he was a little afraid of the deceased.

Appellant claimed he shot the deceased in self-defense and the trial judge charged the jury fully on the law of self-defense. Notwithstanding appellant’s claim of self-defense he admitted that he drove to a store and bought buckshot shells, loaded his gun and returned to the very place where he claimed the deceased had threatened to kill him. Appellant came back fully prepared for trouble and in addition to a shotgun loaded with buckshot he also had a .38 caliber pistol. No witness supported his claim that the deceased had his hand on the rifle when appellant fired the fatal shot.

When the investigating officer found the deceased’s rifle it was unloaded and in the closet of his home. Appellant’s claim of self-defense is weak — so weak the jury rejected it and gave him 60 years. The jury felt very strongly that appellant was not free from bringing on the difficulty and that he gunned down an unarmed man who was highly intoxicated. And, too, the jury had every reason to believe, from the evidence, that appellant’s life was not in imminent danger when he shot and killed the deceased.

Under the facts and circumstances of this case the trial judge was most generous to appellant in charging the jury on the law of self-defense. The totality of the circumstances surrounding the killing did not justify such charge.

Appellant makes only one claim of error on this appeal and that is the refusal of the trial court to give the following written charge to the jury:

“The Court charges the jury that if they believe from the evidence that the deceased was of a violent and bloodthirsty character they are to take such evidence into consideration in determining the degree of the defendant’s guilt, provided they find him guilty.”

One of the State’s witnesses testified that when appellant returned to the scene of the shooting he got his shotgun out of the car and told the men standing around the car where the deceased was, to stand back, that he was tired of that boy bothering him, and then appellant shot the deceased.

In McCaghren v. State, 52 Ala.App. 509, 294 So.2d 756, we held:

“After evidence has been adduced in a homicide case tending to show that the defendant acted in self-defense, evidence as to the violent and dangerous character of the deceased and evidence as to previous threats against the defendant is admissible. But,
‘in the absence of a tendency of the evidence to show that the defendant was without fault in bringing on the fatal encounter, that he was in imminent peril, or that he could not avoid the difficulty or retreat without increasing his peril, the defendant cannot prove the bad character of the deceased for turbulence, nor threats by him toward the defendant, nor of a prior difficulty with him, though of a serious nature.’ Farley v. State, 279 Ala. 98, 182 So.2d 364; Sanders v. State, 242 Ala. 532, 7 So.2d 483.”

We do not think under the facts and circumstances of this case that the trial judge committed reversible error in refusing the above-quoted charge.

A careful search of the record reveals no error and the case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    In re Johnnie C. ABERHART v. STATE. Ex parte Johnnie C. Aberhart.
    SC 2683.
    Supreme Court of Alabama.
    Nov. 4, 1977.

      Powell D. Lipscomb, of Lipscomb & Lipscomb, Bessemer, for petitioner.
    William J. Baxley, Atty. Gen., Montgomery, James L. O’Kelley, Asst. Atty. Gen., Birmingham, for the State.
   BLOODWORTH, Justice.

Petitioner, Johnnie C. Aberhart, was convicted of second-degree murder and sentenced to sixty years’ imprisonment in the penitentiary. The facts of the case are set out in the Court of Criminal Appeals’ decision which affirmed the conviction.

We granted certiorari to review petitioner’s claim of error in the Court of Criminal Appeals’ decision in holding that the trial judge did not err in refusing to give petitioner’s requested jury charge concerning the violent and bloodthirsty nature of the deceased.

The requested charge is, viz:

“The Court charges the jury that if they believe from the evidence that the deceased was of a violent and bloodthirsty character they are to take such evidence into consideration in determining the degree of defendant’s guilt provided they find him guilty.”

The Court of Criminal Appeals held, viz:

“Under the facts and circumstances of this case the trial judge was most generous to appellant in charging the jury on the law of self defense. The totality of the circumstances surrounding the killing did not justify such charge.”
* * * * * *
“We do not think under the facts and circumstances of this case that the trial judge committed reversible error in refusing the above-quoted charge.”

Petitioner contends that the trial judge erred to a reversal in refusing the proffered charge where, as here, evidence had been presented, without objection, as to the violent and bloodthirsty nature of the deceased. Petitioner further contends that it is not necessary to prove, but simply to offer evidence of, self-defense in order to be entitled to show evidence of the violent and bloodthirsty character of the deceased and to be entitled to the charge. We agree with petitioner and must, therefore, reverse and remand.

It has long been the rule in Alabama that if some evidence tending to show self-defense has been offered by a defendant, then he is entitled to offer proof of the violent and bloodthirsty nature of the deceased and to be given a requested charge thereon. E. g., Farley v. State, 279 Ala. 98, 182 So.2d 364 (1966); Smith v. State, 88 Ala. 73, 7 So. 52 (1889). See also Jackson v. State, 38 Ala.App. 488, 89 So.2d 108 (1956).

The Court in Smith found reversible error' precisely because this identical charge had not been given by the trial judge. In recent cases it has been held reversible error to refuse to give this charge. See Collier v. State, 57 Ala.App. 375, 328 So.2d 626 (1975) and Jacobs v. State, 29 Ala.App. 388, 197 So. 67 (1940).

The Court of Criminal Appeals articulated the above rules in its decision, but apparently considered that the facts of this case did not require that the requested charge be given. The Court of Criminal Appeals quoted with approval the following:

“ ‘. . . [I]n the absence of a tendency of the evidence to show that the defendant was without fault in bringing on the fatal encounter, that he was in imminent peril, or that he could not avoid the difficulty or retreat without increasing his peril, the defendant cannot prove' the bad character of the deceased for turbulence, nor threats by him toward the defendant, nor of a prior difficulty with him, though of a serious nature.’ ” (Citations omitted.)

While we do not disagree with this statement of the law, we cannot agree with the Court of Criminal Appeals as to its application of this rule to the facts. The point is that evidence of self-defense was offered. There was testimony to the effect that the deceased was reaching into his car for- a rifle when petitioner shot him. The evidence also shows that the deceased was drunk or “very high” from drinking alcoholic beverages, and had made several threats to kill the petitioner on the day of the homicide. Evidence of deceased’s character was then offered without objection. Several witnesses testified that the deceased had a bad reputation for being bloodthirsty, turbulent, and violent.

Therefore, since some evidence tending to show self-defense was offered, and the deceased’s character was put in issue, we hold it was error to refuse to give the requested charge, and we reverse and remand.

REVERSED AND REMANDED.

All the Justices concur.


author: Per Curiam.

text:
    Johnnie Cleveland ABERHART v. STATE.
    6 Div. 362.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
   REVERSED AND REMANDED on authority of opinion of the Supreme Court of Alabama, S.C. 2683 Ms., November 4, 1977, 353 So.2d 6. No opinion.

Per Curiam.

All the Judges concur.


author: BOWEN, Judge.

text:
    Thomas Harold CAYLOR v. STATE.
    1 Div. 783.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.

      Richard D. Horne, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from a judgment whereby the appellant was found guilty of murder in the second degree and sentenced to a term of fifteen years imprisonment. Although the appellant was awarded a free transcript by the trial court, he is represented by retained counsel both at trial and on this appeal.

For the most part the evidence is not in dispute. On November 16,1975, the appellant and Woodrow Covill went horseback riding about eleven o’clock that morning. Before leaving the appellant cleaned, oiled and loaded a .32 caliber automatic pistol which he stuck in his boot. The appellant testified that he carried the pistol to shoot snakes and rabbits while riding.

At approximately 4:30 P.M., the appellant and Covill rode over to the V.F.W. Club in Eight Mile, Alabama, for a drink. When the appellant arrived Edward “Pop” Osborne was already there with his ever present hunting knife which he usually wore in a scabbard on his belt. From the evidence it is clear that Osborne and the appellant were friends. Pop Osborne was approximately seventy years old.

The appellant played a practical joke on Osborne and slipped the knife out of its scabbard, hiding it under the bar.

Osborne discovered his knife was missing and was told that the appellant had taken it. Retrieving the hunting knife he told a witness, “Son, I am going to go over there and have some fun”.

Osborne, with the knife in his hand by his side, then approached the appellant who was seated at a table. When Osborne was about three or four feet from the table, the appellant pulled the pistol from his boot and fired. Not a harsh or threatening word had been spoken between the two men but Osborne lay on the barroom floor with a bullet in his chest. Spontaneously a bystander asked the appellant if he had shot Mr. Osborne. “Yes, I did”, the appellant replied.

After Osborne fell to the floor the club manager seized the pistol from the appellant and “wrapped” the appellant “right between the eyes” with the weapon.

The evidence revealed that Osborne and the appellant had not been fighting nor arguing before the shooting. Osborne was a “jolly type fellow” never known to start trouble.

The appellant testified that he was “afraid” of the knife and did not intend to shoot or kill Osborne. Although he admitted pulling the pistol from his boot he stated that he did not aim the weapon and that the pistol just accidentally went off.

I

During the direct examination of the operator of the V.F.W. Club, the District Attorney, over the strenuous objection of the attorney for the appellant, elicited the testimony that the appellant:

“took a shot at another man in that club on one other occasion as a result of just bumping into him.”

The appellant’s attorney then moved that the answer be excluded, for curative instructions, and for a mistrial. Adverse rulings were had and exception was taken.

It is a basic and fundamental principle of evidence that in a murder prosecution, it is not permissible to show a difficulty between the accused and a third person not connected with the victim or the offense. Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1957); Stain v. State, 273 Ala. 262, 138 So.2d 703 (1962); Mainor v. State, Ala.Cr.App., 348 So.2d 1083 (1977). The state’s argument that the questions asked which elicited the objectionable response had the sole purpose of “putting the shooting of Mr. Osborne .into its proper historical perspective” and had a direct bearing on the witness’s ability to recognize the pistol is utter sophistry and totally unacceptable to this court.

The state is not allowed to supply the intent to kill one victim by showing that the defendant had assaulted a third party on another unrelated occasion. While proof of other offenses is sometimes admissible as exceptions to the general rule barring admissibility, this is not one of the exceptions. Proof that the appellant shot at another in no way shows plan, scheme, or intent to kill the deceased or any of the other exceptions to the general rule.

In cases where the evidence presents an issue of self-defense, the defendant as well as the state may prove the fact of a prior difficulty between the defendant and the deceased. Wright v. State, 252 Ala. 46, 39 So.2d 395 (1949). However this rule of evidence does not embrace a prior difficulty between the appellant and a third party. The admission of this testimony constitutes reversible error.

II

In its case in chief, the state introduced testimony that the deceased “wouldn’t start any trouble” and was a “jolly type fellow”. The general rule in this area is that the state is entitled to show the good reputation of the deceased where such reputation has been placed in issue by the accused.

“No principle of the law seems better settled than that ‘on a trial . . . for murder, where the character of the deceased had not been assailed by the defendant, it is not competent for the state to introduce evidence to show that the character of the deceased was good . for peace and quiet.’ Jimmerson v. State, 133 Ala. 18(27), 32 So. 141; Ben (a slave) v. State, 37 Ala. 103; Kennedy v. State, 140 Ala. 1, 37 So. 90; Webster v. State, 207 Ala. 668, 93 So. 545.” Isom v. State, 27 Ala.App. 488, 489, 174 So. 538, 539 (1937).

This is in accord with the favored view held by Wigmore and McCormick. McCormick, The Law of Evidence 340 (1954). Despite Russell v. State, 46 Ala.App. 230, 239 So.2d 902 (1970) holding that questions designed to elicit the deceased’s repute for aggressiveness, bloodthirstiness and the like, were premature where no evidence of self-defense had been adduced, this is still the rule in Alabama and the state is not entitled to show the good reputation of the deceased until such reputation has been put in issue by the accused.

“It is a well-recognized general rule that in homicide cases ordinarily the character or reputation of the deceased is not involved as an issue, and that proof relative thereto is generally inadmissible. (Authorities omitted) There are of course exceptions to the rule, such as in cases of self-defense, where the character of the deceased for peace and quiet may shed light upon the issue involved, and the evidence is of such character as to justify the state in offering testimony in rebuttal of that of defendant to establish the general character of the deceased for peace and quiet.” Webster v. State, 207 Ala. 668, 669, 93 So. 545 (1922).

The admission of the evidence of the good character of the deceased before the defendant had introduced or elicited any evidence of his bad character constitutes reversible error in this case.

Ill

The state, in brief and oral argument, although stating that the pictures served a material purpose, has failed to point out what that purpose was. We are at a loss to discover it.

The pictures show nothing more than a body after an autopsy has been performed. The body has been “laced up”. Because of the size and location of the stitches the entrance wound of the bullet is completely obscured.

We have discussed the rules of evidence governing the admissibility of photographs elsewhere. Lewis v. State, Ala.Cr.App., 339 So.2d 1035, cert. denied, Ala., 339 So.2d 1038 (1976). We would strongly urge that when the appellant is retried that these photographs not be introduced unless some probative value can be found in their admissibility.

For the foregoing reasons this cause is

REVERSED AND REMANDED.

All Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2753.
    Supreme Court of Alabama.
    Jan. 6, 1978.
   FAULKNER, Justice.

Writ quashed as improvidently granted.

All the Justices concur.


text:
    Jessie Lee SIMMONS, alias v. STATE.
    6 Div. 405.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.

      Jack G. Lowther, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of assault with intent to rob and sentenced to 15 years imprisonment in the penitentiary. Following the verdict and sentence, appellant gave oral notice of appeal. The Court, finding appellant indigent, appointed counsel of record to represent appellant on appeal.

Subsequently, appellant, stating numerous grounds, moved for a new trial. In part, appellant contended that the verdict was contrary to the evidence adduced at trial. The trial court denied this motion.

The evidence shows that around midnight on Friday, August 27, 1976, two young black males, Danny Harris and Jessie McGee, approached the self-service Shell Station on the corner of 13th Street and McFarland Boulevard. Miss Carol Brown was the attendant on duty. Daniel Harris' purchased a pack of Kool cigarettes from her. At that time Jessie McGee pushed a pistol through the cashier’s window, told Miss Brown that this was a holdup, and demanded that she place all the money in a bag. While gathering up the money from the cash drawer, before giving any money to these assailants, Miss Brown was shot by McGee.

Immediately before McGee shot Miss Brown, two Alabama State Troopers, Buddy Knight and Jerry Elliot, stopped at a red light at the intersection of 13th Street and McFarland Boulevard. Buddy Knight saw McGee and Harris “standing shoulder to shoulder pushed up real close to the pay window.”

The troopers drove into the station lot just as McGee shot Carol Brown. Knight jumped out of his car, shouting at McGee and Harris to “Freeze.” McGee raised his pistol and Knight fired several shots, one of which struck McGee in his leg. Harris ran and Elliot chased him, losing him in a wooded area nearby.

Knight recovered the pistol used by McGee and turned it over to Don Lake, a detective on the homicide squad. Lake recovered a spent projectile inside the cashier’s booth. Both the gun and the projectile were turned over to Jim Britton, a State Toxicologist. Britton conducted ballistics examinations, subsequently, concluding that the projectile was fired from the weapon used by McGee.

Leigh McGee testified that she was the mother of Jessie McGee. Mrs. McGee had known appellant approximately two years prior to this incident. Appellant and McGee were close friends. On the evening of the robbery, Mrs. McGee testified, appellant came to her home on three occasions.

. At approximately 8:30 p. m. on Friday, appellant came over to the McGee home with Jessie McGee and Daniel Harris. Appellant asked Mrs. McGee to cook them a frozen pizza which he had brought with him. Appellant, McGee and Harris then left.

Mrs. McGee stated that at approximately 10 o’clock, appellant, her son and Harris came back and ate the pizza. After eating the pizza these three left again. They did not tell Mrs. McGee where they were going.

Mrs. McGee left her house shortly after-wards on an errand. When she returned home, her son and Daniel Harris were there. About 11 o’clock p. m., Mrs. McGee stated, appellant drove up to her house and honked the horn in his car. Her son and Daniel Harris went out to the car. Mrs. McGee heard appellant say, “Are you all ready?” Her son answered, “Yeah.” Appellant and the two boys then drove off.

Approximately at 12:30 a. m., Saturday morning, appellant returned alone to Mrs. McGee’s house and asked her if her son and Daniel had “made it home.” When she told appellant they had not, he replied that he had dropped them off at Brother’s Lounge.

Subsequently, Don Lake and Sergeant Billy Bigham of the Tuscaloosa Police Department arrived at Mrs. McGee’s home. After talking with Mrs. McGee, the officers spoke to Jessie McGee’s wife. Following this conversation the officers went to an apartment on 25th Avenue and spoke with appellant.

Billy Estes, also a Tuscaloosa Police Officer, was with Lake and Bigham at this time. He informed appellant of his Miranda rights. Appellant stated that he understood these rights and said he would talk to them. The police officers informed appellant of the attempted robbery at the Shell Station.

Appellant at that time said that some time after 11:00 p. m., he had gone by Jessie McGee’s residence and asked if he and Danny wanted to go get a pizza with him.

Lake then asked if appellant would come down to the police station to give a formal statement. Appellant agreed. He and the officers then left in Lake’s patrol car.

In the patrol car, appellant said he “wanted to come clean of everything that he knew about the case,” and wanted to show where he dropped off McGee and Harris. Appellant took them to the entrance to Delaware Jackson Apartments, telling them that McGee and Harris told him that they were going to a party. Appellant then said he went to his nephew’s house down on the Eutaw Highway.

Lake, the other officers, and appellant then went to the police station. Lake again advised appellant of' his Miranda rights. Appellant executed a Miranda waiver form. Appellant then gave another statement.

Appellant said that he was on his way to get a pizza and on his way picked up McGee and Harris. McGee and Harris were talking about “pulling a job.” McGee and Harris wanted him to wait while they committed the robbery. Appellant said he “felt like they were going to hit the station at Thirteenth and McFarland because there wasn’t anything else open around there in the vicinity.” Appellant stated that he let McGee and Harris out at the West Alabama Rehabilitation Center.

Appellant said that Tuesday he had seen a gun over at Jessie McGee’s. Appellant further stated that it had been in his car. Appellant saw the imprint of a gun in McGee’s pants leg on the night of the robbery.

• After appellant let McGee and Harris out of the car he stated that he did go over to Mrs. McGee’s house. When asked by Lake when he finally got home, appellant gave no answer.

Appellant told Lake that McGee had been saying he needed money because he was going to Germany in the Army. This conversation, appellant said, started a couple of days prior to the attempted robbery. “I knew they were going to do something a day or so — days or so. Junior was worrying me about needing some money .

As soon as McGee and Harris got in the car at McGee’s residence, appellant said, they started talking about a robbery. McGee reached under the seat of the automobile when he got in.

Appellant said he had handled the gun before but he didn’t know how long it had been in the car. McGee had told him that he had got it from a “young dude” known as Preacher.

Billy Estes testified that he had a conversation with appellant later on the morning of August 28, 1976. Estes also advised appellant of his rights again. Appellant wanted to make another statement.

At 11:00 p. m. appellant said, he picked up his wife from work and carried her home. Appellant’s wife wanted to know what he had for supper and he told her a pizza. He left to go get his wife a pizza because she wanted one. Appellant went by McGee’s house, blew the horn, and saw McGee and Harris come out. They wanted to go with him appellant said.

Appellant told Estes that Tuesday McGee had got a gun from “Preacher.” This gun was “rusty and nasty.” Appellant said McGee cleaned up the gun and asked if he could leave it in his car. Appellant agreed.

Then when appellant picked Harris and McGee up, he said he needed some gas. He drove down McFarland Boulevard and turned left on 13th Street. “I knew something was coming down. I didn’t know what, when or where.”

Appellant said McGee got the gun and tucked it in his belt. McGee said, “Look, it’s a black girl, this is my place.” McGee and Harris said to wait on them. Appellant said he “put them out at some apartments on the left and they walked back, and I took off.”

Later appellant went over to Mrs. McGee’s and asked her if “they had made it back ... I told her that I dropped them off at Jim’s Lounge ... I told Junior’s mother a lie about putting them off at Jim’s Lounge.”

At trial, over appellant’s objection, the testimony of Bobby Hunter who testified at a preliminary hearing for this case was admitted into evidence. Hunter was unavailable to testify, since he was stationed out of state with the Army, undergoing basic training.

At the preliminary hearing, Hunter testified that appellant was his uncle. He stated that a few days prior he had given appellant a gun to sell for him. Appellant said he didn’t want it; but he took it and placed it in his car. Hunter said the pistol had belonged to Jerome Guyton, who was known as “Preacher.” Hunter found the pistol in a playground under a merry-go-round. Hunter identified a weapon shown him at the preliminary hearing to be the same as the pistol which he gave to appellant.

Counsel for appellant stipulated at trial that the pistol exhibited at the preliminary hearing was the same as that pistol offered in evidence by the State at trial.

Appellant took the stand in his own defense. Among other things he stated he had picked his child up at 8:30 p. m. and gone directly home. He said he had had a pizza earlier at McGee’s. But he didn’t see McGee or Harris until after 11 o’clock p. m., when he picked them up on his way to get a pizza for his wife.

Appellant testified he drove down McFarland Boulevard to get some cheap gas. Harris said, “It’s a black girl over there, and she is by herself.” McGee told him, “Jabbo, stop the car. This looks like a good place to set up. This looks like a good place to rip off.” When asked to wait when McGee and Harris got out of the car, appellant said, “Well, like, I am going to get my wife. You know how she is.”

Appellant denied having any knowledge beforehand that McGee was going to “rip off” any place.

On the stand, appellant admitted that he let McGee and Harris out on 13th Street. He also admitted that he had gotten the weapon used in the robbery attempt from Bobby Hunter.

Appellant stated when he received the gun from Hunter, he showed it to McGee. McGee told appellant he could clean the weapon. Appellant testified that he told McGee “Well, if you can find anybody that will sell it, sell it for whatever you can.” On Thursday, appellant testified, McGee said this gun belonged to “Preacher,” and that he would keep the gun. At this time McGee showed appellant that he had cleaned the gun. “I said, yeah, it looked pretty good. And I told him to put it under my right seat . . . And that is where he put it, under there.”

The District Attorney’s cross-examination of appellant was scathing. Appellant had testified that his wife wanted to know what he had for dinner, because there were no dishes in the sink. On cross-examination, appellant was asked if he hadn’t told Don Lake in one statement that he got home, watched the Midnight Special and washed the dishes at 1:00 a. m., Saturday morning. Appellant didn’t recall.

Further, from the record:

“Mr. Andres — Q: And you told Mr. Lake and Mr. Cooper that you had already stopped by Pasquale’s and noticed that they were closed before you let Danny and Junior out; is that right?
“A. Yes, sir.
“Q. And that was a lie?
“A. Yes, sir.
“Q. ... I believe you said that you let Danny and Junior out at the Rehab there?
“A. Yes, sir.
% % sfs sk sfc *
“Q. Was that also a lie, Mr. Simmons? “A. Yes, sir.
“Q. They (Lake and Cooper) certainly didn’t find out that the gun had come from Bobby Hunter from what you told them, did they?
“A. (No audible response)
“Q. You never told them that the gun came from Bobby Hunter, did you?
“A. No, sir.
* * * * * *
“Q. Danny and Junior were not going to a party at Delaware Jackson Apartments, were they?
“A. No, sir.”

The above excerpts from the record are only a few examples of appellant’s self-contradiction on the stand. The conflicting statements given to police officers speak for themselves.

It is well established that circumstantial evidence is entitled to the same weight as direct evidence provided it points to the guilt of the accused. Locke v. State, Ala.Cr.App., 338 So.2d 488; Creel v. State, 53 Ala.App. 504, 301 So.2d 267; Hollenquest v. State, 53 Ala.App. 501, 301 So.2d 264.

The record reflects numerous circumstances that destroy the credibility of appellant’s claim of innocence. (1) The appellant was with McGee and Harris on the night of the attempted holdup. (2) At 11:00 p. m. appellant picked up Harris and McGee, asking them, “Are you all ready?” (3)Appellant appeared at McGee’s house about 12:30, only a half hour after the attempted robbery and asked if McGee and Harris “had made it home?” (4) Only a few days before the robbery attempt, appellant was given the gun which was used by McGee at the Shell Station. (5) Appellant gave this gun to McGee to clean. (6) Appellant later had McGee place the weapon in his automobile. (7) Appellant admitted he let McGee and Harris out at the Shell Station, not at the Rehabilitation Center, nor at Delaware Jackson Apartments as he maintained at various times. (8) Appellant stated that he had known something was “coming down” for several days before the incident occurred.

In Johnson v. State, 57 Ala.App. 470, 329 So.2d 160, this Court said:

“Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813; Moore v. State, 52 Ala.App. 394, 293 So.2d 309.”

It is well settled that proof of the corpus delicti may be established by circumstantial evidence. James v. State, 22 Ala.App. 183, 113 So. 648; Butler v. State, 54 Ala.App. 468, 309 So.2d 505; Hollenquest v. State, supra.

It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness or falsity of conflicting evidence. Snipes v. State, 50 Ala.App. 139, 277 So.2d 413.

Donald Atkins testified on behalf of the appellant at trial. He stated that he stopped by appellant’s house some time after 11:00 p. m. to ask appellant to go to the Citizens Club. He also stated he heard a conversation between appellant and his wife concerning a pizza. However, when Atkins was asked to relate the content of the conversation, the Court sustained the State’s objection that the question called for hearsay.

Appellant contends that the Court erred in refusing to allow Atkins to testify to a conversation in which he heard the appellant state his purpose for going on a journey in which the charged crime occurred. Sellers v. State, 37 Ala.App. 318, 68 So.2d 65 (1953); Davis v. State, 188 Ala. 59, 66 So. 67 (1914); Maddox v. State, 159 Ala. 53, 48 So. 689 (1909).

Appellant states a correct proposition of law. What a person says on setting out on a journey, or when starting to go to a particular place, explanatory of the object he had in view in so setting out, is res gestae evidence. This may be proven to shed light upon his motive, intent or acts, Sellers, supra.

However, this principle is not dis-positive of the case at bar. Here appellant and his wife testified to appellant’s purpose in leaving his home on the evening the incident occurred. Atkins’ testimony would only have been cumulative and repetitive. Where error, if any, is committed by ruling evidence inadmissible, the error is cured by subsequent admission of the same evidence. Tate v. State, Ala.Cr.App., 337 So.2d 13 (1976); Lovell v. State, 51 Ala.App. 286, 284 So.2d 741 (1973); Griffin v. State, 49 Ala.App. 502, 273 So.2d 478, cert. denied 290 Ala. 366, 273 So.2d 481 (1972).

In the charge to the jury, the Court originally included the lesser offense of assault and battery. Upon the State’s exception to the conclusion of the assault and battery, the Court withdrew that part of the charge from the jury’s consideration.

Appellant relies upon Taylor v. State, 48 Ala.App. 443, 265 So.2d 886 (1972), as basis for his contention that the trial court erred in withdrawing that charge. There the trial court instructed the jury to find defendant guilty of robbery or not at all, having previously instructed them that an indictment for robbery included the lesser offense of larceny, assault with intent to rob, and assault and battery.

Where the only reasonable conclusion from the testimony is that defendant is guilty of robbery or not guilty of any crime whatever, he is not entitled to a charge on lesser included offenses. Carter v. State, Ala.Cr.App., 340 So.2d 94 (1976); Impson v. State, Ala.Cr.App., 331 So.2d 837 (1976).

Appellant states that if the jury believed the testimony of Carol Brown, the victim, and didn’t believe the testimony of Danny Harris, an accomplice; then, there is a reasonable inference from the evidence that there was no intent to rob, but merely an assault and battery. Appellant notes that Miss Brown was shot before she handed the money over. However the evidence is undisputed that McGee and Harris told Miss Brown that this was a holdup and to put the money in a bag. Although appellant denied any knowledge beforehand that a robbery would be committed, the appellant testified that McGee and Harris were talking about pulling a job.

The Court did not err in withdrawing the charge of assault and battery from the consideration of the jury. Carter and Impson, supra.

Finally appellant urges that the trial court fell into error by qualifying several charges requested by appellant, which the Court read to the jury. Such a modification of a defendant’s requested charges is prohibited by Code of Alabama, Title 7, Section 273, and constitutes reversible error. St. John v. State, 55 Ala.App. 95, 313 So.2d 215, cert. denied 294 Ala. 768, 313 So.2d 218 (1975); Bryer v. State, 34 Ala.App. 561, 42 So.2d 496 (1949).

The following requested charges of appellant were given by the trial court:

“The Court charges the jury that in order to aid and abet another to commit a crime, it is necessary that the accused associate himself with the venture with knowledge that an offense is to be committed and share in the criminal intent, and unless the State has proved each of these elements from the evidence beyond a reasonable doubt, you must find the Defendant not guilty.
“The Court charges the jury that before you can convict the Defendant, you must be convinced by the evidence beyond a reasonable doubt and to a moral certainty that the Defendant, by prearrangement or on the spur of the moment, entered upon a common enterprise or adventure with Jessie McGee or David Harris, and that a criminal offense was contemplated. I said David Harris, I believe it was Daniel Harris.
“The Court charges the jury that in order to render a person an accomplice, he must be aiding and abetting at the time of the crime or ready to afford assistance if necessary. And that unless you are convinced from the evidence beyond a reasonable doubt and to a moral certainty that Defendant, Jessie Simmons, aided and abetted at the time of the offense or was ready to afford assistance if necessary, you must find him not guilty.”

Following the reading of the immediately preceding charge, the Court stated:

“. . . And I want to add further in my Charge that it is not necessary that the Defendant be at that place and waiting or there. You have heard the evidence. If he put them out there, and he knew what they were going to do and had a — and you are satisfied beyond a reasonable doubt that he knew what was going to happen, and although he drove off later — or to come back and pick them up, that is for you to decide; but he could be just as guilty as the one that actually pulled the trigger that said this is a holdup.”

Then the Court continued with giving appellant’s requested charges:

“The Court charges the jury that merely being at or near the scene of a crime, even without raising the hue and cry, does not make a man an aider or abettor. And that if you believe from the evidence that this was the extent of the involvement of Jessie Simmons, you cannot convict him.
“The Court charges the jury that when the perpetration of a crime has been entered on, one who aided and encouraged its commission may before its completion, withdraw all his aid and encouragement and escape criminal liability for the completed felony. And if you find from the evidence that Jessie Simmons was an aider and abettor but did everything practical to detach himself from the criminal enterprise, you cannot convict the Defendant.”

Appellant excepted to the Court’s statement made during the giving of his requested charges. He now claims that this statement constituted a qualification of the written charge.

Bryer, supra, also holds that Title 7, Section 273, Alabama Code, does not prohibit the trial judge from explaining to the jury the legal purport of the charge, provided in so doing he does not qualify the tendered instruction. See Milam v. State, 29 Ala.App. 494, 198 So. 860 (1940).

Here the Court’s oral statement amounted to nothing more than an explanation, and thus was permissible.

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: ALMON, Justice.

text:
    Ex parte Jessie Lee SIMMONS.
    SC 77-117.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   ALMON, Justice.

WRIT DENIED.

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


text:
    James Howard ROGERS v. STATE.
    6 Div. 549.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.
    J. Wilson Dinsmore, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of possessing heroin and sentenced to ten years imprisonment in the penitentiary. At arraignment, in the presence of his retained counsel, he pleaded not guilty. After conviction he applied for probation and when probation was denied he gave notice of appeal. He was found not to be indigent. New retained counsel represents appellant on this appeal.

The evidence in this case is not in conflict. Appellant did not testify nor did he offer any evidence in his defense.

There are only two issues presented on this appeal (1) whether the chain of possession of the controlled substance was broken, and (2) whether appellant had possession, dominion or control of the contraband.

We will set forth the facts adduced by the State and then treat the issues presented.

The State’s first witness was Sergeant Paul A. Price, Jr., of the Birmingham Police Department. He testified that on October 1, 1976, he obtained from the magistrate a search warrant for the premises located at 1613-B 13th Avenue South, in Birmingham; that after obtaining the warrant, he, Lieutenant Phillips, Lieutenant Bibb, Sergeant Sims, Sergeant Harris, and Sergeant Triplett of the Birmingham Police Department and Agent Kominitsky of the ABC Board executed the warrant; that, when they arrived at the specified apartment and knocked on the door and announced who they were, someone opened the front curtain and immediately closed it, whereupon they heard running and scurrying about inside; that Lieutenant Bibb then kicked the front door open, and they entered; that the first thing he saw when he got inside the apartment was a .45 automatic on the seat of a chair located inside the front door. He said that immediately after entering the apartment and seeing this .45, they noticed the appellant, Rogers, running up the hall from the bedroom toward the chair with the gun in it; that in addition to Mr. Rogers, they found three other persons in the apartment. He testified that these occupants were instructed to sit on a couch in the living room.

The search of the apartment was then initiated, and Sergeant Price testified that more than one item of alleged contraband was found in the apartment; that at 3:15 p. m. on the day of the search, one tin foil packet of white powder was taken from Debra Holt by Sergeant Sims. He said this tin foil packet was placed in an envelope and kept in Price’s possession until he returned the evidence to the magistrate, at which time it was sealed and taken at a later date to the State Toxicologist; that it was in the same condition when it was taken to the State Toxicologist as it was when he received it; that a tin foil packet of white powder and a clear plastic bottle containing a material resembling hashish were found on the end table in the left bedroom at 3:17 p. m.; that another tin foil packet containing white powder was found on the opposite end table at 3:17 p. m. also. He said the packet found on the left end table was placed in an evidence envelope, carried to the magistrate, sealed, and later turned over to the State Toxicologist; that said envelope was initialed “P.A.P.”; that such envelope was in his possession until it was shown to the magistrate and that af-terwards, it was placed in the Narcotics safe, to which he had the only key. He later took said envelope from the Narcotics and transported it to the State Toxicologist. He testified that at the State Toxicologist’s Office, he surrendered the envelopes to Criminalist Wayne Burrow; that from the time he found the tin foil packet, until the time he gave it to Wayne Burrow, it had been in his care, custody, and control the entire time and that it was in the same condition as it was when he found it. He said that the same procedure was followed regarding the envelope which was containing the tin foil packet found on the opposite end table.

Sergeant Price further testified that some blue tablets in a box were found on the chest of drawers in the bedroom at 3:20 p. m.; that exactly the same procedure regarding custody of the alleged contraband was followed with regards to the blue tablets.

He further testified that Sergeant Sims at 3:25 p. m., found another tin foil packet of white powder in the kitchen; that Sergeant Sims gave him that packet, and he placed it in an envelope and followed the same procedure as he did with the other articles.

On cross-examination, Sergeant Price stated that each item found that day was placed in a separate envelope. He also said that the Narcotics Detail’s general procedure is to put all evidence found in the same general area in the same envelope, except that no two quantities of loose powders that could be mixed together would be put in the same envelope. For this reason, he had placed the tin foil packet and the clear, plastic bottle found on the left bedside table in the same envelope; that all of the envelopes were initialed by him and that he was the officer who turned the narcotics in to the State Toxicologist.

Sergeant Price then proceeded to identify State’s Exhibits 2-11 which were various items found in the top drawer of a chest of drawers in the left rear bedroom of the apartment. State’s Exhibit 3 was a checkbook from Central Bank with the name J. Rogers and Catherine Dixon Rogers, 1613 13th Avenue South. State’s Exhibit 2 was a receipt for a temporary driver’s license registered in the name James Howard Rogers, Jr., 1613-B 13th Avenue South. State’s Exhibit 4 was a piece of mail from Jefferson Clinic addressed to James Rogers, 1613-B 13th Avenue South. State’s Exhibit 5 was a bill from C.I.T. Finance Company to J. H. Rogers, 1613-B 13th Avenue South. State’s Exhibit 6 was a piece of mail from Birmingham Trust National Bank addressed to Jane Rogers, 1613-B 13th Avenue South. State’s Exhibit 7 was a checkbook from Central Bank in the name of J. Rogers or Catherine Dixon Rogers, and State’s Exhibit 8 was a bill of sale to Mr. James Rogers for a motorcycle. State’s Exhibit 10 was a tag receipt addressed to James Rogers, 1613-B 13th Avenue South. State’s Exhibit 11 was a piece of mail from Central Bank to James or Jane Rogers, and Exhibit 9 was a Veterans Administration patient card in the name of James H. Rogers, 1613-B 13th Avenue South. Price testified that he took this evidence and placed it in an envelope and that this evidence had been in his possession from the time these items were taken until he came to the courtroom today.

Officer James Sims of the Birmingham Police Department was the next witness for the State. He stated that he participated in the search of the apartment located at 1613-B 13th Avenue South; that he entered through the rear door; when he entered the rear door, a girl ran in front of him, sat down on the floor and stuffed a tin foil packet between her legs; that he turned this tin foil packet over to Sergeant Price and that it was in the same condition when he turned it over to Price as it was when he found it; that he also found the tin foil packet in the kitchen area, turned it over to Sergeant Price and that it was in the same condition when he turned it over as it was when he found it in the cabinet.

Officer James E. Bibb of the Birmingham Police Department was the next State’s witness. He testified that he, too, participated in the search of 1613-B 13th Avenue South, on October 1, 1976; that he entered through the front door of said apartment; that upon entering the apartment, he saw a gun and assisted in apprehending the appellant as he came running towards the gun; that he found a small tin foil packet in the bedroom on the right end table; that he turned this packet over to Sergeant Price in the same condition as it was when he found it.

Craig Bailey, a Criminalist for the State Department of Toxicology and Criminal Investigation was called to the stand next. He testified that his main duty was to identify drugs that are supposed to be in violation of the Controlled Substances Act of Alabama. He testified that Exhibits 12-15, the envelopes, were submitted to him by Sergeant Price and that such envelopes were placed under lock and key until he analyzed the contents.

Sergeant Price was recalled and testified that State’s Exhibit 12, the envelope, contained suspected Valium, which was found in the box on the chest of drawers in the bedroom at 1613-B 13th Avenue South; that Exhibit 15 contained a foil packet and the pill bottle found on the left end table in the left bedroom at said address; that Exhibit 14, containing a tin foil packet, was found on the left end table in the left, rear bedroom; that Exhibit 13 contained a tin foil packet found in the kitchen cabinet at said address. Sergeant Price further testified that the tin foil packet found stuffed between the legs of the girl in the bedroom was not placed in any of the envelopes numbered Exhibits 12-15, and that such was submitted in a separate envelope.

Craig Bailey was recalled to the stand and testified that the foil packet found above the stove contained heroin; that before he analyzed the powder in the packet the powder weighed 5.718 grams and that after his analysis there were roughly 4 grams of powder remaining. Bailey further stated that State’s Exhibit No. 14, the envelope containing powder found in the left, rear bedroom on the left end table, contained a foil packet which contained .07 grams of white powder, and that such powder was found to contain heroin; that 31.1% of this powder was heroin.

Bailey then stated that State’s Exhibit No. 15 contained a clear, plastic bottle containing some brownish-black, lumpy material and that this material was determined to be marijuana hashish; that also in the envelope numbered State’s Exhibit 15 was a folded foil packet containing .039 grams of white powder which was analyzed to be 25% heroin. Bailey then examined State’s Exhibit 12 and stated that inside this envelope were three yellow tablets, and they appeared to be Valium tablets. In discussing each of these exhibits, Bailey stated that they had been in his care, custody, and control from the date that he received them until he brought them to court the day of the trial.

Bailey then stated that the envelopes were submitted to Mr. Wayne Burrow of the State Department of Toxicology on October 6, and that Mr. Burrow, in turn, submitted the envelopes to him; that at the time he got the envelopes, they were sealed and bore the initials “P.A.P.” He then reiterated that, from the time he had received them until the time he examined them, the envelopes and the contents were in his possession.

We do not find a missing link in the identification and continuity of possession of the heroin found in appellant’s apartment pursuant to the search warrant. The State’s evidence shows that State’s Exhibit 13 contained a packet of heroin found above the sink in appellant’s kitchen. State’s Exhibit 14 contained a packet of heroin found in the bedroom of appellant’s apartment, and State’s Exhibit 15 contained a packet of heroin and a pill bottle containing a substance resembling hashish.

The foil packet found in Debbie Holt’s possession was put in a separate envelope and was not introduced into evidence at appellant’s trial. A separate charge was pending against her at the time appellant was tried.

State’s Exhibits 13, 14 and 15 each contained various quantities of heroin, being 5.718 grams, .07 grams, and .039 grams, respectively. Each of the State’s exhibits contained various percentages of actual heroin ranging from 1 percent to 25 percent to 31.1 percent. Sergeant Price took the evidence obtained during the search and put the evidence in separate envelopes. He kept these envelopes in his exclusive possession until he delivered them to the magistrate who issued the search warrant to show him the fruits of the search. After showing these items to the magistrate he sealed the envelopes and put his initials on each one. He then locked them in the narcotics locker to which he had the only key. A few days later Sergeant Price removed the envelopes from the locker and personally delivered them to Mr. Wayne Burrow at the State Department of Toxicology. At the time he delivered them to Mr. Burrow the envelopes were still sealed with Sergeant Price’s initials still on them. Mr. Burrow was a Criminalist in the employ of the Department of Toxicology.

Mr. Craig Bailey, the examining Crimi-nalist in the Department of Toxicology, stated that he received the envelopes from Mr. Burrow on October 6, 1976, and the seals had not been broken. Mr. Bailey broke the seals to analyze the contents and then re-sealed each envelope. Mr. Bailey kept the re-sealed envelopes in his exclusive possession until he brought them to appellant’s trial.

In Oury v. State, 53 Ala.App. 240, 298 So.2d 661, this Court held:

“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 ‘State’s Exhibit 1’, 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; Lackey v. State, 41 Ala.App. 46, 123 So.2d 186; Dennison v. State, 259 Ala. 424, 66 So.2d 552.”

Under the undisputed evidence in this case and the above cited authorities we hold there was no missing link in the chain of possession of the heroin seized by the officers in searching appellant’s apartment.

The indictment in this case charged that appellant possessed 0.282 grams of heroin. It is not contended, nor could it be successfully contended, that there was a fatal variance between the amount of heroin possessed by appellant and the amount charged in the indictment. In Owens v. State, 291 Ala. 107, 278 So.2d 693, the Supreme Court held that no fatal variance existed where an indictment alleged possession of 70.84 milligrams of heroin and the proof showed possession of only 49 milligrams.

It is sufficient to prove so much of an indictment as shows that the accused has committed a substantial offense specified therein. Fuller v. State, 39 Ala.App. 219, 96 So.2d 829.

We turn now to the issue of constructive possession. A warrant was obtained for the search of the apartment at 1613-B, 13th Avenue South in Birmingham. Upon arriving at this apartment, knocking on the door and announcing they were police officers and had a search warrant, the officers saw a young girl pull the curtain aside and look at them. At this time the officers heard scurrying and someone running around in the apartment. When it was clear and evident that no one would open the door one of the officers kicked the door open and made a forcible entry. As the officers entered the front door they saw appellant running from one of the bedrooms toward a .45 automatic pistol which was on a chair a few feet from the front door and between the officers and appellant. The officers caught and subdued appellant before he reached the pistol.

One of the other officers entered the apartment from the rear and was immediately confronted by a young girl running toward the rear door with a packet in her hand. When she saw the officer she sat down on the floor and put the packet between her legs. The officer took possession of the packet and carried the girl to the living room and put her on a couch where the other officers had placed appellant, his wife and another male. A subsequent search of the apartment revealed two packets of heroin in open view on the bedside tables in the left bedroom. A third packet of heroin was found in a cabinet above the kitchen sink. In addition to the narcotics found in this apartment the officers discovered several letters and other documents belonging to appellant and specifying his address as being that of the apartment then and there being searched. Included among these letters and documents were a checkbook from Central Bank in the name of appellant and his wife; a temporary driver’s license issued in the name of James Howard Rogers, Jr., with the address “1613 B 13th Ave. S.”; mail from the Jefferson Clinic; a bill from C.I.T. Finance Company; mail from Birmingham Trust National Bank; a tag receipt dated May 27, 1976, and a piece of mail from Central Bank. All of these items were addressed to appellant at 1613-B, 13th Avenue South. Moreover, clothing belonging to appellant was found in the closet during the search and removed by the officers. And, too, appellant was wearing blue jeans and was naked to his waist.

The above established strong circumstantial evidence that appellant occupied this apartment and had physical control over the narcotics, and the intent to exercise dominion, and the external manifestations of intent and control. Knowledge of the presence of the prohibited substance may be established by circumstantial evidence, and guilt does not depend on ownership. The offense of possession of illegal drugs is susceptible of joint commission. Daniels v. State, 49 Ala.App. 654, 275 So.2d 169; Fields v. State, Ala.Cr.App., 333 So.2d 861.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Rider v. State, 56 Ala.App. 137, 319 So.2d 756; McCall v. State, 262 Ala. 414, 79 So.2d 51; Hines v. State, 260 Ala. 668, 72 So.2d 296; Benefield v. State, 286 Ala. 722, 246 So.2d 483.

The evidence was sufficient to sustain the verdict of the jury, and the judgment of the court. The case is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte James Howard ROGERS.
    SC 77-128.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   ALMON, Justice.

WRIT DENIED.

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