author: L. S. MOORE, Retired Circuit Judge.

text:
    David YARBROUGH v. STATE.
    3 Div. 613.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Robert S. Hill, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State.
   L. S. MOORE, Retired Circuit Judge.

The appellant was indicted, tried, and convicted for the offense of robbery. Final judgment was entered by the trial court in accordance with the verdict of the jury. The appellant gave notice of appeal; hence this appeal.

Mary Lois Johnson, a witness for the State, testified in substance, that on January 11, 1976, she was an employee of “Magic Market” on Forest Hill Drive in Montgomery, Alabama. About 10:00 P.M. she was talking on the phone to her sister when two young men, wearing stockings over their faces, came in the store. The one in front had a pistol. He walked up to her and said: “Well, come on, get back in the back.” Johnson said she dropped the phone and did not “hang it up.” She got in the back of the store in a bathroom and the man closed and locked the door. Johnson heard, them “fooling” with the safe and then silence for a time. She stayed in the bathroom for awhile and when she came out she saw a girl with long dark hair and the girl ran. Johnson stated that she got a glimpse of the girl and that all the money in the cash register was gone when she got out of the bathroom. She testified there was one hundred and fifty dollars in the cash register when she came to work and it was all gone. Johnson said they had taken at least one hundred and fifty dollars. She said she could not identify either of the two men because they had stockings over their faces and that she was the only person in the store when the two men came in the store.

Jane Denim, manager of the “Magic Market”, the store involved in the robbery, testified that she checked the cash on hand and when Mary Lois Johnson went to work and again after the robbery. She said that three hundred and sixty-four dollars in cash and checks were taken in the robbery.

Kathy Young testified in substance that she, Calvin Kendricks and Rusty Gurley went to Angie and Ray Thompson’s apartment on Sunday, January 11, 1976 about 9:30 P.M. and that Angie Thompson, David and Margaret Yarbrough were present in the apartment when they arrived. Young stated that she and those with her told David Yarbrough that they planned to rob “this” store. She testified that David said if they did it that way they would get caught, and that Margaret Yarbrough suggested that she (Young) go in the store and run the cash register and wait on customers and they would not get caught. Young stated that David Yarbrough, the appellant, said he would drive for them and let them off at a trailer behind Jones Tire Company, and then he would go around and park in front of the store across the street at the Dairy Queen. She testified that appellant said that when nobody was going in the store, he would blink the car lights. Young said she put on Margaret Yarbrough’s wig and Calvin and Rusty put on makeup, and they left the apartment. She testified that David Yarbrough drove the car and left them out at the back of Jones Tire Company, and went on to park the car at the Dairy Queen. Young said that when appellant blinked the car lights, Calvin and Rusty went in the store and put the employee in the back of the store. She said she then went into the store and waited on customers while the two men took the money and checks, and kept the employee in the back room. Young said that one hundred and twenty dollars was taken and that the employee, Mrs. Lois Johnson, was her aunt. Further, she said that as they left the store, Mrs. Johnson came out of the back of the store and saw her back as they were leaving.

Young further testified that for her involvement in the offense she was sent to Birmingham State Training School for girls.

Tom Coker, a detective with the Montgomery Police Department, testified in substance, that he took a written statement made by appellant on January 29, 1976. Before taking the statement he gave the appellant the “Miranda” warnings from a rights form. Coker testified that after reading the rights form to appellant, he signed the form “T. Coker, 071.” He stated that underneath his signature on the rights form was the following:

“I fully understand the foregoing statement and do willingly agree to answer questions. I understand and know what I am doing. No promise or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.”

Coker testified that appellant signed the statement immediately following the above.

We quote from the record the questions to said witness and his answers thereto:

“Q Right after you advised the Defendant, Mr. Yarbrough, of those rights, did you threaten him in order to get him to make a statement?
“A No, sir.
“Q Did you offer him any inducements in order to get him to make a statement? “A No, sir.
“Q Did you offer him any hope of reward or immunity from prosecution in order to get him to make a statement?
“A No, sir.
“Q All right. After you advised him of his rights, did he make any statement to you?
“A Yes, sir.
“Q Do you have that statement here with you now?
“A Yes, sir.
“MR. HILL: Your Honor, may we approach the Bench?
“THE COURT: Yes, sir.
“(Whereupon, the attorneys approached the Bench and there was a discussion held outside the hearing of the Jury and the Court Reporter.)
“THE COURT: Chief Ruppenthal, show the Jury to the jury room.
“(Whereupon, the Jury was excluded from the Court Room and the following .proceedings occurred outside the presence, of the Jury.)
“MR. HILL: Your Honor, we would object to introduction of a statement at this time based on the fact that the State has not proved a sufficient ease against the Defendant, David Yarbrough, as being involved in the alleged crime and we would object to the admission of any statement.
“THE COURT: Before I rule on that motion, would you like to take the witness on Voir Dire concerning any of his Constitutional rights?
“MR. HILL: Yes, sir, as far as .
“THE COURT: Well, suppose you question him in that regard and then I’ll rule on your motion.
“VOIR DIRE EXAMINATION
“BY MR. HILL:
“Q Mr. Coker, was anyone else present with you in the room at the time?
“A Yes, sir.
“Q Who else was there?
“A Mr. Yarbrough’s wife, Margaret Yarbrough.
“Q Did the statement indicate her — was that the only person, you and David Yarbrough and Margaret Yarbrough?
“A Yes, sir.
“Q Did the statement indicate her being present at any time during any of the discussion before and after the robbery?
“A Yes, sir. She was present during the time of the discussion of the robbery.
“Q Did you not make either statements or very clear inferences to David Yarb-rough that if he did not give you a statement, whatever that statement may be, that his wife would be involved, also?
“A No, sir.
“Q Did anyone make that statement or inferences in your presence, to your knowledge?
“A Not to my knowledge.
“Q Was, in fact, his wife arrested?
“A No, sir, she was not arrested.
“Q And it’s your statement that nobody made any statements, inferences, or anything else to him to encourage or suggest that he make a statement to you?
“A Not to my knowledge.
“MR. HILL: I think that’s all the questions I have, your Honor. We still would object to admission, however, based on the fact that the State has not proven Defendant’s consent.
THE COURT: Motion hereby denied. Are we ready for the Jury to return?
“MR. HILL: Yes, sir.
“THE COURT: Show the Jury back in. “(Whereupon, the Jury was returned to the Court Room and the following proceedings occurred in the presence of the Jury.)”

Coker further testified that the appellant gave him a statement in writing, which was made in the presence of appellant’s wife. He said that appellant and appellant’s wife, Margaret, signed the statement and that Detective Humphrey signed as a witness to Margaret’s signature. The statement was read to the jury by this witness. In the statement the appellant said, among other things: that they all got in the ear and went behind the tire store; that he dropped out Rusty, Calvin and Kathy; that he started toward the house and thought about Rusty with that “damn pistol” and he parked at Forest Hill Shopping Center across the street from “Magic Market” and waited for them to go into the store and “laid down” in the front seat; that he looked up and saw them running out of the store and he went behind the tire store and picked them up and went home; and that he got about eleven dollars out of the money taken in the robbery. The statement was dated January 29, 1976.

When the State rested, appellant moved for a directed verdict based on the failure of the State to prove a sufficient case. That motion was denied by the trial judge.

The appellant did not present any witnesses or evidence and rested.

There were no exceptions to the court’s oral charge to the jury. All written charges requested by appellant were given by the trial judge except the following:

“Defendant Charge 1.
“The Court charges that if you believe the evidence in this case you must find the Defendant not guilty.”

This charge was refused by the trial court.

In the light of the motion for a directed verdict and the refusal of appellant’s requested charge one we have set out the evidence at some length but not completely. We believe we have sufficiently answered all questions presented on this appeal.

We shall consider the appellant’s motion for a directed verdict and appellant’s requested written charge one, which is often referred to in law as the general affirmative charge in favor of a defendant.

Title 14, § 14, Code of Alabama 1940, Recompiled 1958, reads as follows:

“Section 14. The distinction between an accessory before the fact and a principal, between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors.”

The common law did make distinctions between principal in the first degree and principals in the second degree, and between principals and accessories before the fact. The above quoted section of the code of this State abolished those distinctions and in substance and effect, declared all such participants in a felony to be equally guilty.

Under the evidence in the case before us the State proceeded on the theory that the evidence presented the appellant before the jury as what was known to the common law as a principal in the second degree and that the statute quoted makes him equally guilty with the principals in the first degree, the actual ’and personal perpetrators of the offense charged.

In State ex rel. Attorney General v. Talley, Judge, etc., 102 Ala. 25, 15 So. 722, the Supreme Court of Alabama in defining a principal in the second degree, as such was prior to the said statute known to the common law, said:

. . [A] principal in the second is one who is present at the commission of a felony by the hand of the principal in the first degree, and who being thus present aids or abets, or aids and abets the latter therein. The presence which this definition requires need not be actual, physical juxtaposition in respect of the personal perpetrator of the crime. It is enough, so far as presence is concerned, for the principal in the second degree to be in a position to aid the commission of the crime by others. It is enough if he stands guard while the act is being perpetrated by others, to prevent interference with them or to warn them of the approach of danger; and it is immaterial how distant from the scene of the crime his vigil is maintained provided it gives some promise of protection to those engaged in its active commission. At whatever distance he may be, he is present in legal contemplation if he is at the time performing any act in furtherance of the crime, or is in a position to give information to the principal which would be helpful to the end in view, or to prevent others from doing any act, by way of warning the intended victim or otherwise, which would be but an obstacle in the way of the consummation of the crime, or render its accomplishment more difficult.”

In Jones v. State, 174 Ala. 53, 57 So. 31, we find the following exposition of the law with reference to said statute:

“ ‘When by prearrangement, or on the spur of the moment, two or more persons enter upon a common enterprise or adventure, and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting * * the active perpetrator in the commission of the offense is a guilty participant, and, in the eye of the law, is equally guilty with the one who does the act. .
“Aid and abet ‘comprehend all assistance rendered by acts or words of encouragement or supports or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.’
“If there is no prearrangement or precon-cert, mere presence, with the intent to give aid if necessary, is not aiding or abetting ‘unless the principal knew of the presence, with intent to aid, of such person.’ ” [Citations omitted.]

In the case before us the appellant entered into an agreement with those persons who entered the store and committed the overt acts of robbery to aid and assist them in so doing. He drove them to the scene of the offense, let them off and then placed his car where they could see him blink his car lights as a signal that all was clear for them to enter the store. He waited for them to rob the store and he then drove them home and accepted part of the money taken in the robbery. He was a principal in the second degree as that was known to the common law and the statute quoted makes him equally guilty with the actual perpetrators of the offense. There was substantial evidence of his guilt and of every element of the offense. The motion of the appellant for a directed verdict was properly overruled. Sullivan v. State, 48 Ala.App. 347, 264 So.2d 576. It may also be noted that the said motion for a directed verdict did not include a motion to exclude the evidence. It is for that reason, little more than a request for a general charge in favor of the defendant without presenting such a written charge at that time to the trial judge. A jury question had been made out by the evidence at the time of said motion. It was not a question of law to be decided by the trial judge, but a question of fact to be decided by the jury.

The evidence of the appellant’s guilt in this case is substantial and is without dispute and the trial court correctly refused appellant’s charge one, which was a general affirmative charge in favor of the appellant. Smith v. State, 165 Ala. 50, 51 So. 610.

The appellant contends in this case that the officer taking the confession of the appellant made to the defendant a promise of reward or favor to induce the confession. There is no evidence in this case to that effect. The appellant signed a statement that no promise had been made to him. The record clearly reveals that full and complete “Miranda” warnings were given to the appellant before he was questioned. The evidence further shows that appellant was not threatened or offered any inducements or hope of reward or immunity from prosecution in order to get him to make a statement or confession. The officer taking the confession denied making any statement to the appellant that if appellant did not make a statement, his wife would be involved. The evidence clearly and without contradictions shows that the confession and statement were voluntarily made by the appellant.

We have searched the record for error and have found none. It is therefore ordered and adjudged by this court that the final judgment of the trial court be and is affirmed.

The foregoing opinion was prepared by the Honorable L. S. Moore, a retired Circuit Judge, 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.

AFFIRMED.

TYSON, P. J., and HARRIS, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., concurs in result.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Earnest DANIELS v. STATE.
    3 Div. 624.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Donald R. Harrison, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.'
   BOOKOUT, Judge.

Rape; sentence: twenty years imprisonment.

The prosecutrix, with a group of friends, went to a gravel pit in Montgomery on the night of July 25,1971. They were having a “get-together” before one of the group left for Vietnam. They were generally having fun and sliding down the sand dunes in the pit, when two men drove up and approached them with a rifle. The strangers informed the group that the area was surrounded by armed men who would kill anyone who attempted to leave. The strangers began talking about some white men going with their women and that they wanted “revenge or love or both.” One of the strangers left and returned with the appellant.

The prosecutrix testified that the appellant told her that if she did not do what he wanted that, “I’m going to blow your little brains out.” She said the appellant forced her down in the front seat of an automobile, raped her, and at the same time one of appellant’s companions was raping a companion of the prosecutrix in the back seat of the same car. The appellant and his companion then switched girls and raped them, after which the appellant came back and raped the prosecutrix again.

The evidence included a confession by the appellant and positive identifications of the appellant at trial as one of the rapists. The appellant’s two companions took the stand and testified that the appellant was either asleep or passed out in the car when the rapes occurred.

On cross-examination of the State’s witnesses, it was brought out that shortly after the rape the prosecutrix and the other witnesses were gathered at police headquarters. The appellant was lead into the building and at this time, one of the witnesses exclaimed, “There he is.” The appellant objected on the ground that such was an improper “show-up.” Apparently, the appellant is contending that the above procedure produced a likelihood that the appellant was misidentified at trial. Regarding this contention, we make the following two observations:

1. The evidence presented by the State was sufficient to show that the confrontation between the appellant and the witnesses at police headquarters was completely accidental and was not a “show-up.” Owens v. State, 54 Ala.App. 575, 310 So.2d 498, cert. denied 294 Ala. 766, 310 So.2d 501 (1975).

2. There was no likelihood of mis-identification as the appellant’s theory of defense rested on lack of participation in the rape rather than lack of presence at the scene of the rape. His witnesses stated that he was at the scene of the rape but that he was asleep or passed out in the back of the car at the time.

Appellant likewise contends that there was insufficient evidence from which the jury could find the appellant guilty. Our function on appeal is not to determine if the evidence proved appellant’s guilt beyond a reasonable doubt and to a moral certainty. Our function in testing sufficiency of the evidence is to determine if there was legal evidence presented from which the jury could draw an inference of guilt. Morton v. State, Ala.Cr.App., 338 So.2d 423, cert. denied Ala., 338 So.2d 428 (1976). Where legal evidence is presented at trial, from which the jury can by fair inference find the accused guilty, we will not disturb the verdict of the jury, and even the uncorroborated testimony of a prosecu-trix will support a rape prosecution. Williams v. State, Ala.Cr.App., 335 So.2d 249 (1976).

In the instant case, we have more than the testimony of the prosecutrix to support the conviction. Three of her companions witnessed the rape and identified the appellant as the rapist. In addition, a statement of the appellant was read to the jury by a Montgomery detective, after proper predicate was established, wherein the appellant admitted the rape. Suffice it to say, there was overwhelming evidence to support the guilty verdict.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Charlie HARRIS, Jr. v. STATE.
    4 Div. 510.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.

      Larry W. Roney, Phenix City, for appellant.
    William J. Baxley, Atty. Gen. and Richard S. Jaffe, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. He was represented by retained counsel at arraignment and trial. He pleaded not guilty. After sentence was imposed he gave notice of appeal. Upon a proper petition he was determined to be indigent and was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

On the night of May 14, 1976, appellant shot and killed Jimmy Ford, Jr. in a tavern called Old Cloud 9 in Russell County, Ala- ' bama. The wife of the victim, Daisy Ford, was a witness to the killing. According to her testimony she was employed as a waitress at Old Cloud 9 and worked there two nights a week. The place was only opened on Friday and Saturday of each week. She testified that she opened the place at around 7:00 p. m. and appellant was there at that time. She fixed him two hot dogs and sold him a package of cigarettes. Her husband came in shortly thereafter and appellant asked him to play cards. The deceased told appellant that he did not want to play cards but appellant insisted and gave his car keys to the deceased to go home and get a deck of cards. When he returned the deceased and appellant started playing cards for money. Appellant lost sixty dollars and left the place saying he had to go check on his children. Appellant lived three houses from Old Cloud 9. He was gone fifteen or twenty minutes and returned with fifteen dollars and said he wanted to play cards again. He lost his fifteen dollars and left the place again. He was gone twenty or more minutes and returned to the club. At this time the deceased was playing cards with one Robinson. According to Daisy Ford when appellant returned to the club the third time he had his right hand in his pocket and he walked up to the bar and put two quarters and a. dime on the bar and ordered a beer. He started drinking the beer and walked over to the table where the card game was in progress. He sat in a chair at the table and watched the game for a few minutes. Appellant then got up and walked around the table and stood over the deceased at which time he pulled his pistol and shot the deceased twice while he was still sitting in the chair. Daisy Ford further testified that she did not hear any cross words exchanged between her husband and appellant prior to the shooting and that her husband was unarmed at the time appellant shot him. Five photographs of the shooting scene showing the deceased still sitting in a chair at the table were introduced into evidence without objections.

On cross-examination this witness stated that she could see the men playing cards from the edge of the bar where she was standing. She said at no time did she see appellant with a walking cane and that he was three or four feet from the deceased when he shot him. After the shooting she stated she was going to call the police and she heard appellant say he was going to call the so and so’s himself but he did not do so. She further stated that she could see her husband at the time appellant fired the two shots but she did not go near the body of her husband where he was still seated in the chair where he was when appellant fired two shots into his body.

Daisy Ford further testified that she did not see any money on the table while anyone was playing but she did see the cards. She said she did not know what became of the cards when she went to call the police and that when she got back to the club the officers were there. She stated that the next day she went to the coroner’s office to get her husband’s property. The coroner gave her $93.65, her husband’s billfold, Social Security card, and his keys.

Johnny Robinson testified that he was at the Old Cloud 9 Club on the night appellant shot and killed the deceased. That he played cards with the deceased and appellant for a few minutes and that appellant stopped playing and he and the deceased continued to play. He stated that appellant left the club and when he returned he walked up and said something to the deceased about some money and then shot him. He said appellant was approximately two or three feet from the deceased when he shot him. He further testified that he did not hear the deceased say anything to appellant before he was shot or do anything to him, nor did he see a weapon of any kind on the deceased. Robinson stated that nothing was moved after the shooting took place until the police arrived. This witness did not remember whether appellant was using a walking stick or wearing a collar that night. He stated that a man named Allen Davis and another man whom he did not know were in the place at the time of the shooting but he didn’t think they ever sat down.

On cross-examination Robinson stated that appellant fired two or three shots in rapid succession. Prior to the shooting appellant said something to the deceased about some money and he thought appellant said something about three or four dollars. He further stated that after the shooting he removed the cards from the table. Robinson further stated that he saw appellant with a gun before and after the shooting and after the first shot he jumped up from the folding chair he had been sitting in. He stated that he didn’t see the money on the floor until after the police arrived.

On redirect examination Robinson stated that before the shooting nobody prevented appellant from walking out of the door and leaving the place; that he could have walked out of the building without passing near the position where the deceased was sitting in the chair.

Detective Robert Sawyer of the Phenix City Police Department and Detective Lee investigated the shooting at the Old Cloud 9 Club on May 14, 1976. Sawyer testified that when he and Lee entered the place he saw a man sitting in a chair with his head leaning back and blood was coming out of his head where he had apparently been shot. He stated that he went outside to ascertain who did the shooting and saw the wife of the deceased crying. He was told that the man who did the shooting was Charlie Harris and he lived two doors from Old Cloud 9. His car was still parked in front of the club. Sawyer left Detective Lee at the club to secure the place.

Sawyer further testified that he and Deputies Woodard and Johnson went to appellant’s house and he knocked on the door. Someone asked who was there and he replied, “Police.” That appellant opened the door and had a pistol sticking in his right front pocket with the handle sticking out. Sawyer saw appellant reach for the pistol and put his fingers on it and Detective Sawyer grabbed appellant’s hand and told him, “Don’t touch the gun.” Sawyer took the pistol from appellant’s pocket and told him he was under arrest and advised him of his rights. Appellant then stated, “I was expecting you. I shot him.” Sawyer put his initials on the pistol and turned it over to Deputy Sheriff Woodard. He stated that when appellant came to the door he did not have a walking cane and he was not wearing a neck collar such as he was wearing at trial. The pistol was identified and admitted into evidence without objection. He stated that the pistol was in the same condition when he gave it to Deputy Woodard as it was when he took it from appellant’s pocket except for the fact that he unloaded it. He didn’t find any spent cartridges and the pistol was fully loaded. He turned the live rounds over to Deputy Woodard along with the pistol.

On cross-examination he stated that when he entered the club he saw some money on the floor near the left hand of the deceased who was still in the chair, but he did not touch the money as he left to find appellant. He further testified that other than an attempt to pull his pistol, appellant did not resist the arrest. Deputy Johnson went in the house and got appellant’s walking cane, and he was not handcuffed when he was put in the patrol car.

Detective Albert Douglas Lee testified that he took photographs of the scene of the shooting showing the deceased was still sitting in a chair when he and Detective Sawyer entered the club. He stated that he recovered $90.00 that was lying on the floor near the left hand of the deceased. Detective Lee did not see or observe anything in the pockets of the deceased or on or near his body that resembled a gun or a knife. He turned the money over to the County Coroner. He said there were no cards on the table.

Deputy Sheriff Tom Wilson Woodard testified that he and Deputy Johnson got a call to go to Old Cloud 9 Club on May 14, 1976, at approximately 11:00 p. m. That when they got to the scene they found that Johnny Ford had been shot and he and Johnson went to appellant’s house with Detective Sawyer to arrest appellant. He stated that Sawyer turned over to him the pistol that was removed from appellant’s pocket together with two spent cartridges and three live rounds. That he put his initials on the pistol and personally delivered the pistol and the cartridges to Mr. Tellis Hudson at the Toxicology Laboratory in Auburn. He stated that everything he turned over to Mr. Hudson was in the same condition as when received by him from Sawyer.

Mr. Leslie Vance testified that he was the duly elected Coroner of Russell County on May 14,1976. He went to Old Cloud 9 Club that night and pronounced Jimmy Ford, Jr. dead. He made an inventory of the personal effects of the deceased at the scene and removed a wallet and some'change from his clothing. He stated there was no weapon of any kind on the person of the deceased. He said the officers had already gotten the money that was on the floor. He stated that he ordered the body removed to the funeral home where a postmortem examination was performed.

Mr. F. C. Sumbry testified that he operated an ambulance for the Community Ambulance Service and that on the night of May 14, 1976, he was called to go to Old Cloud 9 Club to carry a body to the hospital. That he knew the deceased and he identified him to the County Coroner, and then carried the body to Sumbry Funeral Home. He said the deceased was seated in a chair just as shown in State’s Exhibit No. 2.

Samuel Williams testified that he was employed by Sumbry Funeral Home and was on duty when the body of Jimmy Ford was brought there. He further testified that on the following Monday morning a mortician by the name of Steven Taylor from the Crime Laboratory at Auburn came and picked up the body and carried it to Auburn. He stated the body was in the same condition when it was picked up as it was when he received it at the funeral home.

Mr. Carlos Rabren, a Toxicologist from the Department of Toxicology at Auburn whose qualifications were admitted by the defense, testified that he conducted a postmortem examination on the body identified to him as that of Jimmy Ford. He testified that an external examination revealed three wounds of recent origin to the head.

From the record:
“The examination consisted of an external examination of the body and also an internal examination of the head.
“The external examination revealed three wounds of recent origin to the head, the first being a penetrating wound in the right forehead about one inch above the right eyebrow and just right of the center line coming down through the nose. There were also two wounds noted at the left cheek, the exact position being, the first one, one-half inch below the left eye and one inch left of the midline, and the second wound in the left cheek being one inch inferior and lateral, being below and to the left of the wound I described below the left eye. Those wounds measured in diameter: The one in the right forehead three-sixteenths in diameter; the first one in the cheek three-sixteenths in diameter; and the second one, being left and a little bit inferior, or below, three-eights of an inch in diameter.
“The internal examination consisted of a dissection of the head to examine the brain and also the nature of these wounds. First, the dissection revealed the two wounds in the left cheek were connected by a common hemorrhagic track or path of a bullet. A bullet had passed through the cheek and, in my opinion, in a downward and to the left direction, the one being closest to the eye the entrance wound and the one being away and slightly below the first wound being an exit wound, in my opinion.
* * * * * *
“The dissection of the head revealed a massive intracranial hemorrhage or a lot of blood inside the brain, inside the bone itself, and a hemorrhagic path was traced from the wound in the right forehead through the brain tissue to the left side of the head. That path was from front to rear, slightly downward and toward the left side. A large amount of trauma, or damage, was noted to the brain tissue and a massive hemorrhage or, as I said, a lot of blood was noted in the brain. I also found in the left side of the brain another projectile — or a projectile.
“I found no evidence of recent violence or trauma to the torso or to the limbs and I did not do a dissection of the chest and abdominal area.
“Q. Doctor, assuming that the projectile you referred to was a bullet, that would be consistent with, being shot twice; is that what you are saying?
“A. Yes, sir. I took two projectiles out of the body. This hole over here also had a projectile just beneath it on the left side. The projectile came down and punctured the skin but it was found just beneath the skin. And I also took one out of the left side of his head.
“Q. And did you turn those over to anyone?
“A. Yes, sir, I did. I marked those bullets for identification and turned them over to Mr. Tellis Hudson with our department.
“Q. Now, based on your training and experience and your examination both externally and internally, did you reach an opinion as to the cause of death of this person identified to you as Jimmy Ford, Jr.?
“A. Yes, sir, I did.
“Q. And what was that opinion, please, sir?
“A. In my opinion, death resulted from central nervous system or brain damage and also the intracranial hemorrhage associated with the bullet wound to the head.
“Q. In your opinion he died as a result of a gunshot wound to the head?
“A. Yes, sir, particularly the one that entered the right forehead and penetrated the brain tissue.”

Mr. Tellis Hudson testified that he was employed as a Criminalist with the State Department of Toxicology. His qualifications were admitted.

Through this witness the State introduced into evidence two spent cartridges and two live rounds of .32 caliber cartridges. Mr. Hudson testified that he made a ballistics comparison test using appellant’s gun. He stated that from his training and experience he could say that the gun did in fact strike the cartridges that were turned over to him by Deputy Sheriff Woodard but because of the poor condition of the weapon that he could not conclusively say that this gun fired the slugs that were removed from the body of the deceased by Dr. Rabren and delivered to him.

Allen Davis was picked up by the police, searched and taken to the City Jail and was interrogated about the shooting at the Old Cloud 9 Club. He testified that he had been drinking heavily that night and could not remember even being in the club on the night of the shooting.

The State recalled Detective Sawyer and introduced into evidence a photograph showing that the deceased had a comb handle sticking out of his rear pocket.

The State rested its case at this point and appellant moved to exclude, the evidence on the ground the State failed to make out a prima facie case of murder in the first or second degree and the State failed to show malice. The motion was overruled and denied.

Appellant testified that he lived in the second house from Cloud 9 on the same side which would be a distance of approximately 215 feet from the club. That he went to the club often — just about every weekend. He stated that he arrived at the club on May 14, 1976 around 7:30 p. m. and that Mrs. Ford and a man were there at the time, but he didn’t know his name. That he stayed there until approximately 9 o’clock and then went to check on his children because his wife worked at night. He stated that the Robinson brothers, who owned the club, came in while he was there. That the deceased came in about thirty minutes later. He said he and the deceased had done some gambling about two or three weeks before that night and that he had won the money from him. He stated that the deceased said, “Let’s play some more cards.” The deceased asked his wife to look behind the bar to see if there were any cards there. No cards could be located and appellant gave the deceased the keys to his car to go to the house of the deceased and get a deck of cards. Appellant further testified that the deceased was gone about fifteen or twenty minutes and he went to the bar and was sipping on a beer while waiting for him to return.

According to the appellant when the deceased came back with the cards they started playing blackjack and he lost $23.00 but that was not all the money he had. He said some women got in the game and played for a while. It was at this time that he stopped playing to check on his children. When he returned he started playing again and lost some more money and left to go check on his children the second time. During the progress of the game he noticed that the deceased was dealing from the bottom of the deck and he saw the deceased take $20.00 from the table which belonged to appellant. He said he asked the deceased about his money and got no reply and he got up and went to the bar and ordered another beer. He turned and watched the continuance of the game. He then said to the deceased, “Jim, me and you been too good a friends for us to fall out about two or three dollars. Why don’t you give me my money?” That the deceased said he would give him the money but not right then. Appellant then stated he saw Ford reach in his right front pocket and attempt to pull out a gun which got caught in his pants pocket. Appellant testified he had knowledge that Ford had killed a man in a gambling game in the latter part of 1969. Appellant stated that he saw the pistol the deceased was attempting to pull out of his pocket and that it was chrome with a brown handle. He stated that at this time he had his gun in a back brace that he wore since he got injured several months previously and he burst a couple of buttons off his shirt trying to get his gun before Ford would kill him. He further testified that his back was to the bar and he was about fifteen feet from Ford when he got his pistol out and shot him. He stated he then told someone to call the police and he went to his house where he was later arrested by the police.

Appellant stated that he could not have left the place from the position where he was standing because he had a bad back and he dropped his walking cane.

On cross-examination appellant admitted that no one kept him from leaving the club before he shot Ford. He further stated that Mr. Robinson was standing between him and Ford just prior to the shooting but he insisted that he could see Ford’s hand although he had to look over Robinson’s head to see Ford. He admitted that he was convicted in 1965 for assault with intent to kill and served three years in the penitentiary.-

The wife of the deceased was called by the defense and she stated that at the time of the shooting her husband did not have a pistol on his person. That the only gun he had was a .12 gauge shotgun and it was at their home.

On. cross-examination she testified that to her knowledge her husband had not carried a gun for the last five years.

Mary Frank Alexander testified for the defense and she stated that within the year before May 14, 1976, she had seen the deceased with a pistol and that it was chrome with a brown handle. She said the deceased stated that he carried his gun seven days a week. She considered him to be a “mean young man.”

Defense witness Brenda Brooks stated that she knew the deceased and had known him for several years and that he had a “nasty attitude.”

Neither of these two last witnesses testified that they knew the reputation of the deceased for violence.

The evidence in this case was conflicting on some material issues. Reconciliation of conflicting testimony is a jury function and a verdict rendered thereon will not be disturbed on appeal. Pugh v. State, 51 Ala.App. 164, 283 So.2d 616; Tolliver v. State, 50 Ala.App. 654, 282 So.2d 92; Jemison v. State, 56 Ala.App. 6, 318 So.2d 746.

Appellant claims the trial court committed reversible error in allowing the State to prove that appellant had previously been convicted of assault with intent to murder on the ground that it was highly prejudicial to his case. We disagree. Assault with intent to murder is a crime involving moral turpitude and is admissible as affecting his credibility as a witness. Ro-den v. State, 5 Ala.App. 247, 59 So. 751; Title 7, Section 434, Code of Alabama 1940.

Other than the testimony of appellant, all the evidence presented by the State showed that the deceased was unarmed and was sitting in a chair at the time appellant pumped two bullets into his head and face. The witnesses at the scene of the homicide all testified that the deceased did not get out of the chair in which he was sitting at the card table at the time appellant stood over him and shot him twice.

When the officers arrested appellant and gave him the Miranda rights and warnings, and before asking him a single question, appellant said, “I was expecting you. I shot him.” This was a “spontaneous exclamation” and admissible evidence. It is to be- noted that appellant did not then and there claim he shot the deceased in self-defense.

The trial court fully charged the jury on the law of self-defense and gave the jury all of appellant’s written requested charges. Appellant received a fair and impartial trial and that is all he was entitled to under the law.

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: TYSON, Presiding Judge.

text:
    Charles Allen DORSEY, alias v. STATE.
    5 Div. 360.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    James L. Lester for Baker, Lester & Wilkes, Opelika, for appellant.
    William J. Baxley, Atty. Gen. and Jock M. Smith, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The appellant was charged in a two-count indictment by the grand jury of burglary and grand larceny of one Zenith stereo, one Zenith television, and some radios, of over $200.00 in value, the personal property of C. M. Mitchell and Melvin R. Kerby. The jury found the appellant “guilty of grand larceny, as charged,” and the trial court entered judgment which fixed punishment at ten years imprisonment.

Grady Mitchell testified that on July 15, 1975, he was employed at Mitchell’s T. V. Sales and Service in Opelika, Alabama. He stated that he walked into the stockroom about 2:30 that afternoon and saw a man with two boxes containing radios walking out of the back door. He positively identified the appellant as being the man who had the two boxes in his hands. From the record:

“Q. Now, what was he doing?
“A. He had two boxes, which had radios in them, in his hands, and he was going toward a door, the back door. And the boxes hadn’t been opened yet. And I yelled at him and asked him what he was doing when I walked through the door. And he said that he needed some empty boxes to move or — he was moving, or to put clothes in, or something. And I told him that they weren’t empty. And so he put them back and walked out. And he asked me where some empty boxes might be, and I told him that they would be behind the building near the trash can. And so he walked around the corner of the building, or just walked away from the door. And there was a maroon Chevrolet sitting in our alley, back. And—
“Q. Was there anybody in the Chevrolet?
“A. It was two black men in the Chevrolet. And the trunk was cracked a few inches, and I looked in the trunk, and I noticed two boxes that were colored and had Zenith insignia on them like I was accustomed to seeing.
“Q. What did you do then?
“A. I opened the trunk and I told the driver, I said, ‘These boxes aren’t empty either.’ And I took them out and put them back in our stockroom.
“Q. And what did the driver of the car do then?
“A. He mumbled, but I didn’t hear what he said.
“Q. Did he just stay there?
“A. He just sat in the car.
“Q. All right. How long did he — Then what happened?
“A. I sent my brother back to get a piece of paper to write down the tag number.
“Q. All right. What happened to the ear?
“A. They drove off in just a few minutes.”

Mr. Mitchell further stated that his brother came running and wrote down the tag number of the automobile as the men were driving away, that Mr. Kerby threw the burglar alarm system, and that he, his father and brother got into a company truck and began following the automobile. He stated that they lost the automobile in traffic, but that later they observed the appellant walking at the corner of Eighth Street and First Avenue, South, in Opelika. He stated that after recognizing the appellant as the man who was carrying the boxes containing radios out the back door of the store, he got out of the truck and flagged a policeman on a motorcycle who arrested the appellant.

On cross-examination Mr. Mitchell stated that there were two boxes in the trunk of the automobile, that these boxes contained a Zenith television and a Zenith stereo set. He stated that the radios were each valued at over $45.00 and the television and the stereo set valued at over $100.00 each.

Jeff Mitchell testified that on July 15, 1975, he was working at Mitchell’s T. V. Sales and Service, that he walked back to the stockroom, and as he did so he saw the appellant going out the back door. He stated that his brother, Grady, called to the appellant and asked him where he was going with the boxes, and the appellant stuttered and said he was “looking for some empty boxes. He stated that he and Grady went outside and noticed in the trunk of the car two boxes, one which contained a Zenith television and the other a Zenith stereo set. He stated that his brother told the appellant, “Those boxes are not empty,” and the appellant and his companion drove off hurriedly. He stated that he wrote down the tag number of the car. He stated that he, his father and brother then got into a truck and attempted to follow the appellant in his automobile. He stated later on Eighth Street in Opelika, near the office of Alabama Office Supply, he observed the appellant walking down the street, and that he identified him to a motorcycle police officer who arrested him.

Claud M. Mitchell testified that he was a partner of Mitchell’s T. V. Sales and Service on July 15, 1975. He testified that on this date two Zenith radios of over the value of $45.00 each, one Zenith television, and one stereo set, each worth over $100.00 were taken from his store. He stated that he was working in the front of the building and was told to get off the phone so that the police could be notified and that he did so. He stated that he went to the back of the store and got in a truck with his two sons, that they attempted to follow an automobile, that they lost it in the traffic, but later his sons identified the appellant walking down Eighth Street in Opelika. He stated that they stopped a motorcycle officer and had the appellant arrested.

Grady Mitchell was then recalled and testified that he identified the two radios in the two boxes to his father as being the ones which the appellant carried out of the store.

Henry Meadows testified that he was working in the Traffic Division of the Ope-lika Police Department on July 15, 1975. He stated that he saw the appellant, Charles Allen Dorsey, walking down Eighth Street near the Alabama Office Supply Company. He stated that Grady Mitchell positively identified the appellant as being the man who had taken some property from his company, and that he placed the appellant under arrest.

Claud M. Mitchell was recalled to the stand and testified that his company was now known as Mitchell’s Inc., but at the time of the incident on July 15, 1975, the business was being operated as a partnership of which he owned one-half and Mr. Melvin R. Kerby owned the other one-half. He stated that most of their merchandise was shipped to them on consignment, but that his company paid for these items within ninety days of receipt. He testified that the partnership owned the radios, stereo set, and the television in the name of “Mitchell’s T. V. Sales and Service” on July 15, 1975.

Robert F. Lumpkin testified that he assisted in the investigation of a larceny and burglary on July 15,1975 at Mitchell’s T. V. Sales and Service. He stated that after giving the appellant a Miranda warning about 2:52 in the afternoon at police headquarters, the appellant then signed a waiver of his rights. He further stated that without any threat, intimidation, coercion, or inducement, the appellant stated to him that he had two years of college, that he knew how to read and write, and that he fully understood his constitutional rights. He stated that the appellant told him that he was riding with Henry Lee Mitchell and Eric Rogers en route to Fort Benning from Birmingham and they were riding in Rogers’ car. He stated that the appellant told him they had driven the car into the alley behind Mitchell’s T. V. Sales and Service Company, and had bought some gas. He stated that the appellant identified Eric Melvin Rogers and Henry Lee Mitchell as being the two men in the automobile in which the television and stero set had been placed.

The appellant made a motion to exclude on the basis that the State failed to prove a prima facie case as to each count of the indictment, and the trial court granted his motion as to the burglary count, but denied the motion as to the larceny count.

The record discloses that the appellant, outside the presence of the jury, was asked by the court if he had been advised of his constitutional right of self-incrimination, and the appellant stated after talking with his attorney that he did not want to take the stand. The appellant presented no evidence at trial.

I

Appellant contends that his motion to exclude as to the larceny count should have been granted because the indictment alleged the stolen merchandise was personal property of C. M. Mitchell and Melvin R. Kerby when the proof showed the stolen merchandise was owned by the partnership doing business as Mitchell’s T. V. Sales and Service.

During the redirect examination of Mr. C. M. Mitchell, the following occurred:

“Q. And at that time you and Mr. Kerby had title to merchandise?
“THE COURT: That was a partnership at that time, Mr. Mitchell?
■“THE WITNESS: Yes, sir.
“THE COURT: Between you and Mr.' Kerby?
“THE WITNESS: Yes, sir.
“THE COURT: Melvin R. Kerby?
“THE WITNESS: Yes, sir.
“MR. INGRUM: We don’t have any further questions of Mr.—
“THE COURT: Still a partnership?
“THE WITNESS: Yes, sir.”

In Viberg v. State, 138 Ala. 100, 35 So. 53, Mr. Justice Tyson stated:

“The evidence showed that the money stolen was proceeds of cattle which Thomas, in whom the ownership of the money is alleged, had been intrusted to sell for his father. This constituted him a bailee of the money, and the ownership of it was properly laid in him. Fowler v. State, 100 Ala. 96, 14 So. 860.”

Similarly in Gandy v. State, 35 Ala.App. 299, 46 So.2d 247, Judge Carr, speaking for the Court, observed:

“Appellant made a motion to exclude the evidence on the ground that the ownership of the property is laid as indicated above and according to the proof the partnership was not the owner but was only in possession of the flight jacket. There is no merit in this position. In a larceny prosecution the ownership of the alleged stolen property is properly laid in the person who is in the rightful possession thereof at the time of the theft. . ” [Cases cited therein]

Clearly, there was no variance between the allegations and the proof in the case at bar.

II

The appellant excepted to the oral charge of the court on the basis that the trial court in its charge indicated that larceny was an offense against possession.

Clearly, this is a correct statement of the law. Williams v. State, 5 Ala.App. 112, 59 So. 528; Gandy v. State, supra.

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

AFFIRMED.

All the Judges concur.


text:
    Thomas Roland McCAY v. STATE.
    6 Div. 373.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.

      William Conway, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of burglary in the second degree and the Court sentenced him to ten years imprisonment in the penitentiary. He was represented throughout the trial proceedings by retained counsel. At arraignment he waived the reading of the indictment and pleaded not guilty. After sentence was imposed he gave notice of appeal and his bond was fixed at fifteen thousand dollars. He is free on bond pending this appeal.

There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; and no exceptions were reserved to the oral charge of the court. After appellant’s conviction he employed new counsel to represent him and a motion for a new trial was filed. This motion raised the sufficiency of the evidence to convict appellant but no evidence was offered at the hearing and after argument the motion was overruled.

The State’s case was based entirely on circumstantial evidence. Appellant did not testify in his behalf.

The evidence adduced by the State tended to show that on the afternoon of June 21, 1976, the home of Captain Carl Vincent Garrett located in Blount County, Alabama, was broken into and seven guns, rifles and pistols - were stolen. The value of these weapons was fixed by the owner at $650.00. Also several pocketknives and three sets of knucks were taken at the same time. Captain Garrett was employed by the Birmingham Police Department. He and his wife were in Florida on vacation at the time of the burglary. Their daughter and small baby lived with them but were not at the house when the burglary occurred. She had a paper delivery route that afternoon.

The daughter, Carla Jean Garrett, testified that she knew appellant and saw him on June 21, 1976, about 12:30 p. m. driving on Highway 79, in a dark blue Mustang automobile. She stated that she and appellant were going in opposite directions and appellant waved at her. She was driving in the direction of Birmingham and appellant was driving in the direction of Locust Fort which was in the vicinity of her parents’ home. She further testified that she did not return home until around 4:30 o’clock that afternoon and she discovered that the front door to her parents’ trailer home had been broken in; that the locks were off. The metal around the lock was messed up and the wood casing near the lock appeared to have been damaged in forcing the door open; the door was partly open and she entered the trailer and found most of the rooms, closets and drawers open and things scattered all over the floor. She noticed that several guns were missing from two gun racks in the house. Her father’s personal papers and files were also scattered on the floor. She immediately called the Sheriff’s Department and reported the burglary.

Kenneth Tawbush testified that he lived about two miles south of Locust Fort on a dirt road off Highway 79 and about 300 to 400 feet from Captain Garrett’s trailer home. He further testified that around 12:30 p. m. on June 21, 1976, he saw appellant driving by his house in a dark colored small car and waved at him. That appellant continued on toward the driveway of the Garrett home. He said that about thirty minutes later he saw appellant and another man come out of the Garrett driveway on foot and each man was carrying long guns in his arms; that the men were walking in a westerly direction. He did not see the automobile appellant was driving leave the Garrett place as he had to leave with his wife to go get groceries. He stated that in addition to the guns appellant was also carrying a sack or bag.

Tawbush further testified that a few months before the burglary of the Garrett home one Danny McCay was employed by him to help dig some field lines and that appellant came to where they were working and had a conversation with Danny McCay in his presence. He stated that Danny and appellant were related but he did not know the exact relationship. He said on this occasion appellant told Danny McCay that the Garrett house was a good place to hit, or would be an easy place to hit.

Hoyt Ronny Barnett, an officer with the Birmingham Police Department, testified that his patrol hours were from 1:00 p. m. until 11:00 p. m. and that he was on duty on June 23, 1976; that another officer asked him to examine and check out a blue Mustang automobile which was parked on the side of a public street in Birmingham. Officer Barnett found the blue Mustang parked where the other officer told him it would be. The windows to the car were down and the car was not locked and he saw some knives, knucks and a screwdriver between the bucket seats in plain view. The officer picked up the knives and knucks and wrote a note which he left in the car to notify the owner that he could come to the precinct station and pick up his property. A short time later appellant appeared at the precinct station and informed Officer Barnett that he was the owner of the blue Mustang and was there to pick up his property. Appellant told the officer the knives belonged to him but that he had never seen the knucks before in his whole life. The officer gave appellant the knives and he drove off in the Mustang.

Officer Barnett kept the knucks in his exclusive possession after putting his initials on them with an electric scriber until he turned them over to Aubrey H. Glas-scock, Deputy Sheriff of Blount County. At trial Officer Barnett identified his initials on the knucks. Captain Garrett identified the knucks as belonging to him and that they were one of the three sets of knucks he left in his home on June 21, 1976 when he left for a vacation in Florida. Captain Garrett was positive in his identification of the knucks by saying that “one of the posts on the knucks was broken” and that was the only one of the three sets that had a broken post.

Deputy Aubrey H. Glasscock of Blount County testified that he received a complaint that the Garrett house near Locust Fort had been burglarized on June 21,1976, and he went to this house that afternoon to conduct an investigation and he talked to Carla Garrett. He found the front door had been pried open and there were score or scratched marks on the striker plate. He stated the rooms in the house were ransacked and that clothes, papers and files were scattered all over the house. He found the gun racks empty. He talked to Captain Garrett by telephone the next night and got a better description of the missing guns and other items of personal property. He stated that Officer Barnett gave him the knucks the night following Barnett’s report of the Mustang automobile in Birmingham and he placed the knucks in his locked evidence locker. Glasscock further testified that he started looking for appellant in connection with this burglary and drove to his home on July 30, 1976. When he got to appellant’s home appellant was just driving in his driveway in a 1970 blue Mustang car. He arrested appellant for second degree burglary and gave him the Miranda rights and warnings. He transported him to jail and had another officer follow in appellant’s automobile. Glasscock saw a screwdriver with a chipped place on it lying in plain view between the bucket seats. He told appellant he wanted to take the screwdriver and appellant told him it was all right with him; that he could take it and keep it. After taking appellant to jail he again gave him the Miranda rights and warnings and appellant stated he understood his rights but he did not care to make a statement.

At the request of Captain Garrett and Deputy Glasscock Sergeant David Higgins of the Birmingham Police Department removed the striker plate from the door of Garrett’s home in the presence of Glasscock. He also got the screwdriver from Glasscock. He was requested to conduct a scientific examination of the striker plate and the chipped screwdriver to determine if this particular screwdriver was used to remove the striker plate.

Captain Garrett was recalled and he identified the striker plate and stated it was not scratched, scored and bent when he left home on Juné 21, 1976.

Sergeant Glasscock was recalled and testified that the striker plate was scored and bent when Sergeant Higgins removed it from the Garrett home in his presence.

The State qualified Sergeant Higgins as to his education, experience and background and his qualifications as an expert are most impressive. He testified as follows:

“A. The bulk of my training has been in the area of physical evidence and scientific investigations. The schools that I have attended while I have been a member of the Birmingham Police Department have been the Southern Police Institute, long-term three months school in Louisville, Kentucky, the University of Louisville, the FBI National Academy in Virginia. In addition, I have specialized training in finger-prints with the Federal Bureau of Investigation and in Washington D.C., various aspects on the forms or criminal investigations, a two-week seminar in Louisville, Kentucky. I also have been to the Southern Police Institute again. I have been to identicate (sic) schools, explosive ordinance, various target seminars, and I have taught in colleges and universities in Birmingham in the area of physical evidence. And in addition, I have taken college courses, in particular, chemistry courses, mathematics, physics and others that relate to the analysis of physical evidence. During my period I have. also trained under people such as Mr. Robert Johnson, formerly of the State Department of Toxicology and Criminal Investigations, who has been accepted in giving testimony in courts throughout the northern portion of the state. Also, I have worked with Mr. Lawden Yates, who is currently with the Department of Toxicology and in this particular area of examinations of tool marks and firearms which are related. I have today documented a hundred and fifty cases that I have independently examined.
* * * * * *
“No, sir, not metallurgy. The science or comparison or what is commonly known as the ballistics. Ballistics is nothing more than a special case of tool marks. Tool marks is what pertains to this case. It is the physical matching of impressions transferred from surface to another surface. An example would be the striking of a metallic plate by a hammer, the passing of a projectile through the barrel of a gun, or a prizing action or a pinch action of a crowbar or screwdriver or similar device enforcing a metal or whatever away from another object, or in the case of cutters, wirecutters. It is possible in each of these instances that the two acting upon the other surface involved will leave a distinctive mark, and these marks are what I identify.
sfc # sfc #
“In an attempt to duplicate the action, I studied the marks on the doorjamb and in the laboratory I took the screwdriver and looked at the striker plate under the microscope, and I took a piece of lead or softer material, softer than the screwdriver, and a little bit softer than the striker plate material, but somewhat the same, I held the piece of lead in a position, and I tried.-to on two separate occasions to duplicate the angle and the action that appeared to have occurred with this particular striker plate, or could have occurred with this particular striker plate if this were in fact the tool. I made test marks and then completed the test marks. This piece of material or lead was placed under one side of a comparison microscope while this was placed on the other side. Now, a'comparison microscope is a device that allows you to use two fields at once and is split in the middle. For example, if we were going to look at our fingers under the microscope, we would line both of them up like this. (Indicating.) The line would cut one finger here and pick up the other finger here so it can run things up right side-by-side. And this thing was scratched, and when this happened, it left some characteristic marks. In this case, I found that this tool did in fact leave some characteristic marks. So, on duplicating the approximate angle I believed the tool was used at, I transferred it to this piece of lead. And physically comparing the little marks or striations, which are not unlike the marks that you see in margarine if you cut margarine with a serrated table knife, it will leave marks there because the knife is hard and the margarine is soft. The same thing is true here, this is hard and this is soft.
“On making the marks and comparisons, I found an area that matched the marks or striations that were left in the striker plate. And it is my opinion that this tool which made the known marks where I have marked K2 in my laboratory is the same tool, in fact, that made the mark on the back of that striker plate.”

He summed up his testimony by rendering an opinion that based upon the scientific study and examination of the striker plate and the screwdriver that the score marks on the striker plate were made by the particular screwdriver that was found in appellant’s car.

The knucks, screwdriver, and striker plate were admitted into evidence over appellant’s objections.

Rosco McCay testified that he drank often with Kenneth Tawbush and that on one occasion Kenneth told him that for a price he could get appellant off, but on cross-examination he stated this was just drinking talk and that Kenneth didn’t actually make him a proposition.

Roland McCay, appellant’s father, testified that the screwdriver in question belonged to him and that he brought it home about a week after the burglary. On cross-examination he testified that he didn’t know that a burglary had been committed until his son was arrested on July 30, 1976. He admitted that appellant owned a 1970 blue Mustang automobile.

As we have said the State was compelled to rely on circumstantial evidence to convict appellant. Circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided it points to the guilt of the accused. In cases where the State relies on circumstantial evidence for a conviction, very wide latitude is allowed in making proof. Cline v. State, 25 Ala.App. 433, 148 So. 172; Willis v. State, 37 Ala.App. 185, 66 So.2d 753; Sumeral v. State, 39 Ala.App. 638, 106 So.2d 270.

The web of circumstances which enshrouds appellant includes the following: (1) He was seen driving a blue Mustang car toward the driveway of the trailer house that was broken into on the afternoon of June 21, 1976. (2) Thirty minutes later he was seen with an armful of guns walking away from the place of the burglary. (3) A pair of knucks identified as belonging to the owner of the burglarized house was found in his automobile in plain view. (4) A screwdriver was removed from his car with his permission which turned out to be the instrument used to force entry into the house. (5) This screwdriver, according to an expert’s opinion, made the scored marks on the striker plate that was on the trailer house door where the burglary occurred. (6) Appellant’s own father said his son owned a blue Mustang automobile. (7) At the time he was arrested he drove into his driveway in a 1970 blue Mustang.

Where there is a reasonable inference to prove the existence of the corpus delicti, the Court should submit to the jury for its consideration the question of the sufficiency and weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Creel v. State, 53 Ala.App. 504, 301 So.2d 267.

In reviewing the refusal of a motion for a new trial this Court will indulge every presumption in favor of the correctness of the ruling of the trial court as the decision thereon rests largely within the discretion of the trial judge. Clark v. State, 54 Ala. App. 217, 307 So.2d 28; Espey v. State, 270 Ala. 669, 120 So.2d 904; Nichols v. State, 267 Ala. 217, 100 So.2d 750.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Jasper HOLT v. STATE.
    8 Div. 903.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Dwight Duke, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen. and Jock M. Smith, Asst. Atty. Gen., for the State, appellee.
   TYSON, Presiding Judge.

Jasper Holt and his wife, Geraldine, were indicted for the grand larceny of $80.00 in coins, the personal property of Phillip Davis. The jury found the appellant guilty as charged, and judgment fixed punishment at three years imprisonment.

Mrs. Forrestine Rorex testified that she was a lifetime resident of Stevenson, Alabama, and on Friday, April 14, 1972, she had gone to the Ideal Beauty Shop on Main Street in Stevenson. She stated that about 2:30 that afternoon she observed Mr. and Mrs. Holt pull up in front of the beauty shop and then circle around the block. She noted that they were talking with each other in the car and pointing toward her sister’s home. Mrs. Rorex said she was seated in the front dryer in the beauty shop which faces the front door, and that she had a clear view of Mr. and Mrs. Holt. She saw Geraldine Holt get out of the car and walk across Mountain Street to the side of her sister’s home. Mrs. Rorex stated that she then got up out of the chair, went out the front door, and around the corner to watch them. She saw Mrs. Holt go straight to the Davis home. At this point Mrs. Rorex went back inside the beauty shop and stood just inside the door where she could observe Mrs. Holt. She stated that the appellant was seated in the automobile looking about, and that she then saw Mrs. Holt come back by the beauty shop carrying a brown paper bag under her arm and that she ran toward the car. As Mrs. Holt got in, Mr. Holt hurriedly turned around and drove off. She stated that Mrs. Holt “was not out of her sight for more than about a minute.”

On cross-examination Mrs. Rorex stated that the Holts were driving a 1963 or 1964 maroon Chevrolet. She stated that the beauty shop was just a short distance from the home of Mr. Phillip Davis where she saw Mrs. Holt go. She further stated that the brown bag which Mrs. Holt was carrying “was about the size of a lunch sack.”

Mrs. Faye Meeker testified that she lived at Route 1, Stevenson, Alabama on April 14-15, 1972. She stated that Mr. and Mrs. Jasper Holt lived in an apartment next to her. She stated that she was renting her apartment from one Mrs. Jimmy Meeker, a first cousin of her husband. She stated that she was in her back yard on Saturday, April 15, when she observed the appellant, Jasper Holt, walk out the back door of his apartment with a “blue and white plastic piggy bank in the shape of a pig.” She stated that she watched him as he took the piggy bank and walked across the back yard toward a minnow tank where he kept minnows. She stated that this tank was a concrete block structure and had some boards to cover it. She stated that she saw him return to the apartment and that he did not have anything in his hand. She stated she talked with her husband later that afternoon about this. She stated that she had no interest in the outcome of the matter and was not related to any of the parties involved.

On cross-examination, she said the minnow tank had some old lumber on top of it and was “sort of used for storage.” She also stated that she had a very similar plastic piggy bank, and that she had gone inside to see if hers was still in her home, and that it was.

Phillip Davis testified that he lived at 102 Hamilton Street in Stevenson, Alabama, on April 14, 1972. He stated that he had signed a warrant on Saturday, April 15, 1972, charging the appellant, Jasper Holt, with grand larceny. He stated that on Friday, April 14, his sister-in-law had telephoned his wife, and that he went home and found that a blue and white plastic piggy bank that belonged to him and had $80.00 in coins in it was missing. He stated that on Saturday, April 15, he and his wife, Imogene, accompanied by Billy Glenn Odon and Sue Odon, drove over to the home of Jasper Holt. He related the following:

“Q. Go ahead, Mr. Davis.
“A. I told Jasper that I had witnesses seeing Jasper’s wife taking the money, the bank; I told Jasper, I said, ‘If you will bring the bank back,’ I told Jasper that I wanted the bank back is what I told Jasper. And he told me, Jasper asked me, he says, ‘How much money do you think is in the bank?’ And I told him, I said, ‘There is about $80.00 in the bank.’ And he told me he would come talk to me.
“Q. Did he ever come talk to you about it?
“A. No, sir.
“Q. Was that all that was said on that occasion?
“A. Yes, sir.
“Q. The next day was a Saturday?
“A. The next day was Saturday.
“Q. You didn’t have your bank or money back on that occasion?
“A. No, sir.
“Q. Did you go over to where Jasper Holt lived sometime on Saturday?
“A. Saturday afternoon.
“Q. And what, if anything, did you do over there on that occasion?
“A. Freeman Meeker called me.
“Q. You can’t testify about Freeman Meeker or what he told you. You tell what Jasper and you said.
“A. I went over and found the piggy bank.
“Q. Where did you find it?
“A. In a concrete block thing with water in it.
“Q. Did you find any of your money? “A. No. sir.
“Q. And that was your personal property?
“A. Yes, sir.
“Q. All of that took place in Stevenson, Jackson County?
“A. Yes, sir.
“Q. Did you see Jasper Holt on that occasion on the Saturday you went over there?
“A. No, sir.
“Q. Where did you find, exactly where did you find the piggy bank over at Jasper’s?
“A. I found it on the side of the building, in this concrete thing; and it was under some boards.
“Q. Under some boards?
“A. Yes.
“Q. And this piggy bank you found, could you identify it as having been yours?
“A. Yes, sir.
“Q. It was yours?
“A. Yes, sir.”

Jasper Holt testified that he was twenty-three years of age and had lived for about four years in Jackson County out Alabama Highway 117, which runs from Stevenson to Flat Rock, across the river, and on across Sand Mountain. He testified he lived there in April, 1972, and that he knew Mr. Phillip Davis as his brother had worked with him. He stated that his home was about five miles from downtown Stevenson. He stated that in April, 1972, he owned a red 1961 Mercury automobile, and that he did not own a Chevrolet at that time. He admitted that on Friday, April 14, he and his wife had driven into downtown Stevenson and had been near the beauty parlor, but that he did not know Mrs. Rorex personally. He stated that later his wife had gone to Stevenson and taken his sister-in-law to the post office. He stated that he and his brother, Vinson Leon Holt, had gone fishing that afternoon. He said that his brother had been staying with them, but that he now lived in St. Charles, Illinois. He stated that at his home was an old minnow pit that was built from concrete blocks and had a shed type roof on it in the back yard. He denied having a piggy bank. He stated that when Mr. Davis came over with two or three people on Saturday, April 15, he told Mr. Davis that he did not know anything about the piggy bank, and “if that is the way you feel, go ahead and take out a warrant.” He stated that he did not take the $80.00, nor did he offer to pay him back the $80.00. On cross-examination Mr. Holt admitted that he left the Stevenson area soon after this and moved to the Chattanooga area where he worked for three or four months before going to Georgia where he worked picking fruit. He stated that he later moved to Michigan where he lived nine or ten months near Traverse City and worked picking cherries, apples, and other fruit. He stated that he then moved to Florida and worked in the orange groves at Welaka, which is about sixty miles from Tampa. He stated that following his arrest he made bond, but that he did not know when the case had been set and was not aware that a forfeiture on the bond had taken place. He stated that no one got in touch with him, though he heard that George Adams had tried to get in touch with him. He admitted that he was arrested in Florida and brought back on an extradition warrant. He further stated that his sister had been dating Mrs. Davis’ brother and had been to his home. He denied driving his wife near the beauty parlor in Stevenson, but said that his brother had a 1963 maroon Chevrolet.

Philip Davis was called in rebuttal and he testified that he went to the place where Jasper Holt was living on Saturday, April 15,1972, and found the missing piggy bank. He also stated that the appellant’s sister had been dating Mrs. Davis’ brother about this time and that they had been at his home. He stated that Mrs. Davis’ brother was Jerry Allison, and that he was dating Shirley Holt. He stated that he had told the appellant, Jasper Holt, he wanted the $80.00 back, but that he had never told him that he would drop the charges.

I

The appellant contends that where, as here, the State brought out evidence of flight, he had the right to introduce evidence to explain this issue, and cites us to Mitchell v. State, 53 Ala.App. 625, 303 So.2d 123, cert. denied 293 Ala. 767, 303 So.2d 126, and authorities therein.

Appellant contends that he was prevented from explaining this during the following colloquy which occurred in the redirect examination of the appellant:

“Q. Mr. Holt, your brother that you testified about was living with you at the time this happened, did he have an automobile?
“A. Yes, sir.
“Q. Do you know what kind of car he had?
“A. Yes, sir.
“Q. What kind was it?
“A. A maroon ’63 Chevrolet.
“Q. Now, have you got any notice or any order to appear in court any time from the time you made bond until you were extradited within the past few days?
“A. No, sir.
“Q. Had you been informed that the charges had been dropped or something happened to them?
“MR. ARMSTRONG: I object to that. “THE COURT: Sustained.
“CONTINUATION BY MR. CAMPBELL:
“Q. Do you know, and I believe you said your wife appeared in court, has she ever been tried on this charge, Mr. Holt?
“A. No, sir.
“Q. And where did you say she lived the biggest part of the time since this happened; has she been with you or where has she been?
“A. With me except for a few months.
“Q. You and she were arrested on this charge; where did you live for the next several months after the arrest?
“A. When we were charged with this crime?
“Q. Yes.
“A. 117.
“Q. The same place at Stevenson?
“A. Yes, sir.
“Q. Do you know approximately how long she lived there after you and she were arrested on this charge?
“A. No, sir.
“Q. And I believe the District Attorney asked you if a bondsman ever found you. Did you know anything about the forfeiture and the case being set?
“A. No, sir.
“Q. Had you got a notice from anyone else?
“A. No, sir.
“Q. Were you trying to avoid prosecution or the law during this period of time?
“A. No, sir.”

As may be seen in examining the above colloquy, the appellant on cross-examination had explained his moving to Chattanooga and working in that area, and also in Georgia before going to Michigan, then to Florida to pick fruit. He had also stated that none of his relatives near Stevenson had advised him of his bond forfeiture or that he was wanted on a fugitive warrant. He also explained that he had been extradited from Florida and brought back for trial.

We are not persuaded under the circumstances as shown in this record that the appellant was precluded from giving evidence to explain his whereabouts during the approximately three and one-half years interval between his arrest and the trial, which was held on September 21, 1976. Moreover, the answer called for by the question on redirect clearly calls for hearsay testimony, therefore, the trial court’s sustaining of the State’s objection is proper. Coleman v. State, 37 Ala.App. 406, 69 So.2d 481.

The trial court here allowed the appellant considerable latitude to explain his whereabouts during the time interval involved, and we are not persuaded that reversible error is here shown. Jones v. State, 52 Ala.App. 184, 290 So.2d 251.

II

The appellant excepted to the trial court’s refusal to charge the jury on petty larceny.

The only evidence of value was Mr. Davis’ testimony that about $80.00 in coins were taken. Where, as here, there is no evidence tending to prove the commission of the lower offense, a failure to instruct the jury on the lower degree of the offense is not error. Whitehead v. State, 206 Ala. 288, 90 So. 351; Ward v. State, 19 Ala.App. 398, 98 So. 208, cert. denied 210 Ala. 366, 98 So. 210.

Inasmuch as there was no evidence offered as to the value of the stolen property other than Mr. Davis’ testimony, the trial court’s charge was clearly correct. Presley v. State, 26 Ala.App. 280, 158 So. 765.

We have carefully examined this record and find no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


text:
    Leonard Ray WILSON v. STATE.
    8 Div. 917.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Fred Blanton, Birmingham, for appellant.

      William J. Baxley, Atty. Gen., and Richard S. Jaffe, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

This is an appeal from the Colbert County Court wherein appellant was convicted of speeding on a public highway and a fine of $10.00 was assessed against him, together with the Court costs. Appellant is not an indigent. When his case was called for trial he appeared in open court in his own proper person, without counsel, and agreed to proceed to trial on the original affidavit to which charge he pleaded not guilty. The case was tried by the Court without a jury as appellant did not demand, in writing, a jury trial as prescribed by the Act creating the Colbert County Court in 1969. This Act provides, in pertinent part, as follows:

“All misdemeanor cases, except as herein otherwise expressly provided, shall be tried by the court without a jury unless a demand in writing for a jury trial be filed in the cause by the defendant with the clerk of the court on or before the first sounding of the cause after the defendant has been arrested or taken into custody on an affidavit and warrant returnable to the court, or on an indictment returnable to the court, or on other proper process, if the cause is sounded within fifteen days after the defendant has been so arrested or taken into custody; provided, however, that if the cause is not sounded within fifteen days after the defendant has been so arrested or taken into custody, then the defendant must demand a trial by jury in the manner provided within fifteen days after he has been so arrested or taken into custody; and provided further that it shall be deemed a sufficient demand in writing for a trial by jury if such demand is indorsed on a bond by the defendant either on, or before the first sounding of the cause, or prior to the expiration of fifteen days, whichever occurs first. A failure to demand in writing a trial by jury as herein provided shall be held and deemed to be a waiver by the defendant of a trial by jury.” (Emphasis supplied)

The case was tried before a special judge who was acting for the regular judge. The judge asked the Deputy District Attorney if the State was ready and got an affirmative reply. He then asked appellant if he was ready and he answered, “yes, sir,” and the Court asked the District Attorney to call the first witness and he called State Trooper Charles William Owens, and without further proceedings the case got under way.

Trooper Owens testified that he worked for the Department of Public Safety for the State of Alabama and has been so employed for approximately nine years. He stated that he was on duty on the morning of August 21, 1976, on U.S. Highway 43 in Colbert County and was headed north. That he met appellant who was traveling south and that he clocked him on radar at 81 miles per hour. He testified that he checked his radar equipment when he went on duty that morning and found it to be properly operating. That after clocking appellant driving his automobile at 81 miles per hour in a 55 mile per hour zone he turned and got behind appellant and turned on the blue light and stopped him. He directed appellant to get in the officer’s patrol car where he advised him he was going 81 miles an hour and wrote him a ticket for speeding. Appellant did not say anything to the officer. He just took the speeding citation and got back in his car and left.

Appellant stated to the Court that he • wanted to ask the officer a couple of questions. Thereupon he asked the officer on cross-examination the following questions:

“Q. The portion of U.S. 43 where you are speaking of, would you tell the Court if this is a four-lane?
“A. Yes, it is.
“Q. And what is the .speed limit at this particular area?
“A. Fifty-five.
“Q. Now, just one other question, were there any other circumstances involved pertaining to the driving other than simple speeding?
“A. No sir, just speeding.”

At this point the State rested, and appellant informed the Court that he had one witness to call — Manual Ferguson.

From the record:
“Q. Mr. Ferguson, on August 21, were you a passenger in an automobile with the defendant in this case?.
“A. I was.
“Q. And would you tell the Court how long you had been a passenger? In other words, was it on a long trip or—
“A. It was on a long trip, yes. I would say from about four o’clock.
“Q. All right. And where were you headed, Mr. Ferguson?
“A. I was headed — well, home to Jasper. “Q. Are you from Jasper, Mr. Ferguson? “A. That’s right.
“Q. Do you know the defendant in the case?
“A. Yes.
“Q. Where is the defendant from?
“A. He’s from Jasper, too.
“Q. And you were riding as a passenger in the automobile with the defendant. “A. That’s right.
“Q. Now, would you describe to the Court any illness or ailment that you may have had on this occasion?
“A. Yes, I would say, we was about half way between here and Kansas City or outside of Memphis I began to have some pains and I couldn’t exactly pinpoint where the trouble was. And it just kept getting worse.
“Q. Were these pains mild or - severe?
“A. They began to get severe.
“Q. Did you take any kind of medication for indigestion or things of this sort?
“A. Yes, I did. I took some Malox and Rolaids and drank some milk.
“Q. Did these medications offer any relief? From the pain.
“A. No, they did not.
“Q. Now, had you so expressed your ailment to the defendant in the case?
“A. I had, yes.
“Q. And the defendant was aware of your illness.
“A. Right.
“Q. Now, would you tell the Court— you’re aware of the stopping by the State Trooper outside of Muscle Shoals or Tus-cumbia.
“A. Right.
“Q. Now, after this occasion, where did the defendant proceed?
“A. On to Jasper and—
“Q. And then what did you do when you got to Jasper?
“A. Well, immediately after getting home, my wife took me on to my family doctor and he checked me and sent me right on to the hospital. And I would say within three hours, I saw a couple of surgeons at the hospital and within three hours, I was operated on.
“Q. Within three hours of the time that you arrived back in Jasper.
“A. Right.
“Q. Would you say that the defendant in the case was concerned about your condition?
“A. Very much so.
“Q. That’s all, Your Honor.
“BY THE COURT: I have a couple of questions. Do you want to cross-examine?
“MR. HUDSON: It doesn’t matter. Go ahead if you want to ask first.
“BY THE COURT: You cross-examine him first.”

On cross-examination by the District Attorney Mr. Ferguson testified that he began having these pains somewhere on the other side of Memphis and the pains continued to get worse as they drove along, but he didn’t stop anywhere to obtain any kind of medical treatment as he didn’t think the pain was that severe. That he took Maalox and Rolaids to relieve some of the pain and he wanted to get home and see his family doctor. He didn’t want to wind up in a hospital away from home. That after getting home his wife carried him to see his doctor and he was admitted to the hospital and three hours later he was carried to surgery. He further testified that his appendix did not rupture after he reached Jasper, Alabama, nor at any time.

Appellant asked Mr. Ferguson if he had a certificate from his doctor and he said yes and appellant stated, “Well, I would like to present it to the Court, so they’ll know that this is accurate.” A certificate from the doctor was presented to the Court. The certificate is dated 9-24-76, three days before trial, and reads as follows:

“This is to verify that Mr. Ferguson was admitted to the hospital on 8/21/76 with acute appendicitis.
Gaines W. Keith, M.D.”
The trial judge asked Mr. Ferguson some questions and it was developed that Mr. Ferguson and appellant left Kansas City around 4:00 p. m. the afternoon before appellant was stopped the next morning by Trooper Owens. He told the Court that he was lying back in the front seat on the trip back to Alabama. The Court asked Mr. Ferguson if he said anything to the State .Trooper about being sick, and he replied, “No, No, I didn’t. In fact I didn’t even speak with him.”

Appellant took the stand in his behalf and testified as follows:

“MR. WILSON: I’ll just make this simple statement to the Court. I was driving the automobile, of course, at the time of the speeding citation. But to clarify the circumstances, we had left Kansas City approximately four o’clock the preceding afternoon. We had another gentleman riding with us at the time coming to Florence. And he did most of the driving during the night. And I had slept in the back seat of the automobile during the night. And we had dropped him off at his residence in Florence and then, of course, I was driving from that point on. We were proceeding south where I had just stopped to purchase gasoline and then was headed on out— went south on U.S. 43 where the citation occurred. I was concerned, of course, with Mr. Ferguson’s illness. And that is the excuse for the excessive speed, but I would testify to the Court that there were no circumstances involved other than the case of simple speed. But I was hurrying to get Mr. Ferguson back to Jasper so he could consult with his doctor. That’s all.”

On cross-examination appellant stated that he did not tell the State Trooper that he had a passenger who was very ill and did not attempt to give the officer any explanation as to why he was speeding. He said he knew the speed limit and, “I do not deny exceeding the official speed limit.” He stated that he was driving a 1976 Monte Carlo Chevrolet, at the time he was stopped by the Trooper. At the conclusion of the case the Court asked appellant if he wanted to make a closing argument and he said he did. The prosecuting attorney made the opening argument and appellant made the closing argument. The Court found appellant guilty as charged and set the fine at $10.00 and costs.

After the Court assessed a $10.00 fine and costs against appellant he gave notice of appeal and requested suspension of the sentence pending appeal. His request was granted and he is free on bond pending this appeal.

Appellant’s counsel contends that this case should be reversed on two grounds, (1) the trial court failed to advise appellant of his right to counsel, and (2) appellant did not knowingly waive his right to a jury trial.

We will treat these contentions in the order presented.

- Appellant was given a citation for speeding on August 21, 1976, and his case was not called for trial until September 27,1976. Appellant had over thirty days from the time he received the citation for speeding until his case was called for trial in which to employ counsel. It is clear to us that appellant never intended to employ counsel but, on the contrary, intended to represent himself. He made preparations to try his case as witness the fact that he secured a doctor’s certificate concerning the nature of Mr. Ferguson’s illness on September 24, 1976, three days before trial, and which he introduced into evidence.

Appellant was not charged with a serious” offense and his counsel, in brief, states, “An examination of the penalties for ‘speeding’ does not reveal any exposure to deprivation of liberty.”

In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, the Supreme Court said:

“Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
“The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.”

Here we have a “petty offense,” and a mere $10.00 fine imposed, and appellant’s liberty was not involved.

Section 6 of the Constitution provides “That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either; * * * ”

That appellant elected to defend himself cannot be disputed on the record before us. As heretofore stated he is not indigent and there is no constitutional or statutory provision in Alabama requiring that the services of an attorney be thrust upon him. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.

Appellant would not have been entitled to appointed counsel to represent him on the non-serious and petty offense charged against him even if he were indigent. Irvin v. State, 44 Ala.App. 101, 203 So.2d 283; King v. State, 55 Ala.App. 306, 314 So.2d 908.

Alabama has a statutory scheme for the appointment of counsel for indigent defendants charged or convicted of serious criminal offense. Title 15, Sections 318(1), 318(11), Code of Alabama 1940, Supplement. These provisions were enacted by the Legislature to enable the Court to comply with decisions of the Supreme Court of the United States which relate to the trial of indigent defendants. Martin v. State, 277 Ala. 153, 167 So.2d 912.

Appellant’s second contention is that he was entitled to a jury trial even though he never demanded one.

It is settled law in Alabama that a jury trial is waived in misdemeanor cases by a failure to demand such a trial within the time prescribed by law. Red v. State, 169 Ala. 6, 53 So. 908; Daley v. State, 16 Ala. App. 7, 74 So. 843; Ireland v. State, 11 Ala.App. 155, 65 So. 443; Alford v. State, 170 Ala. 178, 54 So. 213; McClellan v. State, 118 Ala. 122, 23 So. 732.

We have answered both of appellant’s contentions that this case should be reversed and find that his contentions are without merit.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    James Ferril TURNER v. STATE.
    1 Div. 673.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied March 30, 1976.
   AFFIRMED; no opinion.

Judgment reversed, Ala., 343 So.2d 591, on remand, Ala.Cr.App., 343 So.2d 594.