author: INZER, Presiding Justice,

text:
    William Mansker CLUBB v. STATE of Mississippi.
    No. 49836.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Rehearing Denied Oct. 26, 1977.

      Johnston, Wright & Steinberger, Fielding L. Wright, Jr., Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, ROBERTSON and BOWLING, JJ.
   INZER, Presiding Justice,

for the Court:

William Mansker Clubb was indicted, tried and convicted in the Circuit Court of Jackson County for the crime of armed robbery. He was sentenced to serve fifty years in the State Penitentiary, from which he appeals.

On the night of July 25,1974, a gambling party was in progress in a boat house owned by Robert Vance and located over the water on Corwell Drive in Gulf Hills. Approximately twenty men and women were in attendance. About 9:30 p. m. a knock was heard at the door. Thinking it was someone else seeking to join in the gambling game and being unaware of what was about to happen, one of the occupants opened the door. Three men armed with hand guns burst into the room. The intruders wore stocking masks over their heads. This intrusion brought the games of chance to an unexpected conclusion. The three men required all persons present to place their hands on the dice table and told them not to look up. One by one the men were taken into the hallway where they were forced to give up all their valuables. They were then ordered to strip to their underwear and were taken into a backroom where their hands and feet were bound. After the men were stripped of their valuables and clothing, the women were forced to hand over their valuables and they, too, were bound. Although searched, the women were not required to shed their clothing.

The robbers were in no hurry to complete their job; hence, the proceedings took well over an hour. While they were busily engaged with those already present, other people arrived to join the party. To their utter amazement, they too were confronted by the armed men and forced to join in the hands on the table game. They, too, were robbed and firmly bound. After the robbers had relieved those present of all their valuables (it is estimated that approximately $16,000 was taken) the robbers departed.

After their departure the Jackson County Sheriff’s department was notified of the robbery. The crime was investigated by Jerry Quave and after obtaining a description of the robbers from Claudine Hans, who was present during the robbery, he sent out an inquiry to the law enforcement agencies in the area for aid in identifying the robbers. The sheriff’s department in Jefferson Parish, Louisiana, sent Quave ten photographs of people, who in their opinion, were capable of committing the crime. Quave showed the photographs to four persons who had knowledge of the robbery. Mrs. Hans identified the photograph of appellant as being one of the robbers. J. B. Richmond, Sr. identified the appellant as being one of the three men he had seen near the boat house on the day before the robbery. Two other persons robbed were shown the photographs, but they were unable to identify the appellant as one of the robbers.

Appellant, along with two other persons, was indicted in September 1973 and charged with armed robbery. A motion was filed to suppress the evidence relative to the identification and it was overruled. Due to a technical defect in the indictment, the original indictment was quashed, and appellant was reindicted in September 1975 by the April 1975 grand jury. Another motion was filed to suppress the identification evidence, and it was likewise overruled. In preparation of the trial of the case, the assistant district attorney, in interviewing people who were present when the robbery occurred, would lay the photographs furnished Quave out on a table and ask the person being interviewed, “Do you recognize any of these people?” Four people interviewed separately identified the picture of appellant as being one of the men who robbed them. The assistant district attorney knew that appellant was represented by counsel, but he never notified the attorney that he was conducting the photographic lineups.

At the trial of the case, the state produced five witnesses who were robbed and each of them made an in-court identification of appellant as being one of the robbers. The defendant called five other persons who were victims of the robbery, and each of them testified that they could not identify appellant as being one of the robbers. The defendant also called Assistant District Attorney Colingo and questioned him relative to the method used in interviewing the witnesses.

In rebuttal the state called as a witness J. B. Richmond, Sr. who testified that on the day before the robbery he saw appellant and two other men having a discussion of some nature near the boat house where the robbery occurred. After both sides rested, appellant made a motion for a directed verdict, alleging several grounds therefor, including that the photographic lineup conducted by the assistant district attorney in the absence of counsel for the defendant so tainted the identification to the extent that the evidence should be excluded. This motion was overruled and the jury found the defendant guilty as charged.

On appeal it is contended that the trial court was in error in overruling defendant’s motion to suppress the photographic identification for the reason that such identification was totally tainted in the light of the surrounding circumstances. In this connection, appellant raises the question of whether he had a right to have counsel present on post-indictment pretrial photographic identification.

Both appellant and the state agree that the issue is whether the photographic lineup or array offended against the Constitution. Both also agree that the proper test to be applied is the question of whether the conduct of the confrontation violates due process in light of the totality of circumstances surrounding the confrontation.

We see nothing unduly suggestive about the first use of the ten photographs received from Louisiana authorities. All that the investigating officers had was a description of the three men who committed the robbery. After receiving these photographs, the officers naturally called in some persons who were present to see if they could identify any of the people as being the ones who committed the robbery. As a result of the use of the photographs, appellant and two other men were identified and indicted. There is no indication that the officer influenced the witnesses to identify any person in the photographs included in this group.

The only serious question relative to the identification concerns the use of the photographs by the assistant district attorney in his preparation for trial. At that time appellant was indicted and had counsel representing him. The testimony of the assistant district attorney establishes that he had been appointed after the appellant was indicted due to the district attorney being indisposed. In reviewing the file he found the photographs, and interviewed the witnesses, not in a group, but individually. He spread the photographs to ascertain whether the witness could then identify anyone in the group as being one of the robbers.

The first question is whether this photographic lineup violated appellant’s Sixth Amendment right to have counsel present at the confrontation. The lineup in the present case is somewhat similar to that in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), where the prosecutor after indictment and in preparation for trial used a photographic display to determine whether the witness he planned to call would be able to make an in-court identification. The Supreme Court of the United States held that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the government for the purpose of allowing a witness to attempt identification of the offender. Appellant recognizes the rule announced by the Supreme Court, but contends that we should do as some other states have done and adopt a more stringent rule. While we have not considered a photographic lineup in the light of the Ash decision, we did in Stevenson v. State, 244 So.2d 30 (Miss.1971), say, among other things:

Appellant contends that the photograph shown to Mr. McCaffrey from which he identified appellant as one of the robbers was tantamount to a lineup without the appellant or his counsel being present and that this brings this case within the rule announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). However, the rule announced in Wade and other lineup cases does not apply to out of court photograph identification whether the accused is in custody or not. United States v. Ballard, 5 Cir., 423 F.2d 127 (1970). Furthermore, in this case there was ample evidence to show that Mr. McCaffrey’s in-court identification was based upon independent facts. (244 So.2d at 33).

The holding in Ash is in line with what we said in this case, and we think it is the proper rule.

Viewing the photographic identification in the instant case in the light and totality of the circumstances, we do not find that it was so impermissible as to give rise to a substantial likelihood of irreparable misidentification. Evans v. State, 273 So.2d 495 (Miss.1973). Even if it could be said that the photographic identification was impermissibly suggestive, the evidence is sufficient to show that the witnesses made an in-court identification of the appellant based upon an adequate opportunity to observe him during the course of the robbery. They were able to make the identification without the dependence upon or assistance from the photographs.

In summary, we are of the opinion that the trial court was correct in overruling appellant’s motion to suppress the identification evidence. There is very little, if any, evidence that the photographic identification was prejudicial or impermissibly suggestive. The evidence is sufficient to support the finding of an independent source.

Appellant next contends that the trial court was in error in requiring defense counsel to state to the jury that he made an erroneous statement of law in his closing argument, when, in fact, the statement of counsel was a correct statement. The record reflects that in his closing argument, defense counsel stated:

And they have arrested Mr. Clubb, and they charged that he took a bunch of stuff, but I don’t see one thing on that table over there. Not one exhibit. They have got to prove it, remember. That he took it, carried it away, and converted it to his own use.

When defense counsel concluded this argument the trial judge called the attorneys to the bench and subsequent to a conference, Mr. Wright stated to the jury:

The discussion was that the state doesn’t have to prove that he converted it to his own use. But everything else I told you about what they have got to prove remains exactly the same. They got to prove he took it.

Defense counsel then objected and took exception to the ruling of the court that he was wrong in his statement of the law to the jury. The court replied, “The jury and attorneys should go by the instructions.” Appellant contends that under our holding in Thomas v. State, 278 So.2d 469 (Miss.1973), his statement of the law to the jury was correct. The issue in Thomas was whether Thomas intended to permanently deprive the police officers of their property, and we held that it was error to refuse to grant the defendant an instruction covering that issue. No such issue was raised in this case. Appellant did not request the court to instruct the jury as to this feature of the case. We are of the opinion that the evidence in this case was sufficient to prove the asportation and is in keeping with what we held in Bell v. State, 259 So.2d 118 (Miss.1972).

While a trial judge has wide discretion in presiding over a trial and has the authority to require counsel to correct an erroneous statement made to the jury, the judge should be careful in doing so, to avoid prejudicing the defendant. The trial court should assume that the jurors make allowances for overstatements and claims of attorneys in arguing their case for their clients. However, after review of the record in this case, we do not feel that the action of the trial judge was prejudicial or that it deprived the defendant of a fair trial.

Appellant assigns as error the refusal of the court to grant his instruction D-ll which reads as follows:

The court instructs the jury that if there is a reasonable doubt in your mind as to the identification of the Defendant as having been present and participated in the robbery in question on or about July 25, 1974, at the Boat House in Gulf Hills, then such doubt must be resolved in favor of the Defendant and it is your sworn duty to return a verdict of Not Guilty.

First, it should be observed that the instruction is abstract in form. A similar instruction was reviewed in Ragan v. State, 318 So.2d 879 (Miss.1975), and we held that the instruction was clearly erroneous for the reason that reasonable doubt of the guilt or innocence of the accused in a criminal case is not based on just a part of the evidence but rather on the entire case, including the circumstances surrounding the crime. Appellant would have been entitled to an instruction covering this feature, but the instruction offered was correctly refused. Appellant also contends that Instruction S-2 granted at the request of the state is erroneous. We find no merit in this contention.

After careful consideration of the record in this case, we find no reversible error and for that reason, we are of the opinion that the case should be affirmed.

AFFIRMED.

PATTERSON, C. J„ SMITH, P. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


source: Caselaw Access Project

author: PATTERSON, Chief Justice,

license: Public Domain

text:
    Eugene A. ROSS v. CRANE COMPANY, Crane Supply Company, and Aetna Life Insurance Company.
    No. 50195.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Rehearing Denied Oct. 26, 1977.

      J. B. Van Slyke, Jr., Hattiesburg, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, Ernest W. Graves, Laurel, Wise, Carter, Child, Steen & Caraway, George Q. Evans, Jr., J. Leray McNamara, Jackson, for appel-lees.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Eugene A. Ross brought suit in the Circuit Court of Lamar County for disability benefits under a policy issued by Aetna Life Insurance Company to Crane Company and its subsidiaries which included his former employer, Crane Supply Company. The cause was dismissed on defendants’ motions and Ross appeals.

He alleged in his declaration that as a result of an automobile accident on July 3, 1969, while in the employment of Crane Supply Company, he suffered injuries resulting in his permanent and total disability and his employer willfully and negligently failed to notify him of available benefits. Further, it was not until July or August 1975 that he became aware of the policy and corresponded with Crane Company and Aetna Life and benefits were denied. Separate motions to dismiss because of the bar of the statute of limitations were filed by Aetna Life and by Crane Company and Crane Supply Company. All parties then joined in a stipulation filed with the court that (1) neither claim, notice nor proof of loss was provided to any defendant by Ross from the date of the accident until sometime subsequent to July 14, 1975, and (2) if Ross had taken the stand, he would have introduced a letter dated July 14, 1975, from himself to Crane Company. The court in sustaining the motions and dismissing the cause stated that the statute of limitations began running on July 3, 1969.

The policy provided that Aetna Life would pay benefits to an insured upon receipt of “due proof” of a loss. Further, it provided that “written notice of claim must be given to Aetna Life within twenty days after the occurrence or commencement of any loss covered by the policy or as soon thereafter as is reasonably possible.”

Appellant first argues that the claim is not barred by the statute of limitations because the cause of action did not arise until proof or claim was made in July 1975 and that this was within a reasonable time, considering he was unaware of the existence of the policy. In support of this proposition, he relies primarily on Metropolitan Life Ins. Co. v. Lindsey, 184 Miss. 359, 185 So. 573 (1939), in which this Court interpreted a policy provision requiring receipt of due proof before payment as meaning proof within a reasonable time considering all the surrounding facts and circumstances and held that due proof was a condition precedent to liability such that the cause of action did not arise until proof was made. There the claimant became permanently and totally disabled in November 1932 and did not present proof of his disability until 1937.

On its second appeal, cited as Metropolitan Life Ins. Co. v. Lindsey, 189 Miss. 600, 198 So. 282 (1940), we held that the five-year delay in appellant’s making proof of disability was not a reasonable time and stated:

It is absolutely necessary that life insurance companies, who are doing a business which is affected with a public interest, have notice of a claim of injury or death in such reasonable time as to permit a fair investigation of the facts involved in order to relieve itself from payment of fraudulent claims. ... In other words, an insurer must have some reasonable notice of its liabilities. If, for no reason at all, the insured is permitted to delay five years or more in making due proof, there would never be any limit on what is considered a reasonable period of time within which to make the proof, and the element of time would be eliminated from the contract. Due proof means reasonable time. It means timely proof. (189 Miss, at 607-608, 198 So. at 283).

Judge Ethridge in his specially concurring opinion stated that when the court takes the question of what constitutes reasonable time from the jury, the delay must be such that reasonable men could not reasonably disagree and in each case the court should by analogy consider the statute of limitations.

In this case the delay exceeded six years as prescribed by the statute of limitations and cannot be excused. In the letter stipulated to the court, appellant admitted that during his sales career at Crane he received a bulletin notifying him of $100,000 in company-sponsored accidental life insurance coverage. The policy in question provided for $100,000 in benefits for loss of life as well as benefits for disability and appellant therefore cannot complain of lack of notice.

Although argued, we find the appellant’s other contention of no merit and are of the opinion that the trial court properly sustained the motions to dismiss.

AFFIRMED.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    Willie Paul BATES and Sue Nell Bates v. Hester OGLETREE.
    No. 49967.
    Supreme Court of Mississippi.
    Oct. 5, 1977.
    Rehearing Denied Oct. 26, 1977.
    Laurel G. Weir, Philadelphia, for appellant.
    Alford, Mars & Thomas, Robert L. Thomas, Philadelphia, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   AFFIRMED.


author: PER CURIAM.

text:
    In re James H. DODD v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR. In the Matter of James H. Dodd, Attorney at Law.
    SC 2242.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Rehearing Denied Sept. 30, 1977.

      Charles E. Tweedy, Jr., for Tweedy, Jackson & Beech, Jasper, for petitioner.
    William H. Morrow, Jr., Montgomery, for respondent.
   PER CURIAM.

The Grievance Committee of the Birmingham Bar Association charged James H. Dodd, Attorney at Law, with five violations of the Disciplinary Rules of the Code of Professional Responsibility; the Code of Professional Responsibility is found at 293 Ala. XXIII. The Board of Commissioners of the Alabama State Bar Association found Dodd guilty of Charges III and IV and suspended him from the practice of law for 60 days. We reverse the finding of guilty as to Charge III and affirm as to Charge IV.

On January 24, 1974, Kathy Ann Shew, a minor 18 years of age, was involved in an accident. In February of 1974 Doris Shew Myers, mother of Kathy, employed Dodd to represent her and Kathy in a claim for injuries to Kathy in the January accident. Dodd filed suit in March, 1974, and settled the case on approximately December 5, 1974.

Charge III alleges violation of DR 5-106(A), DR 6-101(A) and DR 7-101(A)(2). The substance of that charge is that Dodd settled the law suit without the knowledge and consent of Doris Myers. DR 5-106(A) reads as follows:

“DR 5-106 Settling Similar Claims of Clients.
“(A) A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of the claims of or against his clients, unless each client has consented to the settlement after being advised of the existence and nature of all the claims involved in the proposed settlement, and of the participation of each person in the settlement.
“DR 6-101 Failing to Act Competently.
“(A) A lawyer shall not willfully neglect a legal matter entrusted to him.
“DR 7-101 Representing a Client Zealously.
“(A) A lawyer shall not intentionally:
“(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-111, DR 5-102, and DR 5-105.”

Charge IV alleges violation of DR 7-101(A)(2) (above). Dodd is alleged to have entered into an unenforceable contract when he agreed to represent Kathy for 50% of any recovery. He allegedly entered into a contract for 30% of the recovery when the mother, Doris Myers, employed him to represent her and Kathy.

The testimony in the record was taken before a Commissioner and was then submitted to the whole Board for decision. The testimony was not taken orally before the triers of fact. We therefore review the evidence without any presumption in favor of the findings of the Board. Ex parte Acton, 283 Ala. 121, 214 So.2d 685 (1968); Smiley v. Board of Commissioners of Alabama State Bar, 286 Ala. 216, 238 So.2d 716 (1970). Tit. 46, § 25, Code of Alabama 1940, Recompiled 1958.

The burden of proof is upon the State Bar, and the defendant is presumed innocent. Board of Commissioners of Alabama State Bar v. Jones, 291 Ala. 371, 281 So.2d 267 (1973); In re Carroll, 287 Ala. 29, 247 So.2d 350 (1971). The applicable degree of proof and rules of evidence are those which apply to civil cases. Code of Professional Responsibility, supra, Section B, Rule 22. In reviewing the testimony only relevant, material or competent evidence is to be considered, regardless of whether objection was made to the testimony. Id., Rule 18.

TESTIMONY

Dodd was unable to locate the contract between himself and Doris Shew Myers; Doris did not receive a copy. According to Doris, the agreement was that Dodd would handle the claim on a contingency basis for 30%, that Doris would get 20%, and that Kathy would get 50%. Dodd claims that the contract was for 35% to 40% contingency, but if filed or tried, then for 50% contingency.

As time progressed, Dodd became aware that things were not well between Kathy and her mother. At the time of the accident Kathy had not been living at home, but rather with some friends, Sue and Jimmy Waddell. After the accident, Kathy lived with an older sister, Janice, for a couple of weeks and then lived with an older step-sister and her husband, Nancy and Kenneth Jackson. After the settlement, Kathy bought a house. According to Kathy, she had not lived at home except for short periods for the 3 years prior to the accident.

Kathy spent approximately 1 month in the hospital during which time Doris, by her own testimony, visited her only during the first 3 days. Sue and Jimmy Waddell, who were at the hospital frequently, saw Doris there only the evening of the accident. At the hospital, both Doris and Herman refused to be responsible for any of the bills. Jimmy Waddell finally signed for the ambulance, and Kathy appears to have taken responsibility for the rest of the bills.

At the time Dodd was handling the case, he did not fully realize the reasons for the rift between Kathy and her mother, but did realize its existence. From the evidence presented in this proceeding, the rift was caused by Herman’s actions. According to Kathy, he raped her when she was 12. He also allegedly attempted to rape or molest other stepdaughters (Nancy and Toni Lynn), and Sue Waddell before she was married, and a neighborhood girl. In brief, the Board readily stipulates that Herman is an unsavory character. When Doris was told of the attempts on the daughters, she believed Herman’s denials. According to Kathy, Nancy and Nancy’s husband, Kenneth Jackson, Doris is afraid of and controlled by Herman.

At some time in the Fall of 1974, Kathy, supported by Nancy and Kenneth, asked Dodd to have her “declared 21,” or in other words to have her disability of non-age removed. We quote from the record:

“Q. And it was your idea that to have your disabilities of non-age removed so you could handle it, didn’t you?
“A. Yes, sir.
“Q. I’ll ask you if you knew the way your mother and her husband were living, the type of life and character of life that they were living at that time?
“A. At that time?
“Q. Yes ma’am.
“A. They got drunk a lot. They argued a lot. I didn’t like being around them, and I just, at that time, I just wanted them to leave me alone, personally, the way I felt.
“Q. I’ll ask you also had the opinion that if the money went to your mother that they would squander it and you would never see any of it?
“A. That’s the way I felt, yes, sir.”

Prior to that time, according to Nancy, her mother had told her that Kathy should receive everything because she is the one who suffered. According to Nancy, Doris was different when not with Herman.

On November 8, 1974, Dodd went to see Doris at her home to obtain her signature on a petition to remove Kathy’s disability of non-age. According to Doris and Jerry Wayne Shew, Dodd’s visit was brief. He allegedly told her to hurry up and sign the paper so she would get her 20%. According to Dodd, he fully explained the petition, that she did not have a valid claim for medical expenses or loss of services, and that thereafter he would be solely representing Kathy.

After obtaining Doris’ signature and filing the petition with the probate court, Dodd on that same day entered into a second contract with Kathy for 50% “in the event that suit is filed or tried . . . ” ; no other percentage was given. Dodd had already filed suit in March in the name of Doris Shew Myers, individually, and in Kathy’s name, with Doris as next friend. See Tit. 7, § 102. Rule 17(c), ARCP.

Thus, according to Dodd this did not represent an increase in fee because the first contract was for 50% if filed or tried, and suit had already been filed.

Dodd’s testimony as to the second contract was impeached by his prior testimony before the Grievance Committee, taken approximately 6 months earlier, and hy what he reportedly told a character witness. We quote from the record:

“Q. So your recollection of the terms of the contract with Mrs. Myers in March or April of ’74 is based upon your memory, is it not, Mr. Dodd?

“A. Yes, sir.

“Q. I want to refresh your recollection by making reference to some of your statements before the Grievance Committee of the Birmingham Bar Association on June the 6th, 1975, and this question was asked you, and I’m reading from page 126 of this transcript, a copy of which I believe I furnished to Mr. Tweedy. The question was asked, ‘Did you talk to the mama about your fee arrangement?’ And your answer was, ‘Yes, a fee, if Cathy [sic] went along with it. I don’t mean the fee, but if she were would [sic] agree to let me handle it — you get a kid eighteen years old, and I say again, from what they told me, it sounded like a good case, and I was trying to control everybody if I could. That is as fair a statement as I know how to put it. I wanted the case, and at the same time, of course, I wanted the best fee arrangement I could get, and I don’t recall exactly what the fee arrangement was. It would have been between either thirty-five or forty percent, somewhere in that neighborhood.’

“MR. TWEEDY: It said, ‘It would have been either thirty-five or forty percent.’

“MR. MORROW: I’m Sorry. ‘It would have been either thirty-five or forty percent, somewhere in that neighborhood.’

“A. If I — that would have been if I could finish that statement, that would have been short of suit, or fifty percent if suit were filed.

“Q. Well, did you so testify at that time?

“A. I don’t remember what—

“Q. All right, and then you were questioned about this contract which has been offered as Exhibit ‘8’ that you got Cathy Ann Shew to sign on November the 8th, 1974.

“A. Yes, sir.

“Q. For fifty percent, and you were asked this question on page 135, ‘How did you arrange — you said frankly your fee was to be thirty-five or forty percent, and then you later handled it on the basis of fifty percent. How did you handle that? Answer: There was no handling to it, Jack, I just simply, like I am with all of my clients. This is a new client, and I got the best cotton picking contract I could get. And, to me, here is a new client with a new horizon, and a new case, as far as I am concerned. This party could have walked out of the probate judge’s office up there and said, ‘Well, I am, you know, fine. I can go get me another lawyer to pursue this matter’, and that is the position I took in it right or wrong, and I still think she could have done that. I think the only thing that any lawyer has in any of the contracts is nothing but a point of merit, and the question then is trying to get the thing up and proceeding immediately with the thing.’ Do you recall that testimony?

“A. Yes, sir.

“Q. And then further in your questioning, or our answer to that, I’m quoting from page 136 of your testimony, T never thought in terms of trying to explain why my original was thirty-five or forty, and the final one fifty. I never considered that to have any bearing in this case at all. That is the position I am taking now, and the position I took then.’ Do you recall so testifying?

“A. I have read that. I didn’t realize it came out just exactly like that is being said. I, in my own mind, was thinking I was saying all the time that this was short of suit.

“Q. Now, are you testifying here today, Mr. Dodd, that you did not, by getting this minor, well, her disabilities were removed on November 8th, to sign this contract, which is Exhibit ‘8’, are you testifying here today that that in no way increased your fee over and above the contract you had signed with her mother on March or April of ’74?

“A. No, sir, it did not, and after I have had a moment to think in terms of what the original contract was, I realize there was no increase at all.

“(Short off-the-record)

“Q. All right. Now, on page 202 of your testimony, I want to ask you this. I want to read this question and your answer. ‘MR. BAINBRIDGE: I have just one question, Jim, and we will let you go. It’s late. Is it fair to say under any condition the fee that you recovered under the November the 8th contract, the fifty percent, was more than the fee you would have gotten under the first contract without a trial? Answer: I think so, yes.’ Were you testifying truthfully to Mr. Bainbridge in that answer on June the 6th, 1975?

“MR. TWEEDY: I want to object to that form of the question and reserve the right to place grounds later on as to the competency of the answer.

“A. I would say that based upon what my recollection was then in reference to the contract, I was just thinking — I wasn’t really sure. When you’ve got fourteen men that are popping questions at me there for an hour and a half, at what stage, some of the things came out. I didn’t realize I really said that.”

“MR. MORROW: I’m on page 155, and this question was asked, ‘Question: In the contract that you can’t locate right now, do you recall what percentage recovery you were to get before trial or after trial? Answer: My recollection is thirty-five and fifty if it’s tried. Question: You say that the contract was signed with Mrs. Myers? Answer: Mrs. Myers. I know Mrs. Myers signed it, but I’m not sure whether anybody else did.’ Now that testimony was taken closer to the event. Is it your recollection now that you were incorrect when you stated that the contract provided thirty-five percent and fifty percent if tried?

“A. Yes, sir, I thought I had said, if filed, and—

“Q. Everywhere you’ve said tried that I’ve quoted from, did you mean to say filed?

“A. I thought that I had said filed in my contract. The only one that I was using at this particular time says filed or tried, and I didn’t realize it was coming out tried every time. I’m sorry, but I just didn’t realize it.

“MR. TWEEDY: Where is that exhibit ‘8’, I think. The contract is what it is.

“MR. MORROW: The November the 8th contract?

“MR. TWEEDY: Yes. I just wanted to call your attention to the fact that this one says ‘if filed or tried’.

“A. That’s the same type that Mrs. Myers signed, and I don’t know why it kept coming out tried. I felt I was saying filed.”

Judge James 0. Haley, who testified as a character witness for Dodd, related what Dodd told him:

“Q. Do you have any knowledge of the facts that resulted in the Grievance Committee filing disciplinary charges against Mr. Dodd which is the subject matter of this hearing?

“A. Not except that Mr. Dodd himself told me.

“Q. And what was that?

“A. Basically, the salient facts, as I recall, were that he had a contract with the mother of this seventeen-year-old girl to represent the mother and the girl in a damage suit and that he had a contract by which he was going to get a third of the recoveries as fee. The girl became eighteen years of age, and he had the disability of non-age removed and renegotiated a contract and got a contract, as I recall, for half and later settled the case and collected his fee.

“MR. MORROW: That’s all.”

Dodd settled the case with the insurer on approximately December 5, 1974, for $37,-000. The insurer obtained a release from Kathy, but never requested one from Doris. In Kathy’s opinion, Dodd’s handling of the case was excellent:

“MR. TWEEDY: You said you want to say something else. What do you want to say?

“MR. MORROW: Go ahead, Cathy. Go ahead and say it.

“THE DEPONENT: I said that Mr. Dodd did a good job. I got no hard feelings toward him. I think he did a good job. He did it in a fast time, which is the way I wanted it, and he never did nothing on his own, what he did was what I told him to do for me and that’s all.”

Doris later questioned Kathy about the suit and became aware of the settlement; Kathy had asked Dodd not to tell her mother, but rather to let her tell her, and Dodd referred Doris to Kathy when she came to Dodd’s office.

Doris thereafter filed a complaint with the Grievance Committee. Upon learning of the complaint, Dodd went to Doris to attempt to settle the dispute. Doris agreed, reluctantly according to her testimony, to accept $150 in cash and $250 to $350 in legal fees which Herman owed Dodd in association with another suit; Dodd received a signed handwritten receipt, which is in the record.

As a part of his defense, Dodd presented affidavits or testimony of a number of judges and attorneys who knew him. Each stated that his general reputation is good or excellent, that his reputation for truth and veracity is good or excellent, and those who testified stated they would believe him under oath even if he were interested in the outcome.

DECISION

We, as the triers of fact, must decide who to believe and who not to believe. Guilt must be proven by a preponderance of the evidence. It cannot be established by testimony of doubtful character “. . . when . . . the evidence leaves the fact in a state of doubt and uncertainty, it cannot be regarded as established”. In re Carroll, supra, 287 Ala. at 36, 247 So.2d at 355.

The credibility of Doris is low. Her interest in Kathy’s injury appears to be more in what it was worth to her, than in any concern she has over Kathy being compensated for her injury, or for that matter, over the health of Kathy.

As to Dodd’s alleged settling of the law suit without Doris’s knowledge and consent, we tend to believe Dodd over Doris and Jerry Wayne Shew. This is supported by Nancy’s testimony that Doris, while with her and Kathy outside of Herman’s presence, had earlier stated she wanted Kathy to receive everything because she is the one who had suffered. Moreover, Doris did not have a valid claim individually.

However, as to the rewriting of the contract, Dodd’s credibility is low. He originally believed he had a right to consider Kathy as a new client upon the removal of her disability of non-age. Dodd does not now argue that he had that right, but rather that there was no real difference between the first and second contracts.

As to the legal relationship between Dodd and Kathy under the first contract signed by her mother as next friend, see Smoot v. Ryan, 187 Ala. 396, 65 So. 828 (1914); Wiggins Estate Co. v. Jeffery, 246 Ala. 183, 19 So.2d 769 (1944); Power of guardian ad litem or next friend to bind infant by his contract with attorney fixing compensation, 7 A.L.R. 108; Liability of infant for attorney’s services in personal injury actions, 7 A.L.R. 1011. Dodd was bound by the first contract. We need not decide whether Kathy was. In either case, Dodd could have been in doubt and have legitimately sought confirmation upon the removal of Kathy’s disability of non-age without offering further consideration. Sims v. Gunter, 201 Ala. 286, 78 So. 62 (1918).

The critical question is whether Dodd increased his fee in the second contract. Kathy does not profess to know what the terms of the first contract were. While Dodd asserts here that the first contract provided for a 50% contingency fee if filed, and there was consequently no change because suit was filed, his testimony before the Grievance Committee indicates that his objective was not merely to get a confirmation of the first contract, but to get the best contract with Kathy that he could. The Board in brief notes that most witnesses do not intentionally lie. “Witnesses frequently, honestly, state the facts inaccurately. Witnesses will honestly remember what they want to remember.” We do not believe that Dodd was intentionally lying. However, we seriously question whether Dodd’s memory is providing the true terms of the first contract. We conclude that a preponderance of the evidence shows that the second contract was an increase over the first, though we are not clear on the exact terms of the first contract.

The remaining question raised is whether a finding of guilty for failing to carry out the first contract is inconsistent with a finding of not guilty as to the other counts (see footnote 1).

“Only where substantially the same facts constituting a single course of conduct are alleged as violations of two separate rules, does the finding of not guilty as to one preclude a finding of guilty as to the other.” In re Board of Commissioners of Alabama State Bar v. Jones, supra, 291 Ala. at 376, 281 So.2d at 271.

A finding of guilty as to Count IV (regarding the contracts) requires a finding of fact different from that required in a finding of innocent as to the other counts.

We decline the respondent’s invitation to review Dodd’s innocence as to Counts I, II and V. We conclude that Dodd is guilty of Count IV and not guilty of Count III. Hence, we reduce the 60 day suspension to 30 days.

AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED.

BLOODWORTH, MADDOX, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., recuses self.

      . The substance of Charge I is that Dodd violated Disciplinary Rule 1-102(Á)(4) by obtaining the signature of Doris Myers on a “Petition for the Removal of the Disability of Nonage” of Kathy by deceiving Mrs. Myers into believing that she was signing something else. Rule 1-102(A)(4) reads:
      “DR 1-102 Misconduct.
      “(A) A lawyer shall not:
      “(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, nor be guilty of willful misconduct.”
      The substance of Charge II is that Dodd, after having Kathy’s Disability of Nonage removed, caused Kathy to enter into an employment contract with Dodd without the knowledge or consent of her mother, Doris Myers, again in violation of DR 1-102(A)(4).
      Charge V alleges violation of DR 1-102(A)(5) and (6). Dodd is alleged to have offered Doris Myers $150.00 in return for withdrawal of her complaint to the Grievance Committee. DR 1-102(A)(5) and (6) read as follows:
      “DR 1-102 Misconduct.
      “(A) A lawyer shall not: .

        “(5) Engage in conduct that is prejudicial to the administration of justice.
      “(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”

      . Herman Myers was Doris’ third husband. She had one child, Nancy, age 34, by her first marriage to Rhodes, nine by her second marriage to Shew (Janice, 29; Peggy, 26; Jimmy, 27; Kenneth, 24; Kathy, 19; Allen, 18; Toni Lynn, 14; Jerry, 17) and 1 son, Herman, by her third marriage to Herman Myers. She married Myers in 1961.


text:
    Thomas Niza WILLIAMS, alias v. STATE.
    1 Div. 759.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.
    Ian F. Gaston, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent at nisi prius and here was convicted of robbery and sentenced to twenty-five years imprisonment. He entered a plea of not guilty and did not take the witness stand except on a voir dire outside the presence of the jury on a motion to suppress evidence. The motion was denied.

His plea of not guilty cast a burden on the State to prove beyond a reasonable doubt the material allegations of the indictment charging the offense. Such proof embraced the identity of defendant as the one who committed the crime.

Defendant here asserts only one contention of error. He contends that the court erred in admitting into evidence the testimony of the victim that defendant came back a week later, robbed her again and incidentally made some comment about the prior robbery. [See Williams v. State, Ala. Cr.App., 338 So.2d 522.]

As a general rule other offenses, prior or subsequent, are not admissible in evidence to establish crime, however, there are exceptions. One exception is to establish identity of defendant. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457(2)(3); Weatherspoon v. State, 36 Ala.App. 392, 56 So.2d 793(1).

But defendant contends that identity was not an issue in this case, we cannot agree with this contention. When defendant entered his plea of not guilty, his identity became a very important issue which was not mitigated or softened due to defendant’s failure to take the stand before the jury and deny his guilt or identity; nor because he failed to offer any evidence before the jury denying his confession as related by a police officer.

The State had a lawful right to establish the identity of defendant as the robbery culprit by competent evidence, even though redundant. The fact that she saw him a week later, when he again robbed her, was admissible even though she was positive of the first identification. This second observation of defendant tended to strengthen the first identification and tended to impress the jury that she was not mistaken. The fact that the second observation of defendant was under circumstances involving a second offense of robbery against the same victim did not preclude the State from offering it to establish identity, which burden the State carried.

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

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    In re Thomas Niza WILLIAMS v. STATE of Alabama. Ex parte Thomas Niza Williams.
    SC 2477.
    Supreme Court of Alabama.
    Aug. 12, 1977.
    For opinion after remand, see, Ala.Cr. App., 350 So.2d 710.

      Ian F. Gaston, Mobile, for petitioner.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., opposed.
   FAULKNER, Justice.

Williams allegedly robbed the same store twice. He was tried for armed robbery on a plea of not guilty, was convicted, and was sentenced to 25 years in the State penitentiary. At his trial, Williams took the witness stand only once, and this was on a motion to suppress evidence without the presence of the jury. The Court of Criminal Appeals, 350 So.2d 707, affirmed the conviction, holding that Williams’ not guilty plea placed his identity in issue so as to justify admission of the victim’s testimony regarding a subsequent robbery of the same store. The court stated:

“When defendant entered his plea of not guilty, his identity became a very important issue which was not mitigated or softened due to defendant’s failure to take the stand before the jury and deny his guilt or identity; nor because he failed to offer any evidence before the jury denying his confession as related by a police officer.
“The State had a lawful right to establish the identity of defendant as the robbery culprit by competent evidence, even though redundant. The fact that she saw him a week later, when he again robbed her, was admissible even though she was positive of the first identification. This second observation of defendant tended to strengthen the first identification and tended to impress the jury that she was not mistaken. The fact that the second observation of defendant was under circumstances involving a second robbery against the same victim did not preclude the State from offering it to establish identity, which burden the State carried.”

Williams petitioned for and was granted writ of certiorari on the grounds that the opinion below is in conflict with Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953), and Baker v. State, 19 Ala.App. 437, 97 So. 901 (1923). Pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure, he also requested addition of “the fact that the State’s only eye witness to the robbery in question testified emphatically that she based her identification of the Petitioner solely on his presence in the store the first time that he robbed her.”

The issue presented is, does a plea of not guilty, where the defendant offers no other defense, and where the witness made a positive identification based upon her observation of defendant at the first robbery, place his identity in issue, so as to justify admission of a separate and distinct subsequent offense. The answer is no. Admission of evidence of the subsequent robbery is reversible error.

Under our system of criminal law the indictment’s purpose is to inform the defendant of the charges, and to limit and make specific the charges he will have to face at trial. If upon the trial of a fixed and separate charge, evidence of other separate and distinct offenses is permitted, the result is that the defendant is actually being tried for a series of crimes. Therefore, the general rule in this State is that evidence of distinct and independent offenses is not admissible in the trial of one accused of a crime. Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947); Harden v. State, 211 Ala. 656, 101 So. 442 (1924).

The State contends this case falls within the identity exceptions. We disagree. This court said in Mason that there were exceptions to the general rule and summarized them as knowledge, intent, plan or design, motive, identity and inseparable crimes. On the matter of identity, Mason quoted Judge McElroy’s The Law of Evidence in Alabama:

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

We do not agree with the State’s contention that this is an instance where the manner in which the defendant committed the offense is so unique or unusual as to operate as a mark or identification in itself. Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944). And, the facts of this case do not present any “novel or extraordinary means” employed during the commission of the robberies. Moreover, evidence of separate and distinct robberies was not introduced incidentally, as in Sims v. State, 253 Ala. 666, 46 So.2d 564 (1950).

The case is most analogous to Boggs v. State, 268 Ala. 358, 106 So.2d 263 (1958), where admission of evidence that the defendant probably stole the pistol which was used in the murder for which the defendant was being tried was held reversible error. The defendant entered a plea of not guilty but did not take the stand or present any witnesses. The court commented, “[a]nd, of course, the question of identity must be an issue in the case for such proof to be admissible.” Likewise, in the instant case, merely entering a plea of not guilty without presenting any witnesses, or an alibi, or other defense, did not place identity in issue. The fact that the victim made a positive identification of the defendant, both in court and at a lineup, and testified that she did not have to rely on the subsequent encounter with the defendant to make those positive identifications, serves to strengthen the position that the introduction was erroneous.

“Testimony seeking to connect the defendant with the commission of the offense charged, by proof of circumstances tending to show a different offense of a similar nature at a subsequent time, for which he is not on trial, is not admissible in evidence when the state has introduced evidence showing the commission of the offense charged, and the defendant’s guilty connection therewith by direct, positive testimony of a specific act, which in itself constitutes the crime charged and the defendant’s commission thereof.” (Emphasis added.) Baker.

We hold that the admission of evidence of the subsequent robbery does not fall within the exception to the general rule, and reverse the Court of Criminal Appeals.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, MADDOX, JONES, SHORES, EMBRY and BEATTY, JJ., concur.

ALMON, J., not sitting.


text:
    Thomas Niza WILLIAMS, alias v. STATE.
    1 Div. 759.
    Alabama Court of Criminal Appeals.
    Oct. 4, 1977.
   AFTER REMANDMENT

BOWEN W. SIMMONS, Retired Circuit Judge.

The nisi prius judgment in this case is reversed and the cause is remanded pursuant to an opinion of the Supreme Court of Alabama. Ala., 350 So.2d 708, released on the 12th day of August, 1977.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, 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.

REVERSED AND REMANDED.

All the Judges concur.


text:
    David CURRINGTON v. STATE.
    6 Div. 414.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Rehearing Denied Oct. 4, 1977.

      Hayden R. Battles, Cullman, for appellant.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Cullman County charged the appellant, David Currington, with second degree burglary of the dwelling house of Loyd T. Hays. Appellant entered a plea of not guilty. The jury found appellant guilty as charged, and the trial court set sentence at ten years imprisonment in the penitentiary. The appellant’s motion for a new trial was denied and he appeals to this Court.

On August 20th, 1976 the trial court appointed counsel to represent the appellant. Appellant was duly arraigned, and entered a plea of not guilty. Appellant’s court appointed counsel continued to represent appellant at all hearings thereafter up until November 29th, 1976 the day the case was set for trial. On November 29th, 1976 when the case was called for trial, appellant requested the court to appoint a different counsel to represent him. There was a hearing on this request out of the presence and hearing of the jury. No valid reason was shown to the court for the removal of counsel hence the request was denied. Appellant then requested the court to allow him to represent himself in his trial, and to have his court appointed counsel assist him only in striking the jury. This request was heard out of the presence and hearing of the jury. The court pointed out to the appellant many reasons why he should have counsel. Appellant stated to the court, “I want to have counsel removed and represent myself,” and again, “if I can I would like counsel to help me strike the jury, but, after that I don’t want him.” At the conclusion of the hearing the trial court entered the following order: “It is therefore, considered, ordered and adjudged that the defendant, David Currington, be allowed to represent himself in this cause but that Attorney Hayden R. Battles will be present to assist the defendant, if the defendant so desires.”

The appellant has a right to have counsel, he also has a right to defend himself. These rights can be waived by the accused, however there is a duty on the trial court to protect these constitutional rights, and to assure that they are known to the accused and have a hearing to determine whether or not there is an intelligent and competent waiver of them by the accused. Upon reviewing the entire colloquy between the trial judge and the appellant with reference to appellant representing himself, we hold that the trial court ably and fully protected both rights in allowing the appellant to represent himself, and in requiring counsel to be present to assist the appellant if the appellant so desires. Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429; Hopkins v. State, 57 Ala.App. 78, 326 So.2d 144; Ball v. State, Ala.Cr.App., 337 So.2d 31; certiorari quashed, Ala., 337 So.2d 89.

The appellant’s court appointed counsel was present at all stages of the trial in the trial court, and under court appointment represents the appellant in this Court.

State’s evidence tended to prove that about 5:30 P.M. on December 31, 1975, the appellant together with his brother, Jackie Currington, and Shirley Pace and Melba Brooks went to the home of Mr. Loyd T. Hays and his wife, Janice Hays, for a visit; that all four were drinking, and visited with Mr. and Mrs. Hays for about thirty to sixty minutes; that all except Mrs. Hays had a drink or two of whiskey; that during the visit the appellant was shown Mr. Hays’ 12 gauge full choke 30 inch barrel western shotgun; that about 6:30 P.M. Mr. and Mrs. Hays told appellant and his companions that Mr. Hays and his family were invited out for the evening and asked them to leave; that appellant and his companions left the Hays home, and about ten minutes later Mr. and Mrs. Hays, together with their two children, after closing all doors and windows, left their home; that when Mr. Hays and his family returned home that night about 11:45 P.M., they found a window they left closed had been opened, the shotgun of the value of $100.00, about thirty tapes of the value of $2.00 to $5.00 each, and their personal papers, diplomas, insurance, and children’s birth certificates that were kept in a dresser drawer were gone; that on January 1,1976 Mr. Hays got his shotgun back from a law enforcement officer.

State’s evidence further tended to show that the appellant and his companions came back to Hays’ house about an hour after they left; Mr. Hays and his family were not at home; that the appellant went in the house, got the shotgun and tapes and put them in his car. Appellant and his companions then drove over to the home of one Herschel Gorham where appellant got the gun out of the car and offered to sell it to Gorham; failing in this he put the shotgun back in the car, and appellant and his companions went to Jack’s Truck Stop and all four went in; in a few minutes one Clarence Crawford came in Jack’s Truck Stop; that appellant went to his car and got the shotgun out of the trunk and came in the Truck Stop and drew the shotgun on Crawford; the police were called, and came up and appellant ran out of the door of the Truck Stop and into the woods with the gun in his hands; that in a few minutes appellant was caught in the woods, behind Jack’s Truck Stop, and put under arrest for public drunkenness. The next morning the gun was found up under a low limb of a pine tree about ten feet from where the appellant was arrested.

The appellant was not a witness in his behalf but offered three witnesses for the purpose of impeaching testimony of some of the state’s witnesses.

Upon the conclusion of state’s evidence the appellant moved to exclude the state’s evidence because there was no evidence of intent to steal. Mr. Hays testified that appellant had no right to go in Mr. Hays’ home and get the gun and tapes. That he told the appellant that he could borrow the shotgun. That at the time appellant got the gun he did not have Mr. Hays’ consent to take it. Mrs. Hays’ testimony was cumulative to Mr. Hays’ testimony except that she testified she did not hear Mr. Hays tell appellant he could borrow the gun. That Mr. Hays had a head injury that affected his memory.

We hold that the evidence of the appellant’s attempt to sell the shotgun, that the gun was found the next day in the woods within ten feet of where appellant was arrested; and that the tapes were not returned to their owner, and that the gun was returned to the owner by an officer of the law and not by or at the request of appellant, that the gun and tapes were taken when their owner was absent from his home, are facts, if believed, from which the jury could find an intent to steal. The motion to exclude state’s evidence was properly overruled by the trial court. Young v. State, 283 Ala. 676, 220 So.2d 843; Curry v. State, Ala.Cr.App., 341 So.2d 972; certiorari denied, Ala., 341 So.2d 974; Morton v. State, Ala.Cr.App., 338 So.2d 423; certiorari denied, Ala., 338 So.2d 428.

Appellant contends that his conviction should be reversed because of the trial court’s ruling as shown by the following portion of the transcript of the evidence during the direct examination of Melba Brooks, a witness for the State:

“Q. All right. What happened at Jack’s Truck Stop?
“MR. BATTLES: We object to that as being irrelevant, immaterial and too far removed from the time and place of the alleged burglary.
“THE COURT: Are you going to connect this up, Mr. Harris, with the parties involved previously, what happened, some of the property down there?
“MR. HARRIS: Yes.
“THE COURT: Overruled.
“Q. (BY MR. HARRIS) Was David Currington there at Jack’s Truck Stop?
“A. Yes, he was.
“Q. Was the gun that was taken from Mr. Loyd Hays there too?
“A. Yes, it was.
“Q. From the time that you left Mr. Hays’ home the second time, were you with David Currington the entire time?
“A. Yes, I was.
“Q. And was that gun, was the gun and the tapes with you also in the car?
“A. Yes, they were.
“Q. What happened at Jack’s Truck Stop?
“MR. BATTLES: I object to that as being too far removed from the time and place of the alleged burglary, irrelevant and immaterial.
“THE COURT: Overruled, you may answer that.
“A. We were all setting there and Clarence Crawford and Jackie and David had had a run-in before. They came in and they had an argument and David went out and opened the trunk of the car and got the shotgun out and brought it in and drew it on Clarence.
“Q. (BY MR. HARRIS) This was the gun that was taken from Thomas Hays’ house?
“A. Yes, it was.
“Q. The Hays’ home?
“A. Yes.
“Q. What happened after he drew the gun on Mr. Crawford?
“A. They called the police down there and David still had the gun with him and he went out the door running through the woods.”

There was evidence tending to prove that the shotgun was recently stolen property. We hold that evidence of the possession of the gun by the appellant and what he did with it was admissible evidence to be considered by the jury bearing on the appellant’s guilt of burglary. The fact that he was using the shotgun in an unlawful manner does not render evidence of his possession of the shotgun inadmissible, therefore, the ruling of the trial court in overruling appellant’s objection was correct. Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210, certiorari denied, 288 Ala. 750, 264 So.2d 214; Murphy v. State, 52 Ala.App. 490, 294 So.2d 457; Weatherspoon v. State, 36 Ala.App. 392, 56 So.2d 793.

Appellant in his brief argues that the trial court committed reversible error when it said to the jury in the oral charge that a plea of not guilty meant, “I did none of the elements of the crime charged.” We have reviewed the trial court’s oral charge to the jury, and when considered in its entirety find that the trial court fully and clearly informed the jury in the oral charge that a plea of not guilty puts in issue every essential element of the crime charged in the indictment. The court in its oral charge defined to the jury all the elements of the crime charged. Fowler v. State, 161 Ala. 1, 49 So. 788.

Appellant complains that the trial court committed reversible error when it refused certain written charges requested by appellant.' We have reviewed these charges, and find they contain improper statements of the law, or are abstract, or are misleading, or were substantially covered by the court’s oral charge. Code of Ala. 1940, Title 7, Section 273.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: SIMMONS, Retired Circuit Judge.

text:
    Rayford Norman JACKSON, alias v. STATE.
    1 Div. 719.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Rehearing Denied Oct. 4, 1977.
    Neil L. Hanley, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen for the State.
   SIMMONS, Retired Circuit Judge.

Now comes defendant and moves this Court for a statement of facts. We respond as follows:

Defendant was indicted by the Mobile County grand jury for burglary in the second degree. He entered a plea of not guilty and not guilty by reason of insanity. He was tried before a jury and convicted. The sentence was fixed at ten years.

As we understand the record, defendant at nisi prius was represented by employed counsel. However, on this appeal he established indigency and the Court appointed counsel to represent him. The same lawyers who represented him at nisi prius represent him on this appeal.

Defendant, just prior to trial, made an oral motion for mental examination by a psychiatrist. The trial court, without the aid of a jury, heard the motion. No demand was made for a jury. (R. 25, 26, 27).

Defendant took the stand and testified at length, on direct and cross. (R. 27-32).

At the conclusion of the hearing the Court made a finding and order as follows:

“The Court is of the opinion in observing the defendant that he is intelligent, he is aware of what he is doing, is a condition — from the observation of the Court — to assist counsel and he is competent in the opinion of the Court to stand trial at this time. So, that would be the ruling of the Court.
“Now, are you going to note an exception to the Court’s ruling?
“Mr. HANLEY: Yes, sir.
“THE COURT: All right.”

On the merits, it appears from the State’s evidence that Sammy Brown, a Mobile police officer, responded to a burglar alarm at English Drug Store (R. 46). The owner went to the store and opened the door for Officer Brown. They found the defendant inside the store with drugs and matches on his person. Defendant did not take the stand before the jury.

After the State rested defense counsel moved for a mistrial on the ground that defendant had a right to have the jury determine whether he was competent to stand trial (R. 61). The motion was denied.

Petition granted for statement of facts. Application for rehearing overruled.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, 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.

APPLICATION OVERRULED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Joseph Curtis HILL, alias v. STATE.
    1 Div. 818.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.
    Neil L. Hanley, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Revocation of probation.

On September 24, 1976, appellant was found guilty of being a youthful offender in two cases. In Case No. 35867, he was given a suspended sentence of three years, to-wit:

“It is ordered and adjudged by the court that the execution of the sentence in this case be and the same is hereby suspended pending the good behavior of the defendant for a period of Three (3) years, and at the expiration of said Three (3) years, said suspension is hereby made permanent.” (Emphasis supplied.)

In Case No. 35866, appellant was given a suspended sentence of one year to begin upon termination of the three year sentence in Case No. 35867. The judgment entry in the second case is the same with the exception of the length of the sentence imposed.

On January 3, 1977, the State moved to revoke probation in both cases. An abbreviated hearing was held in circuit court on March 25, 1977, at which time probation was revoked, and the prior suspension of the two sentences was set aside. Both sentences were then ordered to run concurrently-

At the beginning of the hearing, counsel for appellant moved for a continuance which was denied. He then moved for a two-stage hearing, citing to the court, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). His motion was summarily denied.

The State called its only witness, William J. Conway, a State probation officer, who identified the only exhibit admitted into evidence, a “Supervisor’s Report On Delinquent Probationer.” When the report was offered into evidence, counsel for appellant objected on the grounds that the report was compiled from “some offense report,” that appellant had a right to cross-examine adverse witnesses, and that he could not cross-examine Conway about factual matter which someone else had compiled. Counsel again cited Armstrong and Morrissey, supra, to the court. The court admitted the report over objection, and appellant cross-examined Conway in pertinent part as follows:

“Q. You weren’t there when he was arrested, were you?
“A. No.
“Q. Where did you get this factual .?
“A. I got the factual content of the offense from the Mobile City Police Department offense report.
“Q. Did you talk to the officers?
“A. No, I didn’t.”
Counsel for appellant further stated:
“Judge, I’m going to move to exclude. There’s no evidence that he has committed any crime except that [Conway’s report] and it’s simply impossible for me to cross-examine Mr. Conway or his report.” (Bracketed matter added.)

The trial judge promptly denied the motion to exclude and then revoked probation.

I

Our Supreme Court in Armstrong, supra, sets out its interpretation of the requirements of Morrissey and Gagnon, supra:

“1. Written notice to the probationer of the claimed violations of probation.
“2. Disclosure to the probationer of evidence against him or her.
“3. Opportunity of probationer to be heard in person and to present witnesses and documentary evidence.
“4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation).
“5. A written statement by the judge as to the evidence relied on and reasons for revoking probation.
“6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. Judges preside over retrials. There appears to be no sound reason why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.)
“7. We see no valid reason for having two hearings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the probationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance.
“8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel.
“9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960).” (Footnote omitted.)

The Alabama Supreme Court reversed the revocation of probation in Armstrong, saying that the probationer had not been accorded minimal due process. We note here that Armstrong was afforded a much greater measure of due process than was the instant appellant.

In Armstrong, witnesses testified as to the probationer’s participation in the crime charged. In the instant proceeding, and over objection, no direct evidence of appellant’s illegal conduct was introduced. His probation was revoked solely upon the basis of hearsay evidence. Appellant’s counsel clearly brought out that the State’s only witness at the hearing had no firsthand knowledge of the facts set out in his “Supervisor’s Report On Delinquent Probationer.” The probation officer testified that he obtained all the information in his report from another report, “the Mobile City Police Department offense report.” He was not present when appellant was arrested, and he did not talk to the officers who wrote the offense report.

The probation officer’s report was the only evidence introduced against the appellant. The use of such hearsay evidence denied the appellant the right to confront and cross-examine the persons who originated the factual information which formed the basis for revocation of his probation. Cross-examination of only Officer Conway, who had no firsthand knowledge of the factual material in the report, amounted to nothing more than an exercise in futility. Thus, appellant was denied minimal due process of law.

II

In view of the foregoing, we need not determine whether the mere arrest of a probationer amounts to a breach of a condition of his probation. Nor do we pass upon whether a judgment suspending sentence, “pending the good behavior” of a defendant is a clear and definite condition of probation, as opposed to being vague and indefinite.

Our observations in this section of the opinion are directed to the attention of the trial judge on rehearing. If merely being arrested is sufficient for revocation of probation, then revocation would lie within the discretion of police officers rather than with judicial officers. In such a case, judges would only perform the ministerial duty of determining if an arrest had been made and then signing the revocation order. The decision to revoke probation is a judicial function and should be based upon the appellant’s conduct and not upon an accusation only. The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960), cert. denied, 270 Ala. 737, 121 So.2d 881. If so satisfied, the trial judge should then execute a written statement setting out the evidence relied upon and reasons for revoking probation.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN W. SIMMONS, Retired Circuit Judge. BOWEN W. SIMMONS, Retired Circuit Judge.

text:
    Olynn Kenneth BURNETT, Jr. v. STATE.
    6 Div. 316.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.

      Walter Joe James, Jr., James & Lowe, Haleyville, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, a non-indigent represented here and at nisi prius by employed counsel, was indicted for assault with intent to murder, convicted therefor with punishment fixed by the court at twenty years imprisonment.

The alleged offense took place on January 11, 1976, not far from Haleyville, in Winston County. The time was about 11 p. m. The victim was a deputy sheriff.

At the same time of the preceding incident, defendant allegedly shot and killed another person. Deputy Sheriff Dennis Rowe, who, along with the victim in the instant case, Chuck Thompson, was on night patrol duty in Winston County.

The two offenses occurred at or near a motel building formerly owned by defendant’s deceased father.

We think it is clear from the evidence taken on defendant’s motion for a change of venue that defendant, his father, who was killed a short while before January 11, 1976, in a truck accident, and also defendant’s step-mother, along with one or two others, were engaged in the illicit sale of alcoholic beverages and used this motel building as headquarters, more or less, for these illicit operations.

These operations naturally invited the two officers, Rowe and Thompson, to patrol that area in quest of. law violations. However, the shooting occurred when the officers stopped near the motel to check a young man who had driven his car in a ditch. They had just cheeked the young man’s driver’s license, when, according to the evidence of Thompson (presented at the main trial), defendant passed them, stopped and backed up. That is when the shooting occurred. So far as the evidence of Thompson reveals, neither he nor Rowe had drawn a gun when defendant fired his pistol at the head of Rowe and fatally wounded him. Then he fired at Thompson at close range, and, as he retreated, fired some more shots at Thompson who ducked and returned the fire. Neither Thompson nor defendant was hit by the exchange of shots. Thompson contacted fellow officers who went to the scene where Rowe lay fatally wounded.

It appears from the record that defendant was tried on May 17, 1976, and given life for the murder of Rowe. Defendant’s case for the offense against Thompson was also set on the same day, May 17, 1976, but continued by the court ex mero motu until June 28, 1976, at which time it was tried.

It also appears in the record that a qualified jury was selected for the trial of the murder case, and some jurors were excused because they were not qualified. The remaining jurors were brought back for trial of the instant case reset for trial on June 28, 1976. No objection was made to these returning jurors because of this procedure. We therefore pretermit writing thereto.

We note that in both cases defendant filed timely motions for a change of venue. In this opinion we only consider the motion for such change and a continuance in the instant case and not the motion in the murder case.

A jury was selected from the returning jurors who rendered a verdict of guilt of assault with intent to murder. They deliberated thirteen minutes.

We also note that the State put up only one witness, Chuck Thompson, who testified positively that defendant fired the fatal shot at Rowe and also shot at him. Defendant did not take the stand or offer any evidence. The only issue here presented and argued by appellant is the denial of his motion for a change of venue and for a continuance.

We now advert to the motion for a change of venue and the Court’s denial of the motion.

We first note that the 1970 population of Winston County was 16,654 with something like a two to four thousand subsequent increase. A majority of the people live on the west side of the county where Haley-ville is located.

Winston County is served by one local newspaper, the Northwest Alabamian, which is published at Haleyville. It is distributed throughout Winston County and other areas.

The county is also served by the Birmingham News, which had at the time a daily circulation of about 1,000 and a Sunday distribution of about 1,500 in Winston. News was also disseminated by television and radio from Birmingham; as well as a radio station in Winston. All this media covered news items about the homicide and the assault on Thompson. The Birmingham News items about the shooting were saturated with assertions, the product of inquiries addressed to some officers and some unreliable communicants, that certain criminal elements were run out of Tennessee by the late Buford Pusser, an alert, active and courageous sheriff in the area, and found lodgment in Winston County; that they were spearheaded by the deceased Burnett, with the aid of his wife and defendant. In other words, the news stories in the Birmingham News, with prominent space coverage, were circulated to impress the readers that Winston County was a haven for law violators under the direction and control of the Burnett family. These publications about such an orgy of crime in Winston County only lasted about three days right after the shooting incident. Thereafter, there was only an occasional reference to the shooting. These later references were free of a sensational tone.

The local paper covered news items about the homicide that were ample in coverage, but reasonably free of sensational tones and did not implicate the Burnett family as the leaders of a crime gang from Tennessee. We think it is undisputed that the Burnetts were freely bootlegging alcoholic beverages with headquarters at the motel which burned after the shooting incident. The cause of the fire does not appear in the record. It can be said with certainty that the Burnetts were not engaged in any church related activities.

It further appears that some interested person went so far as to call on the Attorney General to intervene and take charge of the alleged crime situation in Winston. In other words, we are certain that the shooting incident created a furor among the law enforcement officers of Winston and probably among some of the officers of neighboring counties. A reasonable inference may be drawn that the incident and the attendant media publicity created, temporarily at least, widespread resentment among the law abiding people in Winston against the Burnett family conduct.

It further appears that some substantial citizens of Winston, right after the shooting, spearheaded public solicitations of money to help pay the funeral expenses of Deputy Rowe. These solicitations were made both in Haleyville and Double Springs by contacting different citizens in the respective area of each town. Several hundred dollars for such expenses were contributed.

When the funeral procession of the deceased officer was set up, it was escorted, in the judgment of the witness, the funeral director, by 60 to 75 peace officers, including the sheriff’s department and the Highway Patrol, who led the procession.

It also appears from the evidence that the funeral procession deviated from the usual route and circled around the business Mall at Haleyville, except the east end of the Mall. The witness said he followed the procession and that he had no instructions from the family to make this deviation. It was not the shortest route to Addison where the body was interred. The witness said it was the largest body of officers attending a funeral that he had ever seen in his lifetime. After leaving Haleyville with the body the procession proceeded to Double Springs (the county seat) and circled the courthouse, then to Addison. The procession traveled approximately thirty-six miles. The witness further testified that the detour around the Mall in Haleyville and around the courthouse at Double Springs were the only deviations from the normal and logical route from Haleyville to Addison.

Despite the notoriety resulting from newspaper publications, the radio and television broadcasts, and the funeral procession, there were substantial evidentiary assessments by witnesses that defendant could obtain a fair and impartial trial in Winston County.

R. L. Shirley, News Editor of the Northwest Alabamian, who lived in Haleyville, testified for defendant (R. 206), and said that the wild reporting would not affect him if he were on the jury, that he would go with the evidence, and that in his opinion defendant could get a fair trial.

John Slatton, operator of the radio station in Haleyville, called as a witness by defendant, testified (R. 266) that he believed there were other people in Winston County who agreed with his views about being able to render a fair and impartial verdict, but that there is some prejudice anywhere in every case.

Larry Brewer, called by defendant, a resident and mayor of Double Springs, employed by Winston Industries; and, who assumed some responsibility in raising funeral funds, testified (R. 258) that even though he did not see all the news media, he felt defendant could get a fair trial.

Don Thrasher, owner and publisher of the Northwest Alabamian, testifying for defendant as to the circulation of his paper, also stated (R. 218) that he believed defendant could get a fair trial in Winston County.

Sylvester Crittenden, a retired grocery merchant in Double Springs, called by defendant, testified (R. 396) that despite the publicity, if he were called for jury duty he could render an impartial verdict.

Owen Alford, a resident of Winston County all his life, called by the State, testified (R. 402) that he believed a jury could be empanelled in Winston that would give defendant a fair and impartial verdict.

Henry McNutt, a dairy operator, eight to nine miles west of Haleyville, testified that he could render a fair and impartial verdict if he were called to sit on the jury to try defendant (R. 414), and he wouldn’t be influenced by all the publicity.

Early Hilton, called by the State, a longtime resident of Winston, testified that he believed (R. 426) a jury of twelve people could be empanelled in Winston County that would render a fair and impartial verdict “toward defendant.”

Theo League, called by the State, a resident of Winston County all his life, testified that he could render a fair and impartial verdict.

O. V. Walker, testifying for the State, born in 1916, and since birth been a resident of Winston County, testified (R. 436) that he felt the Court could empanel a Winston County jury that would render a fair and impartial verdict in defendant’s case.

Defendant offered in evidence question-aires with verified answers, dated in April, 1976, that had been submitted to fifteen residents of Winston County, that contained question “O”, (R. 58), as follows:

“(o) Do you think the feeling in Winston County against the defendant is so deep and widespread that it might interfere with his right to have a fair and unbiased jury decide his guilt or innocence?”

Responding to this question, twelve residents answer “yes,” one answered “no,” and one answered “don’t know.”

So, we have according to all the evidence, supra, a diversity of opinions on the issue of a fair trial in Winston County.

It is to be noted that the trial judge was presiding in his own circuit and was not a visiting judge. He, in a sense, was at home and no doubt was familiar with existing sentiment in the county and the extent of any hostile atmosphere toward defendant, to the end that it might preclude him from obtaining a fair trial and an unbiased verdict. Donald v. Matheny, 276 Ala. 52, 158 So.2d 909(7), 99 A.L.R.2d 1241. The trial judge was in position to evaluate any existing sentiment adverse to defendant’s right to a fair and unbiased jury panel to try his case. The record before us is in conflict among the witnesses as to the issue of a fair trial.

The news media has certain constitutional rights of a free press. The line of demarcation between the rights of the news media and those of defendant to a fair trial often is at times an issue that presents difficulties. Society has certain rights that require protection.

We observe that by stipulation the record in the murder trial of appellant was incorporated into the instant record. It sets out an extensive examination of the members of the jury panel. (R. 442-472). Five prospective jurors who stated that the publicity would enter into their minds were excused (R. 469-472). The remaining venire indicated they could decide the case in a fair and impartial manner. (R. 459, 460, 466, 468).

In the instant case an examination of this panel revealed that all the returning jurors had heard the results of appellant’s murder trial. One juror, who was excused, acknowledged that this information would tend to prejudice him. Another one was excused because he did not think he could give a true verdict in the case.

Appellant’s counsel inquired of the jurors if they knew of any reason why they could not render a fair verdict based on the evidence coming from the witness stand. There was no response.

The Court asked the jury whether any of them had heard of the results in the murder case tried on May 17, 1976. The response indicated all had heard (R. 128). Then the jurors who had expressed a fixed opinion during the examination of June 28, 1976, were also excused (R. 123).

It appears in the record that the Court took extra pains, and permitted the lawyers to do so, to screen the panel and exclude jurors who expressed they were influenced by the publicity and expressed a doubt about rendering a fair and unbiased verdict due to the publicity. The record contains three volumes, most of which relates to the publicity and screening the jurors.

Although there appears to have been considerable and widespread news media publicity concerning the cases and about defendant’s family background as related to crime, such publicity does not necessarily constitute grounds for a change of venue. Payne v. State, 48 Ala.App. 401, 265 So.2d 185(3).

A motion for a change of venue, as on motion for a new trial, as a general proposition of law, is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a showing of abuse of that discretion. Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79(4, 5).

We have examined and read the entire record, and conclude from this independent examination or evaluation, as required in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), that the trial court did not err in overruling the motion. There was no abuse of this discretion.

It is to be noted again that the news media, particularly the Birmingham News articles covering the hearsay statements about a criminal gang from Tennessee, were published in January, just a few days after the homicide and assault. The trial was not had in the instant case until June 28,1976. Five months and about seventeen days had elapsed, thus providing time for the extreme emotions to subside and a return to normal. Nowhere in this record, that we have been able to find, do there appear any threats against the defendant, or a display of violence, individual or public, toward this defendant. No doubt that in the minds of some a resentment against lawlessness and crime in Winston County did surface; which is generally the case when crime becomes too rampant. Throughout Alabama, then and at the present time, opposition to crime is more expressive and apparent than usual; but, such opposition does not find such inflexibility as to deny a defendant a fair trial.

The defendant failed to carry the burden and show to the reasonable satisfaction of the trial court that he could not receive a fair trial in that an unbiased verdict could not be reasonably expected. Yoemans, supra.

We have noted above that the jury deliberated only thirteen minutes before rendering a verdict. There was no particular reason for a prolonged deliberation. There was only one witness for the State. He testified positively as to facts showing guilt of defendant. This evidence was undisputed. Defendant did not testify; he offered no evidence.

The Court did not err in denying defendant’s motion for a change of venue. The judgment of the Court is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, 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.

All the Judges concur.

ON REHEARING

BOWEN W. SIMMONS, Retired Circuit Judge.

Having carefully reviewed and considered the evidence appearing in the record, it is our independent judgment that the trial court was correct in denying defendant’s motion for a change of venue.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.