text:
    Charles William HOBACK v. STATE.
    8 Div. 809.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Rehearing Denied Aug. 24, 1976.

      H. R. Campbell and Finis Royal, Scotts-boro, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, 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. Prior to arraignment appellant was found to be indigent and the Court appointed two outstanding trial lawyers of the Scottsboro Bar to represent him. At arraignment he pleaded not guilty. After conviction and sentence he gave notice of appeal. He was furnished a free transcript and the Court appointed two other outstanding lawyers of Scotts-boro to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of Said County charge that before the finding of this indictment Charles William Hoback and Dorothy Marie Allen Holtzclaw Whose names to the Grand Jury are otherwise unknown than as stated, unlawfully and with malice aforethought, killed Jimmy Fred White, by cutting him with a knife, contrary to law, and against the peace and dignity of the State of Alabama.”

A severance was granted and appellant was put to trial for the murder of Jimmy Fred White.

There is no conflict in the evidence presented by the State relating to the death of the deceased. Appellant did not testify in his behalf, nor did he offer any other testimony to show that he was not involved in the death of the deceased except some testimony of the most nebulous nature, that someone else might have been in the vicinity of the death scene at the time the ambulance transported the dead bodies from the scene to the funeral home. More will be said about this phase of the case before this opinion is concluded.

Appellant first filed a motion for a continuance for one week on the ground that appointed counsel did not have sufficient time to prepare for trial. The record reflects that counsel was appointed to represent appellant on August 25, 1975. Appellant, attended by counsel, was arraigned on September 4, 1975, and entered a plea of not guilty to the indictment. The appellant moved the case be continued from September 15, 1975 to the week of September 22, 1975. This motion was denied and the case was called for trial on September 15, 1975, and a verdict was rendered on September 16, 1975. The basis for the motion for a continuance was that counsel had been engaged in the trial of civil actions and needed more time to investigate and prepare appellant’s case.

Appellant also filed a motion to require the State to appoint an investigator to help investigate the case and interview all witnesses who might have knowledge of the case against him and to hire all necessary experts to assist his attorneys in the preparation of his defense.

The motion for a continuance and the appointment of experts and investigators to aid in the preparation of the case were denied.

In the late afternoon of August 2, 1975, .appellant, Dorothy Holtzclaw, the deceased and Prince Waldrop were seen together in an old model Chevrolet station wagon in the Flat Rock Community of Jackson County, Alabama. Appellant was driving the station wagon with Dorothy Holtzclaw in the front seat with him. The deceased and Prince Waldrop were in the back seat. Later that night this same station wagon was found parked just off a county road at a place called Long Island Creek or Hog Jaw Valley which was close to the Tennessee River at the upper end of Jackson County and seven or eight miles from the Tennessee state line. The bodies of Jimmy Fred White and Prince Waldrop were found in the front seat of the station wagon and they had been knifed to death. Appellant and Dorothy Holtzclaw were not at the station wagon when the bodies were discovered.

The Coroner of Jackson County, W. R. Henshaw, testified that he went to the murder scene shortly after 2:00 a. m. on August 3,1975, with Mr. Max Robertson, an investigator for the Jackson County Sheriff’s Department. He observed the two dead bodies in the front seat of the station wagon. He stated that blood was spattered throughout the front seat and floorboard and on the clothes and body of Jimmy Fred White. Blood was also on the floorboard of the back seat. White was removed to the Rudder Funeral Home in Stevenson, Alabama, where the Coroner performed a more detailed examination on White’s body. He determined the cause of death was loss of blood due to severed arteries and jugular veins. He further stated that these injuries were the result of a massive slash of the throat, the cutting going as far back into the victim’s flesh, muscles, cartilage and esophagus as the neck bone would allow. Over appellant’s objection the Coroner fixed the time of death to be around 9 o’clock on the night of August 2, 1975, or about five to six hours before he saw and examined White. He found no weapon of any kind around the body of White or in his clothing.

It was shown that Mr. Henshaw had been a mortician for 40 years and had been Coroner of Jackson County for 16 years and during those years he had examined many bodies to determine the cause of death.

He further testified that he personally took a sample of blood from the victim and placed it in a small glass vial or container, sealed it and put it in his refrigerator where it remained until later that morning when he turned it over to Mr. Marvin Bryant, an investigator for the Alabama Bureau of Investigation; that at the time he turned the blood sample over to Bryant, it was in the same condition as it was in when he took it from the deceased.

While at the murder scene the State Investigator took photographs of the station wagon, the dead bodies, and the surrounding area. He stated that when he and the Coroner arrived, they found both doors of the station wagon on the river side were open and he found a man’s shoe or slipper on the pavement near the open doors of the parked vehicle. These photographs were admitted into evidence without objection. Photographs were taken of White at the funeral home and were offered into evidence over the appellant’s objection that they were the same or similar to other photographs sought to be admitted. The Court sustained appellant’s objections to the photographs that were the same or similar views and these were excluded from the evidence and the others were admitted.

Different people visited the murder scene at different times on Sunday, August 3, 1975, and found several articles in and around the murder scene, ■ including a bloody shirt, a man’s shoe and a four-bladed knife. The shirt was found in an open field several yards from the station wagon and a photograph of the shirt was made by the State Investigator before he took the shirt into his custody.

John Allen Lowery found the four-bladed knife and a shoe or slipper that matched the one found at the station wagon. This shoe and knife were found in some honeysuckle vines on the river side of the parked station wagon, and were a few feet from two pools of blood. This knife and shoe were delivered to Mr. Max Robertson. Mr. Robertson turned over to State Investigator Marvin Bryant all of the items and articles which he found at the murder scene or which were delivered to him as being found at the murder scene and Bryant delivered all of this physical evidence to Mrs. Martha Odom at the State Toxicology Laboratory in Huntsville, Alabama.

Mrs. Odom testified that she was a Toxicologist with the Huntsville Division of the State Department of Toxicology and Criminal Investigation and had been so employed since June of 1972. She related her education and experience and her qualifications were not questioned by the defense. Her education and experience were most impressive. She went on to describe the items she had received from Officer Bryant and the laboratory analysis she conducted. She stated that the blood sample identified to her as having been taken from Jimmy Fred White was Group A. She further testified that there was human blood on a shoe identified to her as being found at the station wagon and her analysis showed that this blood was also Group A. She found human blood on the shirt but was not able to identify its Group. She found human blood on the four-bladed knife and identified it as Group B. Over appellant’s objection Mrs. Odom testified that an analysis of a blood sample taken from the body of Prince Wal-drop showed it to be Group B.

Melvin White, brother of Jimmy Fred White, identified the shirt found in the bean field near the station wagon as his, but he had loaned it to the deceased to wear that afternoon when he got in the station wagon with appellant and the woman. The next time he saw his brother was at the funeral home.

Paul Fox, proprietor of a package beer store on Hog Jaw Valley Road about eight miles from the murder scene, was well acquainted with the victim, appellant, Mrs. Holtzclaw and Prince Waldrop. He testified that all four were in his store around 7:00 p. m. on the evening of the murder. At that time appellant had a knife in his hand and he opened it in the store. He shaved the hair from a part of his arm with it and said it was a good knife. The knife had four blades. Mr. Fox positively identified this knife in Court as State’s Exhibit No. 13. He saw all of them leave in appellant’s station wagon.

John Will Holder lived about a mile and a half from Island Creek Bridge. He saw appellant around 10 o'clock on the night of the murder. Appellant did not have on a shirt or tee shirt, nor was he wearing shoes. He had blood on his stomach. Appellant told Holder that he thought he cut two men and asked him to go get his father. Appellant washed his hands and went outside the house and waited under a tree for Holder. Holder carried him to appellant’s brother’s house and used the telephone to call the law officers. Appellant was arrested and carried to the Sheriff’s Office. Officer Robertson gave appellant the Miranda rights and warnings. One of the shoes found at the scene of the crime was in a sack on a desk in the office. The sack was open and before the officer asked appellant a single question, appellant spontaneously exclaimed, “That’s my slipper over there,” and he asked the officer where he found it and if he found the other one. The officer made no reply to either question.

The officer asked appellant if he had a knife and he replied that it had been two months since he had a pocketknife. That the last knife he had was a cheap tin one that cost him about two dollars.

The record reflects that all four of the occupants of the station wagon were drinking alcoholic beverages during the afternoon and night preceding the killing. The Toxicologist testified that the alcohol content of the victim’s blood was such as would make a person “generally exhibit extreme muscular incoordination,” and would render that person “sleepy,” and that his speech would be “slurred” and he would have “trouble walking around.” Investigator1 Robertson said there was beer and whiskey in the station wagon when he arrived on the scene.

Appellant made a motion to exclude the State’s evidence without specifying any ground. The motion was overruled. He also filed a motion for a new trial. After a hearing this motion, too, was overruled.

The defense called Jay Carlton who drove the ambulance to the murder scene and transported the bodies found in the station wagon to the Rudder Funeral Home in Stevenson. Present when he arrived were appellant, the two Holder men and Max Robertson. After putting the men in the ambulance he drove about a quarter of a mile to find a place to turn around. When he turned in the field, he saw what he described as a “blear” approximately 200 to 250 yards out towards the mountain. He could not say that what he saw was a man. He stopped by the station wagon and told the officers what he had seen and thought they should check it out. In his own words he said, “I couldn’t swear whether it was a man or not.”

Deputy Sheriff Bobby Saint, who was at the scene when Carlton stopped and made his report, went to the place where Carlton said he saw a “blear” and searched the entire area and he could not find anything to indicate that a man had been in the area where he searched.

There was no abuse of discretion in denying appellant’s motion for a one week continuance. Counsel was appointed to represent appellant on August 25,1975, and this was three weeks before the case was set for trial. We have held that when counsel was appointed five days before trial, no abuse of discretion was shown in denying a continuance. O’Neal v. State, 53 Ala.App. 133, 298 So.2d 62.

There is no law in Alabama at the present time that authorizes funds to an indigent defendant to employ investigators to help prepare his defense. Tillis v. State, 292 Ala. 521, 296 So.2d 892. This is a matter for the legislature and not the courts.

The law is settled in this state that acts, declarations, and demeanor of an accused, before and after the offense, whether a part of the res gestae or not, are admissible against him, but unless a part of the res gestae, are not admissible for him. Smarr v. State, 260 Ala. 30, 68 So.2d 6; Espey v. State, 270 Ala. 669, 120 So.2d 904; O’Neal v. State, supra.

Appellant complains that the trial court committed reversible error in permitting the Coroner to render an opinion as to the time of death. We think this was a matter within the sound discretion of the trial court. The Coroner was shown to have been a professional mortician for 40 years and County Coroner for 16 years and during these years he had examined many dead bodies. Certainly, this witness possessed qualifications over and beyond the experience and knowledge of the “average man” or layman, and there was no abuse of discretion in permitting the Coroner to express his opinion as to the cause and time of death. Jones v. State, 53 Ala.App. 542, 302 So.2d 126, Cobb v. State, 50 Ala.App. 707, 282 So.2d 327; Snow v. State, 50 Ala.App. 381, 279 So.2d 552; Willingham v. State, 50 Ala.App. 363,279 So.2d 534; Smith v. State, 282 Ala. 268, 210 So.2d 826.

Appellant insists that photographs of the victim which included another victim were prejudicial to him. White’s body was found “slumped into the lap of the other body,” in the front seat of the station wagon. Therefore, photographs of one body necessarily included the other. This was all a part of the res gestae of the crime for which appellant was on trial. Brodka v. State, 53 Ala.App. 125, 298 So.2d 55; Douglas v. State, 50 Ala.App. 602, 281 So.2d 652; Boulden v. State, 278 Ala. 437,179 So.2d 20; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

The trial court admonished the jury to restrict their consideration of the evidence which pertained to the death of Jimmy Fred White. The Court told the jury:

“Overrule your objection. Of course, there is a part, as I understand the testimony, he is testifying to what he found at the scene. Ladies and gentlemen of the jury, the Court instructs the jury that in determining ultimately the guilt or innocence of this defendant, Charles William Hoback, on this indictment, they will limit their consideration of the evidence to that which pertains to the deceased, Jimmy Fred White.”

Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer the crime has been committed, the question must be submitted to the jury, and other evidence tending to implicate the defendant is thereby rendered admissible. Johnson v. State, 247 Ala. 271, 24 So.2d 17; Phillips v. State, 248 Ala. 510, 28 So.2d 542; Harnage v. State, 49 Ala.App. 563, 274 So.2d 333; Cronnon v. State, 56 Ala.App. 192, 320 So.2d 697.

The deceased was last seen alive in the company of the appellant and the other occupants of appellant’s station wagon on the night of the murder. The appellant’s shoes were found at the scene of the homicide. One of his shoes was in an opened paper bag in the Sheriff’s Office where appellant was given the Miranda rights and warnings and before being asked any questions, he saw the shoe and exclaimed, “That is my slipper over there,” and asked if they had found the other slipper. The knife used by appellant to cut the throat of the deceased from ear to ear was seen in his possession at 7:00 p. m. on the night of the murder. It was found at the scene of the homicide with human blood on it. He appeared that same night at Mr. Holder’s home and he was not wearing any clothes other than a pair of trousers — no shoes. He stated that he thought he had cut two men.

We have carefully examined 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, except CATES, P. J., not sitting.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    In re Charles William HOBACK v. STATE. Ex parte Charles William Hoback.
    SC 2036.
    Supreme Court of Alabama.
    Oct. 29, 1976.
    H. R. Campbell, Finis Royal, Scottsboro, for petitioner.
    No appearance for the State.
   EMBRY, Justice.

Petition of Charles William Hoback for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hoback v. State, 338 So.2d 439.

Writ denied.

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


text:
    James GRAY, alias v. STATE.
    3 Div. 427.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Nov. 5, 1976.

      George H. B. Mathews, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant was indicted in count one for burglary in the second degree, and for grand larceny in count two. A jury convicted on both counts. The trial court imposed separate sentences of five years on each count.

It appears that the same transaction supports both grand larceny and burglary, but there can be but one punishment. Whether this rule is served by a single sentence or concurrent sentences is a matter confided to the judge’s discretion. T. 15, § 287, Code of Alabama 1940, Recompiled 1958; Wade v. State, 42 Ala.App. 400, 166 So.2d 739(2); Lawson v. State, 33 Ala.App. 333, 33 So.2d 405(1, 2); Wildman v. State, 42 Ala.App. 357, 165 So.2d 396, cert. den. 276 Ala. 708, 165 So.2d 403.

The judgment is affirmed but the cause is remanded for imposition of appropriate sentence in accordance with this opinion.

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

AFFIRMED. CAUSE REMANDED FOR PROPER SENTENCING.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    In re James GRAY, alias, v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2105.
    Supreme Court of Alabama.
    Oct. 29, 1976.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State, petitioner.
    No appearance for respondent.
   BLOODWORTH, Justice.

Petition of the State by its Attorney General for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Gray v. State, 338 So.2d 444 [1976].

Writ denied. In denying this writ, we suggest to the trial judge that, on remandment, he consider the applicability to the case at bar of the United States Supreme Court’s decisions in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (re: “concurrent sentences” doctrine) and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (re: “double jeopardy” and “equal protection” issues).

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    William DUNCAN, alias v. STATE.
    3 Div. 480.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Appellant was convicted in the Municipal Court of Montgomery of concealing a felon and was fined $500.00 and sentenced to sixty days hard labor. On appeal to circuit court, on a trial de novo, appellant was found guilty by a jury and sentenced to hard labor for the county for a period of one month and was assessed an additional forty-two days in lieu of costs.

On October 13, 1975, Birmingham Police Officer Richard Zales went to appellant’s business in that city and inquired of him whether he knew Patricia Wilson, alias Juanita Thompson, alias Elizabeth Blair. Zales said he showed the appellant a bench warrant from Atlanta for Mrs. Wilson’s arrest and informed him that the charge against her was a felony. Zales said a bail bondsman from Atlanta had brought the warrant to the Birmingham police and that it was a “jumping bond” case. The bench warrant is not in the record and neither does any witness state what the actual charge against Patricia Wilson was.

Appellant first disavowed to the officers any knowledge of Mrs. Wilson, but later stated that he could probably point them in her direction. Officers later returned to the appellant’s place of business and told him that a second warrant from Vestavia had been issued for Mrs. Wilson, but they did not have it with them and did not show it to him. There is no mention in the record of what offense was charged in the Vesta-via warrant. That warrant was admitted into evidence, but was not included in the record on appeal and does not appear as an exhibit on the appeal.

A Birmingham taxi driver testified that on the same day, he let Mrs. Wilson out of his taxi in front of the appellant’s place of business. Testimony established that on October 17, 1975, the appellant, using the assumed name of Willie B. Watts, sent a Western Union wire for $50.00 to Elizabeth Blair in Montgomery.

Montgomery Police Officer David Green conducted a surveillance on Mrs. Wilson, alias Elizabeth Blair, and observed her leave her room in a Montgomery motel and go to the Western Union office. She was registered at the motel in Room 108 as Elizabeth Blair. The next day, appellant registered at the same motel in Montgomery in Room 114. Later that evening, Mrs. Wilson entered the appellant’s room while he was still there and remained for about twenty minutes and then left and reentered her own room. Shortly thereafter officers arrested Mrs. Wilson and the appellant.

I

Title 14, § 15, Code of Alabama 1940, has been held to apply only when certain fundamental elements are proved. The essentials of the crime here charged are set out in Rudolph v. State, 40 Ala.App. 398, 114 So.2d 299 (1959):

“The crime here charged has three elements: (1) knowledge of the accessory of the principal’s crime, (2) commission of a complete felony, and (3) active aid (passivity excluded). Wharton’s Criminal Law and Procedure, § 112; Bishop, Criminal Law (9th Ed.), § 693; Russell on Crime (11th Ed.), p. 173; 14 Am.Jur., Criminal Law, §§ 102-104; 22 C.J.S. Criminal Law §§ 95-99.” (Emphasis theirs.)

The record establishes that the appellant actively aided the principal. The testimony of Officer Zales establishes that the appellant had knowledge that the principal (Mrs. Wilson) was wanted in Atlanta for some unspecified crime, and secondly that another warrant from the city of Vestavia was outstanding for some other unspecified crime. Even if we assume Officer Zales’ testimony establishes the requisite knowledge of the accessory of the principal’s crime, we are still faced with a blank record as regards element number two, i. e. commission of a complete felony.

Officer Zales testified that he informed the appellant that an Atlanta bench warrant was outstanding against the principal and that the charge was a felony. We have only Officer Zales’ conclusion that the charge was a felony. Nowhere does the record disclose what the charge was and neither does the record contain the bench warrant as an exhibit. The same can be said of the Vestavia warrant, except the officer did not even testify that the second warrant was for a felony. We not only have no evidence as to the charge in the second warrant, but we do not even have the witness’ conclusion that it was a felony-in that instance.

Not only is there no evidence of a completed felony on the part of the principal, neither is there any evidence that the principal had been convicted of a felony prior to the instant trial. The statute provides in part that, “ . . . and if the principal felon is dead, or has fled from justice, such accessory may be prosecuted and convicted before the principal; but in such case it shall be necessary to allege in the indictment and to prove on the trial, the fact that the principal felon is dead or has fled.”

From the wording of § 15, supra, it appears that the legislature did not intend for accessories after the fact to be tried before the principal except where the principal is dead or has fled from justice. The instant record is completely silent on whether the principal, Mrs. Wilson, alias Blair, was ever tried and convicted on any charge.

The conclusion of Officer Zales that the bench warrant from Atlanta was for a felony, is no proof of the commission of a complete felony. The record does not state from which court in Atlanta the warrant was issued, whether federal, state, county or city court. The fact that it was a “jumping bond case” apprises neither this Court nor the trial court of anything. She may have jumped bond on a serious misdemeanor charge which Officer Zales may have concluded was a felony. She may have jumped bond in Atlanta on any one of a hundred charges. We cannot affirm a conviction based upon mere conjecture or speculation where the record is completely silent as to an essential element of the offense. Rudolph, supra; State v. Williams, 229 N.C. 348, 49 S.E.2d 617 (1948); 21 Am.Jur.2d, Criminal Law § 126. The appellant is, therefore, entitled to a new trial.

REVERSED AND REMANDED.

All the Judges concur except DeCARLO, J., who concurs in result.


author: HARRIS, Judge.

text:
    Elizabeth K. HYMAN v. STATE.
    3 Div. 528.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.

      J. Louis Wilkinson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed her punishment at ten years in the penitentiary. She was represented at arraignment and trial by retained counsel who represents her on this appeal. She pleaded not guilty. After conviction she gave notice of appeal on March 4, 1976. Appellant is not indigent.

The Attorney General filed a motion to strike the transcript of the evidence on the ground that the reporter’s transcript was not filed until June 16, 1976, more than 56 days from the date on which the appeal was taken, and there were no extensions of time for said filing. Neither was there a motion for a new trial filed in this cause.

This motion of the Attorney General is due to be granted unless we suspend the rules and accept the reporter’s transcript and consider the case on its merits.

It is, therefore, ordered that under Rule 2(b) the provisions of Rule 11(b) be and the same are hereby suspended and the appeal in this case will be considered on its merits.

It is undisputed that on August 19, 1975, between the hours of 8:00 and 8:30 a. m., the Southside Drug Company located at 4316 South Court Street was robbed by two gunmen, one carrying a .20 gauge sawed-off shotgun. The evidence for the State tended to show that Mrs. Merle Sasser, an employee of the drugstore, opened the store for business that morning between 7:30 and 8:00, and she waited on a number of customers before Mr. Rex Riggins the pharmacist came on duty. According to Mrs. Sas-ser’s testimony one of the men entered the store alone and purchased a bottle of shampoo from her, and he left the store stating that he had something in his car he forgot and would be back. She described this person as very neat with short hair, wearing a pair of blue jeans and a maroon colored sweat shirt. She stated that when he returned to the store, he was accompanied by another man who had dark hair and had it pulled back in a ponytail, that he was dressed in a pair of jeans and a man’s undershirt.

She further testified that when they returned, there were some customers in the store and' that the blond boy came toward the back where she was and the other dark haired boy was looking at some papers at the bottom of the magazine rack.

She stated that when Mr. Riggins came in, the blond haired boy pulled a shotgun and stuck it in Mr. Riggins’ face and told him that this was a stickup and that he wanted all of the hard drugs in the drugstore and told him to open the safe. Mr. Riggins told him that the safe was open whereupon the man with the gun forced both Mr. Riggins and Mrs. Sasser back to the pharmacist department and made them lie down on the floor and threatened to shoot their_heads off if they would not do what they were told to do. Both Mr. Riggins and Mrs. Sasser testified that these men were not disguised in any manner but that they were loud and boisterous and continued their threats to blow their _ _heads off all the time the robbery was going on.

Mrs. Sasser further testified that a little girl named Karen Vance came in the drugstore immediately after the robbery and that she lived only three or four blocks away. It is admitted that Karen Vance was a ten year old deaf and dumb child and could only communicate by sign language or write an answer to a question posed to her.

Her mother, Margaret Vance, testified that Karen was a very bright child in the light of her handicap by being deaf and unable to speak and that she attended school at the “Children’s Center.” She further testified that her daughter went to the Southside Drug Store some time after 8 o’clock on the morning of August 19, 1975 and rode her bicycle. The State tried to use the mother of Karen as an interpreter but this proved to be very difficult and unsatisfactory, whereupon the Court sent for her teacher at the Children’s Center, Ms. Gail Woods. Ms. Woods testified that she was Karen’s teacher and was a deaf education teacher and that she was trained at the University of Tennessee where she obtained a B.S. in Speech and Hearing and Psychology and a Master’s Degree in Deaf Education. Ms. Woods stated that she did not have too much difficulty in communicating with the child and that the child was below normal as compared to a normal ten year old child because of her language handicap but nevertheless she did have the mental ability to learn, to grasp knowledge, but that she must first obtain the language to do so. She further testified that she had discussed with Karen the difference between right and wrong on a daily classroom basis and that in her opinion, Karen knew the difference between right and wrong and that she knew the difference between telling the truth and telling a lie.

The Court decided that Ms. Gail Woods was competent to act as an interpreter and for the lawyers to pose questions to her concerning her knowledge of the facts leading up to and culminating in the robbery and that she in turn would communicate with Karen for her answers.

Cite as 338 So.2d 448

Karen Vance was then called to the stand where questions were propounded by the State and by appellant’s counsel. Karen testified that in September she went to the store and she saw two men and one woman near the store in a green and black car and she saw the two men walk in the store and she later saw the two men return to the car. She saw appellant drive the car away from the store and she drove very fast. She was asked to look over the courtroom and see if she could identify the person that she saw driving the car and she pointed to appellant and identified her as the driver of the green and black automobile.

Appellant’s counsel questioned the competency of Karen Vance to be a witness and this was a matter that had to be determined by the trial court.

Ms. Woods was asked the following questions and gave the following responses:

“Q. Do you feel she understands the seriousness and consequences of taking an oath as a witness in a court of law? “A. I think that what she saw, she will report to the best of her ability. Now, as — because of her hearing — and I am saying this solely for her deafness — she may not — she does not understand, I am sure, perjury, this kind of technical lawyers’ vocabulary but she knows the difference between the truth and a lie and what is right and what is wrong.
“Q. And what is expected of her as a witness?
“A. And she knows the reason that she is here. And I believe that she will tell what she saw.”

The Court allowed Karen Vance’s testimony to be admitted into evidence through the interpreter Ms. Gail Woods.

Detective Cody Wood of the Montgomery Police Department was assigned to investigate the robbery of the Southside Drug Store and he went to the drugstore and got a description of the gunmen from Mrs. Sas-ser and Mr. Riggins. His investigation took him to Birmingham on two occasions, August 22 and August 26, 1975. He saw appellant at approximately 3:00 p. m. on August 26, at the Juvenile Detention Center in Birmingham. He had received a call from the Police Department in Birmingham the previous evening, that appellant was in custody at the Juvenile Detention Center.

When Detective Wood saw appellant on August 26, 1975, he advised her of her constitutional rights under the Miranda decision and presented her with a waiver of rights form. She read the form but she refused to sign it. However, she did make a statement to Detective Wood and that statement was taken down by Detective Wood and later after returning to Montgomery, he dictated the statement from his notes into a tape recorder which was subsequently transcribed.

There was a voir dire hearing out of the presence and hearing of the jury to determine the voluntary character of the confes-sory statement and much testimony was taken on this issue. It was shown at this hearing that Detective Wood did advise appellant of her constitutional rights before interrogating her and it was further shown that there were no promises, threats, hope of reward or other inducements held out to appellant to get her to make a statement. The Court ruled that the appellant’s statement was voluntary and that it could be read into evidence from the transcription taken from the tape recorder. The statement is as follows:

“A. In regards to her participation in the Southside Drugs, she stated that her and Bo-bo, which is Crochet, Nicostro and Dian Kimbrough, which is the sister of Crochet, came to Montgomery. And that they came in Larry Jones’s automobile which is the uncle of Bo-bo. She stated that they got to Montgomery some time after midnight and they drove around for a while, and first went to Johnny Johnson’s house. She said to see about a stereo that belonged to Crochet. She stated that he was not at home and they went by another house trying to locate a Bruce Turner, and could not find him either. They then went on to the Diplomat Inn and her and Dian went inside the Motel and got a room, 203. That they all went in and went to sleep, and they all got up the next morning. She stated that Nicostro and Crochet left and came back around eight, and at this time she left and went with them. She stated that they first went to Norman Bridge Drugs and they sent her in to look around and see how many people were in the store. She stated that one man was in the back putting up things on the shelf, and she looked around and saw they had TV cameras, and that there were two other people in the store other than the subject in the back putting stock on the counter. She stated that they went back and told Bo-bo that they had the TV cameras and there were three people in the store, and they went to look at another store. He then drove to Southside Drug and that Bo-bo said that he would go in. She stated, when they got to Southside Drug they drove around a while and then Bo-bo drove the car behind the store and came back to the front and parked near the Delchamps Store next to the curb. And she slid over under the wheel and they left the motor running. She stated that they stayed in the store about thirty minutes before they actually came out and got into the car. She stated that Crochet put the drugs in a pillow case that they took from the Diplomat Motel and they took the drugs to Birmingham in the same pillow case. She stated that when Bo-bo and Nicostro ran out of the store that she drove off and went across a bypass and turned right and drove up the service road and back to the motel. She stated, on the way to the motel that Nicostro and Crochet got in the car and Crochet laid down in the back seat, but Bo-bo kept getting up and looking around. And when they got to the motel they went to the door and knocked on the door several times, and had to bang on the door several times to get Dian to come and open the door, as she was asleep. She stated that they were afraid someone was going to call the police to them, so when they got Dian to the door that she went down and rented another room; she" thinks, 200. And that her and Crochet went to this room with the drugs and that her — went to the room with these drugs, and that her and Crochet then went to sleep and did not wake up until midday. She stated that Crochet called Birmingham and talked to Gross and got him to come after them in Montgomery, and Gross did come. And her and Dian drove the car belonging to Larry Jones, which was a black over green Buick, back to Birmingham, and that Bo-bo, Nicostro and Gross came back later behind them.”

Appellant testified in her behalf and according to her testimony she, another girl, and two boys left Birmingham, Alabama, on August 18, to attend a rock festival or rock concert at the coliseum in Tuscaloosa and did not get back to Birmingham until August 20, 1975. She gave the names of the two boys and girl that accompanied her to Tuscaloosa where she claimed they registered at the Holiday Inn. She repudiated the confessory statement that she had given to Detective Wood in its entirety and stated that she did not come to Montgomery with the two men and the girl mentioned in her statement and that she did not drive the automobile from the Southside Drug Store nor in any other manner participate in the robbery.

She further testified that at the time she was interviewed by Detective Wood she was intoxicated from the use of narcotics, that the statements made were those made by the officers telling her what she did, and that these statements were not in her own words.

According to her testimony two of the people who allegedly accompanied her on August 18, 1975, from Birmingham to Tuscaloosa were present in the witness room during her trial but neither of them was called as a witness in her behalf to support her alibi. She was the sole and only witness to testify in her behalf.

The sufficiency of the evidence is not presented to us on this appeal. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; there was no motion for a new trial; and no exceptions were reserved to the oral charge to the jury. Fincher v. State, 55 Ala.App. 676, 318 So.2d 371; Jones v. State, 55 Ala.App. 466, 316 So.2d 713; Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613.

It is permissible for a deaf-mute to testify against the objection that the party against whom such testimony is given will be put to great disadvantage in cross-examination to test the deaf-mute’s credibility.

In Burgess v. State, 256 Ala. 5, 53 So.2d 568, the Supreme Court said:

“It is well settled by modern authority that it is permissible for such witness to testify as against the objections that the party against whom such testimony is given will be put to great disadvantage in cross-examination to test the witness’s credibility. 5 Chamberlayne, The Modern Law of Evidence, §§ 3635, 3636; Pruitt v. State, 232 Ala. 421, 168 So. 149. And it is observed by Prof. Chamberlayne in the last paragraph of said § 3636, pp. 5171-72, that: ‘And though a dumb person may not be educated in the use of signs and can only express assent or dissent by a nod or shake of the head, thus rendering cross-examination difficult, he may nevertheless be permitted to testify, but it is said that his disability may be considered by the jury, as bearing upon the weight of his testimony. That difficulty attends the examination of a deaf-mute is no reason why his testimony should be excluded,’, citing Quinn v. Halbert, 1882, 55 Vt. 224; Ritchey v. People, 1896, 23 Colo. 314, 47 P. 272, 384; Rushton’s Case, 1 Lea.C.C. 455 (1786); State v. He Wolf, 1830, 8 Conn. 93, 99; Snyder v. Nations, 1840, 5 Blackf., Ind., 295.
“In determining the qualifications of such witness to testify and the selection and qualification of the interpreter, much must be left to the sound discretion of the trial court who has full opportunity to see and observe the witness, and the interpreter, in the presence and hearing of the interested parties and their counsel, much of which cannot be portrayed on the written pages of the record. Pruitt v. State, supra; 53 Am.Jur. p. 44, § 29.”

We, therefore, hold that the trial court did not err in permitting the witness Karen Yance to testify against appellant. Nor was error committed in allowing her teacher, Ms. Gail Woods, to act as the interpreter of her testimony.

Alibi testimony, like all other evidence in a criminal prosecution, is an issue to be determined by the jury. The jury resolved this issue against appellant simply because they did not believe her testimony. Dulaney v. State, 56 Ala.App. 374, 321 So.2d 713-

Conflict in the testimony between defendant’s alibi and the testimony of the State presented a question for the jury in robbery prosecution. Clay v. State, 52 Ala. App. 272, 291 So.2d 364.

For a collection of cases on this issue see Alabama Digest, Criminal Law, «=» No. 739(1).

It is settled law in this state that a fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Gray v. State, 38 Ala.App. 508, 88 So.2d 798; Nabors v. State, 82 Ala. 8, 2 So. 357; Smith v. State, 53 Ala.App. 27, 296 So.2d 925; Dulaney v. State, supra.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is evidence of the defendant’s guilt is a question of law and its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Bolton v. State, 21 Ala.App. 373, 108 So. 631; Dulaney v. State, supra.

Appellant argues that prejudicial error was committed when the prosecutor was allowed to question her about taking drugs seven days after the robbery. We do not think the prosecutor exceeded the limits of permissible cross-examination in this instance. It must be remembered that appellant testified that she was intoxicated from taking drugs at the time she made the statement to Detective Wood. An eyewitness saw appellant in the getaway car at the drugstore where a number of hard drugs were taken during the robbery. The extent of cross-examination is addressed to the sound discretion of the trial court and is not reviewable on appeal except for abuse. We hold there was no abuse of discretion by the trial court under the facts of this case. Bosarge v. State, 273 Ala. 329, 139 So.2d 302.

By the consent of appellant and the attorneys for both sides the jury was allowed to separate during the trial and overnight. Appellant claims that the local newspaper carried a story about the robbery of the drugstore and quoted the trial judge as saying that he was satisfied that Karen Vance would tell the truth. Appellant states that this amounts to the trial judge commenting favorably on the testimony of the State’s witness. Appellant’s counsel told the Court that at the end of the trial he wanted the court to poll the jury to determine if any member of the jury had read the story and if they were in any way influenced by the news article. After the jury returned its verdict, the Court polled each individual juror with reference to the news report. About one half of the members stated that they had not read the news account and the other members of the jury said they had read the story but were in no wise influenced thereby. In our opinion no error intervened here. United States v. Hyde, 5 Cir., 448 F.2d 815, cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except CATES, P. J., who dissents.


author: LEIGH M. CLARK, Supernumerary Circuit Judge. CATES, Presiding Judge

text:
    Ronald GHOLSTON v. STATE.
    8 Div. 698.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.

      Guin, Bouldin & Porch, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was charged in a two-count indictment with murder in the first degree and robbery, allegedly occurring in Franklin County. The indictment was returned by a Franklin County grand jury, but on motion for a change of venue, the case was transferred to and tried in the Circuit Court of Madison County. The jury returned a general verdict finding defendant guilty as charged in the indictment and fixed his punishment at life imprisonment in the penitentiary. He was sentenced accordingly. His subsequent timely motion for a new trial was overruled by the trial court.

The evidence shows without dispute that on the night of December 29, 1974, one Willie Washington, a taxi driver, was savagely murdered and robbed in Russellville, while answering a call for his services. His throat was cut by a sharp instrument, his body was left in the cab, and money that he had had on his person was taken from him. Two persons, who were seen in the back seat of the cab a short while before the crime was committed, were afterwards seen running from the direction of the cab after it had stopped with the body of the victim in it. It was and is the contention of the State that the two persons seen in the cab were appellant and one Charles Randolph, that they were the persons seen running from the cab and that they committed the crime. The case of Charles Randolph has been before us on appeal from his conviction. We reversed and remanded because of error of the trial court in admitting in evidence testimony of witnesses showing that a witness for the State had made statements, prejudicial to defendant, inconsistent with his testimony on the trial. We noted in the opinion the impressiveness of argument of counsel questioning the sufficiency of the evidence and passed “to another day” a determination whether the evidence in this case justified the court in overruling defendant’s motion to exclude the testimony, the refusal of affirmative charges requested in writing by the defendant and the overruling of defendant’s motion for a new trial. Although the testimony in the case at hand is different in some respects from the testimony in Randolph, much of it is substantially the same, and the day has apparently arrived when we must make a determination, in the instant case at least, whether we must reverse the judgment for insufficiency of the evidence to withstand the mentioned motions and requests of defendant relative to the question of the sufficiency of the evidence, particularly defendant’s motion for a new trial. The motion was partly grounded on alleged insufficiency of the evidence and alleged, in one or more grounds, that the verdict was “not sustained by the great preponderance of the evidence.”

Following the course taken in Randolph, the State relies largely, if not exclusively, upon the testimony of fifteen-year-old Josephine Harrison to establish the identity of the persons in the cab. We had some concern in Randolph whether the witness had been shown to be a court’s witness, as distinguished from a State’s witness, but in the present case it appears that after the witness had been called and interrogated by the court, out of the presence of the jury, defendant’s counsel agreed with the State and with the court that she was then a court’s witness. No point was made to the effect that her status as a court’s witness had not been established, entitling either party to impeach her as if she were an adverse witness, as authorized by Peoples v. State, 257 Ala. 295, 58 So.2d 599. The same procedure was taken as to the witness Calvin Hurley, that is, he was treated as a court’s witness, by express stipulation of counsel. He was not called by the State as a witness, as he was in Randolph.

In Randolph, the State announced its surprise at the testimony of Hurley after only a few questions had been asked him. This unquestionably explains the difference between the status of the witness Hurley as a witness in Randolph and as a witness in the case now before us.

The identity of the persons in the taxicab with the victim was the crucial issue in the case. There seems to be no question as to their being the persons who robbed and killed him, and that they were the same persons seen running from the cab immediately thereafter.

Josephine Harrison testified that on the night of the crime she was at the home of one Sue Hamm in Russellville; there had been a death in the family; there were about ten other people present. She and her boy friend, Tracy Hagler, left the house for a while and went to Tracy’s nearby van. She saw the taxicab in which Washington was killed, with only the driver in it, going toward the Hamm house; it returned in about ten minutes. Her testimony continued:

“Q When the cab passed you coming back by, did you see anybody in the cab?
“A Yes.
“Q How many people were in the cab?
“A Three.
“Q And was there still a white person driving the cab?
“A Yes.
“Q Where were the other two people?
“A In the back seat.
“Q Were they white or black?
“A They were black.
“Q And you saw the cab come down here and you looked up and saw the cab stopped, is that right?
“A Um-hum.
“Q And then
“Q Did you see anybody coming back up the road after you saw the cab stopped?
“A Um-hum.
“Q How many people did you see coming back up the road?
“A Two.
“Q Were they on the paved portion of the road?
“A Yes.
“Q Were they walking or running?
“A They were running.
“Q And you were parked there under that light?
“A Um-hum.
“Q And they never did leave the paved portion of the road, you could see them running down that part of the road?
“A Yes.
“Q Okay. Now, when they passed in front of the vehicle, did you recognize who it was?
“A Yes. I think I did.
“Q You think you did or do you know or are you sure you did, Ruby [Josephine]?
“A I think I did.
“Q Have you ever testified before that you knew who they were and testified you knew that’s who that you saw?
“A What?
“Q Have you ever testified before that you recognized the people and you knew who they were?
“A Um-hum.
“Q You have?
“A Um-hum.
“Q And you gave that statement to somebody?
“A Um-hum.
“Q Did you testify at that time that you knew who the boys were and that it was Ronald Gholston?
“A Um-hum.
“Q And Charles Randolph?
“A Um-hum.
“Q Did you say at that time that is who you thought it was?
“A Um-hum.
“Q Did you say that is who you thought it was?
“A I don’t know. I guess.
“Q. Now, — but you are saying you are not positive now, but you think that is who it was?
“A I guess.
“Q You say you think it was the defendant seated over there, Ronald Ghol-ston, and Charles Randolph?
“A Um-hum.
“Q Did you see where they went?
“A No.
“Q You watched them run all the way up that road and watched them run in front of that cab and you never did look at them?
“A Yes. I was looking at them.
“Q Who was it that you saw that ran in front of the cab?
“A I don’t know.
“Q You don’t know?
“A Oh, I guess it was Ronald and Charles.
“Q You guess it was Ronald and Charles, referring to Ronald Gholston and Charles Randolph, is that right?
“A Um-hum.
“Q But you could see the cab and you did see the boys run in front of the van?
“A Yes.”

During the testimony of Josephine Harrison she was questioned as to specific statements she had made wherein she had said that the two boys running back from the cab toward Sue Hamm’s house were Ronald Gholston and Charles Randolph, that in the specific statements, including testimony before the grand jury, there was no “I think” or “guess” about her identification of the two. Included in such statements was a recording showing questions asked her and answers by her, which she identified out of the presence of the jury as her testimony “at a preliminary hearing ... in Franklin County.” The tape recording was first played back out of the presence of the jury, and thereafter it was played back in the presence of the jury. A portion of the tape as played back to the jury is as follows:

“Q What did the cab do after it left the Hamm house?
“A It rode down and stopped.
“Q Did you actually see the cab when it stopped.
“A Um-hum.
“Q What happened then when the cab stopped, please, ma’am?
“A Two boys got out of the cab.
“Q What did they do, where did they go?
“A They started running back down there to Sue Hamm’s.
“Q And did you recognize who the two of them were?
“A Yes.
“Q Who were they, please, ma’am?
“A Garry — I mean Doug Gholston — I mean Ronald Gholston and Charles Randolph.”

According to the undisputed testimony, the robbery and murder of Washington took place about 11:20 P.M. The testimony of the dispatcher of the cab company furnishes the best evidence as to the exact time. He received a call to send a taxicab to Sue Hamm’s house. At 11:05, Washington advised the dispatcher that he had unloaded a fare in Reed Town, another section of Russellville, and at that time the dispatcher gave him the message “to go to Sue Hamm’s residence on South Carroll Street.” It would have taken “anywhere from five to eight minutes” to go from where the passenger was unloaded in Reed Town to Sue Hamm’s house.”

Defendant testified that he was not at the scene or in the vicinity of the crime at the time the undisputed evidence shows that it was committed. He said he had been at Sue Hamm’s house that night from about “a quarter to seven . . . until about nine thirty or something to ten,” when he went to the home of Marvin Hill in Reed Town. Accompanying him was Charles Randolph, who arrived at the Hamm house about eight or eight-thirty; they stayed at Marvin Hill’s house until about 11:30 or something to twelve,” when he, Charles Randolph, and others left to go to Sue Hamm’s. . He testified that when they arrived in the vicinity of Sue Hamm’s home, a group had arrived at the scene of the crime, which the automobile in which he was riding went around and went to Sue Hamm’s house, where he and Charles Randolph got out of the automobile, and after he had “looked down at the commotion a while,” he went inside the house, where there were several people, including Josephine Harrison. He said he never went out of the house that night, that he spent the night in the Hamm house, where he had spent the night before. He said that he learned upon entering the house that someone had been killed “and the police weren’t letting anybody down there.” He said that at no time that he was at the Hamm house did he hear anybody call for a taxicab.

The defendant was corroborated by some witnesses as to his whereabouts the night of the crime, including his presence in the home of Marvin Hill at the time of the commission of the crime and his journey from Hill’s to the scene of the crime soon after its commission.

Defendant was not apprehended until about a week after the crime. There is no serious contention, however, that his late apprehension was due to any flight or similar conduct on his part.

Tracy Hagler, the boy friend of Josephine Harrison, who was sitting in the van with her at the time the taxicab went to Sue Hamm’s and returned, testified as a witness for defendant. He said that he also saw the cab; at first only the driver was in it; the cab went toward the Hamm house; he saw the cab return from the direction of the Hamm house. He saw two black persons in the back seat of the cab. After the cab passed close to where the van was at the time, “the two boys or two men” came back running. This was about three minutes after the cab passed where he and Josephine were in the van. He testified that neither of the two was the defendant. He said that the two men or boys had “big Afros, way bigger than mine, and they were pretty big.” He did not know either one of them. He said that the two persons were “bigger” and heavier than defendant. On cross-examination, he testified that he had made previous statements, particularly in testifying on the preliminary hearing, and that he had not stated that the two persons he saw had Afros; that his previous statements were to the effect that the only thing distinctive about either of the two men was that the one closest to him “had on dark clothes.”

To determine whether the evidence is sufficient to uphold the judgment of the trial court, we must consider the testimony of Josephine Harrison, the only witness who identified defendant as one of the persons running from the scene of the crime to the home of Sue Hamm, in the light of the established principle that the statements she made prior to her testifying as a witness on the trial of this case do not furnish substantive evidence of the guilt of defendant. In MeElroy, Law of Evidence in Alabama, § 159.02(1), it is stated:

“A self-contradictory statement by a witness who is not a party, whether testified to by him on cross-examination or proven by others is not substantive evidence of the matter asserted, that is, such statement operates only to discredit the witness, and has no other effect; in particular, such statement cannot be the basis of a finding of a fact necessary to the establishment of liability or defense. Hamilton v. Browning, 257 Ala 72, 57 So 2d 530; Ferlise [Ferlesie or Ferlise] v Cook 201 Ala 571, 78 So 915; Thomas Furnace Co v Carroll, 204 Ala 263, 85 So 455; Lynn v State, 37 Ala App 400, 69 So 2d 485, syl 4; Lawson v State, 36 Ala App 438, 57 So 2d 643, syl 4; Anno: 133 ALR 1455.”

The quoted statement was recently applied in Cloud v. Moon, 290 Ala. 33, 273 So.2d 196.

We are not here faced with the question of discreditation of the substance of the testimony of the witness but of the uncertainty of the witness as to what she testified. If the witness had testified that neither of the persons she saw running from the cab toward the house of Sue Hamm was defendant, if her testimony were blank on the question whether defendant was one of such persons, the State’s case would fail, even though the State was able to show by the witness that she had made previous statements, some in the form of testimony, wherein she positively identified defendant as one of the persons. Such is not the case here, however. In her testimony, before any attempt to impeach her was made, she identified defendant as one of the persons. The fact that she did not positively identify him does not vitiate her testimony as to his identity. The hesitancy of a witness in identifying a defendant is a matter for consideration of the jury in passing upon the weight of such testimony. McCay v. State, 51 Ala.App. 307, 285 So.2d 117, cert. denied, 291 Ala. 788, 285 So.2d 122. Were it not for the testimony of Tracy Hagler that neither of the persons running from the scene of the crime was defendant, we would have a situation similar to the one described in Rodgers v. State, 27 Ala.App. 288, 171 So. 386, as follows:

“The corpus delicti was proven without dispute and the only question and issue was as to the identity of the person of the defendant. The crime was committed by two men, both of whom participated in the robbery. The evidence for the State tended to prove that this defendant was one of them. The evidence for the defendant tended to prove an alibi, but, as presented, the question was for the jury and, as we see it, the court committed no error in refusing to give at the request of the defendant the general affirmative charge.”

We do not believe that the testimony of Tracy Hagler detracts from the testimony of Josephine Harrison in identifying defendant. The radical difference between his description of the two men and the physical characteristics of defendant, as well as Randolph, might tend to show that Josephine was lying in her identification of defendant, but it would not tend to show that she was mistaken. She would have had no occasion to have been lying against defendant. Her testimony is assailed by reason of her uncertainty at the time she testified on the trial. If the two men were as Hagler described them, it is unreasonable to say that Josephine mistook them for defendant and Randolph.

The fact that Josephine identified Randolph, as well as defendant, tends, we think, to strengthen her testimony as to identity. According to the undisputed evidence, Ghol-ston and Randolph were together at the time, wherever they were. She would have had to have been mistaken as to the identification of each in order to clear either of guilt.

In considering the matter of the weight of the testimony, it is to be readily seen that testimony of defendant and others as to the time he left Marvin Hill’s need only to be in error by approximately 15-30 minutes to discredit his claim of an alibi.

There was substantial evidence of defendant’s guilt, which justified the court’s denial of defendant’s motion to exclude the testimony and the court’s refusal of the requested affirmative charges in favor of defendant. Furthermore, we are not convinced that the court was in error in overruling defendant’s motion for a new trial. There is little, if any, indication of any prejudicial attitude on the part of the jury. The case was removed, on motion of defendant, from a county in which it was claimed that there could have been local prejudice. A trial court should not be held to have committed error in overruling a motion for a new trial unless the weight or preponderance of the evidence is so great against the verdict as to convince the court on appeal that the verdict is wrong and unjust. Swinney v. State, 225 Ala. 273, 142 So. 562; Curtis v. State, 226 Ala. 29, 145 So. 430; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624.

Raised for the first time in Alabama is the question whether the offense of selling marihuana is a crime involving moral turpitude. The State was allowed to show, over the objection of defendant, that the witness Marvin Hill had been convicted of selling marihuana. Appellant zealously insists this was error.

The controlling statutory law is:

“No objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury; but if he has been convicted of a crime involving moral turpitude, the objection goes to his credibility.” Code of Alabama 1940, Tit. 7, § 434.

We fully realize that there can be, and almost certainly are, two opinions, each to some extent reasonable, upon the subject, but there is no middle ground for us at this time, and we can no longer “halt . between two opinions.”

As the legislature has determined the type of crime that furnishes a basis for the impeachment of a witness if it can be shown that he has been convicted for such crime, the view of the legislature as to particular statutory crimes should be considered. Marihuana has been contraband in Alabama for forty-five years. Act No. 26, Ala. Acts 1931. At first, possession, sale, etc. was a misdemeanor. It was made a felony in 1951. Act No. 307, Ala. Acts 1951. Its inhibition is now found in the Alabama Uniform Controlled Substances Act, Code of Alabama Recomp. 1958, 1971 Cumulative Pocket Part, Tit. 22, § 258(25)-(60). By § 258(47), possession of marihuana for personal use only constitutes a misdemeanor only as a first offense, but as to a subsequent offense, it is a felony; a sale thereof constitutes a felony, for which the legislature has prescribed imprisonment in the penitentiary for not less than two nor more than fifteen years as punishment for the first offense; in addition, a fine of not more than $25,000 can be imposed. For a second sale, the sentence and the fine may be doubled. § 258(53). In Ledbetter v. State, 34 Ala.App. 35, 36 So.2d 564, cert. denied, 251 Ala. 129, 36 So.2d 571, it was firmly established, in the process of overruling previous Court of Appeals cases and distinguishing a previous Supreme Court case, that not all crimes punishable by imprisonment in a state penitentiary are necessarily crimes involving moral turpitude. The fact that the sale of marihuana is a felony does not make it a crime involving moral turpitude, but the fact that it is a felony, as well as the extent of the punishment prescribed by statute, is worthy of consideration on the question whether the crime involves moral turpitude. Furthermore, worthy of special consideration is the fact that marihuana is a Schedule I substance in that it has “high potential for abuse” and has “no accepted medical use in treatment in the United States.” Tit. 22, §§ 258(28), 258(29)(d)(10).

Thus we find that our own Legislature which has the authority to classify crimes, has said that marihuana is a hallucinogenic substance and that the sale of it is so productive of harm that the one who sells is a felon who deserves punishment, even for the first offense, of imprisonment in the penitentiary for not less than two nor more than fifteen years and is subject to an additional punishment in the form of a fine of not more than $25,000, unless the State Board of Health determines, which it has not determined, that it has accepted medical use in treatment in the United States. It is understood that it does not have accepted medical use in treatment in any of the United States.

“The mixture contains a drug not currently used in medicine but illegally used for pleasurable results.” Enc. Americana, Marihuana, (1973)
“There is no established medical use for marihuana or any other cannabis preparation.” Enc. International, Marihuana, (1974)

The principle that not all felonies involve moral turpitude has been given application to distilling. Marshall v. State, 207 Ala. 566, 93 So. 471. At the time it was so applied, the offense was proscribed by Act No. 7, Acts 1919, § 15, which made the offense a felony by prescribing the punishment as a sentence to the penitentiary for not less than one year or longer than five years. Other offenses under prohibition laws, including that of bootlegging of whiskey, have been held not to involve moral turpitude. Wiggins v. State, 27 Ala.App. 451, 173 So. 890. It is to be noted, however, that exceptions were made as to the possession and processing of prohibited liquor, and even the sale of it. The law was not applicable to the possession of “wine or cordial made from grapes or other fruit, when the grapes or other fruit are grown by the person making the same for his own domestic use, upon his own premises in the state . not exceeding five gallons for one family in twelve months,” nor to the possession of “wine for sacramental purposes.” Act No. 7, Ala. Acts 1919, § 2. The sale of grain alcohol could be made by retail druggists upon a prescription by a physician that it was for medicinal purposes. Act No. 7, Ala. Acts 1919, § 5.

Appellant relies heavily upon Pippin v. State, 197 Ala. 613, 73 So. 340 (1916), and Peters v. State, 240 Ala. 531, 200 So. 404 (1941). In Pippin, it was held that selling cocaine was not a crime involving moral turpitude. In so holding, the court took express note of the fact that it was a misdemeanor but did not hold that such fact was determinative of the question. Pippin was followed and applied in Peters to the violation of the Harmon Act, Code of Alabama 1940, Tit. 22, § 232, et seq., wherein the sale of cocaine and other specific narcotics was made a felony, but exceptions were expressly made to sales by druggists as prescribed by physicians under specified restrictive circumstances.

The Alabama Uniform Control Substances Act was coordinated with, and largely followed, the language of, the Federal Drug Abuse Prevention and Control Act of 1970. 21 U.S.C.A. § 801, et seq. Pertinent to the subject are Executive Orders No. 11599 and No. 11641. In No. 11599, June 17, 1971, 36 F.R. 11793, the President stated:

“Drug abuse has assumed alarming proportions in recent times and its spread must be reversed forthwith.”

In No. 11641, January 28, 1972, 37 F.R. 2421, the first sentence is:

“The menace of drug abuse threatens to sap our Nation’s strength and destroy our Nation’s character.”

Marihuana is listed in Schedule I, as it is in the Alabama statute. Neither under the federal statute nor under the Alabama statute has the substance been administratively reclassified.

If we are to consider Pippin and Peters as holding in effect that selling marihuana does not involve moral turpitude, we need go no further and would so hold here, but, as we see it, there are many distinguishing features between the crime of selling marihuana at the present time and the crime of selling narcotics at the time of Pippin and Peters, which justify our looking elsewhere for authority on the point. There are several cases elsewhere that hold that the sale of narcotics is a crime involving moral turpitude. In re McNeese, 346 Mo. 425, 142 S.W.2d 33; Garlington v. Smith, 63 Ariz. 460, 163 P.2d 685; White v. Andrew, 70 Colo. 50, 197 P. 564. It has also been held that the violation of a particular section of the Harrison Anti-Narcotic Act does not constitute a crime involving moral turpitude. U. S. ex rel. Andreacchi v. Curran, D.C.N.Y., 38 F.2d 498, in which, however, it was said:

“. . . I must distinguish between the crime for which he was sentenced and the acts which may have and probably did follow as a result of that crime. Very likely his omission to comply with the Harrison Anti-Narcotic Act enabled him to traffic in narcotics, and to commit acts which did involve moral turpitude; but I cannot now take into consideration those acts and their possible results. I must confine myself solely to determining whether the violation of the Harrison Act itself involves moral turpitude. . The crime consists not in engaging in narcotic traffic, but in merely failing to register, pay a tax and comply with certain regulations of the Internal Revenue Commissioner. It is to be regarded solely as a revenue act whatever incidental results might accompany its enforcement.

In State Board of Medical Examiners v. Friedman, 150 Tenn. 152, 263 S.W. 75, there was involved a violation of the Harrison Anti-Narcotic Act. The court remanded the case for a determination whether the particular conduct of defendant constituted a crime involving moral turpitude, holding that a violation of the Act did not per se involve moral turpitude. In so deciding, the court took into consideration the provision of the Act to the effect that a physician could lawfully prescribe and dispense drugs controlled by the statute. The court said:

“We think it conceivable that there might be a conviction under the Harrison Act which would show that the convicted physician had been guilty of acts involving ‘moral turpitude’ when he violated the federal statute in question. “Thus, suppose it should be shown that the convicted physician was in fact a mere drug peddler, preying on the necessities of that unfortunate class known as ‘drug addicts.’ The record of the conviction, in such case, might indicate a high degree of ‘moral turpitude.’ ”

A relatively recent case in which it was held that unlawfully possessing and selling drugs was a crime involving moral turpitude within the meaning of the term in a particular statute is John's Vending Corp. v. Secretary of Revenue, Cigarette Tax Bd., Dept. of Revenue, 3 Pa.Cmwlth. 658, 284 A.2d 834, 837, in which it was said:

“. . Further, however individuals may feel concerning the morality of personal use of drugs, the ‘common sense’ of contemporary society is that the illegal sale of drugs is base, vile, depraved and a grave offense against public morals.

However we may feel as to the quoted statement, whether it goes too far in branding persons guilty of illegal sales of drugs as guilty of crimes involving moral turpitude and thus brand some selling occasionally for the good that the drugs would do under the particular circumstances, we can hardly disagree with it when applied to a hallucinogenic illegal substance, which in the eyes of the law has no redeeming feature, such as marihuana. There are those that believe that the possession of marihuana should be decriminalized; there are those that robustly advocate that the punishment is too severe. Their position, however, is not in accord with the law on the subject. Neither they nor anyone else can reasonably contend that, assuming the law is correct in its design and in the extent of punishment provided, the sale of marihuana is not base, vile, depraved and a grave offense against public morals.

In our opinion, the court was not in error in overruling defendant’s objection to the question to the witness sought to be impeached as to his conviction for the sale of marihuana. To hold that such is not a crime involving moral turpitude would be incompatible with the expressed view of our Legislature, the constitutionality of the statute as to punishment is not being inhibited as cruel or unusual, and in the view of the great majority of the public generally who do not subscribe to the view of those who clamor for a change in the law as to marihuana.

We are unable to hold that the court committed reversible error in overruling defendant’s objection to argument for the prosecution that is not set out in the transcript of the proceedings. The vague implications of what State’s counsel argued as contained in defendant’s counsel’s objections are insufficient for us to hold that the argument was improper. Argo v. State, 282 Ala. 509, 213 So.2d 244; Canady v. State, 55 Ala.App. 473, 316 So.2d 720; Cassady v. State, 51 Ala.App. 544, 287 So.2d 254.

We have considered all questions raised by appellant and have examined the record to determine whether there is any error therein prejudicial to defendant and have found none. The judgment is due to be affirmed.

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

AFFIRMED.

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

CATES, P. J., dissents.

CATES, Presiding Judge

(dissenting).

I think § 434 is contrary to early Common Law. Hence, it must be strictly construed. Wigmore, Evidence (3rd Ed.) § 519 et seq.

Cocaine is a far more harmful substance. Pippin, supra, being a decision of the Alabama Supreme Court controls us.

      . Randolph v. State, Ala.Cr.App., 331 So.2d 766.


author: PER CURIAM. CATES, Presiding Judge

text:
    Damon Shelton NAPIER v. STATE.
    1 Div. 693.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    David L. Barnett, Mobile, for appellant.
    William J: Baxley, Atty. Gen. and James S. Ward, Asst. Atty. Gen., for the State, appellee.
   PER CURIAM.

This is an appeal from a conviction of possession of a variety of controlled substances. The general issue on Count 1 (quaalude), Count 3 (morphine sulfate), Count 4 (pantapon), and Count 5 (methamphetamine) resulted in a general verdict of guilty with a fine of $25,000. The trial judge sentenced Napier to five years penitentiary punishment.

The only two adverse rulings worthy of comment are correct under Brantley, 294 Ala. 344, 317 So.2d 345 (multiplicity of drugs in evidence) and Cassell, 55 Ala.App. 502, 317 So.2d 348 (non legislative ascribing methaquaalude to controlled substance list ex post facto by the non-elected State Board of Health).

Hence, the judgment below is

AFFIRMED.

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

CATES, P. J., dissents.

CATES, Presiding Judge

(dissenting):

I think Brantley, supra, is wrong, but our elder brethren have spoken.

However, Cassell’, supra, was never squarely laid before them. I repeat my dissent therein.

Therefore, I respectfully dissent.


author: L. S. MOORE, Supernumerary Circuit Judge. TYSON, Judge

text:
    Irvin PITTS v. STATE.
    1 Div. 706.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   L. S. MOORE, Supernumerary Circuit Judge.

The appellant was adjudged guilty of being a youthful offender and was committed to the custody of the Director of the Department of Corrections for two years, August 31,1973. Said sentence was suspended and appellant was placed on probation for three years on the same date as the sentence.

On April 9, 1975, the district attorney filed a motion to revoke his probation, alleging that on January 11, 1975, the appellant was arrested on a charge of robbery and later was indicted and the case is pending in the circuit court of Mobile County. That motion was heard and denied by the court. On November 24, 1975, the district attorney filed another motion to revoke appellant’s probation. That motion was heard on March 5,1976. On that hearing testimony of witnesses and other evidence was presented in open court. The appellant testified in his behalf that he entered a plea of guilty and was convicted and sentenced for petit larceny in Recorder’s Court. Other evidence on the hearing shows said conviction occurred on September 8, 1975.

On March 5, 1976 the court revoked the suspension of sentence and the appellant’s probation and ordered the appellant to serve the two years imposed with the Director of Corrections.

The appellant appeals from that judgment but does not file a brief on said appeal.

The Attorney General in brief contends first there was sufficient grounds for revoking the appellant’s probation after a full and complete hearing on the matter. With that contention we agree. The appellant had been convicted for petit larceny and was under indictment for robbery. The probation was conditional on good behavior. The appellant’s conduct did not come up to that condition.

The Attorney General in brief also contends the appellant does not have right of appeal from a judgment revoking his probation. He cites Hughes v. State, 45 Ala.App. 250, 228 So.2d 862. In that case the defendant entered a plea of guilty and his application for probation was denied. He appealed from the judgment denying him probation and the court said:

“An appeal in a criminal case can be taken only from a judgment of conviction. . [and] [A]n order made after final judgment is not, in the absence of statutory provision, an order from which an appeal may be taken.”

The order denying probation was an exercise of discretion authorized by § 19 of T. 42, Code of Alabama, Recompiled 1958, and was not the real final judgment. The final judgment was the judgment of conviction and sentence. Not withstanding the opinion in that case an appeal should have been permitted from the judgment of conviction. That was a final judgment. But the court ignored the fact that the defendant had appealed from that judgment, and the case was disposed of on the ground an appeal cannot be taken from the judgment entry after conviction denying probation. With that we agree, however, the opinion is in error for affirming the judgment of conviction without considering the appeal from the judgment of conviction.

The case before us is different from Hughes, supra. In the instant case the defendant was granted probation and the execution of the sentence suspended. The final judgment that the sentence be executed, that is put in effect or operation, did not come until the judgment of revocation. Furthermore, a hearing is required to revoke probation and that would be an empty question unless some review on appeal could be had.

In McCain et al. v. Sheppard, 33 Ala.App. 431, 34 So.2d 225, the appellant’s probation was revoked by the circuit judge upon being informed that appellant had been convicted in the Federal Court on a charge of distilling. The circuit judge revoked his probation without a hearing. A warrant was issued for the appellant and he was arrested. A hearing was not contemplated. In the warrant was an order that the sentence imposed be served. The appellant filed a petition for writ of habeas corpus which was granted by the trial judge. The respondent and the State appealed. This court in that case affirmed the trial court and as to appeals in such cases had this to say:

“ ‘When a hearing is allowed but there is error in conducting it or in limiting its scope, the remedy is by appeal. When an opportunity to be heard is denied altogether, the ensuing mandate of the court is void, and the prisoner confined thereunder may have recourse to "habeas corpus to put an end to the restraint.’ ”

We, therefore, hold the judgment revoking the appellant’s probation in this case is appealable.

We have carefully searched the record for error and have found no such error.

It is therefore, ordered that the judgment of the circuit court be affirmed.

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

The judgment below is hereby

AFFIRMED.

HARRIS and DeCARLO, JJ., concur.

TYSON and BOOKOUT, JJ., concur specially.

CATES, P. J., concurs in result.

TYSON, Judge

(concurring specially).

I believe that the opinion in this case is correct as it shows full compliance with minimum due process as is set forth in the opinion of the Supreme Court of Alabama in Armstrong v. State, 294 Ala. 100, 312 So.2d 620, and authorities therein cited.

BOOKOUT, J., concurs in the above.