text:
    Raymond GILMORE v. STATE.
    4 Div. 456.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Oct. 26, 1976.

      J. Allen Cook, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged Raymond Gilmore with the unlawful assault with intent to murder one Clifton Lawson. The jury found the appellant “guilty as charged,” and the trial court then entered judgment setting sentence at five years imprisonment in the penitentiary. The appellant filed a motion for new trial which, following a hearing thereon, was denied (R. 149, 154, 162).

The event giving rise to this indictment took place during the early morning hours of September 28, 1975, at the residence of Olean Hicks, which is located on Point A Road in Covington County.

Deputy Sheriff Howard Easley testified he received a call from the Andalusia Police Department around 1:10 a. m. and was informed that a shooting had taken place in the Point A community at the home of Olean Hicks. Deputy Easley stated that he arrived at the Hicks’ home around 1:30 a. m. almost simultaneously with the rescue squad and was requested by them to enter the home first to insure that all shooting had ceased. Deputy Easley testified he entered the front door which led him into a bedroom where he found Olean Hicks and Jeanette Lawson “trying to quiet the children.” Deputy Easley stated that as you enter the front door of the house (into the front bedroom), there is a door to the immediate left which leads into the living room where he observed the victim of the assault, Clifton Lawson, lying on the floor in a “pool of blood” near the back wall. He testified that he then motioned for the rescue squad to enter, and they placed the victim on a stretcher and put him in the ambulance. Deputy Easley stated he observed no weapon near the victim’s body, and that the appellant was not present in the home at that time. He stated that he questioned Olean Hicks and Jeanette Lawson about the shooting, and that he, Jeanette Lawson, and Deputy Jim Stallings who had subsequently arrived on the scene, drove over to the appellant’s home and arrested the appellant. Deputy Easley testified that when they entered the appellant’s bedroom, he pointed to the corner where they found a twelve gauge double barrel shotgun lying behind a dresser. He stated that they took the gun and the appellant in custody and proceeded to the Sheriff’s Department after advising the appellant of his Miranda rights.

Deputy Jim Stallings, also of the Coving-ton County Sheriff’s Department, testified that upon his arrival at the Hicks’ home, he, too, observed the body of the victim and stated that Clifton Lawson had been shot in the thigh area of the right leg which left “quite a bit” of blood on the living room floor. Deputy Stallings testified that he, Deputy Easley, and Jeanette Lawson drove over to the appellant’s home and placed the appellant under arrest. He further stated that they did not place Jeanette Lawson (the appellant’s daughter and wife of the assaulted victim, Clifton Lawson) under arrest that night, but did state that he testified before the Grand Jury, which also subsequently indicted Jeanette Lawson for this assault on Clifton Lawson’s life.

Elmer Hicks testified that he was the former husband of Olean Hicks and lived in a house about three miles from her home where the shooting incident took place. Mr. Hicks stated that after being notified by Mrs. Hicks around 1:00 a. m. that his stepson had been shot, he immediately went to her home. He stated that after the officers, the ambulance, and everyone else had left, he began mopping up the blood in the living room and also that blood which had been tracked throughout the house. Mr. Hicks testified that while in the process of cleaning up the home, he found a twelve gauge pump action shotgun “lying flat on the floor” behind a dresser in Olean Hicks’ front bedroom. He stated that a cursory inspection of the gun revealed no blood on the outside, and that he then placed the shotgun by the fireplace and called his stepson, Danny Lawson, and the District Attorney to inform them of his find. Mr. Hicks testified that Danny Lawson came by at a later time and took possession of the gun.

Danny Lawson testified that he was the stepson of Elmer Hicks and the brother of the assault victim, Clifton Lawson. He stated that in the early morning of September 28, 1975, his mother called him and told him that his brother had been shot. He testified he immediately went to his mother’s home and was the first one to arrive on the scene. The witness stated that after observing his brother lying on the living room floor, he left to “recall” the rescue squad, then returned to the house about the time the rescue squad was putting his brother in the ambulance. He further stated that he rode with his brother in the ambulance to the hospital in Mobile. Lawson testified that the following day he received a call from his stepfather, who told him to come up to Olean Hicks’ home because “he had found something.” He stated that when he arrived there, his stepfather “turned over to him” a loaded single barrel pump shotgun, but stated that no shell was lodged in the firing chamber. He concluded his testimony by stating that upon his initial arrival at Olean Hicks’ home on the night in question, he did not notice any type of weapon around his brother’s body.

Olean Hicks testified that around 1:00 a. m. on the morning of September 28, 1975, she was awakened by a call and knock on her front door. She stated that when she unlocked the door, she recognized the visitors to be her daughter-in-law, Jeanette Lawson, the appellant (Jeanette’s father), and several other members of the Gilmore family. Mrs. Hicks testified that when she noticed that the appellant “had something,” she tried to close the door to keep them from entering, but that they pushed the door open and knocked her down on the bedroom floor. Mrs. Hicks stated she hollered for her son, Clifton, just before she heard the blast of a shotgun in her living room. Although Mrs. Hicks stated that her mind went momentarily blank after the shot was fired, she did recall the appellant stating that, “he had come to get the kids and I meant to get them.” ' She testified that Larry and Farrell Gilmore then took the appellant out of her house and that she immediately called her stepson, Danny Lawson, and her ex-husband, Elmer Hicks. The witness stated that her phone “went out” and that she and the “two children” drove to her neighbor’s home and called the rescue squad. Mrs. Hicks testified that she returned to her home, then followed the rescue squad to Columbia General Hospital and later to the hospital in Mobile. She further testified that at no time during the “commotion” in her home did she see a shotgun near her son’s body. However, on cross-examination she stated that sometime before this shooting incident her son had placed a shotgun behind the dresser in her front bedroom to get it “away from the kids” and that she had noticed the shotgun was still there the afternoon prior to her son’s getting shot.

The victim of the appellant’s assault, Clifton Lawson, testified that he was asleep in the back bedroom of his mother’s home with his little son, Chris, and was awakened by his mother’s call to him. He stated that he got up to see what was wrong, and that when he had taken about four or five steps into the living room, the appellant shot him in the leg with a shotgun. He testified that he fell back on the couch, then heard the appellant declare, “I am going to go ahead and kill the S.O.B.,” and that then his wife, Jeanette, “ran in there and got in front of him.” Clifton Lawson stated that he did not have a shotgun in his hand at the time he was shot and that he did not say anything to the appellant before being shot by him. The witness stated that he was subsequently taken by the rescue squad to Columbia General Hospital and then later to Mobile where he remained hospitalized for about two and one-half months. Clifton Lawson testified that he owned a shotgun and that on an occasion previous to the time he was shot, he had placed it behind a dresser in his mother’s front bedroom. Mr. Lawson further testified that he and the appellant’s daughter, Jeanette Lawson, had been married for six years and were presently living together as husband and wife, although she, too, was under indictment for this assault on his life. The witness also stated that he had had no difficulties with the appellant prior to this shooting incident of September 28, 1975.

The appellant, Raymond Gilmore, testified that at the time Clifton Lawson was shot, his daughter, Jeanette Lawson, and Clifton Lawson were temporarily separated, and that his daughter had been living with him at his home in the Rawls School Community. The appellant stated that his daughter had requested him to accompany her to Olean Hicks’ home (where Clifton and their two children were then staying) so that she could pick up her daughter, Connie, who had been sick for several days with a virus. The appellant testified he was standing unarmed beside the car when his daughter, Jeanette, knocked on the front door of Olean Hicks’ home. However, the appellant did state that he had brought along his shotgun, but had left it inside the car which was also occupied by his two sons, Larry and Ferrell Gilmore, and his daughter-in-law. The appellant testified that Olean Hicks allowed his daughter to enter his home and that shortly thereafter Mrs. Hicks began “hollering for Clifton.” He stated that he then saw Clifton Lawson come out of the back bedroom with a gun, and, with this, he grabbed his shotgun from the front seat of the car, went into the house, and stood in the living room door. The appellant testified he told Lawson “to throw that gun down,” but that when Clifton Lawson “kept coming with it,” he shot him in the “interior part of the leg . between the kneecap and the hip.” The appellant stated that he was about twelve or fifteen feet from the victim when he fired, and stated he could have “shot him in the heart if I had wanted to.” The appellant testified that immediately after shooting Clifton Lawson, the members of his family who had remained outside in the car “came in and got me,” and that his oldest son, Larry, picked up Clifton’s gun, which was lying about three or four feet from his body, and placed it “behind the dresser to get it out of the way.” The appellant stated that Larry then took him back to his home.

Larry Gilmore testified that he, his wife and brother, Farrell, also accompanied his sister, Jeanette, to Olean Hicks’ home on the early morning in question. He stated that upon their arrival there, Jeanette went up to the front door and knocked while “daddy” (the appellant) stood outside between the car and front porch. The witness stated that when Jeanette entered the house, the appellant, who had his gun “with him all during the time,” followed her inside. The witness testified that almost immediately thereafter he heard “Olean talking to someone in a warning voice and then heard a gunshot.” Larry Gilmore stated his sister, Jeanette, “hollered” for his brother, Farrell, to come inside and that he and his brother then ran in the house and saw their sister kneeling beside Clifton Lawson’s body. The witness stated he saw a shótgun lying about two feet from the victim’s body, and that when his sister told him to take “daddy” home because “Olean was on the phone calling someone,” he picked the gun up and threw it behind the dresser in the front bedroom, then left with his brother and the appellant. The witness further testified that, “Nobody saw what I did with the gun,” but stated that he subsequently told his father, sister, and Sheriff Elie Har-rel that he had thrown the gun behind the dresser.

Jeanette Lawson testified that on September 28, 1975, she was temporarily living with the appellant, her father, at his home. She testified that she told him that night that she wanted to go over to Olean Hicks’ home and talk with her husband, Clifton, to see if she could “get the kids” because her oldest daughter was “kind of sick,” and they (and several other members of her family) drove over to the Hicks’ home. The witness stated that after Mrs. Hicks learned of her purpose for being there and “saw my folks in the car,” she (Mrs. Hicks) began calling her names and fighting with her. The witness stated that during this confrontation, Mrs. Hicks screamed, “Come here quick, Clifton, it’s Jeanette,” and that about this time she heard a gunshot in the living room. She testified that she then ran into the living room where she saw the appellant, whom she had not seen enter the house, standing there with a gun and Clifton lying on the floor “crawling backwards.” The witness testified that she pleaded with the appellant, who appeared to be in shock, not to shoot Clifton again, and that her brother, Farrell, then came in and took the “gun away from daddy.” The witness further testified that because the entire incident “was such a turmoil,” the only weapon she noticed in the living room was the gun which her father had.

Farrell Gilmore testified he was sitting on the back seat of his sister’s car during the incident in question. He stated that the appellant was initially stationed by the front fender of the car, but when the appellant saw (through the living room window) Clifton Lawson enter the room with a gun, the appellant grabbed his gun off the car’s front seat and went into the house. The witness stated that through the front door of the house, he saw the porch light reflect off an object inside which appeared to be a gun in the hands of Clifton Lawson, but later testified he was uncertain if a gun indeed had reflected the light. The witness testified he heard a gunshot and that his sister then yelled for him to come inside. He testified he ran inside and “got daddy’s gun” and took it back outside and laid it on the hood of Jeanette’s car. He stated he then went back in the house and got the appellant and took him home. The witness further testified that during the excitement he did not see a gun “laying there on the floor anywhere” near Clifton Lawson’s body.

I

The appellant contends that his motion for new trial was due to be granted because the jury could not reasonably infer from the evidence presented that he intended to take Clifton Lawson’s life.

Because intent to take life is an essential element of assault with intent to murder, such intent must be satisfactorily proven by the State in order to support a conviction for the offense. Sparks v. State, 261 Ala. 2, 75 So.2d 103 (1954). This intent to take life may be shown by inference via the character of the assault, the use of a deadly weapon, and other attendant circumstances. Toliver v. State, 50 Ala.App. 654, 282 So.2d 92 (1973); Roberts v. State, 49 Ala.App. 729, 275 So.2d 709 (1973); Sparks v. State, supra.

The appellant does not dispute the fact that he shot Clifton Lawson with a deadly weapon (a twelve gauge double barrel shotgun), yet contends in his brief that the jury mistakenly “over emphasize[d] the deadly nature of a weapon an under emphasize[d] the non-deadly ‘attendant circumstances.’ ” The appellant cites as “attendant circumstances in his cause, which should have been given greater consideration by the jury, the fact that he had gone to Olean Hicks’ home on the early morning in question only at the request of his daughter; that he testified he deliberately aimed at Clifton Lawson’s leg when he could have shot him in the heart or face; and that the victim’s own testimony revealed that he (the appellant) had the opportunity to shoot a second time had he wanted to kill Clifton Lawson.

However, the jury may give to this evidence, as they may with all evidence, such emphasis and weight as they alone think proper in reaching their verdict. Wilcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969); Braswell v. State, 51 Ala.App. 179, 283 So.2d 630 (1973). We do not feel that it was unreasonable for the jury to infer the intent to take life from all the evidence presented at trial, which included the fact that the appellant leveled and fired a twelve gauge shotgun from twelve feet away at a man whom they presumably believed to be unarmed. Moreover, there is a strong presumption in favor of the correctness of the jury’s verdict, and this presumption is further bolstered when the trial judge, who like the jury hears the witnesses’ testimony and observes their demeanor, declines to grant a new trial. Toliver v. State, supra, and authorities therein cited.

We therefore conclude that the verdict of the jury was not patently against the weight of the evidence, thus, there was no error in the trial court’s denial of the appellant’s motion for new trial. Johnson v. State, 51 Ala.App. 172, 283 So.2d 624 (1973); Jones v. State, 40 Ala.App. 419, 114 So.2d 575 (1959).

We have carefully examined this record and find same to be free of error. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

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


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    In re Raymond GILMORE v. STATE. Ex parte Raymond Gilmore.
    SC 2155.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    J. Allen Cook, Andalusia, for petitioner.
    None for the State.
   BLOODWORTH, Justice.

Petition of Raymond Gilmore for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Gilmore v. State, Ala.Cr.App., 339 So.2d 116.

WRIT DENIED.

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


author: DAVIS, Circuit Judge.

text:
    Theresa BURGESS v. STATE.
    6 Div. 164.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.

      Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Joel L. Dillard, Asst. Atty. Gen., for the State.
   DAVIS, Circuit Judge.

This is an appeal from a conviction of first degree murder and the imposition of a life sentence.

At approximately two o’clock on the afternoon of July 20,1975, the defendant and her infant daughter were seen at the Druid City Hospital emergency room. The infant was approximately four to five weeks old, was a black female and was dead on arrival. The homicide division of the Tuscaloosa City Police Department was contacted. Chief Warren Miller, Detective Adolph South and Investigator Don Lake arrived at the hospital where photographs of the victim were made and where Chief Miller had some conversation from time to time with the defendant, Theresa Burgess, outside the hearing of Detective South. After approximately three hours had elapsed, the defendant rode with Chief Miller in his automobile to Police Headquarters. At five-thirty-five, P.M., in the presence of Chief Miller and Juvenile Officer Horace Hodge, Detective South explained to the defendant her constitutional rights and a rights form was executed. Detective South testified that neither he nor anyone in his presence threatened or coerced Miss Burgess in order to get her to make a statement. Detective South further testified that neither he nor anyone in his presence offered any reward or hope of reward to Miss Burgess if she would make such a statement. A statement was made as subsequently testified to by Detective South during the course of the trial.

In her statement, Theresa Burgess said that on one previous occasion the infant had suffered a broken arm which was treated and placed in a cast. She said she spanked the baby to make it quit crying, several times with her hand and two or three times with a belt. She stated that she threw the baby onto the bed several times and onto the living room sofa several times. She stated that she would hold the baby by its feet or ankles, turn around, let the baby loose and let the baby land on the bed or. sofa.

Theresa Burgess was evaluated at Bryce Hospital and the report of that facility indicated that she was competent to stand trial and that, at the time of commission of the act, she was not under the influence of any mental disease or defect so as to destroy or impair her criminal responsibility. Dr. Lower, Clinical Coordinator of the Forensic Program of Bryce Hospital testified during the trial that Theresa Burgess has an I.Q. of 61 which is classified as being in the mildly mentally retarded range and that: “Miss Burgess is an individual who tends to have a lot of trouble controlling her impulses and when she is under pressure, she tends to blow up and to not seem to be able to control herself as most of us do.” Dr. Lower also testified that she “. . .in fact was probably unable to control her impulses because she was very upset at the time and all the problems she was having with this child.” Dr. Lower testified that Theresa Burgess could probably distinguish between right and wrong at the time the acts occurred but that she may have been faced with an irresistible impulse to do some act. The defendant’s mother and step-father testified that at times the defendant did not appear to be aware of what was going on around her. They further testified that Theresa was around 21, a high school graduate and the mother of another child, Shawn, age 2 years. Theresa Burgess testified that she never meant to hurt her baby.

There are three arguments presented on appeal:

I

It is the contention of appellant that the Court erred to a reversal in admitting appellant’s statement which describes her discipline of the month-old infant daughter. The State, preliminary to offering the statement, examined Detective Adolph South with regards to the giving of the Miranda rights. Thorough voir dire, outside the presence of the jury, revealed that Detective South was only one of several law enforcement officers present during the taking of the statement and, further, that Detective South did not overhear conversations had between the appellant and Police Chief Miller several hours prior to the giving of the statement offered. Detective South was the only law enforcement officer to testify. We have previously said that the State’s failure to offer other witnesses does not conclusively show that the burden cast upon the State to prove the voluntary character of the confession falls short. Garsed v. State, 50 Ala.App. 312, 278 So.2d 761.

Nor, do we accept the argument that the fact that the appellant is mildly mentally regarded taint the voluntariness of the statement. This would be a matter properly submitted to the jury which would bear on the weight and effect of the statement. Allred v. State, 55 Ala.App. 74, 313 So.2d 195. Here, as in the Allred case, the jury was charged on the question of sanity. There was no objection to the charge.

II

Appellant next argues that the denial of her motion to exclude and dismiss the State’s case is tantamount to reversible error in that the standards of the irresistable impulse test had been met. We disagree. This Court has held that the opinion of expert witnesses as to insanity are not conclusive and, even though it is without conflict, the jury may reject it all. Smith v. State, 54 Ala.App. 237, 307 So.2d 47. After thorough examination of the record on the point of insanity, we do not find the evidence of insanity is overwhelming and un-contradicted so as to justify the trial Court in so instructing the jury.

III

A photograph, depicting the infant victim, was admitted into evidence over objection by appellant that there was no probative value to outweigh its inflammatory and prejudicial nature. Appellant had previously admitted to the issues that the photograph tended to meet and the Court was very specific in its ruling. A number of photographs of the dead infant were offered and the photograph in question was the only such one received into evidence by the Court. The Court indicated that it would allow the one photograph to be received to “avoid any question about the identity of the child and mainly for that purpose”. The Court also indicated that “As a whole, I do not think the pictures are of such a nature that they are inclined to inflame the jury . . . ” Where such a photograph tends to shed light upon a material fact, it is admissible. Cook v. State, 52 Ala.App. 159, 290 So.2d 228.

While not entertaining the argument that admissions of the nature made by the appellant in this case may have the effect of barring the State the impact of its documentary evidence, we do feel one solution offered by Wigmore is best:

“. . . Hence, there should be no absolute rule on the subject; and the trial Court’s discretion should determine whether a particular admission is so plenary as to render the first party’s evidence wholly needless under the circumstances.” 9 Wigmore, Evidence, § 2591 (3d ed. 1940). [Footnote omitted.]

We discover no error in the Court allowing the photograph into evidence.

After carefully examining this record, as required by Title 15, Section 389, Code of Alabama 1940, we find the same to be free of error.

The foregoing opinion was prepared by Hon. John W. Davis, Circuit Judge, temporarily on duty in the Court pursuant to subsection (4) of § 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

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


text:
    Larry Wade PHELPS, alias, v. STATE.
    4 Div. 452.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Oct. 26, 1976.
    All the Judges concur except CATES, P. J., not sitting.
   AFFIRMED, without opinion.


text:
    In re Larry Wade PHELPS, alias v. STATE of Alabama. Ex parte Larry Wade Phelps, alias.
    SC 2170.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Earl V. Johnson, Andalusia, for petitioner.
    No brief for the State.
   BLOODWORTH, Justice.

Petition of Larry Wade Phelps, alias, for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Phelps v. State, Ala.Cr.App., 339 So.2d 124. The case was affirmed without opinion.

Although the petition’s basis is averred to be a “conflict” with a prior decision on the same point of law, it does not comport with Rule 39(c). The petition does not set out what the conflict is and what the case with which it conflicts held. The petition must therefore be denied.

We recognize that it is difficult, if not impossible, to claim a “conflict” in a “no opinion” case. But, we have not left a petitioner remediless.

What the petitioner should do when it is a “no opinion” case and he wants a review is to file (on rehearing in the Court of Appeals) a Rule 39(k), ARAP, request for additional facts so as to present his point for review. If that court “fails to accede to this request,” Rule 39(k), he should copy the same statement in his petition to this Court. The rule states “it will be considered * * if found to be correct.”

WRIT DENIED.

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


author: CATES, Presiding Judge.

text:
    Gregory BROWN, alias v. STATE.
    3 Div. 559.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Rehearing Denied Nov. 16, 1976.
    R. Howell Dean, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Robbery: sentence, ten years imprisonment.

Brown, with his brothers Leroy Brown, Jr. and Zane (or Zinc) Brown, held up a filling station on the Mobile Highway, taking $200.00 from Richard Stubbs. They kidnapped Stubbs and shot him through the skull. Stubbs survived and identified the defendant both from photos and in a lineup.

I

Under Rule 28(a)(7) ARAP counsel has raised fourteen points of claimed error. However, in only four of these instances do we find the record protected by an objection or motion made to evoke a ruling by the trial judge.

The settled interpretation of Code 1940, T. 15, § 389, is that this court in searching the record is confined to points on which rulings adverse to the defendant are had in the trial court. The Plain Error doctrine applies to death penalty cases but not to other convictions. Echols, 47 Ala.App. 23, 249 So.2d 639; Stinson, 56 Ala.App. 312, 321 So.2d 277. See also Segers, 283 Ala. 682, 220 So.2d 848, per Lawson, J.

Rule 28(a)(7) has not changed the definition of an “adverse ruling.”

II

One of the protected points in the record involved the seizure and delayed search of Leroy Brown, Jr.’s car after the issuance by the municipal court of a search warrant.

Ordinarily, delayed searches are circumscribed with hedging limitations. Loyd, 279 Ala. 447, 186 So.2d 731.

In this case we need not examine the details of the warrant or the seizure even though Myrick, 45 Ala.App. 162, 227 So.2d 448, might militate against any question that might be raised by Leroy Brown, Jr., who was the owner of the car.

Only persons whose privacy is invaded have standing to object to the seizure of their goods, papers and effects. Bridges, 52 Ala.App. 546, 295 So.2d 266. Therefore, appellant’s motion to suppress the evidence garnered from the car was not well taken.

III

The appellant’s motion to exclude the State’s evidence and to discharge him was properly overruled. This because there was enough proof to let the jury decide the general issue of guilt vel non. This we conclude after a consideration under Code 1940, T. 15, § 389.

IV

During the hearing on the motion to suppress objection was made to reference to the shooting of Stubbs. The jury was not present. Moreover, such proof is admissible because conduct involving intimidating or killing of witnesses reflects a consciousness of guilt. Hence, there was no error in overruling the objection. Whatley, 209 Ala. 5, 96 So. 605; Lambert, 55 Ala.App. 669, 318 So.2d 364; Ellis, 46 Ala.App. 289, 241 So.2d 130.

V

The final point taken is that the trial judge erred in refusing charge 6 requested in writing.

The refusal was not error because (1) two words were grossly misspelled, a circumstance which could confuse jurors — Griffin, 284 Ala. 472, 225 So.2d 875; Williams, 54 Ala.App. 244, 307 So.2d 53; and (2) the substance of the request was adequately — and better — covered in the oral charge. Code 1940, T. 7, § 273, which still applies to criminal cases.

The judgment below is

AFFIRMED.

All the Judges concur.

      . “Any person convicted of robbery shall be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years.”

      . “A brief on appeal to the Court of Criminal Appeals should also contain a list of each and every ruling by the trial court adverse to the defendant on whose behalf the appeal is taken. Such list need only refer to the pages of the record on appeal where such rulings occur. See Form 23.”


author: JOSEPH J. JASPER, Circuit Judge. BOOKOUT, Judge

text:
    Thomas McFERRIN v. STATE.
    6 Div. 213.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Rehearing Denied Nov. 16, 1976.

      Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   JOSEPH J. JASPER, Circuit Judge.

This is an appeal from the Tuscaloosa County Circuit Court. These cases arose by virtue of the District Attorney’s complaint. The appellant was convicted in the following cases: # 5358-B, driving while intoxicated, sentenced to 270 days at hard labor and a fine of $150.00; # 5359-B, failure to yield the right of way to a police or other emergency vehicle, sentenced to 10 days hard labor, and fined $50.00; # 5360-B, resisting arrest, sentenced to 180 days hard labor, fined $100.00.

I

Prior to the trial the three cases were consolidated by agreement between the State of Alabama, the defense attorney and the appellant. A jury in the Tuscaloosa County Circuit Court returned three separate verdicts and found the appellant guilty in case # 5358-B, 5359-B, and 5360-B. After the verdicts were returned, the trial court entered its judgment setting sentence accordingly.

On Saturday, July 12, 1975, Billy Jack Dunn and Dennis Hyche went to Hannah’s Store in Tuscaloosa County, Alabama. There they observed the' appellant sitting outside the store. An argument commenced between the appellant and Billy Jack Dunn and Dennis Hyche. A scuffle ensued, continuing inside the store. They were ordered to leave the store by one George Hannah. The scuffle continued outside the store between Billy Jack Dunn and Thomas McFerrin, the appellant. Dennis Hyche went to get the truck. After the scuffle, Dunn and Hyche observed the appellant with a shotgun. However, the shotgun was never pointed in their direction or at the truck. Dunn and Hyche left the premises and sometime later reported the incident to the sheriff’s department of Tuscaloosa County, Alabama.

Deputy Sheriff Ronnie Bowen and Rex Abrams answered the call and talked to Hyche and Dunn concerning the incident. Then Deputy Bowen met his regular partner, Deputy Thomas Cargile and they began patrolling the area for the appellant. The appellant was observed driving his truck on Kellerman Road in Tuscaloosa County, Alabama. The deputies approached the appellant going in the opposite direction. They turned their patrol car around and proceeded to follow the appellant. They turned on the blue light and siren. The appellant would not stop. They had to go around the appellant and block the road, at which time the appellant stopped his truck. Deputy Cargile went over to the appellant and, according to Car-gile’s testimony, placed the appellant under arrest for reckless driving.

Deputy Bowen drove the appellant’s truck to the appellant’s brother’s house at which time he then got into the patrol car and accompanied Cargile and the appellant to the Tuscaloosa County Jail. On arrival at the jail, Deputy Cargile went into the jail and Deputy Bowen attempted to have the appellant get out of the patrol car, at which time, according to Deputy Bowen, the appellant made a sudden move toward Deputy Bowen. At this time Bowen pushed the appellant and the appellant struck the angle iron on the steel door of the jail causing injury to his head. He then fell inside the jail, bleeding profusely. According to Deputy Bowen, the appellant was then taken to the drunk tank and offered medical assistance. The appellant was then offered the photo-electric intoxi-meter test and, according to Deputy Bowen, the appellant refused both the medical assistance and the P.E.I. test.

The appellant was subsequently charged with driving while intoxicated, resisting arrest, and failing to yield the right of way to police or other emergency vehicle.

According to the appellant, there was a scuffle and altercation with Dunn and Hyche at Hannah’s Store. However, the appellant denies having been intoxicated, having only two beers before 10:00 a. m. on July 12, 1975. According to the appellant, he then went to visit Frances White and Gussie Lewis. Both women testified that, in their opinion, the appellant was not intoxicated. The appellant then claims that he left these two women and proceeded home, at which time he met officers Bowen and Cargile. According to the appellant the patrol car turned around and came in behind the appellant’s truck. The appellant said he saw the blue light, but did not hear the siren. He denied driving recklessly because the road on which he was driving was narrow and full of potholes.

The appellant further testified that when he observed the blue light, he was in a curve and could not immediately pull over parallel to the road and stop, but that he subsequently did stop and the deputies pulled around him. At no time, according to the appellant, did either of the deputies advise him as to why he was under arrest and at no time did he resist the deputies. The appellant then testified that Deputy Bowen drove the appellant’s truck to appellant’s brother’s house and then they proceeded to the Tuscaloosa County Jail. Upon arrival at the jail the appellant testified that he did not make a sudden move toward Deputy Bowen nor did he threaten the deputies. The appellant said he was pushed inside the jail on the floor in front of the booking desk where three or four deputies commenced kicking and hitting him causing the injuries.

The appellant testified that he requested the P.E.I. test which was denied. The appellant admitted that he refused to allow Deputies Bowen and Cargile to take him to the hospital for medical treatment. He testified that he later requested from other deputies to be taken to a hospital for treatment and the deputies did so.

The appellant after making bond and being released from jail, reported the incident to the District Attorney’s office of Tuscaloosa County, the sheriff’s office, and the Federal Bureau of Investigation and an investigation was conducted.

On cross examination the appellant admitted having been convicted of a crime involving moral turpitude, namely, assault with intent to murder.

II

The appellant cites as error the following:

“The personal opinion of the prosecutor as to the guilt of the accused, or any material fact involved in the case, is improper.”

The appellant relies on the case of Woods v. State, 19 Ala.App. 299, 97 So. 179 (1923).

The portion of the transcript the appellant is relying on is found in R-161 wherein the appellant, who was testifying in his own behalf, was asked on the cross examination by the prosecuting attorney:

“Q: Did you see them steal your pump?
A: No, by brother caught them with it.
Q: So you don’t know whether they stole it or not, do you? That is another false accusation.
Mr. Sogol: We object. That is not proper.
The Court: Overruled.
Mr. Sogol: Except . . . .”

Woods, supra, deals with a long line of cases concerned with the closing arguments of the prosecutor. Those cases are not applicable in the present ease. A prosecutor is entitled to a thorough and sifting cross-examination. This is shown by Title 7, Section 443, 1940 Code of Alabama, Recompiled 1958. Said section as follows:

“The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him. If several parties to the same case have distinct interests, each may exercise this right.”

It has been settled in this state by many cases that the scope of cross examination is left strictly to the sound discretion of the trial court. Noble v. State, 253 Ala. 519, 45 So.2d 857. The range of cross examination has been and always should be within the sound discretion of the trial court and, unless it clearly appears that error intervened to the substantial injury of the adverse party, the ruling of nisi prius will not be disturbed upon appeal. Sowell v. State, 30 Ala.App. 18, 199 So. 900. See.also Wright v. State, 49 Ala.App. 539, 274 So.2d 95 (1973), Burke v. State, 44 Ala.App. 379, 209 So.2d 859 (1968), Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968), McCain v. State, 46 Ala.App. 627, 247 So.2d 383 (1971).

Ill

The second proposition cited by the appellant as error is as follows:

“There is no provision of law, or rule of practice, providing that the prosecutor may address his remarks directly at the defendant personally instead of confining his argument to addressing the jury. Such an incident is prejudicial to the substantial rights of the accused and tends to place him in undue opprobrium before the jury.”

The cases cited by the appellant are not applicable, in that they deal with closing arguments of the prosecutor.

There were no objections to the District Attorney’s closing argument, consequently there is nothing in the record for this court to review. As stated by this court in Browder v. State, 54 Ala.App. 369, 308 So.2d 729 (1974), “There is no duty under the law to transcribe the entire argument of counsel. Title 13, § 262, Code of Alabama 1940 [Recompiled 1958].” This court in Browder went on to say, “It is only where there is objection and exception taken to argument that such should be transcribed, citing McClary v. State, 291 Ala. 481, 282 So.2d 384.”

The appellant in his brief argues that the trial court placed undue emphasis on the testimony of the defendant in that he admonished the defendant as shown by transcript record (R. 180). The District Attorney is cross examining the defendant:

“Q: Did you or did you not refuse to go to the hospital, Mr. McFerrin?
“A: You ain’t kidding I refused to go with him and Tom.
“Q: And you refused when one of the officers came back there and offered to put alcohol on your head too, didn’t you?
“A: There was two or three of them come in there.
“Q: You didn’t want any help, did you, Mr. McFerrin?
“A: Would you like to have alcohol poured in a fresh cut?
“The Court: Tom, just answer the questions.
“A: That is not right the way they done me.
“The Court: Do you hear me? I said I don’t want to hear you ask him another question.
“Mr. Sogol: We object and move for a mistrial.
“The Court: I will overrule your motion for a mistrial. I am not going to let this witness or this defendant, I don’t care who he is, sit up here and ask the lawyers questions.
“Mr. Sogol: Your Honor, Mr. De-Graffenried has badgered him.
“The Court: That is all right, he has a right to cross examine him. The witness doesn’t have a right to ask the lawyer questions. I hope I have made that clear now.
“Mr. Sogol: We object.
“The Court: I will overrule your motion for a mistrial.
“Mr. Sogol: We except, Your Hon- or.”

It has always been settled in this state that the defendant does not have to testify, but once he takes the stand, and testifies in his own behalf, he is subject to the same standard as other witnesses as stated in Bailey v. State, 41 Ala.App. 39, 123 So.2d 304 (1960), cert. denied, 271 Ala. 696, 123 So.2d 310. “The law must leave the control of the conduct of attorneys, witnesses and parties primarily in the hands of the trial judge.”

IV

The appellant submitted his written requested charge requesting the general affirmative charge. This charge was refused by the trial court.

As to the case of Failure to Yield to a Police or Emergency Vehicle, Case No. 5359-B, we are of the opinion that the affirmative charge should have been granted and the jury directed to return a verdict of acquittal for the appellant in this case only. In Title 36, Section 20, Code of Alabama 1940, Recompiled 1958, this court is of the opinion the legislative intent in construing this statute was not to be applicable in situations where a law enforcement agency is attempting to stop a vehicle when they are in hot pursuit. The language of the statute is very clear that said statute should apply where an emergency vehicle or police vehicle on an authorized call must be in a position to have traffic proceeding in front of them to yield the right of way to allow the emergency vehicle to pass without any hindrance whatsoever.

In the case before us this charge arose when Deputies Bowen and Cargile were pursuing the appellant in an attempt to stop him. This matter is a case of first impression and this court holds that under this particular fact situation as shown by Case No. 5359-B, the evidence presented at the nisi prius is insufficient to sustain a conviction against the appellant. This case is reversed and rendered.

Title 36, Section 19 and 20, 1940 Code of Alabama, Recompiled 1958 was originally enacted in the General Session of the legislature in 1927, Act No. 347. Said Act was subsequently amended by the legislature in 1949 in the General Session, Act No. 517. These statutes were later amended in the General Session of the legislature in 1966. From all the evidence adduced from the trial of these cases, it was never the intention of Deputies Bowen and Cargile to have the appellant yield the right of way to their vehicle. It is clear from all the evidence that the deputies were attempting to stop the appellant, consequently Title 36, Section 19 and 20, Code of Alabama 1940, Recompiled 1958, are not applicable.

“Title 36, Section 19, Alabama Code 1940, Recompiled 1958, as amended in Ex. Session 1966.

“Exceptions to the right-of-way rule. — (a) The driver of a vehicle entering a public highway from a private road or drive shall yield the right-of-way to all vehicles approaching on such public highway.

“(b) The driver of a vehicle upon a highway shall yield the right-of-way to police, fire department and other authorized emergency vehicles when the latter are equipped with at least one lighted lamp exhibiting a colored light as hereinafter provided visible under normal atmospheric conditions from a distance of five hundred (500) feet to the front of such vehicle and when such vehicle is giving an audible signal by siren, bell, ululating multitoned horns, or other electronic siren type device. The color of the lighted lamp exhibited by police vehicles shall be blue and the color of lighted lamp exhibited by fire department and other authorized emergency vehicles to include ambulances, shall be red.

“The words ‘police vehicle’ shall include any emergency vehicle of any legally constituted law-enforcement agency of the state, or any political subdivision thereof, or of the United States. The color of the lighted lamp exhibited by police vehicles may be red or blue and the color of the lighted lamp exhibited by fire department and other authorized emergency vehicles to include ambulances, shall be red. No vehicle other than a police vehicle [shall] use a blue light. An amber or yellow light may be installed on any vehicle or class of vehicles designated by the director of public safety, but such light shall serve as a warning or caution light only, and shall not cause other vehicles to yield the right-of-way. This provision shall not operate to relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway nor shall it protect the driver of any such vehicle from the consequences of an arbitrary exercise of such right-of-way. Any person violating any of the provisions of this section shall be guilty of a misdemeanor.

“(c) The driver of a vehicle shall stop as required by this chapter at entrance to a through highway and shall yield the right of-way to other vehicles which have entered the intersection from said through highway or which . . . as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.

“(d) The driver of a vehicle shall likewise stop in obedience to a stop sign as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed. (1927, p. 348; 1949, p. 760, # 4, effective Jan. 1, 1950.)

“Title 36, Section 20, Alabama Code 1940, Recompiled 1958, as amended in Ex. Session 1966.

What to do on approach of authorized emergency vehicles.

“(a) Upon the immediate approach of an authorized emergency vehicle equipped with at least one lighted lamp and audible signal as is required by law, the driver of every other vehicle shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer. (1966, Ex. Session, p. 578, appvd. Sept. 12, 1966.)

“(b) It shall be unlawful for the driver of any vehicle, except when traveling on official business relative to the emergency, to follow an authorized emergency vehicle answering an emergency call closer than five hundred (500) feet.

“(c) Upon the approach of an authorized emergency vehicle, as above stated, the motorman of every street car shall immediately stop such car clear of any intersection and keep it in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer. (1927, p. 348; 1949, p. 761, § 5, effective Jan. 1, 1950.)”

It would be illogical to construe the statutes in the manner charged in the District Attorney’s complaint. This court is of the opinion that the construction of the statutes, supra, should be logical, the appellant failing to stop when blue light flashed and the siren turned on is encompassed in the resisting arrest charge. Weeks v. State, 49 Ala.App. 618, 247 So.2d 646 (1973).

V

In Case No. 5358-B as stated, supra, the appellant was convicted of driving while intoxicated, punishment fixed at a fine of $150.00 with the trial court additionally imposing 270 days, at hard labor for Tuscaloosa County. This court affirms the conviction, but the sentence to hard labor is improper requiring remandment for proper sentencing. In Title 36, Section 2, Code of Alabama 1940, Recompiled 1958, the punishment is shown to be by imprisonment in the County or municipal jail. The trial court had no authority to impose as additional punishment the hard labor sentence.

In reference to the driving while intoxicated, the court will cite Griffith v. State, 47 Ala.App. 378, 255 So.2d 48, McIntosh v. State, 234 Ala. 16, 173 So. 619. McIntosh v. State is cited in Champion v. State, 253 Ala. 436, 44 So.2d 622, Hanby v. State, 267 Ala. 69, 101 So.2d 562, Peters v. State, 30 Ala. App. 77, 200 So. 800.

In Case No. 5360-B, charge of resisting arrest, conviction and sentence accordingly, this case is affirmed.

Conclusion

The foregoing opinion was prepared by Hon. Joseph J. Jasper, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

Case No. 5358-B AFFIRMED AND REMANDED FOR PROPER SENTENCING.

Case No. 5359-B REVERSED AND RENDERED.

Case No. 5360-B AFFIRMED.

All the Judges concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge

(concurring specially):

I concur in the opinion and would clarify one point in reference to the charge of resisting arrest. From the facts as stated in the opinion, it would appear that the resisting arrest charge was based solely upon the appellant’s failure to stop his vehicle promptly when the officers' summoned him to do so by use of their blue light and siren. If such were the case, the facts would not support the charge of resisting arrest in the absence of some use of force or constructive force by the appellant. Caldwell v. State, 32 Ala.App. 228, 23 So.2d 876 (1945).

It should be pointed out that in the instant case, after the appellant had been stopped and was placed under arrest for reckless driving, he attempted to twist or pull himself free from the arresting officer, and again on arrival at the jail, he lunged at one of the officers and attempted to throw his elbow into the officer. Such evidence would support a finding of guilt on that charge. But this opinion should not be misunderstood as a declaration that any time a citizen fails to stop an automobile as promptly as a policeman thinks he should, while being pursued, that a valid charge of resisting arrest may be made. I concur with the finding of guilt based upon the use of force shown in the record.

CATES, P. J., joins in this opinion.


author: HARRIS, Judge. BOOKOUT, Judge

text:
    George G. JENKINS, alias v. STATE.
    3 Div. 478.
    Court of Criminal Appeals of Alabama.
    Oct. 15, 1976.
    Rehearing Denied Oct. 26, 1976.

      Frank L. Thiemonge, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of carnal knowledge of a girl under the age of 12 years and the jury fixed his punishment at 14 years imprisonment in the penitentiary. Appellant had court-appointed counsel at his arraignment who also represented him at trial. Appellant pleaded not guilty. After sentence was imposed, he gave notice of appeal and requested a free transcript. His request was granted and trial counsel was appointed to represent him on appeal.

The Attorney General filed a motion to strike the transcript of the evidence on the ground the same was not timely filed.

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.

The evidence is in sharp conflict. The evidence adduced by the State made a clear cut issue for the jury as to the guilt vel non of appellant. Appellant testified in his behalf and categorically denied that he had ever had sexual relations with the prosecu-trix.

For background information the record reflects that the prosecutrix lived with her parents in Eufaula, Alabama, during the summer months of 1974 and 1975. Appellant lived with his wife, Dorothy Nell Jenkins, in a duplex on Hunter Loop Road in Montgomery, Alabama. Appellant was a second cousin to the prosecutrix. Prosecu-trix had a grandmother living in Luverne, Alabama, during this period. In 1974 the parents of the prosecutrix permitted her to visit in the home of appellant and his wife and at that time the girl was ten years of age. This visit covered a period of two or three weeks. In 1975 when prosecutrix was 11 years of age she again visited in the home of appellant and this visit lasted longer than the visit in 1974. It was during these visits that the alleged acts of sexual intercourse occurred.

According to the testimony of prosecutrix appellant was a truck driver and made a number of long trips hauling cattle. She testified that he carried her on one of these trips, and that she slept in the back of the truck on this trip and that appellant forced sex upon her every night that they were on the trip. She testified that he applied Vaseline on her private parts to help him penetrate her. She further testified that during the period she was staying with the Jenkins in 1974, appellant had sexual relations with her every night that he was at home. She stated that appellant’s wife put Vaseline on her privates, put a pillow under her bottom and held her down with her legs spread apart while appellant penetrated her with his sexual organ. She said that the first time this occurred it hurt her so much that she cried. Prosecutrix further testified that appellant threatened that the “welfare lady” would take her away from her parents if she refused to have sex with him or if she told anybody what was going on. She said this is why she did not tell her mother what had happened to her sooner than she did. Prosecutrix further testified that appellant threatened her with a bullwhip and hit her one time with it, and that he struck her with a belt on one occasion as a warning to keep her from telling her mother.

Prosecutrix further stated that during her visit in appellant’s home during the summer of 1975 appellant had sexual relations with her every night he was at home. She described the forced sexual encounters as occurring in the same way and in the same manner as in 1974.

Prosecutrix further testified that when she returned home in 1975 she told her mother what appellant had done to her. That her mother took her to a doctor and that her private parts were infected.

On cross-examination prosecutrix testified that appellant’s wife took her to a local doctor in Montgomery on two occasions to see if she was pregnant. The doctor gave her some medicine to take. That the medicine was very bitter and she had to take it without any water.

The mother of prosecutrix testified that her husband was a first cousin to appellant. That her daughter went to visit appellant and his wife for about three weeks during the summer of 1974, and approximately five weeks during the summer of 1975. She stated when her daughter returned home from her stay with the Jenkins in 1975, she was sick and had lost a lot of weight.

This witness further testified that in late July of 1975, shortly after her daughter returned from her last visit to appellant’s home, she carried her to the Crenshaw County Hospital Emergency Room for an examination. The following Monday, July 28, 1975, she carried her daughter to a doctor in Luverne. She stated she carried her daughter to the hospital and doctor after prosecutrix had related to her what the appellant had done to her. She further said that when her daughter returned home in 1975, she brought with her a number of empty Vaseline jars.

Following her daughter’s visit to the doctor in Luverne on July 28,1975, she contacted the office of the District Attorney in Montgomery.

Sergeant Clifford King of the Montgomery Police Department, assigned to the Youth Aid Division, testified that he was the affiant on an affidavit to secure the issuance of a search warrant. Based upon this affidavit the Judge of the Municipal Court of the City of Montgomery issued a daytime search warrant of appellant’s home on the Hunter Loop Road. This witness went to appellant’s home to execute the search warrant and found appellant’s wife at home. He showed her the search warrant and conducted a search of the home and found the bullwhip that the prosecutrix testified appellant used to force her to submit to him. The bullwhip was introduced into evidence without objection.

This witness further testified that he knew the doctor that appellant’s wife carried the prosecutrix to for an examination to determine if she was pregnant, and he estimated this doctor to be about 90 years of age.

Appellant called his sister, sister-in-law, and neighbor, all of whom testified that they knew the prosecutrix and had visited in appellant’s home when the girl was there and they had never observed anything unusual or irregular going on at the Jenkins’ home.

Appellant testified that he hauled cattle in trucks all over the country and that he purchased the bullwhip for use in loading and unloading cattle. He denied ever engaging in any sexual activity with the pros-ecutrix. He admitted spanking her with a belt, but claimed that he did so because she was misbehaving. He further admitted that he had served time in the penitentiary for embezzlement and grand larceny.

We note that appellant’s wife was convicted for this same offense and was sentenced to ten years imprisonment in the penitentiary. Her case was appealed to this Court and affirmed on August 31, 1976.

Appellant claims that the trial court committed reversible error in allowing pros-ecutrix’s mother to testify that after talking to her daughter she carried her to the Emergency Room at the Crenshaw County Hospital and then to a doctor in Luverne for an examination. We do not agree. In the first place there was not a single objection to this testimony and this matter is not presented to this Court for review. Knight v. State, 273 Ala. 480, 142 So.2d 899; Nichols v. State, 267 Ala. 217, 100 So.2d 750; Wright v. State, 40 Ala.App. 683, 122 So.2d 555.

In a prosecution for carnal knowledge of a girl under 12 years of age the condition of the genital organs of the prosecutrix after the offense is a relevant inquiry. Malloy v. State, 209 Ala. 219, 96 So. 57.

In a prosecution for carnal knowledge testimony that the victim was infected with a venereal disease was properly admitted on the issue of the corpus delicti and identification. Williams v. State, 224 Ala. 6, 138 So. 291.

An arrest warrant was issued for appellant and the officers went to his residence on the Hunter Loop Road and found that he was working on a job in Hope Hull. Hope Hull is out of the city limits of Montgomery. The officers served the arrest warrant on appellant at Hope Hull but told him that a Deputy Sheriff was on the way to take him into custody. After waiting a few minutes appellant told the police officers that it was not necessary to wait for the arrival of the Deputy Sheriff as he was willing to go with them. En route to Montgomery the officers met the Deputy and turned appellant over to him. Appellant’s counsel filed a motion to quash the arrest warrant on the ground the warrant clerk had no authority to issue it and on the further ground that the warrant was issued without probable cause.

The trial court granted appellant’s motion to quash the arrest warrant but held that there was probable cause to arrest appellant. It was not necessary to grant the motion to quash the arrest warrant.

Over a century ago, the Supreme Court of Alabama held that an arrest may be made by any policeman anywhere within the limits of his county. Williams v. State, 44 Ala. 41; Hutto v. State, 53 Ala.App. 685, 304 So.2d 29.

The trial court properly held that the officers had probable cause to arrest appellant. Thomas v. State, 50 Ala.App. 227, 278 So.2d 230; Title 15, Section 154, Code of Alabama 1940.

Appellant contends that the trial court committed reversible error in overruling his demurrer to the indictment. We do not agree.

This indictment tracks the form prescribed by Title 15, Section 259, form 36, Code of Alabama 1940, and is sufficient. Belton v. State, 212 Ala. 265, 102 So. 220; Owens v. State, 29 Ala.App. 53, 191 So. 899.

Appellant filed a motion for a change of venue and introduced two articles from a local newspaper in support of this motion. Appellant did not present any evidence tending to show that the jury had been prejudiced or influenced in any way by these news articles or any other evidence to show that appellant could not get a fair and impartial trial in Montgomery County.

The case law of this state makes clear that publicity alone is not sufficient to warrant a change of venue. “The law focuses on the impartiality of the trial jury.” Mathis v. State, 52 Ala.App. 668, 296 So.2d 755; Mathis v. State, 280 Ala. 16, 189 So.2d 564; Beecher v. State, 288 Ala. 1, 256 So.2d 154; Beddow v. State, 39 Ala.App. 29, 96 So.2d 175; Payne v. State, 48 Ala.App. 401, 265 So.2d 185.

The refused charges stating correct principles of law were fully and adequately covered in the oral charge of the Court. Title 7, Section 273, Code of Alabama 1940.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

TYSON and DeCARLO, JJ., concur.

BOOKOUT, J., concurs specially.

CATES, P. J., not sitting.

BOOKOUT, Judge

(concurring specially):

I concur in the opinion, but would have granted the State’s motion to strike the transcript.

While the Court is within its rights to suspend the Rules ex mero motu and consider the case on its merits, I believe we should only suspend the rules for some good cause shown, otherwise the Rules of Appellate Procedure amount to naught. We should either suspend the Rules on all late filings of transcripts or else we lay the Court open to a charge of applying the Rules in an arbitrary and capricious manner, amounting to a denial of equal protection.

We would not suspend the Rules for a non-indigent appellant without some showing of good cause to accept a late transcript. The same rules should apply to indigents represented by court-appointed counsel. Pope v. State (1976), Ala., 339 So.2d 355.


author: JONES, Justice.

text:
    In re George JENKINS v. STATE. Ex parte George JENKINS.
    SC 2152.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Elno A. Smith, Jr., Montgomery, for petitioner.
    None for the State.
   JONES, Justice.

Petition of George Jenkins for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jenkins v. State, Ala.Crim.App., 339 So.2d 133.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Charles Ray Lee HOWELL v. STATE.
    3 Div. 597.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Rehearing Denied Nov. 16, 1976.
    Carlton & Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: twenty years imprisonment.

In the early morning hours of November 30, 1975, Gerald Alexander gained admission into the office of a Thoni Oil Station in Montgomery County. He brandished a pistol and ordered the two employees into a back room. While Alexander was taking the employees to the back room, James Poe and the appellant entered the station office.

Alexander stood guard over the employees while Poe and the appellant tried to open the service station safe. While attempting to open the safe, Poe and the appellant posed as employees and waited on service station customers. Approximately forty-five minutes after the robbery began, Alexander locked up the employees and joined Poe and the appellant in the office.

Having been alerted to a possible robbery, Officer T. J. McLain arrived on the scene. Poe and the appellant approached McLain and inquired as to his need for gasoline. McLain, with pistol drawn, ordered Poe and the appellant to put their hands on the service station wall. Instead of taking the most direct route to the station wall, the appellant and Poe turned and walked parallel to the front of the station with McLain walking behind them. Poe and the appellant walked by the front door to the service station. When McLain drew even with the service station door, he was shot in the stomach by Alexander who was squatting down in the doorway. The three robbers then fled.

It is undisputed that the appellant, Poe and Alexander entered into and carried out a conspiracy to rob the service station. The appellant is presently serving a life term for the robbery. It is also undisputed that the appellant did not shoot McLain, in fact, the appellant was unarmed. The only relevant dispute is found in the appellant’s testimony that he fled the scene before Alexander shot McLain. The jury could have reasonably resolved such a dispute in favor of the State.

I

The appellant contends that there is not sufficient evidence upon which to base a conviction under Title 14, § 14, Code of Alabama, Recompiled 1958. We do not agree.

When dealing with Title 14, § 14, supra, it must be borne in mind that each case must be based on its own factual milieu. Chatom v. State, 1 Div. 688 (Ms. August 31, 1976) Ala.App. There must have been sufficient evidence presented from which the jury could find beyond a reasonable doubt that the appellant aided and abetted Alexander in the shooting of McLain. Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950). The mere presence of the appellant at the scene, standing alone, would not be sufficient. Wilson v. State, 219 Ala. 364, 122 So. 617 (1929).

However, in the present case, the evidence supports the reasonable inference that the appellant and Poe approached McLain for the purpose of luring him into a position where he could be shot from ambush. The fact that Poe and the appellant took McLain by an indirect route and that they were silent as to Alexander’s whereabouts strongly supports such an inference. The jury could also infer that McLain had no reason to be on his guard for a third robber and that Poe and the appellant were aware of this fact.

Every person engaging in a joint enterprise is not automatically and equally guilty of a crime committed independently by another participant in the venture. A conspiracy necessary to fix guilt on all participants must be one in which all have a meeting of the minds (though only for an instant) to commit the crime charged. A different crime independently committed and not a foreseeable consequence of the conspiracy can hardly be charged to one who neither participated in its commission, nor aided therein, although all originally started out on some other illegal venture.

The Stokley case, supra, has been cited on many occasions in reference to a conspiracy. The holding in that case must be considered in light of the particular facts of the case. There, Stokley was one of a group of persons who entered onto the victim’s property, armed with sticks, with the common intent to beat the victim. While jointly administering the beating, one of the group applied too much force which resulted in the death of the victim. Stokley was held to be equally guilty although it was uncertain whether he had personally administered the fatal blow. Some of the sweeping statements of the court in that case, which were gratuitous dicta have been cited as authority in various other cases in a much broader scope than their actual application to the facts in Stokley.

Stokley takes its proposition of law from Morris v. State, 146 Ala. 66, 41 So. 274 (1906), which in turn uses the statements originating in Tanner v. State, 92 Ala. 1, 9 So. 613 (1890). Chief Justice Stone, in Tanner, makes the often quoted statement that, “When two or more enter upon a common enterprise or adventure . . . and that enterprise contemplates the commission of a criminal offense, then each is a conspirator, and if the purpose is carried out, each is guilty . . . whether he did any overt act or not. . . . ” (Emphasis supplied.)

Tanner further holds:

“. . . And this criminal accountability extends not alone to the enterprise, adventure, or encounter in which the conspirators are engaged, but it takes in the proximate, natural, and logical consequences of such adventure. This because all men are presumed to intend the proximate, natural, and logical consequences of acts intentionally done; and one who is present, encouraging or ready to aid another in such conditions, must be presumed to be cognizant of that other’s intention, to the extent above expressed. If such conspiracy, or community of purpose, embrace the contingency that a deadly encounter may ensue, with the common intention, express or implied, to encourage, aid, or assist, even to the taking of life, should the exigencies of the encounter lead up to that result; then, as a general rule, the act of one becomes the act of all, and the one who encourages, or stands ready to assist, is alike guilty with the one who perpetrates the violence.

But Tanner holds that such accountability does not extend to criminal acts not reasonably the proximate consequence of the purpose of the conspiracy:

“. . . The accomplice, as we have seen, is criminally responsible for acts which are the direct, proximate, natural result of the conspiracy formed. He is not responsible for any special act, not within the scope of the common purpose, but grows out of the individual malice of the perpetrator. — 1 Wharton Crim.Law, § 397.”

In the instant case, the appellant and his companions were active participants in an armed robbery when the shooting occurred. Assault with intent to murder would be a foreseeable consequence of the joint enterprise in which they were engaged. The jury had no evidence before it that would tend to show the appellant had abandoned the conspiracy when the shooting occurred. There was sufficient evidence presented upon which the jury could reasonably base its finding that the appellant aided and abetted Alexander in the shooting of McLain.

It is not our function to satisfy ourselves that the appellant is guilty beyond a reasonable doubt. Our function, where sufficiency of the evidence is properly before us, is to examine the record and determine if the State presented sufficient evidence from which the jury might have found the appellant guilty beyond a reasonable doubt. Morton v. State (1967) Ala.Cr.App., 338 So. 2d 423.

II

The appellant also contends that the trial court erred in refusing certain requested jury charges. The refused charges were affirmative in nature, substantially covered in the trial court’s oral charge or not properly predicated on the evidence in this case. Williams v. State, 51 Ala.App. 694, 288 So.2d 753 (1974). No error was presented by the trial court’s rulings on the requested charges.

AFFIRMED.

TYSON, J., concurs.

HARRIS and DeCARLO, JJ., concur in the result.

CATES, P. J., not sitting.


author: TYSON, Judge. CATES, Presiding Judge

text:
    Jesse Carl PAIGE v. STATE.
    6 Div. 784.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Rehearing Denied Nov. 16, 1976.
    William M. Dawson, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Barry v. Hutner, Asst. Atty. Gen., Birmingham, for appellee.
   TYSON, Judge.

The appellant was indicted in a three-count indictment for second degree burglary, grand larceny, and buying receiving and concealing, or aiding in concealing, two pairs of men’s shoes of the value of $26.00 and some coins, the personal property of V. J. Elmore, a corporation. The jury found the appellant guilty of burglary and grand larceny, as charged in the indictment, and fixed the value of the stolen property at $71.00. The trial court then entered judgment, setting sentence at one year and a day on the burglary charge, and three years on the grand larceny charge, the two sentences to run concurrently.

Thurman Thomas testified that he was the manager of the V. J. Elmore store, located at 2912 Twenty-Seventh Street, North in the North Birmingham section of Jefferson County, Alabama, on December 8, 1973. He testified he closed this store about 9:00 that evening as this was a Saturday, but before doing so he examined all entrances and ascertained that they were securely locked. He testified the store occupied both floors of a two-story building, and that his office and a storage room were on the second floor. He testified there were four cash registers, that he had removed all currency from the registers, leaving some coins for change in each of the registers, and made a deposit at the First National Bank branch across the street. He testified that that same evening he received a telephone call from two Birmingham police officers who requested that he come to the store shortly before midnight of December 8, 1973. Upon arrival, he went into the store with the Birmingham officers and found a hole in the roof above his office where a ten-foot aluminum stepladder had been placed, and that the roof, which was made of slag gravel with insulation of celatex' type material underneath, had been broken through. He testified he examined each of the four cash registers and determined that approximately $45.00 in coins which he had left for change were missing. He testified he also examined the shoe department and determined that two pairs of men’s shoes of the value of $15.00 to $20.00 each were missing. He testified that these shoes were the modern type, “the high style shoes with the tall heel.”

He testified further that he saw the officers put one man in the police wagon, that he was black, but that he did not get a good look at him. He further testified that when he went to police headquarters, one of the two men who had been arrested by the officers had on a pair of the missing “high style shoes,” and that a pair of old shoes had been found in the back of the store near the shoe department.

On cross-examination, Mr. Thomas stated that he did not see the appellant, Paige, at the store that evening.

Michael A. Denny testified he was a patrol officer with the Birmingham Police Department, working on the 11:00 p. m. to 7:00 a. m. shift with his partner, David Melton, on the evening of Saturday, December 8, 1973. He testified that shortly before midnight they were patrolling in the North Birmingham section near where the V. J. Elmore store was located. He stated that he and his partner observed a light in the store, that they stopped to investigate, that his partner went to the front of the store, and that he went to the back. He stated that he saw the appellant, Jesse Carl Paige, on the roof of the adjoining building, and that he was dressed in dark colored pants with a trench coat on. He testified that he ordered the appellant to halt, that the appellant stopped, looked at him, and then dove over the roof to the next building, and that he fired the shotgun in the appellant’s direction. He called for help, and he and his partner then arrested one Robert Williams on the top of the roof, lying on his face, clutching a piece of vent pipe. He testified that Williams had on a pair of high heel, modern style shoes which appeared to be new at the time of his arrest. He testified that Williams was placed under arrest and taken to police headquarters.

Officer Denny further testified that about one hour later he and his partner went to the home of Jesse Carl Paige and took him to police headquarters where he, too, was placed under arrest. Officer Denny stated that at the time of the appellant’s arrest, they combed his hair and found sprinkled therein an insulation type material of the same type as was in the roof of the V. J. Elmore store. He testified that the appellant had changed his clothing, but that on his back was a fresh scrape mark about two inches wide and four inches long which caused the skin to curl, and that the skin had not had an opportunity to dry as this was a fresh type wound. Officer Denny further testified that Williams had some rolls of pennys in his pocket at the time of his arrest. Officer Denny made a positive ineourt identification of the appellant as having been seen on the roof of the adjoining building on the night in question. The appellant’s motion to exclude the State’s evidence was overruled.

Rosie Thrash testified that she was the mother of Jesse Carl Paige, the appellant. She testified that on the night of December 8, 1973, the appellant was at her home with his wife and children watching television and did not go out that evening.

This testimony was corroborated by the appellant’s wife, Angela Paige.

The appellant, Jesse Carl Paige, testified that he lived at 3401 Norwood Boulevard in Birmingham. He testified that he was at the home of his mother the night of December 8, 1973, when the police came and arrested him shortly after midnight. He testified that he had been home with his wife and children all that day, that he left once to go to the grocery store that afternoon about 3:00, and other than that he had been at his mother’s home all day. He denied ever going to the V. J. Elmore store in question, entering therein, or removing any shoes or coins from the store. He testified that Robert Williams was only a slight acquaintance, that he met him once on a trip.

Officer Michael A., Denny was then recalled and testified that when the appellant was brought to police headquarters on the evening in question, he, Williams, turned to Paige and said, “I am sorry that I turned you in,” to which Paige replied, “Shut up man or I will'-kill yoú.”

The trial court then gave an extensive oral charge to which there was no exception, and then gave four written requested charges and denied the affirmative charge.

I

The appellant argues that the trial court was in error in allowing Officer Denny to state that the particles which were combed from the appellant’s hair were insulation type material like that used in the roof of the office at the V. J. Elmore store.

Officer Denny testified that he was familiar with insulation type material and observed the particles which had been removed from the appellant’s hair.

We are of the opinion that the trial court properly allowed Officer Denny to express his opinion that such were “insulation type material.” See Alexander v. State, 37 Ala.App. 533, 71 So.2d 520; and Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538, and authorities therein cited.

II

Appellant next argues that the trial court erred in overruling, his motion to exclude. ,.

* The state, through the testimony of Mr. Thomas, clearly established the burglary and grand larceny at the Y. J. Elmore store. Moreover, the appellant 'was observed on the roof of the' adjoining building with his companion who was arrested there, and was positively identified by Officer Denny in court. Moreover, in being given instructions to halt, the appellant dove over to the roof of the next building and fled. He was apprehended about one hour later at his mother’s home where Officer Denny observed the particles in his hair, and also the fresh flesh wound on his back, but the officer stated that the appellant had changed clothes.

We are of the opinion that the trial court here properly overruled the motion in question. Hare v. State, 52 Ala.App. 279, 291 So.2d 371, and authorities therein cited; Johnson v. State, 52 Ala.App. 277, 291 So.2d 369.

III

Appellant calls attention to the verdict of the jury and judgment of the court wherein the jury found the appellant guilty of burglary, as charged in the indictment, and also guilty of grand larceny as charged in the indictment and fixed the value of the stolen property at $71.00. The trial court, after the jury was polled, entered its judgment, setting sentence at one year and one day on the charge of burglary, and at three years on the charge of grand larceny, with the sentences to run concurrently. We notice that this matter was not excepted to, nor was there a motion for a new trial raising this question in the trial court.

If the appellant desired to take exception to the trial court’s charge on the several allegations of the indictment, such must be done prior to the time the jury retires. The appellant may not wait until after the jury’s verdict comes in and speculate thereon, then take exception. Cox v. State, 280 Ala. 318, 193 So.2d 759.

Moreover, where, as here, the same transaction supports both grand larceny and burglary, while there can only be one punishment, this may be served by either a single sentence or concurrent sentences, the same to be set by the trial court within lawful limits in its discretion. Wade v. State, 42 Ala.App. 400, 166 So.2d 739; Wildman v. State, 42 Ala.App. 357, 165 So.2d 396.

We have carefully examined this record and find same to be free of error. The judgment in question is therefore due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.

CATES, P. J., dissents.

CATES, Presiding Judge

(dissenting).

I vote to remand for proper sentencing under Code 1940, T. 15, § 287 which reads:

“Any act or omission declared criminal and punishable in different ways by different provisions of law, shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision.”

Wade, supra, cited by the prosecution and by my Brother Tyson, is a case involving habeas corpus for bail before conviction. The language employed under [2] of the opinion is explanatory and was hypothesized on the possibility of a double conviction.

I cannot see how the concept of a single punishment within § 287, supra, can be met by an overlap of one sentence which is three times as long as the other.


text:
    Robert RUDOLPH v. STATE.
    3 Div. 355.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.
    Walter L. Allen, Jr., Montgomery, for appellant.

      No appearance for the State.
   CATES, Presiding Judge.

Heretofore in the 1974-75 Term of this Court, without opinion, affirmed under Code 1940, T. 13, § 66, after review via T. 15, § 389, a conviction of Rudolph for the beastly crime against nature upon a fellow penal inmate — Code 1940, T. 14, § 106. No rehearing was sought. Nor did the State ask to set submission aside.

Thus, on the expiry of that term as extended on midnight October 4-5, 1975, our power over the appeal lapsed completely.

Code 1940, T. 13, § 20. Compare also decisions under T. 13, § 119.

On October 15, 1976, counsel for Rudolph filed a detailed no-merit letter. However, the cause having been finally. disposed of without the intervention of any higher court, e. g., the Supreme Court of Alabama or the Supreme Court of the United States, this court has lost all jurisdiction over the appeal. Hines v. State, 48 Ala.App. 297, 264 So.2d 218; Wade v. State, 51 Ala.App. 441, 286 So.2d 317; Ex parte Mitchell, 54 Ala.App. 203, 306 So.2d 296; and Malone v. Alabama, 5 Cir., 514 F.2d 77, 78, 79 (fn. 2).

This Court, not being competent to entertain any jurisdiction over the appeal, hereby orders that counsel’s letter be returned accompanied by a copy hereof. It will be treated as a motion which is

DISMISSED FOR MOOTNESS.

All the Judges concur.


author: HARRIS, Judge.

text:
    Julius ROBINSON v. STATE.
    3 Div. 429.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1976.
    Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the offense of selling marihuana and sentenced to a term of five years in the penitentiary. At arraignment he pleaded not guilty in the presence of his attorney. After sentence was imposed, he gave notice of appeal and his sentence was suspended pending appeal. He was found to be indigent and a free transcript was furnished him and trial counsel represents him on this appeal.

The evidence presented by the State is not disputed. Appellant did not testify nor did he offer any evidence in his behalf.

The testimony for the State tended to show that around 9:00 p. m. on April 30, 1975, appellant was observed by Police Officer Michael Farrior in front of the Jeff Davis Seafood Store selling something in brown paper bags in exchange for $5.00. The officer was an undercover agent on this assignment and was standing within six feet of appellant when he made three sales over a 30 minute period of time. The officer was familiar with the street language used to describe drug dealings and heard one person tell appellant he wanted a “nickel bag” and saw appellant get a paper sack from behind a loose concrete block or brick in the wall of the store and take out a small bag and hand it to the person in exchange for $5.00. After watching appellant make three such sales the officer grabbed appellant and told him he was a police officer and they started to struggle. Other police officers were stationed at different locations where they could watch Officer Farri- or. Just before the officer and appellant began to struggle Officer Farrior removed his hat from his head and stuck it in his back pocket. This was a prearranged signal for the other officers to move in. While Farrior and appellant were struggling, Far-rior saw an unknown black approach the place in the wall where appellant had the paper bag hidden. Farrior released appellant and went to the wall and removed the paper bag which contained nine smaller bags.. About this time one of the other officers grabbed appellant and he was finally subdued, arrested and transported to police headquarters.

Farrior turned the bag over to another officer who put it under lock and key until he delivered it to Thomas J. Hopen of the State Department of Toxicology. Mr. Ho-pen, whose qualifications were admitted by the defense, testified that he examined some of the material from the nine small bags and also a part of two cigarettes removed from appellant’s pockets at the time of his arrest and found all contained marihuana. There was no missing link in the possession of the marihuana from the time it was removed from the brick wall until it was brought to court by the Toxicologist. The marihuana was admitted into evidence without objection.

After the State rested, appellant made a motion to exclude the State’s evidence on the ground it had failed to prove a prima facie case. This motion was overruled. He made a request for the affirmative charge and this was refused. He made a motion for a new trial but no evidence was offered in support thereof and the motion was denied.

Appellant was caught “red handed” committing a felony in the presence of an officer who had authority to arrest him without a warrant. Title 15, Section 154, Code of Alabama 1940.

Where the evidence raises a question of fact for the jury, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge and overruling the motion for a new trial, do not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

The judgment of conviction is affirmed.

AFFIRMED.

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