text:
    Frank BABIES, alias v. STATE.
    3 Div. 348.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.
    Rehearing Denied July 29, 1975.

      Solomon S. Seay, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and William A. Davis, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment, FRANK LEE BABIES, alias FRANK BABIES, alias FRANK L. BABIES, whose name is to the Grand Jury otherwise unknown, did telephone Jimmy Wayne Fulmer and threaten to create an explosion, or falsely informed Jimmy Wayne Fulmer that some other person threatened or intended to create an explosion in their house at 19 Riverside Drive, Montgomery, Alabama, against the peace and dignity of the State of Alabama.”

The statute under which the indictment was returned is Title 48, Section 417(3), (4), Code of Alabama 1940, Vol. 10, 1973 Cumulative Supplement, and, in pertinent parts, is as follows:

“Whoever willfully imparts or conveys or causes to be imparted or conveyed any false information by use of a telephone, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to place or cause to be placed any explosive or other destructive substance in or upon any private or public building, transportation facility or place of accommodation, shall be guilty of a felony, and upon conviction shall be imprisoned for a period of not less than one year nor more than five years, and may also be fined not more than $1,000.
“Any of the above offenses may be deemed to have been committed at either the place at which the telephone call or calls were made, or at the place where the telephone or calls were received. (1963, p. 1284, appvd. Sept. 16, 1963.)”

Throughout the trial below, including arraignment, appellant was represented by a court-appointed lawyer. He pleaded not guilty. After conviction he was sentenced to three years imprisonment and gave notice of appeal and requested that his sentence be suspended pending appeal. New counsel represents him on appeal.

The facts are in sharp dispute. Mrs. Bessie Fulmer lived at 19 Riverside, a housing project, in the City of Montgomery, on June 27 and 28, 1972. She testified that she had a straight telephone line and on those two days she received numerous telephone calls containing threats and obscenities that she was ashamed to repeat.

She further testified that the callers were Negroes, one boy and one girl. On the 28th of June a male voice called and threatened to gas her home at seven o’clock that night. She got another call at seven saying they were going to bomb her home at twelve o’clock that night and get her when she ran out. She got in touch with the Police Department and was advised to contact the telephone company and get them to put a “tap” or “trap” on her telephone so the number of the callers could be traced. She contacted the telephone company and they sent a card to be signed by her consenting to this procedure. She received the card, signed it, and returned the card to the telephone company.

On many occasions her son would be at her home when these calls were received and she would hand the receiver to him and he would talk to the male caller. Sometimes these calls would last from thirty minutes to an hour.

Mr. Howard F. Rice, a special agent for the Federal Bureau of Investigation, was employed in the security department of South Central Bell Telephone Company. He testified that he received a phone call from Mrs. Bessie Fulmer on June 27, 1972, and she stated that her residence was receiving threatening telephone calls to the effect that they were going to burn her house and bomb her house. She requested assistance from the company to use their tracing equipment to try to identify where the calls were coming from. They put a trace on the telephone.

From the record:

“Q. Would you explain to the jury how this tracing equipment works, please, sir?
“A. In a normal telephone conversation the person that makes a call controls the connection so that when the person who makes the call hangs up the connection breaks. We go in and we put tracing equipment on the line which reverses this entire thing. Now the person receiving the call controls the connection and as long as the person receiving the call leaves their phone off the hook the connection is still intact. The caller can hang up but the connection is still there and it will hold for five minutes, five hours or five days, as long as we want it to hold until we clear it. This is the type of equipment we placed on the Ful-mer line.
“Q. Were any instructions given to the people there at the Fulmer house at that time?
“A. Yes. We explained to them that if they received a call that they would have to leave their phone off the hook and get to another telephone and notify us.
“Q. All right, sir. Now, were any traces successful during this period that the tracing equipment was on ?
“A. Yes, sir.
“Q. All right. Would you tell the jury to what addresses and what times these traces were made ?
“A. On June 27 at approximately six twenty-five p. m. a successful trace was made back to 263-1522, which is listed to Charlotte James at 1503 Ruben Street.
“Q. All right, sir.
“A. On thes following day, June 28, at approximately three twenty-five p. m. a successful trace was made back to 265-4042, which is listed to Lizzie Mae Mack at 1544 Ruben Street.
“Q. About what time was that second trace ?
“A. Approximately three twenty-five p. m.
“Q. All right, sir. Were the police notified ?
“A. Yes, sir.
“MR. THOMAS: All right, sir. That is all.
“CROSS-EXAMINATION
“BY MR. CARLTON:
“Q. Mr. Rice, is this tracing a hundred percent accurate?
“A. Once a trace is made, once the machinery locks two lines together, yes, sir.
“Q. Is it possible that a call could be made and traced to a different number?
“A. Well, we are now talking about the ability of our people in physically making the trace?
“Q. Right.
“A. On these particular traces in a serious case, which we consider serious, there is a double trace made before anything is resolved. He traces it once, he traces it twice, and in this particular case I directed that the line be left open, that the trace not be cleared, that it be left open in order for the authorities to complete their investigation, and that line was left open.
“Q. And this is a one party line that was being traced ?
“A. Yes, sir.
“Q. Is it possible for another telephone to break in on that ?
“A. Nobody else can call either one of those parties. They just get busy signals because both lines are open.
“Q. On many occasions we pick up a telephone to place a call and we hear somebody on the line playing music. What is that? Is that a one party line?
“A. I am not quite sure. I know what you are speaking of, I have heard it myself. There are various explanations as to how these things can happen, from anything to the cable being wet to various explanation, (sic) But in this particular situation I would say the equipment is a hundred percent correct and the proof of the pudding is in the fact that the line was left open and it was talked over.
“Q. And you say you traced a call to Charlotte James at 265-2122. What time was that?
“A. This was on the 27th.
“Q. At what time?
“A. This call was made at approximately six twenty-five p. m.
“Q. What about the call to Lizzie Mae Mack?
“A. You mean from the Mack Residence ?
“Q. Right.
“A. On June 28 at approximately three-twenty-five p. m.
“MR. CARLTON : That is all.
“REDIRECT EXAMINATION
“BY MR. THOMAS:
“Q. Did you notify the Fulmer people that the trace on the 27th had been made, or did you notify the police ?
“A; We notified the police. We do not go back — there is a company policy, and I am sure you understand why, we do not go back to a victim and tell them where their calls are coming from. We give it to the law enforcement agencies.”

The son of Mrs. Fulmer, Jimmy Wayne Fulmer, testified that on June 28, 1972, he got another telephone call and he recognized the male voice who had been calling and making the threats relative to burning and bombing their house. This call came around six to six-thirty. As instructed by Detective W. W. Strane, he kept the telephone line open and went to another telephone the officer had given him to call so that the police could trace the call. When he returned, he heard the same voice and also Mr. Strane’s.

The police officers went to 1544 Ruben Street (one of the places where the calls were traced) on June 28, 1972. They found appellant sitting in the livingroom in reach of a telephone. The officer informed him that they had received complaints about threatening telephone calls from this number to the Fulmer’s residence. Appellant immediately denied making any such calls. The officer asked if there was another telephone in the house and was told there was an extension upstairs. The officer went upstairs and found appellant’s brother and told him about the complaints and asked him if he was willing to go to Police Headquarters and he readily agreed. The officers had considerable difficulty in getting appellant to go but he finally agreed to go. When they arrived at Police Headquarters, both brothers were put in an office and each were given the Miranda rights and warnings and they both replied they knew their rights. At this time no arrests had been made.

Jimmy Wayne Fulmer went to Police Headquarters and he did not see either appellant or his brother. Fulmer was put in another office and Strane told him not to swear out a warrant until he was sure that he could identify the voice of the caller. The officer told Fulmer that he was going to dial the number of the office he was in and put one of the suspects on the phone and for him to talk to the suspect and then he would put the other suspect on the phone and allow him to hear this suspect talk and determine if he recognized anyone’s voice. Fulmer had no knowledge of which of the brothers was going to be put on the phone first.

Actually Strane put appellant on the phone first and after a few minutes of conversation, Fulmer told Strane that this was the voice that belonged to the man who had threatened to burn and bomb his mother’s home.. Strane told Fulmer he was going to put the other man on the phone and let him have a conversation with the second suspect anyway. Charles Babies got on the phone and after he and Fulmer talked a few minutes, Fulmer again told Strane it was the first man who had done the calling.

Fulmer further testified that he knew the caller was a black man because he told him he was black.

Appellant and his family testified for the defense. Appellant denied making any such calls and stated that he was not even at his mother’s house at the times these threatening phone calls were allegedly received by the Fulmers. His family gave supporting testimony.

Appellant contends that the police procedures used in obtaining the voice identification of the appellant were so impermissi-bly suggestive as to create a substantial risk of misidentification. We do not agree with this contention.

The facts in the instant case indicate that the police operated in a permissible manner in their investigation and subsequent establishment of appellant’s identification. The police officers knew that a telephone trace had been placed on the complaining party’s telephone. The reliability of the telephone trace was established at trial through the testimony of Howard Ricé, an ex-F.B.I. agent, and an employee of the Security Department of South Central Bell Telephone Company. The investigating officer was instructed to go to Hall and Ruben Streets and to wait for further instructions in regard to an address from where traced telephone calls were being made.

On June 28, 1972, a successful trace was made by the telephone company from the Fulmer residence to 1544 Ruben Street. Detective Strane went to this address and saw appellant sitting by the telephone. Strane handed the receiver to appellant and he agreed to talk after being told the complaining party was on the other end of the line. Appellant spoke to the complaining witness, Fulmer, who then and there positively identified appellant as the guilty party.

In Stallworth v. State, 52 Ala.App. 619, 296 So.2d 243, we held that the conflicting evidence concerning a threatening telephone call made and presented a question for the jury’s determination and that is true in this case.

Voice identification of a suspect by telephone conversations was approved by the Supreme Court of Alabama in Dentman v. State, 267 Ala. 123, 99 So.2d 50, wherein the court said:

“Speaking generally, communications through the medium of the telephone may be shown in the same manner, and with like effect, as conversations had between individuals face to face, but the identity of the parties against whom the conversation is sought to be admitted must be established by some testimony either direct or circumstantial.”

See also Wilson v. State, 20 Ala.App. 137, 101 So. 417.

In this case Fulmer made a positive identification of appellant’s voice while the telephone line was open and also made a positive identification of his voice while in a separate office at Police Headquarters.

There was no motion to exclude the state’s evidence; there was no motion for a new trial; there were no exceptions reserved to the oral charge to the jury; there were no adverse rulings on the admission of evidence. There was a request for the affirmative charge but in the light of what we have said clearly the case was properly submitted to the jury.

The case is affirmed.

Affirmed.

TYSON, DeCARLO and BOOKOUT, JJ., concur.

CATES, P. J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    Ronald Keith CONNELL v. STATE.
    5 Div. 133.
    Court of Criminal Appeals of Alabama.
    May 7, 1974.
    Rehearing Denied June 25, 1974.

      Walker, Hill, Gullage, Adams & Um-bach, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and John D. Whetstone, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

The homicide, which is the subject of this indigent appeal, was committed in Lee County wherein a grand jury indicted and a petit jury duly and lawfully impanelled convicted the appellant-defendant of murder in the first degree with punishment fixed at life imprisonment.

The record contains three volumes totaling 479 pages, all of which the writer of this opinion has read in his search for errors, as mandated by Title 15, § 389, Recompiled Code 1958. We are not convinced that the rulings of the trial court were free of prejudicial error as will be noted later in this opinion. Suffice it to say, the trial court, the District Attorney, and counsel for the defendant were all faced with some difficult questions, both in fact and law, that arose out of the factual and circumstantial evidence presented to the jury. It was not an easy case from a trial point of view.

The only witness present when the homicide charged in the indictment was committed was Mrs. Sharon Froney, wife of the victim. Mrs. Froney survived a knife assault committed by an assailant who was present when Mr. Froney was fatally stabbed with a knife or like instrument.

Mr. and Mrs. Froney temporarily resided near Tallassee, Alabama, where Mr. Fro-ney was employed and temporarily stationed as a natural gas consultant. They lived in a camper, which was convenient for station to station traveling, which was Mr. Froney’s occupational itinerary.

On the morning of January 26, 1972, Mr. and Mrs. Forney left for Atlanta in their camper on business. After transacting the business, they began their return motor journey, later in the afternoon, back to their station — the point of departure in Alabama. In traveling, they used 1-85 between Atlanta and Montgomery, which had not been constructed between Newnan and Lagrange, Georgia. Between these points, the motoring public was compelled to use Highway U.S. 29, which was an interruption of 1-85.

When they reached U.S. 29 on the return trip, Mr. Froney elected over his wife’s protest to pick up four hitchhikers who were importuning a ride. Everything went well for a period of time. There was no indication by the hitchhikers’ dress or personal appearance that they were dangerous. Mr. Froney stopped in route and bought several cans of beer. The riders and their host partook of the refreshments.

The names of the riders were: Stephen Douglas Chase, Philip Robert Roñica, Karen Elaine Jordan, and Ronald Keith Con-nell, appellant-defendant.

The seating arrangement of the four was at a dinette table. All four of the riders were in close contact with each other. Connell sat down first on one of the beds to the rear of the camper, but later moved up to the front where all four sat at the dinette table. After they reached 1-85 where it began leaving U.S. 29 in Georgia, Mr. Froney asked his wife to drive. Aboard the vehicle was a television set, a radio, and a tape player or stereo which they had been playing all the afternoon and into the evening.

Before reaching 1-85 and after they had been talking for some time, Karen asked Mrs. Froney to turn up the volume of the stereo. She complied. The witness testified that, “I noticed for a while that they were just kinda excluding us from the conversation, just talking among themselves. And after another short while, Mr. Connell had requested I turn the music up a little louder, * * *.” “The music was pretty loud, louder than usual but not so loud that they really had to shout to be heard.” At that time, the witness Mrs. Froney was occupying the passenger seat. All four of the hitchhikers were sitting at the dinette table behind the witness. At the time the music was turned up the second time at Connell’s request, the four were still talking in hushed tones — “not talking to us any longer.” As already stated, when they reached 1-85 Mr. Froney asked the witness to drive. She took over and continued to drive for some time going in the direction of Montgomery. The witness and her husband decided it would be nice to take the passengers on to Montgomery instead of dropping them off on the roadside.

After driving for a short while and after they were in Alabama, the witness requested her husband to drive so she could go to the bathroom. They changed places and the witness went to the bathroom. The hitchhikers were all sitting in the same places.

After the witness was in the bathroom a short while, about a minute, “all of a sudden I felt the motor home kinda slow down very fast and pull off the road in a very hurry suddenly.” The witness then opened the bathroom door and “saw the three boys were huddled over my husband, kinda in that position, kind of over him. He was turned around in the driver’s seat at this time, looking up at them. And so I remember him saying, ‘Take our money, take the motor home, but just leave us alone.’ And this is the last thing I did hear him say. He was just looking very panicky; looking up at the three people hovered over him.”

The witness further testified that the defendant, Connell, was one of the three still hovered over her husband at the time her husband said, “Take our money, take our motor home, just leave us alone.” The witness was so positioned then that she could see her husband, but not the boys. She did not see a knife. Karen Jordan was standing between her and the three boys. Karen pointed a knife at the witness and told her to take it easy.

The witness then became panicky and sat down on one of the three beds — she could not help her husband. She sat there for a while, until one of the boys came back and directed her to go to the bathroom. As she was proceeding as directed, she felt a blow on her shoulder which knocked her to the floor. After entering the bathroom and locking the door, she felt a wetness on the shoulder, which was blood.

After being in the bathroom for a short while, she heard a couple of voices, one of which said, “well, kick the door down.” One of them did kick the door in and grabbed the witness by her wrists and pulled her to her feet and then to the bed in the aisle. The witness further testified that she was then directed to put her hands behind her back, where they were tied with a white handkerchief. She did not know which one did this. Following further orders, she lay down on the bed where a pillow was put over her head. One was trying to suffocate her. She struggled and both fell on the floor. The witness fell on her stomach. It was then that she felt a sudden sensation in her back. She could feel the knife coming down on her back, and after the six blows, she stopped struggling and pretended she was dead. Someone then placed a blanket over her.

The motor vehicle started up and someone told Karen to drive. They were all talking and one of them said “well, we’ll have to get rid of the motor home some way — ”. Various ways of disposing of the vehicle were discussed. The suggestion was made to burn the vehicle and thus get rid of the evidence.

The camper then began to travel over smooth surface and continued to do so for some time. Then the vehicle began swaying on a rough road. Finally the vehicle came to a stop, and the people were moving around. The witness remained quiet for about ten minutes and was worrying about the smoke that was filling the room. When she got up, her husband was lying on the floor dead. It was night and the lights in the vehicle were on.

Mrs. Froney, suffering from knife wounds and in a weakened and exhausted condition, started walking up a dirt and deserted road and came to a fork, whereupon she took the right fork and walked for a while until she could hear traffic. She then turned around and took the left fork until she reached a very busy highway. Finally, a patrol car and another car stopped. Two patrol officers got out of the patrol car. One of the officers was later made known to Mrs. Froney to be Trooper B. G. Brown. The witness testified that she told the officers where the camper was located. Thereupon the officers put her in the other car and asked the occupant, a Mrs. Iiolston, to drive her to the hospital. Mrs. Holston responded and took her to the East Tallapoosa Hospital.

The record is replete with activities of law enforcement officers in conducting an intensive and extensive investigation as to the identity of the hitchhikers and their whereabouts. Also, a minute search of the camper and the area of the crime to obtain evidence pertinent to the commission of the homicide and the attack on Mrs. Froney was conducted. The investigation reveals sufficient probable cause that pointed to the identity of some, if not all four of the hitchhikers, who were arrested pursuant to a federal fugitive warrant issued under federal authority. The arrest of the four hitchhikers took place in Del Mare, California, by ten FBI officers.

The officers took possession of a pair of boots, knives, sheaths and other articles which were in the room and in view of the officers. The articles were in the room occupied by the hitchhikers.

These articles were brought back to Alabama, and after sequence of possession was established, they were introduced and admitted in evidence on the condition of the prosecution that they pointed to the guilt of appellant.

It will unduly lengthen and burden this opinion to delineate all of the evidence leading to the apprehension and arrest of the four persons in the motel room. These articles of clothing and the knives were all relevant and properly admitted into evidence at the trial of the defendant. Suffice it to say, the investigation seemingly was thorough and efficient and brought results from which an indictment of defendant was returned. The defendant was tried separately from the others.

We will now advert to the pleading and procedure after indictment and preliminary to the trial. We will also address the contentions of the defendant during the trial and set forth in the defendant’s exhaustive and comprehensive brief.

I.

The defendant timely filed a motion to quash the indictment for that at the time of the alleged commission of the offense named in the indictment, he was only 21 years of age; that the Constitution of the United States and of the State of Alabama affords him protection which entitled him to have the indictment returned by a grand jury properly and legally drawn from a jury box composed of a fair cross-section of eligible jurors from Lee County; that he was denied this right in that young people of the age of 25 years and younger were not fairly included in the jury box, but on the contrary were systematically excluded therefrom, “and indeed all eligible jurors between the ages of 18 years and 21 years were completely excluded from said jury box from which the grand jury which indicted the defendant in this case were selected or drawn.”

The trial court promptly, without a hearing, overruled the motion although it was timely filed and presented to the court. Under many factual circumstances, the defendant, as here, is entitled to a judicial hearing on his motion. However, under applicable law, we think there was no error in overruling defendant’s motion without a hearing.

It is to be noted that the motion embraces young persons between ages 18 and 20 inclusive and also those between ages 21 and 25 inclusive, and alleges that they were systematically excluded from the jury roll or box from which the members of the grand jury returning the indictment were drawn.

The legislature in Title 30, § 21, Recompiled Code 1958, as amended, appearing in the pocket part of volume 8, prescribed the qualifications of persons on a jury roll and excusing certain persons from service. Persons under 21 years were specifically excluded from such service.

We do not think the enfranchisement of persons between the 18 and 21 years of age affected, repealed or modified the age restriction, supra, so as to mandate eligibility for jury service of this age group, namely, between 18 and 21 years of age. Legislative action is necessary to change the eligibility of jury service of this group.

The United States Supreme Court in Carter et al. v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549, observed:

“ * * * It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. ‘Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.’
“Statutory provisions such as those found in § 21 are not peculiar to Alabama, or to any particular region of the country. Nearly every State requires that its jurors be citizens of the United States, residents of the locality, of a specified minimum age, and able to understand English. Many of the States require that jurors be of 'good character’ or the like; some, that they be ‘intelligent’ or ‘well informed.’ ”

The states remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character.

Further observations of the Supreme Court in Carter with reference to § 21, supra, although some may be pertinent, are not necessary to this opinion. In United States v. Olson, 8 Cir., 473 F.2d 686, the Court there made an observation which we think has application to defendant’s motion.

“In sum, there is no support in law or logic for the proposition that the right of jury service is a concomitant subsidiary of the franchise. Accordingly, we reject appellant’s contention that the Twenty-Sixth Amendment ipso facto rendered unconstitutional the twenty-one year minimum of 28 U.S.C. § 1865(b) (1).”

We hold that § 21, supra, of the Alabama Code, is not abrogated or modified with respect to the exclusion of persons under twenty-one years of age from jury service. We quote pertinent observations of the Eighth Circuit in Olson, supra;

“The true basis of a challenge to the master list in this case must rest on the allegation that the compilation of the list excluded an identifiable community group, to wit: persons aged eighteen to twenty. Of course, ‘[njeither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.’ Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759 (1965). However, since a jury is designed to ‘express the conscience of the community,’ Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), ‘[t]he American tradition of trial by jury . necessarily contemplates an impartial jury drawn from a cross-section of the community.’ Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946). Thus, juries must be indiscriminately selected ‘without systematic and intentional exclusion of any . substantial portion of the community . . . that cannot be excluded in whole or in part without doing violence to the democratic nature of the jury system.’ Id., at 220, 223, 66 S.Ct., at 985. This command flows from the requisites of both Due Process, Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (plurality opinion of Mr. Justice Marshall), and the Sixth Amendment, Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970).
“Accordingly, the dispositive question is whether persons aged eighteen to twenty compose an ‘identifiable group’ which cannot be systematically excluded from jury service without rendering juries nonrepresentative of community attitudes. But appellant has ‘failed to show that the attitudes of this group [18-20] are inadequately represented by those several years older than they, that is, that eighteen to twenty-one year olds are a distinct, cognizable group.’ United States v. Deardorff, 343 F.Supp. 1033, 1043 (S.D.N.Y.1971). ‘The difference in viewpoint between ages [18-20 and 21-25, for example,] .... would not seem to us of any great significance. . We regard it as highly speculative whether the decisional outlook of such excluded persons would be different than that of persons a mere few years older . . . .’ King v. United States, 346 F.2d 123, 124 (1st Cir. 1965). Accordingly, we hold that persons aged eighteen to twenty are not an identifiable, group the exclusion of which renders a jury list nonrepresentative of the community and violative of the Fifth and Sixth Amendments. * * * ”

In harmony with the aforementioned pronouncements in Carter and Olson, supra, we hold that the persons of 18-25 in age mentioned in the motion are not an identifiable group, and their exclusion does not support the defendant’s motion to quash; that the failure to grant a hearing on the motion was not a reversible error. Neither was it error to overrule same.

II.

Appellant-defendant next asserts that the trial court committed error in refusing to allow his counsel to see notes which the witness for the state had in his hands during direct and cross-examination.

This assertion refers to Trooper B. G. Brown, a witness for the state. We think it is clear from the record that the witness had some notes in his hands when he was testifying; also that the witness did not refer to these notes or in any manner refresh his recollection therefrom while so testifying. There was no proof to the contrary. ,

This court held in Robinson v. State, 49 Ala.App. 511, 273 So.2d 487, that it was within the trial court’s discretion to order or not to order a witness to permit defendant’s counsel to inspect a note or notes which the witness did not take with him to the witness stand, but referred to them outside the courtroom immediately before testifying.

In the instant case, the witness had the notes in his hands but as we have stated, he did not refer to them. The discretionary rule in Robinson, supra, would at least here have application if no more. There is no merit in defendant’s insistence of error to reverse because the trial court refused to order the inspection.

III.

Defendant next insistence is that the trial court erred in refusing to allow defendant’s counsel to cross-examine the prosecutrix, Mrs. Froney — the surviving wife of the homicide victim, regarding her prior statements.

In order to insure accuracy of a stipulation of the parties and a colloquy between counsel for the defendant, Mr. Walker, the District Attorney and the trial court, we quote at length from the transcript:

“Mr. Walker: It is stipulated by and between the parties that the Sheriff of Lee County did participate, along with Captain Herman Chapman, and others, in taking an oral statement from Mrs. Sharon Froney by tape recording device, while she was in the East Tallapoosa Hospital at Dadeville, Alabama, on January 27th, 1972, and that that taped interview was transcribed and furnished, by agreement of the parties, to counsel in this case and that this was the taped interview, so transcribed, that counsel had in his hand when he was attempting to interrogate Mrs. Sharon Froney therefrom, on the first day of the trial.
“Mr. Wright: Now, we are not stipulating that the statement as typed, is a correct statement insofar as to what she actually said to them.
“The Court: Let the record show that this statement was examined by the Court. It is not signed by Mrs. Froney, Sharon Froney, and she testified that she had never seen it and never read it after it was transcribed. She further testified that she was under sedation on January 27, 1972, at the time that statement was taken; that it was a statement by her; it was notes and memoranda made by the Sheriff.
“Mr. Walker: As I understand it, it was what she said, taped by the man.
“The Court: Well, it was still the notes and memoranda by the Sheriff, rather than a statement, in the opinion of this Court.
“Mr. Wright: Of course, I would like the record to show that there are things mentioned in that writing, in that memorandum, that are not. the statement of Mrs. Sharon Froney.
“The Court: That’s true.
“The Court: The Court would not permit the defendant to cross-examine from this statement which has been referred to, due to the fact that it was notes or memoranda made by the Sheriff and that the statement was not signed by Mrs. Froney and he said that she had never seen the statement and never read it, and the Court cited two cases at that time, Mabry versus State, [40 Ala.App. 129,] 110 So.2d 250; cert. den., [268 Ala. 660,] 110 So.2d 260. The other case being Parker versus State, and I will supply the Court Reporter with that book and page [266 Ala. 63.] 94 So.2d 209.”

As we read the -record, defendant’s counsel was not undertaking to introduce the transcription or any of the notes in evidence, but was trying to elicit from the witness certain statements appearing in the transcription and to refresh her recollection.

We pretermit deciding that the defendant having laid the proper predicate, as he did, would not have been entitled to offer impeaching evidence by the officers as to what the witness told them. The transcription, although not signed by the witness, was available to the defense for use in impeaching interrogation.

It appears to us that the defendant was precluded by the trial court from cross-examining the witness fully with respect to her statements to the officers and was denied the right to, formulate his questions by use of the officer’s notes and the transcription, or to use said notes and the transcript as a memoranda and guide in conducting the examination.

This court held in Bailey v. State, 24 Ala.App. 339, 135 So. 407, that the prosecuting attorney had a right to refer to “grand jury notes” in formulating questions on cross-examination of adverse witnesses.

The Supreme Court of Alabama held in Parker v. State, 266 Ala. 63, 94 So.2d 209, that the trial court in a homicide prosecution would not be put in error for permitting the solicitor to cross-examine the defendant from written transcript of tape recorded statements made by the defendant to the police, soon after the fatal shooting, where the transcription was not admitted into evidence or authenticated in any manner by the defendant.

The trial court stated:

“The Court: Well, I’ll tell you. I think I’ll just take the bull by the horns right now and say that you can’t ask her any more questions from that statement, any more questions from that statement.”

The defense counsel made known to the trial court that he was trying to refresh the recollection of the witness and elicit, if he could, certain statements which she omitted to tell on direct examination; that he was not trying to use the transcription or notes as impeaching evidence. In fact, the defense counsel offered to show the witness the transcription, but in no instance did he try to introduce the notes or the transcription into evidence.

We conclude that the court committed reversible error in precluding the defendant’s counsel from cross-examining the witness, the only eye-witness who testified, while using the transcription and notes as a guide in so doing.

IV.

Defendant further contends that the trial court erred in charging out insanity as a defense to the alleged crime.

As wc view j:he record, the defendant adduced evidence by competent and credible witnesses that he was mentally retarded, was meek and amiable as a child; that he had no propensity to fight or engage in physical combat with others, when he was growing to manhood; that he was slow to reason and very retarded in planning. There was no testimony that this mental condition was due to a diseased mind. Neither was there any testimony adduced under the insanity plea that met the mandates of Parsons v. State, 81 Ala. 577, 2 So. 854, which is the bedrock case on insanity in Alabama. The burden to prove his insanity plea was on the defendant. Title 15, § 422, Recompiled Code 1958.

V.

A fifth contention is that the trial court erred in refusing to give the defendant’s requested charges in writing relative to manslaughter in the first degree; also the court declined to instruct the jury on said manslaughter.

We conclude from the record that the defendant was guilty of murder and not any other offense embraced in the indictment. The evidence of the only eye-witness to the crime, Mrs. Froney, was that the homicide was cold-blooded and without excuse or justification committed to effect a robbery of the victim Mr. Froney and the witness. The defendant did not take the stand, neither did any of the other three alleged participants appear as a witness for the defendant. There was no error in the refusal of the trial court to give the defendant’s written charge on the elements of manslaughter in the first degree. Ragsdale v. State, 134 Ala. 24, 32 So.2d 674; Booth v. State, 247 Ala. 600, 25 So.2d 427. When the state’s evidence, as here, made out a case of unprovoked and coldblooded murder, and the defendant offered no evidence, the trial court properly refused the defendant’s requested charge as to the reduction of the grade of homicide to manslaughter. If the defendant was guilty, there was absolutely nothing in the evidence to reduce the crime below murder and the court properly refused the written charge relating to manslaughter. Snead v. State, 251 Ala. 624, 38 So.2d 576(14).

VI.

Defendant asserts that the trial court committed reversible error in allowing an FBI agent, Thomas J. McCrystal, to testify about contents of a teletype without accounting for the absence of the original. There were no grounds given for this objection. The ruling on the objection is not reviewable. McKanney v. State, 51 Ala.App. 529, 287 So.2d 240(3); Alabama Great Southern R. Co. v. Sanders, 145 Ala. 449, 40 So. 402; Southern R. Co. v. Jordan, 192 Ala. 528, 68 So. 418; Harvey v. Bodman, 212 Ala. 503, 103 So. 569(7); Conway v. Robinson, 216 Ala. 495, 113 So. 531; Alabama Digest, Volume 2, Appeal and Error ®=3231(3).

VII.

Defendant’s next contention is that the court committed reversible error in refusing to allow the defendant to cross-examine the FBI agent on matters about which the witness testified on direct examination.

We think it is reasonably clear from the testimony of the witness that the teletype message, the subject of the cross-examination of the witness, was a governmental message from the FBI office to the agent, containing confidential information not subject to disclosure. It appears from direct examination that the teletype message was related to the defendant and his arrest along with the others. It is inferable from the evidence that the message contained confidential information that was not subject to disclosure on cross-examination. Such disclosure on cross-examination was not permissible. Parsons v. State, 251 Ala. 467, 38 So.2d 209.

VIII.

The next question for consideration is whether or not the court, when the state rested, erred in overruling the defendant’s motion to exclude the evidence. This motion and ruling brings into focus whether or not there was sufficient evidence adduced by the state which would sustain the jury’s verdict that the defendant was guilty of murder as charged in the indictment. The only eye-witness to the homicide, for which the defendant was tried and convicted, was Sharon Froney. The other witnesses, of course, were the alleged accomplices.

Omitting at this juncture repetition of the evidence, supra, relating to events prior to the actual slaying, we advert to testimony, which in our judgment sustains the implication and inference that the defendant was a principal in the slaying, although there is absent any direct proof as to which of the three men present in the motor vehicle actually wielded the knife to effect the victim’s death.

It appears to us from the evidence that this defendant, Connell, was huddled with the other two men in deep conference, which was a prelude to the knife attack on the victim; that the knife was wielded by one of these three men; that the defendant, Connell, was huddled over the victim with the other men when the victim pleaded to them to leave him alone, or words to that effect, and to take the motor vehicle and go ahead. It was at this time that the knife was being wielded and in such a manner as to cause the death of Mr. Fro-ney.

We hold that the jury could draw a reasonable inference from the secretive conference by the three men and their huddle over the victim that the defendant was an accomplice to the homicide.

The guilt of the defendant would not have to be established as to his having actually wielded the deadly weapon. Title 14, § 14, Recompiled Code 1958. In Jones v. State, 174 Ala. 53, 57 So. 31, our Supreme Court quoted with application a principle in Morris v. State, 146 Ala. 66, 41 So. 274, 280, as follows:

“When by prearrangement, or on the spur of the moment, 'two or more persons enter upon a common enterprise or adventure, and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist, the active perpetrator in the commission of the offense, is a guilty participant, and, in the eye of the law, is equally guilty with the one who does the act. Such community of purpose, or conspiracy, need not be proved by positive testimony. It rarely is so proved. The jury are to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case.’ ”

In Jones, supra, the Supreme Court further observed:

“Aid and abet ‘comprehend all assistance rendered by acts or words of encouragement or support or presence, ac-. tual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.’ Raiford’s Case, 59 Ala. 106; Tally’s Case, 102 Ala. 65 et seq., 15 South 722.”

We also quote from Commonwealth v. Ventura, et al., 294 Mass. 113, 1 N.E.2d 30, wherein it appears that Ventura and three others were convicted of second degree murder. There was no evidence as to which defendant inflicted the death blows. The appellate court observed:

“The evidence warranted a finding of concerted action on the part of all the defendants in going to the remote place when the murder was committed on the afternoon of October 3, 1934, and that they all were in a position to render assistance in the commission of the crime. There was evidence of separation after the murder and a gathering in Boston late in the evening. The contradictory statements made by the several defendants and the possession by one of them of an implement like one by which it might have been found by the jury that a mortal blow was inflicted upon the murdered man were highly significant. A verdict of guilty of murder in the second degree was warranted on the evidence. There was no error in denying the motions for directed verdicts in favor of the defendants. * * *”

We also refer to our recent case of Lee v. State, 51 Ala.App. 332, 285 So.2d 495.

It is to be noted that all four of the hitchhikers fled the scene of the homicide and were apprehended in a motel in Del Mar, California. Also discovered in the room with them were several other articles taken from the camper where the homicide occurred. It is not shown that the defendant transported these articles, but they were part of the res gestae removed by one or all of the hitchhikers from the camper.

Evidence of flight of a defendant from the scene of the crime is admissible as a circumstance to show guilt. Walters v. State, 24 Ala.App. 370, 135 So. 600; McAllister v. State, 30 Ala.App. 366, 6 So.2d 32; Lance v. State, 28 Ala.App. 571, 190 So. 108; Alabama Digest, Volume 6, Criminal Law, @^351(3).

We conclude that the trial court did not err in declining to exclude the evidence. The guilt or innocence of the defendant was a jury question.

IX.

It appears that the court gave a very comprehensive oral charge; also he gave eight written charges requested by the defendant and refused thirty-one. We have reviewed each of the thirty-one refused charges, and it is our opinion that they were correctly refused, for that they stated either an incorrect principle of law, were inapplicable to the evidence in the case, were abstract, or were substantially covered by the oral charge and the given charges. We omit discussing the individual charges because it would extend this opinion beyond reasonable length. We particularly refer to the request for the affirmative charge as being correctly refused. The guilt or innocence of the defendant was a jury question.

Because the trial court restricted the defendant’s cross-examination of the state’s only eye-witness, Mrs. Froney, relating to the stipulated transcribed statement taken on a tape recorder by certain officers of the law, it is our opinion that the trial court committed reversible error. The record otherwise is free of error.

It is ordered that the judgment of the court, convicting the defendant, be and the same is hereby reversed and remanded for further proceedings.

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

Reversed and remanded.

CATES, P. J., and ALMON, TYSON and HARRIS, JJ., concur.

DeCARLO, J., dissents.


author: PER CURIAM.

text:
    Karen Elaine JORDAN, alias v. STATE.
    5 Div. 141.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied Nov. 12, 1974.

      Richard D. Lane, Auburn, for appellant.
    William J. Baxley, Atty. Gen., and Kent Brunson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is a companion case of Connell v. State, 56 Ala.App. 43, 318 So.2d 782, which was reversed and remanded by this court on May 7, 1974. This opinion is subject to review by the Supreme Court.

This instant appellant-defendant was indicted, along with Connell and two others, in separate indictments, for murdering Burt Michael Froney. The jury convicted her of murder in the second degree, which was implied in the charge of murder in the first degree. The jury fixed her punishment at imprisonment for life.

Our statement of facts in Connell leading up to the alleged homicide, at the time thereof, and subsequent thereto, is substantially the same as the record presents in the instant case. We adopt this statement for the purposes of this opinion.

Many of the legal issues in Connell and here are in many respects the same. Here, the trial court did not refuse cross examination of Mrs. Froney with respect to an oral statement she gave some officers, which was tape recorded and transcribed, but not signed. The trial court in Connell refused to permit the defendant to cross examine about the taped statement. Such question did not arise in the instant case. We will advert to the legal issues here which appellant asserts as error. She was represented by appointed counsel during the trial and is represented on this appeal by the same appointed counsel. She was then and is now an indigent.

MOTIONS

We will first take up pre-trial motions that were filed and heard before the trial and overruled.

INVESTIGATION OF SANITY

We construe appellant’s contention in her counsel’s brief that she was insane at the time the alleged offense was committed and at the time of trial; that she was entitled to an inquisition to determine her mental condition; that such inquisition was authorized, so the appellant contends, by §§ 425, 426, and 428 of Title 15, Code of Alabama 1940. The motion for such sanity investigation was supported by some affidavits with respect to which we will omit details. The evidence presented on the question of insanity is not comparable with that in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, and is not sufficient to raise a “bona fide doubt” as to appellant’s sanity and her mental competence to stand trial.

The trial court under the evidence did not err in denying appellant’s motion to appoint three reputable specialists-practitioners. in mental and nervous diseases to examine her. The trial court was under no duty to appoint a lunacy commission or to procure a report of the superintendent of Alabama state hospitals under provisions of § 425, supra. The court has the right but not the duty to seek these aids for advisory purposes when, in the discretion of the court, aid will be helpful. Eaton v. State, 280 Ala. 659, 197 So.2d 761; Howard v. State, 278 Ala. 361, 178 So.2d 520. The affidavits filed in support of the position do not, in our judgment, support such appointments or procedure.

We note that the trial court in its oral charge instructed the jury that, if they believed the evidence, they could not find the appellant not guilty by reason of insanity. The appellant did not except or object to this instruction.

We also note that on the trial of the issues of not guilty, the state introduced in evidence (Tr. 354) appellant’s undisputed statement (Appellant did not testify) made in the presence of Officers Ronnie Watkins, et. al, on February 2, 1972, wherein she related in detail events before, at the time of, and after the commission of the homicide. The statement largely comports with the testimony of Mrs. Froney and some of the other witnesses for the state. A few crucial details that implicated the appellant were absent. Appellant’s statement indicated lucidity at that time.

The statement, although not decisive, downgrades or casts a shadow on appellant’s contention of insanity when the crime was committed and at the time of trial. In other words, it appears from this statement that the appellant was not suffering from any mental disturbance. The action of the court in overruling the motion was free of error.

MOTION FOR PRELIMINARY HEARING

It appears that the Alabama warrant for the arrest of the appellant was issued by Judge Tyner, who was a trial judge in the nisi prius court where the appellant was convicted and from the judgment of conviction she here appeals.

Motion for preliminary hearing was filed before the indictment on March 22, 1972. It was presented to the court after the indictment was returned. The trial court, as the record indicates, had a full schedule of official work. The court overruled the motion for preliminary. This ruling occurred after the indictment was returned (Tr. 117).

“A person accused by an indictment is not entitled to a hearing in advance of trial. This for the reason that there is no constitutional requirement, either federal or state, that there be two inquiries into probable cause. A sovereignty having once satisfied the provision for an inquiry as to probable cause by presenting the matter to a grand jury and obtaining an adjudication of the existence of probable cause, is entitled to bring the accused to trial without further litigation of this question. See United States ex rel. Kassin v. Mulligan, 295 U.S. 396, 55 S.Ct. 781, 79 L.Ed. 1501; Beavers v. Henkel, 194 U.S. 73, 24 S.Ct. 605, 48 L.Ed. 882. No merit therefore attaches to petitioner’s contention that he was denied any constitutional right by not having been accorded a preliminary hearing.” Ex parte Campbell, 278 Ala. 114, 176 So.2d 242, at page 243.

The court did not commit error in overruling the motion for a preliminary hearing.

MOTION TO PRODUCE

Appellant contends that she was unlawfully denied her constitutional right to see or inspect a statement that she made to federal authorities, which the state acknowledged the appellant made.

Our search of the record fails to reveal to us any evidence that such statement was made or that the state had knowledge of such statement; nor do we find that such statement was in the possession, custody and control of the Lee County Sheriff’s Office. No such statement was introduced in evidence or offered in evidence by the state that we are able to find.

Besides, we think the motion to produce lacked specificity and was too broadsweeping and general to meet the requirements of law. McCants v. State, 282 Ala. 397, 211 So.2d 877; Smith v. State, 282 Ala. 268, 210 So.2d 826; Sanders v. State, 278 Ala. 453, 179 So.2d 35.

MOTION FOR CHANGE OF VENUE

Appellant moved the court for a change of venue due to the extensive publicity in the news media of Lee County, and also appearing in the news media of other counties. News items appearing in various newspapers concerning the homicide were introduced in evidence. Also broadcasters over the air news media testified. It appears that there was considerable publicity prior to the trial concerning the crime.

The newspaper articles gave prominent space about the alleged offense and the arrests of the four alleged defendants who were indicted. These items did not carry any editorial implications that the suspected murderers were guilty of the crime. So far as the record shows, the television and radio accounts of the crime and the arrests of the defendants were free of such implications of guilt. They were just news items carrying usual publicity in prominent spaces about the nature of the crime and the arrests of the defendants.

On a motion for a change of venue in a criminal case, the defendant has the burden of showing to reasonable satisfaction of the court that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Tiner v. State, 271 Ala. 254, 122 So.2d 738.

The trial judge was a resident of Lee County and was in a position to evaluate conditions and sentiments in his own county. Donald v. Matheny, 276 Ala. 52, 158 So.2d 909(14); Edwards v. State, 51 Ala.App. 433, 286 So.2d 308, cert. den., 291 Ala. 777, 286 So.2d 313.

A change of venue was unnecessary. The trial was had before a competent jury who, according to our examination, were free of any prejudice created by the news media or otherwise. They returned a verdict of murder in the second degree when the indictment charged murder in the first degree.

MOTION FOR CONTINUANCE

Defendant on the day of the trial moved the court for a continuance on the ground that the defendant was being tried subsequent to two of her co-defendants, who were tried and convicted. Accounts of these trials and the results were given coverage in the newspapers.

The trial court has discretion on the question of continuance or postponement, and such discretion will not be revised in the absence of clear abuse of discretion. Logan v. State, 251 Ala. 441, 37 So.2d 753. Abuse of discretion is not here shown. We will not charge the court with error in its refusal to continue the case.

ON THE MERITS

I.

It appears in the record that the appellant submitted to the trial court for its consideration a series of seventy or more questions to be asked the venire concerning their qualifications, interests, or bias in the trial of the defendant.

Defendant complains in her argument that the court erred in striking from the list questions 29 and 57, which appear in the defendant’s brief. We quote:

“29. Do you feel that you know too much about this case, from the pretrial publicity that has surrounded it, that you feel you should be disqualified from the case? 29. Do you think it might confuse your judgment if you sit on a jury in this case and not all of what you have heard, read, or learned about the case actually comes out in court in a manner different from what you may have heard ?
“57. Have any of you sat on a grand jury in this circuit within the past two years ? If so: who ?”

With respect to question twenty-nine, we have examined the transcript and find that the trial court in qualifying the jury fully covered the import of this question (See Tr. 144-145). We will not burden this opinion by quoting the court’s inquiry of the jury.

Question fifty-seven was properly stricken from the list. The trial court asked the jurors if any one of them was on the grand jury that returned the indictment. This inquiry met the demands of law.

The above contention of error is without merit.

II.

Deputy Sheriff Ronnie Watkins testified that on February 25, 1972, he in the presence of another, talked with the defendant at which time she signed and gave him a written statement with respect to the homicide and incidents relating thereto.

It appears that before signing the statement he orally advised the defendant of her Miranda warnings. We quote the testimony of the witness (Tr. 334-335):

“Q. Now, what rights did you advise her of, at that time ?
“A. I advised the defendant that she had a right to remain silent; that anything that she might say could be used in a Court of law against her; that she had a right to a lawyer or counsel; and the right to have a lawyer or counsel present if and when she did make a statement; that any time during the questioning that she wished to stop answering questions, she had a right to do so; if she did not have the money to employ an attorney, the State of Alabama or the Court would appoint one to represent her. I asked her did she understand her constitutional rights and she told me that she did.
“Q. Did you—
“THE COURT: State whether or not you told her that she could have a lawyer at any time during the questioning ?
“THE WITNESS : Yes, sir, I did.
“THE COURT: All right.
“Q. State whether or not you said a lawyer would be furnished her free of charge?
“A. Yes, sir, I did.
“Q. Did you ascertain at that time, as you were talking to her and advising her of these rights, what education she had had ?
“A. I did, yes, sir.
“Q. What education?
“A. She advised that she completed the tenth grade of formal education.
“Q. And did you determine at that time her age?
“A. I did, yes, sir.
“Q. What was her age at that time?
“A. At that time she was 19 years of age.
“Q. Did you ascertain at that time whether she could read and write the English language ?
“A. I did, yes, sir.
“Q. And what did she say ?
“A. She advised that she could.
“Q. After advising her — did you advise her of these rights orally ?
“A. I advised them orally, and she read along with me on the Waiver of Counsel by Defendant in Custody, that I had filled out.”

Defendant signed a waiver of rights which, along with the statement, appears in the record at page 354 et seq. Both were admitted in evidence.

The witness also testified that prior to the defendant’s statement, “he nor anyone in his presence in the sight, presence or hearing of the defendant offered her any reward or hope of reward or other inducement to get her to make a statement or made any threat or used any force against her to get her to make a statement” (Tr. 337).

It is true that the waiver which the defendant signed referred only to murder and not to robbery or assault with intent to murder for which she was also indicted. The instant trial was for murder. Information imparted to the defendant that she was charged only with murder was sufficient. We pretermit discussing the legal availability of the waiver and statement for use in the trial of the other charges.

There was no error in admitting this waiver and statement in evidence.

III.

Ten agents of the Federal Bureau of Investigation, acting under a valid federal warrant of arrest of the defendant and her three companions, entered the Delmar Motel in California, where all four of the fugitives were housed, and forthwith placed all of them under arrest. The officers did not have a search warrant.

It appears that the four fugitives were all in the motel room that accommodated two single beds, one double bed and a dresser. Inside the dresser drawers, within reach of the defendants or some of them, were some knives. They were in plain view of the officers. The drawers containing the weapons were partially open and by looking in the openings the weapons were in plain view and subject to seizure without a search warrant as an incident of arrest. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The officers were also authorized to seize a pair of white boots in the constructive possession of the defendant, lying in a closet of which the door was open, and hold them for evidence. Such seizure was authorized under Preston and Chimel, supra. These weapons and items, after proper sequence of possession was established, were properly admitted in evidence. They shed light on the res gestae of the crime. The boots were the property of Mrs. Froney, who identified them when she testified. They were in the motel room and only one female was in there who could have worn them. The defendant admitted in her voluntary statement that she took the boots from the camper.

Defendant was not prejudiced by her suggestion to the arresting officer that she get her clothing in the closet. The officer gave her the boots and then retrieved them after another officer suggested the evidentiary value of the boots.

The trial court did not commit error in admitting the hoots in evidence over defendant’s objection because the defendant was not given the Miranda warning when she importuned that her clothing be given her.

IV.

It appears from the evidence that appellant aided and abetted one or more of the three male indictees in killing their victim, Burt Michael Froney. Appellant by such aid became a principal. Title 14, § 14, Code of Alabama 1940.

Mrs. Froney, wife of the victim, testified that as she came out of the bathroom she was confronted by the defendant with a knife poised about waist high and directed toward the witness. The three men were hovered over her husband, and her husband said:

“ ‘Just take the motor home, take our money, but just don’t hurt us.’ ”

Her husband was killed then and there. Mrs. Froney further testified that the defendant at the time told her, “ . . .to take it easy and nothing would happen to me” (Tr. 186).

This evidence was sufficient, when considered with all the other evidence relative to the crime, to support an inference that defendant was an accomplice under Title 14, § 14, supra. Lee v. State, 51 Ala.App. 332, 285 So.2d 495, cert. den., 291 Ala. 787, 285 So.2d 500; Morris v. State, 146 Ala. 66, 41 So. 274, 280; Jones v. State, 174 Ala. 53, 57 So. 31.

V.

It appears from the record as follows:

“MR. LANE: If it please the Court, in light of some of the requested additional instructions to the panel, I would respectfully request Number 29 be explained to the panel again.
“THE COURT: Number 29?
“MR. LANE: Yes, sir.
“THE COURT: No, he asked me about 22.
“MR. LANE: Well, I renew my request.
“THE COURT: No, sir. You can have an exception. We can’t just keep going over everything. I tried to make it as clear as I possibly could do it. You heard all of the testimony. You heard Mrs. Froney and you heard her testimony and she was the only person there and you heard her testimony about everything that happened during that incident.”

After the jury retired the following colloquy took place:

“THE COURT: What says the State ?
“MR. WRIGHT: Satisfied, Your Hon- or.
“THE COURT: What says the defendant?
“MR. LANE: If it please the Court, I have an objection to make out of the presence of the jury and they are not here now.
“First of all, Judge, I believe you stated in your last few statements to the jury panel, ‘you heard Mrs. Froney testify' — ’ words to the effect, and her testimony is that she was the only person that was there, or something to this effect and we believe there is other evidence adduced in this trial, namely, the statement of Karen Jordan, who also was there. And I feel this was misleading and that — ”

The last exception after the jury retired for deliberation referred to observations of the court to the jury that were a part of the court’s oral charge. The exception, after the jury retired for deliberation, came too late. Such exception to the oral charge must be made in the presence of the jury and before they leave the box. Bentley v. Lawson, 280 Ala. 220, 191 So.2d 372; Webb v. City of Birmingham, 279 Ala. 272, 184 So.2d 352; Vol. 18A Alabama Digest, Trial <S=*273.

The conduct of the trial and the court’s rulings are free from error. The judgment is due to be affirmed.

Affirmed.

ALMON, TYSON, HARRIS and De-CARLO, JJ., concur.

CATES, P. J., not sitting.


author: HEFLIN, Chief Justice.

text:
    In re Karen Elaine JORDAN v. STATE. Ex parte Karen Elaine Jordan.
    SC 1068.
    Supreme Court of Alabama.
    March 13, 1975.
    Richard D. Lane, Auburn, for petitioner.
    No appearance for the State.
   HEFLIN, Chief Justice.

Petition of Karen Elaine Jordan for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jordan v. State, 56 Ala.App. 55, 318 So.2d 793.

Writ denied.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


author: TYSON, Judge. DeCARLO, Judge

text:
    Billy Don CLARK v. STATE.
    6 Div. 494.
    Court of Criminal Appeals of Alabama.
    March 26, 1974.
    Rehearing Denied April 23, 1974.
    For opinion of Court of Criminal Appeals on remand, see 56 Ala.App. 67, 318 So.2d 813, writ quashed, 294 Ala. 493, 318 So.2d 822.

      William M. Dawson, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The Grand Jury of Tuscaloosa County, Alabama, indicted the appellant with first degree murder of Donald Richard Gwin. At arraignment the appellant entered pleas of not guilty, and not guilty by reason of insanity.

Prior to trial date, the appellant’s sworn plea of autre fois acquit was overruled by the trial court.

At trial the Jury returned its verdict of guilty of murder in the first degree and set punishment at life imprisonment. The trial court then entered its judgment, setting sentence in accordance with this verdict. The appellant’s motion for new trial, which raised the plea of autre fois acquit, was overruled.

I

Article I, Section 9, Constitution of Alabama 1901, is as follows:

“That no person shall, for the same offense, be twice put in jeopardy of life or limb; but courts may, for reasons fixed by law, discharge juries from the consideration of any case, and no person shall gain an advantage by reason of such discharge of the jury.”

In appellant’s sworn plea, he raised his prior plea of guilty, entered on June 9, 1970, to the indictment in question, stating that the trial court’s acceptance of this plea and judgment, which found the appellant guilty of murder in the second degree, and fixed punishment at life imprisonment, operated as an acquittal of first degree murder. The trial court overruled this plea.

The appellant’s prior guilty plea was appealed to this Court and reversed in an opinion reported as Clark v. State, 48 Ala.App. 108, 262 So.2d 310, cert. denied 288 Ala. 736, 262 So.2d 312. This plea had been accepted in accordance with the provisions of Title IS, Section 277, Code of Alabama 1940, as amended 1969. The reversal was for failure to follow the mandate of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

We must reverse and remand.

The trial court at arraignment failed to follow the provisions of Thomas v. State, 255 Ala. 632, 53 So.2d 340, as follows:

“The second trial was entered upon without following the usual and correct practice of rearraignment of the defendant, explaining to him the effect of the verdict on the first trial and his right to plead acquittal of murder in the first degree. Stephens v. State, 254 Ala. 50, 46 So.2d 820 . . . .”

While this defense may be waived by failing to formally plead same, Thomas v. State, supra, a review of the Alabama authorities leads us to the conclusion that such former conviction (here on a guilty plea) properly plead constitutes an acquittal of the charge of first degree murder. This is the settled law of Alabama. Corbett v. State, 38 Ala.App. 536, 91 So.2d 503; Lewis v. State, 51 Ala. 1; Mitchell v. State, 60 Ala. 26; Nutt v. State, 63 Ala. 180; Berry v. State, 65 Ala. 117; Smith v. State, 68 Ala. 424; DeArman v. State, 71 Ala. 351; Sylvester v. State, 72 Ala. 201; Jordan v. State, 81 Ala. 20, 1 So. 577; Burton v. State, 115 Ala. 1, 22 So. 585; Ferguson v. State, 141 Ala. 20, 37 So. 448; Ex parte Spivey, 175 Ala. 43, 57 So. 491; Roberson v. State, 183 Ala. 43, 62 So. 837; Ex parte Williams, 213 Ala. 121, 104 So. 282; Ison v. State, 252 Ala. 25, 39 So.2d 249; Thomas v. State, 255 Ala. 632, 53 So.2d 340.

The trial court’s theory, apparently in overruling the plea of former jeopardy, was that such being upon a guilty plea and appeal therefrom, the proceedings were returned to the same point as the initial arraignment. This theory was expressly disapproved in Smith v. State, 253 Ala. 277, 44 So.2d 250, as follows:

“Express disapproval, however, of such a theory has heretofore been pronounced by this court. The acquittal of the defendant of the offense charged operated as a bar to further prosecution, notwithstanding such conviction was reversed for error committed on trial in ruling on the plea in abatement. Ex parte Spivey, 175 Ala. 43, 57 So. 491.”

Moreover, as stated by the Supreme Court of the United States, in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199:

. . When a man has been convicted of second degree murder and given a long term of imprisonment it is wholly fictional to say that he ‘chooses’ to fore-go his constitutional defense of former jeopardy on a charge of murder in the first degree in order to secure a reversal of an erroneous conviction of the lesser offense. In short, he has no meaningful choice. . . . ”

Thus, a successful appeal is no waiver of the right to plead former jeopardy.

Nor should there be a distinction accorded here because the former conviction is based on a plea of guilty. Markiewicz v. Black, 138 Colo. 128, 330 P.2d 539, 75 A.L.R.2d 678, holds:

“The general rule as to the point of time when or the state of the prosecution at which jeopardy attaches is well stated in 22 C.J.S. Criminal Law § 241, p. 375 as follows:
. . The general rule established by the preponderance of judicial opinion and by the best considered cases is that, when a person has been placed on trial on a valid indictment or information before a court of competent jurisdiction, has been arraigned, and has pleaded, and a jury has been impaneled and sworn, he is in jeopardy, but that, until these things have been done, jeopardy does not attach . . . it is not ordinarily necessary that the prior trial shall have resulted in a valid judgment either of conviction or acquittal; it is sufficient if the prisoner was actually placed in jeopardy in that he was in danger of 'having a valid judgment pronounced as the result of the trial; it is not the verdict or judgment which places a prisoner in j eopardy. In a case submitted to the court without a jury, jeopardy begins after accused has been indicted, arraigned, and has pleaded, and the court has begun to hear the evidence, or the trial has begun by reading of the indictment to the court. This assumes of course, that the court has jurisdiction.’
“And the rule in case of a plea of guilty is stated in 22 C.J.S. Criminal Law § 248, p. 38S:
. . A plea of guilty to an indictment, in good faith, with its entry on the record, is jeopardy, although judgment was suspended or the prosecution was dismissed without the consent of accused; but accused is not in jeopardy if his plea of guilty is extorted by duress or by fear of mob violence.’ ”

Secondly, the State suggests that, because the punishment imposed on second conviction, i. e., life imprisonment, was the same as that imposed at first trial, the error is harmless. This argument was expressly rejected by the Supreme Court of the United States in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300, as follows:

“One further consideration remains. Because the petitioner was convicted of the same crime at both the first and second trials, and because he suffered no greater punishment on the subsequent conviction, Georgia submits that the second jeopardy was harmless error when judged by the criteria of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
“We must reject this contention. The Do tble Jeopardy Clause, as we have noted, is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence. See United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (C.A.2d Cir. 1965), cert. denied, Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966).”

We see no valid distinction between a judgment resting on a plea of guilty and one resulting from a plea of not guilty and issue joined. Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, Anno., 75 A.L.R.2d 683, § 3.

We distinguish Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, as above set forth.

Because of this holding, we pretermit consideration of other assignments of error.

Accordingly, the judgment below is

Reversed and remanded.

CATES, P. J., and ALMON and HARRIS, JJ., concur.

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting):

I am unable to concur in the judgment of my brothers in this case.

It is my opinion there is a distinction “between a judgment resting on a plea of guilty and one resulting from a plea of not guilty and issue joined.” A conviction following a jury verdict is a factual determination of guilt while the acceptance of a plea before a trial judge is not. I do not think a conviction and sentence on a plea of guilty implies that the trial judge made an eviden-tiary finding of the elements required for conviction. This plea is merely an announcement of guilt by the accused with a pronouncement of that guilt by the judge.

Generally, the guilty plea represents a negotiation among the accused, his attorney, and the prosecutor. It would follow that a conviction based on this type of plea should be governed by a different legal principle.

If the instant case had been a proceeding wherein a jury had heard the evidence and determined whether accused was guilty of first degree murder or second degree murder, then the State would be bound by that finding. Under Alabama law, if the verdict had been second degree murder, the appellant could not thereafter be tried for a greater offense.

At the time appellant was first convicted, no jury was empanelled and no evidence was presented. The judge did not make a factual determination that the appellant was guilty of second degree murder, but his judgment was based solely on the petitioner’s own assertions to the court.

Further, I am not persuaded that Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, is distinguishable, as set out in the majority opinion.