author: BOWEN, Judge.

text:
    Danny Lee PUGH, alias Danny Pugh v. STATE.
    1 Div. 723.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.

      Richard D. Horne, Mobile, for appellant.

      William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for robbery and the jury fixed punishment at a term of twenty years in the penitentiary. Judgment and sentence by the trial court were entered accordingly. The appellant was represented by retained counsel at trial. Following his conviction he retained new counsel, filed a motion for a new trial and appealed. The trial court ordered that the appellant be furnished a free transcript pursuant to Code of Alabama 1940, Title 15, § 380(14) — (25).

At approximately 6:20 on the evening of December 8,1975, Mrs. Margaret Allen was walking to her automobile in the parking lot of Gayfer’s, a department store in the Springdale Plaza shopping mall located in the western part of Mobile, Alabama. She was leaving work and as she walked down the sidewalk she either heard or noticed someone behind her. She felt someone at her neck, turned around and her assailant stuck a knife to her throat and said, “Where’s your car?” As they continued walking in the parking lot, Mrs. Allen saw a car approaching and screamed.

Jack W. Sawyer had just parked his car. Upon hearing the scream, he responded and ran toward Mrs. Allen and her assailant. Immediately the assailant threw Mrs. Allen on the ground, grabbed her purse and ran toward a service road. Sawyer did not pursue the assailant when Mrs. Allen “hollered” that he had a knife. The police were notified and arrived within five or ten minutes.

Within minutes, Officer Greg Ginder of the Mobile Police Department had arrested the appellant who was found hiding under a bush near the service road which runs by the shopping mall. Officer Ginder found Mrs. Allen’s purse about four feet from the appellant and a knife “up underneath where the defendant was laying in the bush”.

Officer Ginder placed the appellant in the patrol car and carried him back to the scene of the crime. Although Mrs. Allen did request that the appellant say something, she did not have any trouble identifying him. Mr. Sawyer separately viewed the appellant in the patrol car. He identified the appellant as Mrs. Allen’s assailant from the appellant’s physical build and the clothes he was wearing. He could not make a positive identification from viewing the appellant’s face.

The appellant took the witness stand and testified in his own behalf. According to his testimony, he met an individual named Paul at Sambo’s Restaurant. Paul, whose last name the appellant did not know, merely came in the restaurant, sat down at the appellant’s table and asked for a ride. The appellant also testified that one of the Curry brothers introduced him to Paul at Sam-bo’s. After leaving Sambo’s they stopped at Springdale Plaza because Paul wanted to stop there and borrow some money from a friend of his. The appellant testified that he saw the man identified as Paul accost Mrs. Allen and rob her. Although fearing that he had been seen in Paul’s company, the appellant ran in the same direction Paul did. While Paul quickly left the area on foot, the appellant, afraid that he would be blamed for the incident, hid in the bushes near the service road. It was immediately after this that the appellant was arrested by Officer Ginder.

The appellant testified that Mrs. Allen could not positively identify him when he was taken back to the scene of the robbery. He admitted that the knife was his but stated that he never did see the purse. Paul, he testified, was approximately the same physical build and height as he was and was very similar in appearance.

The appellant has raised two issues on appeal: (1) Whether the use of prior convictions to impeach the appellant violated his right to due process and assistance of counsel where each of those convictions was had without the benefit of counsel; and (2) whether the jury foreman’s failure to answer the judge’s voir dire questions violated the appellant’s right of due process.

I

On redirect examination of the appellant by his attorney the following exchange occurred:

“Q. Danny, have you ever been convicted of any crime before?
“A. No, sir.
“Q. Been in anything like that?
“A. No criminal crime like this, no, sir, I have not.
“Q.- As a matter of fact, this is the first thing?
“A. Yes, sir.”

On recross-examination, the state elicited the following testimony:

“Q. Now, you say you’ve never been convicted of any crime, is that right?
“A. Criminal crime, sir.
“Q. Well, crimes are crimes. Are you saying you’ve never been convicted of a crime?
“A. I have been convicted of crimes, yes, sir.
“Q. You have been convicted of crimes?
“A. Yes, sir.
“Q. What have you been convicted of?
“A. Assault and battery, possession of paraphernalia and possession of marijuana.
“Q. But the fact that assault and battery and possession of marijuana is considered by the State of Alabama as a crime, you don’t consider it a crime, is that correct?
“A. It’s a crime, yes, sir, but it’s not

And again on redirect by defense counsel:

“Q. Let me ask you, on the assault and battery, is that the conviction in General Sessions?
“A. Yes, sir.
“Q. And was that appealed up here to the Circuit Court?
“A. Yes, sir.
“Q. And what happened up here?
“A. I was put on probation for that.
“Q. All right, sir. How long before this took place was that?
“A. I was 15 years old.
“Q. And how about those possessions?
“A. About two years, a year and a half or two years.
“Q. Ago?
“A. Yes, sir.
“MR. GALLOWAY: That’s all. RECROSS-EXAMINATION BY MR. PIERSON:
“Q. You said that you were convicted and put on probation when you were 15?
“A. Fifteen or sixteen.
“Q. You’re 20 years old right now, 23 years old, aren’t you?
“A. Yes, sir.
“Q. Weren’t you arrested for assault and battery on April 1, 1974?
“A. But not convicted, no, sir.
“Q. But you were arrested again for assault and battery. Is that right?
“A. Yes, sir.
“MR. PIERSON: No further questions.
“MR. GALLOWAY: You can step down. “THE COURT: Step down.”

At the hearing on the motion for new trial the appellant testified that all three of the prior convictions were had without the benefit of counsel. Relying on Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) and cases cited therein, the appellant argues that the use for impeachment purposes of prior convictions which are void for failure to afford the accused his right to counsel deprives the appellant or any criminal defendant of due process of law.

Although no objection was had to the action of the state in cross examining the accused, the appellant urges that the use of the prior convictions to impeach the appellant violated his constitutional rights.

In Alabama, the plain error doctrine applies to death penalty cases, but not to other convictions. Stinson v. State, 56 Ala.App. 312, 321 So.2d 277 (1975); Tell v. State, 285 Ala. 234, 231 So.2d 107, appeal after remand, 291 Ala. 86, 277 So.2d 898 (1970); Coleman v. State, 276 Ala. 513, 164 So.2d 704, reversed 377 U.S. 129, 84 S.Ct. 1152, 12 L.ed.2d 190 (1963). Review in this court is limited to those matters upon which the action or ruling at the nisi prius proceeding was invoked. While we have previously held that the only exception to this rule is in a case of ineradicable harm, even there the doctrine of “ineradicable harm” or “plain error” applies only to cases wherein the accused may receive the death sentence. Compare Alday v. State, 42 Ala.App. 21, 151 So.2d 220, cert. denied, 274 Ala. 718, 151 So.2d 225 (1962) with Jackson v. State, 260 Ala. 641, 71 So.2d 825 (1954). It is settled, and a search of the case law so dictates, that this court in searching the record is confined to points on which rulings adverse to the defendant are had in the trial court. Echols v. State, 47 Ala.App. 23, 249 So.2d 639 (1971); Stinson, supra.

Despite the lack of objection, the appellant urges that the complained of error was properly raised and preserved by the motion for new trial. Title 7, § 276, Code of Alabama 1940, provides that a motion for a new trial may be granted for: “Error of law occurring at the trial and excepted to by the party making the application”. (Emphasis ours) A motion for a new trial cannot take the place of an objection to the introduction of evidence. Riley v. Srofe, 35 Ala.App. 222, 45 So.2d 328 (1950); Prince v. State, 50 Ala.App. 644, 282 So.2d 83 (1973). Alleged error in the admission of evidence cannot be raised for the first time on motion for new trial. Smith v. State, 40 Ala.App. 600, 119 So.2d 202, cert. denied, 270 Ala. 741, 119 So.2d 203 (1960); Daly v. State, 47 Ala.App. 681, 260 So.2d 412, cert. denied, 288 Ala. 736, 260 So.2d 418, cert. denied, 409 U.S. 874, 93 S.Ct. 123, 34 L.Ed.2d 127 (1972).

The appellant argues that no objection was necessary in this case because the requirements of fundamental fairness far outweigh the state procedural requirements. The function and purpose of objection and exception are to challenge the correctness of the action of the trial court so that such action may be corrected by the court itself, if deemed erroneous. Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962). The state has a substantial interest in the enforcement of this rule. Yet,. even so, resort to this rule should not be required where to do so would merely be “an arid ritual of meaningless form”. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). In Henry, the United States Supreme Court held that the Mississippi rule requiring contemporaneous objection to the introduction of illegal evidence serves a legitimate state interest so that the failure to comply therewith will bar federal review of a federal claim with respect thereto, unless under the circumstances, enforcement of the rule would serve no substantial state purpose. The Supreme Court found that the purpose of the contemporaneous — objection rule had been substantially served by petitioner’s motion at the close of the state’s evidence asking for a directed verdict because of the erroneous admission of the illegal testimony.

“For at this stage the trial judge could have called for elaboration of the search and seizure argument and, if persuaded, could have stricken the tainted testimony or have taken other appropriate corrective action. ... In these circumstances, the delay until the close of the state’s case in presenting the objection cannot be said to have frustrated the state’s interest in avoiding delay and waste of time in the disposition of the case.” Henry, at 448, 85 S.Ct. at 568.

Thus we hold that there was no error in the trial court in allowing the state to cross examine the defendant with regard to prior convictions where no objection was made by defense counsel during the trial of the cause.

Additionally we note that the prior convictions were used to contradict the testimony of the appellant given on direct examination and elicited by his own attorney. Thus the appellant cannot be heard to complain that the state, on cross examination, extracted facts inconsistent with his testimony. Davis v. State, Ala.Cr.App., 331 So.2d 807 (1976); McClendon v. State, 54 Ala.App. 327, 307 So.2d 723 (1975); United States v. Jansen, 475 F.2d 312 (7 Cir. 1973).

Where the defendant has taken the stand and testified to the contrary, statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, have long been used for impeachment purposes. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). In similar situations, illegally seized evidence may also be used to impeach the contrary testimony of an accused. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed.2d 503 (1954).

The principle announced in Walder is applicable to the instant appeal.

“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.” Walder, at 65, 74 S.Ct. 356.

Here also the appellant should not be permitted to provide himself with a shield against contradiction of his stated or implied untruths.

II

Subsequent to the judgment in this case, it was discovered by the appellant that the foreman of the jury had been the victim of a crime of violence. Prior to trial, the trial judge specifically qualified the jury as to whether “any member of the jury or any member of the jury’s immediate family (had) been the victim of any crime”.

It was stipulated by the state and the appellant that the foreman was thirty-six years of age; that when he was sixteen, another person came in a restaurant, beat him with a stick, was prosecuted and was fined either $300.00 or $400.00 for either disorderly conduct or assault and battery. It was also stipulated that when the court qualified the jury, the foreman either did not think of this incident or it did not cross his mind.

At the outset we note that the fact that a juror has been a victim of a crime is not one of the enumerated grounds for challenge for cause pursuant to Title 30, § 55, Code of Alabama 1940. We have previously held that:

“A failure of a juror to make a proper response to questions regarding his qualifications to serve as a juror, regardless of the situations or circumstances, does not automatically entitle a party to a new trial. The proper inquiry in such cases is whether the defendant’s rights were prejudiced by such failure.” Sheperd v. State, 57 Ala.App. 35, 39-40, 325 So.2d 551, 555, cert. quashed, 295 Ala. 417, 325 So.2d 557 (1975).

This court will review the trial court’s ruling on motion for new trial predicated on a juror’s failure to answer questions propounded on voir dire examination only for abuse of discretion in its determination as to probable prejudice. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970); Smithson v. State, 50 Ala.App. 318, 278 So.2d 766 (1973).

In Freeman, 286 Ala. 167, 238 So.2d 336, the Alabama Supreme Court stated:

“Although the factors upon which the trial court’s determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.
“We are mindful of the heavy responsibility placed on the trial court to maintain the statutory right which parties have to a full and truthful disclosure by jurors on voir dire. However, we must also be aware of inadvertent concealment and failure to recollect on the part of prospective jurors.”

We are of the opinion that the trial court properly complied with the above principles. The evidence in this case amply supports the verdict. Worley v. State, 28 Ala.App. 486, 188 So. 75 (1939). There is no evidence to justify a finding of concealment on the juror’s behalf. Indeed, the stipulation shows that his failure to answer was unintentional and inadvertent. There is absolutely no evidence whatsoever that the jur- or was prejudiced or biased either for or against the appellant. In view of these considerations we hold that there was no abuse of discretion by the trial court in denying the appellant’s motion for a new trial on the basis of the juror’s failure to answer. Smithson, supra, at 50 Ala.App. 320, 278 So.2d 766 and cases cited.

We have carefully considered the entire record as required by Title 15, § 389, Code of Alabama 1940, and find no error therein. The judgment is therefore due to be and the same is hereby

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Danny Lee PUGH.
    SC 2626.
    Supreme Court of Alabama.
    July 29, 1977.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: TYSON, Presiding Judge. TYSON, Presiding Judge.

text:
    Donald THIGPEN v. STATE.
    3 Div. 656.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.

      John L. Jernigan, III, of Stokes & Jerni-gan, Brewton, for appellant.
    William J. Baxley, Atty. Gen., Larry R. Newman, Montgomery, and G. Guy Hayes, Asst. Attys. Gen., for the State.
   TYSON, Presiding Judge.

Donald Thigpen was charged by indictment with the first degree murder of one Henry Lambeth. Such indictment also included reference to a prior first degree murder conviction of the appellant. The jury found the appellant guilty of first degree murder, as charged, and fixed punishment at death by electrocution pursuant to the provisions of Title 14, Section 319, Code of Alabama 1940. The trial court entered judgment accordingly.

Birmingham City Police Officer O. C. El-lard identified the appellant, Donald Thig-pen, as being the same person who was previously convicted in the Circuit Court of Jefferson County, Alabama for first degree murder (Jefferson County Circuit Court No. 22727). See Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922. A certified copy of the prior judgment was then received in evidence.

Mr. Winston Grant, a dog trainer with the State Board of Corrections, testified that on the morning of April 17, 1975, he arrived at a deserted barn located on a field approximately one-half mile from the home of the deceased, Henry Lambeth. Grant was aware of an escape involving some eleven inmates of the Holman Prison the preceding day. He indicated that the body of an elderly white male was propped up in a window of the deserted barn. The body was later identified as Lambeth. Blood stains were observed just below the window on the ground and also just below a fence, approximately twenty feet from the barn. Grant observed some fence poles lying on the ground, and one of these had blood stains on it. Also found near the fence was an ax or hatchet, and on the fence was a patch of “Negroid hair.” Mr. Grant also backtracked footprints which led back into the woods in the direction of Holman Prison, a distance of three miles. Mr. Grant then notified other law enforcement officials who secured the area and delivered the items of physical evidence to the State Toxicology Office for examination.

Dr. James L. Small of the State Department of Toxicology testified that he performed an autopsy on the body of Henry Lambeth. An examination revealed the skull had been fractured, and Dr. Small stated that in his opinion death resulted from hemorrhage, bleeding, and trauma to the brain and skull associated with blows to the head. Dr. Small’s testimony indicated that a blunt instrument was used to inflict these blows and also a “V-shaped” laceration to the skull was consistent with a wound from the ax or hatchet.

Dr. Small also testified that he examined and tested clothing worn by the appellant, Donald Thigpen, during his escape from Holman Prison. He stated that he found human blood on appellant’s blue jeans, shirt, and undershirt. Tests revealed that this blood was “Group 0,” the same as the victim’s, Lambeth (Volume II, R. pp. 104-108).

Moreover, tests revealed that the hairs found on the barbwire fence near the barn, where the victim’s body was found, were “Negroid human hairs.” Subsequent tests run on the ax found near the murder scene revealed no fingerprints which were legible, nor any traces of blood.

Alabama State Trooper Frank Bracken testified that on April 17, 1975, he was driving on. Interstate Highway 65, North of Evergreen, Alabama, when he observed a pickup truck speeding. He and his companion, an auxiliary deputy, gave pursuit at speeds up to 80 and 90 miles per hour. Upon stopping the pickup truck, the appellant and his companion, Pedro Williams, were apprehended. Noticing that the two men were dressed in prison garb, Trooper Bracken asked them about the pickup truck in which they were riding, after first giving them a full Miranda warning. The appellant, Donald Thigpen, stated that they had stolen it from a man who was feeding cows in a pasture (Volume II, R. p. 59). Trooper Bracken then radioed for assistance, and State Trooper Lambert picked up Thigpen and his companion, Pedro Williams, and took them back to Holman Prison. The pickup truck was taken to the State Troopers’ Office in Evergreen where Mrs. Lam-beth, wife of the victim, and her son recovered same.

Mrs. Henry Lambeth, wife of the victim, testified that on the morning of April 17, 1975, her husband arose around 4:00 o’clock, dressed in overalls, and advised her that he was going to repair a fence in a pasture. She last saw him at 6:00 o’clock as he drove away in the pickup truck, which he owned, to the pasture. She stated that she was later notified that the pickup truck was at the State Trooper’s Office in Evergreen, and that her son took her there to get it.

Mr. Lambeth’s (the deceased’s) daughter-in-law, Melba Lambeth, gave the victim’s age as 68 (Volume II, R. p. 25).

The appellant’s motion to exclude the State’s evidence was overruled.

Appellant called Pedro Williams, his accomplice. Williams testified that he and the appellant were present on the morning of April 17, 1975, at the scene where Mr. Lambeth’s body was found (Volume II, R. p. 118). He testified that he and Thigpen had escaped from Holman Prison the preceding day, and had hidden in the woods during the night. Williams testified that he had plead guilty to a second degree murder charge arising from the death of Mr. Lambeth and received a 99 year sentence.

Williams then indicated that it was he who took the fence pole and struck Mr. Lambeth in the head, which caused his death. He stated that he and Thigpen then took the victim’s body and propped it up in the window of the barn and fled in Lam-beth’s pickup truck, then was subsequently arrested by State Troopers on Interstate 65 near Evergreen.

Donald Thigpen took the stand in his own behalf and testified as to his escape with Williams and nine other inmates from Holman Prison on April 16, 1975. He stated that he and Williams separated from the others and spent the night of April 16-17, 1975, wandering in the woods, a few miles from the prison. Early the following morning, Thigpen indicated that Williams saw an elderly white man working on a fence in a pasture, and they approached him. He stated they asked Mr. Lambeth if they could help him, and he told them he did not need any help. He stated that Williams then took a fence pole and struck Lambeth in the head, and that he helped Williams take the body to the barn and place it in a window. He denied striking Mr. Lambeth with either a pole or an ax, but stated that Williams had killed Lambeth. Thigpen stated that he and Williams drove off in Lambeth’s pickup truck and were subsequently arrested on the Interstate by State Troopers.

I

The attorneys for the appellant did not challenge the constitutionality of the death penalty here imposed pursuant to Title 14, Section 319, Code of Alabama 1940.

Nevertheless, this Court is compelled to address this issue since the appellant was convicted of first degree murder while serving a life sentence for first degree murder (See Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922), and a sentence of death by electrocution was imposed by the trial judge and jury.

In Roberts v. Louisiana, 428 U.S. 325, 334, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974, the Supreme Court of the United States stated:

“Only the third category of the Louisiana first-degree murder statute, covering intentional killing by a person serving a life sentence or by a person previously convicted of an unrelated murder, defines the capital crime at least in significant part in terms of the character or record of the individual offender. Although even this narrow category does not permit the jury to consider possible mitigating factors, a prisoner serving a life sentence presents a unique problem that may justify such a law. See Gregg v. Georgia, ante, 428 U.S. [153] at 186, 96 S.Ct. [2909] p. 2931 [49 L.Ed.2d 859]; Woodson v. North Carolina, ante, 428 U.S. [280] at 287 n. 7, 292-293 n. 25, 96 S.Ct. [2978] p. 2983 n. 7, 2985 n. 25 [49 L.Ed.2d 944].” 428 U.S., at 334, 96 S.Ct., at 3006 (emphasis added).

In Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977), the Supreme Court of the United States once again expressed the view that the constitutionality of a mandatory death sentence for a prisoner who commits first degree murder while serving a life sentence was an open question. This court, therefore, adheres to the views expressed by us in Harris v. State, Ala.Cr.App., 352 So.2d 460 (1 Div. 623), which upholds the constitutionality of Title 14, Section 319, supra.

II

Appellant contends that the trial court erred in denying, in part, his “motion for production and inspection” which consisted of the following items (Volume I, R. p. 41):

“1. Any statement, if written, or notations by investigative authorities of verbal recitations made by the defendant, if the same are to be used in the trial of the defendant.
“2. Any statement, if written, or notations by investigative authorities of verbal recitations and/or written recitations made by any person in connection with the investigation of the alleged crime of which the defendant has been accused.
“3. Any medical, scientific, chemical or toxicologist reports received by the investigative authorities in connection with the crime of which the defendant has been accused.
“4. Inspection of clothing, weapons, or any other real evidence becoming a part of the investigation of the crime of which the defendant is accused, including, but not limited to, photographs taken by the investigative authorities.
“5. Statements of any and all witnesses taken by the investigative authorities in connection with their investigation of the crime of which the defendant is accused.”

At the pretrial hearing on said motion, the State informed appellant’s counsel that there was no statement made by the defendant in the State’s possession [Item No. 1]. The trial court denied appellant’s motion for the production of items listed in paragraphs two and five as these requests asked for the State’s “work product.” The trial court did not err in denying appellant’s request for the items listed in paragraphs two and five as such items are the work product of the State and are privileged from discovery. Thigpen v. State, 49 Ala. App. 233, 270 So.2d 666; Maness v. State, 57 Ala.App. 431, 329 So.2d 120, cert. den., 295 Ala. 411, 329 So.2d 126; Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. den., 290 Ala. 363, 276 So.2d 640.

The State arranged for the appellant to inspect all of the items in the State’s possession listed in paragraph three, and all the items listed in paragraph four with the exception of photographs. The trial court did not err in denying appellant’s motion for the production of photographs taken by investigative authorities. Sanders v. State, 278 Ala. 453, 179 So.2d 35; McCants v. State, 282 Ala. 397, 211 So.2d 877.

The appellant requested that the State furnish a copy of the appellant’s prior criminal record. The State informed the court that they did not have a copy of such record in their possession. The trial court denied appellant’s request, but did order the State to furnish the appellant a copy of the judgment under which the appellant was serving a life sentence. The trial court’s action was proper. Strange v. State, 43 Ala.App. 599, 197 So.2d 437, cert. dismissed, 280 Ala. 718, 197 So.2d 447.

Ill

Appellant contends that the trial court erred by admitting into evidence a certified copy of appellant’s prior conviction under which appellant was serving a life sentence (See Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922).

The appellant was convicted of first degree murder and sentenced to death pursuant to Title 14, Section 319, Code of Alabama 1940, Recompiled 1958. It reads as follows:

“Punishment when committed by convict. —Any convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, shall, on conviction, suffer death.”

When there is an allegation as to a former conviction in an indictment, this former conviction becomes an issue, and evidence of it at trial is necessary for the indictment to have operation. Funches v. State, 56 Ala.App. 22, 318 So.2d 762, cert. den., 294 Ala. 757, 318 So.2d 768; Amerson v. State, 40 Ala.App. 540, 117 So.2d 406. Since such an allegation was in the indictment, a certified copy of the judgment is competent and admissible to prove this issue. Williams v. State, 130 Ala. 31, 30 So. 336; Yates v. State, 245 Ala. 490, 17 So.2d 777.

IY

During closing argument, the appellant contends that the trial court erred in allowing the prosecutor to read from a statement made by Pedro Williams, a co-escapee and original co-defendant (Volume II, p. 152). The record shows that this statement had been received into evidence (Volume II, pp. 138-139, State’s Exhibit 17) by stipulation of the parties. The trial court sustained appellant’s objection to reading portions of the statement and directed the parties to confine their arguments to matters received in evidence. Thus, no error is shown.

V

Appellant contends that error occurred during closing argument, as follows (Volume II, R. pp. 154-155):

“MR. STEPHENS: ‘. . . If you recall he testified from the stand he was accused of killing his wife from Jefferson County and that is what he was serving under. This is the second day of May, 1972. (At which time Mr. Stephens read STATE’S EXHIBIT 1, a judgment entry from Jefferson County.) [W]hich was later changed after the ruling of FURMAN against GEORGIA came in.’
“MR. LOVELACE: I object to that. Nothing is here that they changed it by the ruling except they changed it.
“MR. STEPHENS: ‘. . . I would address your attention to . . ..’
“THE COURT: The objection is sustained to the remark about FURMAN VERSUS GEORGIA.
“MR. STEPHENS: All right.”

A certified copy of appellant’s prior conviction under which he was serving a life sentence had been received in evidence and therefore was already before the jury. As to the prosecutor’s reference to “Furman against Georgia,” the appellant did nothing further than to object, and such objection was sustained. The appellant did not move to exclude such statement, or move for a mistrial, or invoke a further ruling by the trial court, therefore this question is not properly presented for review. Veith v. State, 48 Ala.App. 688, 267 So.2d 480; Lambert v. State, 208 Ala. 42, 93 So. 708; Elliot v. State, 19 Ala.App. 263, 97 So. 115; Boyett v. State, 18 Ala.App. 363, 92 So. 515. Moreover, the reference to such case citation (Furman v. Georgia) is not error.

VI

During the cross-examination of Pedro Williams concerning a prior statement which he had given to investigating officers on a specific date (Volume II, p. 130) and at a specific time and place, Williams replied that he did not remember making such statement. In this prior statement Williams had implicated the appellant as being the person who actually killed the deceased, Mr. Henry Lambeth.

During his direct examination, Williams stated that he, himself, was the person who had killed Mr. Lambeth.

During his redirect examination, Williams testified that his lawyer had told him to make the original statement and that he would only get a 99 year sentence instead of death or life imprisonment.

The matter now complained of is a purported side-bar remark by the prosecutor when he was interrogating Williams.

Under the circumstances outlined above, the prosecution, having laid a proper predicate as to the time, place, and circumstances, and persons involved, the witness was properly impeached as to his prior contradictory statement. Sparks v. State, 261 Ala. 2, 75 So.2d 103, and authorities cited therein; Edgeworth v. State, 54 Ala.App. 93, 304 So.2d 911.

Moreover, there was no further objection or motion on appellant’s part invoking a further ruling of the trial court on this matter. Thus, no error is shown.

VII

Appellant further asserts as error admission into evidence of certain photographs of the victim, contending that such are gruesome and showed blood, and that they were thus inadmissible.

We are of the opinion that such were properly admitted on the authority of Smarr v. State, 260 Ala. 30, 68 So.2d 6; Nichols v. State, 267 Ala. 217, 100 So.2d 750; Brodka v. State, 53 Ala.App. 125, 298 So.2d 55.

VIII

Appellant contends the trial court should have sustained his challenge for cause as to Mr. Grissett, who was a retired employee, who formerly worked at Holman Prison for some sixteen years. Mr. Grissett stated that he had been retired for more than a year at the time of trial.

We are of the opinion that the trial court properly disallowed this challenge for cause. Title 30, Sections 55 and 57, Code of Alabama 1940.

IX

The appellant contends that the trial court erred in refusing to give several written requested charges. The trial court gave fourteen of such requested charges and refused fifteen others. Such refused charges were either affirmative in nature, abstract, incorrect statements of the applicable law, or were fully and substantially covered by the trial court’s oral charge (to which no exception was taken), or covered by other charges given at the request of the appellant. Title 7, Section 273, Code of Alabama 1940.

Having carefully examined this record, we find no error therein. The judgment of conviction is therefore affirmed.

We will defer setting a date for the execution of this sentence until this case has been fully reviewed in the courts.

AFFIRMED.

DeCARLO and BOOKOUT, JJ., concur.

HARRIS and BOWEN, JJ., concur in result.

ON REHEARING

TYSON, Presiding Judge.

After the original briefs were filed in this Court by the attorneys representing both the appellant and the State of Alabama, this Court entered an order directing that additional briefs be filed, in light of the opinions of the Supreme Court of the United States in Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637. released June 6, 1977, and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 8001, 49 L.Ed.2d 974. Pursuant to this order, the attorneys for the appellant, as well as the State of Alabama, complied, and appellant’s attorneys did challenge the constitutionality of Title 14, Section 319, Code of Alabama 1940, under the aforesaid opinions.

This Court ex mero motu placed this cause on rehearing on August 30, 1977. The Supreme Court of Alabama, while this cause was pending on rehearing, has expressly upheld the constitutionality of Title 14, Section 319, Code of Alabama 1940, in Harris v. Alabama, Ala.Cr.App., 352 So.2d 460, released September 9, 1977.

Mr. Justice Embry, speaking for the majority, specifically noted:

“We do not deem it constitutionally required that the sentencing authority consider mitigating circumstances as a condition to imposing the death penalty under Section 319. However, in this case such factors were before the jury, the sentencing authority.”

As in Harris, supra, the trial judge charged the jury, not only on murder in the first degree and the requisite elements, but also charged the indictment included murder in the second degree, pointing out that such did not require premeditation or deliberation, and that the punishment therefor was for a period of from ten years to life (Vol. II, R. pp. 159, 163-164).

Likewise in its oral charge, the trial court charged on the distinction between principal and accessory, dealt with the definition of aiding and abetting, as well as conspiracy.

Additionally, the able trial judge gave fourteen of the written charges requested by the appellant’s attorneys, and among these were the following:

“I charge you that you are to judge the guilt or innocence of the Defendant on the basis of the evidence presented in this case, and that the prior convictions of the Defendant have no bearing on the Defendant’s guilt or innocence of the charge now against him.
“The Court charges the jury that the burden of proof is never on the Defendant to establish a crime of which he is charged. If, upon consideration of all the evidence in this case, the jury finds that there is a reasonable doubt as to the guilt of the Defendant, they should acquit him. “The Court charges the jury that each and every one of you is entitled to have his own conception of what constitutes a reasonable doubt of the guilt of the Defendant. Before you can convict this Defendant, the evidence must be so strong that it convinces each jury of Defendant’s guilt beyond a reasonable doubt. If, after a consideration of all the evidence, a single juror has a reasonable doubt of the Defendant’s guilt, then you cannot find the Defendant guilty.
“Murder in the Second Degree is the unlawful killing of another with malice aforethought, without the premeditation and deliberation of Murder in the First Degree.
“The law does not countenance the conviction of any person for an offense not contemplated, intended, or committed by him, and of which he had no knowledge that the offense was about to be committed.
“It is for you the jury to decide, however, from all of the evidence, first, whether Donald Thigpen participated in the alleged killing, and, if so, whether he did so knowingly and with knowledge of its purpose.
“You are charged that you should not give more credence to the testimony of a witness merely because of that witness’ position as a State’s witness.”

It is clear therefore that as in Harris, supra, the trial jury here considered the mitigating as well as the aggravating circumstances under the facts in this case, and had the benefit of the foregoing charges.

Mindful of our obligation to consider this record most carefully, we have again reviewed same and determined that it is free of error. The sua sponte application for rehearing is herewith overruled.

OPINION EXTENDED, APPLICATION OVERRULED.

All the Judges concur.

      . Tests reveal appellant’s blood type to be “A” positive (Vol. II, R. p. 100).


author: PER CURIAM.

text:
    In re Donald THIGPEN v. STATE of Alabama. Ex parte Donald Thigpen.
    Div. 77-42.
    Supreme Court of Alabama.
    77-42.
    Rehearing Denied March 10, 1978.
    John L. Jernigan, III, for Stokes & Jerni-gan, Brewton, for petitioner.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State, opposed.
   PER CURIAM.

Affirmed on the authority of Ex parte Harris, 11 ABR 2510 (Ala.1977).

AFFIRMED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.

MADDOX, J., concurs specially.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., dissent.

For the special concurrence and dissenting opinions of the respective Justices, see Harris, supra.


text:
    Macke CLARK v. STATE.
    4 Div. 559.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      Cada M. Carter, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was indicted February 11, 1977, by a grand jury of Houston County, Alabama, on a charge of robbery. He was arraigned February 22, 1977 in open court, and in the presence of his attorney, entered a plea of not guilty. His case was set for trial at the March 9, 1977, term. March 9, 1977, the case came on to be tried but was continued at the request of the defendant. April 14, 1977, the case came on for trial at which time the defendant appeared in open court with his attorney. The defendant through his attorney requested the court to allow him to withdraw his plea of not guilty and enter a plea of guilty. The court questioned the defendant concerning the changing of his plea to guilty and asked the defendant if he understood what he was doing. He answered he did. Before accepting the plea of guilty the court at length explained to the defendant his legal rights and the effect of his plea of guilty. The defendant acknowledged he understood his legal rights and the effect of the pleas of guilty and not guilty. The court then asked counsel for the defendant, in his presence, if in his opinion, the defendant pled guilty voluntarily, intelligently and knowing what he was doing, to which counsel responded, “yes sir.” The court then announced it would accept the plea of guilty. After the court explained the indictment, the charge and the punishment to the defendant, the defendant was asked, “are you guilty or not guilty of robbery, as charged in the indictment?” The defendant answered, “no sir.” A jury was then empaneled and a recess declared.

Before proceeding with the trial and out of the presence of the jury, counsel for the defendant moved for a continuance of the case on the ground that the defendant had tried to plead guilty in the hearing of the jury and that the jurors heard him try to plead guilty and it would be prejudicial to go to trial under the circumstances. This motion was overruled and the trial proceeded. The jury found the defendant guilty as charged and fixed his punishment at ten years in the penitentiary. Appeal was taken to this court.

Appellant assigns as error two grounds as a basis for reversal:

1. The trial court erred in refusing to grant appellant’s motion for continuance.

2. The trial court erred in making a statement concerning confessions, which took the credibility of the confession from the jury.

The first assignment of error is without merit. Granting or denying a continuance is within the sound discretion of the court. Sowells v. State, Ala.Cr.App., 339 So.2d 1090; Robinson v. State, Ala.Cr. App., 337 So.2d 1382. Except for abuse of discretion the trial courts have absolute control of continuances. What was said and done in open court which is now complained of was induced by the appellant with knowledge of the surrounding circumstances. He and his counsel knew of the presence of jurors in the courtroom. Appellant did not object to proceeding to strike the jury after the attempted change of his plea. Further, no prejudice is shown by the appellant. No evidence was submitted to show prejudice. There appears no abuse of discretion.

The second assignment of error is addressed to a statement made by the court during the State’s closing argument. The defendant objected to a statement made in final argument by the district attorney which statement is not shown in the record. The court made the statement, “Well, I think you know that is the law, that if a statement is harassed or brought about by harassment or threats or promises that it is not admissible. Go ahead.” To these remarks by the court no objection was made or exception taken.

We find no error in the record.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Ralph Eugene RHODES, alias v. STATE.
    4 Div. 588.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
    Myron H. Thompson, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Ralph Eugene Rhodes, alias, and Daniel Jeffrey Fabris, alias, were indicted for the second degree burglary of a building known as Katz Auto Parts and Service, the property of Sidney B. Katz. The jury found the appellant guilty as charged, and the trial court set sentence at six years imprisonment.

Ronald H. Keisland testified he was manager of Katz Auto Parts and Service Company, located at 1801 Montgomery Highway, being the corner of Montezuma Avenue and the Montgomery Highway in the City of Dothan, Alabama, on March 7-8, 1977. The business was the property of Sidney B. Katz. Keisland indicated that on the evening of March 7, 1977, just before leaving, he checked the windows and doors to be sure they were secured. He testified that he was called by Dothan police at 3:00 the following morning to come to the building. Upon arrival he saw Ralph Eugene Rhodes and Daniel Jeffrey Fabris seated in a police vehicle with two Dothan officers. Officer Nathan Stanton then asked Keis-land to go into the building with him. They immediately noticed the cash register was open and all the loose change had been removed. Keisland indicated that the usual procedure was to remove the cash folding money and leave the day’s change in the register when they closed at night. He testified that between $5.00 and $6.00 had been left in the register the evening before. They also noticed a three foot long concrete reinforcement bar lying on top of Mrs. Katz’ desk. In examining a window in the mechanical section of the repair shop, they noticed it was broken and the top section was swung open. He further testified that a powdery substance, clay-like, had been placed upon the floor to soak up oil, and there were footprints in this substance. Keisland also testified that a man by the name of James Gwaltney lived a short distance from the shop on Montezuma Avenue.

James Gwaltney testified that he lived at 1001 Montezuma Avenue in the City of Dothan, Alabama, on the night of March 7-8, 1977. He was awakened by barking dogs between 2:00 and 3:00 in the morning. He looked out his bedroom window from which he could see the back of Katz Muffler Shop. He observed the figures of two persons, but was unable to identify them as male or female, white or black, but said they did have long hair. Gwaltney related that the two figures went across Montezuma Avenue and stood beside a building now occupied by Datsun Motor Company. He watched the figures and saw them go back behind the Katz building. He then heard breaking glass and ' notified the police. Gwaltney saw the police drive up and he walked out and notified one officer, who was seated in the police car, that two people had gone behind the Katz building.

Dothan Police Officer Nathan Stanton testified that he was on duty the night of March 7-8, 1977, and received a dispatch to investigate Katz Auto Parts at 2:48 a. m. Accompanied by Lt. Art Havard, he went to the vicinity of this business. Upon their arrival Lt. Havard went to the south side of the building and he remained seated in the car. He stated that Mr. Gwaltney came out to the car and told him about seeing two people going to the rear of the building. Stanton then got out of the car, walked in that direction, and observed two white males, Ralph Eugene Rhodes and Daniel Jeffrey Fabris, whom he directed to stop and approach the patrol car. Stanton then called for a backup unit which arrived in a few moments.

Sergeant Robinson arrived. He and Lt. Havard came to his patrol car. At this time Stanton advised each suspect of his “Miranda rights,” and without any threats, intimidation, or coercion, the two men were asked by Robinson as to why they were in the area. Each man was then patted down and his pockets searched. Stanton testified that from the pockets of the appellant, Rhodes, he removed a pair of pliers, an ice pick, a pair of nail clippers, an assortment of keys, a motorcycle key for a Yamaha, and $3.42 in change (R. p. 25).

At trial, Stanton then identified an envelope which had been sealed and in his possession since the arrest and from which he identified the above items.

After the two men were placed in the “paddy wagon,” Stanton then accompanied the manager, Mr. Ron Keisland, into the main building. In going into the office he noticed the cash register had been cleaned out and the drawer was standing wide open. Because of some heavy dust on the floor he noticed some footprints. A comparison was made of the shoes of both Rhodes and Fabris with the tracks left on the floor of the building. Fabris was wearing tennis shoes, and the cross section of the soles matched the tracks on the floor of the building.

Additionally, a window on the south end of the building was broken open.

Dothan Police Officer Gary Lee Robinson testified that he received a dispatch to come to Katz Auto Parts on the corner of the Montgomery Highway and Montezuma Avenue, Dothan, Alabama, in the early hours of March 8, 1977. After he arrived he was told that Ralph Eugene Rhodes and Daniel Jeffrey Fabris had been stopped by Dothan Police Officer Stanton. Sergeant Robinson related that he was present when Officer Stanton read each man his “Miranda rights” from a card, and without any threat, coercion, or inducement, or other intimidation, Officer Stanton searched each man in his presence. Robinson stated that he asked the two men in effect if they were the type men who would go inside a building, and each man shook his head “in a negative response” to the question.

Robinson indicated he went inside the building and noticed the material which had been placed on the floor where oil had been spilled. He observed several sets of tracks and stated the tracks clearly matched those on the tennis shoes worn by Fabris. He was unable to compare the tracks with the soles on the shoes worn by Rhodes.

The appellant moved to exclude the evidence, which was overruled.

Daniel Jeffrey Fabris testified that on the night of March 7-8, 1977, between 1:00 and 2:00 a. m., he entered the Katz Auto Parts store, could not find anything, and had come outside the building when he remembered he had left something inside. Fabris indicated he went back inside the building to get a crowbar and heard the police coming. He then saw “Shorty Rhodes” walking up the road, and as the two of them walked around the corner they encountered the Dothan police. Fabris admitted pleading guilty and receiving a three year sentence for his part in this matter.

Ralph Eugene Rhodes testified that on the night of March 7-8, 1977, his automobile had broken down and he was walking down Montezuma Avenue toward the Hobby Center when he encountered Danny Fa-bris. He stated they were walking down the street together when the Dothan police stopped them.

On cross-examination, Rhodes denied that an ice pick had been taken from his pocket, but admitted ownership of a pair of pliers (State’s Exhibit 2) and a pair of nail clippers. He also stated that he had some change in his pockets which his parents had given him earlier that evening. Rhodes related that his car had broken down near Napier Field and he was walking toward the Hobby Shop when he ran into Fabris just before being stopped by the Dothan police. Rhodes denied ownership of an ice pick, or going into the Katz Auto Parts and taking money from the cash register.

At the close of the evidence, the appellant requested the affirmative charge and the affirmative charge with hypothesis, both of which were refused by the trial judge.

I

The appellant contends the State failed to prove a prima facie case of burglary-

In Eason v. State, 48 Ala.App. 471, 265 So.2d 913, we find:

“The applicable elements of second degree burglary are: (1) breaking, (2) entering, (3) with intent to steal or to commit a felony. The evidence, without contradiction, shows the first two ingredients. Behel v. State, 40 Ala.App. 689, 122 So.2d 537. From Behel, this Court per Cates, J., stated: ‘The jury may reasonably infer intent to steal from the mere presence of the accused in the shop in circumstances showing a breaking and entering in the night. . . .[Cases cited]

It is clear under the evidence presented that the trial court properly denied appellant’s motion to exclude and refused his two written requested charges. Hare v. State, 52 Ala.App. 279, 291 So.2d 371; Eason, supra.

II

The appellant contends that Officer Stanton lacked probable cause; hence, the search of the person of Rhodes was improper, and the evidence seized was an illegal search and seizure.

Judge DeCarlo has very recently thoroughly reviewed this in an opinion known as Herrin v. State, Ala.Cr.App., 349 So.2d 103, cert. denied, Ala., 349 So.2d 110.

Under the evidence presented, Officer Stanton had probable cause to stop the appellant and his companion and to pat them down and search their person. This was proper police procedure. Herrin, supra; and Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200, cert. denied 291 Ala. 93, 278 So.2d 205.

The appellant’s contention in this respect is without merit.

We have carefully examined this record and find same to be free from error. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Jerry Allen CROSS v. CITY OF DECATUR.
    8 Div. 954.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
    Wesley M. Lavender, Decatur, for appellant.
    David H. Bibb of Coleman & Bibb, Decatur, for the City of Decatur.
   HARRIS, Presiding Judge.

Appellant was convicted in the Recorder’s Court of the City of Decatur on October 18, 1976, of the crime of assaulting a police officer while he was engaged in the active discharge of his lawful duties. He was fined one hundred dollars and costs.

He appealed this conviction and demanded a jury trial.

Omitting the formal parts the complaint upon which appellant was put to trial, reads:

“Comes now the City of Decatur, a Municipal Corporation, in Morgan County, Alabama, and complains that Jerry Allen Cross within twelve months before the beginning of this prosecution and within the corporate limits of the City of Decatur, Alabama, did commit an assault upon a peace officer or law enforcement officer of this state or a political subdivision thereof while said officer was engaged in the active discharge of his lawful duties contrary to and in violation of Section 19-68, Code of Decatur, Alabama, 1956, duly adopted and ordained by the governing body of the City of Decatur prior to the commission of said offense, a copy of which is hereto attached, marked ‘Exhibit A’, and made a part hereof as if fully and completely set out herein, and Title 14, Section 374(19) of the Code of Alabama, 1940 (Recomp.1958), as last amended, as adopted by the said Section 19-68.”

Section 19-68 reads: “State Misdemeanor adopted,” and provides:

“Any person committing an offense within the corporate limits of the City or its police jurisdiction which is declared by any laws of the State of Alabama, heretofore or hereafter enacted to be a misdemeanor shall, upon conviction, be punished as provided in Section 1-8 of this Code. (Code 1942, Ch. 14, Sec. 1).”

The City ordinance of the City of Decatur was duly proved and admitted into evidence without objection. Appellant was arraigned upon the complaint in the presence of retained counsel and pleaded not guilty.

The evidence presented at trial tended to show that Police, Officers Edward Taylor and Ronald Livingston of the Decatur Police Department, while performing their duties as such officers, received a radio call that a fight was in progress on Vine Street in the City of Decatur. They proceeded to this location and saw two black men fighting and scuffling. They arrested both men. A crowd of seventy to ninety persons gathered and began pushing and shoving the police officers in trying to prevent the officers from putting the arrested men in the patrol car. The officers finally handcuffed the arrestees and put them in the back seat of the patrol car and attempted to leave the vicinity. The crowd surrounded the patrol car to thwart the officers in carrying the arrested men to the jail. Officer Taylor was driving and he was trying to drive from the scene without striking the men who were in the street and blocking the patrol car. Taylor was driving about one mile an hour and his window was down. As he was slowly leaving appellant came to the driver’s side of the patrol car and swung at Officer Taylor through the open window striking the officer on the shoulder. Appellant then grabbed the officer’s arm and pulled it outside the car window. The crowd was shouting at and cursing the officers.

Officer Taylor stopped the patrol car and got out and pursued appellant. The other officer got out to assist Officer Taylor. Appellant resisted and with the help of the crowd appellant escaped from Taylor’s custody, but Taylor finally subdued appellant and he was put in the patrol car of a back-up unit and carried to jail.

When officers Taylor and Livingston returned to their car they found that the crowd had opened the doors and aided the two arrestees to escape and they were never seen again.

Appellant denied that he struck Officer Taylor though he admitted he was present in the milling crowd. He said he saw someone strike the officer but he didn’t know his name. Several other defense witnesses testified they were within a few feet of appellant but did not see him strike the officer.

The sufficiency of the evidence is not presented for review. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; there was no motion for a new trial, and no exceptions were reserved to the Court’s oral charge. Ala.Dig.Crim.Law «=> 1044.1(1).

The jury had some difficulty in reaching a verdict and returned to the courtroom for further instructions on the law two or three times. On one of these occasions the Foreman of the jury told the Court, “We haven’t settled anything in it, and it seems like we’re not getting anywhere.” The Court gave supplemental charges to the jury on several occasions and appellant made a motion for a mistrial. This motion was overruled.

Appellant contends the trial court charged the jury in a strong and coercive manner during the supplemental instructions and thus forced a verdict in violation of his constitutional rights.

This Court and the Supreme Court of Alabama have approved supplemental instructions on numerous occasions. The last pronouncement of this Court on this issue is Strickland v. State, Ala.Crim.App., 348 So.2d 1105, wherein many cases were reviewed.

In Strickland we held that the trial court did not err in giving the “Allen” charge which encouraged the jury to reach a verdict and which urged the jury to consider time and expense involved in the trial and the taxpayers’ interest in the jury reaching a verdict.

We have carefully reviewed the supplemental instructions and in no wise can it be validly claimed that these instructions were coercive or threatening.

A representative passage from the supplemental charge of the trial court is as follows:

“THE COURT: You ladies and gentlemen have been deliberating this case now for not an interminable time, but for more than is normal, and for this reason I felt that it was necessary to bring you back and call to your attention certain aspects of your responsibilities in this case as in any case.
“No other Jury will have a better opportunity to view this evidence and this testimony than you twelve have. Should you fail to reach a verdict, this matter will have to be reinstated on the docket. Everything you have seen done here in the course of the trial will have to be gone through and done again with twelve more people who I cannot see would be superior to you twelve or in any better position to resolve the issue.
“This defendant is entitled to have the issue of the charge against him resolved one way or the other. This prosecuting authority is entitled to have resolved the issue of whether or not the sanctity of its ordinances have been breached one way or the other. The poorest result that can ever come out of a trial is no result at all. There is considerable expense involved to everybody concerned, so I am going to ask you — I don’t know how you stand. I don’t want to know how you stand. But I want each of you individually to reevaluate the position that you have taken in deliberations, and I want you to recall— and I want to reiterate the oath that you took at the outset, which was to well and truly try this case on the law and the evidence and a true verdict render, and you asked the blessings of God Almighty to help you do that. I want you to be sure in your mind and heart that you are not in disagreement with your fellow jurors for any other purpose than a proper and lawful one under that oath. With that I am going to let you return to your deliberation room with your bailiff.”

Finally, appellant claims that the trial court was without authority to impose a six month sentence on appellant in view of the fine he received in the Recorder’s Court. We do not agree.

In Guin v. City of Tuscaloosa, 21 Ala.App. 61, 106 So. 64, certiorari denied, 213 Ala. 686, 106 So. 67, the Court held that a “trial de novo” means that the Circuit Court “assumes control of the case afresh or anew with all the powers, privileges, duties, responsibilities, and authority that was vested' by law in the recorder while the case was pending in said Recorder’s Court.” A trial de novo means that the slate is wiped clean and a trial in the Circuit Court is had without any consideration being given to prior proceedings in another Court.

When a case is appealed to the Circuit Court for trial de novo the judgment in the Recorder’s Court is only a step toward the jurisdiction of the Circuit Court and such judgment is of no effect if the Circuit Court makes final disposition of the case. Anthony v. City of Birmingham, 240 Ala. 167, 198 So. 449.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    John Henry McQUEEN v. STATE.
    3 Div. 792.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.

      Bob E. Allen, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted for the first degree murder of his mother. In response to the indictment he entered pleas of not guilty and not guilty by reason of insanity. Defense counsel’s pretrial motion for a psychiatric evaluation was granted and the appellant was ordered to a state mental hospital for observation and evaluation. The record is silent as to the recommendations and findings of that hospital, however no contention has been advanced that the appellant was not competent to stand trial. At trial the appellant was found guilty as charged and sentenced to life imprisonment. He is represented by court appointed counsel both at trial and on appeal.

The evidence presented by the state leaves no doubt of the appellant’s commission of the murder. Ms. Iola McQueen is a sister of the appellant. The deceased, Rosa Washington, was the mother of Ms. McQueen and the appellant. She testified that on May 11, 1976, the appellant was living with his mother. About one year before the murder the appellant had suffered a stroke and was not able to work. Ms. McQueen stated that the appellant talked to her over the telephone about “voodoo” and that he refused to eat his mother’s food because she put “voodoo” in it. She further testified that the appellant only acted “strange” after he had been drinking and that he did drink “a lot”.

Joann Berry lived next door to the appellant and the deceased in the same apartment house. On the morning of the crime she heard several shots coming from the apartment of the deceased. Ms. Berry testified that after she heard these shots, the deceased “came in my door kind of half staggering, and said, he done shot me”. She said that “Sam (the appellant) done shot me”. Ms. Berry left for a brief period to obtain help and when she returned found the deceased in her bathroom with blood running down her side. The appellant was sitting on the porch with a .22 caliber pistol in his hand and asked if “she” was in Ms. Berry’s apartment. Ms. Berry further stated that the appellant had talked to her about voodoo and said that “mama had done fixed him in his throat * * * through cooking”. The appellant stopped eating his mother’s cooking and would buy “greens and different things” for Ms. Berry to cook for him. According to Ms. Berry, the appellant drank “real heavy” and acted “as normal as she was” when he was not drinking. Although the appellant “didn’t act crazy all the time”, Ms. Berry “could tell he wasn’t just normal”.

Officer Robert L. Ingram of the Montgomery Police Department investigated the shooting and found the appellant sitting on the porch to his apartment. When Officer Ingram approached the appellant, he told him that he “shot her and here is the gun”. The appellant was given his Miranda rights and again told Officer Ingram that he had shot his mother and intended to shoot another subject if he could find him. An examination of the weapon revealed that although it had been fired a number of times it was fully loaded.

Expert testimony by Dr. Philip Lightfoot, a practicing physician in the city of Montgomery, revealed that the deceased sustained a bullet wound in the abdomen and suffered a great deal of internal bleeding. Dr. Lightfoot testified that the cause of death was complication resulting from surgery necessitated by the bullet wound.

Officer Ingram was recalled and stated that, in talking with the appellant, the appellant did appear confused in some ways but “knew what he was doing and what he had done . . . . He knew what he had done and he said he intended to shoot someone else. And then his reason for it, she was putting things in his food (to try to kill him) and another man had been picking on him.”

Detective Kenneth Hitson of the Montgomery Police Department testified that he received a .22 caliber pistol from Officer Ingram and recovered several spent projectiles from the scene of the shooting. Detective Hitson recovered four spent rounds in front of the bushes in front of the house where the appellant was sitting. The appellant also told Detective Hitson that he had shot his mother and that he was looking for another man. The appellant showed him the approximate place he was standing in the house when the shots were fired. Hitson testified that in his opinion the appellant did not know what he was talking about and did not appear to know what was going on at police headquarters.

Following this testimony the state rested. The appellant’s motion to exclude was denied. By agreement the appellant’s records from Bryce Hospital were submitted as an exhibit.

I

Initially the appellant argues that it was error for the trial court to allow a state’s witness to give hearsay testimony over defense counsel’s objection. From the record:

“Q. After hearing those shots, Mrs. Berry, did you have occasion then to see Mrs. Washington?
“A. She came in my door kind of half staggering, and said, he done shot me. “Q. He done shot her?
“A. That is right.
“Q. Did you see who the he was?
“MR. ALLEN: Your Honor, we object to hearsay.
“MR. PRICE: It is part of the res gestae, Your Honor.
“THE COURT: Overrule the objection.
“Q. (Mr. Price continuing) Did she tell you who the he was?
“A. We called him Sam. She said, Sam done shot me.”

The question objected to did not seek hearsay testimony as any witness may testify to his personal observation. No further objection was made. There being no motion to exclude or strike, no request for a mistrial and no motion for a new trial, no preserved error appears in the record and we have nothing to review. Harris v. State, Ala. App., 347 So.2d 1363, cert. denied, Ala., 347 So.2d 1368 (1977), is controlling on this issue.

II

The appellant asserts that his motion to exclude the state’s evidence was due to be granted because the state presented no evidence to prove or imply that the killing was deliberately or wilfully done.

From the testimony it is reasonable to conclude that the appellant actually intended to shoot the deceased. Intent may be inferred by the jury from the character of the assault, the use of a deadly weapon and other attendant circumstances. Gilmore v. State, Ala.Cr.App., 339 So.2d 116, cert. denied, Ala., 339 So.2d 121 (1976); Brown v. State, 142 Ala. 287, 38 So. 268 (1904).

III

In view of the fact that the appellant told Officer Ingram that he shot his mother and “here is the gun", it was not error for the trial court to admit that weapon, the spent projectiles, and the spent rounds into evidence without objection. Objections to the admission of evidence cannot be made for the first time on appeal. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Daly v. State, 47 Ala.App. 681, 260 So.2d 412 (1972). A motion to exclude will not preserve error in the admission of evidence where no timely objection has been made at the time of its admission. Body v. State, Ala.Cr.App., 341 So.2d 744, cert. denied, Ala., 341 So.2d 748 (1976).

IV

Finally the appellant contends that it was error for the trial court to overrule defense counsel’s objection to the argument of the Deputy District Attorney that there was no evidence to support the defense of insanity. The appellant points out that “it is inconceivable that the Prosecutor would make such a comment when only moments prior, he joined in the introduction of . . ., records subpoenaed from Bryce Hospital”.

In closing argument the prosecutor stated:

“MR. PRICE: Now, as I said to you in my opening statement, the Court will charge you as to what the law is of insanity, or what the law is governing this case. Can we allow John Henry McQueen to just raise that plea, that defense. He has every right to raise it. But to raise it, ladies and gentlemen, without any evidence to support it. There is absolutely no evidence to support John Henry McQueen’s defense of not guilty by reason of insanity.
“MR. ALLEN: Your Honor, I hesitate to object, but there has been evidence presented. And I object to him arguing that no evidence has been presented. “THE COURT: Overrule the objection.”

The record does not reveal whether these comments were made during the state’s opening remarks in closing argument or in the state’s rebuttal. We note that, if made in the state’s initial comments, defense counsel would have had ample opportunity to refute the comments and dispel any alleged prejudicial effect of the argument.

However, regardless when the comments were made we do not consider them to constitute reversible error. The jury heard the evidence and had the Bryce Hospital records with them during the deliberation. Statements of counsel in argument to the jury must be viewed as in the heat of debate, and such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Arant v. State, 232 Ala. 275, 167 So. 540 (1936); Beckley v. State, Ala.Cr.App., 335 So.2d 244 (1976).

The prosecutor, as does defense counsel, has a right to present his impressions from the evidence. Carroll v. State, 36 Ala.App. 59, 52 So.2d 171 (1951). He may argue every matter of legitimate inference and may examine, collate, shift, and treat the evidence in his own way. White v. State, 41 Ala.App. 54, 123 So.2d 179, cert. denied, 271 Ala. 702, 123 So.2d 186 (1960).

We have carefully considered the argument in question. We do not believe that it was so prejudicial to the appellant as to require a reversal. From that portion of the argument in the record we cannot determine if the state was arguing that there was no evidence of insanity or that the evidence presented on the insanity issue was simply insufficient to support the defense. The court in its oral charge to the jury instructed on the issue of insanity. Under the circumstances of this case this was sufficient to cure any harmful effect of the argument.

Having searched the record for error, we are of the opinion that the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Wilburn Lawrence HENRY v. STATE.
    6 Div. 359.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.

      Thomas P. Anderson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for robbery and sentenced to ten years’ imprisonment. Appellant’s court appointed trial counsel was also appointed to represent him on appeal.

The evidence presented by the state reveals that around 7:30 on the evening of September 29, 1975, the appellant robbed a Jitney Jr. convenience store in Leeds, Alabama. The defense was alibi. The ex-wife of the appellant testified that she had car-dio-vascular surgery at the University Hospital in Birmingham on the day of the robbery and that the appellant was at her bedside. The sister of this patient testified that she saw the appellant in the hospital room around 5:30 P.M. on the day of the robbery.

I

The appellant alleges that he was denied a reasonable time to obtain counsel of his own choosing. On the morning his cause was scheduled for trial the appellant fired his court appointed attorney in order to obtain the services of an attorney of his own selection. Upon the appellant’s assurance that he could and would retain new counsel, the trial judge continued the proceedings until the following morning. At that time however, new counsel was not present nor committed to the appellant’s defense and the trial judge refused to grant another continuance. From the record it affirmatively appears that the appellant had ample time between arrest and trial to obtain counsel of his own choosing. It is also clear that the counsel the appellant sought was not familiar with the case and had not discussed the particulars of the case with the appellant. Under these circumstances the trial judge did not abuse his discretion and we find no error in his refusal to grant a second continuance. Fisher v. State, Ala.Cr.App., 346 So.2d 4, cert. denied, Ala., 346 So.2d 8 (1977).

II

It is also alleged that the in-court identification of the appellant was inadmissible because the appellant was without counsel at a pretrial line-up and because the appellant had been identified from a picture pri- or to the line-up procedure.

Linda Gail Tucker, an employee of Jitney Jr., positively identified the appellant as the man who robbed her. She testified that he entered the store two separate times that afternoon before the crime was actually committed. Immediately after the robbery she gave the police a description. About three days after the robbery Ms. Tucker was shown a photographic display by a detective of the Leeds Police Department. Without any assistance or suggestion Ms. Tucker identified the appellant’s photograph which had his name on the back. It affirmatively appears that Ms. Tucker did not know the appellant’s name before viewing the photographs. Two days later Ms. Tucker was notified by the Leeds Police Department that they had a man in Florence that they wanted her to view in a line-up. Sometime before this Ms. Tucker was again shown the photographic display which consisted of six photographs. Ms. Tucker was then taken to Florence to view a line-up. After she identified the appellant, the police told Ms. Tucker his name.

After carefully reviewing all the testimony, we are of the opinion that there was no taint of suggestiveness in any pretrial identification which would vitiate the eye witness’s in-court identification of the appellant. The facts simply do not lend themselves to such an interpretation. Schillaci v. State, Ala.Cr.App., 347 So.2d 552, cert. denied, Ala., 347 So.2d 556 (1977); Fletcher v. State, Ala.Cr.App., 337 So.2d 58 (1976); Impson v. State, Ala.Cr.App., 331 So.2d 837 (1976); Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976); Jackson v. State, 56 Ala. App. 276, 321 So.2d 243 (1975); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). As the corporeal identification of the appellant was conducted before the initiation of any adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment or arraignment, the right to counsel at the line-up had not attached. Moore v. Illinois, - U.S. -, 98 S.Ct. 458, 54 L.Ed.2d 424, decided December 12, 1977.

Ill

In closing argument the Deputy District Attorney argued that the appellant could have called some independent and impartial witnesses (hospital personnel) to support his alibi, the clear inference being that no such witnesses would have been able to validate his alibi.

Counsel for the party to whom a particular person is not available as a witness may comment upon the failure of the other party to whom that person is available to call him as a witness. Jarrell v. State, 251 Ala. 50, 36 So.2d 336 (1948). The availability of a witness to one or the other of the parties is determined first, by the party’s superior means of knowing of the existence and identity of the witness. Brown v. State, 50 Ala.App. 471, 475, 280 So.2d 177 (1973).

In Alabama a defendant is not required to notify the state of an alibi defense. Therefore, in most cases, the state has no way of knowing which witnesses would or could testify as to the whereabouts of the accused at the time of the offense in establishing an alibi defense. Indeed, generally the state would not even know of the existence of the alibi defense until such testimony came from the witness stand. Therefore since the appellant was in a superior position to know of the existence and identity of his alibi witnesses it was not error for the state to comment upon his failure to produce other witnesses whose testimony would presumably aid the appellant or substantiate his story if the story were true. The prosecutor’s comments were only a reasonable inference and deduction from the evidence, especially in view of the fact that on cross examination of a defense witness the Deputy District Attorney elicited testimony that the appellant was present in the hospital room when medical personnel came in.

IV

Finally, the appellant contends that error resulted in the District Attorney’s closing argument when reference was made to Sergeant Boggs’ control over the appellant. From the record:

“You heard the testimony of both Mrs. Ward and I think Sergeant Boggs, who testified that he was on leave. He was on leave from, that he was in Florence, Alabama. Sergeant Boggs, obviously, from his testimony had some control over this man.
“MR. ANDERSON: Objection, repetitious and irrelevant.
“THE COURT: Overruled to that part that Sergeant Boggs said that he had some type of contact with him where he knew of his coming and going.
I’ll overrule.
“MR. DUNN: (Continuing) And then that he reported back in to Sergeant Boggs.
“Now, I will leave to your imagination whatever inference you want to draw from that fact. You can infer anything you want to from that testimony. I think if you use your common sense though, you can draw a conclusion from that testimony.”

Ms. Ward, a defense witness, testified that the appellant was present at her bedside when she awoke after surgery because she had asked his supervisor in Florence if he could be there; that the appellant was living in the county jail in Florence; that he had had one “leave” before he came to visit her in the hospital; and that she had contacted the troopers' office in Florence on the morning of her surgery to see if the appellant had been granted leave.

Following Ms. Ward’s testimony and out of the presence of the jury the court stated that it was not going to permit the defense to prove the appellant’s general reputation in the community by showing that he was a good prisoner and a trusty. The judge then stated that he did not want the next witness

“blurting out anything about how they sent this man (appellant) up here (Florence) from the penitentiary or he was up there on a robbery rap and had seventy years or anything like that, and I don’t want him getting into the man’s reputation unless the questions are specifically asked. . . . ”

Comments by the trial judge reveal that the appellant was a state prisoner serving as a trusty at the State Trooper Office in Florence; that he was serving a total sentence of seventy years for two robbery convictions; and that he was on leave when the robbery under review was committed.

The next witness, James Boggs, testified that he was employed by the State of Alabama Department of Public Safety in Florence, Alabama; that he knew the appellant; and that the appellant was given emergency leave beginning at 8:00 A.M. on September 29th and returned to Florence three days later. All of this evidence was either elicited by defense counsel or without objection of any type and was therefore properly before the jury.

In view of the testimony before and after the admonition of the trial court, it is our opinion that the argument of the Deputy District Attorney was a proper and legitimate inference from the facts and did not constitute a violation or infringement of the ruling of the trial court. The prosecutor has a right to argue any and every reasonable inference from the evidence or from the lack of evidence. Davis v. State, 49 Ala.App. 587, 274 So.2d 360, cert. denied, 290 Ala. 364, 274 So.2d 363 (1972); May v. State, 42 Ala.App. 401, 166 So.2d 860, cert. denied, 277 Ala. 700, 166 So.2d 865 (1963); White v. State, 41 Ala.App. 54, 123 So.2d 179, cert. denied, 271 Ala. 702, 123 So.2d 186 (1960). See also cases collected at 6A Alabama Digest, Criminal Law, 720(6), (7).

Also the objection to the prosecutor’s argument on the grounds of it being “repetitious and irrelevant” is not well taken. A party cannot justly complain of the action of the trial court in overruling an objection to argument based solely on an invalid ground. Harris v. State, Ala.Cr.App., 333 So.2d 894 (1976); Jordan v. State, 32 Ala.App. 172, 24 So.2d 138, cert. denied, 247 Ala. 304, 24 So.2d 140 (1946).

We have carefully reviewed the record and finding no error are of the opinion that the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jonathan Leroy VanPELT v. STATE.
    8 Div. 29.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    James D. Walker, Albertville, for appellant.
    William J. Baxley, Atty. Gen. and Susan Beth Farmer, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of burglary in the second degree. The court fixed his punishment at four years imprisonment and sentenced him accordingly.

The only question raised by appellant is as to the admissibility of his written confession of the crime.

Prior to the admission of the confession in evidence, a lengthy hearing was conducted out of the presence and hearing of the jury, in which Investigator Roger Dale Beam, of the Blount County Sheriff’s Department, and Investigator James Maze, of the Marshall County Sheriff’s Department, testified for the State and defendant testified in his own behalf. If the testimony of defendant is to be believed, his confession was unquestionably involuntary and should not have been admitted in evidence. In all material parts, however, his testimony was disputed by strong, positive testimony by Investigator Beam, which was corroborated substantially by testimony of Investigator Maze.

Defendant testified that his confession was induced by the use of force and threats and by the promise of probation. He said he was arrested about 11:00 o’clock on the morning of January 28, 1977, and escorted to the Blount County Jail, where he arrived about 11:30; he was clothed with a shirt, a pair of pants, and a pair of shoes at the time; the weather was about 6 degrees above zero; he was locked up in a cell by himself; he estimated the temperature of the cell at about 45-50 degrees. He testified he was interrogated by the officers three times that day before supper and twice after supper, the last interrogation that night being about 9:00 or 10:00. According to defendant, he was interviewed the next day about 7:00 A.M. and again about 11:00 A.M., after he had said he would confess. A tape recording was made, in question and answer form, of his confession, which was promptly typed and given to him for him to sign, which he did. The typed document consisted of twenty-four pages, but as it contained references to a burglary not involved in instant case, much of the content was excluded as evidence, and a truncated document was substituted without objection. The twenty-four page statement was signed by defendant, and each page thereof was initialed by him. Defendant testified that he was beaten by two of the officers at the time of the first interview and almost everytime thereafter until he “agreed to make a statement.” He said that he was also “threatened to be shot” and that they threatened “to pour acid on me several times before the statement was made.” He said that they “threatened me with ten years for each case” unless he made a statement but that if he made a statement, “I wouldn’t have but one charge. I would have out-of-State probation.”

Appellant relies heavily, if not entirely, upon O’Tinger v. State, Ala.Cr.App., 342 So.2d 1343 (1977), in support of his contention that his confession was involuntary and should not have been admitted in evidence. A crucial and distinguishing feature of O’Tinger is to be found in the statement therein, “In the present case, the evidence is undisputed that appellant confessed to the crime in return for a pair of boots.” 342 So.2d 1345. In the case under review, there is little dispute, if any, as to the condition of the weather, but the evidence fails to show any claim or contention by defendant that the condition of the weather was a cause, or even a contributing cause, of his confession. Throughout his testimony, both on voir dire interrogation and on the trial in chief, his contention was, as summed up in the conclusion of his testimony, as follows:

“Q You did make this statement admitting you broke into Mr. Brown’s hardware store, didn’t you?
“A Yes, I made that statement after being beaten several times.
“Q After, being beaten?
“A Yes, several times.
“Q You told them how you got into the store, did you not?
“A After it all . we had went over everything that’s in that statement several times before it was ever took on tape or anything.
“Q They told you what to say?
“A More or less.
“Q And you just did what they told you to because you were beaten, promised, and threatened?
“A Right.”

If any substantial part of the testimony of defendant in support of his contention had been without dispute, we would have no hesitancy in holding that his confession was involuntary and inadmissible, but in every material respect his testimony was positively contradicted by that of Officer Beam. There is no basis for a reconciliation between the testimony of the one and the testimony of the other. There is no room for a finding that one or the other was mistaken. One of the two was telling the truth, and the other was testifying falsely. The trial judge listened and looked patiently and concluded that the confession was voluntarily made. We should, and must, give his conclusion great weight. It is supported by strong and substantial evidence, and we cannot find that it is contrary to the great weight of the evidence or that it is manifestly wrong. Under all of the circumstances, the trial court was acting well within its province, and its admission in evidence of the confession should not be disturbed. Fewell v. State, 259 Ala. 401, 66 So.2d 771 (1953); Stewart v. State, 49 Ala. App. 681, 275 So.2d 360 (1973); Balentine v. State, Ala.Cr.App., 339 So.2d 1063, cert. denied, Ala., 339 So.2d 1070 (1976).

The verdict is amply supported by the evidence, and the record discloses no error prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hére-by

AFFIRMED.

All the Judges concur.

      . In evidence before the jury, defendant presented testimony of Anthony Jones, a fellow prisoner of appellant in the Blount County Jail at the time of the confession, who corroborated defendant as to the involuntariness of his confession. In rebuttal, the State presented the testimony of Waymon Brown, as well as Beam and Maze, who to some extent discounted the credibility of the claim of defendant as to the involuntary nature of his confession.