author: FAULKNER, Justice.

text:
    CITY OF BIRMINGHAM v. Cammie Olivia BRASHER.
    77-108.
    Supreme Court of Alabama.
    May 19, 1978.
    Rehearing Denied June 23, 1978.

      Thomas P. Anderson, Birmingham, for appellant.
    S. Shay Samples, Earl R. Peyton and Hogan, Smith & Alspaugh, Birmingham, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment awarding damages to Brasher, in a suit against the City, alleging negligent maintenance of a sidewalk in a public park. We affirm.

On December 26, 1974, Cammie Olivia Brasher fell and sustained hip injuries, while walking on a sidewalk located on the perimeter of Woodrow Wilson Park. She fell when she stubbed her foot on an elevated portion of concrete walkway.

This specific sidewalk — Wilson Park is criss-crossed with walkways — leads from a public street to the entrance of the Jefferson County Courthouse. Not only were there elevated portions of concrete, but also there were cracks and depressions in the sidewalk. There was testimony that these conditions had existed for a long period of time prior to Mrs. Brasher’s fall. There had been previous injuries suffered by persons as a result of stumbling and falling on the sidewalk. The Engineering Department, as well as the City Legal Department, had been warned on numerous occasions, by the Jefferson County Director of General Services of the delapidated condition of the sidewalk. Yet, the City did nothing to improve or to repair it. As late as August 16, 1974, the Jefferson County Commissioner of Public Improvements wrote a letter to a City Councilman stating:

“The sidewalk from Seventh Avenue on the Woodrow Wilson Park side of the Courthouse is absolutely in pitiful condition. The concrete is broken, sunken, and many times covered with mud. It is not only unsightly but is absolutely dangerous!
“ . . . I sure would appreciate your forwarding this request to the proper department and using your influence to see that it is taken care of."

The issue before this court is whether the City is immune from suit, and liable for damages resulting from the negligent maintenance of the sidewalk. On this issue we are presented with an attack upon the viability of Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632 (1969), where this court held the City of Birmingham immune from liability for a defect in a walkway within Woodrow Wilson Park under Tit. 62, § 660, Code of Alabama 1940 (Recomp.1958). Seven years later, Justice Bloodworth, in a specially concurring opinion in Walker v. City of Birmingham, 342 So.2d 321 (Ala.Sup.Ct.1976), addressed the Jones case:

“However, I think the tort counts are good and therefore I concur in the present judgment of reversal as to those counts. I do not think the statutes provide governmental immunity from tort to the City of Birmingham in suits by persons injured on sidewalks maintained by the city in public parks.
“Tit. 37, § 502, Code of Alabama 1940 and City of Bessemer v. Whaley, 187 Ala. 525, 65 So. 542 (1914), specifically provide for municipal tort liability for injuries suffered due to defects in sidewalks, inter alia, cf. Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632 (1969). Although citing this rule of law, Jones refuses to hold that ‘[a] public way in a park is still a public way.’ It expressly holds that a public sidewalk entirely within a public park is not an ‘ordinary public sidewalk’ and therefore falls within the governmental immunity granted the city in the operation of a public park. I would overrule Jones.
“I would hold that the exception in Tit. 62, § 660, Code of Alabama 1940, that governmental immunity does not extend to ‘injuries arising out of defects in highways . . . ’ applies here. Sidewalks are part of the system of public highways notwithstanding their being totally encompassed by a public park. The intention of the legislature was to except injuries therefrom from the then existing governmental immunity, in my judgment.”

Walker was a suit for injuries sustained on a sidewalk in the Jimmy Morgan Zoo in Birmingham. Justice Embry, writing the primary opinion, stated that although a contract action was available, the City was immunized from tort suits. He was joined by Justice Beatty. However, the remainder of the court had somewhat differing views. Justice Bloodworth was of the opinion that the plaintiffs had an actionable tort claim, but that a contract action was improper. Justices Maddox and Faulkner concurred in this view. Finally, four members of this court, Justice Jones, authoring a specially concurring opinion, joined by Chief Justice Heflin and Justices Almon and Shores, felt that the plaintiffs had both a tort and contract action. Although arising in a somewhat atypical posture, Justice Bloodworth’s concurring opinion in Jones became the opinion of this court when his view of the tort claim was joined in by six other justices. See 21 C.J.S. Courts § 189b. Thus, Jones was overruled.

The City contends that any overruling of Jones should operate prospectively only. Adoption of this view would require reversal of the instant case since Walker was decided almost two years after Mrs. Brasher’s injury. We decline to so limit the application of Walker.

“As a general rule, the effect of overruling a decision and refusing to abide by the precedent there laid down is retrospective, as well as prospective, and makes the law at the time of the overruled decision as it is declared to be in the last decision . . .. The distinction has been made that if the overruled decision is one dealing with procedural or adjective law the effect of the subsequent overruling decision is prospective only; but if the overruled decision is one dealing with substantive law the effect of the subsequent overruling decision is retroactive. In any event, a court of final decision may expressly define and declare the effect of a decision overruling a former decision, as to whether or not it shall be retroactive, or operate prospectively only, and may, by a saving clause in the overruling decision, preserve all rights accrued under the previous decision.” 21 C.J.S. Courts § 194a (Footnotes omitted.)

Walker was not limited to prospective application at the time of its issuance, and we are not now presented with a contract right or vested right which would compel such application. Cf. Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975); 21 C.J.S. Courts § 194b.

AFFIRMED.

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

      . Title 62, § 660, Code of Alabama 1940 (Recomp.1958), was declared unconstitutional in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.Sup.Ct.1978). The parties agree that the City is now governed by Title 37, § 502, Code of Alabama 1940 (Recomp.1958).


source: Caselaw Access Project

author: C. C. TORBERT, Jr., Chief Justice

license: Public Domain

text:
    OPINION OF THE JUSTICES.
    No. 250.
    Supreme Court of Alabama.
    June 9, 1978.
   Honorable George C. Wallace

Governor of Alabama

State Capitol

Montgomery, Alabama 36130

Dear Sir:

The undersigned Justices of the Supreme Court acknowledge receipt of your request for an advisory opinion on the questions presented in your letter of June 8, 1978. You state the following facts:

“On, to-wit, January 20th, 1975, the Honorable Melba Till Allen took office as Treasurer for the State of Alabama. Thereafter, on June 8, 1978, she was sentenced by order of the Honorable Perry Hooper, Circuit Judge, Montgomery, Alabama, to imprisonment in the penitentiary for a term of three years, a certified copy of said order being attached hereto as Exhibit “A”, and made a part hereof.
“Section 36-9-2, Code of Alabama, 1975, provides, inter alia, ‘When any person holding any office or place under the authority of this State is sentenced by any court of the United States, of this State or of any other state to imprisonment in the penitentiary or hard labor for the county, his office or place shall be vacated from the time of the sentence
“On the other hand, Section 173, Constitution of Alabama, 1901, provides, inter alia ‘The . . . state treasurer . may be removed from office for willful neglect of duty, corruption in office, incompetency, or intemperence in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties, or for any offense involving moral turpitude, while in office, or committed under color thereof, or connected therewith. . . .’
“Section 36-9-17, Code of Alabama, 1975, requires that vacancies in all State offices shall be filled by appointment of the governor for the unexpired term of such office, unless otherwise provided by law. No other provision of law is so provided in case of a vacancy during the term of the State Treasurer.”

You pose the following questions:

“1. Did the order of this date sentencing the State Treasurer by the Circuit Court of Montgomery County trigger the operation of Section 36-9-2, Code of Alabama, 1975, thereby resulting in a vacancy in that office to be filled by appointment of the governor?
“2. If your answer to the foregoing question is in the affirmative, would such vacancy and appointment be constitutionally valid without complying with the provisions of Section 173, Constitution of Alabama, 1901?
“3. If your answer to question one is in the negative, does Section 173, Constitution of Alabama, 1901, establish an exclusive procedure for the removal from office of the state treasurer under the facts hereinabove related?”

Based upon the reasons and the authorities hereinafter set forth, we respectfully answer your questions number one and two in the affirmative. By so doing, we pretermit the answer to question number three.

Section 36-9-2, Code of Alabama 1975, should be considered in connection with Section 60 of the Constitution of 1901. This statute is in harmony with section 60 and was enacted to give force and effect thereto. State ex rel. Moore v. Blake, 225 Ala. 124, 142 So. 418 (1932).

Section 60 provides the following:

“No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the Legislature, or capable of holding any office of trust or profit in this State.”

It has been held that section 60:

. . . has the force of positive law declaring a fixed policy that persons therein named are ineligible to hold office in Alabama. The peace and dignity of the state as dependent upon the character and morale of her public officials is the thought behind it.
“But it is no limitation upon the power of the Legislature to prescribe further qualifications for office, to declare who shall be eligible to hold office in Alabama. This is an inherent legislative power.”

State ex rel. Moore v. Blake, 225 Ala. 124, 126, 142 So. 418, 419 (1932).

Furthermore, this court has stated the following concerning the relationship between section 1558, Code of Alabama 1907, the progenitor of section 36-9-2, Code of Alabama 1975, and section 60:

“Very clearly, if one who has been convicted of an infamous crime shall not be ‘capable of holding any office of trust or profit in this state,’ as plainly provided in section 60, supra, then manifestly, a statute which provides for the office to be vacated from the time of the sentence, and the restoration to office in the event of a reversal of the judgment, is but a recognition of this constitutional provision, and properly enacted for its more efficient enforcement. . . . Section 60 gives recognition to the fact that the officer has been duly tried before a jury and convicted, and has ‘had his day in court.’ It gives weight to such a conviction, and it was clearly not the intention of the Constitution that, following such conviction, the officer must be formally impeached and again given a jury trial before his removal could be effected. This section recognizes the fact that for the proper and orderly administration of governmental affairs the officer should not serve who rests under the stigma of conviction for an infamous crime. Section 1558 [§ 39-9-2, Code 1975] follows in the wake of this constitutional provision, vacates the offices pending such judgment of conviction, and generously provides a restoration to office immediately upon a reversal of the judgment. Ex parte Diggs, 50 Ala. 78.”

Stone v. State ex rel. Freeland, 213 Ala. 130, 131, 104 So. 894, 894-95 (1925).

In light of these principles, it is clear that section 60 and section 36-9-2 have a field of operation wholly apart from the provisions for impeachment of the state treasurer, as well as certain other constitutional officers, found in section 173 of the Constitution. Section 60 provides the constitutional sanction of ineligibility to hold public office on account of conviction of an infamous crime. Section 36-9-2, as it relates to section 60, was enacted in harmony therewith, and in furtherance thereof, by providing that upon sentencing to imprisonment in the penitentiary, the office be vacated. However, section 173 looks to a removal by impeachment of the officer for prescribed acts or omissions while lawfully holding the office. We note that section 176 of the Constitution, as to impeachment of public officers under the preceding sections 173, 174 and 175, does not extend beyond removal from office for the term, and recognizes that such officer is also liable to criminal prosecution as prescribed by law.

We also note that section 136 of the Constitution provides that, should the office of the state treasurer “become vacant from vacant from any cause, the governor shall fill such vacancy until the disability is removed or a successor elected and qualified.”

Respectfully submitted,

C. C. TORBERT, Jr., Chief Justice

JAMES N. BLOODWORTH HUGH MADDOX RENEAU P. ALMON JANIE L. SHORES ERIC EMBRY SAM A. BEATTY Justices.


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS and Gold Kist, Inc. v. Linda A. THOMPSON.
    Civ. 1470.
    Court of Civil Appeals of Alabama.
    June 21, 1978.

      Frank D. Marsh, Asst. Gen. Counsel, Dept, of Industrial Relations, Montgomery, for appellants.
    James D. Walker, Albertville, for appel-lee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

Claimant appealed to circuit court after denial of her claim for compensation by the Appeals Referee and the Board of Appeals. The court held her entitled to benefits, and appeal was taken.

The first issue is whether there is evidence to support the conclusion that claimant was not disqualified by Section 25-4-78(2), Code of Alabama (1975) for voluntarily leaving her work without good cause.

The testimony is in sharp conflict concerning the circumstances in which claimant departed from employment. Claimant had been employed by Gold Kist for three years in its poultry plant as a “craw puller,” which required her hands to be constantly wet. She developed problems with them and obtained sick leaves. Upon return from her last sick leave period in December 1976, she was assigned a “rack-out” job, placing chicken pieces in boxes and cartons. Claimant testified that she was given no training or help. On her first and second days on the job, she got behind in her work, necessitating stopping the process line. Arnold Smith, her supervisor, told her anyone brought in off the street could do a better job than she and she might as well go home. On the third day, before the line was started up for the day, she was told by Smith to go back home and that she could not do the job. She understood this to mean her employment was terminated and she left.

Testimony of Smith presented by Gold Kist denied that claimant was fired or told to go home. The rack-out job was as easy as any job in the plant. Claimant was given the same training and instructions that any new rack-out worker gets. She was never criticized or ridiculed. On the third day John Heard, the unit supervisor, told her she would only have to do part of the rack-out job that day. She refused to try it and went home. Smith did not have authority to fire employees.

The question of voluntary departure here obviously resolves itself into that of credibility of the evidence. Where evidence has been taken orally before a trial judge, his findings are clothed with a presumption of correctness unless plainly contrary to the weight of the evidence. Department of Indus. Relations v. Rich, 42 Ala.App. 80, 152 So.2d 692 (1963). The view that claimant was terminated rather than voluntarily quitting is supported by the evidence. Such departure is certainly not “voluntary” within the meaning of Section 25-4-78(2). Ventress v. Batey, 333 So.2d 584 (Ala.Civ.App.1976); Department of Indus. Relations v. McLeod, 55 Ala.App. 152, 314 So.2d 72 (1975).

The burden of proof is upon claimant to establish rights to benefits and the claimant assumes the risk of nonpersuasion. Department of Indus. Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948).

There is no hard and fast rule as to what constitutes availability for work, as it depends upon the facts and circumstances of each case. It is established that a claimant must at least show that she acted in good faith and made a reasonable effort to secure suitable employment of a character which she is qualified to perform by past experience or training. Reporting weekly to the unemployment office, even to the State Employment Office, is not sufficient in itself to establish “availability” for work. Department of Indus. Relations v. Tomlinson, supra; Department of Indus. Relations v. Smith, 360 So.2d 726, 1978; Alabama Dep’t of Indus. Relations v. Anderson, 41 Ala.App. 267, 128 So.2d 532 (1961). The fact that claimant obtained employment more than three months after leaving her job furnishes no positive evidence of her efforts in the interim.

The evidence in this case falls into the category of Department of Indus. Relations v. Tomlinson, supra, Department of Indus. Relations v. Mann, 35 Ala.App. 505, 50 So.2d 780 (1950), and Department of Indus. Relations v. Wall, 34 Ala.App. 530, 41 So.2d 611 (1949), which involved insufficient efforts beyond registration at the unemployment office. The extraordinary circumstances of Alabama Department of Indus. Relations v. Anderson, supra (limited employment opportunities in rural area) and Alabama Mills, Inc. v. Carnley, 35 Ala.App. 46, 44 So.2d 622 (1949) (newborn infant to care for) are not present here. It therefore appears that claimant failed to sustain the burden of establishing from the evidence that she was “available for work” within the meaning of the statute. Section 25-4-77(3), Code of Alabama (1975).

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: SIMMONS, Retired Circuit Judge.

text:
    Michael B. RUSSELL v. STATE.
    6 Div. 682.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.
    Rehearing Denied May 2, 1978.
    William Conway, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant-defendant appeals from a judgment at nisi prius that revoked his probation.

The probation had reference to a judgment on a plea of guilt to an indictment for possessing marijuana. The sentence was one year in the county jail. Probation was ordered February 1, 1974, and covered a period of two years.

Hence, the expiration date was February 1, 1976.

It appears in the judgment, dated October 31, 1975, (within the probation period) that probationer, Michael B. Russell,

“ * * * is delinquent as such, has violated the terms and conditions of probation, has absconded, has failed to make reports to probation officer, is reputed to have violated the criminal laws, has been idle and not gainfully employed, has been drinking intoxicating liquors and consorting with associates of bad repute and that a hearing should be had to determine whether probation herein should be revoked or other action taken by the Court.”

The judgment also reads:

“It is therefore the order and judgment of the court and it is ordered and adjudged by the court that probationer, Michael B. Russell, is herein delinquent as such, and that probationer be, and hereby is, declared delinquent and that the running of probationers probationary period be and hereby is stopped and that capias and warrant forthwith issue for arrest of probationer and that when apprehended probationer be brought before the court for hearing for the determination of the truth of the charges made against probationer herein and what action should be taken by the court and whether probation herein should be revoked and order suspending sentence herein set aside. Done and ordered this the 31st day of October 1975.” (Emphasis added.)
* * * * * *
“Case continued to March 5, 1976. Done January 9, 1976.
“Defendant, Michael B. Russell, appears with his attorney, the Honorable William Conway. The District Attorney advises that the defendant has been indicted on the offense giving rise to these proceedings and moves the continuance of this hearing until after disposition of new case. Hearing continued to be reset. This the 5th day of March 1976.”

It next appears that appellant was brought before the Court on March 5, 1976, at which time, on motion of the State, the case continued pending disposition of an indictment. The entry shows the case was to be reset.

It next appears in the judgment that defendant was brought before this Court on October 18, 1976, (according to the record before us), and the hearing on the violation was set for November 22, 1977. It was heard on that date at which time the Court, after hearing the testimony, determined that defendant had violated the terms of his probation. The Court ordered the probation revoked and that defendant serve his jail sentence. Appeal was taken.

Deputy Sheriff Roger Beam, a witness for the State, testified that appellant-defendant, on July 31, 1975, was driving on a public highway in Blount County while intoxicated. At the time Beam requested that defendant step out of the car. Beam smelled marijuana smoke in the car. The witness further testified that he then arrested defendant for D.W.I. Beam was unaware of the disposition of the case.

Also introduced was a court record that defendant plead guilty to driving while intoxicated and was fined $100.00.

We think the record amply supports the Court’s judgment in revoking appellant’s parole. We find no error in the record.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Michael B. RUSSELL.
    77-512.
    Supreme Court of Alabama.
    June 30, 1978.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: BOWEN, Judge.

text:
    Bill Allen ODOMS v. STATE.
    7 Div. 589.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.
    Rehearing Denied June 20, 1978.
    William E. Hereford, Jr. of Gaines, Hereford, Cleckler, Robbins & Blair, Pell City, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant stands charged by warrant of arrest under the Alabama Death Penalty Statute for the murder of Captain William Henry Beard of the City of Oxford, Alabama, Police Department while the officer was engaged in the official performance of his duty. Section 13-11-2(a)(5), Code of Alabama 1975. This appeal is taken from a denial of an application for writ of habeas corpus by the District Court of St. Clair County.

The appellant presents three issues for our consideration: (1) Whether the appeal from the denial of the application for writ of habeas corpus is due to be dismissed because the transcript of the evidence and record on appeal contains no certification of correctness by the trial judge; (2) whether an attempted plea of guilty to an indictment charging first degree murder precludes a prosecution for capital murder arising from the same facts under the principles of due process of law and double jeopardy; and (3) whether the appellant was justified in resisting an unlawful arrest.

I

The state’s Motion to Dismiss the appeal is without merit and not well taken.

Title 15, Section 369, Code of Alabama 1940, Recompiled 1958, authorized an appeal from a judgment of a trial court denying a petition for a writ of habeas corpus. It provided that:

“Within thirty days from the date of judgment, the clerk of the court from which the appeal is taken shall forward a transcript of the record and a certificate of appeal to the supreme court or court of appeals, together with a transcript of the evidence and the judge’s ruling thereon, which shall be certified to be correct by the judge or officer hearing the petition." Title 15, Section 369(d), Code of Alabama 1940. (Emphasis added)

This section was superceded on October 31, 1977, by Section 12-22-90, Code of Alabama 1975. The new section deletes any provision regarding a certification of correctness by the trial judge as formerly required under Section 369(d), Title 15, Code 1940. The certification not being required for appeals in cases of habeas corpus taken on and after October 31, 1977, this appeal is not due to be dismissed because the correctness of the record is not certified by the trial judge.

II

On the issue of double jeopardy the facts are fully and accurately stated by the trial judge in his order denying the application for a writ of habeas corpus. Those facts are:

“(1) That, on October 26, 1977, the defendant was brought before the circuit court for his initial appearance therein after his arrest under the warrant of arrest issued after return of the indictment against him (for first degree murder), for the purpose of informing him of the charge therein returned against him, of his right to be represented by attorney therein, and that he was to be held without bail to await further proceedings therein;”

On this date an attorney was appointed for the appellant and the judge of the circuit court entered a plea of not guilty for the appellant.

The trial judge also found:

“(2) that, on October 27, 1977, the defendant (and appointed counsel) appeared in circuit court, not pursuant to any order of that court to be arraigned, but voluntarily for the purpose of endeavoring to have said court accept defendant’s plea of guilty to said indictment;
“(3) that, thereupon, the circuit court refused to accept a plea of guilty from the defendant and, upon motion of the District Attorney, dismissed said indictment so that a new charge (capital murder) might be brought against the defendant.”

Immediately upon the dismissal of the indictment against the appellant charging first degree murder, a warrant of arrest charging the appellant with capital murder and prepared prior to the dismissal of the indictment was served upon the appellant. The following day the appellant, already in jail, was ordered to be held without bond to await further proceedings.

The appellant argues that the circuit court had no authority to refuse to accept his plea of guilty and that the dismissal of a valid indictment after a plea of guilty furnishes a defense of former jeopardy to any further prosecution in this matter.

Generally, a former conviction by a guilty plea is a sufficient basis to sustain a defense of double jeopardy in a subsequent prosecution for the same offense. Annotation 75 A.L.R.2d 683. However a plea of guilty is a conviction authorizing imposition of sentence only when accepted and entered by the court. Harris v. State, 19 Ala.App. 484, 98 So. 316 (1923). Before jeopardy attaches, the plea of guilty must be accepted by the court. 75 A.L.R. at 691.

We note that the record before this court consists of the evidence and testimony taken at a combined preliminary hearing and a hearing on a writ of habeas corpus. The record does not contain the petition for habeas corpus, either the former (dismissed) indictment for first degree murder or the present one for capital murder. Nowhere does the record show that a special plea of former jeopardy was interposed to the indictment. It is settled that an issue of former jeopardy cannot be tested by a petition for writ of habeas corpus, but must be specially pleaded to the indictment or it is waived. Powell v. State, 253 Ala. 41, 42 So.2d 693 (1949).

The appellant with his court appointed counsel voluntarily appeared in court on a day during the week of criminal court. On that day a jury venire was present and the “courtroom was practically full of people”. The appellant’s case was not on a docket sheet and “was not set on that day”. Appointed counsel for the appellant testified that “the judge did not ask me or the defendant to be back in court on the twenty-seventh”. He further stated that he “had a sneaking suspicion that that is what would transpire” referring to the dismissal of the indictment charging murder in the first degree and the issuance of an arrest warrant for capital murder.

Under the circumstances of this case, the failure or refusal of the trial court to accept the appellant’s plea of guilty and deny the state’s motion to dismiss the indictment was within his discretion.

An accused should not be permitted to plead guilty for the purpose of defeating the ends of justice by avoiding the punishment merited by the gravity of his criminal act, and for the further purpose of providing a defense to a proper prosecution. See Drake v. State, 68 Ala. 510 (1881); Thomas v. State, 114 Ala. 31, 21 So. 784 (1896); Moore v. State, 71 Ala. 307 (1882). These cases hold that it would not constitute a bar to the second prosecution of the accused for the same offense where a former conviction by plea of guilty was, by reason of fraud or collusion, a sham proceeding engineered by the accused for the purpose of defeating a subsequent prosecution, and resulted in the accused’s procuring an inadequate penalty. Here there was an apparent attempt made to avoid the greater punishment merited by the offense. Though there was no fraud or collusion, the attempt was not successful and the guilty plea was not accepted, the indictment being dismissed on motion and at the request of the state. Jeopardy had not attached and the defense of former jeopardy is without merit.

Ill

The final contention of the appellant is that both the warrant of arrest Captain Beard, the deceased, was attempting to serve on the appellant on August 19, 1977, and its manner of service were unlawful and illegal. The appellant argues that this deprived him of due process of law and gave him the right to resist the execution of the warrant.

At common law and in Alabama one is entitled to resist an unlawful attempt to arrest him to the extent of killing the person attempting the arrest, if necessary to save his own life, or to save himself from serious bodily harm; but the necessity must have been real or apparent.

“The amount of force which he may use in self-defense, however, is that only which is necessary to prevent the carrying out of the unlawful purpose. If excessive force is used in making resistance, the right of self-defense is eliminated; and killing, by means calculated to cause death, with knowledge that the intent was only to arrest, is murder; and an unintentional killing in making such resistance, by means not calculated to cause death, is manslaughter.” Sanders v. State, 181 Ala. 35, 45, 61 So. 336, 339 (1913).
* * * * * *
“The citizen may resist an attempt to arrest him which is simply illegal, to a limited extent, not involving any serious injury to the officer. He is not authorized to slay the officer, except in self-defense; that is, when the force used against him is felonious, as distinguished from forcible. It is better to submit to an unlawful arrest, though made with force, but not with such force as to endanger the life or limb, than to slay the officer.” Adams v. State, 175 Ala. 8, 12, 57 So. 591, 592 (1912).
******
“He has no right to kill to prevent a mere trespass (the illegal arrest), which is unaccompanied by imminent danger of great bodily harm or felony, and which does not produce in his mind the reasonable belief of such danger.” Lewis v. State, 178 Ala. 26, 38, 59 So. 577, 582 (1912).

Regardless of the authority, or lack thereof, of the arresting officer, the issue of self-defense which the appellant raises constitutes an excuse or justification for the homicide. It presents a matter of fact which has not been and must be determined. The issue of self-defense must be raised at trial and not by way of habeas corpus.

From the record it affirmatively appears that there exists probable cause to hold the appellant and that he is not being illegally detained. The judgment of the trial court denying the application for writ of habeas corpus is therefore affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Charles Earl RUSSELL v. STATE.
    1 Div. 920.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.

      Ian F. Gaston, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of burglary in the first degree and the jury fixed his punishment at fifteen years in the penitentiary. Throughout the proceedings in the trial court he was represented by retained counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal. He was found to be indigent and he was furnished a free transcript. New counsel was appointed to represent him on this appeal.

The State presented ample evidence to make out a case of burglary in the first degree. Appellant did not testify but offered alibi testimony.

Paula Mize, the complainant in this case, testified that her apartment on Dauphin Street in Mobile was broken into on two occasions — May 2, 1977, and July 18, 1977. The first incident occurred at approximately 3 o’clock in the morning. Mrs. Mize heard a noise, sat up in bed, and saw someone crawling through the bedroom window. When Mrs. Mize asked who it was, a man replied, “It is just me.” Mrs. Mize asked if he wanted money and the man replied no, that he wanted to have sexual intercourse with her. Following a brief struggle, during which Mrs. Mize began to scream loudly, the assailant fled.

At about 5 o’clock on the morning of July 18, 1977, Paula Mize testified, she “woke up with a man’s finger inside of [her] vagina ..” She looked up and saw the man who had entered her room on May 2, 1977. One of her halter tops was draped around the man’s neck. Mrs. Mize further testified that she began to struggle and that the man struck her in the mouth, cutting her lip. Shortly after this, Mrs. Mize pulled herself from under her assailant and the man jumped from the bed and went through a window. As her assailant dove out the window, Mrs. Mize pulled a shoe from his foot. Subsequently, police stated that it would be impossible to prove that the shoe belonged to her assailant.

Prior to her going to bed that night, the apartment was secure according to the testimony of Mrs. Mize. All the windows in the apartment were latched with safety locks. Mrs. Mize positively identified appellant who lived with his mother next door to Mrs. Mize. Mrs. Mize testified that she was able to identify appellant because a mercury vapor light in the parking lot of another apartment building shone through her bedroom window.

Robert Moore testified that he was a detective sergeant for the Mobile Police Department. On July 20, 1977, Paula Mize contacted him, telling him that she had seen the man who assaulted her washing a car next door. Subsequently, Moore prepared an array of photographs, which included a picture of appellant. When Moore showed Mrs. Mize the pictures, she picked appellant’s photograph without any hesitation. Appellant was arrested at the home of his mother. Appellant’s mother had moved to a new residence shortly after the second attack on Mrs. Mize.

Following the testimony of Sergeant Moore, the State rested. Appellant moved to exclude the State’s evidence on the ground that a prima facie case was not established. This motion was denied.

Patricia Ann Wilkinson testified in behalf of the defense. Mrs. Wilkinson testified that appellant was employed by her from May through August of 1976. Appellant worked on rental properties, owned by Mrs. Wilkinson, in Pensacola, Florida. She further testified that she wouldn’t have any idea where appellant was on May 2 or July 18, 1977. At the time appellant worked for her she knew him by the name of Buddy Yost and she did not know his correct name until she came to court as a witness.

Edna Holifield testified that she had lived with appellant for three and a half years as his common-law wife. She further testified that she and appellant lived in Pensacola, Florida, from the last of April through the last of July of 1977. Appellant left Pensacola only once, Holifield testified, to visit his sister on July 4, 1977, in Mobile, Alabama.

Willis Robinson testified that he owned the apartment in which Paula Mize lived. Paula Mize called Mr. Robinson on two occasions to report a burglary and requested that screens be installed on some windows. On the second occasion, Robinson testified, he saw Mrs. Mize at the apartment but he did not see any bruises or cuts on her. Robinson further testified that the window in her bedroom was about half open and the screen was off that window.

Burglary in the first degree is the unlawful and intentional breaking and entry in the nighttime into a dwelling house presently occupied, with the intent to commit a felony. Reeves v. State, 245 Ala. 237, 16 So.2d 699. The testimony of Paula Mize clearly establishes each of these elements. As to the alibi of appellant, a question for the jury was presented. Freeman v. State, Ala.Cr.App., 350 So.2d 768.

Appellant requested the following written charge:

“DEFENDANT’S REQUESTED JURY CHARGE NO. 6.
“I charge you, members of the jury, that if the evidence of the State consists in the statements of witnesses, the truth of which the jury have a reasonable doubt, you cannot convict on such evidence, although you may not believe the testimony of the defendant’s witnesses.”

The trial court refused to give this charge. Appellant contends that such refusal was improper in light of his alibi defense and the testimony of Robinson who stated that he saw no sign of forcible entry. Appellant relies on McDaniels v. State, 162 Ala. 25, 50 So. 324; Kilgore v. State, 19 Ala.App. 181, 95 So. 906; and Segars v. State, 86 Ala. 59, 5 So. 558.

In Segars, supra, defendant was indicted and convicted of carrying a concealed weapon. The State’s sole witness was impeached by proof of contradictory statements. In reviewing the refusal of the requested charge in question, the Supreme Court, reversing the conviction, held:

“ . . . In a criminal case, a prima facie case of guilt does not generally rebut the presumption of innocence, or shift the burden of proof. Until the state proves, in the first instance, beyond a reasonable doubt, the facts which constitute the offense, the accused is not required to establish his innocence by exculpatory evidence. The jury are not authorized to find the defendant guilty on the evidence, of a single witness, upon whose testimony the question of guilt depends, if they have a reasonable doubt of the truth of his statements. Washington v. State, 58 Ala. 355. The evidence on the part of the defendant being wholly exculpatory, the effect of refusing the charge is to shift the burden of proof, on a prima facie case of guilt being made by the prosecution.”

However, refused charge number 6 has subsequently been held properly refused. The issue was resolved adversely to appellant in Crews v. State, 218 Ala. 145, 117 So. 801, answer conformed to, 22 Ala.App. 564, 117 So. 801. In that case, Presiding Judge Bricken of the Court of Appeals certified the question to the Supreme Court. The following response was made:

“SOMERVILLE, J. (answering the foregoing inquiry.) We are of the opinion that the charge in question is, upon its face, subject to objection, and may be properly refused. We think, also, it could be given without error. The objection to its giving is stated in Koch v. State, 115 Ala. 99, 105, 22 So. 471, 473, where it is said:
“ ‘Such a charge is not in keeping with the well-established procedure for the proper determination of the issues in a cause, in which a party always invites the jury to believe, and avouches the truth of the evidence he introduces. He may not, therefore, in an instruction he asks, predicate a verdict in his favor upon a disbelief by the jury of his own evidence.’
“See, also, McConnell v. Adair, 147 Ala. 599, 41 So. 419, and Love v. State (Ala.Sup.) 117 So. 400.”

Since that time the charge has been consistently held to be properly refused. Green v. State, 263 Ala. 324, 82 So.2d 418; Ledbetter v. State, 34 Ala.App. 35, 36 So.2d 564, certiorari denied 251 Ala. 129, 36 So.2d 571; Chastain v. State, 36 Ala.App. 186, 54 So.2d 623, certiorari denied 256 Ala. 280, 54 So.2d 629; Winn v. State, 38 Ala.App. 156, 79 So.2d 75; Thomas v. State, 57 Ala.App. 320, 328 So.2d 321.

A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Smith v. State, Ala.Cr.App., 338 So.2d 1030; Freeman v. State, Ala.Cr.App., 350 So.2d 768.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Debra HATCHER v. STATE.
    2 Div. 214.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    William T. Faile, Selma, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

This is an appeal from a conviction and sentence for the crime of selling marijuana in violation of the Alabama Uniform Controlled Substances Act (Acts 1971, No. 1407). Code of Ala.1975, § 20-2-1, et seq. The jury fixed her punishment at a fine of $10,000, and the court added imprisonment in the penitentiary for ten years, all within the limits of punishment provided by § 20-2-70. She was sentenced accordingly.

The issue presented by the plea of not guilty, as supplemented by the evidence and contention of the parties, was as to the identity of a young woman who sold marijuana to an undercover agent of the West Alabama Narcotics Squad while he was at the residence of defendant and her mother in Selma, Dallas County.

The evidence was without dispute that a sale was made by a young woman at defendant’s home. It was shown by testimony of an expert that the substance sold was marijuana.

Defendant and her mother testified. The gist of their testimony was that neither had any personal knowledge of the sale, but that defendant had a sister a few years older than she that resembled her, and the position was taken by defendant that if any such sale was made, it probably was made by defendant’s sister.

No contention is made that the evidence was not sufficient to support the verdict.

The only insistence on error is the contention that the court erroneously allowed the prosecution to obtain an admission from defendant, while cross-examining her as a witness on the trial, that she had been previously convicted of selling marijuana.

The contention as to error fails for two reasons. In the first place, there was no objection to the question that brought forth defendant’s testimony that she had been convicted for selling marijuana, as shown by the following portion of the record:

“Q And during the course of that trial [a former trial of defendant at which, according to her, she had probably seen the agent who testified he bought the marijuana from her that was the basis of the instant case], please, M’am, was the verdict rendered?
“Q Yes, M’am.
“A What do you mean?
“Q Did the jury return a verdict concerning your trial?
“A Yes, sir, they did.
“Q And what was that verdict?
“A Guilty.
“MR. THIEMONGE: Judge, we are going to object to that and move for a mistrial at this point.
“THE COURT: O. K. Overruled.
“MR. THIEMONGE: We except.
“MR. GREEN: (Continuing)
“Q Please answer.
“A I answered.
“Q I did not hear you.
“A Guilty.
“Q All right. And what was that for, please?
“A Sale of marijuana.
“Q All right.
“MR. GREEN: That’s all I have.
“MR. THIEMONGE: At this time the defense will rest.
“MR. GREEN: Nothing further, Your Honor.”

Defendant’s denial of the transaction between her and the undercover agent, which included the sweeping denial by her that there was any conversation or transaction between the two at her residence, furnished a basis for cross-examination of her as to her previous acquaintance or contacts with the agent.

In addition, we have held that selling marijuana is a crime involving moral turpitude and that a conviction thereof can be shown in cross-examination of a witness as affecting the witness’ credibility, even though it is not otherwise admissible. Gholston v. State, Ala.Cr.App., 338 So.2d 454 (1976).

We find no error in the record 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 provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Alvin Wayne GASTON v. STATE.
    2 Div. 218.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Charles H. Morris, III, of Morris & Fade, Selma, for appellant.
    William J. Baxley, Atty. Gen. and Samuel J. Clenney, III, and J. Bernard Brannan, Jr., Asst. Attys. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for unlawfully obtaining the drug demerol for his personal use. Acts 1971, No. 1047, p. 2378, § 401 now codified as § 20-2-70, Code of Alabama 1975. The trial judge fixed sentence at four years’ imprisonment.

The appellant was apprehended in his attempt to have a forged prescription for demerol filled at Carter’s Drug Store in Selma, Alabama. After being informed that the prescription was forged and given his constitutional rights the appellant stated that a Patty Larkin had requested him to get the prescription filled and that she must have written it. Police officers for the City of Selma testified that they searched for but were unable to locate Ms. Larkin.

The only question presented on appeal is whether a trial judge may refuse a requested jury charge which is a correct statement of law because it was substantially and fairly covered by the judge in his preliminary address to the jury.

The charge requested by the appellant stated:

“Members of the jury I charge you that the failure of the Defendant to take the stand as a witness in his own behalf can in no way, matter, shape or form be held as evidence to his guilt. Defendant has a constitutional right either to take or not take the stand in his behalf and his failure to do so can in no matter be commented on by the State.”

The oral charge of the court after the attorneys had presented their case to the jury in closing argument made no mention of the principles embraced within this requested charge.

There is no contention that the appellant’s failure to testify in this case was in any manner made the subject of comment by counsel, or was referred to in any manner. Therefore it is obvious that a portion of the requested charge was abstract and not applicable to the facts of the case. Boggs v. State, 270 Ala. 209, 116 So.2d 903 (1960). The action of the trial judge in refusing the entire charge was therefore proper.

Written requested charges must be given or refused in the terms in which they are written. Section 12-16-13, Code of Alabama 1975; St. John v. State, 55 Ala.App. 95, 313 So.2d 215, cert. denied, 294 Ala. 768, 313 So.2d 218 (1975). Where a charge states several distinct propositions of law, the court may properly refuse all if any one of them is unsound. Burk v. State, 16 Ala.App. 110, 75 So. 702 (1917); Price v. State, 107 Ala. 161, 18 So. 130 (1894); 6A Alabama Digest, Criminal Law, @=>830. For this reason each request for an instruction should not comprehend more than one subject or state more than one principle of law.

Generally it is error to refuse a requested written instruction that the failure of the accused to testify is not to be considered as evidence of guilt where the accused does not testify and this subject is not covered by the court in its oral charge. Thomas v. State, 139 Ala. 80, 36 So. 734 (1904); Salvadori v. State, 33 Ala.App. 372, 33 So.2d 752 (1948); Swindle v. State, 50 Ala.App. 403, 279 So.2d 574 (1973). However such error may be harmless where the evidence without material conflict shows that the accused committed the crime and the failure of the accused to testify was not commented upon by counsel or referred to in any manner. Turner v. State, 29 Ala.App. 13, 191 So. 392, cert. denied, 238 Ala. 352, 191 So. 396 (1939); Carl Arthur Perry v. State, Ala.Cr.App., 8 Div. 958 (Ms. May 30, 1978).

In this case the trial judge, in a preliminary address to the jury after it had been impaneled and sworn, instructed the jurors on the procedure the trial would follow. Included in these remarks was an instruction on the failure of the accused to testify.

“They may elect to put the Defendant on the stand or they may not. The fact that he does not take the stand in that event, that is their decision and is no circumstance against him because he’s under no burden to prove anything. The State has to carry that burden. So you would not consider that as a circumstance in the event the Defendant elects not to take the stand.”

In refusing the appellant’s requested charge, the trial judge noted on the charge itself “covered substantially in court’s opening instructions”.

In Alabama there is no statute governing the time when the trial judge must instruct the jury. See Section 12-16-11, Code. As a matter of practice and tradition the oral charge is delivered after the closing arguments of the attorneys immediately before the jury begins its deliberations. We have been cited to no rule of law, procedure or case authority which directs that this is the only time a court may instruct the jury. The appellant has shown no actual prejudice by the action of the trial court. A major consideration in this matter is the fact that the trial itself was brief and was completed in one day. The evidence was not complicated nor the issues complex. At the close of the oral charge, defense counsel announced “satisfied”.

Under these circumstances we think the appellant’s written requested charge was fairly and adequately covered by the trial judge in his opening remarks to the jury. Therefore there was no error in the refusal of the requested charge.

We have searched the record for error and have found none. The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Jackie ANDREWS v. STATE.
    4 Div. 590.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.

      Bryant F. Williams, Jr., Ozark, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Crime against nature; sentence: six years imprisonment.

Kenneth McKinney, a twenty-one-year-old male, testified that appellant, a thirty-two-year-old male, came to his residence on the afternoon of June 18, 1976, and asked to see his mother. His mother refused to see appellant, and McKinney informed appellant she was not home. Appellant then asked McKinney to accompany him to his car to get a soft drink. McKinney, who testified he had never before seen appellant, agreed to go along and rode with him to the Long Branch Saloon. There McKinney purchased two alcoholic drinks with appellant’s money while appellant waited in the car. The two men drove around for some time and eventually returned to the saloon where McKinney again purchased two drinks with appellant’s money. A conversation followed in which appellant mentioned going to see a girl in another town and going to check on a watermelon field. Instead, they drove to a cornfield and parked. Appellant then ordered McKinney to allow him to perform fellatio on him. Following this act, appellant grabbed McKinney’s head and forced him to perform fellatio on appellant. Appellant next ordered him to drop his pants and lean against the car. Appellant then attempted to perform anal intercourse with McKinney.

Finally, appellant took McKinney to a place near his home and let him out of the car. McKinney walked to a friend’s house where he called his grandfather to come get him. After arriving at the grandfather’s house, he called the police. The police took him to Dr. Robert McLaughlin for an examination. The doctor testified that the condition of McKinney’s rectum was consistent with penetration by a foreign object and consistent with the complaint made. McKinney stated that his mother had told him appellant always carried a gun in his car. He testified that he was not afraid of appellant until the time of the sex acts, but became afraid then because of the gun his mother had mentioned.

Appellant was arrested by Deputy Sheriff J. R. Parrish on June 19 between 1:00 and 1:30 a. m. at Harry Walker’s cow pen. He was immediately taken to Dale County jail where he gave a written statement after having been read his Miranda rights. Appellant’s statement admitted the sex acts with McKinney. However, it differed from McKinney’s story in that appellant stated McKinney had agreed to perform oral sex for a fee of $20 and had submitted to the anal sex after the oral sex proved unsatisfactory. Appellant stated he was unable to complete the act and refused to pay McKinney. He said McKinney then threatened to have him put in jail.

I

Appellant’s first assignment of error alleges that appellant was not present during the initial identification and qualification of the jury venire at the beginning of the court term. This, he argues, was a denial of his constitutional right to be present at every important stage of the trial process.

The record gives no indication as to whether appellant was in fact present at the initial qualification. However, there clearly is no objection in the record to preserve any error in relation to the jury ve-nire if in fact any error existed.

“The purpose of objection and exception are to challenge the correctness of the action of the court so that such action may be corrected by the court itself, if deemed erroneous, and to lay the foundation for review, if necessary, by the appellate tribunal. Without such objection, the trial court ordinarily has the right to assume that its action is acquiesced in and free from error. Haygood v. State, 252 Ala. 3, 38 So.2d 593.”
Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962).

If counsel is to question or object to the jury venire, he must do so prior to the impaneling and swearing in of the jury. Failure to make a timely objection waives the right to question the jury’s qualifications, and appellant may not complain for the first time on motion for new trial nor on appeal to this court. Douglas v. State, 50 Ala.App. 602, 281 So.2d 652 (1973); Yancey v. State, 56 Ala.App. 577, 324 So.2d 292 (1975). Hurley v. State, Ala.Cr.App., 341 So.2d 494 (1976), cert. denied, Ala., 341 So.2d 497.

Further, excusáis of jurors in a defendant’s presence are not required in non-capital cases. Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975). In this case, as in Yancey, supra, the defendant appears to have been present while the jury which heard his case was qualified and chosen. It was not necessary that he be present on the beginning day of the term when the venires were organized and at which time some prospective jurors may have been excused.

II

Appellant alleges there was conflicting evidence as to McKinney’s sexual proclivity; that McKinney was an accomplice to the act; and that as such, there was not sufficient corroboration of his testimony to sustain appellant’s conviction. Title 15, § 307, Code of Ala. 1940, now § 12-21-222, Code of Ala. 1975.

If one is forced to commit an act of this nature, he is not to be considered an accomplice. Fuller v. State, 39 Ala.App. 90, 94 So.2d 788 (1957); Mahone v. State, 44 Ala.App. 372, 209 So.2d 435 (1968). The burden of proving the witness to be an accomplice is upon defendant. Fuller, supra. Where one participates willingly as an accomplice in the commission of sodomy, a conviction may not be based on his uncorroborated testimony. However, where he is an unwilling victim, his testimony does not require corroboration to support a conviction if clear and convincing in character. Whether or not the victim is a consenting accomplice is a question for the trier of fact. Fuller, supra. The court accurately and adequately charged the jury in this matter, and it was a question properly before the jury. McKinney testified he had not engaged in such behavior previously; that he acquiesced solely because he feared appellant had a gun in his car at the time of the occurrence. Though appellant’s statement contained evidence to the contrary, this was a question of fact for the jury, and sufficient evidence was presented to support their conclusion.

III

Appellant contends the trial court erred by admitting into evidence a readily separable portion of his written statement which inferred the commission of another offense not connected with the offense tried. The matter objected to appears in appellant’s statement as follows:

“ . . . Then I went to a cow pen but I didn’t do anything with a cow because I couldn’t. Then some cars came up shining lights and it was the law and they brought me to jail.”

These are the last two sentences of appellant’s statement. They appear in the statement after all the matters related to the instant case had been set forth and could have been excised from the statement without affecting those portions pertinent to the offense being tried.

In a criminal prosecution, any proof which tends to show the accused is guilty of other offenses, even though of a similar nature to the one charged, is incompetent and inadmissible for the purpose of showing the commission of the crime under indictment subject to certain well-delineated exceptions. These exceptions as they bear on the accused’s motive, intent, scienter, identity, pattern, system, and nature are discussed in numerous cases. See: McMurtrey v. State, 37 Ala.App. 656, 74 So.2d 528 (1954) and cases cited therein. Thus, even though a confession or inculpa-tory statement in the nature of a confession is voluntary, it does not follow that every feature of such a statement is admissible. If a portion of the confession indicates that the accused has committed other separate offenses, upon proper objection and motion, it should be excluded by the court if its separation is possible, while leaving the remainder intelligible, unless it directly tends to prove defendant’s guilt of the crime charged or his motive or to explain the balance of the confession. Sims v. State, 253 Ala. 666, 46 So.2d 564 (1950); Madison v. State, 40 Ala.App. 62, 109 So.2d 749 (1958).

It could be inferred from the above quoted portion of appellant’s statement that he may have attempted an unnatural act with the cow, but for some unstated reason was unable to do so. Regardless of the inferences which may be drawn from that statement, the trial judge is required to rule on objections on the grounds specified. Specific grounds for objection waive all grounds not specified, and the trial judge will not be put in error on grounds not assigned in an objection. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974); Edgil v. State, 36 Ala.App. 379, 56 So.2d 677 (1952).

In the instant case, counsel for appellant objected to the admission of any of the statement. He did not assert at trial as he does on appeal that the objectionable portion could have been severed. His contention at trial was:

“ . . . You cannot give half a confession and you cannot mark out certain parts of the confession. If it’s given at all, it has to be given completely as I understand the law. It must be admitted on its entirety and on all four corners of it or it must be rejected if any point of it is defective . . . .”

The general rule is that the whole confession is admissible even though it shows the accused committed other crimes if such admissions are inseparably connected with the confession of the crime charged. However, where inadmissible statements in a confession can be easily separated from those relating to the crime charged, only those parts material to the crime charged should be admitted. Madison v. State, 40 Ala.App. 62, 109 So.2d 749 (1958), cert. denied, 268 Ala. 699, 109 So.2d 755. The portion of the appellant’s statement concerning the cow could have been severed, but the trial court was under no duty to do so where counsel objected to such a severance and took the position that the entire statement was inadmissible.

Additionally, we do not find admission of the portion of the statement objected to as constituting reversible error even had the proper specific objection been made. Title 14, § 106, Code of Ala. 1940 [§ 13-1-110, Code of Ala. 1975] is “broad enough in its terms to embrace all unnatural carnal copulations, whether with man or beast.” Woods v. State, 10 Ala.App. 96, 64 So. 508 (1914).

“The statute here questioned only fixes the punishment for crime against nature, a criminal offense recognized as against human morality and to apply to carnal copulation contrary to nature by the common law and anciently. We adopted the England common law. . . . Public and legal history is replete with knowledge of this criminal offense. It is characterized as abominable, detestable, unmentionable, and too disgusting and well known to require other definition or further details or description. . . . ” (Citations omitted) Horn v. State, 49 Ala.App. 489, 273 So.2d 249 (1973).

Appellant’s statement in its entirety shows a pattern of sexual behavior into which the alleged “crime against nature” fits. The latter portion of appellant’s statement concerning the cow has probative value relative to appellant’s intent, motive, and scienter in committing acts constituting the crime against nature. Neither are the acts described in his statement remote in time from one another. Stewart v. State, 38 Ala.App. 365, 84 So.2d 658 (1955), cert. denied, 264 Ala. 699, 84 So.2d 660; Chancellor v. State, 38 Ala.App. 89, 80 So.2d 313 (1954), cert. denied, 262 Ala. 700, 80 So.2d 315.

We distinguish the instant situation from cases where the prosecution attempts to put on proof of other similar but distinct offenses not connected in fact or in time with the offense charged. Parris v. State, 43 Ala.App. 351, 190 So.2d 564 (1966); Dennison v. State, 17 Ala.App. 674, 88 So. 211 (1921). Here the State was not attempting to offer independent evidence by other witnesses that appellant had engaged in other unnatural sexual acts in order to show his disposition, inclination, propensity, or depravity. The question facing us is whether the trial court erred in admitting into evidence the entire confession considering the terms in which the appellant’s objection thereto was framed. We think not.

IV

During the course of the oral charge to the jury, the trial court made the following statement:

“Also in this case the confession or the statement of the defendant has been admitted. With regard to the alleged confession or statement of the defendant, you may consider all of the facts and circumstances surrounding the taking of the alleged confession or statement in determining the weight of credibility, if any, which you are to give the alleged confession or statement.”

At the end of the court’s oral charge, counsel for appellant excepted to the use of the words “confession” or “alleged confession” in the court’s charge.

In the statement in question, the appellant states in no uncertain terms that he offered to pay Kenneth McKinney $20 if McKinney would perform the act of fellatio or sodomy on the appellant. Without using the vulgar language which the appellant used in his statement, we find that appellant’s statement also clearly states that appellant attempted to have anal intercourse with McKinney after McKinney failed to satisfy him in the first unnatural sex act. We find no error in the above quoted portion of the trial court’s oral charge to the jury. The appellant's statement in question is clearly and unequivocally a confession to a crime against nature.

V

During the prosecutor’s closing argument, the following occurred:

“MR. MATTHEWS: And he was arrested in Mr. Walker’s cow pen. Now, that is pretty good indicia of the sexual propensities of the defendant.
“MR. CAIN: Judge, we’re going to object to that. This man is not being tried for that. This is the reason why we objected to the statement in the first place.
“MR. MATTHEWS: Unnatural sex acts and they asked about his naturalness in sex all during the testimony of these witnesses.
“THE COURT: I overrule.”

During the testimony of defense witnesses, counsel for the appellant attempted to show that McKinney was sexually abnormal inferring that he had homosexual tendencies. On the other hand, counsel for appellant attempted to show that the appellant possessed no abnormal sexual propensities.

Counsel for appellant in questioning defense witness Ronnie Barnard asked if McKinney was a “normal American boy;” if he liked girls; if McKinney ever showed a marked affection for boys or attempted to put his hands or arms around other boys; if McKinney had ever “approached” the witness; and whether McKinney was effeminate or feminine in character more than masculine.

During the examination of defense witness James Godfrey, counsel for appellant asked the witness if he had ever known Andrews to be “anything other than a male persuasion . . . interested in women sexually rather than men;” whether the appellant ever “approached” the witness in any way; whether the appellant ever attempted to make any “indecent suggestion” involving a “sexual encounter” with the witness; and whether the witness knew what the appellant’s sexual propensities were during his incarceration since the offense. Counsel for appellant was likewise allowed to question the witness as to whether McKinney displayed more affection toward boys than toward girls.

A prosecutor in argument to the jury may not argue as a fact that which is not in evidence, but he may comment on proper inferences which may be drawn from the evidence and may draw conclusions from the evidence based on his own reasoning. Borden v. State, Ala.Cr.App., 337 So.2d 1388 (1976). In the instant case, the fact of the appellant’s arrest in the cow pen was a matter in evidence. Likewise, the appellant’s statement concerning his arrest in the cow pen was properly in evidence. Counsel for appellant had repeatedly sought to elicit testimony to show the unnatural sexual propensities of the complaining witness and to show that the appellant possessed no unnatural sexual tendencies. Therefore, we deem the comment in question by the prosecutor to be in reply to those issues raised by counsel for appellant in questioning defense witnesses. The prosecutor’s comments were based upon facts in evidence and issues raised by the defense in the trial of the case. The inference drawn in the prosecutor’s argument from the appellant’s arrest in the cow pen is not only reasonable, but in light of the evidence in the case, is also logical.

AFFIRMED.

All the Judges concur.


text:
    Ira James MURRAY v. STATE.
    5 Div. 399.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.

      Cecil M. Tipton, Jr., Opelika, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of robbery and fixed his punishment at imprisonment for twenty years. He was sentenced accordingly.

Notwithstanding the fact that no question is raised on appeal as to the sufficiency of the evidence to support the verdict, we deem it appropriate to comment thereon briefly.

Appellant was definitely and positively identified by Guy B. Hannum and Jody Bonds as the man who came into Chanelo’s Pizza in Auburn, Alabama, on the evening of January 14,1977, pulled a ski mask down over his face with his left hand and with his right hand presented a revolver at Hannum and told him to open the cash register. According to their testimony, Mr. Hannum opened the cash register and another man who was with defendant at the time “came around and put his left hand on the register and took the money.” During all of the time that the other man was taking the money, defendant held the pistol pointed at Hannum. Then defendant took some of the money and he and his companion went out the door with the money and left the scene. Mr. Hannum promptly notified the police, and defendant and his companion were apprehended together about a week later.

Hannum and Bonds were the only witnesses who testified as eyewitnesses to the robbery. Defendant did not take the stand, but his girl friend testified in his behalf to the effect that he was with her from the early part of the evening of January 14 until about 2:00 A.M. of January 15, 1977, which period included more than two hours immediately preceding the time of the robbery and more than two hours immediately following the time of the robbery. She said that they spent most of this time at a night club, that defendant was constantly with her all of the time other than when he was “going backwards and forwards to the bathroom” and on one occasion when he was playing pool for not more than half an hour.

Appellant’s only insistence on error is directed at what occurred during the closing argument to the jury of counsel for the State, as follows:

“MR. MYERS’ CLOSING ARGUMENT: —I’m going to tell you this, and I don’t really need to, it doesn’t make much difference what sentence you place on this individual; it ain’t going to be long ’til he’s going to be right back out—
“MR. TIPTON: Objection, Your Honor. That’s an unfair and prejudicial statement made by the District Attorney as to how long it’s going to be before anyone gets out of prison.
“MR. MYERS: I didn’t say that.
“THE COURT: Well, ladies and gentlemen of the jury, you’re only to consider the evidence in this case and the arguments of both attorneys is just what they submit that the evidence shows. You don’t consider that, their arguments, as evidence. You only consider the evidence in the case and that I’ll tell you about later.”

As the record shows, there was some difference of opinion between trial counsel as to what counsel for the prosecution said. We must take the record as it is and not put words into the mouth of either counsel. If the argument of counsel for the prosecution was to the effect that whatever punishment the jury fixed would be reduced, the argument was highly improper, as the authorities in Alabama, including those hereafter cited, have uniformly held.

A jury should perform its duty both as to the question of guilt and as to the extent of punishment, if within the province of the jury, irrespective of what someone else, including the trial court, appellate courts and all probation, parole and pardoning authorities might do in the future. That is not a matter for the jury to consider. A rule permitting any agency in the administration and execution of justice to knowingly attempt to ease its conscience or evade its responsibility in the assumption that another agency will rectify its failure to perform its separate responsibility would lead inevitably to subversion, irrespective of the good intentions that might at times prompt such action.

In Lee v. State, 265 Ala. 623, 629, 93 So.2d 757, 763 (1957), it was said:

“There is no question but that the argument of the solicitor to the effect that a man sentenced to the penitentiary will at some time become eligible for pardon or parole was improper. . . . ”

The rationale of the principle stated has often been applied in cases in which the prosecution was arguing for the death penalty instead of life imprisonment and in cases in which the state was inveighing against the probable or possible result of a verdict of not guilty by reason of insanity. Eaton v. State, 278 Ala. 224, 177 So.2d 444 (1965) contains references to a number of such cases. In Eaton the argument was in part as follows:

“ ‘A man like this, if he was to get off with life imprisonment, he would be out and around or kill some convict there in the penitentiary.’ ”

The court held:

“The above excerpts show clearly that the argument of the solicitor in this case was highly improper. The trial court, by overruling the objections of defense counsel to the argument, indicated its approval of the statement as being correct. Burch v. State, 32 Ala.App. 529, 29 So.2d 422; McCray v. State, 261 Ala. 275, 74 So.2d 491.
“The only inference to be drawn from the solicitor’s argument in the present ease that, ‘A man like this, if he was to get off with life imprisonment, he would be out and around’ — would be that the accused would either escape the penitentiary, or be paroled. Neither event was for the consideration of the jury.
“The remaining portion of the statement, ‘or kill some convict there in the penitentiary,’ was improper as a statement of a fact not in the record, and further was not susceptible of proof. The probable inflammatory and prejudicial effect of such an argument cannot be denied.”

We find no justification for the argument to which the objection was made in the instant ease. As we view it, the court should have unequivocally sustained defendant’s objection to the argument.

Notwithstanding our view as stated, we are convinced that the court did not commit error prejudicial to defendant. The record shows that defendant’s objection was made before counsel for the State completed the sentence containing the objectionable matter. The objection included the words “of prison,” which the record does not show had been said by State’s counsel. When State’s counsel stated, “I didn’t say that,” an issue was apparently presented to the trial court as to what was said. Under these circumstances, the court should not be put in error for composing the controversy apparently to the satisfaction of both parties, instead of expressly sustaining defendant’s objection to the argument and definitely charging the jury to disregard it. If the instruction given to the jury was not satisfactory, to defendant, he could and should have invoked further action and more definite ex-punction of the offending argument.

Argument in the nature of that under consideration is not so inflammatory and prejudicial that its harmful quality cannot be eradicated. Lee v. State, supra; Cole v. State, Ala.Cr,App., 337 So.2d 40, 46 cert. denied, Ala., 337 So.2d 47 (1976).

We find no error in the record prejudicial to defendant, and 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 hereby

AFFIRMED.

All the Judges concur.


text:
    Timothy Frank DONOVAN v. STATE.
    6 Div. 574.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.

      J. Stephen Salter of Groenendyke & Salter, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Larry R. Newman, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from a conviction of the unlawful possession of marijuana and a two year sentence.

This case was tried before a judge sitting without a jury and the facts were stipulated. On December 30, 1976, officers of the Birmingham Police Department, armed with a search warrant, entered Compartment E-28 at the Lock-it and Pocket Warehouse in Birmingham, Alabama. Inside they found 117.32 pounds of marijuana. This compartment was rented by the appellant who was arrested that same day. In his possession was a key which fit the lock on this compartment.

The only question raised on appeal is the validity of the search warrant which was issued on December 30, 1976, but not returned until April 4 or 5, 1977. The appellant contends that the trial court erred in denying his motion to suppress the fruits of the search where the officers executing the search warrant failed to execute and return the warrant within ten days.

The controlling statute appears in the Code of Alabama 1940, Recompiled 1958 as follows:

“Title 15, Section 111. Warrant returned in ten days, else void. — The warrant must be executed and returned to the magistrate by whom it was issued, within ten days after its date; and after that time, if not executed, it is void.”

The search warrant itself stated that the executing officers “are hereby commanded to make a return of this writ within ten days as required by law".

In Love v. Riddick, 226 Ala. 234, 146 So. 617 (1933), the objection was made that the search warrant was not returned to the Justice of the Peace. The officer executing the warrant testified that he made no return of the warrant and in fact lost it. The court found that “[t]he fact that the warrant was not subsequently returned did not destroy its validity or prevent a justification of the search made thereunder”. The identical code section was in effect at that time. Vol. 2, Section 5482, Code of Alabama 1923.

While there is authority to the contrary, the general rule in this regard is stated in 79 C.J.S. Searches and Seizures § 84, at p. 906:

“While it is the duty of the officers executing a search warrant to make a return thereof in the manner provided by law, as a general rule the failure of an officer to make a return of a search warrant properly issued and served will not invalidate the search warrant, or a search and seizure made thereunder, even where the statute requires the return within a certain time, the return being merely a ministerial act, which may be performed later, at least within a reasonable time.”

In State v. Sherrick, 98 Ariz. 46, 402 P.2d 1, cert. denied, 384 U.S. 1022, 86 S.Ct. 1938, 16 L.Ed.2d 1024 (1965), the Arizona Supreme Court noted:

“One other questionable matter is brought to our attention; that the inventory and return of the warrant was not until approximately sixty days after it was issued and executed. This procedure is claimed to be violative of A.R.S. § 13-1448. While the return should have been made within ten days under that statute, failure to comply in this regard is not fatal, as it was clearly executed within ten days and the statute states: ‘After the expiration of that time, the warrant shall, unless executed, be void.’ ”

The Arizona statute § 13-1448 read:

“A search warrant shall be executed and returned to the magistrate who issued it within ten days after its date. After the expiration of that time, the warrant shall, unless executed, be void.”

See also State v. Tillery, 107 Ariz. 34, 481 P.2d 271, cert. denied, 404 U.S. 847, 92 S.Ct. 151, 30 L.Ed.2d 84 (1971), for this same proposition.

The appellant emphasizes that the title of Section 111 states that “warrant returned in ten days, else void”. He contends that this supports his construction of that section and requires that the warrant be returned within ten days or else it is void. The title at the beginning of each section of the Code is not a part of the section. Ex parte Byrd, 172 Ala. 179, 55 So. 203 (1911); Hatas v. State, 278 Ala. 65, 175 So.2d 759 (1965). Though the title may explain what is doubtful and is an available aid to the removal of ambiguity and uncertainty in the enacting clause, it cannot control or contradict what is contained in the body of the section or act. Bartlett v. Morris, 9 Port. 266 (1839); Hamrick v. Thompson, 276 Ala. 605, 165 So.2d 386 (1964). Section 111 clearly states that if a warrant is not executed within ten days after its date of issuance it is void. Though it also states that the warrant must be executed and returned within ten days it does not provide for the invalidation of the warrant upon its failure to be returned.

The appellant has shown no prejudice by the failure to return the warrant within ten days. There is no dispute over the location, identification, or quantity of the marijuana seized. The legality and propriety of the search and seizure have not been contested except for the failure to return the warrant. There is no contention of impropriety in either the actual search or seizure. The record and assertions of the appellant support nothing more than a finding that the failure to return the warrant was due to the inadvertence or forgetfulness of one police officer. No willful or deliberate conduct has been alleged in this regard.

The appellant contends that to excuse the omission in this case will be to encourage poor law enforcement techniques, dilute the effective administration and constitutionally secured scheme for the administration of search warrants, and promote disregard for judicial orders in the implementation of procedural safeguards. The failure to return the warrant was due to inadvertence. No actual police misconduct is charged. It has not been alleged that the state gained any advantage or that the appellant was in any manner disadvantaged by the failure of return within ten days. The particular conduct in this case is not that which is amenable by judicial decree or warrants the relief sought.

Therefore we hold that the failure to execute and return a warrant within ten days does not invalidate the search and seizure or render inadmissible into evidence the fruits seized under that warrant which was executed within the ten-day period after its issuance as required by Title 15, Section 111, Code 1940 (now Section 15-5-12, Code 1975). We have searched the record for error and, finding none, affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.

      . On October 31, 1977, Section 111 became Section 15-5-12, Code of Alabama 1975 which is as follows:
      “§ 15-5-12, Warrant to be executed and returned within 10 days. — A search warrant must be executed and returned to the judge or the magistrate by whom it was issued within 10 days after its date; if not executed after such, it is void.”


author: TYSON, Judge.

text:
    Richard WILLIAMS, alias Sallahuddin Abdul Taib v. STATE.
    6 Div. 676.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Darryl C. Hardin of Hardin & Gordon, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with the robbery of Banks Sims by taking some $350.00 from his person by putting him in fear, etc. This indictment also charged the appellant in separate counts with assault with intent upon one Banks Sims, a law enforcement officer with the City of Tuscaloosa, and, further, in a still different count, with the robbery of Warehouse Grocery of Tuscaloosa, Inc.

The jury found the appellant guilty of robbery as charged and fixed punishment at ninety-nine years and one day imprisonment in the penitentiary. The trial court then set sentence in accordance with this verdict.

This is a companion case to that of Moseley v. State, Ala.Cr.App., 357 So.2d 390 (1978).

The issues asserted for review on appeal in the instant case are the same as those reviewed by this Court in Moseley, supra.

The issues are (1) evidence of another offense, which occurred as the appellant and his companions were fleeing the premises of Warehouse Grocery, and (2) whether or not there was a fatal variance between the indictment and proof as to the ownership of the stolen goods. These were fully discussed in Moseley, supra.

We have carefully examined this record and find no error therein. This cause is affirmed on the authority of Moseley v. State, Ala.Cr.App., 357 So.2d 390 (1978).

AFFIRMED.

All the Judges concur.


text:
    Terry Wayne FLIPPO v. STATE.
    8 Div. 41.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.

      David L. Beuoy, Russellville, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted in the Circuit Court of Franklin County for possession of controlled substances, to-wit: amphetamines and butabarbital. Prior to trial appellant was found to be indigent and the Court appointed counsel to represent him and at arraignment he pleaded not guilty. After sentence was imposed appellant gave notice of appeal and was furnished a free transcript. Trial counsel represents the appellant on this appeal.

The trial jury found appellant guilty as charged in the indictment and declined to assess a fine. The trial court sentenced appellant to forty-two months in the penitentiary and ordered that he be given credit for 175 days he spent in jail awaiting trial.

Appellant was put to trial upon a two-count indictment, which, omitting the formal parts, reads as follows:

“The Grand Jury of said county charge that before the finding of this indictment
“Count I: Terry Wayne Flippo, whose name is unknown to the Grand Jury other than as stated, on February 7, 1977, did knowingly and intentionally possess, furnish, give away, sell, dispense or distribute 54l/2 tablets, the principle (sic) ingredient of which was amphetamine, a controlled substance;
“Count II: The Grand Jury of said county further charge, that before the finding of this indictment, Terry Wayne Flippo, whose name is unknown to the Grand Jury other than as stated, on February 7, 1977, did knowingly and intentionally possess, furnish, give away, sell, dispense or distribute 6 capsules, the principle (sic) ingredient of which was butabarbital, a controlled substance, against the peace and dignity of the State of Alabama.”

The testimony presented by the State clearly proved the allegations of the indictment. Appellant did not testify nor did he offer any evidence in his behalf.

At the conclusion of the State’s case, the appellant moved to exclude the State’s evidence for failure to make a prima facie case. This motion was overruled and this puts us to a recital of the State’s evidence.

Burns Saint, an investigator for the Rus-sellville Police Department, testified that on February 7, 1977, he and Officers Tid-well and Potter executed a warrant for the arrest of appellant. Tidwell made the actual arrest.

Denver Tidwell testified that upon arresting appellant he conducted a pat-down for weapons. While doing this Tidwell felt a hard object in appellant’s right front pants pocket. Tidwell removed a rolled plastic bag containing numerous pills and capsules. This bag, Tidwell testified, was taken to the Department of Toxicology in Florence, Alabama.

Elaine Scott testified that she was a Crime Lab Analyst with the Department of Toxicology in the Florence office. On February 9, 1977, Miss Scott received a plastic bag, containing numerous pills and capsules, from Officer Tidwell. After certain tests, Miss Scott determined that fifty-four and a half pills contained amphetamine; six capsules contained butabarbital.

When this bag was offered into evidence, appellant objected that there had been no identification as to which capsules and pills in the bag contained the controlled substances.

From the record:

“MR. BEUOY: Your Honor, we object to it on the ground the indictment charges two counts, each involving different kinds of drugs and the pills in this package, there are many different kinds, all different kinds of colors and they have not been identified as to which ones fit which drug that the defendant has been accused of possessing.
“THE COURT: Miss Scott, did you examine any different colored pills or capsules out of the package?
“MISS SCOTT: Yes sir.
“THE COURT: Do they all contain the same things?
MISS SCOTT: No sir. The pink tablets in there, the peach colored contain amphetamines and the purple and white contain butabarbitol.
“THE COURT: Are they the only ones in the package that contained any controlled substance?
“MISS SCOTT: They are the only ones I analyzed.
“THE COURT: All right, I overrule.
“MR. BEUOY: We accept.”

Appellant contends that it was highly prejudicial to admit the entire contents of the plastic bag into evidence, since an inference could be drawn that all of the tablets and capsules contained controlled substances. Appellant relies on DeGruy v. State, 56 Ala.App. 521, 323 So.2d 406, certiorari denied 295 Ala. 399, 323 So.2d 411. There, it was held that evidence of five packets of heroin, recovered in a search, was inadmissible as irrelevant and prejudicial in a prosecution for marijuana.

In Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, this Court held that it was not error to admit into evidence marijuana in a prosecution for possession of LSD. These two substances were in a tobacco pouch and the admission of the marijuana was valid as part of the res gestae.

In Brantley v. State, 294 Ala. 344, 317 So.2d 345, the Supreme Court held that other controlled substances were admissible in a prosecution for possession of marijuana to show the “complete story,” and to shed light on the issue of whether the defendant possessed the marijuana with an intent other than for his personal use. Appellant contends that the admission of other controlled substances into evidence in a prosecution for possession of a particular controlled substance is limited to the fact situation of Brantley, supra. He views DeGruy as the controlling authority in this case.

We do not agree. This Court, subsequent to the decision in DeGruy, supra, has applied Brantley, supra, in cases involving a multiplicity of drugs in evidence, for the general proposition that they are admissible as a part of the res gestae and one transaction or occurrence. Napier v. State, Ala.Cr.App., 338 So.2d 463(possession of quaalude, morphine, pantapon, and methamphetamine); Smith v. State, Ala.Cr.App., 351 So.2d 668 (possession of pethidine), certiorari denied, Ala., 351 So.2d 675. In Smith, supra, police recovered a shoe box containing 956 pills, three more bottles of pills in an automobile, and one bottle of pills on a dresser. Only the bottle of pills found on the dresser was identified and all of the pills were admitted into evidence as part of the res gestae. This Court held that such action was expressly approved by the Supreme Court in Brantley, supra. Smith, supra, at 675.

The evidence was sufficient to sustain appellant's conviction. Appellant was caught red-handed in possession of the controlled substances. The trial court did not err in refusing to exclude the State’s evidence, to give the affirmative charge, and denying appellant’s motion for new trial. Parham v. State, Ala.Cr.App., 333 So.2d 912, certiorari denied Ala., 333 So.2d 915.

A review of the record reflects no error injuriously affecting the substantial rights of appellant. The judgment of conviction is affirmed.

AFFIRMED.

AH the Judges concur.


text:
    Tommy CAMP v. STATE.
    8 Div. 48.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.

      Leon Garmon, Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and Samuel J. Clenney, III, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from a guilty plea to an indictment charging the unlawful possession for other than personal use of seven hundred marijuana plants.' The trial court fixed sentence at seven years’ imprisonment.

The appellant contends that his conviction is due to be reversed because the indictment was improper in that the indictment (1) did not state the date of the alleged offense, (2) was returned thirteen months after the appellant had been arrested and posted bond on a charge of possession of marijuana, (3) does not reflect that the appellant was ever served with a copy of the indictment, (4) contains no execution by the sheriff and does not reflect that the appellant was ever arrested and charged, (5) because the appellant was improperly arrested without a warrant or indictment, and (6) because the appellant was denied his constitutional right to a speedy trial.

The record before this court reflects that on August 13, 1976, the appellant obtained an “Appearance Bond In Felony Cases where Defendant arrested before Indictment”. On September 28, 1977, the appellant was arraigned in open court in his own person and with his employed attorney. The indictment was read to the appellant and a plea of not guilty was entered. Trial was set and continued without objection. On the day of trial, November 28, 1977, the appellant withdrew his plea of not guilty and pled guilty to the offense of possession of a controlled substance (marijuana) for other than personal use.

The entry of the guilty plea is in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In a colloquy between the appellant and the trial judge the appellant admitted possession of marijuana, that he had seventy-nine grams, that this case was “the one about the stalks in the field”, that the marijuana growing in the field was the appellant’s, that he had been tending and cultivating it, that he did it for some purpose other than his own personal use, that he knew it was against the law and that he was satisfied with the advice and services of his attorney.

The record also reveals that an agreement regarding punishment existed and the appellant stated that this agreement was in his best interest. The recommendation by the state was that the appellant “be given a seven-year penitentiary sentence in this case and that the remaining cases on the docket be nol prossed and any cases up to this time that are known of by the state will not be prosecuted”.

No other plea was filed to the indictment and the record contains no objection of any type to any matter.

A plea of guilty, if voluntarily and understandingly made, is conclusive as to the guilt of the defendant, admits all facts charged, and waives all nonjurisdictional defects and questions in the prior proceedings against the defendant. Knowles v. State, 280 Ala. 406, 194 So.2d 562, cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967). While a plea of guilty purges the record of error, Hanes v. State, 56 Ala.App. 711 at 713, 325 So.2d 219, cert. denied, 295 Ala. 404, 325 So.2d 221 (1975); Butts v. Alabama, Ala.Cr.App., 346 So.2d 497 (1977), the plea is only an admission of record of the truth of whatever is sufficiently charged in the indictment, and does not prevent a defendant from taking advantage of error or defects apparent of record. Harris v. State, 19 Ala.App. 484, 98 So. 316 (1923); Albright v. State, 50 Ala.App. 480, 280 So.2d 186, cert. denied, 291 Ala. 771, 280 So.2d 191 (1973). However the indictment in this case is not void and does support the conviction.

An indictment need not state the date of the alleged offense. Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976); Section 15-8-30, Code of Alabama 1975.

It is no objection to an indictment that it was returned after the accused was arrested. An indictment is not subject to abatement because another charge is pending against the defendant for the same offense. Tolbert v. State, 28 Ala.App. 209, 181 So. 800, cert. denied, 236 Ala. 221, 181 So. 800 (1938); Howard v. State, 29 Ala.App. 199, 194 So. 853, cert. denied, 239 Ala. 274, 194 So. 857 (1940).

It is also no objection to an indictment that it does not reflect service of a copy upon the defendant or execution by the sheriff. No demand was ever made for a copy of the indictment. At the appellant’s arraignment the indictment was read to him. Before accepting the appellant’s plea of guilty which was received on the date of trial, the indictment was again read to the appellant. The failure to make demand for a copy of the indictment in this case was an effective waiver of the right to such. Shaffer v. State, 202 Ala. 243, 80 So. 81 (1918); Schull v. State, 53 Ala.App. 735, 304 So.2d 239, cert. denied, 293 Ala. 773, 304 So.2d 242 (1974).

Moreover, by pleading guilty to the indictment the appellant waived the objections he now attempts to raise to the indictment. We have previously held that a guilty plea, if voluntarily and understandingly made, waives all nonjurisdictional questions including the legality of an arrest, Vann v. State, 44 Ala.App. 523, 214 So.2d 925 (1968); the validity of a search and seizure, Vann, supra, Adams v. State, 42 Ala.App. 664, 177 So.2d 922 (1964); and any unexplained delay in bringing the accused before a committing magistrate for preliminary examination. Woodard v. State, 42 Ala.App. 552, 171 So.2d 462 (1965). By pleading guilty the accused would also waive his right to a speedy trial.

We have found no error in this record that injuriously affected the substantial rights of the appellant. There is nothing to indicate that the guilty plea was not voluntarily and understandingly made. Therefore the judgment of conviction is affirmed.

AFFIRMED.

All Judges concur.