text:
    Dorothy RIGSBY v. Charles RAY, Jr. and Wife, Willie Mae Ray.
    Civ. 1699.
    Court of Civil Appeals of Alabama.
    Nov. 8, 1978.
    William G. Hamm, Jr., Huntsville, for appellant.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment for restitution of possession of land and damages for wrongful detention. The only issue is whether the trial court erred in admitting into evidence a copy of a deed recorded in the Probate Office of Madison County, Alabama, upon the testimony of the chief clerk of that probate office that the same was a true and complete copy of the record kept under his custody.

Defendant objected to the admission of the attested copy upon the ground of the best evidence rule. His objection was overruled. We affirm. The best evidence rule is not applicable under such circumstances. The copy of a record kept in a public office of the state is to be admitted as legal evidence in any court in the state in accordance with Rule 44(e) ARCP. Finding no error the judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Milton SATTERWHITE, alias v. STATE.
    5 Div. 382.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    Rehearing Denied Jan. 24, 1978.

      David B. Byrne, Jr., and Robert T. Meadows, III, Montgomery, for appellant.
    C. Lawson Little, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Possession of barbiturates in violation of the Alabama Uniform Controlled Substances Act; fifteen years and a fine of $1,000.

Officer Ray W. Plant was a member of the Auburn Police Department in the vice and narcotic division. On May 1, 1975, he obtained a search warrant for a trailer occupied by Anna C. Brookshire and the appellant, Milton Satterwhite. At approximately 2:30 P.M., Plant along with three other officers arrived at the trailer located at 250 Gentilly Trailer Park, Auburn, Alabama. When they arrived there was no car parked near the trailer and the officers waited for about thirty minutes before going to the door. Around 3:00 o’clock, Plant knocked on the door. Miss Brookshire came to the door and he identified himself and showed her the search warrant.

At this point, in the testimony, the trial was recessed on defense counsel’s request and a hearing on appellant’s motion to suppress was conducted outside the presence of the jury. The only witness to testify at the hearing was Officer Ray W. Plant who was on the stand at the time the trial was recessed. Plant had testified that he executed an affidavit to obtain the search warrant and identified that affidavit and search warrant. He stated that the informant who supplied the information was not present at the time the search was conducted. Further, Plant said that he had never seen the appellant prior to the search and that the appellant did not arrive until the search had been completed.

Plant testified that he had called the manager of Gentilly Trailer Park and asked who owned the trailer in question. He was told that the owner was Anna Claire Brook-shire and that she also rented the lot where the trailer was located.

On further questioning, Plant said that he received information from the informant that the appellant and Brookshire both resided in the trailer. He also testified that he was allowed, under the search warrant in question, to search not only the premises, but all persons found on the premises and Miss Brookshire’s automobile.

When Plant saw the appellant, he did not have any drugs on him, but according to Plant “two roaches” (marijuana cigarettes) were found in the ash tray of Miss Brook-shire’s Volkswagen which appellant was driving when he returned to the trailer.

At the conclusion of Plant's testimony, the voir dire hearing was ended and the court, in denying the motion to suppress stated:

“THE COURT: Well, Mr. Nix, the Court has examined the affidavit here and the statement that this officer swore to Judge Lane, who issued this, that he had reason to believe that Anna Claire Brook-shire and Milton Satterwhite lived in the trailer; that he had information furnished to him by a reliable informant; that that information was reliable, in his opinion, because he had given information in the past which led to several arrests on drug charges, and that that informant had seen marijuana in this residence within the past two days, which I believe is plenty recent enough, so I’m going to overrule your objection.
“MR. NIX: Most respectfully except.
“Also, as another ground on the motion to suppress, I would like to object to this evidence on the ground that the description of the premises was not that of the defendant, Milton Satterwhite.
“THE COURT: Overruled and denied on that ground.”

The jury was subsequently returned to the courtroom and the trial proceeded.

Plant resumed his testimony and stated that after handing the search warrant to Miss Brookshire “it appeared she read it.”

According to Plant, the officers searched the inside of the trailer and the area surrounding it. He recalled that the mobile home had two doors and, on entering the door that would normally be used, one would enter the living room area with the kitchen being immediately to the right.

Plant testified that in the living room the officers found a roach holder which he explained was a small instrument used for holding marijuana cigarettes in order to prevent burns to the fingers. In the kitchen area they found two pipes with marijuana residue and a bottle containing marijuana seeds. Two or three other roach holders were found in the back bedroom. Also in the back bedroom men and women’s clothing were found as well as men’s shoes and “there were men’s dirty clothing laying in the floor.”

Plant said that the search of the trailer’s interior revealed a total of five roach holders containing residue, two sets of scales, one cigarette roller and a bottle containing marijuana seeds. He testified that in a search of the exterior of the trailer, a plastic bag containing marijuana seeds and a tobacco pouch were found in one of several hollow concrete blocks being used as steps to one of the trailer doors. Inside the tobacco pouch the officers found “a small quantity of marijuana and a small plastic bottle.” The bottle held a plastic bag which “contained a quantity of hash in it and in the bottom of the bottle was a variety of pills.”

According to Plant, all of the items were returned to the original containers and, before being sent to the State toxicology lab in Auburn, they were locked in an office safe. The following morning, May 2nd, they were sealed in individual envelopes and given to Officer Billy Gene Holden who carried them to the lab.

The officers also seized several pieces of mail addressed to the appellant at the trailer park address. One was a letter bearing a return address of the Auburn-Opelika Elks Lodge, with a postmark of January 23, 1975. The other two pieces of mail were copies of the newspaper, “Plain Truth,” addressed to the appellant at the trailer address. These items bore a postscript of April 5, 1975 and April 19, 1975.

Plant testified that around 4:00 P.M. following the search of the trailer and surrounding area, the appellant drove up in Miss Brookshire’s Volkswagen. When Sat-terwhite walked up Plant asked, “Are you not Milton Satterwhite?” According to Plant, Satterwhite replied that he was not. Plant identified himself as a police officer and again asked the appellant if he was Milton A. Satterwhite and again he gave a negative answer, “No, sir.”

Officer Alex Smith, who was inside the trailer, looked out the front door, recognized the appellant, and said: “Hey, Milton.” Following Smith’s identification of the appellant as Milton Satterwhite, Plant “placed him under arrest and read him his rights.” On further questioning, Plant said that it was Officer Bill G. Holden who searched Miss Brookshire’s Volkswagen.

On cross-examination, Plant testified that the search of the premises occurred over a period of an hour and appellant was not present during this time. Further, Plant said that the paraphernalia found in the concrete blocks was visible if an individual was positioned at a right angle “looking up in the block” as opposed to “just standing facing the block.”

Officer Plant testified that no attempt was made to lift fingerprints in the trailer or on the items recovered during the search.

Plant said that trousers found in the back bedroom of the trailer were the type that could be worn any season of the year, but said he did not check the size of the clothing or ask who owned them. During further cross-examination, Plant testified that he was aware that Milton Satterwhite once resided in Wedowee, Alabama, but was not familiar with any place of residence that the defendant had in Lee County other than “250 Gentilly Trailer Park.” He also said he was not aware of any move that the defendant was engaged in that would require him to store his clothes at the trailer.

According to Plant, he did not see the appellant place the drugs on the premises around the trailer nor did he know of any facts that would indicate that he did so. Further, he said that he had no information to show that the periodicals and letter mailed to the defendant were actually received by him, other than the fact that they were addressed to the defendant and the letter had been opened.

Alex Smith was an undercover officer with the vice and narcotics division of the Auburn Police Department. On May 1, 1975, he, along with Lt. Winfree, Bill Holden and Sgt. Bishop accompanied Plant to the trailer park where the search was conducted.

Smith testified that when the defendant arrived he and Sgt. Bishop were standing in the doorway of the trailer and Plant was outside. According to Smith, Plant asked the appellant if he was Milton Satterwhite and the response was, “No.” Smith said at that time he was looking out the doorway which was partially open, and, when the appellant denied that he was Milton Satter-white again, he (Smith) stepped out of the trailer and said, “Hi Milton,” and the appellant said, “Oh, Alex.”

Smith stated that he had known Milton Satterwhite prior to this occasion having met him initially around the middle of March, 1974. He went on to say that he had never seen the appellant in the trailer until the day of the search. On cross-examination he said that he had received information from an informant that Satterwhite lived there. Smith acknowledged that he did not see the appellant place any drugs in the trailer.

Officer Billy Gene Holden was another officer who had gone to search the trailer on May 1, 1975. He testified that he did not assist in the search but was parked approximately 100 yards from the trailer. According to Holden, when the defendant drove up to the trailer, he and Lt. Winfree drove to the Volkswagen the appellant had been driving and searched it. They found several packages and boxes inside the car, and in the glove compartment found a match box containing “a roach and some marijuana seeds.” Further Holden said they found several cigarette lighters, pen and pencil sets, and three or four leather tobacco pouches similar to the one that Officer Plant had found in the cement block.

Holden testified that on May 2, 1975, Plant gave him two sealed brown envelopes and that he drove straight to the toxicology lab where he turned them over to Dr. Taylor Noggle.

Dr. Taylor Noggle, a State toxicologist, testified that on May 2,1975, Lt. Winfree of the Auburn Police Department gave him several sealed manila envelopes. One envelope contained two clear-shaped standard gelatin capsules in which a laboratory analysis revealed the presence of pentobarbital and carbromal. In the other envelope there were four white circular unmarked tablets which after analysis showed a presence of phenobarbital.

At the conclusion of Noggle’s testimony, the State rested its case. At that point the jury was excused from the courtroom and defense counsel made a motion to exclude the State’s evidence on the grounds that the State had failed to make out a prima facie case. After a hearing, the court stated:

“The Court’s of the opinion that there is more than sufficient evidence to go to the jury on the question of whether or not he was in possession of the premises there. I feel that there is a jury question. “I further feel that whether or not he was in control of these particular drugs found there in the location that the evidence showed, that is out there underneath the steps there in the concrete block, would also be a jury question as to whether or not he knew and was conscious of the fact that those drugs were there and therefore, whether he was in possession of them, constructive possession, and for that reason the Court is going to overrule your motion to exclude the State’s evidence.”

The jury was returned to the courtroom and Ralph Moon was called to testify on the appellant’s behalf. Moon stated that he knew the appellant, Milton Satterwhite, and that 'he lived between Roanoke and Wedowee in Randolph County, Alabama. He testified that Satterwhit.e had lived in this particular place for approximately one year and that he had seen Satterwhite around the house “quite a few times.”

During cross-examination, Moon said that he had visited in the appellant’s home in Randolph County about eight or ten times, the last time being approximately two months before the trial. According to Moon, Satterwhite was at the house and appeared to be living there alone.

Carey Orr and his father ran a bike shop in Roanoke, Alabama. Orr testified that he knew the appellant and that Satterwhite lived “about half-way between Roanoke and Wedowee; about four miles outside of Roanoke.” During cross-examination, Orr said that the appellant was in the contracting-painting business and that the last time he talked to him was about a month prior to the trial.

Orr said that he had been to the appellant’s house near Roanoke several times, both during the day and night.

Robert Bailey lived near Roanoke, Alabama in Randolph County and testified that he knew the appellant, Milton Satterwhite. He stated that the appellant lived about half-way between Roanoke and Wedowee and on Thursday, May 1, 1975, he was with the appellant. Bailey explained that on Wednesday afternoon, April 30th, he had taken the appellant to the trailer at 250 Gentilly Trailer Park. During cross-examination, Bailey testified that he left Satter-white at the trailer and that Satterwhite told him “he was coming home that Thursday.”

During questioning by the court, Bailey stated that he had been to the trailer approximately once or twice to see Anna Claire Brookshire and that the appellant was there on one of these occasions.

At the conclusion of Bailey’s testimony, the defense rested its case and no further evidence was presented.

I

Appellant asserts that his motion to suppress evidence seized by the State under warrant should have been granted for the following reasons.

A

The affidavit in support of the search warrant does not aver sufficient probable cause to support the issuance of a search warrant for the premises located at 250 Gentilly Park and for Anna Claire Brook-shire’s automobile.

B

The language of the search warrant authorized a general exploratory search.

c

The search extended beyond the items listed to be seized.

D

The return in this case was faulty because it did not list all of the items seized in the search.

E

The trial court was in error when it prevented the appellant’s inquiry into the face of sufficiency of the underlying affidavit.

Our discussion of the foregoing will follow in the order of their appearance.

The supporting affidavit in question contains the following allegation:

“ . . . . That the informant has seen marihuana in the above described residence within the past two days and said informant has also seen a quantity of marihuana seeds being germinated within the above described residence. That the informant has given information in the past which has led to arrest and convictions on drubs [sic] and said informant’s information has always proven true, and correct and reliable."

The Supreme Court of the United States said in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, that a neutral and detached magistrate must draw inferences from the underlying circumstances that would indicate to him that the narcotics are where they are claimed to be and that the informant’s information is reliable. The court in Aguilar, supra set up a two pronged test by saying:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, . . . the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informer, . was ‘credible’ or his information ‘reliable.’ ”

In our present case, the appellant complains that the affidavit was inadequate under the Aguilar standards. He argues that the affidavit failed to state any evidence, other than hearsay, that would justify a conclusion that the subject of the search (marijuana) was where the affiant said it was (250 Gentilly Trailer Park).

In Davis v. State, 286 Ala. 117, 237 So.2d 640, the Supreme Court held that Aguilar, supra, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, did not require “anything more than a showing of circumstances necessary to enable the magistrate to determine the validity of the informant’s conclusion that the narcotics are where he says they are. This may be an independent corroborative observation of the officers themselves or it may be from information reviewed from the informer himself.”

Hearsay information in an affidavit need not be independently corroborated if there is a substantial basis for crediting the hearsay. Moore v. State, Ala.Cr.App., 340 So.2d 882.

In the present case, the affidavit alleges that the informant saw marijuana and marijuana seeds being germinated on the premises at 250 Gentilly Trailer Park. A similar statement was held sufficient in Neugent v. State, Ala.Cr.App., 340 So.2d 55. Thus, the affidavit in question measured up to the first prong of the Aguilar test.

The appellant further argues that the affidavit did not measure up to the second prong of the Aguilar test because it failed to set forth facts which demonstrated the reliability of the informant. He proposes that the statement, “the informer has given information in the past which has led to arrest and convictions on drugs and said informant’s information has always proven true, and correct, and reliable,” amounts to nothing more than a conclusion of reliability.

The Supreme Court in State, ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640, held that an affiant’s conclusory statement that the informant’s record of reliability for correctness has been good satisfied the informer’s veracity test under Aguilar, supra and Clenney v. State, 281 Ala. 9, 198 So.2d 293. Here the statement goes beyond a mere conclusion of reliability and alleges that the informant’s information has led to arrests and convictions. These were facts capable of proof which go to aid a magistrate in making an independent determination that the informant was “credible” or that his information was “reliable.”

In our judgment, the affidavit adequately demonstrated the basis of the officer’s conclusion that the informant was reliable, and was therefore sufficient to satisfy the veracity prong of the Aguilar test.

B

The appellant insists that the very language of the search warrant authorized a general exploratory search which is forbidden by federal and state courts alike. He argues that a close reading of the affidavit and the search warrant justifies the conclusion that the search was nothing more than a general exploratory search under the test set out in Peavy v. State, Ala.Cr.App., 336 So.2d 199.

The search warrant in Peavy, supra, in pertinent part, reads:

“You are therefore commanded, in the day time, or night, to make immediate search on the person of each and every person present in or near said mobile home and any motor vehicle adjacent to said mobile home for the following property.”

In Peavy v. State, supra, this court held that the pertinent part of the search warrant recited above was a complete departure from the affidavit and that by its very language it was a “dragnet instrument” which authorized a general exploratory search.

In the present case, the search warrant in pertinent part reads:

“You are hereby commanded to make immediate search on the person and premises of Anna Claire Brookshire, alias and Milton Satterwhite, alias, at # 250 Gentilly Park located on Webster Road and said residence occupied by said Anna Claire Brookshire, alias and Milton Sat-terwhite, alias. Said search to be conducted during the daylight hours and said search to include all persons on said premises and Anna Claire Brookshire’s automobile for the following property Cannabis Sativa L., Cannabis Americana, Cannabis Indica, Marijuana, or any other compound or mixture thereof, or any other illegal substance as described under the provisions of the Alabama Uniform Controlled Substances Act.” [Emphasis added].

The search warrant comports with the Fourth Amendment requirement that a warrant particularly describe the place to be searched and the persons or things to be seized.

In the case at bar we do not have a complete departure from the affidavit as appeared in the affidavit and search warrant in Peavy v. State, supra. The pertinent part of the affidavit recited in the foregoing paragraphs shows that the search warrant followed the language in the affidavit. The departure noted in Peavy v. State does not appear in the case at bar.

The search warrant in question authorized a search of specific persons, a specific place, a specific automobile, and designated the specific items to be seized. The search warrant directed the officers to seize “Cannabis Sativa L., Cannabis Americana, Cannabis Indica, Marijuana, or any other compound or mixture thereof, or any other illegal substance as described under the provisions of the Alabama Uniform Controlled Substances Act.”

The foregoing directive which appeared in the search warrant is more limited than the one condemned in Peavy v. State, supra. Unlike the directive in Peavy, it specifies only those controlled substances, possession of which is prohibited by the Alabama Uniform Controlled Substances Act. It does not have the impermissibly broad language appearing in Peavy, supra, where the police officers were directed to seize “any controlled substance prohibited by the laws of the State of Alabama.” We conclude therefore that the seizure of the barbiturates did not come about as a result of a general exploratory search.

C

The appellant declares that the seizure of three pieces of mail addressed to Milton H. Satterwhite, was the product of a search which extended beyond the items listed to be seized. He claims it was an indiscriminate seizure which violated the very command of the issuing magistrate who directed a search for a specific item (marijuana).

The mail taken, a letter and two newspapers, constituted mere evidence. Generally, property may be seized if there is a nexus between it and the criminal behavior. Also, if an item seized falls within the fruits—instrumentality—contraband category, the nexus automatically exists. However, where the object seized is mere evidence, the test is whether the officer had probable cause to believe that the evidence sought will aid in the particular apprehension or conviction. Warden Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782.

Whether the requisite nexus exists can be determined by the formulation used by the Supreme Court of Alaska. There the court said:

“[A]n officer may seize evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the searching officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the authorized perimeters of the search warrant.” Bell v. State, Alaska, 482 P.2d 854.

In the case at bar, the appellant’s mail was seized in order to establish his connection with the trailer park premises. The address on Satterwhite’s mail was the only direct evidence which linked him to Miss Brookshire’s trailer. This evidence tended to show Satterwhite’s occupancy of the trailer and had a direct bearing on the question of his possession of the pills found there. Therefore, we conclude that the items of mail which were not particularly described in the search warrant, although “mere evidence,” were subject to seizure under a valid search warrant as long as there was a nexus between the items seized and criminal behavior charged. The searching officers in this case, at the time of seizure, had a reasonable basis for believing such a connection existed. See People v. Piwtorak, Colo., 484 P.2d 1227; State v. Hamilton, Iowa, 236 N.W.2d 325.

D

It is also alleged that the return in this case was fatal because it did not list certain items seized by the State in the search of the residence.

The defect deemed fatal by the appellant is not “constitutionally significant” under Cady v. Dombrowsky, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706, and is not a defect that will require suppression of the evidence. As was pointed out by the Supreme court of Wisconsin in State v. Meier, 60 Wis.2d 452, 210 N.W.2d 685, the requirements concerning the return of a search warrant serve as a valuable safeguard of the property rights of individuals. However, the privacy of the individual, which is what the Fourth Amendment protects, has already been invaded by the time the return statute becomes relevant. Therefore, we conclude that the failure to make a return of the search warrant did not affect the validity of the warrant or of the search because the making of the return was not part of the search and seizure, but part of the ministerial procedures of a search warrant. See Nofs v. State, Fla.App., 295 So.2d 308; State v. Calvert, Tenn., 410 S.W.2d 907; Pecina v. State, Tex.Cr.App., 516 S.W.2d 401.

E

The appellant maintains that the trial court’s refusal to allow inquiry into the supporting affidavit to the search warrant, on thé ground that the affidavit on its face showed sufficient probable cause for issuance, was error. Counsel insists that disallowing cross-examination of the affiant-police officer concerning the identity of the informer and the facts demonstrating his credibility, was not only a denial of due process but was a denial of an opportunity to elicit evidence which may have resulted in evidence suppression.

The narrow issue presented is whether or not the accused will be permitted to challenge the truth of the averments in a search warrant’s supporting affidavit.

We have been unable to find any case cited by our appellate courts which have considered this precise question which seems to be one of first impression in this State.

A wide disparity exists among state and federal cases on the treatment of this issue and the results and reasons relied on are divergent to the majority rule as outlined in State v. Harris, 25 N.C.App. 404, 213 S.E.2d 414. There the court said that the majority rule was:

". . . where the search warrant is valid on its face, and the sworn allegations are sufficient to establish probable cause, the defendant may not dispute and attack the allegations, or the credibility of the affiant or his informant, in the voir dire hearing on the defendant’s motion to suppress the evidence seized by law officers pursuant to the search warrant.”

The Court of Appeals of North Carolina held that the policy of the Fourth Amendment to protect unreasonable search and seizure is adequately served by the standards set forth in Aguilar v. Texas, supra and Spinelli v. United States, supra. The court explained that, once a neutral and detached magistrate makes a determination of probable cause, he has judged for himself the persuasiveness “of the facts relied on by the complaining officer,” and such determination should be respected by the reviewing court. Spinelli, supra; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. Further, the court went on to say:

“To permit a defendant to challenge the truth or accuracy of the factual aver-ments of the affidavit or the credibility of the informant or the affiant, would open at trial an issue or issues, therefore judicially determined collateral to that of guilt or innocence.”

The rule adopted by a number of federal circuit courts was enunciated in United States v. Carmichael, 7 Cir., 489 F.2d 983, and is as follows:

“. . . a defendant is entitled to a hearing which delves below the surface of a facially sufficient affidavit if he has made an initial showing of either of the following: (1) any misrepresentation by the government agent of a material fact, or (2) an intentional misrepresentation by the government agent, whether or not material.”

As we have stated, there are many divergent views by states encompassing situations where there are controlling statutes and others where investigation into the supporting facts of an affidavit are allowed under certain conditions. For a more detailed discussion, see State v. Boyd, Iowa, 224 N.W.2d 609.

In our judgment the better rule and the one that should be followed by our State is the one announced in United States v. Carmichael, supra. See North Carolina v. Wrenn, 417 U.S. 973, 94 S.Ct. 3180, 41 L.Ed.2d 1144; McConnell v. State, 48 Ala.App. 523, 266 So.2d 328.

In adopting this rule, we do not mean to be understood to imply that perjury is commonly practiced by this State’s law enforcement officers, but, rather, we recognized that an accused, who makes an initial showing that the truth of the allegations of the supporting affidavit are to be doubted, raises the proposition that the safeguards prescribed by the Fourth Amendment may have failed.

Although we may assume that supporting facts in an affidavit showing probable cause are truthful, United States v. Halsey, D.C., 257 F.Supp. 1002, the function of a neutral and detached magistrate is thwarted when the supporting facts of an affidavit are false. In order to insure the mandates of the Fourth Amendment, an inquiry should be permitted at a suppression hearing where the defendant has made an initial showing of a misrepresentation of a material fact, intentional or unintentional.

In our jurisdiction the State may buttress a deficient affidavit with supplemental testimony by showinjg it was given to the issuing magistrate. Funches v. State, 53 Ala.App. 330, 299 So.2d 771; Oliver v. State, 46 Ala.App. 118, 238 So.2d 916. That the prosecution is not precluded from offering supplemental evidence seems to be the basis for the majority rule that the supporting affidavit of a search warrant is to be tested only by the evidence originally offered to the magistrate.

In the present case the trial court did not err when it refused to permit the defense counsel to go behind what was contained on the face of the search warrant. It is clear from the record that appellant’s cross-examination of the affiant-police officer was used in hopes of finding some means of impeaching the affidavit.

II

The appellant avers that the trial court committed reversible error when it permitted admission of hearsay testimony in the form of State’s exhibits numbered one and two. State’s exhibit one was the affidavit for the search warrant and State’s exhibit two was the search warrant and return issued by the magistrate.

Our search of the record on this point indicated that when the search warrant and affidavit were admitted at trial the following occurred.

“MR. MYERS: Your Honor, at this time, we would offer State’s Exhibit One and Two into evidence.
“THE COURT: Very well.
“MR. NIX: Your Honor, I would like to object for the record.
“THE COURT: Very well. Your objection is most respectfully overruled.
“MR. NIX: Except, Your Honor.”

A general objection to the admissibility of evidence will not suffice to place the trial court in error when it overrules an objection. Small v. State, 348 So.2d 507 (Ala., 1977); Granberry v. Gilbert, 276 Ala. 486, 163 So.2d 641.

In the absence of a specific objection to the admission of this evidence the point of error was not preserved for review.

III

The appellant contends that the trial judge improperly injected himself into the prosecution of a lawsuit by “making prejudicial comments” and conducting biased interrogations throughout the trial. Counsel argues that this was clearly prejudicial.

The defendant maintains that the trial court assumed the role of a prosecutor in the following three instances that occurred in the presence of the jury.

(1) DISTRICT ATTORNEY MR. MEYERS
“Q. All right. What, if anything, did you find on the inside of the trailer and where did you find it?
“A. Could I have the return slip.
“Q. We found two pipes containing residue, which was found in the kitchen area; a small cabinet that you open up. And the two pipes were found there in the kitchen area.
“THE COURT: You say they contained residue?
“THE WITNESS: Yes sir.
“THE COURT: What kind of residue?
“THE WITNESS: Marijuana residue.
“MR. NIX: Your Honor, I object. The defendant is not being charged with the possession of any pipes.
“THE COURT: Well, overruled.
“MR. MEYERS: Your Honor, this is just part of the res gestae.
“MR. NIX: Respectfully except.”
(2) DISTRICT ATTORNEY MR. MEYERS
“Q. Okay. After placing the defendant Satterwhite under arrest, did you have an occasion to search the automobile that he arrived in?
“A. Yes, sir, we did.
“Q. What, if anything, did that search reveal?
“MR. NIX: Objection. Irrelevant.
“THE COURT: Is that the automobile that he drove up in?
“THE WITNESS: Yes, sir, it is.
“MR. MEYERS: Did your search warrant include all automobiles within the curtilage?
“THE WITNESS: It included Anna Claire Brookshire’s automobile, which at the time I asked Miss Brookshire was that her automobile and she said that it was.
“THE COURT: And that’s the automobile that drove up at that time with the defendant in it?
“THE WITNESS: Yes, sir, it is.
“THE COURT: And you searched it with the defendant there present?
“THE WITNESS: Yes, sir, we did.
“THE COURT: Overruled.
“MR. NIX: Respectfully except.”
(3)
“MR. NIX: I have no more questions.
“THE COURT: The address on all of those, — excuse me just a minute—
“THE WITNESS: Yes, sir?
“THE COURT: The address on all of those, the letter and those two papers is the same address as where you made the search; is that correct?
“THE WITNESS: Yes, sir, it is.
“THE COURT: And addressed to him at that address?
“THE WITNESS: Yes, they are.
“THE COURT: And you say that you found those within the trailer, inside the trailer?
“THE WITNESS: Yes, sir, in the bedroom in the trailer.
“THE COURT: That’s all.
“MR. MEYERS: That’s all.”

This court in Brandes v. State, 17 Ala.App. 390, 85 So. 824, stated:

“The unquestioned province of the court — in fact, the solemn and sacred duty of a trial judge — is the development and establishment of the truth, and in this connection it is always permissible for the court, and if it appears necessary for him to do so it is his duty, to propound to witnesses such question as it is deemed necessary to elicit any relevant and material evidence, without regard to its effect, whether beneficial to the one party or the other. Beal v. State, 138 Ala. 94, 35 So. 58. In fact, it is a sacred duty of a judge, both in civil and criminal eases, to give strict attention to the evidence, and to all facts and incidents attendant upon the trial, to propound questions to witnesses if in his judgment he deems it necessary, and to supervise and control the proceedings before him with a view that justice may not miscarry.”

We have carefully examined the entire record and have particularly noted those instances cited to us by the appellant. From this review we have found nothing to indicate that the trial judge transcended his authority or abused his discretion.

IV

The appellant next complains that the trial court erred in permitting testimony connecting him with a crime and misconduct different from that with which he was charged. The evidence complained of came during testimony of the police officers who stated they seized marijuana and paraphernalia containing marijuana residue. Under Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, these items of evidence were properly admitted under the res gestae exception to the rule that evidence of another criminal act is inadmissible. See Lackey v. State, 41 Ala.App. 46, 123 So.2d 186. Further, the marijuana seeds, marijuana and hashish, found on top of the barbiturates in the plastic bag, were admissible as part of the same transaction. Morrow v. State, supra. Also, the testimony concerning the seizure of the paraphernalia, the other marijuana seeds and the roaches (marijuana cigarettes) was also admissible under Brantley v. State, 294 Ala. 344, 317 So.2d 345; Lackey v. State, supra.

It is further argued that it was error for the trial court to allow a police officer to testify that he had on a prior occasion bought marijuana from the appellant. This testimony came after the defense counsel had made inquiry on cross-examination of the police officer’s knowledge of the defendant.

In our judgment no error was committed by the trial court in permitting the State on re-direct to go into the matter of the police officers’ knowledge of the defendant. It was the defense counsel who initiated inquiry into the matter. We also note that the court on two separate occasions gave the jury cautioning instructions concerning testimony regarding prior offenses and also made cautionary remarks concerning other offenses during the court’s oral charge.

Under these circumstances it is our judgment that the testimony of the police officers, which was admitted without objection, was not error.

V

Appellant submits that the evidence was insufficient to show- constructive possession or knowledge of the presence of the barbiturates.

The offense of possession of barbiturates may be jointly committed. Green v. State, 30 Ala.App. 94, 2 So.2d 324. Also the accused’s guilt does not depend upon proof that he has ownership of the barbiturates. Womack v. State, 34 Ala.App. 487, 41 So.2d 429. Further if evidence is presented from which the jury is convinced beyond a reasonable doubt and to a moral certainty that the accused was in constructive possession of the barbiturates and knew of their presence then this would be sufficient to sustain a conviction. Womack v. State, supra. Such guilty knowledge and constructive possession may be established by circumstantial evidence. Thomas v. State, 37 Ala.App. 179, 66 So.2d 189; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169. See also Parks v. State, 46 Ala.App. 722, 248 So.2d 761.

The proof presented by the State' was recounted when the trial judge denied the appellant’s motion to exclude the State’s evidence:

From the record:
“. . . .In this particular case here, the evidence shows that through your cross-examination of the officers, there was evidence to the fact that they had received information from informants that the defendant lived there; that on this particular occasion, that they came there and they found the mail there on the inside of the trailer which was addressed to him at that address. They found marijuana seeds within the bedroom there where they found both his letters and men’s clothing, as well as women’s clothing, and these seeds, the marijuana seeds, were also found in the step right outside of the doorway there with the barbiturates that they found. “The defendant, himself, appeared there while the search was in progress. He gave — when asked if he was Milton Sat-terwhite, he denied it and I would like to point out the recent case of Cobb v. State, [50] Ala.App. [707], 282 So.2d 327, which is a case where the accused gave a false name and in that particular case there, they held that the giving of a false name is evidence for the jury to consider as touching on the — well, I’ll read it. It said, ‘The accused giving a false name to the police at the time of arrest is circumstances which may be properly weighed by the jury, along with the other evidence as indicating consciousness of a guilt or to show wish or desire to escape detention.’ In this particular case without contradiction here, he said that he wasn’t Milton Satterwhite, when in effect the evidence shows that he was.
“And in addition to that, there was evidence that he was driving an automobile, came there in an automobile owned or, according to the evidence, owned by Miss Brookshire, who was also alleged to be an owner or occupier of the residence.
“And the Court’s of the opinion that there is more than sufficient evidence to go to the jury on the question of whether or not he was in possession of the premises there. I feel that that is a jury question.
“I further feel that whether or not he was in control of these particular drugs found there in the location that the evidence showed, that is out there underneath the steps there in the concrete block, would also be a jury question as to whether or not he knew and was conscious of the fact that those drugs were there and therefore, whether he was in possession of them, constructive possession, and for that reason the Court is going to overrule your motion to exclude the State’s evidence.”

Under the authority cited above and after a review of the evidence pointed out by the court in its foregoing order, we are of the opinion that the evidence was sufficient to establish constructive possession. Further the trial court was correct in submitting the question to the jury.

VI

Finally, the appellant states that the sentence was improperly imposed by the trial judge because in sentencing the appellant, the court considered three prior convictions which were on appeal at the time. Counsel argued that the court’s reliance on these convictions in assessing a sentence mandates that the case be remanded to the circuit court of Lee County under the authority of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592.

In Tucker, supra, the Supreme Court of the United States remanded a case for reconsideration of the sentence where the trial judge in a federal district court gave explicit consideration to three previous felony convictions before imposing sentence on the defendant. Two of the three prior convictions were constitutionally invalid because the accused did not have counsel at time of the trial. The court said that if the trial judge had knowledge of the constitutional infirmity the sentence might have been different and the case should be remanded.

In our judgment, United States v. Tucker, supra, is not applicable because the three previous convictions in this case were not unconstitutionally obtained. The opinion of this court in the three previous Satterwhite convictions, of which we take judicial notice, shows clearly that at the time of the three prior convictions in Randolph County, the appellant, Milton A. Satterwhite, was represented by counsel. Further, we also note that the reversals of those three cases are on appeal in the Alabama Supreme Court and that such reversals were based on the ground of a conflict of interest by one of the attorneys prosecuting the case. The opinion showed that the appellant, Milton A. Satterwhite, prior to the three convictions, had consulted an attorney who was later a member of the prosecuting team who tried those cases.

On the basis of the foregoing, we are of the opinion that United States v. Tucker, supra, is not controlling and a remand is not appropriate under the facts. In the words of Mr. Justice Blackmun, in a dissenting opinion in United States v. Tucker, supra, wrote:

“. that this is an exercise in futility, that the Court is merely marching up the hill only to march right down again, and that it is time we become just a little realistic in the face of a record such as this one.”

We have read and examined the record and find no error.

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice. MADDOX, Justice

text:
    In re Milton SATTERWHITE v. STATE of Alabama. Ex parte Milton Satterwhite.
    77-315.
    Supreme Court of Alabama.
    Sept. 15, 1978.
    Rehearing Denied Nov. 10, 1978.
    David B. Byrne, Jr., and Robert T. Meadows, III, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, respondent.
   TORBERT, Chief Justice.

Milton Satterwhite was convicted in Lee County Circuit Court of possession of barbiturates, fined $1,000 and sentenced to fifteen years imprisonment. Certiorari was granted by this court to review the decision of the Court of Criminal Appeals affirming Satterwhite’s conviction. We reverse that judgment and remand the cause to the appeals court.

A full statement of the facts is set forth in the opinion of the Court of Criminal Appeals. Briefly, the pertinent facts are these. On May 1, 1975 officers of the Auburn Police Department searched a trailer allegedly occupied by Anna C. Brookshire and Satterwhite. The search warrant obtained by the officers was based upon information supplied by a “reliable informant” and allowed the officers to search not only the premises, but all persons found on the premises and Miss Brookshire’s automobile.

The officers searched the inside of the trailer and the area surrounding it, finding paraphernalia often associated with the use of marijuana, a bottle containing marijuana seeds, a plastic bag containing a small amount of marijuana, and a plastic bottle containing a quantity of hashish and a variety of pills which were later found to contain phenobarbital. Several pieces of mail addressed to Satterwhite at the trailer park address were also seized.

Miss Brookshire was present during the search. Satterwhite did not arrive at the trailer until after the search had been completed. No drugs were found on his person.

At trial, during the examination of the state’s first witness, Officer Ray W. Plant, the jury was excused by the trial court for the purpose of hearing Satterwhite’s motion to suppress the evidence obtained by virtue of the search warrant. When the jury returned, the District Attorney offered the affidavit for the search warrant, the search warrant and the return issued by the magistrate. Satterwhite’s counsel interposed a general objection to the introduction of these papers. The trial court overruled the objection and the evidence was admitted.

On appeal to the Court of Criminal Appeals, Satterwhite argued that the admission into evidence of the above listed papers constituted reversible error because the affidavit in support of the search warrant contained inadmissible hearsay allegations of an informant. The Court of Criminal Appeals decided to the contrary, stating that in the absence of a specific objection to the admissibility of this evidence, the point of error was not preserved for review. We do not agree with this conclusion.

Although it is generally recognized that a specific objection to evidence offered is a condition precedent to appellate review, a general objection is sufficient to predicate error on appeal if the evidentiary matter to which it was addressed is patently inadmissible. McElroy’s Alabama Evidence § 426.01(7) — (10) at 797-802 (3d 1977). Stated differently, a general objection to admission of evidence should be sustained if the evidence is illegal for any purpose and cannot be made legal by introducing other evidence or by otherwise framing the in-qüiry. Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966); Tanner v. State, 259 Ala. 306, 66 So.2d 836 (1953); Helms v. State, 34 Ala.App. 82, 37 So.2d 229 (1948). Thus, Satterwhite’s general objection to the introduction of the affidavit, search warrant and return in the present case is sufficient against admission of these papers if this evidence is patently illegal and cannot be made legal.

Where there is no dispute about the facts, we may examine the record for a more complete understanding of those features of the record treated in the opinion of the Court of Criminal Appeals. Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974); Nixon v. State, 291 Ala. 657, 286 So.2d 315 (1973); Griffin v. State, 287 Ala. 574, 253 So.2d 340 (1971).

A thorough examination of the record shows that defense counsel in no way inquired into the sufficiency of the affidavit and search warrant in the presence of the jury. Nevertheless, the District Attorney offered the affidavit, search warrant and return into evidence.

A review of the affidavit and search warrant shows that these papers set forth information received by the affiant police officer from his informant concerning the informant’s observations of drug related activities which occurred at the Brookshire trailer. Hearsay information may serve as a basis for an affidavit, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and may be used to determine probable cause for issuance of the search warrant. See, e. g., Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). However, it may not be uséd as primary evidence to establish guilt during the trial.

In Reeder v. State, 294 Ala. 260, 314 So.2d 853 (1975), this court stated the following concerning admissibility of hearsay evidence of an informant as contrasted with admissibility of hearsay evidence to establish probable cause for issuance of a search warrant:

“It should be noted that the only evidence of sale of marihuana was rank hearsay of an unidentified informant. It is proper to consider this type of evidence from a proven reliable source in determining probable cause to search. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). But this evidence is inadmissible at trial to prove a fact in issue.”

Id. at 265, 314 So.2d at 857.

Applying these principles to the present appeal, it is clear that, although the hearsay allegations of the informant contained in the affidavit in support of the search warrant could have been considered by the trial court in determining probable cause for the search of Brookshire’s residence, such information had no place in the trial itself. This document was illegal evidence placed before the jury whose duty it was to decide the ultimate issue of Satterwhite’s guilt or innocence, not to determine probable cause for the search.

We find that the affidavit and search warrant were not admissible at trial to prove a fact in issue, that the general objection was therefore sufficient and that the trial court’s allowance of these papers into evidence before the jury constitutes reversible error. Accordingly, the holding of the Court of Criminal Appeals on this issue is erroneous and the cause is reversed and remanded.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, JONES, ALMON and SHORES, JJ., concur.

MADDOX, J., dissents.

EMBRY, J., not sitting.

BEATTY, J., recuses himself.

MADDOX, Justice

(dissenting).

The majority finds that the affidavit and search warrant and return were “not admissible at trial to prove a fact in issue.” Nevertheless, the majority concedes that the affidavit contained information that drug related activities were occurring at the Brookshire trailer. The sheriff’s return confirmed it. Admittedly, all this information was hearsay, but it was certainly not patently inadmissible, as the majority finds, because it was highly relevant to Satter-white’s guilt. In Small v. State, Ala.Cr.App., 348 So.2d 507, this Court stated:

“The reversal of that conviction was based upon the conclusion of that unanimous court that the testimony of a police officer, pertaining to information furnished him through a telephone conversation with an informant, was inadmissible hearsay which could not be considered as evidence in the trial itself. We granted the writ to determine whether the Court of Criminal Appeals had followed the rules of Granberry v. Gilbert, 276 Ala. 486, 163 So.2d 641 (1964) and Langford v. State, 54 Ala.App. 659, 312 So.2d 65 (1975) which held that the general objection is insufficient to place the trial court in error when it overrules that objection.
“The opinion of the Court of Criminal Appeals treated the allegations of the informant, as recited by the police officer, as rank hearsay, admissible in determining probable cause but inadmissible in the trial. But hearsay evidence is not inherently inadmissible unless it is patently inadmissible for any purpose, Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966); U. S. v. Costello, 221 F.2d 668 (2nd Cir. 1955); Granberry v. Gilbert, supra.

In Small, this Court affirmed the judgment because a specific objection was being made in that case.

In Neugent v. State, Ala.Cr.App., 340 So.2d 55, cert. denied, Ala.Cr.App., 340 So.2d 60 (1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977), it was held:

“When the affidavit and warrant were admitted into evidence during the trial, the appellant renewed the objection he raised during the suppression hearing. He did not object on the ground that it was hearsay. The trial judge was not in error in overruling the objection on the grounds specified, although the documents were clearly hearsay and subject to exclusion upon proper objection. Where the appellant made objection on specific grounds when the documents were introduced, all grounds not specified were waived. Roynica v. State, 54 Ala.App. 436, 309 So.2d 475, cert. denied 293 Ala. 772, 309 So.2d 485 (1974); Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). Proper objection must have been made at the time the evidence was offered. An objection during closing arguments to reading from an exhibit already in evidence comes too late. Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956).”

Had the defendant made a specific objection, at trial, and had the trial judge sustained that objection, the state could have then decided whether to put the informant on the stand as a witness, and could also have produced the officer who made the return on the warrant to testify, in court, what was found.


text:
    Milton SATTERWHITE, alias, v. STATE.
    5 Div. 382.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
   After remandment by the Supreme Court of Alabama, REVERSED AND REMANDED on authority of Supreme Court Ms. 77-315, September 15, 1978, 364 So.2d 359.

All the Judges concur.


text:
    Albert William SANKEY v. STATE.
    3 Div. 850.
    Court of Criminal Appeals of Alabama.
    May 30, 1978.
    Rehearing Denied June 20, 1978.
    Joseph G. L. Marston, III, Prattville, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, and Samuel J. Clenney, III, Asst. Attys. Gen., for the State, appellee.
   DeCARLO, Judge.

AFFIRMED. Certiorari quashed, Ala., 364 So.2d 362.

All the Judges concur.


author:
PER CURIAM.
      JONES, Justice

text:
    Ex parte Albert William SANKEY. Re Albert William SANKEY v. STATE of Alabama.
    77-621.
    Supreme Court of Alabama.
    Nov. 10, 1978.

      Joseph G. L. Marston, III, Prattville, for petitioner.
    William J. Baxley, Atty. Gen. and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State, opposed.
   PER CURIAM.

We granted certiorari at the instance of the accused to review the judgment of the Court of Criminal Appeals which affirmed his conviction in circuit court based upon his plea of guilty to a charge of resisting arrest. The Court of Criminal Appeals wrote no opinion. After review, we are convinced that the writ was improvidently granted and is due to be quashed.

The accused cites Albright v. State, 50 Ala.App. 480, 280 So.2d 186 (1973); cert. denied 291 Ala. 771, 280 So.2d 191 (1973), for the proposition that the complaint was defective, that his plea of guilty to that complaint, therefore, did not waive what he claims was a demurrable defect, in that the complaint failed to name the officer he allegedly resisted.

The rule of law is that a plea of guilty when accepted and entered by the court is a conviction of the highest order, and is an admission, of record, of the truth of whatever is sufficiently charged in the indictment. The question is: Will the charging instrument, as drawn, support a conviction and sentence, conceding that the defendant admitted the commission of the act charged?

The complaint here charged the accused “. . . did knowingly and willfully oppose or resist a lawful arrest by an officer of the state or county . . . ” Code of Ala.1975, § 13-5-4, provides:

“Any person who knowingly and wil-fully opposes or resists any officer of the state, county or municipality in serving, executing or attempting to serve or execute any legal writ or process whatsoever, or who resists any lawful arrest, whether under process or not, shall, on conviction, be fined not less than $50.00 nor more than $1,000.00 and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months.”

We conclude that the complaint supports a conviction and sentence for resisting arrest, because the accused, by his plea of guilty, admitted that he “did knowingly and willfully oppose or resist a lawful arrest by an officer of the state or county.”

Harris v. State, 19 Ala.App. 484, 98 So. 316 (1923), cited, and quoted from, by the Court of Criminal Appeals in its decision in Albright, supra, held that the indictment in that case failed to charge offense of forgery and, therefore, the indictment was not sufficient to support a verdict of guilt for forgery. Here, the complaint is sufficient to support a conviction for resisting arrest.

We recognize that Albright could be construed to state a rule different from the rule we announce in this opinion. To the extent that Albright does conflict with this opinion, Albright is overruled.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

JONES, J., dissents.

JONES, Justice

(dissenting):

I respectfully dissent.

This case, before the Court upon writ of certiorari, involves the review of a conviction of resisting lawful arrest. The Court of Criminal Appeals affirmed the judgment rendered by the trial Court. I would reverse and remand to the Court of Criminal Appeals.

Petitioner, Albert William Sankey, was convicted in the District Court of Montgomery County for resisting a lawful arrest by an officer of the State or County. Sankey appealed this conviction to the Circuit Court of Montgomery County, where, pursuant to Alabama law, a trial de novo was held. The solicitor’s complaint filed against San-key reads as follows:

“ON APPEAL FROM THE MONTGOMERY DISTRICT COURT
“The State of Alabama, by its District Attorney, JAMES H. EVANS, complains of Albert William Sankey that within 12 months before the commencement of this prosecution, he did knowingly and willfully oppose or resist a lawful arrest by an officer of the State or County, against the peace and dignity of the State of Alabama.”
“/s/ J. H. EVANS
DISTRICT ATTORNEY,
FIFTEENTH JUDICIAL CIRCUIT
STATE OF ALABAMA.”

Sankey filed a demurrer to the complaint setting out numerous grounds including, but not limited to, the following:

1) The alleged officer of the State or County is not described with sufficient specificity.

2) The alleged officer of the State or County is not identified.

3) The authority for the alleged lawful arrest is not identified.

The demurrer to the complaint was overruled and Sankey subsequently entered a plea of guilty to the complaint. The case was appealed to the Court of Criminal Appeals, which affirmed without opinion.

In Albright v. State, 50 Ala.App. 480, 280 So.2d 186 (1973), it was held that a guilty plea did not waive the right to appeal a demurrable defect as to the sufficiency of an indictment [complaint] so long as the objection is made prior to the plea. Under the authority of Albright, it is clear that Sankey has preserved his right to appeal in this case despite his plea of guilty. Furthermore, Sankey has properly invoked Rule 39(k) for purposes of our review.

The State points to the case of Seaman v. State, 28 Ala.App. 480, 188 So. 269 (1939), which held:

“Upon arraignment in the circuit court on appeal, the defendant interposed a plea of guilty. This, we think, was equivalent to a waiver by him of the filing of a complaint by the Solicitor.”

The State argues that the rule in Seaman is such that a plea of guilty operates as a waiver of the complaint and, therefore, the complaint’s necessity becomes nil, and error, if existent, becomes superfluous.

The Seaman rule applies only where no complaint is filed in the Circuit Court. In the instant case, there was a complaint, which the Defendant attacked by demurrer, prior to his plea. As Albright, supra, shows, on the present facts, it cannot be argued that there has been a waiver of the complaint or its defects.

Section 12-22-113, Ala.Code 1975, provides that the form of the complaint in a trial de novo in the circuit court should describe the offense “. . . as in the case of indictment.” In McGuire v. State, 19 Ala.App. 138, 95 So. 565 (1923), the Court of Appeals held that, while the Code provided no form for an indictment for resisting lawful arrest by an officer, the Code does provide a form for an indictment for resisting service of any legal writ of process, and that this form is to be applied by analogy in a case of resisting lawful arrest.

Section 15-8-150(84), Ala.Code 1975, provides the following as the proper form of indictment for resisting an officer in execution of process:

A. B. did knowingly and willfully oppose or resist C. D., the sheriff of said county, in attempting to serve or execute a writ of execution, called a fieri facias, issued by the clerk of the circuit court of said county (or as the case may be, describing the process generally). (Emphasis added.)

In McGuire, the appellant alleged that the indictment was objectionable because the designation of the office of the person by whom the arrest was attempted was stated alternatively as “a deputy sheriff or officer of said county.” In upholding the validity of the indictment, the Court noted:

“The averment that the arrest (or attempt to arrest was by G. A. Scott, a deputy sheriff or officer of said county, imported that he was an officer authorized to make arrests within the terms of the statute on that subject.
“In alleging that the arrest made or attempted was of a person who at the time was in the actual commission of a public offense, the arrest is as fully described as the warrant or writ of arrest is required to be described when the defendant is charged with resisting an officer in making or attempting to make an arrest under a warrant or writ of arrest. Howard v. State, 121 Ala. 21, 25 So. 1000. It would appear that no greater particularity is required in the one case than in the other.
“We do not think the indictment in this case was subject to any of the grounds of objection assigned in the demurrer, for the reason that the indictment, with sufficient fullness, directly and expressly alleged the fact, in the doing of which the offense consists, 'in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.’ The statutory requirement being that every indictment must state the facts constituting the offense, in ordinary and concise language, without prolixity or repetition, in such manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. . . ."

In the present case, it appears that the indictment is not sufficient under the criteria of McGuire, when read in conjunction with the applicable Code provisions, in that: 1) the name of the person who made or attempted to make the arrest is not stated; 2) the office of the person who made or attempted to make the arrest is not stated with sufficient particularity; and, 3) the authority to make a lawful arrest is not shown by the complaint.

It should be noted here that in Hill v. State, 339 So.2d 601 (Ala.Cr.App.1976), cert. denied, 339 So.2d 610 (Ala.1976), a case involving the charge of assaulting an officer, it was argued that the indictment was insufficient in that it did not name the officer assaulted. While this Court stated, “We are satisfied that no injury resulted to the defendants from the omission of the assaulted officer’s name,” this was actually a case where the defendant had waived his right on this issue by failing to demurrer to the indictment, and attempted to raise this issue for the first time on appeal. Such is not the case here, in my opinion, as Sankey has properly preserved any error in the complaint by his demurrer prior to his plea of guilty.

I would reverse and remand.


text:
    Henry YESSICK v. STATE.
    1 Div. 951.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.

      Lloyd E. Taylor, of Taylor, Benton, Irby & Gibson, Fairhope, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

An information filed by the district attorney in the circuit court charged appellant-defendant with selling malt or brewed beverage, to-wit: beer, without being licensed to do so under Title 29, § 36, Code of Ala. 1940, contrary to law and against the peace and dignity of the State of Alabama. A jury returned a verdict of guilty, and the court (not the jury) assessed a fine of $250 following a proper judgment of guilt. Appellant appeals.

It appears that the alleged offense took place in September 1977 and was in violation of law that obtained prior to the effective date of the Alabama Code of 1975.

At the time of the offense, Baldwin County, which had jurisdiction, was a wet county. Title 29, Chapter 1, §§ 1-92, had application.

Title 29, § 1, Code of Ala. 1940, sets forth a series of definitions of which subsection (i) reads:

“ ‘Malt,’ or ‘Brewed Beverages’ means any beer, lager beer, ale, porter, or similar fermented malt liquor containing one-half of one percentum or more of alcohol by volume, by whatever name the same may be called.”

Section 36 of Chapter 1, supra, contains a series of subsections that define unlawful acts. Among them is subsection (10) which states it shall be unlawful:

“For any person, firm, corporation, partnership or association of persons as such terms are defined in section 1, Title 29, Code of Alabama 1940, who has not been licensed so to do under the appropriate provisions of Title 29, Code of Alabama 1940, to sell, offer for sale or have in possession for sale, any liquor, or malt or brewed beverages as those terms are defined in section 1, Title 29, Code of Alabama 1940.”

It was agreed that appellant-defendant did not have a license to sell malt or brewed beverages.

It is to be noted that the State put up only two witnesses; namely, Harry Kear-ley, an A. B. C. enforcement agent, and Mike Judge, district supervisor for the A. B. C. Board. The court in its oral charge excluded all the testimony of Mike Judge, but left in the testimony of Harry Kearley.

It appears that defendant, after the State rested, made a motion for a directed verdict. The motion was denied.

We have examined the testimony of the State’s only witness, Mr. Kearley, and we fail to find any testimony that brings the malt or brewed beverage allegedly sold to defendant within the definition of Title 29, Section l(i), supra.

We observed in Brown v. State, 32 Ala.App. 406, 26 So.2d 536(2) as follows:

“In this case, as in every prosecution for crime, the State, in order to secure and sustain a conviction, was under the burden to offer evidence sufficient to prove, beyond a reasonable doubt, every material allegation of the affidavit upon which the accused was being tried.
“Our statutes define prohibited liquors. Title 29, Section 1, Code of Alabama 1940. Subsections (h) and (i) thereof are as follows:
* * * * * *
“ ‘Malt,’ or ‘Brewed Beverages’ means any beer, lager beer, ale, porter, or similar fermented malt liquor containing one-half of one percentum or more of alcohol by volume, by whatever name the same may be called.’
“It has been definitely held that possession of a liquid which is not suitable to be used as a beverage is not a violation of the law. Moody v. State, 23 Ala.App. 431, 126 So. 495, 496.”

In other words, the State failed to prove that the beer allegedly sold contained one-half of one percentum or more of alcohol by volume. For aught appearing, the defendant did not have to be licensed to make such sale that allegedly was made.

In the event of another trial and conviction, it is to be noted that the trial court is not authorized to impose a fine not fixed or assessed by the jury. See Title 15, § 335, Code of Alabama 1940. We quote:

“In prosecution by indictment, the jury shall fix and determine the amount of the fine; and no judge shall remit or reduce the fine so fixed, unless he spreads his reasons for so doing in full on the minutes of the court.”

The offense here involved was indictable and thus made subject to Title 15, § 335, supra. It matters not that the prosecution was by information. See: Loggins v. State, 52 Ala.App. 204, 290 So.2d 665, wherein we cited Melton v. State, 45 Ala. 56. We said:

“The Supreme Court in Melton v. State, 45 Ala. 56, in referring to § 3757, Revised Code 1867, (appearing now as § 335, supra) said: ‘ * * * although this case came into the circuit court by appeal, and was tried on a complaint, yet it is an indictable offense and in that court must be determined a prosecution by indictment.’ ”

Because of failure of proof with respect to the alcoholic content of the alleged beer, we hold that the judgment should be reversed and the cause remanded for such lawful disposition as may be appropriate. It is so ordered.

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 Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-774.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Murrell Price COLLINS v. STATE.
    6 Div. 485.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.

      Jonathan E. Lyerly of Gordon, Cleveland & Gordon, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of rape and the jury fixed his punishment at fifteen years in the penitentiary. Prior to arraignment appellant was found to be indigent and the Court appointed counsel to represent him. He interposed a not guilty plea. After he was sentenced he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The evidence was extremely conflicting. The State made out a case of rape by the testimony of the victim alone. Appellant did not testify but offered an alibi defense.

The prosecutrix was a seventeen year old black girl. Appellant was also black. On May 25, 1976, around 10:30 a. m. prosecu-trix was on a public street in downtown Birmingham looking for part-time employment. She went to the Army Recruiting Center on Eighteenth Street to meet a friend but this person did not show up. She then walked up Second Avenue to a clothing department store and called her boyfriend to let him know she was downtown. After making the telephone call she was approached by a man whom she later identified as appellant. Appellant asked her name and she told him and stated she was looking for a job. He offered to take her to a place that was employing black girls and she told him she would check it out later. He then offered to buy her lunch and she declined. She started walking up the street and she noticed that he was following her. At some point she thought she had lost him.

A short time later and some distance away appellant called her over to a green colored Buick LeSabre. When she approached the car appellant showed her what appeared to be the barrel of a gun and ordered her to get in the car. The gun was pointed in her direction and she got in the car. Appellant drove her toward Wood-lawn and she asked him where he was going and he replied that he was taking her to see about the job he told her about earlier. She stated appellant was drinking gin and offered her some but she didn’t want a drink. Appellant then pulled out two twenties and a ten and placed the fifty dollars on the seat between them. He told her to pick up the money and she told him she did not want the money. He then put another twenty and a one dollar bill with the other money. Appellant had put the pistol between his knees while he was driving and when he put the other money down he told the prosecutrix to pick it up. She picked it up and put it on the seat again. Appellant picked up the money and put it in his pocket.

Appellant then drove to a secluded place near a fence on a dead-end street and stopped his car. While parked he examined the contents of the victim’s purse which contained her identification and address. This was her social security card and he told her she had given him her correct name. He then reached in the glove compartment and got what appeared to be a butcher knife that had been recently sharpened. He put the knife to her throat and touched her skin. He told her not to be afraid or upset, “that it would just be enough to show blood.” Appellant then got out of the car on the driver’s side and ordered the victim to get out on the same side. After she was out of the car appellant reached into the car and got one of two blankets. With the knife still in his hand he ordered the victim to lie on the blanket and to pull down her underclothes. He then put his private part into her private part and had sexual intercourse with her. After completing the sexual act he told her to pull her clothes up and get back in the car. He told her he was going to take her back to town and that if she called the police he would get to her before the police did because he knew where she lived. When he drove her back to town, and as she was getting out of the car, appellant said, “Just remember what I told you about the cops.” The victim reported the incident to the police the next morning, May 26, 1976.

The night following the assault upon her she told her boyfriend that a man had tried to rape her but later told him the man actually raped her.

On May 27, 1976, Police Officer Juanita Eaton showed the victim seven photographs and asked her to look through them to see if she recognized anyone. She identified appellant as the man who raped her and she had a warrant issued for his arrest. She also made a positive in-court identification of appellant and based this identification on having viewed appellant in broad daylight on the day she was forced to get in his car.

The prosecutrix was subjected to a vigorous cross-examination and many inconsistencies were pointed out in her testimony. This all went to the weight and credibility of her testimony, but the jury, nevertheless, gave full credit to her testimony.

The next time the victim saw appellant was on June 1, 1976, on a downtown street in Birmingham and she immediately called Officer Eaton who put out a broadcast and appellant was taken into custody.

At the conclusion of the State’s case appellant moved for a directed verdict without stating any grounds. This motion was overruled.

Appellant’s wife testified she had the automobile the entire day of the alleged incident. She drove the car to her place of employment at the usual hour that morning and returned home some time after 3:00 p. m. She further testified there were only two set of keys to the car. She had one set and her mother had the other set. She said that her husband was at home that morning when she left for work and he was at home that afternoon when she returned.

Sisfornia Moore, the grandmother of appellant’s wife, testified that she lived across the street from appellant and that the car was not in the yard all day.

Appellant makes much of the fact that he was convicted on the testimony of the pros-ecutrix without any corroboration. He complains that the alleged victim did not report the alleged rape to her relatives, did not report it to the police until the next day, and did not seek medical help.

In Robinson v. State, 53 Ala.App. 145, 298 So.2d 75, we held:

“We do not mean to imply that it is necessary that the testimony of the prose-cutrix be corroborated. Such is not the rule. The jury may convict upon the prosecutrix’ evidence alone if such evidence convinces the jury beyond a reasonable doubt that the accused is guilty. White v. State, 37 Ala.App. 448, 70 So.2d 287.”

During appellant’s cross-examination of the prosecutrix, the following occurred.

“Q. Are you married, Ms. Fuller?
“MR. JOHNSON: Judge, I’m going to object to that. I don’t see how it has got anything to do with this case.
“THE COURT: Sustained.
“MR. LYERLY: Judge, we would except to that on the basis it is a background question.
“THE COURT: I will sustain it. Don’t answer it. I don’t mind your asking her about her marital state at the time of this but what it is now, I think is immaterial.
“Q. All right. Were you married on May 25th of last year?
“A. No.
“Q. I’m sorry, I didn’t get your address on May 25th of last year.
“A. 320 Second Street, West.
“Q. And did you have any children as of May 25th?
“MR. JOHNSON: Judge, I am going to object to that. I certainly can’t see—
“THE COURT: Sustained.”

Appellant contends that these “background” questions were proper for the purpose of setting before the jury an estimate of the witness’ testimony. Therefore, questions relating to the witness’ “condition in life” are permissible. Shepherd v. Gardner Wholesale, Inc., 288 Ala. 43, 256 So.2d 877 (1972). Appellant notes that it was held proper to ask a female witness in a criminal case whether she was a widow. Cooper v. State, 63 Ala. 80 (1879). Appellant stresses that such questions are the foundation for exposing falsehoods and bringing out the truth on cross-examination. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). These background questions, though irrelevant, may have a bearing on the credibility of a witness. Nesbitt v. State, 55 Ala.App. 534, 317 So.2d 501. Appellant concludes that since the prosecu-trix’s testimony was the sole basis for his conviction, the above questions were essential in aiding the jury in an evaluation of her credibility.

We do not agree. The scope of cross-examination in a criminal proceeding is within the discretion of the trial judge and it is not reviewable except for the trial judge’s prejudicial abuse of discretion. Jackson v. State, Ala.Cr.App., 353 So.2d 40, cert. denied, 353 So.2d 48 (1977). McFerrin v. State, Ala.Cr.App., 339 So.2d 127 (1976). The right to a thorough and sifting cross-examination of a witness does not extend to matters that are collateral or immaterial and the trial judge is within his discretion in limiting questions which are of that nature. McLaren v. State, Ala.Cr.App., 353 So.2d 24, cert. denied, 353 So.2d 35 (1977); McDonald v. State, Ala.Cr.App., 340 So.2d 103 (1976).

It is not apparent how these two questions asked by appellant have any bearing on the credibility of the prosecutrix’s testimony unless appellant hoped to impugn the character of the prosecutrix through her responses. Whether the victim was married or had children is wholly irrelevant to the issues of the trial. Therefore, the district attorney’s objections were properly sustained.

Smith, supra, and Nesbitt, supra, are distinguishable from the case at bar on the facts. In Smith, the defendant asked a State’s witness whether the name he had given on direct examination was false. After the witness responded there that was not his true name, the defendant was not allowed to ask the witness his correct name or residence. Of course, in that unusual set of circumstances, the witness’ credibility was drawn directly into question, meriting further “background” questions. Similarly, Nesbitt, concerned the cross-examination of a narcotics agent, relating to his employment in that capacity. The questions asked of the agent and another police officer directly concerned the witness’ memory, accuracy, credibility, interest and sincerity.

The following also occurred during appellant’s cross-examination of the prosecutrix.

From the record:

“Q. Ms. Fuller, did you tell your boyfriend someone had only tried to rape you?
“MR. JOHNSON: Judge, I’m going to object to the question.
“MR. LYERLY: Judge, it is a relevant fact whether she, in fact, was raped or not and to the questions of identity.
“THE COURT: Overruled — -pardon me, sustained. I’m sorry.
“MR. LYERLY: We except.”

No error resulted, for the trial court subsequently changed its ruling and allowed counsel to follow that line of inquiry. Thus the error, if any, was cured by the subsequent admission of the same evidence. Simmons v. State, Ala.Cr.App., 353 So.2d 11, cert. denied, 353 So.2d 18 (1977).

Additionally, appellant contends that the trial court erred in not permitting him to question the prosecutrix’s motive in identifying him as her assailant.

From the record:

“Q. Ms. Fuller, you have testified already you told your boyfriend about the rape, alleged rape?
“A. Yes.
“Q. Did he at that time insist that you go to the police?
“MR. JOHNSON: I am going to object to what he insisted on.
“Q. I will rephrase that, Judge. Did he take you to the police the next day?
“A. Yes, we went together.
“Q. And had he insisted that you go to the police?
“MR. JOHNSON: I am going to object on that.
“THE COURT: Sustained. Don’t answer.
“Q. All right. Ms. Fuller, when you — as you have testified, you advised your boyfriend of this attempted or alleged rape. Did he react violently to that news?
“MR. JOHNSON: Now, Judge, I’m going to object to—
“THE COURT: Sustained. Don’t answer it.
“Q. Ms. Fuller, were you afraid of what your boyfriend might do if you did not identify your alleged assailant?
“MR. JOHNSON: I am going to object to that.
“THE COURT: Sustained.
“MR. LYERLY: Judge, we argue she can testify to a state of mind she had at the time which we thought she could do under Starr v. Starr.
“THE COURT: Starr v. Starr is undisclosed intention.
“MR. LYERLY: Well, state of mind, Your Honor, which we would suggest is relevant to the question of motive for identification.
“THE COURT: I will sustain the objection.”

The cross-examiner is allowed great latitude in questioning a witness to ascertain his motive in testifying. Noble v. State, 253 Ala. 519, 45 So.2d 857; Williams v. State, 44 Ala.App. 503, 214 So.2d 712. Particularly, a witness for the prosecution may be cross-examined to ascertain whether the testimony given on direct was motivated by fear, intimidation, or prompting by another person. Hammock v. State, 7 Ala.App. 112, 61 So. 471.

Here the trial court was not in error. The rule is well established that when an objection is sustained to a question asked on cross-examination, the questioning party must make an offer of proof, calling the attention of the court to the expected answer and the materiality of the answer. Otherwise, the party cannot predicate an appeal upon the sustaining of the objection as an erroneous ruling. Gamble, McElroy’s Alabama Evidence, 3rd Edition, Section 425.01(4). Bryer v. State, 34 Ala.App. 561, 42 So.2d 496, Sellers v. State, 7 Ala.App. 78, 61 So. 485.

Appellant urges that the trial court erred to reversal by overruling his objection to a question asked by the district attorney of the prosecutrix, who answered unresponsively. An objection for lack of responsiveness in an answer is available as a matter of right only to the party asking the question. Dawson v. State, 48 Ala.App. 594, 266 So.2d 806, cert. denied 289 Ala. 741, 266 So.2d 812.

Next appellant contends it was error to allow in evidence a statement made by him at the time of his arrest.

Charles Melton testified that on June 1, 1976, he arrested appellant. At that time the prosecutrix and another police officer were present nearby, and appellant looked in their direction. When asked if the appellant said anything about the prosecutrix, appellant objected and a voir dire hearing was held outside the presence of the jury. The following occurred at that hearing.

From the record:

“BY MR. JOHNSON:
“Q. All right. Where did you arrest him?
“A. At the A & P Store.
“Q. What happened, then?
“A. I arrested him, I transported him to the detective lot there across from the Greyhound Bus Station.
“Q. Were you in radio contact with Officer Eaton at that time?
“A. Yes, sir, I was.
“THE COURT: When you arrested him, what was said? What did you say when you arrested him? What was said? What did you tell him? What did you say, come let’s just go for a Coke, or what?
“A, No, sir. I told him he was under arrest and you are charged with rape.
“THE COURT: All right. Okay.
“Q. When you got him over there to the parking lot, did you see Officer Eaton?
“A. Yes, sir.
“Q. Did you see Ms. Fuller, the girl that was in here a little earlier?
“A. Yes, sir.
“Q. Did the defendant see them at that time?
“A. Yes, sir.
“Q. Now you didn’t question him at that time, did you?
“A. No, sir.
“Q. Did you tell him that he was charged with raping that girl?
“A. No, sir.
“Q. Did you tell him anything other than when you initially arrested him other than he was arrested for rape?
“A. I read him his rights in the car.
“Q. But you weren’t questioning him, were you?
“A. No, sir.
“Q. Did you hear him say anything in regard to that woman or did he volunteer anything in regard to that Shirley Fuller?
“A. Yes, sir.
“Q. What did he say?
“A. He said if she was going to get a warrant for me, why didn’t she do it yesterday.
“THE COURT: Okay. Now you hadn’t asked him anything?
“A. No, sir.
“THE COURT: And this was in the parking lot?
“A. Yes, sir.
“THE COURT: And nobody brought up anything or had done anything?
“A. No, sir.
“THE COURT: I think it is a spontaneous exclamation . . . ”

Appellant notes that a “spontaneous exclamation” must be the reflexive product of the preception of an event, made in a state of nervous excitement. Williams v. State, 291 Ala. 213, 279 So.2d 478; Illinois Central Railroad v. Lowery, 184 Ala. 443, 63 So. 952. Appellant’s statement meets this requirement. He urges that, even though the statement may be a spontaneous exclamation, to be admissible the utterance must be relevant and material to the issues at trial.

The trial judge allowed appellant’s statement into evidence before the jury.

This statement is relevant in that it tends to show some prior relationship of the parties. Appellant volunteered this statement after looking in the direction of the prosecutrix, though he had not been told that he was charged with raping her.

Rape is the unlawful carnal knowledge of a woman by a man, forcibly and against her will. Gulley v. State, Ala.Cr.App., 342 So.2d 1362; Smith v. State, Ala.Cr.App., 345 So.2d 325, cert. quashed, ex parte State, 345 So.2d 329. The offense of rape is complete when the woman is made to yield through fear. Rudolph v. State, 275 Ala. 115, 152 So.2d 662, cert. denied, 375 U.S. 889, 845 S.Ct. 155, 11 L.Ed.2d 119; Hooper v. State, 106 Ala. 41, 17 So. 679. The testimony of the victim clearly supports a finding that she yielded to appellant out of fear for her life and is ample to support a conviction for rape.

Though the appellant offered evidence tending to show that he was at another place at the time the incident occurred, this presented a jury question, as does all conflicting evidence. Mullins v. State, Ala.Cr.App., 344 So.2d 539.

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

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Murrell Price COLLINS.
    78-40.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.