author: DeCARLO, Judge. BOOKOUT, Judge,

text:
    James CHAVERS, Jr. v. STATE.
    6 Div. 211.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.

      L. Drew Redden and William N. Clark of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

James Chavers, Jr. was indicted for the offense of first degree murder. At the conclusion of the trial before a jury he was convicted of manslaughter in the first degree, and his punishment was fixed at five years’ imprisonment in the penitentiary. The appellant gave notice of appeal and asked for probation, which was denied. His motion for a new trial was denied, and the appellant is now before this court.

James Chavers, Jr. lived at 524 Booker Street in Roosevelt City, Jefferson County, Alabama, with his wife, Ethel Bell Chavers, Carlos Chavers, their ten-year-old son, and his step-daughter, Cora Dickerson.

On June 11, 1975, shortly after 6:30 P.M., the appellant returned home from his job at Malone Freight Lines, which he had held for some nineteen years. After eating supper with his family he went to the front porch and read the evening paper. Cora Dickerson testified that her mother also went to the porch, while she washed the dishes. Her stepfather stayed on the porch until about 8:00 P.M. when he went to the back yard and began cutting grass. She recalled going to bed about the same time. Cora testified that her stepfather returned to the house at 9:30 or 9:45 P.M. and that she and her brother were in their room at the time. She was reading and the lights were on in her room and in her mother’s room. Cora said that her stepfather went straight to the bedroom where her mother was and she heard him say, “Who knocked the knob off the lamp?” She testified that his voice was loud and that he asked her mother how she got the bruise on her arm. She said that her mother told him she did not know, and “that it was a possibility that she could have knocked up against something,” her stepfather said, “Some man had been in and put it on there,” to which her mother replied, “that wasn’t what happened, it was just probably something she had hit up on.”

Cora testified that she got out of the bed and was standing near the door of the bedroom. She stated she saw her stepfather come around to the side of the bed and lean over her mother with one arm raised in the air. Her mother said, “let her up.” With Cora at the door was Carlos, who at that moment ran back to their bedroom, returned with a vase and hit his father over the head. She testified that Carlos told her stepfather “not to hit his mother.” According to Cora, when the appellant was hit over the head he said, “don’t nobody hit me on my head and get away with it.”

Cora said her mother at that point had gotten up and her stepfather pulled a gun from his pocket and fired what Cora thought was two shots. At the time her stepfather pulled the gun, he was pointing it in the direction of her mother. She said that, after the shots were fired, her mother fell to the floor.

Cora recalled asking the appellant not to shoot her, but that he fired at her twice and she was hit in the upper hip. She stated that after the appellant shot her, he then turned and fired in the direction of the doorway where Carlos was standing.

According to Cora, the appellant passed her in the hall carrying the gun, at which time she got up and telephoned her aunt. Before she completed the call, the appellant returned to the house and went to the bedroom where her mother was. After calling her aunt, Cora returned to her parents’ room where she saw her mother lying on the floor with blood on her chest. She testified that the appellant told her mother “to get up, he was going to carry her to the hospital.” She said he then left, and the police and the ambulance came within a short time.

Carlos Chavers, the appellant’s son, testified that he went to bed about 8:00 P.M. in the bedroom he shared with his sister. He said his mother was in bed when his father came in the house about 10:00 P.M. Carlos then overheard his parents arguing. He stated they were arguing about “a doorknob” and he heard his father say “somebody beat her up.” Carlos testified that he went to his parents’ room and upon seeing his father “fixing to beat her up,” he picked up a vase and hit his father on the back of the head. He recalled that his father was bending over when he hit him and that he, Carlos, then ran from the room. Carlos stated he then heard gunshots but could not recall how many. When he returned to the room the gun was in his father’s hand and his mother was on the floor. According to Carlos, when his father pointed and fired the gun in his direction, he ran to a neighbor’s house.

William R. Stroud, a police officer with the city of Roosevelt, testified that on June 11, 1975, he went to the Chaverses’ residence in response to a radio dispatch: When he arrived he saw the appellant “coming out from under the carport.” According to Stroud the appellant said “that a gun had went off and shot his wife.” When Stroud entered the house Cora Dickerson was standing in the door and he found Mrs. Chavers on the floor in the bedroom. Stroud testified that Mrs. Chav-ers was taken to the hospital, where she died shortly thereafter. Later he was present when an autopsy was performed on her body.

On June 12, 1975, at approximately 9:45 A.M., Jay Glass, a deputy coroner for Jefferson County and an assistant pathologist at the Cooper Green Hospital in Birmingham, performed an autopsy on the body identified to him as that of Ethel Chavers. It was Glass’s opinion that death was caused by a gunshot wound to the abdomen with perforation of the liver and the inferi- or vena cava, resulting in bleeding into the abdominal cavity accompanied with shock.

James A. Howell was employed by the Jefferson County Sheriff’s Department as an evidence technician. On the morning of June 12, 1975, he went to the residence at 524 Booker Street in Roosevelt City. Howell identified photographs that he had taken of the Chaverses’ residence, one of them showing a closet door with a hole in it. He testified that inside the closet in a box he found a lead slug. Also, he identified a picture of a chair where he found a gun under the cushion. During the trial he identified the gun as a 6-shot revolver.

James Foy, the Chief of Police for Roosevelt City, stated that on June 11, 1975, he arrived at the Chaverses’ residence about 11:30 P.M., but the appellant was not present. He made photographs of the house’s interior and identified one photograph depicting a “bullet hole” in the floor of the front bedroom. Foy said he also observed a hole in the wall, and on the outside of the house opposite the hole he found a projectile underneath the shingle.

Following Chief Foy’s testimony the State rested and the defense made a motion to exclude the State’s evidence. Counsel argued that evidence was insufficient to support a conviction for any degree of murder or manslaughter. Further he stated there was insufficient evidence from which the jury could be expected to be convinced beyond a reasonable doubt and to a moral certainty of the defendant’s guilt as to any “degree of homicide.”

The motion was overruled, and, after the defense called four character witnesses who testified to appellant’s good reputation, the appellant took the stand in his own behalf.

James Chavers testified that on June 11th he returned home from work shortly after 6:30 P.M., ate supper, and went to the front porch to read the paper. He said his wife, Ethel, joined him on the porch and they discussed the charges for installing a sewer. He told her he had withdrawn fourteen hundred dollars from the bank. Chav-ers said that the only other discussion he had with his wife concerned a bruise on her arm. .He denied discussing the bruise on his wife’s arm at any other place than on the front porch. Chavers went across his yard after remaining on the porch for about ten minutes and had a conversation with a neighbor. Appellant stated that after he walked through the yard he watched his son Carlos pick plums. He then decided to cut the grass at the back of his house. Chavers could not recall how long he remained outside cutting the grass but said that it was “good dark” when the rain started that caused him to come inside.

The appellant testified that he did not have his glasses on at the time but was wearing his “contacts.” He explained that he had had surgery on his left eye for removal of a cataract and that that necessitated the wearing of a contact lens on that eye. Chavers went on to explain that without his contact lens on that eye he “couldn’t see anything.” Further, he said he wore “regular eye glasses when wearing the contact lens” because he could not see well enough to read without them.

Chavers testified that after entering the house he passed through the corner of his children’s room and through the hall into the bedroom that he and his wife occupied. He stated there were no lights on in the hall or in the children’s room. However, he did say there was a small light on in the bathroom. On entering the bedroom he went over to the side of the bed where she was lying and removed the pistol from underneath the bed. Chavers explained that ordinarily when he came in to go to bed he removed the pistol from a footlocker in the bedroom and placed it underneath the bed on the side where he slept. The appellant said “Ordinarily when I’m not home, I put it on her side of the bed.”

Chavers said that on this particular evening when he went outside to cut the grass he had placed the gun on his wife’s side of the bed and as he “got the gun from under the bed to go around I was hit on the head with a vase, some kind of glass substance.” The appellant stated he did not recall making any remarks but did recall shooting the gun. He said that he did not aim the gun at his wife, stepdaughter or son, Carlos. Chavers testified that he did not have any intention of shooting or killing his wife. He said that during this time he did not have on his glasses. The appellant testified that it was “a good while after” the gun was fired that he learned that his wife had been shot. Chavers said he heard his wife exclaim, “James I’m shot” and that at that point he told Cora to call an ambulance and the police.

On further questioning the appellant denied having any conversation with his wife about a doprknob or any discussion at all with her after he entered the bedroom.

On cross-examination the appellant did not recall placing the pistol under the chair cushion. Chavers said he told the police that the pistol was in the house and that he did not know its location. He denied having any difficulty with his wife or making any threats to her or his stepdaughter, Cora Dickerson, at any time. Further, appellant said that he had not been drinking that night and did not have the pistol on his person while he was cutting the grass.

At the completion of the appellant’s testimony the State recalled Cora Dickerson for rebuttal testimony. She testified that prior to June 11,1975, her stepfather had made a threat against her mother. She recalled that he said: “. . . he was going to kill all of us, and if you want you go and get your people too and I’ll just kill them too.” She said these threats were made on many occasions.

I

The appellant complains that the trial court’s failure to charge the jury with regard to second degree manslaughter in its oral charge and its refusal to give certain written charges were erroneous. Defendant’s requested Charge No. 24, which was refused by the court is as follows:

“The Court instructs the jury that manslaughter in the second degree is included in the charge against the defendant.”

Defendant’s requested Charge No. 26 which was also refused, reads:

“The Court instructs the jury that if you-believe from the evidence in the case, beyond all reasonable doubt and to a moral certainty, that the defendant killed the deceased without malice, either expressed or implied, and without intent to kill or inflict the injury causing death, while committing an unlawful act or while committing a lawful act in an improper or negligent manner, he would be guilty of manslaughter in the second degree.”

The Supreme Court of Alabama in Pierson v. State, 99 Ala. 148, 13 So. 550, said:

“. . . that it is much the safer rule to charge upon all the degrees of homicide included in the indictment, when a party is on trial for murder, unless it is perfectly clear to the judicial mind that there is no evidence tending to bring the offense within some particular degree.” [Emphasis added.]

Therefore, the question presented is whether the evidence adduced at the trial warranted an instruction on second degree manslaughter or, on the other hand, whether the evidence precluded such instruction because it supported the greater offenses charged.

In examining this question several factors must be considered in determining whether error was committed by refusal by the trial court to charge in regard to second degree manslaughter. Some of the cases illustrating these factors are summarized as follows:

In Davis v. State, 31 Ala.App. 508, 19 So.2d 356, we have a factual situation requiring that the jury be charged as to second degree manslaughter. The defendant testified that when his wife, the deceased, while holding their baby, was about to enter their automobile, he attempted to move a shotgun from between the two front seats to the rear seat when the butt of the stock struck the gear lever or steering wheel and the gun was accidentally discharged. The court held that the jury could reasonably have concluded that the defendant was negligent and, under this aspect of the case, the jury should have been instructed on second degree manslaughter.

In the case of Miller v. State, 40 Ala.App. 533, 119 So.2d 197, which was reversed on other grounds, the facts showed that on the morning of the shooting the defendant and her “boy friend” had been -gathering collard greens and while driving home they had an argument during which the deceased slapped the appellant. However, before they arrived at the deceased’s place of residence, the relations between the two had become amicable. Upon arriving at the house the two went into the bedroom occupied by the deceased. Thereafter, a witness heard them talking in a friendly manner. About 4:30 P.M., this witness heard a shot and saw the defendant run out of the room saying, “I done shot Sammy, get a doctor.” The defendant testified that the shooting was accidental and occurred when the deceased handed her a breeched shotgun that was loaded. She stated that when she snapped the gun closed it discharged, hitting the deceased. Although this case was reversed because of rulings by the trial court excluding testimony of character witnesses, the court noted that the jury should have been charged as to second degree manslaughter.

Three factors distinguish both Davis v. State, supra, and Miller v. State, supra, from the ease before us now. The first is the absence of witnesses to the killing. Such an absence would in many cases leave open the question of intent. In the case at bar, two witnesses testified that they saw the appellant shoot the deceased and, in our judgment, their testimony would have to be considered in establishing intent, as well as the other elements of the crime. Another factor pointed up in the preceding eases was that only one shot was fired. The evidence in the record of the present case indicated that the weapon used by the appellant was fired between three and five times. The repeated firing of the weapon would tend to show not only the intent.to fire but an intent to harm. Further, in Davis v. State, and Miller v. State, only one person was shot, and in the case before us, the facts show that, during the series of shots fired, one person was killed and another was shot in the hip. Another factor to be considered is the conduct of the parties immediately prior to the shooting. In Miller v. State, a witness testified that the defendant and the deceased spoke to each other in a pleasant manner immediately prior to the shooting. Such evidence would tend to prove the absence of an intention to kill. Here, the testimony of the stepdaughter and the appellant’s son indicated that the appellant was arguing with his wife just before the shooting. The argument was of such a nature that the appellant’s ten-year-old son, in order to protect his mother, struck the appellant over the head. Under these circumstances, it would not be unreasonable to assume that the appellant intended to do harm by the act for which he is charged.

Fulghum v. State, 291 Ala. 71, 277 So.2d 886, the case cited by counsel for both the appellant and the appellee, indicates still another factor to be considered in determining whether a jury should be instructed as to second degree manslaughter. The evidence presented in Fulghum v. State, indicated that the defendant failed to exhibit any emotions of remorse or regret and failed to assist the injured victim after he shot him. On the contrary, he threatened a bystander with harm should he call an ambulance. After the shooting, the defendant, Fulghum, went home and went to sleep. The facts in Fulghum concerned the conduct of the defendant after the injury was inflicted. In the instant case we note that the appellant did not call the police or an ambulance after his wife and stepdaughter were shot. Although he denied any knowledge of concealing the weapon, it was in fact concealed under a cushion of a chair. However, he did later instruct his stepdaughter to call an ambulance. His conduct, although it was not the same as that found in Fulghum v. State, because he did remain at the scene, was certainly not the most commendable.

Under the facts of the present case it was the trial judge’s duty to determine whether there was any evidence tending to show whether the appellant’s conduct was unintentional or accidental, thus requiring an instruction on the elements of second degree manslaughter. We believe the court properly considered the number of shots fired, the likelihood of an argument preceding the shooting, the testimony of eyewitnesses to the shooting and the conduct of the appellant immediately after the shooting. All these factors, we believe, warranted his decision not to instruct the jury with regard to second degree manslaughter.

The Supreme Court of Alabama in Fulghum v. State, supra, stated:

“. . . The law presumes that a man tends to do what he does. . . . Furthermore, the law infers from the use of a deadly weapon an intent to kill or to do grievous bodily harm. A killing done with a deadly weapon is presumed to have been done maliciously.” [Citations omitted.]

The only evidence presented at trial indicating the shooting was unintentional and accidental came from the lips of the defendant. In our judgment it was not error for the court to refuse to instruct the jury on manslaughter in the second degree.

II

Counsel for appellant contends that it was error for the trial court to refuse to give the following requested Charge No. 28 on good character:

“The Court instructs the jury that good character itself may, in connection with all the evidence, generate a reasonable doubt and entitle the Defendant to an acquittal, even though without such proof of good character you would convict.”

Although this identical charge has been held to be good by the Supreme Court of Alabama, and by this court, the rule is well established that where the same charge is covered in the court’s oral charge, the refusal of a requested charge is not grounds for a reversal. Taylor v. State, 49 Ala.App. 433, 272 So.2d 905; Carson v. State, 49 Ala.App. 413, 272 So.2d 619; Wall v. State, 49 Ala.App. 285, 270 So.2d 831; T. 7, § 273, Code of Alabama 1940, Recompiled 1958.

Our reading of the record indicates this requested charge was substantially covered in defendant’s given requested Charge No. 27, which reads:

“The Court instructs the jury that good character itself is part of the evidence in this case, and if the jury upon consideration of all the evidence have a reasonable doubt growing out of any part of the evidence, the jury will give the benefit of such doubt to the defendant and acquit him.”

Charge No. 28 having been covered, the court did not err in refusing it.

Ill

It is alleged that the trial court committed reversible error when it failed to give defendant’s requested Charge No. 32, on reasonable doubt. It reads:

“The Court instructs the jury that a reasonable doubt is sometimes said to be a doubt for which a reason can be given; it must spring from the evidence in the case. If, after careful consideration of all the evidence you have a doubt arising from the evidence or any part of the evidence of the defendant’s guilt, and any such doubt seems to be reasonable to you, then the defendant should be acquitted.”

The appellant argues that although the trial court did instruct the jury with regard to reasonable doubt, it failed to emphasize to the jury that a reasonable doubt might arise from part of the evidence where the jury weighs all the evidence. It is contended that the defendant sought to present that theory to the jury through defendant’s requested Charge No. 32.

The record reveals that the court gave the following instructions to the jury:

“The Court instructs the jury that a reasonable doubt may arise out of a lack of evidence as well as from the evidence itself. If after a consideration of all the evidence you have a reasonable doubt as to the guilt of the defendant it will be your duty to acquit him.”

Further, we note in Charge No. 27, supra, given at the request of the defendant, the trial court did in fact instruct the jury on this point. The pertinent part of that charge reads:

“. . . and if the jury upon consideration of all the evidence have a reasonable doubt growing out of any part of the evidence, the jury will give the benefit of such doubt to the Defendant and acquit him.” [Emphasis added.]

In our judgment, even though this language came from the charge containing the good character instruction, the particular portion alluded to was part of a conjunctive sentence including all of the evidence. Furthermore, it was not limited to good character evidence alone.

In view of the foregoing, we believe that requested Charge No. 32 was substantially covered by the court’s oral instruction given as a result of defendant’s given requested Charge No. 27. Therefore, the court’s ruling was proper.

IV

The appellant maintains that the trial court’s refusal to allow, on re-direct examination, “negative evidence in support of good character” was error.

In examining this question concerning negative character evidence, we reviewed the character testimony in question. That testimony in its pertinent parts reads:

“Q All right. Now, during the time that you have known Mr. Chavers over that nineteen-year period, have you come to know his general reputation among his associates?
“A I think that I do; yes, sir.
“Q Is that reputation good or bad?
“A I would say it’s good.”

During cross-examination by the State of this witness the following occurred:

“Q Do you visit Mr. Chavers at home?
“A No, sir, I never have, no more than at work.
“Q So the only knowledge that you have about Mr. Chavers’ reputation and conduct is his reputation where he works?
“A Right.
“Q And you have — do you have any knowledge about his — what his reputation was in the community where he lived or in his family?
“A No, sir, I haven’t come in contact with nobody — .
“Q And its your testimony that his reputation at work about honesty and violence is good?
“A Is good; yes, sir.
“Q But you are unaware of his reputation at home and in his community where he lived?
“A At his job it’s good. I don’t know a thing about after he left.
“Q You never heard anything bad about him?
“A No, sir.
“MR. REYNOLDS: We object.
“THE COURT: Sustained. Ladies and gentlemen, disregard that last answer of the witness . . . .”

We recognize that a defendant has a right to introduce negative evidence in support of his good character. However, the testimony above indicates that as to this particular witness his knowledge of the defendant’s good character was confined to his reputation for good character while on his job.

Wigmore on Evidence § 1616 (3rd ed. 1940), acknowledged:

“But in the condition of life today, especially in large cities, a man may have one reputation in the suburb of his residence and another in the office or the factory at his place of work. . . . There may be distinct circles of persons, each circle having no relation to the other, and yet each having a reputation based on constant and intimate personal observation of the man.”

We note that the above testimony showed two distinct circles of reputation for the appellant, his reputation in the community where he lived and his reputation at his place of work. The testimony, showed that this particular character witness could not properly answer a general character question as to both circles.

If the defendant had sought to confine the negative evidence in support of his good character to the place where he worked, a different question would have been presented. In the present case it is clearly shown that the defendant’s character witness had no knowledge of the defendant’s character within his residential community. The community where all the events of the tragedy occurred was not the place where he worked.

Reputation, to be provable, must be a general reputation, that is, what is generally said of the person by those among whom he dwells or with whom he is chiefly conversant. Watson v. State, 181 Ala. 58, 61 So. 334; Charley v. State, 204 Ala. 687, 87 So. 177.

In view of the foregoing fact, we believe that the trial court was correct in sustaining the State’s objection to the negative character evidence.

V

The appellant insists that the trial court committed reversible error when it permitted the State to introduce testimony concerning the appellant’s firing of his pistol on prior occasions. Appellant contends the admission of testimony tending to show appellant’s commission of this specific act in the past unfairly impeached him as to a collateral matter and that confusion of issues resulted, requiring appellant to defend against accusations not contained in the indictment. Counsel reasons that since appellant freely admitted at trial that he shot deceased, the only issue for determination was whether his act was accidental. He contends appellant’s actions on earlier occasions would have no relevancy and that to bring them before the jury was prejudicial error.

The record indicates that during re-cross examination the appellant was asked the question:

“Q I believe you were asked had you ever shot that pistol in the floor of your house before.
“A No sir, I never.
“Q Never have?
“A No sir.”
“Q (By Mr. Reynolds) Other than on New Year’s Eve, Mr. Chavers, have you fired that pistol?
“MR. REDDEN: Same objection.
“THE COURT: Overruled.
“Q (By Mr. Reynolds) In the house?
“A No, sir.
“Q Outside the house?
“A No, sir.
“Q Just on that one occasion, New Year’s Eve?
“A New Year’s Eve.”

Later during the rebuttal testimony by Cora Dickerson we find the following:

“Q (By Mr. Patton) Miss Dickerson, let me direct your attention again back to January and February of 1975, and ask you whether or not a shot was fired in your home during that period of time?
“MR. REDDEN: We object to that as being immaterial, not having any probative value on any point at issue in the case, prejudicial, no predicate laid.
“THE COURT: Overruled.
“MR. REDDEN: We except.
“Q (By Mr. Patton) Will you answer that?
“A Yes.
“Q Do you recall who fired that shot?
“MR. REDDEN: Same objection, same grounds.
“THE COURT: Overruled.
“Q (By Mr. Patton) Who fired that shot?
“A My step-father.
“Q And he fired this same pistol?
“MR. REDDEN: Same objection, same grounds.
“THE COURT: Overruled.
“A Yes.
“Q (By Mr. Patton) Where did he fire this shot?
“MR. REDDEN: Same objection, same grounds.
“THE COURT: Overruled.
“A In the kitchen.
“Q (By Mr. Patton) All right. Who was present in the kitchen?
“MR. REDDEN: Same objection, same grounds.
“THE COURT: Overruled.
“A My mother and Carlos.
“Q (By Mr. Patton) All right. Where in the kitchen was this shot fired?
“MR. REDDEN: Same objection, same grounds.
“THE COURT: Overruled.
“A In the floor.”

In Wright v. State, 279 Ala. 543, 188 So.2d 272, Justice Harwood wrote:

“While these statements in the present case may have prejudiced the appellant in the eyes of the jury, yet, in criminal prosecutions the conduct and declarations of an accused on other occasions are relevant when they tend to shed light on his motives and intentions in doing the act complained of. Hall v. State, 208 Ala. 199, 94 So. 59. Particularly do these statements of the appellant in this prosecution tend to shed light upon whether the shooting was accidental, as contended by the appellant, or was intentional.”

See: Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922; Emerson v. State, 281 Ala. 29, 198 So.2d 613; Mainor v. State, 11 A.B.R. 2098.

In view of the foregoing testimony, although it had a tendency to impeach, the fact that he fired the weapon in the kitchen, where the deceased was, could reasonably be an indication of his motives and intention in doing the act complained of. Certainly this conduct by the appellant tended to shed light on whether the shooting was accidental or intentional.

In this instance the court’s ruling was correct.

VI

It is asserted that on the re-direct examination of Cora Dickerson the State was allowed to go into immaterial matters that had no relevancy to the issues and served only to prejudice the jury against the defendant.

The recitation of the testimony of Cora Dickerson appears in division “V” above and is the evidence that the appellant now says was improperly admitted. The substance of that testimony was that Cora Dickerson was permitted over objection to testify that her stepfather had fired a pistol into the floor of the kitchen while her mother and Carlos were present. Appellant argues that this evidence had no probative value whatsoever and served only to prejudice the jury.

Cora Dickerson’s testimony, despite the fact that it collaterally impeached appellant’s prior testimony, served to show ill will toward the deceased.

The showing of malice and ill will was of probative value on the issue of whether the appellant intentionally or accidentally shot his wife. Although this testimony did attack the appellant’s credibility, the statement did relate to malice material to the issue of whether the shooting was accidental or intentional. Thus under Wright v. State, supra, the trial court’s ruling was correct. Thigpen v. State, supra; Emerson v. State, supra; Mainor v. State, supra.

VII

After a close reading and examination of this record we are convinced that the trial court was correct in overruling the defendant’s motion to exclude and refusing his motion for a new trial.

In reviewing these rulings by the trial court, this court will indulge every presumption in favor of the correctness of the rulings by the trial judge and the decisions thereon rest largely within his sound discretion. Heath v. State, 30 Ala.App. 416, 7 So.2d 579; Espey v. State, 270 Ala. 669, 120 So.2d 904.

The testimony presented by the State through the appellant’s son and stepdaughter was in sharp conflict with the testimony given by the appellant. Such conflicting evidence presented a question for the jury as to the guilt of the defendant unless it failed to make a prima facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Irons v. State, 42 Ala.App. 349, 165 So.2d 125.

In our judgment there was legal evidence from which the jury could by a fair inference find the defendant guilty of manslaughter in the first degree. Under these circumstances this court has no right to disturb the verdict. Whether such evidence was presented was a question of law; its weight and probative value were for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Rider v. State, 56 Ala.App. 137, 319 So.2d 756.

AFFIRMED.

TYSON, P. J., and HARRIS and BOWEN, JJ., concur.

BQOKOUT, J., dissents.

BOOKOUT, Judge,

dissenting:

In determining whether a requested charge should be given, the question is not whether the court believes the evidence supporting the charge, “but simply whether such evidence was presented.” Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1976).

In the instant case, the trial judge refused to give the defendant’s Requested Charges No. 24 and No. 26 (quoted above in the majority opinion). Those charges were approved in Howard v. State, 41 Ala.App. 360, 132 So.2d 384 (1961) and Bradberry v. State, 37 Ala.App. 327, 67 So.2d 561 (1953), respectively.

While the trial judge may have had reason to disbelieve the appellant’s version of the facts, he did not have legal cause to withhold that version of the facts from the jury’s consideration. The appellant testified that he did not intend to shoot or kill anyone. His testimony, if believed by the jury, would support a conviction of second degree manslaughter. In Burns v. State, 229 Ala. 68, 155 So. 561 (1934) the Alabama Supreme Court held, in pertinent part:

“Our decisions are to the effect that every prisoner at the bar is entitled to have charges given, which without being misleading, correctly stated the law of his ease, and are supported by any evidence, however weak, insufficient, or doubtful in credibility. Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St.Rep. 96. And in Morris v. State (Ala.Sup.), 39 So. 608, 611, it is said: ‘It matters not how slight the tendency of evidence may be towards establishing any material fact involved, the court cannot exclude it from the jury. Its weight is for their determination. . ’ ” (Emphasis supplied.)

Appellant was therefore entitled to have the jury instructed on the lesser included offense of second degree manslaughter.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte James Chavers, Jr. In re James CHAVERS, Jr. v. STATE of Alabama.
    SC 77-55.
    Supreme Court of Alabama.
    April 7, 1978.
    Rehearing Denied Aug. 4, 1978.

      L. Drew Redden and William N. Clark of Rogers, Howard, Redden & Mills, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., Montgomery, and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for respondent.
   MADDOX, Justice.

Petitioner, James Chavers, Jr., seeks to review the opinion of the Court of Criminal Appeals, 361 So.2d 1096 which upheld the trial court’s refusal to give the following requested charges on lesser included offenses of murder:

“CHARGE NO. 24
“The Court instructs the jury that manslaughter in the second degree is included in the charge against the defendant.
“CHARGE NO. 26
“The Court instructs the jury that if you believe from the evidence in the case, beyond all reasonable doubt and to a moral certainty, that the defendant killed the deceased without malice, either expressed or implied, and without intent to kill or inflict the injury causing death, while committing an unlawful act or while committing a lawful act in an improper or negligent manner, he would be guilty of manslaughter in the second degree.”

The Court of Criminal Appeals determined that both charges were properly refused because the evidence adduced at trial failed to warrant any instruction on second degree manslaughter. We reverse and remand.

As indicated by Bookout, J., who dissented, there was evidence given by the defendant that the shooting was unintentional and accidental. In fact, the majority opinion indicates that there was such evidence introduced because the opinion states: “The only evidence presented at trial indicating the shooting was unintentional and accidental came from the lips of the defendant.”

An individual accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position. Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973). A court may properly refuse to charge on lesser included offenses only (1) when it is clear to the judicial mind that there is no evidence tending to bring; the offense within the definition of the lesser offense, or (2) when the requested charge would have a tendency to mislead or confuse the jury. Lami v. State, 43 Ala.App. 108, 180 So.2d 279 (1965). In fact, our decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however, weak, insufficient, or doubtful in credibility. Burns v. State, 229 Ala. 68, 155 So. 561 (1934).

Was there any evidence presented that the killing was unintentional and accidental? Yes. The majority opinion indicates that there was. Therefore, the refusal to charge on lesser included offenses cannot be upheld on this ground.

Would the requested charges on lesser included offenses tend to mislead or confuse the jury? The answer to this question is more difficult. Charge No. 24 merely states that manslaughter in the second degree is included in the charge against the defendant. It neither defines the offense, nor is it based upon a consideration of the evidence. Why would it be error to refuse such a charge? Chavers says because the failure to give a similar charge has worked a reversal in the past. He cites Howard v. State, 41 Ala.App. 360, 132 So.2d 384 (1961). Howard is apt authority, but only because, in Howard, Cates, J., felt bound by stare decisis. There, the court said:

“While these charges fail to define the offense and are not based on a consideration of the evidence, nevertheless stare decisis compels us to consider them as correct in form. Judge Carr quoted the Duncan charge illustratively in Carter v. State, 31 Ala.App. 526, 19 So.2d 361. The formula, ‘a charge of assault with intent to murder includes a charge of assault and battery,’ was approved in Stovall v. State, 34 Ala.App. 610, 612, 42 So.2d 636. See Kelly v. State, 235 Ala. 5, 176 So. 807.”

In Lami v. State, 43 Ala.App. 108, 180 So.2d 279 (1965), cert. denied, 278 Ala. 710, 180 So.2d 282, the Court of Appeals held:

“Ordinarily, a charge that an indictment includes a lesser offense, when there is added to it the further instruction that the jury has authority to find the defendant guilty of the lesser offense, should be refused unless (1) the charge defines the offense, (2) is based on a consideration of all the evidence, and (3) sets out the degree of proof necessary to establish the offenses.”

Nevertheless, in Lami, the court again cited the rule that a simple charge which states that lesser offenses are included in an indictment should be given when the evidence so warrants. However, in Lami, the court found that the two charges on lesser included offenses requested in that case had a tendency to mislead the jury because one used an expression “may find” and the other used “can find.”

Howard, following precedent, reversed the failure to give the simple charge on lesser included offenses, but Howard did not approve the charge. On the contrary, Howard criticized the charge and the prior precedents. In Lami, the court again pointed out what requested charges on lesser included offenses should contain. This court denied certiorari in Lami.

Because of the failure of the trial judge to give requested charge No. 24, and the trial court's refusal to charge on second degree manslaughter we think the trial judge erred.

We are faced here with the situation which Cates, J., faced in Howard. In past cases, the failure of the trial court to give a simple charge on lesser included offenses has been held to be reversible error, although the court has criticized the precedents. However, in this particular case, we have the additional request made by the attorney for the accused for the court to charge the jury on lesser included offenses.

Having determined that the cause must be reversed, we need not discuss the failure of the trial court to give charge No, 26. However, we point out that we do not approve the use of the expression “all reasonable doubt,” instead of the expression “a reasonable doubt” in that charge, Bradberry v. State, 37 Ala.App. 327, 67 So.2d 561 (1953), to the contrary notwithstanding, assuming Bradberry so holds. The use of “all” instead of “a” was not discussed in Bradberry.

Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130 (1973) contains the correct rule:

“Appellant’s only other assertion or assignment of error is based on the court’s refusal to give defendant’s requested charge No. 1:
‘The Court charges the jury that unless you believe, beyond all reasonable doubt, that the defendant broke and entered the shop in question, you cannot convict this defendant.’
“The requested instruction runs afoul of the oft repeated rule to the effect that a trial court is not to be reversed for refusing a charge that pretermits consideration of the evidence as a basis for a finding of the jury, recently applied in Green v. State, 45 Ala.App. 549, 233 So.2d 243. It is also subject to just criticism in its use of ‘all reasonable doubt’ instead of the conventional ‘a reasonable doubt,’ as found in Alldredge v. State, 45 Ala.App. 171, 227 So.2d 803, and Brown v. State, 45 Ala.App. 391, 231 So.2d 167. The importance of convincing the jury by the evidence beyond a reasonable doubt was emphasized by the trial judge by his stating that the burden was upon the State ‘to prove the defendant guilty from the evidence beyond a reasonable doubt and to a moral certainty’ and by his explanation of the quoted language and repetition of it several times. We conclude that neither error nor injury to defendant is to be found in the refusal of requested Charge No. 1.”

The failure of the trial judge to charge the jury on second degree manslaughter was error. The judgment of the Court of Criminal Appeals is due to be reversed.

REVERSED AND REMANDED.

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

      . For a better understanding of the facts, we went to the record to read the court’s oral charge, and found the following:
      “Are there any exceptions to my charge?
      “MR. REDDEN: I have one. We except to the Court refusing to give other written requested charges. We also except to the failure of the Court to instruct the jury on the offense of Manslaughter in the Second Degree as contained in the indictment.
      “THE COURT: All right. Overruled.”


author: PER CURIAM.

text:
    James CHAVERS, Jr. v. STATE.
    6 Div. 211.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
   PER CURIAM.

After remandment by the Supreme Court of Alabama, REVERSED AND REMANDED on authority of the Supreme Court, 77-55 (April, 1978), 361 So.2d 1106.

All the Judges concur.


author: HARRIS, Judge. BOOKOUT, Judge,

text:
    James Louis ROBINSON v. STATE.
    6 Div. 571.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Nov. 15, 1977.

      Jerry N. Quick, Trussville, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

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

“The grand jury of said county charge that, before the finding of this indictment, JAMES LOUIS ROBINSON, alias JAMES LEWIS ROBINSON, alias JAMES LOUIS ROBINSON, JR., whose name is to the grand jury otherwise unknown, did, with a deadly instrument,, to-wit: a pistol, feloniously assault Donald P. Jones, a law enforcement officer, to-wit: a police officer for the City of Birmingham, Jefferson County, Alabama, while the said Donald P. Jones was engaged in the active discharge of his lawful duty or duties as such police officer for the City of Birmingham, Jefferson County, Alabama.”

Prior to arraignment it was determined that appellant was indigent and counsel was appointed to represent him. At arraignment he interposed a plea of not guilty. It took the jury nine minutes to return a guilty verdict and the Court sentenced him to twenty years imprisonment in the penitentiary. He is in this Court with a free transcript and trial counsel was appointed to represent him on appeal.

The facts in this case are not disputed. Appellant did not testify nor did he offer any evidence in his behalf. At the close of the State’s case appellant made a motion to exclude the State’s evidence and direct that appellant be discharged on the ground the State had failed to sufficiently prove its case. This motion was overruled and this puts us to a recital of the evidence.

Around 3 o’clock on the afternoon of December 26, 1975, Ms. Melinda Carol Brake-field, an employee of the First National Bank of Birmingham, the John C. Persons Branch, located on Eighth Avenue and Eighteenth Street, was standing in one of the drive-in teller windows and heard a disturbance outside the window. She saw a black male get out of a car, pull a gun and fire at a police officer who was on duty at the bank. She saw the officer, Donald P. Jones, return the fire and the black man started running from the bank’s premises. At this point, she lost sight of the black man and Officer Jones.

Officer Jones testified that he was a police officer with the Birmingham Police Department where he had been employed for eighteen years. He stated that, on December 26, 1975, he was working for the First National Bank at Eighth Avenue and Eighteenth Street, North. At approximately 3:00 p.m. he got a report that there was a fight outside one of the drive-in windows. He was dressed in uniform, on which he had his badge, and was in the lobby of the bank when he received the report about the fight. He immediately walked out of the bank to investigate the fight report and saw a car parked at the north drive-in window with three black males in the car. He walked up to the right front of the car and saw the driver open the car door and point a pistol in his face. He heard the pistol “click” three ¡times and he ducked and moved around the car. As he was moving around the car he heard the pistol fire three times. The officer returned the fire and saw the man with the pistol run in the direction of Seventh Avenue and Seventeenth Street. The officer gave chase and caught the man about a block and a half from the place of the initial shooting. In the meantime other police officers arrived and went to aid Officer Jones in apprehending the fleeing man. The fleeing man turned out to be appellant. Two or three officers hit appellant about the same time knocking the pistol from his hand. Officer Jones picked up the pistol and put the following inscription on it, “D.P.J. 12/26/75, 3:00 p. m.” In Court he identified the pistol as the one in the possession of appellant at the time of his arrest and the pistol was introduced into evidence without objection.

After appellant’s arrest he was carried to a local hospital and then to jail. Photographs were taken of appellant and after being properly identified they were introduced into evidence without objections. Photographs were also taken of the bank and the teller window where appellant was parked and where he tried to shoot Officer Jones. These photographs were introduced into evidence without objections.

Appellant strenuously insists that the State failed to prove the material allegations of the indictment in that there was not one iota, not even a “scintilla,” of evidence that the police officer was engaged in the active performance of his duties as a police officer at the time of the alleged assault. We do not agree.

Title 15, Section 152, Code of Alabama 1940, provides:

“An arrest may be made, under a warrant, or without a warrant, by any sheriff, or other officer acting as sheriff, or his deputy, or by any constable, acting within their respective counties, or by any marshal, deputy marshal, or policeman of any incorporated city or town, within the limits of the county.”

Title 15, Section 154, Code of Alabama 1940, empowers an officer to “arrest any person, without warrant, on any day and at any time, for any public offense committed, or a breach of the peace threatened in his presence, . . . ”

A policeman is an “officer” within the meaning of Sections 152 and 154, supra.

In construing these two sections,.the Supreme Court of Alabama in Alexander v. State, 274 Ala. 441, 150 So.2d 204, said:

“So it appears from above that a policeman has the duty of not only enforcing municipal ordinances or bylaws, but he has the responsibility of enforcing state criminal laws and is charged with the duty of making arrests for such violations.”

Such was our holding in Hutto v. State, 53 Ala.App. 685, 304 So.2d 29.

Clearly, under the evidence in this case Officer Jones was under a duty to investigate the reported fight at the teller window and it was his duty to arrest appellant who attempted to make a murderous assault upon him with a loaded pistol. If the pistol had not misfired Officer Jones would probably have been killed. Without the slightest hesitation we hold that Officer Jones was acting in line of duty when he was assaulted by appellant. Hutto v. State, supra.

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, except BOOK-OUT, J., who dissents with an opinion.

BOOKOUT, Judge,

dissenting:

As an essential element of the offense charged, the State must prove that at the time of the assault the officer was engaged in the active discharge of his iawfui duty as a police officer for the city of Birmingham. The evidence falls short of such proof.

At the time of the assault, the officer was off duty and was privately employed as a security guard by the First National Bank of Birmingham. I agree with the majority that Title 15, § 152, supra, invests city policemen with arrest authority. If Officer Jones had been in the process of making a lawful arrest at the time of the assault, then I would concur with the majority.

In Hutto, supra, the officer, while off duty, witnessed a public offense committed in his presence and during the course of making a lawful arrest, he was assaulted. Alexander, supra, involved a quo warranto proceeding as to whether a person could hold the office of constable and chief of police at the same time. I also agree that a police officer has a duty to enforce the law, as stated in Alexander.

The evidence in the instant case does not show Officer Jones to be in the process of enforcing a municipal ordinance or a state statute when assaulted. Neither was he attempting to make an arrest for a public offense committed in his presence. He, as a bank security agent, got a report that there was a fight outside one of the bank’s drive-in teller windows. He walked outside to investigate. He saw no fight or other public offense being committed. He only saw a car parked at one of the windows. There was nothing illegal or unusual about that, as the drive-in windows are specifically provided to service customers in automobiles. Nothing illegal occurred until one of the occupants of the automobile opened the door and pointed a pistol at the officer. That act constituted the assault at the instant.

Had Officer Jones encountered a public offense being committed in his presence and attempted to make an arrest or enforce some ordinance or statute, even though off duty, a legal duty would then have arisen. If assaulted while engaged in that duty, then the appellant could have been prosecuted under § 3, Act No. 746, Acts of Alabama 1967 (Title 14, § 374(20) Code of Alabama 1940, Recompiled 1958). However, the legislature enacted Act No. 746 to protect law enforcement officers who are placed in a dangerous environment by their public employment. It was never intended to elevate the degree of the offense of assault to cover an off-duty officer who is engaged in some voluntary and private employment. True, under Title 15, § 152, supra, he may have the authority to arrest for a public offense at any time, but unless he is actually performing that lawful duty, he is not covered by Act No. 746. That Act requires the performance of his lawful duty, not merely that he possesses authority to arrest.

Neither can I agree that the assault itself activates the statute. If that is so, then there is no need for Act No. 746 to specify that the officer be engaged in the lawful discharge of his duties when the assault occurs. In the instant case, nothing illegal transpired within the sight or hearing of the officer until the actual assault took place. If the assault itself instantaneously places the officer on duty, the only element necessary to prove is that the appellant assaulted an officer. The statute is not worded that way. The State must prove that the officer was performing his lawful duty when the assault occurred; that is, a duty placed upon him by law, not one arising from private employment. The evidence in the instant case fails to establish that essential element of the charge. An assault against a police officer is a serious and reprehensible offense. However, the instant assault charge should have been brought under another statute, in my opinion. I therefore respectfully dissent.


author: JONES, Justice. TORBERT, Chief Justice

text:
    In re James Louis ROBINSON v. STATE of Alabama. Ex parte James Louis Robinson.
    77-159.
    Supreme Court of Alabama.
    June 9, 1978.
    Rehearing Denied July 21, 1978.
    Jerry N. Quick, Trussville, Carol Millican, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., Montgomery, James L. O’Kelley, Asst. Atty. Gen., Birmingham, for respondent.
   JONES, Justice.

This case, before the Court upon writ of certiorari, involves the review of a conviction of assault with a deadly instrument upon a peace officer engaged in the active discharge of his lawful duty. The Court of Criminal Appeals affirmed the judgment rendered by the trial Court. We reverse and remand.

The facts are fully set out in the opinion of the Court of Criminal Appeals, Robinson v. State, 361 So.2d 1109 (1977); but, because of the matters discussed herein, a somewhat detailed recital is appropriate. On December 26, 1975, Officer Donald P. Jones, of the Birmingham Police Department, was off-duty. At that time, though in full uniform, he was employed by the First National Bank of Birmingham as a security guard.

At approximately 3:00 P.M., he received a report of a fight outside one of the drive-in windows. He walked out to investigate the report and saw a car with three black males in it parked at one of the windows. Upon walking up to the vehicle, Petitioner allegedly brandished a .22 calibre pistol and pointed it at Jones. The Petitioner allegedly attempted to fire the pistol three times, but the gun misfired. Thereafter, three shots were fired at Jones, and then Petitioner fled the scene on foot. Jones apprehended him a short distance away.

Robinson was indicted and convicted of the offense of assaulting with a deadly instrument a peace officer engaged in the active discharge of his duties; hence, this appeal. He asserts that the circumstances set out above do not constitute the offense for which he was charged because the officer was not engaged in the active discharge of his duties as a peace officer.

Title 14, § 374(20), Code (1973 Supp.), provides:

Assault with deadly instrument upon peace officer in performance of his duties.—Whenever any peace officer or other law enforcement officer of this state or any political subdivision of this state shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to commit any assault with a deadly instrument upon such officer, and any person guilty of such assault with a deadly instrument shall be guilty of a felony, and upon conviction shall be imprisoned in the penitentiary for not less than two years nor more than twenty years. (Emphasis added.)

Thus, the constituent elements of this offense are: (1) assault upon a peace officer; (2)who was engaged in the active discharge of his lawful duties, and (3) with a deadly instrument. McKinney v. State, 50 Ala.App. 271, 278 So.2d 719 (1973). See, also, Curlin v. State, 84 Tex.Cr. 602, 209 S.W. 666 (1919).

The sole question presented is whether, under the circumstances set out above, Officer Jones was “engaged in the active discharge of his lawful duty or duties.” Under the facts here presented, this appears to be a question of first impression.

It is undisputed that Jones, though in full uniform (including his badge), was off-duty and employed as a bank security guard. He witnessed no misdemeanor and received no report of a felony. The only offense of which he had personal knowledge was the assault itself.

The Court of Criminal Appeals, citing Tit. 15, § 154, Code, held that, because Jones was authorized to make arrests under certain situations, he was engaged in the active discharge or his duties. See Alexander v. State, 274 Ala. 441, 150 So.2d 204 (1963). This overlooks the question ably presented in Judge Bookout’s dissent. If such were the case, Judge Bookout asks, what then, would be the legislative purpose in adding the phrase: “engaged in the lawful discharge of his duties”? By the majority opinion below, any assault upon a police officer, at any time and under any circumstances, would violate the Code section under consideration merely because such officer is always authorized to make certain arrests. Certainly, this is not what the Legislature intended by the statute.

Criminal statutes are to be strictly construed. Shilts v. State, 49 Ala.App. 594, 274 So.2d 368 (1973). Furthermore, it cannot be presumed the Legislature has used language without any meaning or application. Fletcher v. Tuscaloosa Federal Savings and Loan Ass’n, 294 Ala. 173, 314 So.2d 51 (1975). Therefore, we must construe and apply the phrase: “engaged in the active discharge of his lawful duty or duties.”

In the case before us, there was no activating circumstance which would transform Jones from a bank guard to a peace officer. The assault itself cannot render this metamorphosis; there must be some prior circumstance which has occasioned the change from private citizen to peace officer.

Here, Jones was pursuing a personal activity—performing the duties of his “moonlighting” employer, the bank. There was no prior offense committed in his presence upon which he was acting. Therefore, because Jones was not engaged in the active discharge of his lawful duties as a peace officer at the time of the assault, the conviction must be reversed. See generally, Hutto v. State, 53 Ala.App. 685, 304 So.2d 29, cert. denied, 293 Ala. 758, 304 So.2d 33 (1974); Curlin, supra; and Williams v. State, 45 Wis.2d 44, 172 N.W.2d 31 (1969).

The decision of the Court of Criminal Appeals is reversed and the cause is remanded.

REVERSED AND REMANDED.

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

TORBERT, C. J., dissents.

TORBERT, Chief Justice

(dissenting).

I am in agreement with the majority of the Court of Criminal Appeals that the officer in question was “engaged in the active discharge of his lawful duty or duties” for purposes of Title 14, section 374(20), Code of Alabama 1940 (§ 13-1 — 42, Code 1975), and therefore respectfully dissent.

Police officers are empowered by statute to “arrest any person without warrant, on any day and at any time, for any public offense committed or a breach of the peace threatened in his presence, . . .” Tit. 15, § 154, Code of Alabama 1940 (§ 15-10-3, Code 1975). Therefore, the fact that a police officer is off-duty from his regular police assignments does not necessarily foreclose application of Title 14, section 374(20). Furthermore, the Manual of Rules and Regulations of the Department of Police of the City of Birmingham recognizes off-duty, or “outside policing activity,” as regular police work.

Officer Jones was called to duty when informed of a fight occurring outside the bank. He answered that call to duty by leaving his post and investigating the matter. The alleged assault occurred on a public street, not inside the bank where he was employed off-duty. I would hold that his investigation of this disturbance placed Officer Jones in active discharge of his lawful duty as a policeman. At least when the pistol was pointed at him and misfired, his subsequent pursuit to apprehend the defendant was surely in the active discharge of his lawful duty. To hold otherwise could seriously impede the actions of off-duty law enforcement officers when it is a matter of common knowledge that crimes are investigated, laws are enforced and arrests are made by police officers at times when they are technically “off-duty.”

      . § 13-1-42, Code 1975.

      . § 15-10-3, Code 1975.


text:
    James Louis ROBINSON v. STATE.
    6 Div. 571.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
   PER CURIAM.

After remandment by the Supreme Court of Alabama, REVERSED AND REMANDED on authority of the opinion of the Supreme Court, 77-159, June 9, 1978, 361 So.2d 1113.

All the Judges concur.


author: CLARK, Retired Circuit Judge. BOWEN, Judge,

text:
    Ervin Edward WILLIAMS v. STATE.
    1 Div. 825.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    Rehearing Denied Jan. 24, 1978.

      Donald E. Brutkiewicz, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and John B. Rucker, III, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

In a two-count indictment defendant-appellant was indicted for the unlawful possession of amphetamine in one count and meprobamate in the other; the one is a Schedule III controlled substance and the other a Schedule IV controlled substance of the Alabama Uniform Controlled Substances Act. Code of Alabama, Tit. 22, §§ 258(25)-258(60). The jury returned a general verdict finding defendant guilty, and the court imposed a sentence of ten years imprisonment in the penitentiary.

Officers George Washington, Roderick Roy and Walter Pickett of the Mobile Police Department testified that about 3:00 P.M., October 7, 1976, they and Officer Havard went to room 114 of the Town House Motel on Government Street in Mobile, with a warrant for a search of the room, and found defendant by himself in the room. They said that upon knocking at the door and one of them stating that they were the police and had a search warrant, defendant opened the door and admitted them. After a search of the room, a patting down of defendant and finding five white tablets and one red capsule in, on or about a hat in the room, defendant was taken into custody. The witnesses said they saw the hat on defendant’s head, two saying he had it on his head as they entered the room and the other stating that it was either then or “just after I entered the room.”

A toxicologist, whose qualification was admitted, testified she ran an analysis on the contents of the red capsule and on the white tablets, that the red capsule contained amphetamine and the white tablets meprobamate.

Defendant offered no evidence on the trial. He testified on a pretrial hearing of a motion to suppress the evidence.

It is insisted that the trial court was in error in overruling defendant’s motion to suppress the evidence, which alleged “that the search was in violation of the Fourth Amendment to the Constitution of the United States.”

Officers Washington and Roy testified on the motion to suppress substantially in accordance with their testimony on the trial as above narrated. In addition, it was shown by Officer Washington that about 10:00 A.M. on October 7, 1976, they made an affidavit before Municipal Court Judge Wilson and obtained a warrant to search “Room 114 of the Town House Motel, 1061 Government St., occupied by a white male named Eddie Williams and a white female named Kathy New.” The affidavit was as follows:

“COURT’S EXHIBIT NO. 1
“AFFIDAVIT FOR SEARCH WARRANT 2139
)
“STATE OF ALABAMA )
“COUNTY OF MOBILE )
DOCKET NO._
CASE NO._
“Before me, the undersigned Municipal Judge of the City of Mobile, Alabama, personally appeared Officer George Washington who being duly sworn deposes and says:
“That he (has reason to believe) that (xxxxxxxx)
xxxxxxxxxxxx
“(on the premises known as) Room 114 of the Town House Motel, 1061 Government Street occupied by a white male named Eddie Williams and a white female named Kathy New
“in the City of Mobile, Alabama, or its police jurisdiction, there is now being concealed certain property, namely
“(here describe property)
“Heroin
“which xxx (here give alleged grounds for search and seizure)
“Is illegally stored and kept at the above described address
“And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:
“I am Officer George Washington of the Mobile Police Department, Mobile, Alabama. I am presently assigned to the Narcotic Division. On October 7, 1976,1 received the following information from a reliable informant who has given me reliable information within the past 6 months. This information has led to the arrest and conviction of 2 drug violators in 2 cases in the City Court of Mobile, Alabama. The informant stated that within the past 12 hours, he was at the Motel known to informant as The Town House Motel, 1061 Government Street, Room # 114, which is occupied by a white male named Eddie Williams, and a white female named Kathy New. While at the motel at that time, the informant observed Eddie Williams and Kathy New go into the Motel Room 114. Eddie Williams was carrying a small plastic bag containing a brown powdered substance. This substance was represented by Eddie Williams and Kathy New to be heroin.
“I know that heroin is commonly packaged in this manner and has this appearance. I have frequently come into contact with persons using and handling this drug in my duties as a narcotic officer.
/s/ George J. Washington
Signature of Affiant
Official Title, if any
“Sworn to and subscribed before me, this 7th day of October. 1976.
“Court’s
“Exhibit /S/_
“No.l Judge of Municipal Court
City of Mobile, Alabama
1 A search warrant must be served in the daytime unless the affidavit states positively that the property is on the person or place to be searched, in which case it may be served at any time.”

Officer Washington testified also that at his appearance before Judge Wilson he made an additional affidavit similar to the Court’s Exhibit No.' 1 above, but different in that the place to be searched was described as:

“A 1962 Ford Van, white in color, bearing 1976 Alabama License # 2P-5388, registered to a Ronald Carlson and driven by a white male named Eddie Williams, frequently parked in parking lot of the Town House Motel at 1061 Government Street.”

In the second affidavit, Officer Washington also stated:

“While at the Motel at that time, the informant observed Eddie Williams and Kathy New get out of a 1962 White Ford Van, bearing 1976 Alabama License # 2P-5388, registered to a Ronald Carlson, and driven by Eddie Williams.”

Officer Washington testified that in addition to the information he had received from an informant as stated in the affidavits, which information he received about 8:00 or 9:00 o’clock on October 7, he had learned about two weeks before from other informants, and informed Judge Wilson, that a “white male called Eddie, driving a white van would be in the downtown area, often, at night, selling from the van, selling heroin.” Mr. Washington said his information came from two separate and unrelated informants, that he had a conversation with Judge Wilson at the time he applied for the search warrant and told Judge Wilson about talking with the informants, who he said “More or less told me the same thing about this to me,” and after his conversation with Judge Wilson, and taking an oath administered to him by Judge Wilson, Judge Wilson signed the search warrant.

In the course of the hearing of the motion to suppress, defendant’s counsel explained his basis for the motion as follows:

“Well, if it’s a question of the reliability, I can tell you right now, I’m not attacking the affidavit or the warrant on the basis of reliability. I’m not attacking it on the basis of the time element. I’m not attacking it on the, let’s see, now, I’m not attacking it on the basis of the time element or the reliability of the informant. The point that I’m attacking it on is the question of whether or not corroboration of the informant’s information was sufficient and adequate enough to overcome the test of impartial, of the impartial magistrate, having some evidence of corroboration other than the testimony of the informant, himself.”

In Proposition of Law I, counsel for appellant states:

“Information from an unnamed informant must be corroborated with enough independent facts supplied by the affiant, before an affidavit in support of a search warrant can engender in the mind of an impartial magistrate a finding of probable cause for the issuance of a search warrant.”

and cites as support for such proposition Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Davis v. State, 46 Ala.App. 45, 237 So.2d 635; Neugent v. State, Ala., 340 So.2d 52, rev’g Ala.Cr.App., 340 So.2d 43. In arguing the proposition advanced, appellant merely states:

“Spinelli and Davis -require independent corroboration of the tips from unnamed informants. The recent Neugent case held otherwise. The appellant wishes to speak to this modulating subject.”

We do not agree that the search warrant in this case does not meet the requirements of Spinelli. At any rate our duty is to follow what the Supreme Court of Alabama holds has been held by the Supreme Court of the United States.

Defendant testified on the hearing of the motion to suppress that the officers broke into the room instead of his opening the door for them. This, as stated above, was in conflict with the testimony of the officers.

There was no violation of defendant’s Fourth Amendment right to freedom from unreasonable searches and seizures.

During the State’s rebuttal opening statement to the jury, the following occurred:

“MR. DODSON: When they walked into the room, they found the man with the hat on, and the girl was — .
“MR. BRUTKIEWICZ: I’m going to object. He’s arguing the case, Judge — .
“THE COURT: Well, he can argue the evidence. There has been a little reaching — .
“MR. DODSON: I — I’m the only one who’s talked about the facts out there. He’s been blowing smoke in here — .
“THE COURT: All right. I’m not going to try the lawyers, now. Let me state that right now. I don’t want any of that in my Courtroom, please.
“MR. BRUTKIEWICZ: Your Honor, I move for a mistrial — .
“THE COURT: You make a proper and appropriate statement of response to what he intends to prove, and let’s confine it to what you propose to prove.”

Thereafter, counsel for defendant continued to press a motion for mistrial, which the court overruled after explaining to the jury that the attorneys were advocates for their respective sides. Appellant urges as error the action of the court in overruling the motion for a mistrial.

As the opening statement of counsel for defendant is not in the record, we are unable to say whether he was blowing smoke therein, but if it was, it would have been better for counsel for the State to have objected to it rather than to have so characterized it in his rebuttal statement. However, his statement was not of such an ineradicable prejudicial nature as to warrant a mistrial. Whatever wound there was was partly assuaged at least by the court’s remarks. No other relief was requested. We conclude that no reversible error is shown as to the particular matter, as was held in George v. State, 54 Ala.App. 90, 304 So.2d 908, as to a similar remark of State’s counsel relative to opposing counsel by saying that he would “cloud the picture.” We find little difference in smoke and cloud as agencies of obfuscation.

During the cross-examination of Officer Washington, defense counsel repeatedly asked him as to the name of the person who had registered for the room in which the controlled substance was found. He was asked whether it was James Owens. He replied in the affirmative. Defendant’s counsel showed by the witness that Owens was not at the room at the time of defendant’s apprehension and arrest. On re-direct examination, State’s counsel showed by the witness that Owens was not in Mobile on October 7, that he had been arrested by the witness in Texas and was in jail at that time. During the course of the re-direct examination along this line, defendant’s counsel objected to anything about James Owens “unless he knows of his own personal knowledge.” It was shown that the witness was the person who arrested Owens. Before any further objection was made, testimony was given by the witness as follows:

“Q. Have you been out to Texas?
“A. I have.
“Q. Did you see James Owens?
“A. I did.
“Q. You want to tell us the circumstances under which you saw him?
“A. I went out with $100,000.00 to buy forty ounces of heroin.
“Q. Prom James Owens?
“A. James Owens.
“Q. How long had he been out there?
“A. He went prior to the Thursday that I arrested him.
“Q. You had $100,000.00?
“A. Correct.
“Q. How much heroin?
“A. Forty — .”

From that point the record continues on the same subject as follows:

“MR. BRUTKIEWICZ: Judge, I’m going to object to any introduction of any evidence about James Owens and any criminal experiences that he may have been involved with. We are not dealing with guilt by association. We are not dealing with James Owens. We’re dealing with this man right here. Any evidence of anybody else, whether it be Jesse James or James Owens is completely beyond the purview of this — .
“THE COURT: I understand that the proffer is made to rebut the inferences concerning the residency of the room?
“MR. BRUTKIEWICZ: That’s correct, sir. But this goes way beyond the scope of the relevancy of the facts at issue in this particular case.
“THE COURT: Overruled.
“MR. BRUTKIEWICZ: It’s remote, prejudicial, highly prejudicial, and it shows evidence of guilt by association, which I understand we don’t deal with in American jurisprudence.
“THE COURT: Is it offered for the purpose of rebutting the inference as to the residency of the room, Mr. Dodson?
“MR. DODSON: Yes, sir.
“THE COURT: Overrule the objection.
“MR. BRUTKIEWICZ: We except, sir.
“Q. How long had Mr. Owens been in Texas and not in Mobile in room 114 at the Town House?
“MR. BRUTKIEWICZ: Well, Judge, I’m going to object on the same basis, and I’m going to object to it, too, on the basis of the formulation of the testimony itself. We can’t base the evidence on reports, or we can’t base evidence on hearsay, unless he personally knows, any type of testimony he might adduce would be hearsay, and, of course, objectionable.
“THE COURT: Did the witness testify that he was? That he was out there, and saw him in Texas?
“Q. Were you out there?
“A. I was.
“THE COURT: Testify to what you know, and not to what someone told you, please.
“Q. You were in Texas, yourself?
“A. Yes, sir.
“Q. And you saw James Owens there? Yourself?
“A. I did.
“Q. And you went out there with $100,-000.00?
“A. Correct.
“Q. To buy forty ounces of heroin?
“A. Correct.
“MR. BRUTKIEWICZ: Object, of course
“THE COURT: All right. Let’s move along, please.
“Q. How long had he been out there prior to October the 7th, 1976?
“MR. BRUTKIEWICZ: Of course, I object, and I understand your Honor’s overruled me.
“A. What was the question?
“THE COURT: How long had you been out there before October the 7th?
“A. I think I — .
“MR. DODSON: I think my question was, if you know, how- long had James Owens been out there?
“THE COURT: All right. If you know.
“A. I think he got there the Sunday prior to October the 7th.
“Q. The Sunday before October the 7th?
“A. That’s correct.”

We do not doubt, as counsel for the State urged on the trial, that perhaps counsel for defendant unduly emphasized by repetition the absence of James Owens from the hotel room at or about the time of the arrest of defendant. It seems that the trial court construed the evidence as to the absence of James Owens as giving rise to an “inference as to the residency of the room” which could be rebutted by the State. Even so, we are persuaded that the evidence admitted in some of its most prejudicial aspects went beyond the purview of such a rebuttal. Assuming that the State was entitled to show Owens’ confinement in jail in Texas at the time of the occupancy of the room by defendant and defendant’s arrest therein, we look in vain for any relevancy, either as a matter of affirmative evidence or in rebuttal of any inference as to “the residency of the room,” in the testimony of the witness that he had gone to Texas with $100,-000.00 to purchase forty ounces of heroin from James Owens.

We are not unaware of the obvious likelihood of a connection between defendant and Owens in traffic in heroin, as shown by the ex parte affidavits forming a basis for the search warrants for the room and the van, as well as the testimony on the pretrial hearing of the motion to suppress that defendant had been engaged in selling heroin on the streets of Mobile. It is to be kept in mind, however, that such testimony forms no basis for any decision other than as to the validity of the search and seizure, as ruled upon by the trial court after a hearing conducted out of the presence of the jury.

There may be some reasonable doubt whether counsel for defendant with appropriate timeliness and definiteness objected to the testimony which was so obviously prejudicial to defendant, but no such position was taken by the State or the court on the trial, and no such position is taken on appeal. This strengthens our view that we independently take that under all of the circumstances defendant adequately raised the question as to the admissibility of the testimony of Officer Washington that he went to Texas with $100,000.00 to buy forty ounces of heroin from James Owens. We admire and respect the forthrightness with which the learned trial judge handled the matter and with which defendant’s counsel on the trial and on appeal have met the issue, but we must disagree with their conclusions and find that the admission of such evidence constituted prejudicial error requiring a reversal of appellant’s conviction.

The injury to appellant was exacerbated by the reference of counsel for the State, in his closing argument to the jury, to the $100,000.00 and the forty ounces of heroin. His argument as shown by the record, without the immediately preceding context, was as follows:

“MR. DODSON: —He told you. Because on the Sunday before, he was out there with $100,000.00 of State money, buying 40 ounces of heroin from James Owens.”

Immediately thereafter the following occurred:

“MR. BRUTKIEWICZ: Hold on just a minute. I am going to object to this. Now, it’s not in the evidence, it’s highly prejudicial, and I don’t know what you said, but you never said that. The reason they know that James Owens was in that room is because — .
“MR. DODSON: Was not in that room.
“MR. BRUTKIEWICZ: Was not in that room is because what now?
“MR. DODSON: Because you asked George Washington where he was and you said, ‘Do you know for sure?’ And he said, ‘Yes, I was there.’ And we got into the $100,000.00 business with the heroin, and you objected then, and it was overruled.
“MR. BRUTKIEWICZ: Said that this Officer was out in Texas buying $100,-000.00 worth of opium from a James Owens?
“MR. DODSON: Forty ounces of heroin.
“MR. BRUTKIEWICZ: I object to this, Judge, because it’s bringing in other parties and other crimes, and has absolutely nothing in the world to do with this Defendant, and the only purpose that it could be brought up in the trial in chief or brought up before the Jurors in the Closing Argument would be to convict this man by guilt by association. And it has no probative value in the trial of this case, and I objected to it when it was brought up, and I’m going to object to it, now. It has nothing in the world to do except to try to prejudice this Jury against this Defendant on the whole basis of McCarthyism, or guilt by association.
“THE COURT: Gentlemen, as I told you earlier, you are the sole judges of the facts. When we began this trial, I told you that we are dealing with two very able counsel, and in the Opening Statements they would be inclined, they are overly anxious and eager for their particular side. But that what they said would not be evidence in this case, but merely their conclusions of what the evidence showed or said. Now, you, too, have heard the evidence. You can judge who made this remark, how it came up and in what manner it came up, and what the effect of it is. You are going to be the sole judge of the facts, but what these gentlemen say in their argument is not evidence. It is merely their impression, their inferences, their conclusion of what the evidence said, what it means, and you will have the final sayso. Overrule your objection, Mr. Brutkiewicz. I deny your motion. Let’s go ahead, please.”

Defendant’s further possible connection with traffic in heroin, which was not an issue in this case, was emphasized by testimony of Officer Washington during cross-examination as follows:

“Q. So it took four of y’all to get this, is that right? As a matter of fact, four of y’all went there, and you walked away with Eddie Williams and this, what I have in my hand?
“A. No, we walked away with a couple of ounces of heroin, too.
“Q. You walked away with a couple of ounces of heroin?
“A. Yes.
“Q. In this room?
“A. No, from the motel.”

This occurred prior to the injection into the case of the matter of the $100,000.00 and heroin and Owens in Texas and brought forth an immediate motion for mistrial by defendant’s counsel, which was argued by counsel for both sides out of the presence of the jury. The court announced that it would overrule defendant’s motion for a mistrial but that it would instruct the jury to disregard the evidence with reference to the two ounces of heroin. State’s counsel asked that he be allowed to argue further, and thereupon further argument was made by counsel for both sides, the jury was returned to the box and the trial court in a plenary statement instructed the jury to disregard the particular evidence. We think the court was correct in overruling defendant’s motion for a mistrial at that time in the light of all the circumstances, particularly the likelihood that the answer of the witness was to some extent called for by the questions on cross-examination, and the purging of the leaven by the positive instructions of the court, but its significance as a background on a consideration of the question of the extent of injury to defendant by the $100,000.00 — heroin—Texas — Owens matter is not to be ignored.

On the morning of the second day of trial, just as the court had reconvened, defendant moved for a mistrial and a lengthy hearing was conducted thereon out of the presence of the jury, at which testimony was given by defendant and others as to defendant’s being handcuffed when he was brought to the courtroom, where the handcuffs were removed just after he and the accompanying deputy had entered the courtroom and had taken three or four steps therein. There is no claim that there was any intentional mistreatment of defendant as a prisoner, and the evidence is clear that he had not misconducted himself «in the trial of the case. In finding that there was no error in overruling defendant’s motion for a mistrial, we follow what was held in Jackson v. State, Ala.Cr.App., 342 So.2d 452, in line with previous authorities on the subject.

“We are not persuaded that there is reversible error because the defendant was brought into the courtroom handcuffed to a deputy sheriff. The handcuffs were immediately removed from him after he was brought into the courtroom during the trial. Edwards v. State, 279 Ala. 371, 185 So.2d 393 (1966). A sheriff who is charged with the responsibility of safely keeping an accused has the right in his discretion to handcuff him when he is bringing him to and from the courtroom, when the handcuffs are removed immediately after he is taken into the courtroom. Smith v. State, 247 Ala. 354, 24 So.2d 546 (1946); Faire v. State, 58 Ala. 74 (1877). The record shows that defendant was in jail at the time of his trial.” Moffett v. State, 291 Ala. 382, 281 So.2d 630 (1973), cert. denied 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 114.

During the closing argument of counsel for the State, he said, “Did you know that every murderer, rapist, and killer, Charles Manson, Jerry Chatom — .” Then followed an interruption by defendant’s counsel and a lengthy colloquy, among counsel for both sides and the trial court, in which counsel for the State was asked by the court to complete the sentence he was going to make before he was interrupted, and counsel for the State said that he was going to say that they were “presumed innocent.” Defendant’s counsel objected and moved for a mistrial, stating that counsel for the State was putting defendant “in the category of a Charles Manson, a killer out in California that murdered a number of people, and I don’t know whether the Appellate Court would know it or not, but Jerry Chatom is a Mobile criminal who is charged with murdering two Deputy Sheriffs, and committing numerous other crimes.” Counsel for the State contended that it was counsel for defendant and not the State that “puts his defendant in the category of these people, not me.”

We can understand the apparent view of the court that defendant’s counsel was not correct in the ground of his objection that State’s counsel was attempting to put defendant in the category of Manson and Chatom, but we deem the argument of counsel for the State objectionable. It is not necessary for us to determine whether the overruling of the objection made by defendant’s counsel constitutes reversible error.

For the error indicated, the judgment of the trial court is to be reversed and the cause remanded for another trial.

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.

REVERSED AND REMANDED.

TYSON, P. J., and HARRIS and BOOK-OUT, JJ., concur.

BOWEN, J., dissents.

DeCARLO, J., joins in dissent.

BOWEN, Judge,

dissenting.

I must humbly and respectfully dissent from that part of the opinion finding reversible error in the trial of the appellant. Aware of admirable qualities and virtues of the Honorable Judge Clark for scholarship, thoroughness, and eloquence, I make this dissent with some hesitation.

This cause has been reversed and remanded under the majority opinion because of the admission of the testimony of Officer Washington that he went to Texas with $100,000.00 to buy forty ounces of heroin from James Owens. This evidence was elicited from the witness on re-direct examination by the State only after defense counsel had injected James Owens into the trial on prior cross examination and for the purpose of rebutting the inferences arising from defense counsel’s cross examination of the witness.

The testimony that Officer Washington had gone to Texas to purchase heroin from Owens was admitted without proper objection; defense counsel only objecting to the hearsay character of such evidence. Only when the State was going into this information for a second time did defense counsel assert further objection. This objection came too late. The evidence was already before the jury on a subject which defense counsel had initially introduced. Irrelevant evidence may be refuted with irrelevant evidence. Evans v. State, Ala.Cr.App., 338 So.2d 1033 (1976). It is not error to allow a witness to relate facts, over objection, which have already been related without objection. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975). The objection came after a responsive answer. There being no motion to exclude, there was no error. Miller v. State, 48 Ala.App. 28, 261 So.2d 447, cert. denied, 288 Ala. 746, 261 So.2d 451 (1972). The admission of testimony, if error, is harmless where the same witness has previously testified to the same facts without objection. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Whitehead v. State, 41 Ala.App. 387, 133 So.2d 513 (1961); Evans v. State, 40 Ala.App. 282, 112 So.2d 355 (1959); Purser v. State, 39 Ala.App. 169, 96 So.2d 689 (1957); Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968).

The information was undoubtedly prejudicial to the appellant yet it was defense counsel who opened the door by (1) first eliciting testimony about Owens and (2) not objecting until the complained of remarks were already answered and before the jury. Under these circumstances, it is my humble opinion that the State had a right to rebut any inference arising from the testimony elicited by defense counsel and in view of lack of proper objection, the testimony adduced in rebuttal was not error to reverse.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-301.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, petitioner.
    Donald E. Brutkiewicz, Mobile, for respondent.
   MADDOX, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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


author: BOWEN, Judge.

text:
    Ellis James LUKER, III, alias Junior v. STATE.
    1 Div. 891.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.
    Rehearing Denied May 16, 1978.

      A1 Pennington, of Pennington & Pennington, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

This is an appeal from an indictment and conviction of burglary in the second degree wherein sentence was fixed by the trial court at eight years’ imprisonment. At trial and on appeal the appellant is represented by court appointed counsel.

Sometime after ten o’clock on the morning of the 13th of January, 1977, the residence of Mr. and Mrs. William W. Taylor, Jr., of Mobile, Alabama, was broken into and ransacked. Mrs. Elaine Berman, a neighbor of the Taylors, testified that after two male strangers came to her door she telephoned the police.

Officer Otis Porter responded to Mrs. Berman’s call and went to the Taylor residence. As he made his way beside a fence behind the Taylor home he observed Marion Jackson Adams and the appellant come out of the back of the house. Officer Porter chased and captured Adams but the appellant escaped.

The appellant’s common law wife testified that the appellant was with her that morning in a motel room until around 10:30 A.M. She stated that around eight or nine o’clock Adams came to their room and left by himself.

Adams testified that he had already confessed to and been sentenced for committing this burglary. He stated that the appellant was not with him but that another friend of his participated in the burglary.

I

The appellant alleges that his motion for a mistrial was due to be granted because of the improper cross examination of a defense witness by the prosecutor.

During the state’s cross examination of Mrs. Luker the following occurred:

“Q. Have you ever been a patient at the Gateway Drug Treatment Center?
“MR. PENNINGTON (Defense Counsel): Object, Your Honor.
“THE COURT: Sustained.
“MR. PENNINGTON: Now, Your Honor—
“THE COURT: And grant the motion to exclude that, and ask the jury to disregard the statement.
“MR. FIGURES (Assistant District Attorney): That’s all I have, Your Hon- or.’-’

The witness was excused and defense counsel moved for a mistrial on the grounds of this question and because the prosecutor allegedly openly displayed before the jury a photograph of the witness in some way connecting her with the Gateway Drug Treatment Center.

The trial judge then had the jury sworn in and cautiously examined them to determine whether there was any juror who would not be able to disregard the question. Each juror was polled separately. From the court’s instructions and the answers of each juror it is clear that the question could be disregarded and would not affect his decision.

The rule in this regard was recently stated in Woods v. State, Ala.Cr.App., 344 So.2d 1225, 1229 (1976).

“If the trial court acts promptly to impress upon the jury that improper questions and improper statements are not to be considered by them in their deliberation the prejudicial effect of such remarks is removed. (Citations omitted) “Improper questions which are not answered are harmless.” (Citations omitted)

It is our conclusion that the action of the trial court removed the prejudicial effect of the prosecutor’s question. Because of our decision it is unnecessary for us to determine the effect of the use of drugs by a witness upon his testimonial competency and credibility, although it is generally recognized that drug use per se does not render a witness incompetent. 65 A.L.R.3d 705, Annotation: Use of drugs as affecting competency or credibility of a witness.

II

In cross examining defense witness Adams, the Assistant District Attorney asked him if he had been convicted of possession of marijuana. Defense counsel objected because possession was not “the proper form of conviction”. Upon the assurance of the Assistant District Attorney that possession did involve moral turpitude, the trial judge overruled the objection of defense counsel. The witness then indicated that he had been convicted for possession. Error is now alleged on the trial court’s ruling.

The state has cited no case which declares the offense of possession of marijuana to be a crime involving moral turpitude. We have been unable to find any.

In Gholston v. State, Ala.Cr.App., 338 So.2d 454 (1976), this court held that the offense of selling marijuana was a crime involving moral turpitude. In Hatchett v. State, Tenn.Cr.App., 552 S.W.2d 414 (1977), the Court of Criminal Appeals of Tennessee held that:

“The simple possession of marijuana is a misdemeanor. T.C.A. § 52-1432(b)(l). This is not a crime involving moral turpitude, or a crime of such a character that the conviction itself would discredit the testimony of the defendant. There is no connection between the use or possession of marijuana and the veracity of a witness.” Hatchett, at 552 S.W.2d 415.

Some jurisdictions allow the conviction of possession to be used for impeachment purposes where the conviction is a felony. People v. Anders, Colo.App., 559 P.2d 239 (1976); Albertson v. State, 89 N.M. 499, 554 P.2d 661 (1976); People v. Von Latta, 258 Cal.App.2d 329, 65 Cal.Rptr. 651 (1968). However these cases did not decide whether the felony of possession involves moral turpitude. We may only conclude from the prevailing case law that the misdemeanor crime of possession of marijuana for personal use does not involve moral turpitude.

We need not decide whether the felony of possessing marijuana involves moral turpitude under the circumstances of this case. It is clear that even if moral turpitude is not involved in that felony, the question and answer were harmless to the appellant in view of the other convictions which the state used for the impeachment of witness Adams. Rule 45, Alabama Rules of Appellate Procedure.

In cross examination of this witness the state showed that he was presently in the state penitentiary; that he had previously told an investigator that he didn’t want to testify in the appellant’s case because “I’d made other statements when I was arrested and I figured it (his present testimony) would be contradictory to what I would be saying then”; that Adams was convicted of grand larceny, of several burglaries, of assaulting a police officer, and of forgery. The witness volunteered that he had been charged for escape and on direct examination admitted having pled guilty to the burglary of the Taylor house and having been convicted of “various other crimes of a like nature”, and other burglaries.

Thus, even if the impeaching testimony of the conviction of possession of marijuana was improper, it was not prejudicial in view of the fact that the witness was otherwise discredited. Applying the doctrine of harmless error with caution we note that the evidence of the appellant’s guilt was strong. Boyd v. State, 50 Ala.App. 394, 279 So.2d 565 (1973). The fact that witness Adams was convicted of possession adds nothing to the state’s case and, in view of the other impeaching convictions, does not injure or prejudice the appellant. Considering all reasonable probabilities, the result would not have been materially, or even slightly, more favorable to the appellant had the error not occurred.

We recognize that the rule of harmless error is not a remedy for the blunders of the prosecutor which substantially harm or impair the rights of the accused. Yet we fail to see how the appellant was injured in this case. The damage was inflicted by legal and competent impeaching evidence.

We have carefully reviewed the record and finding no error affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: EMBRY, Justice.

text:
    In re Ellis James LUKER, III, alias Junior v. STATE. Ex parte Ellis James Luker, III, alias Junior.
    77-550.
    Supreme Court of Alabama.
    Sept. 8, 1978.
    A1 Pennington, Mobile, for petitioner.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State, respondent.
   EMBRY, Justice.

The writ of certiorari is dismissed as improvidently granted.

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