author: PER CURIAM. JONES, Justice

text:
    Lorenzo WARREN and John Echols, alias Joseph Echols v. The CITY OF AUBURN.
    SC 2072.
    Supreme Court of Alabama.
    Oct. 1, 1976.
    Maye, Melton, Kent & Gunter, Opelika, for appellants.
    Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellee.
   PER CURIAM.

This case was transferred from the Court of Criminal Appeals to this court by the Chief Justice pursuant to law.

I.

The following portion of this opinion was prepared for the court by Mr. Justice Faulkner, to whom the case was assigned.

Warren and Echols appeal from a jury verdict, and judgment of the Circuit Court of Lee County in a trial de novo, for violation of a city ordinance. We affirm.

Echols was tried on charges of drinking intoxicating liquor in a public place; (2) resisting arrest; (3) escape from a police officer; and (4) assault on a law enforcement officer. He was found guilty on all charges by the jury. The jury assessed fines, and the court ordered additional punishment of 6 months hard labor. Sentences ran concurrently.

Warren was charged with aiding and abetting Echols to escape custody of a police officer. The jury found him guilty and assessed a fine. The court added a 6 months sentence of hard labor.

The cases were tried jointly. They filed joint appeals.

The Facts

Police Officer, Martin Van Lampman, testified that on May 25, 1974 he received a call reporting an automobile accident in the vicinity of the Moton Apartments. He was wearing a police uniform and driving a vehicle marked with a police emblem. He drove his automobile down Slaughter Street and pulled into a parking area to the front of the Moton Apartments. This parking lot was identified as an area reserved for the tenants and guests of Building Number 5 of the Moton Apartments. Lampman later testified that Echols was a resident of Mo-ton Apartments, Building 5.

Lampman testified that after he stopped his vehicle in the parking area, he noticed Echols and another individual standing in front of an oak tree. Echols’ location was defined as being a few feet behind the sidewalk and approximately twenty feet in front of Building Number 5 of the Moton Apartments.

Lampman observed Echols tilt a Schlitz beer can to his mouth and then informed Echols that he was under arrest for drinking in public. Echols replied, “No, I’m in my front yard,” and turned from Lampman to walk in the opposite direction. Lamp-man grabbed Echols by his arm and wrestled him to the ground. They struggled on the ground for five or ten minutes and, in the process, Echols struck Lampman about the arms several times. Lampman then lifted Echols from the ground by his handcuffs which were attached to Echols’ right arm, and pulled Echols to the patrol car. As Lampman attempted to push Echols into the back seat of the patrol car, he observed an individual swing the lid of a garbage can at his head. Lampman identified Lorenzo Warren as the individual swinging the garbage can lid at him.

Lampman attempted to call for additional police units and Echols struggled free from his grip. Echols left the scene wearing a pair of handcuffs.

Lampman testified that the Schlitz beer can was knocked to the ground during the altercation and he observed “the contents coming out of it.”

Lampman testified that he recovered a Schlitz beer can, which “he supposed Echols had drunk from,” approximately one half hour after the incident. He testified that the can was empty but that he smelled the odor of beer. The can was not given to the State toxicologist for evaluation.

The evidence of Echols and Warren tended to show that Echols was not holding a beer can in his hand, and he was not drinking beer. They denied swinging a garbage can lid at the officer.

Issues

The principal issues raised in this appeal are: (1) Was the ordinance void because of vagueness; (2) was the place of the alleged drinking of intoxicating liquor a public place; and (3) was there sufficient evidence to prove a prima facie case.

A.

Section 15-38 of the Auburn Code of Ordinances provides:

“No person shall possess or drink malt, vinous, spiritous, or other intoxicating liquors within the confines or parking area of any stadium, basketball court, or other places in said city in which athletic events are in progress during or near to the playing at a public school or other athletic contests or events; and no person shall drink any such liquors in any other public place, except in places where liquors are sold at retail for consumption on the premises pursuant to a license issued by the Alabama Alcoholic Beverage Control Board.”

Echols maintains that this ordinance is void because of vagueness. He contends the last sentence of the ordinance applies only to places of the same general kind or class as those specifically mentioned. We disagree. The ordinance is not ambiguous. It is clear that the first part of the ordinance refers to places where athletic events are held, and the second part refers to any other public place. Either the first sentence, or the second sentence, could be stricken and the remaining sentence would have a clear meaning; the one does not need the other for interpretation. Consequently, we hold the ordinance not to be void because of vagueness. Whether the ordinance could withstand a constitutional charge of being administered in a discriminating manner has not been raised.

B.

Public Place

Was the alleged place of drinking the beer a public place? We hold that it was. Even though Echols was in the yard of his apartment house, he could be observed from a public street. Persons traveling the street could see him and his beer can. He was in a public place within the meaning of the ordinance. Franklin v. State, 91 Ala. 23, 8 So. 678 (1890); Lee v. State, 136 Ala. 31, 33 So. 894 (1902).

C.

Sufficiency of the Evidence

Echols moved to exclude the evidence when the City rested. The trial judge correctly overruled his motion.

Here, the officer saw Echols tilt a Schlitz beer can to his mouth; he saw the contents pour onto the ground during the fracas between him and Echols, and Echols did not deny that beer was in the can when the officer announced that he was placing him under arrest for drinking in public. Echols said, “No, I’m in my front yard.”

The weakest part of the City’s evidence is that of the empty beer can being retrieved by the officer 30 minutes after the “rumble” between him and about 30 or 40 citizens at the apartment complex. Admittedly, the officer exercised poor judgment in the first instance, but his failure to get the evidence — the beer can — at the scene is questionable. However, the jury could find from evidence other than the beer can that the can contained beer, and Echols was drinking it.

The other charges against Echols grew out of the drinking charge. He does not argue any other charge. We pretermit discussion of them.

II.

The following portion of this opinion was prepared for the court by Mr. Justice Bloodworth.

We hold that the City did sustain the burden of proof in the case against Lorenzo Warren for “aiding an escape.” This was an issue for the jury, which it found, under the evidence, adverse to Warren4 contentions. Following is the relevant testimony of the arresting officer.

. . Mr. Echols started to walk off, going down this sidewalk. I put a hand on his arm and told him he was under arrest, once again, for drinking in public and to come with me to the police station. At this time he said, ‘No,’ and he swung around with his other arm . . ”
“. . .1 wrestled him down to the ground and I attempted to start putting handcuffs on this individual and I got handcuffs on his right arm . . .”
“And there was at least about ten to fifteen people that were gathered all the way around in this area here and they were starting to close in so I got up, took Mr. Echols by the handcuff that I had on his right arm and by a lock of his hair and brought him to the police car here. I made an attempt to reach the mike that was on the hook and I couldn’t get it inside the car ... I was going to get to the back seat and try to open the back seat and put Mr. Echols into the back seat and by the time I got to the back seat, Mr. Warren . . . took a swing at me with a garbage can lid and I noticed that the individuals had increased to somewhere around twenty-five to thirty in the street and they were completely around the car and around my area and I became extremely fearful at that time so I decided to — it was either me getting to the mike or forgetting about the whole situation and going to the hospital and, especially after the garbage can lid had come flying after me.
“So I decided since I couldn’t reach the mike to go ahead and let Mr. Echols go so I could open the car door and get in to use both hands to open the car door and get in and get ahold of the mike. So I called ‘double zero’ which is the most serious police call. This is the ‘officer in trouble’ call . . . immediately after I put out this call, the individuals starting to move down the street and after I came back out of the car, they began to run down the street and I couldn’t tell where they ran but Mr. Echols left the scene wearing one of my handcuffs . . . ”
[Emphasis supplied.]

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES and BEATTY, JJ., concur in Part I.

JONES and EMBRY, JJ., dissent.

HEFLIN, C. J., and BLOODWORTH, MADDOX, ALMON, SHORES and BEAT-TY, JJ., concur in Part II.

FAULKNER, JONES and EMBRY, JJ., dissent.

JONES, Justice

(dissenting):

I dissent. I would reverse both convictions.

This case represents a classic example of the double standard tolerated by our criminal law system. A beer can in the hand of one man on his own property is somehow different from a beer can in the hand of another man on his own property.

A common summer weekend scene in suburbia Alabama is the homeowner mowing his lawn and quenching his thirst from a can (or bottle) of cold beer. But these are not the citizens of our state who are the subject of arrest for drinking in public; and, indeed, they pose no threat to society. It is the John Echols of our society who get arrested.

The system creates its own paradox: On the one hand, it searches vainly for the “mysterious” source of disrespect for the law, while on the other hand, through its unequal enforcement, it contributes to this disrespect — and even contempt — which the system so selfrighteously disdains.

For fear that the reader might interpret the foregoing as a mere expression of social philosophy, let me hasten to say that I would not hesitate to overrule the “public place” holdings of Franklin and Lee. To equate the agrarian settings of these two gaming cases of 1890 and 1902 with today’s urbanized society is unreasonable and unrealistic. Taken to its logical conclusion, the holding of these cases would even outlaw beer at backyard barbecues except on those estates large enough to preclude public view.

One closing observation: The record in this case is replete with frightening suggestions of how very close this episode came to erupting into a full-scale riot. Except that the officer did eventually exercise sound judgment in “letting Echols go,” serious physical harm to others, including the officer, would probably have resulted. And all this because the officer came onto private property to arrest a citizen for doing a harmless act which has become a customary and accepted practice in our society.

EMBRY, J., concurs.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    GREAT NORTHERN LAND AND CATTLE INCORPORATED, a corporation, d/b/a Southeastern Machinery and Equipment Company v. The FIRESTONE TIRE & RUBBER COMPANY, a corporation.
    Civ. 828.
    Court of Civil Appeals of Alabama.
    Sept. 29, 1976.

      George White, Gadsden, for appellant.
    Samuel H. Franklin, Birmingham, for ap-pellee.
   BRADLEY, Judge.

The Firestone Tire & Rubber Company, a corporation (hereinafter “Firestone”) filed an action against Great Northern Land and Cattle Incorporated, a corporation, d/b/a Southeastern Machinery & Equipment Company (hereinafter “Great Northern”) in the Circuit Court of Jefferson County, Alabama seeking damages in the amount of $8,742.74, plus interest and costs, for an indebtedness due Firestone from Great Northern growing out of the purchase of two heavy-equipment tires and charges for installation services and materials supplies on October 26, 1973. Great Northern filed an answer denying the indebtedness and counterclaimed for $500,000.00 damages allegedly suffered as a result of Firestone’s installation of the tires upon Great Northern’s equipment. Great Northern based its counterclaim in both tort and contract, alleging negligent installation of the tires; wanton, willful or intentional damage in installing the tires; breach of an agreement by failing to perform installation services in a good and workmanlike manner; and negligent or wanton breach of an agreement to perform installation services in a good and workmanlike manner.

The case was tried by the court and a jury; the jury returned a verdict in favor of Firestone in the amount of $9,791.87. All relief sought by Great Northern was denied. Great Northern thereafter filed a motion for new trial, assigning as error the failure of the trial court to charge with respect to its counterclaim sounding in contract. That motion was overruled and Great Northern perfected this appeal.

A pretrial order stipulated that during the period of October 22 through October 26, 1973 Great Northern purchased from Firestone two dozer tractor tires and the services and materials necessary for the installation of these tires. Pursuant to the agreement Firestone, through its employees acting within the line and scope of their employment, did install the tires on a Hough D-500 dozer tractor and performed the necessary related services.

Two witnesses for- Great Northern testified that the proper way to change a front tire on a machine like the one involved here is to jack-up the front end of the machine and place blocks beneath it to keep the front part of the machine raised. Both stated that it would also be proper to raise the front end of the machine by placing the blade on the ground and driving forward, lifting the front of the dozer by the blade. They testified, however, that the machine could be left in that position for only a short period of time and that to keep the machine propped up in that manner, in gear and with the engine turned on, would damage the torque converter and the transmission. Once the machine was lifted, blocks should be placed beneath it to take the weight off the blade. Each testified that he would not leave a tractor dozer resting on its blade to change a tire.

The Firestone employee who had been in charge of installing the tire in question testified that he had used the dozer blade to raise the machine. He further stated that he had been told by the manager of Great Northern that the machine should not be allowed to run for more than five minutes and that he and his crew had obeyed that instruction. No blocks were placed beneath the machine to support its weight.

At the close of the evidence, Firestone submitted written requests for instructions; Great Northern submitted none. The trial court charged the jury with respect to the duty of reasonable care owed Great Northern by Firestone in performing the installation but failed to charge as to breach of contract. Counsel for Great Northern duly objected before the jury retired to consider its verdict. The transcript is as follows:

“MR. WHITE: Judge, I would like to except to that portion of the oral charge wherein the Court charged the Jury in substance, as to the nature of the counter claim and in particular in regard to the Court failing to charge the Jury, if I recall, the charge, that the Court failed to charge about the breach of contract, I don’t [think] the Court charged on that and we except to that and that is all we have.
“THE COURT: You say there is one I failed to say anything about and that is the breach of contract.
“MR. WHITE: I would like to except to that . . . .”

There was no evidence of a written contract or agreement between the parties. The only testimony concerning terms was that there was an oral agreement by Firestone to deliver and install the tires and by Great Northern to pay for the tires and services when the installation was completed. Great Northern claims, however, that the contract contained an implied provision that installation of the tires would be performed in a good and workmanlike manner and that this part of the contract was breached by Firestone’s negligent installation of the tires.

Great Northern assigns as error the trial court’s failure to charge the jury on its contract claim, noting that the counterclaim alleged breach of contract and the pretrial order stipulated that Firestone had installed the tires pursuant to an agreement between the parties. Great Northern contends that failure to charge the jury on this issue is reversible error.

Firestone counters by saying that Great Northern failed to comply with the requirements of Rule 51 ARCP, and therefore is precluded from raising the trial court’s failure to charge the jury; that Great Northern was not prejudicially injured by the trial court’s failure to so charge the jury; and that the appeal taken Jby Great'Northern is frivolous and due to be dismissed.

We consider first Firestone’s contention that Great Northern, by failing to comply with the requirements of Rule 51 ARCP, lost its right to appeal the trial court’s error, if any, in charging the jury.

Rule 51 ARCP provides in part:

“At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file . written requests that the court instruct the jury on the law as set forth in the requests. . . • . Every oral charge shall be taken down by the court reporter as it is delivered to the jury. The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge or in charges given at the request of the parties. No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Submission of additional explanatory instructions shall not be required unless requested by the court.” (Emphasis supplied.)

Firestone says that Great Northern cannot claim error under Rule 51 because Great Northern did not file written requests for instructions either before the court instructed the jury or after objection was made. This contention is without merit, since the filing of written instructions at the close of evidence is discretionary and submission of additional explanatory instructions are not required unless requested by the court. Here there was no such request from the trial court.

Objection by Great Northern was duly made before the jury retired to consider its verdict, and counsel clearly stated the matter to which objection was made. The question is whether counsel stated adequate grounds for the objection as required by the rule. Committee comment to the rule states that as a condition to the right to assert error on appeal, the party must object and state the grounds therefor before the jury retires. This comment was specifically recognized in Whetstone v. Caudle, 54 Ala.App. 299, 307 So.2d 697 (1975). The comment further explains that the rule is intended to provide for broader grounds for objection to the oral charge than is provided under the federal rule. Although the grounds must be stated in other than general terms, the federal requirement of “distinctly” stating grounds has not been preserved. “The word ‘distinctly’ has been deleted not for the purpose of opening the door for general objections, but rather, to avert undue requirements of specificity under an unnecessarily technical appellate construction of the word ‘distinctly’.” Rule 51 ARCP, Committee Comment.

Firestone contends that Great Northern failed to comply with Rule 51 in that no reasons at all were given for the objection. Counsel made a general objection to the charge dealing with the nature of the counterclaim and specifically for failure to charge on breach of contract. His reason for the objection, unstated at the time, was that failure to so charge left one theory of Great Northern’s case, as framed by the original counterclaim and the pretrial order, unpresented to the jury.

An examination of the underlying purpose of the rule puts Great Northern in a more favorable position. Rule 51 of the Federal Rules of Civil Procedure has been interpreted by the United States Court of Appeals for the Fifth Circuit as requiring that objection to the court’s oral charge be “sufficiently specific to bring into focus the precise nature of the alleged error.” Delancey v. Motichek Towing Service, Inc., 427 F.2d 897, 900 (5th Cir. 1970).

In Pierro v. Carnegie-Illinois Steel Corp., 186 F.2d 75 (3d Cir. 1950) the plaintiff failed to object to the trial court’s oral charge in the proper manner. However, the Court of Appeals found it “sufficiently specific to direct the attention of the Court to the issue it sought to raise, and the exceptions were definite enough to point out the omission from the charge. No more was required.” 186 F.2d at 78.

The Alabama Supreme Court in reviewing assignment of error for defect in an oral charge prior to adoption of Rule 51, stated:

“The process of review contemplates that the trial court will be given opportunity to correct any errors that it may have committed. Alleged errors in the oral charge must be specifically pointed out by objections, or exceptions, to the oral charge.”

Scroggins v. Alabama Gas Corp., 275 Ala. 650, 657, 158 So.2d 90 (1963). We think this philosophy applies to Rule 51 as well.

The objection in this case was clearly specific enough to inform the court of the error complained of and to afford the court an opportunity to respond. The transcript reflects that the court reiterated Great Northern’s objection. To require a statement of reasons for the objection under these facts would be imposing that sort of rigid technical construction of the rule which the drafting committee intended to avoid.

We are now confronted with the issue of whether the trial court’s failure to charge the jury on one of Great Northern’s theories of relief was reversible error, particularly where that action was framed as an issue both in the counterclaim and in the pretrial order. Great Northern relies on the principle, well established by Alabama courts, that a party is entitled to have his or her theory of the case made by the pleadings and issues presented to the jury by proper instructions. Jones v. Blackman, 284 Ala. 684, 228 So.2d 1 (1969); State Farm Mutual Automobile Ins. Co. v. Dodd, 276 Ala. 410, 162 So.2d 621 (1964).

Great Northern’s contract claim is that an express contract to install tires and perform necessary related services existed between the parties. This express contract, Great Northern contends, contained an implied provision that the installation and services would be performed in a good and workmanlike manner. The contract was breached by Firestone’s alleged negligent installation of the front tire. We find Great Northern’s count in contract to be without basis.

There is no question that contracts are to be performed in a “workmanlike manner.” Justice Stone in the early case of Mobile Life Insurance Co. v. Randall, 74 Ala. 170 (1883), stated at 177:

“. . . [Contracts, however briefly expressed, are to be interpreted in the light of great legal principles, which enter into and permeate all human transactions. Hence, the duty of requisite skill, fidelity, diligence, and a proper regard for the rights of others, is implied in every obligation to serve another. The degree of these qualifications is graduated by the nature of the service undertaken; but they inhere in, and form a part of all dealings between man and man.”

The problem that has served as a source of confusion is whether the failure to perform with the requisite skill, fidelity and diligence gives rise to a cause of action in contract or in tort or both.

Justice Stone made the distinction that if the cause of action arose from the breach of the promise, the action is in contract; but if the cause of action arose from breach of a common-law duty which grows out of the contractual relationship, then the action is in tort. Stone used an example from Wilkinson v. Moseley, 18 Ala. 288 (1850) to illustrate his principle:

“If the declaration allege the hiring of a horse to ride to a certain place, and that the defendant rode him so immoderately that he died, this would be case; for the contract of hiring imposed upon him the duty to ride in reason, or not unreasonably fast. But, if the declaration allege the hiring, and that he promised to ride with reasonable speed, but, not regarding his promise, he rode the horse immoderately, whereby he died, the action may be considered assumpsit.” Id.

Cases since have formulated the principle thus:

“When the contract does not in terms require reasonable care in doing the act stipulated to be done, the law imposes a duty — but does not imply a contract — to exercise due care in doing the act; and, therefore, when negligence exists in doing that act an action in tort only is available because there is no express or implied contract which is breached.” (Emphasis added.)

Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 258, 73 So.2d 524 (1953); Vines v. Crescent Transit Company, 264 Ala. 114, 85 So.2d 436 (1955); Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 (1971); C & C Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275 So.2d 124 (1972).

The most recent case to follow this principle is Green v. Hospital Bldg. Authority of City of Bessemer, 294 Ala. 467, 318 So.2d 701 (1975). The court there found that the law will not impose on a hospital an implied promise to use due care, adding:

“We think the wiser course is to refrain from disturbing the well established line of cases which have refused to imply a promise where none actually exists.” 294 Ala. at 470, 318 So.2d at 704.

The contract relied upon by Great Northern made no mention of the manner of performance. Thus, no express promise was breached by Firestone’s alleged negligent action and the law will not imply such a promise. Great Northern’s sole cause of action was for the breach, if any, of the duty implied in all contracts for services that the work be performed with the degree of skill or workmanship possessed by those of ordinary skill in the particular trade for which one is employed. C. P. Robbins & Associates v. Stevens, 53 Ala.App. 432, 301 So.2d 196 (1974). The trial court acted correctly in not giving Great Northern’s requested charge.

The final issue for decision is whether the appeal by Great Northern was frivolously taken. Firestone argues that Great Northern’s sole purpose in taking this appeal is to avoid paying Firestone’s judgment. To support this contention Firestone relies on court proceedings collateral to this suit.

Regardless of Great Northern’s motives in taking this appeal, the appeal itself is not frivolous. The contract issue was framed initially in Great Northern’s counterclaim and survived as an issue in the pretrial order. There was testimony at trial relating to an implied contract between the parties; consequently, Great Northern reasonably concluded that it had a genuine issue for presentation to this court for decision. Under these circumstances, the appeal is not frivolous.

For the reasons above stated, the trial court’s judgment is affirmed.

MOTION DENIED; JUDGMENT AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: HARRIS, Judge.

text:
    John T. DOLBERRY v. STATE.
    8 Div. 808.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.

      Charles Dawson, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the crime of bribery to commit arson and sentenced to eight years in the penitentiary. Throughout the trial proceedings in the Circuit Court of Jackson County he was represented by counsel of his own choice and at arraignment pleaded not guilty. After conviction he gave notice of appeal and trial counsel represents appellant on this appeal.

According to the State’s evidence this prosecution stemmed from an investigation initiated by Mr. Donald Barrett, Special Agent with the U.S. Treasury Department, Bureau of Alcohol, Tobacco, and Firearms Division. Mr. Barrett had been a criminal Investigator with the Treasury Department for sixteen years. According to Mr. Barrett’s testimony appellant had been dealing in moonshine whiskey for over thirty years. Mr. Barrett knew appellant by sight and also knew his voice as he worked on the case that brought about a federal conviction of appellant for violating the law in dealing with non-tax-paid whiskey. After appellant served his sentence Mr. Barrett thought he was again engaged in the business of selling moonshine whiskey and he got the Government to employ one Billy Ray Fennell as a special employee to work with him in trying to catch appellant. The testimony for the State tended to show that at one time Billy Ray Fennell had hauled illegal whiskey for appellant. Fennell was paid by the day when he worked with Mr. Barrett.

The mode of operation involved this special employee, Billy Ray Fennell, driving an old unmarked Chevrolet automobile owned by the Government to various known or suspected dealers in illegal liquor traffic and attempting to make a purchase. Mr. Barrett would conceal himself in the trunk of the old Chevrolet and listen to these conversations to gather evidence.

The first contact that Barrett and Fen-nell had with appellant was August 6,1974, at appellant’s residence where Barrett had been on numerous occasions. Fennell told appellant that he was back in the whiskey business and wanted to buy some and appellant told him he did not have any whiskey at that time but to contact him later and he would try to locate some. They made four different trips to appellant’s home but were told each time that appellant had not been able to locate any whiskey.

On one of these trips appellant said to Fennell, “That job I talked to you about last year, I would still like for you to do it if you want to,” and Fennell said, “Yes, he would.” Appellant asked Fennell if he still wanted $500.00 and Fennell said yes. Appellant said, “I want Lester Cornelison’s barns burned; he has three of them.” Fen-nell told appellant that it would take another $100.00 as he had to have another boy to help him and “this boy doesn’t know who you are.” Appellant said he didn’t want to know him and said, “That would be three barns and $200.00 apiece.”

Barrett further testified that appellant stated that Lester Cornelison had been helping Barrett and had helped Barrett catch him and another member of his family and sent them to the penitentiary. Barrett stated that at no time did Fennell bring up the subject of burning bams but that appellant initiated the conversation on each and every occasion that he was present in the trunk of the automobile. The last meeting was on August 11, 1974 when appellant told Fennell that he wanted Corneli-son burned out because he was watching his moonshine operation and had gotten him caught previously and offered Fennell $500.00 to do the job and that it was on this occasion that Fennell told him it would take another $100.00 making the total of $600.00 for all three of Mr. Cornelison’s barns. Barrett stated that appellant and Fennell planned at this time to meet again and discuss the details of the burning.

Following this last meeting Barrett reported the bribery offer of appellant to Mr. Irby Lyles, Deputy State Fire Marshal, and to the Jackson County District Attorney. Mr. Lyles then contacted Fennell concerning the bribery offer of appellant to pay Fennell $600.00 to burn the three barns belonging to Mr. Cornelison. Mr. Barrett further testified that Mr. Cornelison had never helped him in any manner concerning appellant’s illegal liquor traffic nor had he ever furnished him any information that led to the arrest of appellant.

On October 7, 1974, Fennell again returned to appellant’s home to settle the details about the burning of the barns. On this trip, Fire Marshal Lyles was in the car trunk instead of Mr. Barrett. Fennell was equipped with a tape recorder to secretly record his conversation with appellant. The recorder was placed under the seat with the microphone strapped to the side of Fennell’s leg with Fennell’s consent.

When they got to appellant’s home Fen-nell sounded the car horn and appellant came out of the house and got in the car. At first the conversation between appellant and Fennell dealt with buying whiskey so the tape was not turned on as Lyles had told Fennell he was only interested in matters or conversations dealing with the burning of the barns. When the conversation mentioned the burning of the barns, Fen-nell immediately turned on the tape and from then on the conversation between appellant and Fennell was recorded. Appellant agreed to pay Fennell $600.00 the morning that the three barns were burned. The money was to be mailed to Fennell at his address in Scottsboro as it was agreed they should not be seen together.

Appellant and Fennell set October 15, 1974, as the date to meet again and discuss the exact date of the burning. They were to meet at Fennell’s house. Instead of going to Fennell’s house on October 15, as agreed, appellant went to Fennell’s house on October 14, 1974, and stated he wanted to postpone the burning until he could combine and sell his soybean crop and get the money so he would not have to go to the bank and withdraw the $600.00. Lyles had planned to record this meeting between appellant and Fennell but was prevented from doing so because appellant came one day ahead of the scheduled date.

The tape of the October 7, 1974, meeting between the appellant and Fennell was examined by an expert prior to the trial pursuant to appellant’s request and the order of the Court. The tape was played and heard twice at length outside the presence of the jury. No objection has made to the accuracy or authenticity of the tape per se but the defense objected on the ground that to be admissible other parts of the conversation should also have been recorded, and, furthermore, the tape was inaudible in parts. The Court on its own motion excluded certain parts of the tape pertaining to other crimes as being irrelevant to the charge for which appellant was then on trial. At this hearing in chambers it was shown by the testimony of the Fire Marshal that this tape had been in his exclusive possession since it was made and that the tape had not been altered or erased in any manner and had been reviewed by an expert. On the question of the tape being inaudible the Court made the following statement:

“Gentlemen, as to the objection that the transcript is not audible, the Court has heard the transcript again on the portable tape recorder and has listened to it at a distance in excess of twelve feet from where the tape recorder was played; and in the judgment of the Court, the tape was audible at that distance; so your objection on the ground that it’s inaudible will be overruled.”

The tape was then played to the jury but only after the Court had deleted matters entirely irrelevant to. the case.

Appellant testified in his behalf and admitted the meetings as testified to by Fen-nell and Lyles and the statements testified to by Fennell and Lyles as reflected by the tape recording, but stated that he was not serious in offering Fennell $600.00 to burn the barns of his neighbor, Mr. Cornelison, but that he only wanted to see how far Fennell would go. He further testified that he told Mr. Cornelison, “I am going to set somebody up and I am going to act like I am going to burn your barns and I am going to catch him.”

On rebuttal Mr. Cornelison denied that appellant made any such statement.

The sufficiency of the evidence is not presented to us on this appeal. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; there were no exceptions reserved to the Court’s oral charge to the jury. Appellant did file a motion for a new trial but no testimony was taken on this motion. The Court directed appellant to file a brief in support of the motion for a new trial and allowed him until August 1, 1975, to file such brief. Appellant did not file a brief and the Court overruled and denied the motion for a new trial. In this posture of the record nothing is presented to review as to the sufficiency of the evidence to sustain the conviction. Jones v. State, 55 Ala.App. 466, 316 So.2d 713; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Young v. State, 283 Ala. 676, 220 So.2d 843.

In reviewing the refusal of a motion for a new trial this Court will indulge every presumption in favor of the correctness of the ruling of the trial court and the decision thereon rests largely within the discretion of the trial judge. Clark v. State, 54 Ala.App. 217, 307 So.2d 28; Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624.

Tape recordings of conversations with persons accused of crimes and played to the jury have been many times approved by the appellate courts of this State. Boulden v. State, 278 Ala. 437, 179 So.2d 20; Flannagin v. State, 289 Ala. 177, 266 So.2d 643; Lykes v. State, 54 Ala.App. 7, 304 So.2d 249; Fikes v. State, 263 Ala. 89, 81 So.2d 303; Wright v. State, 38 Ala.App. 64, 79 So.2d 66.

In Wright v. State, supra, the Court said: “If the parties who were present when the recording was made are available to testify as to the statements made, the recording, even though inaudible, in parts, should be admitted as corroborative of the testimony of the witness or witnesses testifying to the statement.”

Both Fennell and Lyles were present when the statements were made by appellant and recorded on tape and the tape was corroborative of their testimonies. As above pointed out the trial judge deleted from the tape all irrelevant matters. He heard the tape twice in chambers and ruled that the tape was audible. The action of the trial court conformed in every respect with the cases on this subject.

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

The judgment of conviction is affirmed.

AFFIRMED.

CATES, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT, J., recuses himself, as the State Fire Marshal’s office, which participated in the investigation of this offense, was under the supervision of the State Insurance Department and Judge Bookout served as Insurance Commissioner during that time.


author: TYSON, Judge.

text:
    Lewis JAMES v. STATE.
    2 Div. 142.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 5, 1976.
    Drake & Knowles, University, for appellant.
    William J. Baxley, Atty. Gen., G. Daniel Evans, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the first degree murder of Taylor Oates, Jr., by “stabbing him with a knife.” At trial the appellant was found guilty of first degree manslaughter, and his punishment was fixed at ten years imprisonment. The trial court then entered judgment in accordance with this verdict. The appellant’s motion for new trial was overruled following a hearing thereon.

The incident giving rise to this indictment took place on the evening of September 23, 1974, in a field beside what used to be Brent Elementary School, but now serves as the community recreational center [R. 122].

The State’s first witness, Robert Lee Moseley, Jr., testified that he was present at the old Brent School on the night in. question. He stated that he saw the appellant and the now deceased, Taylor Oates, Jr., engaged in an argument, but because he was some distance from them, he could not hear much of their heated conversation. Robert Lee Moseley did testify that he saw the appellant and Oates “passing a few licks,” and that subsequently Oates turned and began walking away from the appellant. The witness stated that the appellant began following Oates, and that Oates warned the appellant “if he kept following him he was going to whip his ass” [R. 73]. Moseley said that the argument flared up again and that Oates broke off the argument once more by turning and walking away from the appellant. The witness testified that the appellant then threw a beer can at Oates and once again an argument began. Moseley stated that it was during this confrontation that the appellant stabbed Oates [R. 73]. Moseley testified that Oates, after being stabbed, walked over to his car where he and several others then took Oates to the Bibb County Hospital [R. 75]. Moseley stated that Oates could not get treatment at the hospital, therefore he requested that an ambulance be called to take Oates to Druid City Hospital in Tuscaloosa, Alabama. Moseley stated that the ambulance arrived about twenty-five minutes later.

James Hill testified that he also witnessed the argument between the appellant and Oates [R. 91]. Hill stated he could not hear everything that was said, but did testify that he heard Oates tell the appellant, just before Oates was stabbed, that “I ain’t got nothing in my pockets but a set of keys” [R. 98]. Although Hill testified that he saw the appellant “strike him [Oates] in the chest,” he did not realize that Oates had been stabbed until Oates walked up to Robert Moseley’s car [R. 95, 97], Hill testified that they first took Oates “down by his mother’s house,” then to Bibb County Hospital. Hill stated that when they arrived “about three of us” told the attending nurse to call an ambulance. Hill stated he was not sure that anyone even informed the nurse of Oates’ condition, or requested treatment for him at the Bibb County Hospital [R. 101, 102],

Henry Steven Levert testified that he was employed for the Bibb County Ambulance Service. Levert stated he received a call from the Bibb County Hospital, and arrived at the hospital about five minutes later [R. 108]. He stated that Oates’ sister accompanied him on the trip to Druid City Hospital in Tuscaloosa which took about twenty-five minutes. Levert testified that Oates died before they arrived at Druid City Hospital near “the turn-off on McFarland Boulevard” in Tuscaloosa [R. 109].

Millie Oates, sister of deceased, testified that she did not see her brother until after he was stabbed when she was picked up by the group that took her brother to the hospital. The witness testified that she rode with her brother in the ambulance to Tuscaloosa. She stated that she did not recall anyone requesting treatment for her brother at Bibb County Hospital [R. 117].

Sheriff Jack Lee testified he conducted the investigation of the stabbing death of Taylor Oates, Jr. He stated that there were blood stains on the ground where the stabbing took place. Sheriff Lee stated he also examined the body of the deceased at Druid City Hospital in Tuscaloosa and interrogated several witnesses that were present there [R. 124].

Dr. Richard Roper of the Alabama Department of Toxicology and Criminal Investigation testified he conducted a post-mor-tem examination on the body of Taylor Oates, Jr., at Lee’s Funeral Home in Marion, Alabama. He described the fatal wound as “a very clean cut wedge-shaped wound which measured seven-eights of an inch in length in the upper right chest, immediately below the collar bone” [R. 128]. Dr. Roper stated that in his opinion the wound was made with a knife, or a knife like object, and he determined that Taylor Oates, Jr.’s “death resulted from hemorrhage and shock, resulting from a stab wound to the chest in which the right sub-clavian artery was lacerated” [R. 132].

Appellant’s first witness was Bessie Wallace, an L.P.N. at Bibb County Hospital. She testified that she was on duty the night Taylor Oates, Jr., was stabbed. She stated that a group of people came into the hospital that night and asked her if a doctor was on duty. The witness testified that she told them that no physician was on duty at the time, but Dr. Owning was on the way to the hospital to treat two patients previously admitted to the emergency room. Mrs. Wallace testified that someone requested her to call an ambulance, but she instructed them to go over to the nurses’ station and ask someone there to call for them. Mrs. Wallace stated she never saw Oates, nor was she ever informed that he was outside the hospital, bleeding severely [R. 153]. Mrs. Wallace testified that after they left and went to the nurses’ station to call an ambulance, she never saw them again [R. 156].

The appellant then called Van Harris, a friend of the appellant for about seven years, and a life-long friend of the deceased, Taylor Oates. Van Harris testified that on the day in question, he got off work and went over to Earnest “Snoop” James’ house and drank “a couple of beers and a little under a half pint . . . ” [R. 161]. Harris then testified that he went down to the school around six-thirty that evening and “ran into” the appellant. The witness stated that he and the appellant went back to “Snoop” James’ house and bought a half pint of gin and two beers [R. 162]. Harris stated that they then went back over to the school where they met Taylor Oates, Jr. [R. 163]. Harris testified that Oates accused them both of stealing ten dollars from him. Harris said he and the appellant tried to explain to Oates that they had not taken his money and also stated that they offered Oates a drink of their liquor [R. 165]. Harris testified that Oates took the bottle and poured the gin out on the ground. Harris said that he, the appellant, and Oates then began arguing, both about the liquor and the missing ten dollars. Harris testified that at this point the appellant had neither hit nor threatened Taylor Oates [R. 165, 166]. Harris did, however, testify that when Oates turned and walked away from the argument, the appellant threw a beer can over Oates’ shoulder. He stated that Oates turned around and “came back and we argued some more.” Harris testified that during this argument, Oates slapped the appellant and “about this time Lewis hit him with the knife” [R. 166]. Harris said that immediately before the stabbing, Oates and the appellant were facing each other, and both had their right hands in their pockets [R. 167, 168, 173]. Harris testified that immediately after the appellant stabbed Oates, the appellant’s brothers, who had just arrived, “pulled him [appellant] back,” and that Oates turned around and walked away [R. 169].

Don James, brother of the appellant, testified that he had played football with the appellant the afternoon of the day in question, that he then went inside the community center and played a few games of pool [R. 181]. James testified that when he and another brother, Alfred, left the community center that evening, they noticed the argument among the appellant, Van Harris, and Taylor Oates. James stated he heard Oates call the appellant a “son of a bitch,” and that his brother told Oates “he was telling the truth” [R. 182]. James testified that at the time Oates and the appellant were facing each other, they both had their right hands in their pockets. He stated “both hands moved at the same time,” and that his brother “hit Taylor Oates” [R. 184]. James said that after his brother stabbed Oates, he, the appellant, and his other brother, Alfred, walked together to their mother’s home.

The testimony of Alfred James was essentially the same as that of his brother, Don. He added that when they got to the spot where the argument was taking place, he heard Oates tell the appellant, “You think you’re big because your brothers are here,” and also heard Oates ask the appellant, “Why did you slap me?” Alfred James further testified that when Van Harris told them to “cut that bull shit out,” Oates “kind of came out of his pocket, and Lewis came down” and stabbed Oates [R. 189], Alfred James stated that he never saw Oates with a knife [R. 190].

The appellant’s next witness was his mother, Lena Mae James. She testified the appellant came home crying after the incident and told her that he and Oates had “gotten into it”; that Oates had “thrown out the whiskey and then slapped him”; and that when Oates drew on him, he blocked his lick and come back in on him” [R. 194].

The appellant, Lewis James, testified that he was employed at Seamen Lumber Company, and had gotten off of work on the day in question around 3:30 in the afternoon. He stated that after work, he played football with his “two brothers and some other guys,” then went home and changed his clothes. He then testified that he left his home and headed for the “school,” and ran into Taylor Oates, Jr., along the way. The apipellant testified that Oates asked him where he was going and if he wanted someone to walk with him. The appellant testified that he told Oates that “if he wanted to, come on,” and then he and Oates “went out to the school” together. The appellant said that he and Oates shot a few games of pool, then he [appellant] left, met Van Harris, and they went down to “Snoop” James’ house to buy some whiskey [R. 200]. When they came outside of the James’ house, they “ran into” Jesse Davidson, who showed the appellant two knives. The appellant asked Davidson to let him have one because he was scared that “some guys were going to jump on me.” The appellant stated he was referring to “some guys” who had shot at him back in 1969, and whom he had seen in town that night. The appellant testified that Davidson gave him a switchblade knife, then he and Van Harris headed for the school. The appellant stated that they met Oates at the school and asked him if he wanted some whiskey. The appellant testified Oates took the bottle and poured the whiskey out, and when he questioned Oates as to why he did that, Oates told him if he “didn’t like it to do something about it,” and then slapped him [R. 202], The appellant testified that Oates and Harris began arguing and that he then “walked back up” and asked Oates why he had slapped him. The appellant stated that Oates told him again that “if you don’t like it, do something about it” [R. 203]. Appellant testified he replied, “Naugh, but I don’t like nobody slapping me in my face.” He stated that Oates then walked off, and at that time he [appellant] threw a beer can “back on the other side of the road” [R. 204]. The appellant testified that Oates turned around and came back toward him and told the appellant, “If you’ve got a knife, you had better pull it.” He stated that when he heard a “click,” he pulled his knife, blocked Oates’ blow, and “hit him” [R. 205]. He stated that after stabbing Oates, he left with his brothers and went to his mother’s house where he stayed about fifteen minutes. The appellant stated he then went to his home and returned to his mother’s house later that night. The appellant testified he threw his knife away on the return trip to his mother’s house, and was arrested late that night by Sheriff Lee while at home in bed. The appellant further testified that on two previous occasions he had been threatened by the deceased. He stated that the first incident occurred “over in Brent in the projects” where Oates pulled a knife on him, and the second occasion was at “Snoop” James’ house where, after asking Oates for some whiskey, Oates threatened to “kick my ass” only because “he didn’t like me” [R. 222], The appellant stated that on the night in question, he was afraid that Oates was going to stab him when Oates threatened him that he had “better know how to use a knife because he was going to use his” [R. 223].

In rebuttal, the State offered the testimony of Jesse “Rob” Davidson, Jr., who denied giving the appellant a “switchblade” the night of the stabbing. Davidson further denied even seeing Van Harris or the appellant that night at “Snoop” James’ house, but did admit on cross-examination that he had seen Van Harris at “Snoop” James’ house that evening [R. 242],

Mattie Lee Driver testified that Taylor Oates, Jr., had been at her house watching television the night he was killed. She stated that Van Harris and the appellant came by her house to get Oates to go with them to the school. The witness testified that only Harris came inside to talk with Oates, but she noticed the appellant standing outside and stated that subsequently “they all got up and left” together [R. 250, 253].

The appellant’s sole rebuttal witness was Albert Bulls, III, a second year law student at the University of Alabama School of Law. Mr. Bulls testified that he had done st>me investigating for appellant’s counsel in regard to this case. Mr. Bulls stated that he had talked with Jesse “Rob” Davidson, who told him that he had seen Van Harris and the appellant together the night of the stabbing and that he had given the appellant a knife on that occasion.

I

Prior to trial, appellant’s counsel moved to quash the jury venire alleging the systematic exclusion of women from the jury roll of Bibb County. At an evidentiary hearing held on said motion, the appellant’s statistical data indicated that the jury roll was comprised of only 37.2% females, whereas the “true cross section” was about 52.1% females. The appellant also noted that the four jury venires called immediately prior to his trial had an average make-up of 24.1% females. In addition, the appellant offered the testimony of Mrs. Frances Hawkins, Clerk of the Bibb County Jury Commission. Mrs. Hawkins testified that the Bibb County Jury Commission was composed of three members: Mr. Milton Palmer, Mr. L. R. Robinson, and Mr. O. B. Weaver, who served as Chairman. Mrs. Hawkins stated that women were first introduced to the jury roll of Bibb County in January, 1967. Her testimony also revealed the procedure utilized to compile the jury roll and established that names [which comprise the jury roll of Bibb County] are obtained from various sources. Among these sources are telephone books, voting lists, tax assessor’s records, and from personal interviews, some of these with people “in the waiting room” at the Department of Pensions and Securities [R. 18, 23]. Mrs. Hawkins testified that a general list of names is compiled and that the Commissioners then go out into the different beats and attempt to locate these people and ascertain “their ages and occupations, and so forth, before they are placed in the box” [R. 18]. She stated that such information is usually obtained by interviewing the “prominent” black and white citizens of different beats who, in addition, provide the Commissioners with new names of potentially qualified jurors. Mrs. Hawkins testified that after the Commissioners return with this information, those persons who were not located, and those found to be exempt or otherwise disqualified, are removed from the general list, and they then “gather up new names and put them back in their places” [R. 19, 20]. Mrs. Hawkins stated that when the list is completed, she types up the names on white index cards and places them in the jury box. Mrs. Hawkins stated the Bibb County Jury Commission meets every August to recompile the jury roll, as required by statute. Newly qualified jurors are added, and those then disqualified or exempt by law are deleted so as to reflect a correct compilation of qualified jurors in the county.

Mrs. Hawkins testified that as far as the Commission was concerned “everyone is a potential juror” [R. 21]. She stated that approximately “five hundred to two thousand” names are on this list, and that the only reason an otherwise qualified juror would not be on the list would be “if they were under the age of twenty-one and over the age of sixty-five, or they were employed in the occupations that would disqualify them as a juror . . . ” [R. 20]. When specifically asked by the court, “Is there any systematic exclusion of women from the jury rolls in Bibb County, Alabama . . .?” Mrs. Hawkins replied, “No, sir, I am a female and I wouldn’t want to exclude myself” [R. 37, 38]. However, Mrs. Hawkins could give no reason for the fewer number of females on the jury roll.

We note on the outset that the appellant has the initial burden of showing the existence of purposeful discrimination of women on the account of their sex from jury participation. Butler v. State, 285 Ala. 387, 232 So.2d 631 [1970]. As pointed out by Mr. Justice Almon, then a member of this Court, in Junior v. State, 47 Ala.App. 518, 257 So.2d 844, cert. denied, 288 Ala. 744, 257 So.2d 852 [1971]:

“. . . [P]urposeful discrimination must be proven and may not be assumed or merely asserted, and the quantum of proof necessary to establish such fact is a matter of federal law.” [Authorities cited]

In United States v. Butera, 1 Cir., 420 F.2d 564 [I.C.A.1975], we note the following:

“. . . The Supreme Court has normally imposed on the defendant the initial burden of demonstrating, prima facie, the existence of purposeful discrimination. However, the exact meaning of ‘purposeful discrimination’ has been elusive at best . . . Thus, while ‘purposeful discrimination’ may connote an element of bad faith in ordinary usage, the term has not been so limited by the Supreme Court; rather, the breath with which the term has been used by the Court indicates that purposeful discrimination exists whenever significant unexplained disparities exist. In other words, it is not the significant disparities themselves which are unconstitutional, they only raise the inference of discrimination. Once that inference has been raised, it is the government’s failure or inability to demonstrate that the disparities are not the product of discrimination which confirms the inference and invalidates the jury pool.” [Citations omitted]

In dealing with this issue of systematic exclusion of blacks from jury participation, Justice Embry, writing for our Supreme Court in Beecher v. State, 294 Ala. 674, 320 So.2d 727 [1975], noted the following:

“. . . Mere statistical disparity between the number of blacks presumed eligible for jury duty and the number actually included in the jury roll does not of itself establish a primary inference of invidious discrimination. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). This is not to say that substantial disparity would not do so. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). These cases illustrate that each case must be considered on its own peculiar facts. Alexander, supra, does indicate that where there is opportunity for discrimination then this, coupled with statistical disparity, may be enough to establish the rebuttable inference of impermissible exclusion.”

However, there appears to be some doubt as to whether the “allocation of burdens established for cases of racial discrimination in jury selection applies to cases of jury discrimination on the basis of sex.” McGhee v. King, 518 F.2d 791 [5 Cir. 1975],

In any event, we do not feel that the appellant has here met the first of his “twofold burden” in establishing a prima facie case. A reading of several federal cases involving the issue of systematic exclusion of women indicates that a greater percentage of disparity than appears here in the instant case must be shown in order to raise an inference of discrimination. United States v. DiTommaso, 405 F.2d 385 [4th Cir. 1968] [Prima facie case not met by evidence that women, though constituting 52.1% of eligible population had average representation of 29%]; United States v. Butera, supra [52% true cross section — 36% actual representation in jury pool]; see also United States v. Bryant, 291 F.Supp. 542 [D.Me.1968]. Butera, supra, indicates that at least a thirty percent underrepresentation of women must be shown in order to raise a rebuttable inference of discrimination.

Therefore, in view of this and in absence of any evidence of intentional exclusion, we cannot say that the underrepre-sentation reflected in these figures is so substantial as to warrant a reversal of the trial court’s determination on this issue. Moreover, there has been no showing that the jury roll “spectacularly was not a cross section of the community.” Jackson v. Morrow, 404 F.2d 903 [5th Cir. 1968], or that prospective jurors were selected on the basis of anything other than their individual qualifications.

As stated in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 [1965]:

“Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.”

The trial judge, therefore, correctly denied the appellant’s motion to quash the jury venire.

II

The appellant next contends that certain remarks made by the trial judge in the presence of the jury were unduly prejudicial and require a reversal of his conviction. The remarks in question were made during the trial judge’s explanation to appellant’s counsel as to his reasons for sustaining the State’s objection to the appellant’s testimony concerning prior threats made by the deceased, Taylor Oates, Jr., to the appellant. The alleged prejudicial remarks were not only the basis for the appellant’s motion for a mistrial, but also served as the stated grounds in his motion for new trial.

The record reflects the remarks complained of as follows:

“Q Now, let me ask you this: Had you ever been threatened by Taylor Oates before.
“A Yes, sir.
“Q When.
“A I got threatened two times—
“MR. MORROW: (Interposing) I am going to object. Your Honor, unless they relate it to something.
“MR. KNOWLES: That is admissible, Your Honor — self defense, and show of prior threats to show who is the aggressor and the apprehension that he had.
“THE COURT: Yes, but you are showing by the defendant and Taylor Oates is not here to deny it—
“MR. KNOWLES: (Interposing) I am sorry—
“THE COURT: (Interposing) The ‘Dead Man’s Statute’ applies to criminal cases just the same as civil cases.
“MR. KNOWLES: He is not saying what he said, but telling what he did.
“THE COURT: Well, I think you need to bring that in by some other people. This defendant — he could get up here and say, ‘Yeah, he said so-and-so and he said he was going to kill me next time he saw me’ — and he couldn’t be here to say, ‘No.’
“MR. KNOWLES: They were the only ones that were there at the time and he’s the only one that can testify to it, and I think it is important for this jury to know.
“THE COURT: Unless you bring it in by some other party besides the defendant, I am not going to let the defendant testify to it.
“Q Had Taylor Oates, Junior ever pulled a knife on you before?
“A Yes, sir.
“Q When was that?
“A Out there on the basketball court about a month before that.
“MR. MORROW: I object to that.
“THE COURT: Yes, I think you have got to bring it in by another witness. Now, if you can get some other witness to come in here and say he threatened him and pulled a knife on him, I will rule it in, but I am not going to let this defendant testify to that, because he can testify to anything.
“MR. WHITE: Judge, I would ask you to instruct the jury not to consider that.
“MR. KNOWLES: He is testifying like all the other witnesses are testifying, Your Honor.
“THE COURT: I am going to apply the ‘Dead Man’s Statute’ in this case and I am going to see if this applies in this kind of ease.
“MR. KNOWLES: All right, Your Hon- or, I am not going — I am not arguing with Your Honor, but are you saying that we cannot, at this time, show evidence— testimony given by Lewis James, the defendant, of prior threats and actual drawings of knives upon him by the deceased? “MR. MORROW: I am going to object to him saying this before this jury — if it is admissible, it is admissible and I object to him saying that and I ask that the jury be instructed not to consider that.
“THE COURT: Now,. I think that any threats — and I so instruct the jury — that any threats, or anything that Taylor Oates did to this defendant prior to this particular time — any other witness could testify to it and bring it in and put it before this jury, and I will give you an opportunity to get it, if you can get it — if it was on a football field, you ought to be able to get it, and I’m not going to let this defendant stand up here and testify to a whole lot of threats and things that took place between the deceased person who is now dead. If it took place right then, all right, but—
“MR. KNOWLES: (Interposing) Judge, I think—
“THE COURT: (Interposing) Prior threats are all right. You can bring them in, but I don’t think the defendant can bring them in just on his own volition.
“MR. KNOWLES: Judge, could we go outside the presence of the jury, and could I make a showing as to what we expect to show by this testimony?
“THE COURT: All right, we will do that.
“(Whereupon, the attorneys for the State and the attorney for the defendant and the court have an off the record discussion and showing of prior threats, said discussion and showing take place outside the presence of the jury . . . .)”

After the off-the-record discussion, the trial court correctly ruled that the appellant could testify in regard to the prior threats made by the deceased to him in support of his claim of self-defense. See McCaghren v. State, 52 Ala.App. 509, 294 So.2d 756, rev’d on other grounds, 292 Ala. 378, 294 So.2d 766 (1974); Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1975). The trial court then adjourned for the day, and immediately after the court reconvened the following morning, the record reflects the following transpired:

“(The following motion came on to be heard outside the presence of the jury in the presence of the attorneys for the State and the attorney for the defendant and the court; following which the following occurred:)
“THE COURT: All right, Mr. Knowles, you may proceed with your motion.
“MR. KNOWLES: I wonder if I could get the court reporter to read back what was said yesterday afternoon? On the way home last night, I started thinking about what was said in the courtroom in front of the jury concerning the question of law and the fact of whether or not Lewis James could testify to prior threats. Butch, I wonder if you could read back from the time the State objected to that testimony until we stopped?
“THE COURT REPORTER: Yes, sir. “(Whereupon, said testimony was read; following which the following occurred:)
“MR. KNOWLES: I would like to get in the record that as I was going home yesterday, my memory told me that there were statements that were made by Your Honor which would — in front of the jury — which would tend to indicate to the jury that you had doubts as to the propriety of the defendant testifying to events that happened to him and the deceased, and, furthermore, indicating that that would allow this defendant to testify things that weren’t true and not have the deceased there to testify as to the contrary, if there was a contrary side, and I think that will taint the testimony of this defendant concerning prior threats on him by Taylor Oates, and, also, taint his all testimony and prejudice the case so severely that I am not sure that the jury could fairly consider his testimony at this point and, on that basis, I know of no way to charge that out at this time and, on that basis, I would like to ask for a mistrial.
“THE COURT: Your mistrial is denied. I will charge the jury not to consider any statements that were made by me with reference to his testifying to former threats by the deceased and that his testimony is to be considered by the jury just the same as any other witness.
“MR. KNOWLES: Can we check about those taped statements?
“MR. MORROW: Yes, they are here if you want to listen to them.
“(Whereupon, said tapes of Van Harris and Robert Moseley were played for the benefit of the attorney for the defendant; following which the following occurred:)
“MR. KNOWLES: The judge wants to get in the record he did allow me to hear the tapes of Van Harris and Robert Moseley.
“(Whereupon, the attorneys for the State and the defendant and the court return to the courtroom into the presence of the jury; following which the following occurred:)
“THE COURT: Members of the jury, when we stopped yesterday, there was a question—
“MR. MORROW: (Interposing) Judge, we have got some witnesses still in the courtroom.
“THE COURT: Are there any witnesses in here — if there are any witnesses in here, you must get out of the courtroom. Anybody that expects to testify in this case will have to go back here (indicating).
“(Witnesses leave courtroom.)
“THE COURT: Members of the jury, yesterday when we stopped the trial, we had a question to this witness about threats that had been made against him by the deceased. The District Attorney objected to it and the court might have made some remarks about his doubt as to whether he could testify to threats — former threats that were made to him by the deceased. We have studied the law and we have come to the conclusion that he can testify to that and any remarks that were made that might tend to influence any question about this defendant’s testimony, I am going to ask you to disregard that and take that out of your mind. This defendant has got a right to take the stand and testify in his own behalf and has got a right for his own testimony to be considered just the same as any other witness’s and if there is anything that was said that might have put any question in your mind about it, put it aside— forget it, and listen to this witness’s testimony just the same as you do any other witness.”

Furthermore, it appears that the trial judge attempted to remedy the evil effects of his remarks in his oral charge to the jury:

“Now, each time I state the contentions of the defendant, or the contentions of the State, I again am not saying whether they are true or false. I state them to you to show you the issues. You are the triers of the fact. I am strictly neutral in this case; I have no feeling either way, and if you have gotten the conclusion from something I have said, either to the lawyers, or to the witnesses, that might give you an idea about how I feel in this case, get it out of your minds, because I am neutral in this case. If I had a feeling in this case, I would step down and let somebody else try it.”

The appellant contends that the Judge’s remarks, not only were invasive of the jury’s important and exclusive right of weighing the evidence, but also impressed upon them the belief that his testimony was incredulous. Moreover, the appellant contends that, despite the judge’s attempt to eradicate the prejudicial effect of his remarks, their impact upon the jury was of such a degree that it was impossible for them to fairly weigh his testimony with open minds.

In Jarmon v. State, Ala.Cr.App., 333 So.2d 897 (1976), we observed the following:

“ . . . [A] trial judge must be ever aware that he wields great influence upon a jury and that his slightest word or intimation may injuriously effect the substantial rights of the defendant. In view of this unquestionable influence, any declaration of the court prejudicing the defendant in the minds of the jury is error which would of necessity effect a reversal.”

A case involving a claim of improper remarks by a trial judge detracting from the weight of the evidence being offered rest on its own peculiar facts. Lockett v. State, 50 Ala.App. 58, 276 So.2d 643 (1973).

In the instant case, the judge’s comments on the propriety of the appellant to testify about previous threats of the deceased were made at the time the appellant was on the stand testifying in his own behalf. The appellant was seeking to prove that his actions were justified because of his belief that at the time he stabbed Taylor Oates he was subject to death or grievous bodily harm himself. The appellant’s success in establishing his claim of self-defense hinged on the weight that was to be given to his testimony by the jury.

Although the judge’s remarks were made in support of his ruling and were impelled by a natural sense of explanatory argument, they were nevertheless tantamount to a direct comment on the credibility of the appellant. The fact that the remarks were made at the time the appellant was attempting to give merit to his self-defense claim gave a special sting to them. Moreover, even though the able trial judge did all that could possibly be done to undo or neutralize the harm caused by his statements, we feel that under the circumstances of the case the probable impression made on the jury could not have been eradicated by any explanation. The inescapable and natural inference which the jury could draw from the judge’s remarks is clear— namely, that the appellant’s testimony concerning prior threats is suspect “because he can testify to anything ... he could get up here and say, ‘Yeah, he said so-and-so, and he said he was going to kill me next time he saw me’ — and he [Taylor Oates] couldn’t be here to say, ‘No.’ ”

As stated by our Supreme Court in Moul-ton v. State, 199 Ala. 411, 74 So. 454 (1917):

“ . . . [I]t is matter of common knowledge that jurors are very susceptible to the influence of the presiding judge, watching him with a quick understanding of every indication of opinion . . .."

Therefore, after a careful consideration of the case as presented upon the whole record, we feel that the comments in question were of such character that the enormous prejudice generated by them could neither be explained away nor charged out. Watts v. Espy, 211 Ala. 502, 101 So. 106.

Such remarks bring this case within the purview of that line of cases which deem such comment ineradicable and therefore prejudicial error. Watts, supra; Stain v. State, 273 Ala. 262, 138 So.2d 703; Bozeman v. State, 25 Ala.App. 281, 145 So. 165; Renfroe v. State, 49 Ala.App. 713, 275 So.2d 692.

For the errors shown, the judgment is therefore reversed and remanded.

REVERSED AND REMANDED.

CATES, P. J., and DeCARLO and BOOK-OUT, JJ., concur.

HARRIS, J., concurs in result.

      . See Title 30, § 20, Code of Alabama 1940.