author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Edward Cleo BROWN, alias v. STATE.
    1 Div. 824.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Rehearing Denied Jan. 24, 1978.
    Willis W. Holloway, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty of possession of heroin. The court fixed his punishment at eight years imprisonment in the penitentiary and sentenced him accordingly.

Defendant was represented on the trial by employed counsel. On appeal he is represented by different counsel, appointed by the court on a showing of defendant’s indi-gency.

Twenty-nine capsules filled with a white powdery substance were found in the front seat of an automobile being driven by defendant immediately after he had stopped the automobile, opened the door on the driver’s side and stepped out of the automobile to talk with Officer Mayo of the Mobile Police Department, about 2:00 A.M., July 23, 1976. One capsule was in that part of the seat where the defendant had been sitting. The other twenty-eight capsules were lying on a “blue face cloth” between the driver’s seat and the seat of another occupant of the front seat of the automobile, on that part of the front seat where the arm rest would have been if it had not been raised or folded up as it was at the time. Some of the contents of about half of the capsules was analyzed and determined to be heroin. Between the sun visor on the driver’s side and the roof of the automobile there was a hypodermic syringe with its two parts separated. About the person of the other occupant of the front seat of the automobile there was another hypodermic syringe.

According to the briefs of parties, the only issue on appeal is whether the war-rantless taking of the capsules from the front seat of the automobile constituted an unreasonable search or seizure in violation of appellant’s rights as safeguarded by the Fourth Amendment to the Constitution of the United States and by Article 1, § 5 of the Constitution of Alabama of 1901. Defendant raised the point by a motion to suppress evidence as to the capsules and their contents, which motion was overruled.

The evidence on' the motion to suppress consisted only of the testimony of Officer Mayo and testimony of defendant, who did not testify during the trial of the case.

Officer Mayo testified that he was on duty at the time in a “marked” police automobile and had observed the automobile being driven by defendant traveling at a high rate of speed, crossing over two solid yellow lines and passing two other automobiles. He turned on his blue light and stopped the automobile at “Macon and Davis Avenue” and radioed the police department that he had a “violator stopped at that point.” He walked up to the automobile on the driver’s side. He observed three persons in the automobile, two on the front seat and one in the rear. He did not know either of the occupants of the front seat; he knew and recognized William Lewis Ba-lasco, the occupant of the rear seat, as a known, heroin addict. As he walked up to the automobile, defendant alighted therefrom and stood with his door open. Officer Mayo asked him for his driver’s license. Defendant stated he did not have one; he displayed a ticket from an Alabama State Trooper who had recently issued him the ticket and had taken his driver’s license. At that time Officer Mayo said he observed a white capsule lying on the front seat of the automobile where defendant had been sitting and an “unknown quantity of the same type of white capsule” lying on a blue face cloth on the front seat where the arm rest would be when folded down. He reached and picked up the capsule closest to him. While the two were talking, Officer Lockett arrived on the scene, and he walked up to the car on the other side, and the other occupant of the front seat got out of the automobile on his side. The defendant and the other occupant of the front seat of the automobile were then arrested on an oral charge of possession of heroin. All three occupants were then taken to the Criminal Investigation Division. Thereafter, defendant was issued a ticket for traffic offenses, including failure to have a driver’s license and making an “improper pass.” The traffic charges were afterwards dismissed on account of the failure of Officer Mayo to receive notice of the time of trial and his consequent failure to appear at that time.

Officer Mayo was questioned intensively by defendant’s counsel as to his judgment as to the contents of the capsules at the time he took one from the front seat of the automobile and Officer Lockett took the other twenty-eight therefrom. A part of his testimony was as follows:

“Q. Wasn’t it possible that there was sand in those capsules on the front seat there for all you knew?
“A. Not anything that fine, no, sir.
“Q. Pardon?
“A. Not that fine a granual, no, sir.
“Q. Not that fine a granual. Isn’t it possible it was salt? Salt is fine, isn’t it?
“A. It could have been.
“Q. It could have been any number of legal substances, could it not, Officer Mayo?
“A. It’s possible.
“Q. And you didn’t have any other knowledge that anyone had given you that this might have been heroin transported in this car, is that correct?
“A. Other than the fact that the subject in the back seat was a known heroin addict.
“Q. Alright. And it is your testimony that for all you knew that could have been salt or some other substance in the capsules. That’s correct, isn’t it?
“A. It could have been, yes, sir.
“Q. Until it was analyzed and before it was analyzed, you really didn’t know what it was, did you?
“A. I had an idea about what it was.
“Q. You really didn’t know. You were just doing some guess work on account of William Balasco being in the back seat, right? You knew from behind that it was William Balasco and so you surmised that this was heroin rather than salt or some other substance, correct?
“A. It appeared to be what I had been taught.
“Q. It appeared to be what you had been taught? You had been to school for heroin and everything?
“A. When I was sent to the academy back in 1970, yes sir. We had a class on narcotics — .”

Officer Mayo also testified that during the six years he had been with the Mobile Police Department he had occasion, five or six times, to seize a substance that later by analysis turned out to be heroin, and that he was familiar with how heroin looks as it is normally packaged. He said that the heroin that he had observed varied from a white to a light brown.

The parties on appeal seem to agree, as they and the trial court did on the trial, that the opinion of Mr. Justice Bloodworth in Kinard v. State, Ala., 335 So.2d 924, is dispositive of the crucial issue now presented and that whether the disposition is favorable to one party or the other is dependent upon whether the facts in Kinard are distinguishable in material respects from the facts in the case under review. If not, we must reverse, in accordance with what was held in Kinard in approving the dissenting opinion of Judge Bookout in Kinard v. State, Ala.Cr.App., 335 So.2d 916, 921.

In Kinard, supra, the facts were that the truck of appellant was stopped solely for “an I.D. check”; that the officer walked to the passenger’s side of the truck, “opened the door, shined his flashlight in the front of the van and saw a cellophane bag, in the ashtray, with some ‘small pink pills’ in it,” which the officer, or another officer with him, took out of the ashtray, reached under the dash and took out a “couple of prescription bottles” with “some pills” therein, other cellophane bags of pills, and “some marijuana.” He was tried and convicted of possession of marijuana for personal use. It was held by our Supreme Court that the “plain view” exception to the general rule that a search must be conducted pursuant to a valid search warrant did not apply for two reasons: (1) there was no prior justification for the initial intrusion into the van by the officer and (2) the incriminating nature of the object in “plain view” was not apparent to the officer at the time of its seizure.

As to (1), the facts in instant case are diametrically opposite to those in Kinard, supra. Here there was no intrusion of any kind into the car by either officer prior to the observance of the contraband on the driver’s seat of the automobile. He had not opened the door, as the officer had done in Kinard. Everything that he had done at that time was well within his right and within the sphere of his duty.

As to (2), a resolution of the question is more difficult. There is a significant similarity between the facts here and those in Kinard, supra, but we conclude that those in the one are materially distinguishable from those in the other.

In holding in Kinard, supra, that the incriminating nature of the object in “plain view” was not apparent to the officer at the time of its seizure, the Supreme Court relied upon Shipman v. State, 291 Ala. 484, 282 So.2d 700, in which it was held that

“For an item in plain view to be validly seized, the officer must possess some judgment at the time that the object to be seized is contraband and that judgment must be grounded upon probable cause. The record in this cause reveals that this requirement has not been met.”

Although the officer was not asked the specific question whether it was his judgment or opinion at the time of the seizure of the capsules that they contained heroin, there can hardly be any doubt that such was his judgment and opinion, even though the very nature of the particular contraband is such that a chemical analysis, or other scientifically approved test, is necessary to assure certainty, and even then certainty may not be present. The experience of the officer as to heroin, the resemblance of the contraband to the heroin the officer had observed, the particular location of the capsules at the time, the large number of the capsules, their conformity in general in color and other visible characteristics to heroin capsules, and the fact that the officer knew at the time that a heroin addict was in the back seat of the automobile, are not consistent, in our opinion, with any conclusion to the effect that he did not have reasonable cause for believing that the capsules contained heroin.

It is to be noted that at the conclusion of Officer Mayo’s testimony on the hearing on the motion to suppress, he was asked by State’s counsel whether he had probable cause to believe that it was heroin and that defendant’s counsel objected to such question, which was never answered. By overruling the motion to suppress, the trial court concluded, and we agree, that there was probable cause for believing that the capsules contained heroin, which justified their seizure.

Our review of the record convinces us that there was no error prejudicial to defendant and that the judgment appealed from should be affirmed.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Ex parte Edward Cleo BROWN.
    77-305.
    Supreme Court of Alabama.
    Feb. 24, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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


text:
    Solomon L. SMITH, Jr. v. STATE.
    3 Div. 796.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Rehearing Denied Jan. 24, 1978.

      Scott Q. Kirkland, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Susan Beth Farmer, Montgomery, for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted for murder in the first degree, found guilty of manslaughter in the first degree and sentenced to ten years imprisonment, in accordance with the punishment fixed by the jury. He had pleaded not guilty and not guilty by reason of insanity.

Good fortune seldom shone bright upon les miserables constituting the principal characters of the tragedy presented by this case. Defendant had been married to the victim, Carol Ann Smith, about thirteen years. She divorced him on July 19, 1976, but they continued to live together as man and wife for about six weeks thereafter.

In the latter part of August, Carol Ann left defendant and went to Macon, Georgia, where she was living with another man. Defendant longed for her, found out where she was living and went and persuaded her to return to live with him, but soon thereafter Carol Ann left him again and moved into a trailer with the same man with whom she had lived iri Macon, Georgia. On November 18, 1976, she called defendant and agreed to come back to him the next day. She did not return, and defendant went to find her to determine “what the problem was.” He went to the trailer occupied by the other man, asked him where Carol Ann was, and he refused to tell him. Defendant pulled his knife out of his pocket and the other man ran out of the trailer. Defendant returned to the trailer where he found Carol Ann in a closet. He began to hit her with the knife in his hand. Upon seeing the blood flowing from the stab wounds in her midsection, he picked her up and carried her to his car and then to the hospital, and checked her in. He then went back to his car, called a lawyer, and on his way to see a lawyer, threw the knife in the river. Carol Ann died on December 23, 1976.

But for the question raised by defendant on the trial, and by appellant at this time, to the effect that the stabbing of Carol Ann by defendant was not shown by the evidence to have been the cause of her death, no question is raised as to the sufficiency of the evidence to support the verdict of manslaughter in the first degree. It is clear that no such question can be seriously raised, for it is obvious that the jury was persuaded to reduce the degree of homicide charged in the indictment to manslaughter in the first degree by reason of principles of law given to the jury by the trial court in its oral charge, and in written instructions, relative to the preclusion of malice at times by the natural passion engendered when one discovers his wife in an act of adultery. Without indicating any agreement with the finding of the jury on the point, we note that the trial court submitted to the jury the question whether the status of the two was that of a common law marriage at the time and fully instructed the jury as to the circumstances when a reduction to manslaughter would, and when it would not, be warranted, in accordance with such cases as Logan v. State, 155 Ala. 85, 46 So. 480; Brunson v. State, 212 Ala. 571, 103 So. 664; Sheppard v. State, 243 Ala. 498, 10 So.2d 822; Palmore v. State, 253 Ala. 183, 43 So.2d 399; Palmore v. State, 283 Ala. 501, 218 So.2d 830; Farr v. State, 54 Ala.App. 80, 304 So.2d 898.

Appellant is correct in the position taken by him that proof as to the cause of the death of Carol Ann Smith must follow the charge in the indictment that defendant killed her “by stabbing her with a knife.” In contending that it does not, appellant emphasizes the length of time between the stabbing and death and centers primarily upon the testimony, of Dr. Keith Hester, who performed an autopsy upon the deceased the day of her death. His testimony was in part as follows:

“Q What, if anything, did you observe?
“A There was a recent surgical incision which was healing with a rather long incision in the midline and there were two stab wounds, one in either side of the abdomen.
“Q If you would, Dr. Hester, if you would take this pen and mark the stab wounds on what has been marked for identification as State’s 1 [a photograph of the body of deceased before it was embalmed and before the internal examination by Dr. Hester].
“A (Witness makes mark on Photograph).
“Q Now, after you made your external examination, did you make an internal examination, Dr. Hester?
“A Yes.
“Q What did you observe in the internal examination?
“A The cause of death was due to multiple pulmonary emboli which are clots that have caught in the vessels supplying the lungs and also she — there was evidence of a surgical procedure in the abdomen.
“Q Where did these clots come from, Dr. Hester?
“A They came from the inferior vena cava which is the large vein that runs lengthwise of the body.
“Q What caused these clots?
“A There had been a perforation of the inferior vena cava and this had been repaired making a rough inner surface of the vessel at that point and the clots had formed on this roughened area in the vessel.
“Q After these clots formed, what happened, Doctor?
“A They came loose from the pressure of the blood behind and went up through the heart and lodged in the vessels to the lungs.
“Q You have made reference to death as multiple pulmonary emboli. Does this have a layman’s term?
“A Clots in the lungs would be about the only way — .
“Q How does this cause death?
“A It completely stops the blood supply to the lungs and there is no blood going through the lungs. It can’t be oxygenated and you don’t have oxygen to carry it through the body.
“Q It’s sort of like suffocating?
“A It gives you the same result, yes.
“Q And so, what then is the cause of death?
“A Multiple pulmonary emboli.”

During the cross-examination of Dr. Hester, he testified:

“Q Did you find or did you search for clottings in any other areas of the body other than the inferior vena cava?
“A Well, normally, in the process of doing the autopsy you look for well formed clots which I did not find.
“Q You found no other clotting?
“A No.
“Q Would you have been able to tell if she had had phlebitis by this autopsy prior to this operation?
“A Probably not, no.
“Q Is it possible, Doctor, that this lady had — could have suffered from phlebitis or blood clotting prior to this attack?
“A It’s possible, yes.
“Q And if she had suffered from that disease, could it have been possible that this clotting could have been the cause of her death from that?
“A These clots were pretty large to have come from veins in her leg. They were larger than you usually see from the veins down in the legs, from phlebitis.
“Q Is it possible, though, Doctor?
“A It’s possible, yes.
“Q What you’re testifying to is, Doctor, is it’s your opinion—
“A That’s correct.
“Q Now, Doctor, you said you had examined some surgical procedures that you found in the body?
“A Yes, sir.
“Q Where were those surgical procedures?
“A The inferior vena cava had been repaired just below the renal artery.
“Q How had it been repaired, Doctor?
“A By suturing.
“Q And did you examine the suturing itself?
“A Yes, they were holding well.
“Q They were holding well.
“A Yes.
“Q All right, sir. Did one of those stab wounds correlate with the puncture that had been sutured in the vena cava?
“A Yes. The one on the right.
“Q On the right side?
“A Yes.
“Q Did the one on the left side in any way contribute to this death?
“A No.”

The evidence also shows without contradiction that prior to the time Carol Ann Smith was stabbed by defendant she was in good health. Although she made a trip to the bank between the time she was released from the hospital and her return to the hospital for treatment until her death, she was greatly disabled. Her mother testified:

“Q Mrs. Mincey, while your daughter was home with you from the time between December 4th and the 18th, did you have an opportunity then to observe her?
“A Yes, sir. Very much, very much so.
“Q Was she in good health or bad during this time?
“A Very bad, sir. Carol couldn’t do nothing for herself.
“Q Was she able to get around the house any?
“A Oh, no, sir. She couldn’t get around. She couldn’t step that far (indicating). She shuffled her feet when she walked.
“Q Mrs. Mincey, was she able to feed herself?
“A No, sir.
“Q How did she eat?
“A It was either me or my husband— she ate very little maybe soup, and we would put it on a tray and her little girl would take it in to her, put it across the bed, and she would drink from it. She has three children.
“Q Mrs. • Mincey, during the period of time that your daughter was home with you after she was stabbed, did she ever go to the doctor?
“A Yes.”

Her mother further testified as to the difficulty they had in taking her to the doctor.

Where, as here, the wound inflicted by defendant upon the victim is dangerous to life, the fact that there are other contributing causes of death does not prevent such a wound from being the legal cause of death. It does not have to be the sole cause. This is true whether (1) the other cause precedes, (2) the other cause is synchronous with, or (3) the other cause follows, commission of the felonious act charged. State v. Morea, 2 Ala. 275; Barron v. State, 29 Ala.App. 137, 193 So. 190; Harvey v. State, 15 Ala.App. 311, 73 So. 200, as to (1) — Jordan v. State, 82 Ala. 1, 2 So. 460, as to (2) — Ingram v. State, 29 Ala. App. 144, 194 So. 694, cert. denied 239 Ala. 244, 194 So. 697; Warren v. State, 32 Ala. App. 273, 25 So.2d 51; Hearns v. State, 47 Ala.App. 725, 261 So.2d 64; Smith v. State, 54 Ala.App. 237, 307 So.2d 47, as to (3).

In Ingram, supra, in which a conviction for manslaughter in the first degree was upheld, defendant had inflicted a knife wound on the alleged victim on July 31, 1937, from which she died on November 13, 1937. That the intervention of days or weeks or months between the criminal act of the defendant and the death of the victim is a mere circumstance, and not usually an important factor, in determining legal responsibility for homicide is emphasized by the common law rule which permits the prosecution of a homicide case regardless of the time between the wrong and the death of no more than a year and a day. Howard v. State, 24 Ala.App. 512, 137 So. 532, cert. denied 223 Ala. 529, 137 So. 535; Flannagin v. State, 48 Ala.App. 559, 266 So.2d 637, aff’d, 289 Ala. 177, 266 So.2d 643.

Even though the State is not required to dispel every possible doubt or to show by the evidence that some other conceivable cause of death did not cause death, we are persuaded that there is little, if any, reasonable basis for a conclusion that the death was not caused by one of the stab wounds inflicted.

Appellant’s only other insistence on reversible error is as to the action of the trial court in overruling defendant’s objection to the admission in evidence of the photograph of the victim’s body prior to embalmment and the autopsy. The photograph is a view of the left front of her face and bare body to about the middle of her thighs, with a cloth or paper covering a large part of the area of the junction of the thighs. After the photograph had been definitely established as an accurate portrayal of the body examined by Dr. Hester as related to him in his direct examination and his cross-examination and identified by the man with whom Carol Ann was living at the time of her death as the body of Carol Ann, it was offered in evidence by the State. Thereupon, the following occurred:

“MR. ALTON: We object, Your Honor. The picture clearly has no probative value in this case. It’s done to inflame and prejudice this Jury..
“THE COURT: Overrule the objection.
“MR. ALTON: We except.”

The photograph had probative value in showing the places of entrance of the knife into the stomach of the victim, in showing the location and size of the large scar of the surgical incision and in identifying the body shown in the photograph as that of the alleged victim and as the body examined by Dr. Hester.

Appellant now specifically refers to a discolored, and apparently bruised, area at the proximal end of decedent’s left thigh, about the full width of the thigh and extending to, but becoming relatively minimal at, the bottom of the picture. We are not enlightened by either side as to the cause of such discoloration. The objection made was as to the photograph itself, in its entirety, and the trial court’s attention was not invited to any particular part of the photograph that should have been excluded from the view of the jury. Appellant relies now upon the principles recently stated in Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922, 925, as follows:

“Photographs to be admissible must be sufficiently limited to such amount of the human anatomy as is necessary to show the wounds and must have some tendency to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. They must have a tendency to shed some light upon some material inquiry. Knight v. State, 273 Ala. 480, 142 So.2d 899; Rollings v. State, 160 Ala. 82, 49 So. 329; Nichols v. State, 267 Ala. 217, 100 So.2d 750; and Baldwin v. State, 282 Ala. 653, 213 So.2d 819.”

Neither in Thigpen nor in any of the cases cited therein, was there a question whether the death of the particular victim was caused in whole or in part by the condition of some visible part of the body other than that which was in the area of the wound inflicted by defendant. In the case now under review there was a contention made by defendant, and is made by appellant here, that phlebitis in the legs could have caused the death. We are unable to say that such contention of defendant accounts for the failure of the State to offer to cover, or otherwise remove from the view of the jury, the part of the photograph below the area of the stab wounds, but we can see that it could have been reasonably contended by either side that, by reason of the question raised by defendant as to phlebitis in the legs, the portion of the photograph that revealed about one-half of the thighs of deceased should have been allowed to remain as a part of the exhibit. Whether this feature of the photograph was beneficial to defendant, or to the State on the other hand, is a matter of conjecture only, but whatever distraction there was, if any, in the apparent contusions of the thigh, as revealed by the photograph, was in the direction, at least, of defendant’s contention that vascular abnormalities of the legs, rather than the stab wounds, were the cause of death.

If, as now argued by appellant, “The photograph should have been strictly limited to the abdominal area of the deceased,” the responsibility for its not being so limited was not solely, if at all, that of the Court. No request was made for such a limitation; no objection was addressed to the specific area now specifically deemed objectionable. When a party objects to a document as a unit that contains admissible as well as inadmissible matter, the trial court is justified in overruling the objection. Evans v. Patterson, 269 Ala. 250, 112 So.2d 194; Willingham v. State, 261 Ala. 454, 74 So.2d 241; Cooley v. State, 233 Ala. 407, 171 So. 725; Morris v. State, 32 Ala.App. 52, 22 So.2d 105; Johnson v. State, 32 Ala.App. 101, 22 So.2d 102; Gamble, McElroy’s Alabama Evidence, § 426.01(13) (1977). The rationale of such a rule and of the authorities supporting it is applicable to the matter now considered. The record does not indicate that the admission of the photograph in its entirety was any more objectionable to defendant than for the court to have sua sponte limited it as now suggested. The court was not in error in overruling defendant’s objection to the evidence as offered and admitted.

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Solomon L. SMITH, Jr.
    77-306.
    Supreme Court of Alabama.
    Feb. 24, 1978.
   TORBERT, Chief Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Linder B. CONLEY v. STATE.
    4 Div. 561.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.

      Larry W. Roney, Phenix City, for appellant.
    William J. Baxley, Atty. Gen., and Joseph M. Carlton, Montgomery, for the State.
   BOWEN, Judge.

The appellant was indicted for the first degree murder of Mrs. Rudene Edwards of Phenix City, Alabama. Punishment was fixed at life imprisonment. This court has previously reviewed the convictions of two of the alleged accomplices of the appellant: Austin v. State, 354 So.2d 40 (Ala.Cr.App. 1977) and Anderson v. State, 354 So.2d 1156 (Ala.Cr.App.1977).

On this appeal four points are presented for our consideration and review: (1) The sufficiency of the evidence to support a conviction, (2) the admissibility of statements made by an alleged co-conspirator prior to and after the commission of the charged crime, (3) the admissibility of statements allegedly made by the appellant concerning the commission of other crimes than the one charged, and (4) the admissibility of the circumstances of a prior conviction of the appellant.

On the 20th of October, 1976, the bludgeoned body of Mrs. Edwards was found in her home in Phenix City, Alabama. Death resulted from multiple blows to the head. The house had been ransacked. Apparently robbery was the motive for the murder for Mrs. Edwards had recently recovered $66,-450.00 in a civil law suit which she had brought against the federal government. This fact was well publicized in the locality. Because the Federal Bureau of Investigation had originally seized this same amount from her safe deposit box in the course of a gambling investigation, Mrs. Edwards’ attorney had advised her not to put the money back in the bank.

There were no eyewitnesses to the actual murder, and the state did not contend that the appellant personally killed Mrs. Edwards. The evidence linking the appellant to the murder is circumstantial and almost all of it came from prostitutes and petty thieves. Though indirect and circumstantial, the web of guilt was so finely woven around the appellant as to leave no reasonable doubt of his participation in and responsibility for the-murder of Mrs. Edwards. Because of the volume and nature of the evidence and our function in reviewing a case to determine the sufficiency of the evidence, we will only summarize those portions of testimony which tend to implicate the appellant.

At 2:30 o’clock on the morning of October 20, 1976, a neighbor heard Mrs. Edwards’ dog barking and the sound of someone running. Mrs. Edwards’ body was discovered later that same morning at 7:00 o’clock by another neighbor. The intruders had taken Mrs. Edwards’ jewelry and a police scanner.

Sarah Rezek was a local prostitute in Columbus, Georgia, who “dated” the appellant from late August until late November of 1976. On three separate consecutive Sunday afternoons or nights she overheard the appellant discussing the robbery of Mrs. Edwards. On October 3, 1976, she overheard a conversation between the appellant, Ronnie Anderson, Andy Austin, and others in her home in Columbus. The appellant stated that he knew of a $50,000.00 “score” in Phenix City and indicated that Mrs. Edwards was the score to which he was referring. He also stated that “some people” had come to him in the past to borrow some guns for this very same job but that he would not let them have the weapons because Bobby Smith (Mrs. Edwards’ son) was a friend of his. On the following Sunday night, October 10th, the appellant again stated that there was $50,000.00 sitting “over there” but that he could not get it because the people knew him.

On the Sunday night of October 17th, the appellant stated in response to Anderson’s comment that he wasn’t making enough money in “boosting” (shoplifting) that “the $50,000 was sitting across the river; why don’t you go over there and get that”.

On the afternoon of October 19th, Anderson borrowed a Colt .38 pistol which the appellant had given to Ms. Rezek. Anderson and Austin then left in Ms. Rezek’s automobile. The testimony indicates that the appellant did not know that Anderson had Rezek’s pistol. When he found out that Anderson had borrowed her car the appellant told Ms. Rezek that she was going to keep on letting them use her car and they were going to get off and do something and get caught at it and she was going to be put right in the middle.

Ms. Rezek, in an attempt to get back her pistol, telephoned Anderson at a local night club later that night. Anderson told her “not to worry about it; that something was going to go down” and that he might need it.

Penny Hatcher was also a prostitute in Columbus, Georgia. She testified that she spent the entire night of October 19th with the appellant at his house and that they stayed awake the entire time. Around 4:00 or 4:30 o’clock on the morning of October 20th, the appellant received a telephone call and told Ms. Hatcher that they had “screwed up” and became “real upset”. This was the only contact they had with the outside world that night. Sometime between 8:00 and 9:00 o’clock on the morning of the 20th, the appellant called Ms. Rezek and told her about someone having been beaten. Ms. Rezek testified that the appellant called her around ten or fifteen minutes to nine that morning and asked her if Anderson and Austin had returned her car. He told her that Bobby Smith’s mother had been found beaten to death at her home. When Ms. Rezek asked the appellant how he knew, he told her that he was at a friend’s house down the street from Mrs. Edwards.

Anderson returned Ms. Rezek’s car later that Wednesday morning around 11:00 o’clock. He asked if she had heard from the appellant and told her that if she contacted him “to tell him that they needed to get in touch with him bad; that they had that stuff or those things for him”.

On the night of Thursday, October 28, 1976, Ms. Hatcher had another “date” with the appellant. At his house the appellant showed her some men and women’s jewelry that was on a dresser in his bedroom. This jewelry generally matched the description of that owned by Mrs. Edwards and found missing following her death. Ms. Hatcher also noticed a police “Bear-cat” scanner in the appellant’s bedroom about which the appellant stated, according to Ms. Hatcher, that “a lot of people would like to know where it was because a woman had been beaten or hurt over it”. The appellant then stated that he would kill anyone or kill himself before he would go back to prison.

Deborah Lynn Vella lived with Ms. Rezek from the last weekend in September until November 23rd. On October 3rd she also heard the appellant and several others, including Anderson and Austin, talking about robbing some “old lady that lived over in Phenix City”. The appellant stated that he knew a score in Phenix City, Bobby Smith’s mother; and that there was supposed to be $50,000.00 in her house because Mrs. Edwards had removed the money from her safe deposit box and hidden it in her house so the “Feds” could not get it. Ms. Vella heard “some more” on the next Sunday (October 10th).

She testified that on the following Sunday, October 17th, “Whiskers”, the appellant, was getting “a little bit mad” and said that the “money wasn’t going to stay over there forever and they were going to have to go over there and get it or either it was going to be gone”. When Anderson said that he wanted the money split five ways, the appellant said that it would be split three ways and indicated that one-third would go to Anderson and Austin, one-third to James Smith and Jimmy Don Hall and one-third for himself. The appellant told Anderson and Smith that he would be “over there”; that they could bring “the stuff” to him and that he would take care of it until he got rid of it and then they would also divide that money three ways. When Smith told Anderson that “we will have to kill that old lady because she is not going to give up the money like that”, the appellant laughed and went to bed.

Ms. Vella stated that on November 21st she was at Austin’s father’s house in Phenix City and the appellant. was mad because Austin and Anderson had gotten the jewelry and “stuff” from his house and taken it to Albany and tried to sell it. At that time the appellant said that “ain’t nobody going to take that stuff; I am the only one that can sell it and I will get rid of it when I get good and ready”. Ms. Vella also stated that Lamar Jackson told her that Austin and Anderson killed Mrs. Edwards; that Anderson also told her that he killed Mrs. Edwards and that the $50,000.00 wasn’t over there and if it was he couldn’t find it. She testified that although the appellant never said that he killed Mrs. Edwards, that he did tell her that “whenever you kill somebody, you always kill them in the head because if you don’t kill them dead, you are sure enough going to make them crazy”. On November 22nd, Austin admitted to her that he killed Mrs. Edwards.

The appellant testified in his own behalf and denied making any statement concerning a $50,000.00 score in Phenix City. He denied any knowledge of any plan to kill or rob Mrs. Edwards. His mother testified that she lived in Phenix City and was a neighbor of Mrs. Edwards; that after the body was discovered, she told her son of the murder when he came to her house that morning about 8:30 o’clock.

Among the other witnesses called by the appellant were Ronnie Anderson and Andy Austin, both under conviction for the murder of Mrs. Edwards, who testified in support of the appellant and contradicted the testimony of Ms. Rezek and Ms. Vella.

Although the appellant testified that he purchased the police scanner from Butch Martin, in the state’s rebuttal Martin testified that he never sold the appellant any scanner.

I

The appellant’s motion to exclude the evidence presented by the state was properly overruled. Under the law of this state, it is settled that any word or act contributing to the commission of a felony, intended to incite or encourage its accomplishment, makes one a co-conspirator, and if the purpose of the common enterprise is carried out, each is guilty of the felony committed. McMahan v. State, 168 Ala. 70, 53 So. 89 (1910).

Alabama case and statutory law has long recognized that when two or more persons join in an unlawful enterprise each is responsible for everything which may consequently and proximately flow from the unlawful purpose, whether committed by the accused or not, and whether specifically intended or not. Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950); Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966); Ray v. State, 32 Ala.App. 556, 28 So.2d 116 (1946); 6 Alabama Digest, Criminal Law, Number 59; Title 14. Section 14, Code of Alabama 1940, Recompiled 1958. All persons concerned in the commission of a felony, directly or indirectly, are equally guilty. Prophett v. State, 25 Ala.App. 20, 141 So. 257 (1932). And, it is not necessary that the aider be present. Griffin v. State, 26 Ala.App. 292, 158 So. 773 (1935). Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, brings the accused within the statute that makes each person concerned in the commission of a felony, directly or indirectly, a principal. Staggs v. State, 51 Ala.App. 203, 283 So.2d 652 (1973). In order that the fact of a conspiracy may be established, it need not be proved by evidence of an express agreement or compact between the alleged conspirators, or by any direct evidence of any agreement or compact. It may be proved inferentially, or by circumstantial evidence. Conspiracies from their very nature are usually entered into in secret, and are consequently difficult to be reached by positive testimony, which renders it peculiarly necessary and proper to permit them to be inferred from the circumstances. Smith v. State, 8 Ala.App. 187, 197, 62 So. 575 (1913); Muller v. State, 44 Ala.App. 637, 218 So.2d 698, cert. denied, 283 Ala. 717, 218 So.2d 704 (1968); 4 Alabama Digest, Conspiracy, ^Number 47.

The evidence presented by the state revealed that the appellant suggested and encouraged others, especially Anderson and Austin, to “go over to Phenix City and get the $50,000” from Mrs. Edwards. The appellant was to receive one-third of the proceeds and to “get rid” of the “stuff” that his confederates brought him. From Anderson’s statement that they would have to kill “that old lady” to get her money there can be no doubt that murder was contemplated as at least a possibility in the commission of the robbery.

It is clear to this court from the evidence contained in the record that a pri-ma facie case of conspiracy was established. Facts were presented from which the jury could reasonably infer that the appellant actually instigated, coaxed and encouraged others to rob and murder Mrs. Edwards.

II

The appellant contends that the trial court erred in allowing Sarah Rezek to testify over objection about statements Ronnie Anderson, an alleged co-conspirator, had made to her out of the presence of the appellant with reference to borrowing her car and pistol on the day before the murder.

This argument is without merit for, where proof of a conspiracy exists, any act or statement by an accused’s co-conspirator in the commission of the crime, done or made before the commission of the crime, during the existence of the conspiracy and in the furtherance of a plan or design, is admissible against the accused. See Gamble, McElroy’s Alabama Evidence, 3rd Ed., p. 410, §? 195.03 citing Svirbely v. State, 53 Ala.App. 452, 301 So.2d 219 (1974); Frazier v. State, 48 Ala.App. 210, 263 So.2d 511, cert. denied, 288 Ala. 743, 263 So.2d 516 (1972); Hagood v. State, 47 Ala.App. 626, 259 So.2d 679 (1972); Muller v. State, 44 Ala.App. 637, 218 So.2d 698, cert. denied, 283 Ala. 717, 218 So.2d 704 (1968); Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950). While this testimony may have been objectionable because it was premature in that proof of the conspiracy should be made before the admittance against the accused of the co-conspirator’s statement, the subsequent proof of the conspiracy cures any error in prematurely admitting the statement. Foster v. State, 43 Ala.App. 435, 191 So.2d 523 (1966); Snoddy v. State, 20 Ala. App. 168, 101 So. 303 (1924); Morton v. State, Ala.Cr.App., 338 So.2d 423, cert. denied, Ala., 338 So.2d 428 (1976).

Ill

Generally a co-conspirator’s act or statement after the commission of the crime is not admissible against the accused unless it is reasonably inferable from the evidence that the conspiracy embraced the disposition, or the division among the conspirators, of the fruits of the crime. Foster v. State, 43 Ala.App. 435, 191 So.2d 523 (1966); Crittenden v. State, 134 Ala. 145, 32 So. 273 (1902); Scott v. State, 30 Ala. 503 (1857). The common purpose — as may be inferred from the verdict — of the robbery was not intended to come to rest until the stolen goods or the “stuff” had been delivered to the appellant, sold by him and the proceeds divided. Therefore the testimony of Sarah Rezek and Deborah Vella concerning statements made by Anderson after the murder of Mrs. Edwards inquiring as to the appellant’s whereabouts and the fact that they needed to see him and had some “stuff” for him was properly admitted.

IV

The appellant also contends that the trial court erred in allowing Ms. Rezek to testify over objection (1) that the appellant told her prior to the murder about two “jobs” that he planned to commit and (2) that the appellant told her about plans to kill Jimmy Don Hall three days after the murder.

A.

Ms. Rezek testified

“He (the appellant) said that if this other man didn’t come through with buying me a bar, that by the first of January he would be able to — that he had two jobs planned between then and the first of the year that would put him on easy street and that none of us would have to worry about anything. He said that one of them that he was going to have to go through some other people to have it done and the second one, that he could possibly do it by himself but if he needed any help, that he needed just one other person and he didn’t say who the other person would bq.”

The record discloses no objection or motion to exclude. The error, if any, is thereby deemed waived and objection cannot be initially raised on appeal. Wilder v. State, 52 Ala.App. 157, 290 So.2d 225 (1974); Jones v. State, 52 Ala.App. 184, 290 So.2d 251 (1974); Wilson v. State, 52 Ala.App. 680, 296 So.2d 774, cert. denied, 292 Ala. 759, 296 So.2d 778, cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1974).

B.

Ms. Rezek also testified that

“A. On a Saturday morning after Mrs. Edwards was killed and Lynn came to the house to pick up my boy to play golf, he offered me $500.00 to get him off to kill him.
“MR. RONEY: We object your Honor and ask for a ruling. It is not material to this case and has nothing to do with it.
“MR. BENTON: If it please the Court, that is part of the substance of the case itself. This is one of the people that has been mentioned as a co-defendant who is not incarcerated in the penitentiary in Georgia.
“MR. RONEY: This has nothing to do with this case, your Honor; this man has not been connected with a Mr. Hall as such.
“THE COURT: Not as yet. Again, I will have to reserve ruling on it. This is Saturday approximately the 23rd.
* * sfc * * *
“Q. Would you tell us please what that conversation consisted of at that time?
“A. We were in the dining room and he come to pick up my boy to play golf and we were talking about the fight at My Place the Saturday night before and we discussed that. And then Lynn told me that it was a hell of a thing for him and James Smith — that they killed that man in Bibb City for $25.00 and he told me that it would be worth $500.00 to me if I could get Jimmy Don Hall off without anybody knowing to a place that he would designate and he would be there and he would make sure that I wouldn’t be involved in it no way where he could kill Jimmy Don Hall.”

At the close of the state’s case in chief the trial judge overruled defense counsel’s objection.

Jimmy Don Hall was one of the five people who were to share in the proceeds from the robbery. Testimony had previously been adduced without objection that he had received sentences of life and death for a robbery and murder in Columbus, Georgia. Under the circumstances of this case it is our opinion that the efforts of the appellant, after the commission of the charged crime but during the life of the conspiracy, to murder one of his co-conspirators indicate a consciousness of guilt and is admissible as evidence against him. Any conduct or declaration of a person having relation to the offense he is suspected of or charged with, indicating a consciousness of guilt, is admissible evidence against him. Palmer v. State, 15 Ala.App. 262, 265, 73 So. 139, cert. denied, 198 Ala. 693, 73 So. 1001 (1916); Britton v. State, 15 Ala.App. 584, 74 So. 721 (1917); Montgomery v. State, 17 Ala.App. 469, 86 So. 132 (1921); McAdory v. State, 62 Ala. 154, 160 (1878). Conduct involving the intimidating or killing of witnesses reflects a consciousness of guilt. Brown v. State, Ala.Cr.App., 339 So.2d 125 (1976). We do not view the efforts of the appellant to murder a confederate as actions “perfectly consistent with a consciousness of innocence and a resentment of any implication of guilt” as those found in Cobb v. State, 20 Ala.App. 3, 100 So. 463 (1924). Any indications of conscious guilt arising from the conduct, demeanor, or expressions of an accused are legal evidence against him. “The law can never limit the number or kind of such indications.” Johnson v. State, 17 Ala. 618, 624 (1850). “The number of such indications it is impossible to limit, nor can their nature or character be defined.” McAdory v. State, 62 Ala. 154, 159 (1878).

Y

On direct examination of the appellant, defense counsel adduced testimony from the appellant that he had been convicted of aggravated assault in 1971, received a five year sentence and served thirty-two months in the regional state penitentiary of Georgia. On cross examination the state introduced the appellant’s record of conviction into evidence without objection. The following then occurred:

“Q. (District Attorney). Who was the injured party in that?
“A. I don’t believe there was an injured party.
“Q. Sir?
“A. I said I don’t believe there was an injured party.
“MR. RONEY (Defense Counsel): Your Honor, we are going to object to going into the circumstances surrounding the conviction; he said he pled guilty to aggravated assault.
“MR. BENTON: Mr. Conley said he would need his glasses; we will just let him read the exhibit that has been introduced.
* * * * * *
“A. ‘Linder Conley and Larry James Davis of the County and State aforesaid with the offense stated aforesaid of aggravated assault; for that the said Lin-der B. Conley and Larry James Davis in the County aforesaid on the 13th day of November in the year of our Lord, 1970, unlawfully and with force and arms made an assault on the person of Jimmy Edward Gresham.’
“Q. All right, sir;' you entered a plea to aggravated assault but the original charge was assault with intent to rob with arms, wasn’t it?
“A. This is the first I have seen of this. They showed me no other papers other than the one I have in my pocket.”

The appellant contends that error was committed when the appellant was “required” over objection to read the record of his conviction which had already been introduced into evidence, as such reading was highly prejudicial to the appellant.

Initially we note that the general rule is that, in cross examining a witness as to his conviction of a crime involving moral turpitude, one cannot go beyond the name of the crime, the time and place of conviction, and the punishment. It is impermissible to ask about or prove further details such as the name of the victim and general aggravating circumstances. Garvin v. Robertson, 289 Ala. 60, 265 So.2d 602 (1972); Brimer v. State, 27 Ala.App. 75, 165 So. 788 (1936); Latikos v. State, 17 Ala.App. 655, 88 So. 47 (1921). '

From the record it appears that the trial court sustained defense counsel’s objection. Therefore the appellant has no cause to complain in the absence of a motion to exclude or a request for instructions.

Additionally the exhibit containing the objectionable material had already been admitted into evidence without objection from defense counsel. There being no objection or qualification to the admission of the exhibit, its contents were properly in evidence — for the jury’s consideration and subject to comment by counsel.

Defense counsel made no motion to strike or exclude the objectionable matter. There was no motion for a mistrial. In the context of this case, we do not view the comments to be so prejudicial as to be ineradicable. Therefore, for all of these reasons, the action of the trial court in sustaining the objection of defense counsel was proper.

We have responded to the arguments in appellant’s brief. Additionally we have -searched the record for error and have found none. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge. TYSON, Judge.

text:
    Thomas Durwood TRENOR v. STATE.
    6 Div. 410.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Rehearing Denied Jan. 24, 1978.

      Roderick Beddow, Birmingham, Powell Lipscomb, Bessemer, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Thomas Durwood Trenor was indicted for the first degree murder of Patricia Ann Trenor by shooting her with a pistol. The jury found appellant guilty as charged and fixed punishment at life imprisonment in the penitentiary. The trial court then entered judgment in accordance with this verdict.

John Granger testified that he was a police officer with the City of Pleasant Grove on July 1,1976. Granger stated that he and Officer Thomas Perkins worked the 3:00 to 11:00 p. m. shift on that date. Granger testified that he responded to a call at 1153 First Avenue, around 10:00 p. m. When he arrived Officer Perkins was already on the scene. Granger testified that Mrs. Patricia Trenor was lying on her back on the kitchen floor with a chest wound that was causing severe bleeding. Granger indicated that he found a spent cartridge (shell casing) on top of the stove in the kitchen. Also, according to Granger, there was a deep groove “in the refrigerator face.” He stated that a spent projectile was found in the kitchen wall. Granger also testified that the appellant’s nephew, Jack Trenor, led him to a back bedroom in the house where he revealed a forty-five caliber semi-automatic Remington Rand pistol, Serial Number 2461011, which was under a mattress. Granger indicated there were four bullets in the clip of the pistol. Further, there was a bullet in the chamber. Granger testified that he turned these items, along with several articles of clothing, over to the State Toxicologist in Birmingham. Granger stated the appellant was in the kitchen when he arrived and appeared to be very upset. Granger stated that he placed the appellant under arrest and advised him of his “Miranda" rights there at the house. Later that evening, according to Granger, the appellant gave a written confession at Police Headquarters.

George Allen Davis testified that he was a sergeant with the Pleasant Grove Police Department. He stated that on July 1, 1976, he arrived at work around 10:20 p. m. Davis stated that he took possession of deceased’s clothing around 1:00 a. m. on July 2,1976, at University Hospital. Davis indicated that he wrote down appellant’s confession at Police Headquarters around 3:00 a. m., after appellant signed the waiver of rights form.

W. S. Allen, Assistant Coroner of Jefferson County, stated that he examined the deceased, Patricia Trenor, at the University Hospital in Birmingham, Alabama. Allen testified that the deceased had a gunshot wound in her chest and an exit wound in her back. According to Allen, the deceased died as a result of internal bleeding from these wounds.

Jeff Trenor testified that he was the son of Thomas and Patricia Trenor. He stated that his parents were divorced at the time they gave him a birthday party at his father’s residence on July 1,1976. Jeff stated that after the party he went over to a friend’s house to help him fix a motorcycle. Jeff testified that he came home later that evening with his friend and noticed his father and mother in his mother’s car in front of the house. He stated that shortly after he and his friend went inside the house he heard his mother scream. Jeff testified that he looked outside and saw his mother running toward the house with his father following. According to Jeff, his father (the appellant) had a gun in his hand. Jeff testified that his parents went in the kitchen and he (Jeff) went in the den. Jeff stated that he looked through an opening in the wall between the kitchen and den and saw his grandmother, Viva Langley, holding his father around the neck. According to Jeff, his father told Langley that the gun was empty and that he was not going to hurt her. Jeff stated that his father would ask his mother questions, and if his father did not like the answers which she gave he would point the gun at her. Jeff testified that his father told his mother he was going to “kill her,” and at that point his father raised the pistol, pulled the hammer back with both hands, and shot her. Jeff stated that he ran outside, and his father came out and told him to call an ambulance. Jeff testified that around 5:30 p. m. on that same evening his father told him that his mother was seeing another man.

Michael Penney, age fifteen, testified that he went to the birthday party for Jeff at appellant’s home around dusk. Penney stated that after the party he and Jeff went down the street to Dale Morgan’s house to repair a motorcycle. Penney testified that he and Jeff came back to appellant’s home shortly thereafter. Penney stated that he was talking to his stepfather on the phone at appellant’s home when Mrs. Patricia Trenor came in the kitchen and told Mrs. Langley (appellant’s mother) that appellant was going to kill her (Patricia Trenor). According to Penney, he told his stepfather he had to leave, hung up the phone, and went outside. Penney testified that he came back inside with Jeff and saw appellant hold up a pistol with both hands and shoot Mrs. Patricia Trenor.

Lawton Yates, Criminalist with the Alabama Department of Toxicology, testified that on July 7, 1976, he received several items of clothing, a projectile, a spent cartridge case, and a .45 caliber semi-automatic pistol from Officer Granger. According to Yates, the spent projectile and cartridge were fired from the .45 caliber semi-automatic pistol he received from Granger. Also, according to Yates, the .45 caliber semi-automatic pistol would project gunpowder residue from thirty-six to forty-five inches. Yates stated that no such residue was found on deceased’s clothing.

Steve Trenor testified that he was the appellant’s son and was nineteen years of age. Trenor stated that he attended his maternal grandmother’s birthday party on June 26, 1976. According to Trenor, the appellant and Mrs. Trenor had a lengthy conversation. Trenor testified that after his mother and the appellant finished talking, his father told him that he was going to do away with all of them.

Jack Trenor testified that he was the appellant’s nephew. Trenor stated that he lived at appellant’s home in July of 1976. He testified that he went to bed on the night in question around 9:00 p. m. According to Trenor, he was awakened by the sound of a gunshot. Trenor stated that he got out of bed, went to the kitchen, and saw his uncle crying. Trenor testified that he put the pistol in his bedroom under the mattress.

Viva Langley testified that she lived at 1153 First Avenue, Pleasant Grove, Alabama, and that she was the appellant’s mother. Langley testified that she was in the kitchen on the night in question when Patricia Trenor came in and said, “Tommy’s got a gun (R. p. 241).” According to Langley, the appellant came in shortly after-wards and put his left arm around Patricia Trenor. Langley testified that the appellant had the pistol in his right hand. Langley then testified to the following (R. pp. 242-243):

“A. He told her that — he said, ‘Pat, you know I wouldn’t hurt you,’ he said ‘I’m not going to shoot you, you know I wouldn’t hurt you.’
“Q. All right. What was the next thing that was said?
“A. I caught hold of his right arm and asked him to let me have the gun.
“Q. What statement did he make to you?
“A. He said, ‘No, mama.’
“Q. And would you describe to the jury, tell the jury what Pat said or did?
“A. She walked up to the stove and put her hand on it just like that, kind of bent over leaning over a little bit, that’s when I went back to get Jack.
“Q. Was Pat crying at that time?
“A. Yes, sir.
“Q. Where was Tommy at that time?
“A. He was standing there beside her.
“Q. Did he have his hand on her any place?
“A. Not at that time he didn’t.
“Q. All right. Now, after you took hold of Tommy’s right hand and told him to give you the pistol and he told you he wasn’t going to hurt Pat, where if anywhere did you go?
“A. I went through the den back to the bedroom to get Jack, started back there to get Jack, my grandson.
“Q. Would you describe to the jury how you walked? Did you walk slow or fast?
“A. I walked fast.
“Q. And while you were walking through the den or back into that general area did you see or hear anything?
“A. Before I got to the door, the door to Jack’s room, I heard the shot.
“Q. And do you have any judgment as to how many seconds it was from the time that you left the kitchen going back here toward the den until you heard the shot?
“A. I’d say four or five seconds.”

Langley stated that she saw neither Jeff nor his friend in the den when she came back into the kitchen. Langley testified that Patricia Trenor was on the floor and the appellant was standing over her crying.

Thomas Durwood Trenor testified that around 9:30 p. m. Patricia Trenor said she was going to leave the party. The appellant stated that he told her he would walk out to the car with her since he had to go to work anyway. According to the appellant, he got his lunch box and pistol, which he always took to work, then walked out to Patricia Trenor’s car. The appellant testified that he and Patricia Trenor sat in her car and talked about her coming back and getting the marriage patched up. According to the appellant, Patricia Trenor told him that she might go over and spend the night with a Mr. Harrington. The appellant testified that he asked her if she had ever spent the night with Harrington before, and she replied that it was none of his business since they were not married anymore. According to appellant, he told her that he had rather be dead than live as he was, then picked up the pistol. He indicated that Patricia Trenor got scared and ran to the house. The appellant testified that he came in the house behind her and followed her into the kitchen. According to the appellant, his mother (Langley) grabbed him by the arm, and he told her he was not “going to hurt Pat (R. p. 270).” The appellant testified that he had his arm around Patricia Trenor and was trying to show her that the gun was on safety. The appellant stated that Patricia Trenor grabbed the pistol with both hands, and when he jerked the gun back it went off. According to appellant, he telephoned the operator and requested that an ambulance be sent right away.

I

The appellant contends that the trial court committed reversible error in refusing several written requested charges which were not covered by either the oral charge or other written charges.

Written requested Charges Nos. 25, 27, and 31 were to the effect that, if the shot which killed the deceased was accidentally fired, the jury cannot convict the defendant of manslaughter in the first degree, murder in the second degree, or murder in the first degree. Such charges were faulty for the reason that they failed to define the meaning of the word “accidentally.” Gautney v. State, 284 Ala. 82, 222 So.2d 175; Dobbins v. State, 274 Ala. 524, 149 So.2d 814; Garrett v. State, 268 Ala. 299, 105 So.2d 541.

II

The appellant contends that the trial court committed reversible error in refusing to give Charges Nos. 33, 39, and 41, all of which contain the language, “beyond all reasonable doubt.”

Such charges were too favorable to the appellant since the State must only prove its case beyond “a reasonable doubt,” not “ail reasonable doubt.” Hence, such charges were properly refused. Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130; Alldredge v. State, 45 Ala.App. 171, 227 So.2d 803; Brown v. State, 45 Ala.App. 391, 231 So.2d 167.

III

Charge No. 22, which was refused by the trial court, reads as follows (R. p. 328):

“You are instructed that the charges of murder in the second degree and manslaughter in the first degree are also embraced in this indictment.
“Murder in the second degree is the willful, unlawful killing of another human being with malice aforethought but without deliberation or premeditation.
“Manslaughter in the first degree is the unlawful, voluntary killing of another human being without malice. In manslaughter in the first degree there must be either a positive intention to kill, or an act of violence without just cause or legal excuse from which ordinarily, in the usual course of events, death may ensue. “Before you may convict the defendant of any charge embraced in this indictment, you must be convinced from the evidence beyond a reasonable doubt of each and every element of the offense charged.”

This is an incorrect statement of applicable law. The correct statement is contained in Harrington v. State, 83 Ala. 9, 16, 3 So. 425, 428, as follows:

“. . . In order to constitute manslaughter in the first degree, there must be either a positive intention to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily injury may be a consequence.” (Emphasis added)
IV

We have carefully examined the remaining refused charges and find that they were fully covered in the trial court’s oral charge and therefore their refusals were without error. Title 7, Section 273, Code of Alabama 1940.

Our careful examination of this record reveals no error. The judgment of the trial court is therefore

AFFIRMED.

All the Judges concur.

On Rehearing

TYSON, Judge.

At counsel’s urging we extend this opinion to include portions of the trial court’s oral charge which commences on Record Page 306, and to which no exceptions were taken by his attorneys (R. p. 316).

That portion of the oral charge covering manslaughter is as follows (R. pp. 313-314):

“Now, Manslaughter in the First Degree is also included in this indictment, as is Manslaughter in the Second Degree.
“Manslaughter in the First Degree is voluntarily depriving a human being of life, and I quote, our Court has elaborated on that saying that Manslaughter as defined in common law and under the statute declaratory thereof consists of the unlawful killing of a human being without malice expressed or implied.
“Now, none of the elements that constitute Murder are involved in Manslaughter. Manslaughter is the voluntarily depriving a human being of life but without malice. That is Manslaughter in the First Degree.
“Now, Manslaughter in the Second Degree is the unlawful killing of, but accidental killing of a human being without any intent to kill. It may be by a lawful act — a man may be guilty of Manslaughter in the Second Degree in doing a lawful act in a grossly negligent manner. “In order to reach a verdict of guilt in this case all of you and each one of you individually has to reach a verdict of guilt. All of you as a group and each one of you individually must be convinced beyond a reasonable doubt and to a moral certainty of the guilt of the defendant. And the verdict must be the verdict of all twelve of you, otherwise you cannot convict the defendant.”

We have examined refused charges 24 and 30, dealing with manslaughter in the first and second degree and are of the opinion that applicable elements are fairly and adequately covered in the foregoing charge. § 12-16-13, Code of Ala. 1975 (formerly Title 7, Section 273, Code of Alabama 1940).

At counsel’s request we have again examined written refused charges 43, 44, 45, and 46, all of which deal with the question of whether or not the defendant “intentionally fired the gun that killed the deceased.” These charges were properly refused in that they were argumentative under the evidence in this cause and therefore invasive of the province of the jury. § 12-16-13, Code of Ala. 1975.

OPINION EXTENDED, APPLICATION OVERRULED.


author: ALMON, Justice.

text:
    Ex parte Thomas Durwood TRENOR.
    77-310.
    Supreme Court of Alabama.
    Feb. 24, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Bobby D. PRINCE, alias v. STATE.
    6 Div. 525.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Rehearing Denied Jan. 24, 1978.

      George S. Wright, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Bobby D. Prince was charged by indictment with the robbery of Clifford Farley by taking some $3383.00 in currency and in property from his person, and by putting him in fear, etc. Following a jury trial in the Tuscaloosa Circuit Court, he was found guilty of robbery and sentenced to fifteen years and one day in the penitentiary. The evidence presented by the State, which consisted of the testimony of the robbery victim, Clifford Farley, and a written confession found by the trial court to have been voluntarily given by the appellant, was sufficient to sustain his conviction.

I

The principal and dispositive issue on this appeal is this: Was the appellant denied a speedy trial for this offense in violation of his rights under Art. I, Sec. 6 of the Alabama Constitution and the Sixth Amendment to the United States Constitution? We answer in the affirmative and, therefore, reverse and render the judgment of the trial court.

A chronology of events necessary to an understanding of our present disposition is as follows:

April 2, 1973: Clifford Farley was robbed by appellant and four companions on the roadside of County Road 140 in the Sipsey Swamp area of Tuscaloosa County, Alabama.

April 9, 1973: Appellant was arrested in the State of Florida for an armed robbery offense committed in that state and was incarcerated in the Escambia County Jail, Pensacola, Florida.

April 14, 1973: After being notified by the Florida authorities of their arrest of appellant, the Chief Deputy Sheriff of Tuscaloosa County, Warren Miller, went to Pensacola and interviewed the appellant. Appellant confessed his involvement in the robbery of Clifford Farley in Tuscaloosa, County, Alabama.

April 17, 1973: A warrant for the arrest of the appellant on the charge of robbery was issued out of the Tuscaloosa County Court and a detainer was filed with the Escambia County, Florida, authorities.

June 11, 1973: The Alabama State Board of Pardons and Paroles notified their Tuscaloosa County office that the Florida Parole and Probation Commission had inquired “as to what happened in [the Tuscaloosa County] offense as well as if anyone was injured . , [and] what [the Alabama authorities] were planning on doing concerning their detainer against the defendant.”

July 3,1973: The Tuscaloosa County Probation and Parole office supplied the State Board of Pardons and Paroles in Montgomery with the pertinent information requested by the Florida Parole and Probation Commission, indicating that the “Tuscaloosa County Sheriff’s Office ... is awaiting notice to return Prince to Tuscaloosa County to stand trial.”

July 19, 1973: The Escambia County (Florida) Sheriff notified the Tuscaloosa County Sheriff that appellant’s trial for his robbery charge had been set for August 2, 1973.

August 2, 1973: Appellant was convicted in Florida for armed robbery and sentenced to ten years imprisonment.

August 17, 1973: The Escambia County (Florida) Sheriff notified the Tuscaloosa County Sheriff of appellant’s August 2, 1973, conviction and his incarceration in the Florida State Prison. The Tuscaloosa County Sheriff was advised to place his detainer with the Division of Corrections in Tallahassee, Florida.

November 9, 1973: The Florida Division of Corrections notified the Tuscaloosa County Sheriff by letter and acknowledge receipt of the warrant and detainer lodged against appellant.

May 15, 1975: Appellant’s first “Motion To Discharge Detainer” was filed in the Circuit Court of Tuscaloosa County.

June 17, 1975: The State of Alabama Board of Pardons and Paroles notified their Tuscaloosa office that the Florida Parole and Probation Commission had requested information concerning the plans the authorities in Tuscaloosa had for returning appellant to Alabama for prosecution.

June 23, 1975: The Tuscaloosa County Probation and Parole office supplied the State Board of Pardons and Paroles in Montgomery with the pertinent information requested by the Florida Parole and Probation Commission indicating that:

“As of this date the District Attorney’s Office in Tuscaloosa County is unsure as to their position in this case. There seems to be a problem with some evidence. To this date no indictment has been returned by the Grand Jury.
“The District Attorney’s Office stated they would work on it and would let me know when a decision was made about their prosecuting Prince.”

July 29, 1975: Robert F. Prince, a Tuscaloosa attorney, advised appellant’s father in Lancaster, Texas by letter that:

“At your request I checked the courthouse records for any pending charges against your son, Bob Prince. I discovered that there were no pending charges against him either in the nature of a felony or misdemeanor. If there still exists a confusion, please notify my office immediately.”

August 13, 1975: Appellant wrote to Robert F. Prince (attorney) in Tuscaloosa and advised him that the Florida Prison records reflected an outstanding detainer lodged against him and that the detainer “prevents any custody reduction or work-release program. . . . ”

August 19,1975: Robert F. Prince (attorney) notified the Florida Division of Corrections that:

“Please be advised that I have been retained by a Mr. Bobby Prince who is presently incarcerated in Arcadia, Florida. He advises me that there is an outstanding detainer from the State of Alabama, probably from the County of Tuscaloosa, Alabama, which prevents any custody reduction or work release program that he might be eligible for.
“I have checked the records of the criminal division in Tuscaloosa County, Alabama and was advised that no such detainer existed. If possible, I request that you check your records and advise me whether you have any information concerning this alleged detainer.”

September 1, 1975: Appellant wrote to Robert F. Prince (attorney) and requested that he have the “Judge in Tuscaloosa” write to the Florida Parole and Probation Commission and “tell them I do not have a detainer.”

October 2, 1975: Attorney Robert F.. Prince notified appellant’s father by letter that he had rechecked the Tuscaloosa County records and that they failed to reflect any pending criminal charges against the appellant, but informed him that “a friend on the police force” advised him that “he (policeman) had seen at one time an outstanding warrant against a Bobby Prince. . ."

February 24, 1976: Appellant wrote to the Tuscaloosa County Parole and Probation office and requested “the case numbers of any detainers that had been filed with the Department of Offender Rehabilitation.”

March 3, 1976: The Tuscaloosa County Parole and Probation Office advised appellant that his robbery case had not been assigned a case number and that a case number would be assigned upon indictment.

May 28, 1976: Appellant was indicted for the robbery of Clifford Farley by the Tuscaloosa County Grand Jury.

June 14, 1976: Appellant’s second “Motion To Discharge Detainer” was filed in the Tuscaloosa County Circuit Court.

July 9, 1976: Pursuant to the grant jury indictment, a writ for appellant’s arrest was issued by the Circuit Clerk of Tuscaloosa County.

August 19, 1976: Appellant filed in the Tuscaloosa Circuit Court his third motion to dismiss the robbery charge against him for failure to provide a speedy trial.

November 2, 1976: An order for appellant’s extradition was issued by the Circuit Court of De Soto County, Florida.

November 19, 1976: The Alabama Board of Pardons and Paroles notified their Tuscaloosa office that the Florida Parole and Probation Commission had requested information as to “what plans the authorities in Tuscaloosa had for returning [appellant] to the State of Alabama . . . .”

December 12, 1976: The Tuscaloosa County Parole and Probation office informed the Alabama Board of Pardons and Paroles that the “D. A’s. office is still very unsure of what they plan to do — [appellant] returned to Alabama November 22 [for] trial set week of January 17 to 21.”

January 20, 1977: Appellant’s motion to dismiss for failure to provide a speedy trial was denied following a hearing thereon. Appellant’s trial began.

January 21, 1977: Appellant was convicted of robbery in the Circuit Court of Tuscaloosa County and sentenced to fifteen years and one day.

II

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1977), the United States Supreme Court delineated a four-pronged balancing test to be applied on an ad hoc basis in all cases in which a speedy trial claim is raised. The four factors to be considered in weighing the conduct of the State and an accused are: (1) the length of the delay, (2) the accused’s assertion of his right, (3) the reason for the delay, and (4) prejudice to the accused. Our discussion of the merits of appellant’s denial of speedy trial claim will be organized around these suggested factors. In doing so, we are mindful that:

“. . . [N]one of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” Barker v. Wingo, supra, at 533, 92 S.Ct. at 2193.

1. Length of Delay

The Speedy Trial Clause of the Sixth Amendment has no application until a criminal prosecution has begun, and the protection of the Amendment extends only to those persons who have been “accused” in the course of that prosecution. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455,

30 L.Ed.2d 468 (1971). Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975), established that arrest constitutes the initiation of a criminal prosecution for the purposes of applying the test of Barker v. Wingo, supra, regardless of whether a formal indictment has been returned. Quoting from United States v. Marion, supra, the Court noted:

“. . . [I]t is readily understandable that it is either a formal indictment or information or else actual restraints imposed by arrest and holding to answer a criminal charge that engaged the particular protections of the speedy trial provision of the Sixth Amendment.
‘Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge.’ ” United States v. Dillingham, supra, at 308, 96 S.Ct. at 304. [Emphasis supplied]

In light of these authorities, we hold that the State of Alabama designated the appellant as an “accused” person when it filed a warrant and detainer with the Es-cambia County, Florida, authorities on April 17, 1973; it was on this date that the appellant’s right to a speedy trial attached. This holding finds support in cases decided in other jurisdictions. Dodge v. People, 178 Colo. 71, 495 P.2d 213 (1972); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); see United States v. Simmons, 338 F.2d 804 (2nd Cir. 1964).

Although it might be suggested that, in our computation of the length of delay, we should mark April 17, 1973, as the inception of the speedy trial period since that is the date on which we deem the appellant’s right attached, the particular facts in this case cause us to pursue a “modified approach” in our calculation of the delay, as was done in Prince v. Alabama, 507 F.2d 693 (5 Cir. 1975).

Appellant was incarcerated in the Escambia County (Florida) Jail awaiting trial on an armed robbery charge when the warrant and detainer were lodged against him by the Alabama authorities in April of 1973. However, appellant was not “realistically available” to the Alabama authorities until after his trial and conviction in Florida in August of 1973. Prince v. Alabama, supra. Thus, for the purpose of determining whether the appellant was denied his Sixth Amendment right to a speedy trial, we calculate the length of delay to be roughly three and one half years—from August 2, 1973, to appellant’s trial date on January 20, 1977. In our judgment, this delay is excessive, particularly in view of the fact that appellant’s robbery offense was by no means complex, but was most akin to “an ordinary street crime.” Barker v. Wingo, supra. At the very least, the delay is long enough to “trigger” an inquiry into the other Barker factors.

2. Accused’s Assertion of His Right

Although the Supreme Court in Barker emphasized that the absolute failure of the appellant to assert his right would “make it difficult for him to prove that he was denied a speedy trial,” the Court noted that “the defendant’s assertion of his speedy trial right ... is entitled to strong evi-dentiary weight in determining whether the defendant is being deprived of the right.” Barker v. Wingo, supra.

On May 15, 1975, appellant filed his first motion to discharge the detainer in the Circuit Court of Tuscaloosa County. It is evident from the contents of that motion and the subsequent motions filed June 14, 1976, and August 19, 1976, that appellant was seeking to have his detainer removed and the pending charge dismissed pursuant to the provisions of the “Interstate Agreement on Detainers Act”; all motions made reference to the Supreme Court cases of Smith v. Hooey, and Dickey v. Florida.

The State argues that these motions do not reflect an assertion of appellant’s speedy trial right, but merely a desire to get his detainer removed and thus they cannot be construed as a “demand” to be brought to Alabama to stand trial under a Barker analysis.

In Prince v. Alabama, supra, we find: “. . . [CJourts should take a liberal view of convict-defendants’ attempts to contact the prosecutors and courts in other jurisdictions regarding charges pending against them there. Such an approach would be consistent both with the concept that chargeable failure to assert a constitutional right must be both knowing and intelligent, Johnson v. Zerbst, supra, and with the realities of a defendant’s incarceration, often distant from the prosecuting state and without the effective assistance of counsel.” 507 F.2d 703.

At the motion hearing conducted the day of trial, appellant testified that he attended “slow learners’ school” in Lancaster, Texas, and could not write. Appellant stated that he paid twenty dollars to a fellow prisoner to write the May 15, 1975, motion and then had the “notary man” stamp it. Appellant testified that his fellow prisoner prepared the handwritten motion “out of a law book.” He said he was told “it was a motion for a fast, speedy trial, and they [Alabama authorities] have got a hundred and eighty days to come get you or drop the charge.” Also, retained counsel had investigated.

We find that, after looking at these motions and the substantive constitutional issues implicitly raised therein rather than the captions placed on the motions, they were sufficient to place the prosecuting authorities “on notice” of the appellant’s speedy trial claim as early as May 15, 1975. Prince v. Alabama, supra; Strunk v. United States, 412 U.S. 434, 92 S.Ct. 2260, 37 L.Ed.2d 56 (1973). As was noted in Prince v. Alabama, supra:

“It would seem unduly harsh to require that an unsophisticated accused, proceeding pro se, invoke the talismanic phrase ‘speedy trial’ before he can claim to have asserted his right. Especially is this so when the prosecution continues at all times to bear the responsibility for securing a prompt trial.” 507 F.2d at 704.

3. Reasons for Delay

Even though appellant was incarcerated in Florida, serving time for his armed robbery conviction, the State of Alabama, at least after being sufficiently notified of appellant’s claim, had a constitutionally imposed duty to make a diligent, good faith effort to secure appellant’s return for trial. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Prince v. Alabama, supra.

The Supreme Court of Alabama, in Ex parte Hopson, 352 So.2d 506 (Ala.1977), brings out the view, consistent with Prince v. Alabama, supra, that the state authorities are under an affirmative duty to secure the presence of the party desired by appropriate legal action.

The appellant contends that the State made no such effort until they initiated extradition proceedings in November of 1976 and that no reasons exist which would justify their failure to take affirmative action to secure him a speedy trial.

Before denying the appellant’s motion to dismiss the charges, the trial judge commented that “[W]e have had about eight hundred to one thousand cases pending on the criminal docket and we have done our very dead level best to get these cases up.” The only other identifiable reason for the delay in the case at bar is that the State had an “evidence problem” which made them “unsure of their position” toward appellant.

Under the facts of this case, we agree with appellant’s contention that these reasons are insufficient to justify the inordinate delay in bringing appellant to trial “since the ultimate responsibility for such circumstances must rest with the government rather than the defendant.” Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192.

We note too that there is nothing in the record which indicates that any portion of the delay was attributable to the conduct of the appellant or that the Florida authorities in any way frustrated appellant’s return to Alabama for trial; in fact, it is apparent from the record that when the request for extradition was finally made there was no difficulty in securing appellant’s presence in this State for trial.

4. Prejudiced To The Accused

The fourth factor to be balanced is the prejudice to the appellant that resulted from the delay; however, there is authority which holds that where the other three Barker factors weigh in favor of the accused, “prejudice — either actual or presumed — becomes totally irrelevant.” Hoskins v. Wainwright, 485 F.2d 1186, 1192 (5th Cir. 1973); see Prince v. Alabama, supra.

In Smith v. Hooey, supra, we find:

“The historic origins of the Sixth Amendment right to a speedy trial were traced in some detail by the Chief Justice in his opinion for the Court in Klopfer, [Klopfer v. North Carolina ], supra, 386 U.S. [213], at 223-226, 87 S.Ct. [988], at 993-995 [18 L.Ed.2d 1], and we need not review that history again here. Suffice it to remember that this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: ‘[1] to prevent undue and oppressive incarceration prior to trial,. [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.’ United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627. These demands are both aggravated and compounded in the case of an accused who is imprisoned by another jurisdiction.” 393 U.S. at 377, 89 S.Ct. at 577.

Appellant has demonstrated that the State in their delay abused the second and third of these interests in the case at bar. The fact that the appellant repeatedly and energetically inquired about the pending charges against him is a strong indication that the outstanding untried charge had a depressive effect on him. Smith v. Hooey, supra.

Although the appellant’s assertion that the outstanding detainer prevented his being allowed work release is cited by the State to be a “self-serving statement,” this assertion was not contradicted, and, moreover, the reality of this hardship finds support in appellant’s correspondences with the Tuscaloosa attorney he retained to inquire about the detainer and in his letter of February 24, 1976, to the Tuscaloosa County Board and Probation office. Prince v. Alabama, supra.

In addition, appellant testified that he was unable to recall, the circumstances of the alleged offense in Tuscaloosa County. Although the purported inability of an accused to recall the events of an alleged crime may, in some cases, present only a “bare possibility” of prejudice, see Crawford v. State, Ala.Cr.App., 342 So.2d 450 (1977), where the delay is excessive and inexcusable, as shown here, “prejudice may fairly be presumed simply because everyone knows that memories fade, evidence is lost, and the burden of anxiety upon any criminal defendant increases with the passing months and years.” United States v. Mann, D.C., 291 F.Supp. 268, 271.

Weighing all factors together, we conclude that appellant has made a satisfactory showing in accordance with the principles laid down by the Supreme Court in Barker, supra, that he was denied his Sixth Amendment right to a speedy trial. Accordingly, the remedy for such deprivation is to reverse and render the judgment of the trial court. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

In accordance with the foregoing discussion, we hereby reverse and render this cause.

REVERSED AND RENDERED.

BOOKOUT and BOWEN, JJ., concur.

HARRIS, P. J., and DeCARLO, J., concur in result.

      . See 18 U.S.C.App., § 1-8 (1970).

      . 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969).

      . 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970).


author: EMBRY, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-316.
    Supreme Court of Alabama.
    Feb. 24, 1978.
   EMBRY, Justice.

WRIT DENIED.

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