author: BOWEN, Judge.

text:
    Tyrone JOSHUA v. STATE.
    7 Div. 636.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
    Rehearing Denied May 22, 1979.

      Charles C. Hart, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and David W. Clark, and Mary Jane LeCroy, Asst. Attys. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was charged in' a three count indictment with first degree burglary, robbery, and rape. The jury returned a verdict of guilty on all three counts and the trial court set sentence at life imprisonment. From this conviction the appellant makes his appeal.

The facts in this case are not complicated. A detailed narration describing the abominable and revolting conduct is not necessary. The sixty-nine year old victim positively identified the appellant as her assailant. The evidence clearly supports the jury’s finding that the appellant broke into the victim’s house, raped her, and robbed her of $29.85.

I

Initially the defendant argues that his conviction should be reversed because his signed confession was involuntary and therefore improperly admitted .into evidence. This contention of involuntariness is based on two factors: (1) the defendant’s mental capacity and (2) his testimony that he only confessed because he was threatened with a cattle prod.

The trial court held a pretrial hearing on the defendant’s motion to exclude his confession. Three witnesses testified.

Sergeant W. A. O’Bryant, a detective with the Gadsden Police Department, testified that he questioned the defendant about the rape, robbery, and burglary. Detective O’Bryant handed the defendant a waiver of rights form. The defendant took the form and looked at it like he was reading it. O’Bryant then read the Miranda rights from the waiver form and asked the defendant if he understood his rights. The defendant stated that he understood those rights.

O’Bryant stated that he did not coerce or threaten or make any promises to the defendant to obtain the confession and did not threaten him with a cattle prod. O’Bryant acknowledged that the defendant “appeared” to have “some sort of low mentality”.

O’Bryant read the defendant’s statement back to him after he made it to insure that he understood what he was signing. The defendant then signed the confession. Detective O’Bryant was the only officer present when the defendant signed the waiver and made his confession. There is no evidence that the defendant had been questioned at any other time or by any other officer.

O’Bryant talked to the defendant only a very short time, some thirty to thirty-five minutes, before he admitted the rape and robbery.

Defense counsel introduced a copy of the medical records of the defendant from Bryce State Mental Hospital, where the defendant had been sent by the court pursuant to a motion for mental competency examination filed by his attorneys. Contained therein is a report of psychological evaluation relevant to the mental condition of the defendant. We set forth portions of that summary.

“RELEVANT BACKGROUND INFORMATION AND BEHAVIORAL OBSERVATIONS : Mr. Joshua is a single, black, 19 year old, illiterate male with an educational history of eleven years in special education. Mr. Joshua stated that he had been employed in construction work but had to quit because he suffers from dizziness and blackout spells. He denies using alcohol or drugs and states that he has no juvenile record. At this time Mr. Joshua faces the following charges: (a) First Degree Burglary, Robbery and Rape; . Mr. Joshua states that he was intimidated, threatened, and physically abused to the point of having a cattle prod used on him, in police efforts to coerce him into confessing to the above series of crimes. He also states that his court appointed lawyer shows no interest in listening to his side of the story.
“Mr. Joshua was a pleasant, cooperative young man who had no difficulties in understanding and following directions. He communicates well and his comments are clear and relevant.
“INTELLECTUAL FUNCTIONING: On the WAIS Mr. Joshua earned a Verbal IQ of 59, a Performance IQ of 65, and a Full Scale IQ of 60. All findings are within the mil.dly mentally retarded range. His educational history suggests that this is a valid estimate of both his current and long term level of functioning.”
“PERSONALITY STRUCTURE AND FUNCTIONING: As a retarded person, Jr. Joshua is limited in his understanding of complex social interactions, his ability to acquire vocational skills, and facility in assuming an independent adult male role in society. However, his Sentence Completions and conversation suggests that he is a relatively self accepting young man and more streetwise than his obtained IQ would lead one to expect. No symptoms of a thought disorder were elicited during testing.
“DIAGNOSTIC IMPRESSIONS: Mr. Joshua is a mildly mentally retarded individual who appears to be organically impaired.
“SUMMARY AND RECOMMENDATIONS : Mr. Joshua is a single, black, 19 year old, mildly mentally retarded male whose testing suggests organic impairment. No evidence of a thought disorder was found during testing. Within his intellectual limitations Mr. Joshua is competent to proceed to the judicial process.”

The defendant testified that he had gone to the eleventh grade, had been enrolled in a special education program and had made “F’s” all the way through school. He stated that he could not read and could only write his name. He denied knowing what the words “waiver”, “statement”, and “constitutional rights” mean. Although he stated that Sergeant O’Bryant allowed Mrs. O’Bryant to bring him a hamburger and a coke during the questioning, the defendant testified that O’Bryant told him that if he “didn’t testify that I did this he was going to do something to me. He made me pull down my pants.” O’Bryant allegedly threatened the defendant with a cattle prod.

The defendant further testified that he could not read his confession; that O’Bryant did not let him call his father and that he was “tricked” , into signing some papers he “didn’t know nothing about”.

On cross examination the defendant stated that he did not know and could not read the alphabet although he testified that there “ain’t no I in my name Any fool can tell you that”. The only high grades he got in school were in “P. E.” and “for writing (his) name” and “good handwriting”. He admitted signing the statement but only “by threat”. The defendant stated that he made “straight F’s” in school and was passed on to the next grade because of “old age”. He admitted that his rights and his statement “could have been” or “probably” were read to him by Sergeant O’Bryant but that he “didn’t know the meaning”.

Julian Joshua, the defendant’s sister, also testified as to the defendant’s mental inca-pacities. She stated that he was unable to correctly complete a job application and that she had to help him; that he never read books or the newspaper but just looked at the pictures and that he “could not read very well at all”, probably on a first grade level. The defendant let his sister keep his money for him and she would “issue” it out to him when he needed it.

The defendant was recalled and read his rights. To each right he testified that he did not understand it or know what it meant. He admitted that his confession was read to him by Sergeant O’Bryant but maintained that he was forced to sign it. He denied understanding almost every sentence in the short confession.

After hearing the testimony the trial court denied the defendant’s motion to suppress the confession.

At trial Detective O’Bryant essentially reiterated the testimony at the pretrial hearing on the motion to suppress. The defendant had been placed in a line-up before his statement was taken. O’Bryant stated that the defendant appeared “just like anyone else, just normal” when he took the statement. After O’Bryant finished typing the defendant’s statement he “read it to him first and asked him again if this was the statement that he made”. The defendant signed his name “just normal, just like anyone else would”. The defendant signed the waiver of rights and the confession the first time after O’Bryant read it to him and asked him if he understood it. O’Bryant testified that the defendant was only “with (him) five to ten minutes on the waiver. Probably with (him) thirty minutes or more, short time, thirty, thirty-five minutes on the statement.” O’Bryant talked to the defendant in a normal tone of voice.

At trial, Julian Joshua testified that the defendant had difficulty reading and that he was home at the time the victim was raped.

The defendant’s mother, Dorothy Joshua, also testified that the defendant was home. Regarding his mental condition, she testified that “he wasn’t too good at school too much” and that he never graduated from high school. She stated that she talked to one of his teachers and “he told him he could learn if he was to get his mind on, you know, sit down. He always liked to play ball and things. Didn’t think about his books. * * * He said he could learn more in his books if he would put his head on it.” Mrs. Joshua stated that her son got “B’s in, you know, talking. You know, language and things.” She responded that the defendant could understand language “pretty good” but did not know what he could or could not understand.

The defendant testified in his own behalf. He denied that he committed any crime and maintained that he was home when the rape occurred. His testimony was essentially the same regarding the circumstances surrounding the taking of his confession as that given at the pretrial hearing. He further stated that he “was dumb, man, in school” and “didn’t know a thing”. He stated that his mother did not know what grades he made because he tore up his report cards and threw them away.

On rebuttal the State introduced a witness who testified that the defendant had a bad general reputation in the community and that she would not believe him under oath.

In attacking the admissibility of the confession the defendant erroneously argues that it should not have been admitted because the State presented no evidence that the defendant understood his rights.

Sergeant O’Bryant stated that the defendant appeared to have “some sort of low mentality” but stated he understood his rights after they had been read to him and he had been given a copy to read. There was no extended period of interrogation. Sergeant O’Bryant was the only person to question the defendant and, under his testimony, no intimidation or duress was employed in obtaining the waiver and confession. A psychological evaluation reported the defendant as “more streetwise than his obtained IQ would lead one to expect”.

The trial court decided, at a pretrial hearing, that the appellant did make a knowing and intelligent waiver of his constitutional rights, and we think the State met the burden imposed upon it to so prove. The trial judge had the opportunity to hear and observe the appellant testify as to his competence and to his version of the circumstances surrounding his written waiver and confession. We find no error in his ruling. Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967).

The law is clear.

“mental subnormality on the part of one confessing to a crime does not of itself deprive the confession of voluntariness or bar its admission in evidence, so long as the subnormality has not deprived the person in question of the capacity to understand the meaning and effect of the confession. But mental subnormality is a factor to be considered in determining the issues of voluntariness and admissibility, and, where accompanied by other factors indicative of an absence of voluntariness, will require that the confession be excluded.” 69 A.L.R.2d 348, 350 (1960).

See also Twymon v. State, 358 So.2d 1072, 1074 (Ala.Cr.App.1978); Arnold v. State, 348 So.2d 1092, 1096 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977). In Ex Parte Jimmie Lee Garrett v. State, Ala., 369 So.2d 833 (Ms. March 9, 1979), the Alabama Supreme Court affirmed this position and held that, although the degree of intelligence of a prisoner should be considered in determining whether his confession is voluntary, “in most cases, the defendant’s mental deficiency will be but one factor to be considered in the totality of the circumstances surrounding the confession”.

In Cooper v. Griffin, 455 F.2d 1142 (5th Cir. 1972), cited by the appellant, the evidence was undisputed that the defendants were incapable of an intelligent and knowing waiver. There the only contradicting evidence presented by the State was the testimony of the arresting and interrogating officers that the full Miranda warnings had been given and that each defendant appeared to understand the warning and orally waived the right to counsel and signed written waiver forms. As previously noted, in this case there was some conflicting evidence on the appellant’s mental capacity.

Where there is a conflict in the evidence on the voluntariness of a confession, great weight must be given to the judgment of the trial judge in deciding this issue. His finding will not be disturbed on appeal unless palpably contrary to the weight of the evidence. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Rhine v. State, 360 So.2d 1056, 1058 (Ala.Cr.App.), cert. denied, 360 So.2d 1060 (Ala.1978).

The mental condition of an accused is rarely provable by direct or positive evidence. Most often it must be inferred from his physical actions and from the totality of the circumstances surrounding the questioned act to which the intent or mental state is relevant. Throughout the proceedings the defendant’s testimony was coherent, responsive, and detailed. When asked by the trial court if he had anything to say before sentence was imposed he declared, “I’m going to appeal my case”. Under these conditions the admission of the confession was not error.

II

The defendant next contends that his line-up was conducted in an impermissibly suggestive manner and thus tainted the victim’s in-court identification. The facts and law do not support this contention.

On March 3, 1978, four days after her attack, the victim testified that she was called by the Gadsden Police and asked to come down to the station to make an identification. The victim stated that Sergeant O’Bryant told her, “I think I’ve got your boys”. The defendant was placed in a lineup with four other black males of approximately the same age, height and weight. The victim was not told which one of the five was the suspect. She had no difficulty in selecting the defendant. She immediately told the police, “It’s number 4”, and marked an “x” in the form to correspond to the defendant’s position in the line-up. Sergeant T. P. Cox of the Gadsden Police Department conducted the line-up. He testified that the victim did not waiver in deciding who her assailant was. She also identified the defendant by voice. The victim had given a detailed description of her attacker to the police prior to the line-up which accurately matched in all respects the appellant’s appearance.

Whether a line-up is unnecessarily suggestive and conducive to mistaken identification is to be determined from the totality of the surrounding circumstances. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); McKay v. State, 51 Ala.App. 307, 310, 285 So.2d 117, cert. denied, 291 Ala. 788, 285 So.2d 122 (1973). The factors considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); McGuff v. State, 566 F.2d 939, 941 (5th Cir. 1978). Furthermore, it is perfectly natural for persons called to view a line-up to understand that a suspect is in the lineup. That they are told that he is, by someone connected with line-up, although generally inadvisable, does not contaminate the proceeding. Fletcher v. State, 337 So.2d 58, 59 (Ala.Cr.App.1976).

“A lineup is not a test run, a fire drill or an academic proceeding. The victim of a crime has the right to assume when asked to come to a lineup that he is not being toyed with, that there is more than an infinitesimal chance of a member of the lineup being the criminal . . 337 So.2d at 60.

Applying the foregoing principles to the facts presented in this ease we must conclude that the defendant’s line-up was not conducted in a suggestive manner or that the victim’s identification was mistaken. Thus, we hold it was not error to allow the victim’s identification of the defendant into evidence.

Ill

The trial court refused to give the following charges requested by the defendant:

“Unless you are convinced beyond a reasonable doubt that the victim’s in-court identification is not based in any part on the previous suggestion of guilt by a Gadsden Police Officer, you must disregard the victim’s identification of Defendant as the guilty party.”
“The Defendant’s position is that his statement was the result of threats made against him at the Gadsden Police Department.”

It was not error to refuse these charges. The first charge is abstract as there is no evidence in the record which indicates that a Gadsden Police Officer suggested to the victim that the appellant was guilty. It is argumentative in that it announced no distinct proposition of law. And finally it is misleading in that it disregards other independent evidence upon which the victim’s identification of the defendant may be based. Blackshear v. State, 88 Ala. 35, 7 So. 257 (1890). The second charge does not contain any principle of law, Turner v. State, 160 Ala. 55, 49 So. 304 (1909), and is argumentative in nature. Smith v. State, 338 So.2d 1030 (Ala.Cr.App.), cert. denied, 338 So.2d 1033 (1976).

IV

The State made out a prima facie case under all three counts contained in the indictment. The testimony of the victim alone was sufficient to accomplish this. Arnold, supra; Godbee v. State, 56 Ala.App. 174, 320 So.2d 107 (1975). The State’s evidence was sufficient for submission to the jury, and, if believed, would support a conviction for robbery, rape, and burglary. There was no error in the trial court’s refusal to grant the defendant’s motion to exclude the State’s evidence. Arnold, supra; Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974); Evans v. State, 39 Ala. App. 404,103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44 (1958).

We have searched the record for error as required by law and found none. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte Tyrone JOSHUA.
    78-616.
    Supreme Court of Alabama.
    July 20, 1979.
   ALMON, Justice.

WRIT DENIED.

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


author: DeCARLO, Judge.

text:
    Paul R. JONES v. STATE.
    3 Div. 954.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearing Denied June 26, 1979.
    Joseph G. L. Marston, III, Prattville, for appellant.
    William J. Baxley, Atty. Gen., and Karen L. Daniel, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

This is an appeal by an indigent from a conviction for forgery in the first degree, wherein the appellant, after waiving a jury trial, was tried before a judge and sentenced to three years imprisonment.

The indictment reads, as follows (omitting formal parts):

The Grand Jury of said County charge that . . . PAUL RAYMOND JONES, alias . . . whose name is to the Grand Jury otherwise unknown, with intent to injure or defraud, did falsely make, alter forge or counterfeit an instrument in writing, in words and figures substantially as follows:
“more specifically, the above-described check, but not the endorsement on the reverse side thereof, or, with intent to injure or defraud, did utter and publish as true, the said falsely made, altered, forged or counterfeited instrument in writing, knowing the same to be so made, altered, forged or counterfeited, against the peace and dignity of the State of Alabama. . . . ”

The facts presented by the State in support of the indictment are as follows:

Ronald B. Worrell, the manager of the Montgomery division of the Alabama Motorists Association, during trial, identified a check introduced in evidence as one of those stolen from his office on or about April 24, 1978. The check was made payable to Jerome Berry and was signed under the name of Ronald B. Worrell.

Worrell testified that he did not know a Jerome Berry, did not sign the check, and gave no one permission to sign the check on his behalf. The witness further stated that he did not, himself, have the authority to sign the check.

During cross-examination Worrell testified that the check was void and that “[t]he bank would not accept it.” Further, he acknowledged that the check would be null and void on its face, because he had no authority to make such a check for the Motorists Association.

Fred Griffin was employed by the Big Bear food store in the Capitol Parkway Shopping Center at the time appellant attempted to cash the check in question. He acknowledged that, on April 24, 1978, he had an occasion to see the appellant at the food store. According to Griffin, the appellant “came to cash a check on the Alabama Motorists Association payable to Jerome Berry.”

He identified State’s Exhibit No. 1 as the check presented to him and stated, “This is the check he presented to me when he signed it, middleways down the check, in my presence. It was already signed when he brought it in but I had him to sign it right here — .”

Griffin testified that the appellant presented the check as payment for “some merchandise in the store.” The witness stated that, at that time, he asked the appellant for some identification and that the appellant presented an Alabama driver’s license and a metal social security card, both issued in the name of Jerome Berry. Griffin identified these items in court and they were admitted into evidence without objection.

The witness added that he had been notified of the stolen checks and stated that, when the cashier recognized the check as one of those belonging to the Alabama Motorists Association, she sent the appellant to him so that he [Griffin] could cash it. According to Griffin, he compared the identification which the appellant had presented to him with the name on the check and then sent him back to the check-out line to get the check cashed. Griffin testified that he told the appellant that the cashier would cash the check when he made his purchase, as a “stall tactic,” because she did not have the money to cash it.

The witness stated that, at that point, he called the police department and, within “about two minutes,” an officer walked into the store and asked the appellant his name. According to Griffin, the appellant replied, “Jerome Berry,” and the policeman then told the appellant he was under arrest.

On cross-examination, Griffin testified that he did not see the appellant “sign anything on the front of the check,” but “did see him sign something on the back of the check.”

H. M. Carmichael, a Montgomery police officer, investigated the forgery of the check drawn on the Alabama Motorists Association account. He testified that, on April 24,1978, he talked with the appellant after the appellant had executed a “Rights Form,” indicating that he had been informed of his constitutional rights regarding the interview.

Officer Carmichael testified that neither he, nor anyone in his presence, threatened or coerced the appellant in any way, nor offered him any reward or hope of reward, to obtain the signed waiver form or subsequent statement.

During the trial the appellant’s statement was objected to and, after a voir dire examination, the statement was introduced over appellant’s objection.

The statement taken from the appellant reads, as follows:

“Montgomery Police Dept.
DET. DIV.
April 24/78
“Statement of Paul Raymond Jones concerning the forgery of a stolen check at the Big Bear Store on Mt. Miegs Rd. 4/24/78
Statement taken by H. M. Carmichael “Me and Tom got together and he told me that he had some papers and some good I.D. and he asked me if I wanted to make some bread with him and he said that he needed a quiet partner and some one to drive him around and then we went around to some stores and cashed some checks. We were in Thomas Fitzpatrick’s car when we were busting these checks. Thomas took all the checks in the stores accept the one that I took in the Big Bear today.
“Q. How many checks did you have that you could cash?
“A. One, the one that I got caught with.
“Q. Did you write the name on the check?
“A. Yes, I wrote the name on the check while I was in the store.
“Q. Was this at the Big Bear on Mt. Miegs Rd?
“A. Yes sir it was.
“Q. Who was with you when you tried to cash the check today?
“A. I was in there by myself.
“Q. How many other checks have you tried to cash?
“A. None, Thomas Fitzpatrick is the one who tried to cash checks at Big Bear and Winn Dixie in Wetumpka yesterday that’s where he busted some that I know of he did try some other places but he was turned down.
“Q. Who was with you today when you tried to cash the check at the Big Bear?
“A. J. J. and Tom and Ann, that’s Tom Fitzpatrick and I don’t know the girl’s last name, but Tom has got a bunch of checks. I saw them they were folded I couldn’t tell how many he had.
“Q. Have you made this statement on your own free will?
“A. Yes.
“Q. Is this statement true and correct to the best of your knowledge?
“A. Yes sir.
“Q. Is there anything that you would like to add or change about this statement?
“A. No.
"/s/ Paul Raymond Jones /s/ H.M. Carmichael "Paul Raymbnd Jones Det. H.M. Carmichael.11

During cross-examination, Officer Carmichael was asked if he had asked the appellant:

“Q. . . Did you write the name on the check?’ (reading). ‘You asked him that question?
“A. Yes, sir.
“Q. And he answered, ‘Yes, I wrote the name on the check while I was in the store.’ What name is he talking about?
“A. The name that’s on the check, it escapes me right now.
“Q. The endorsement?
“A. Yes, sir.”

At the conclusion of Officer Carmichael’s testimony the State rested and the appellant moved to exclude the State’s evidence on the following grounds: (1) That thp State’s instrument was void on its face and (2) that the evidence proved only that the appellant had forged an endorsement. Defense counsel argued that the indictment “completely negates the forging of the endorsement.”

The motion was denied and the appellant rested his case without presenting any evidence.

I

The appellant insists that proof to sustain his conviction was insufficient because the instrument was void on its face and thus could not serve as a basis for a prosecution of forgery.

Appellant bases this contention on the fact that the manager of the Alabama Motorists Association, Ronald B. Worrell, whose name appears as the drawer of the check, was not authorized to sign checks for the Association.

In support of this contention, appellant cites Williams v. State, Ala.Cr.App., 333 So.2d 610. However, the check in the instant case cannot be placed in the same category as the instrument in Williams. There, the instrument involved was a check executed and cashed on a Sunday, which under the Code of Alabama 1940, Recomp. 1958, was void on its face and not subject to forgery. See also, Gooch v. State, 249 Ala. 477, 31 So.2d 776.

In a forgery prosecution, the only requirement involving the forged instrument is that it possess “some apparent legal efficacy” and that “there is a reasonable possibility that it may operate to cause injury.” Wyatt v. State, 36 Ala.App. 125, 57 So.2d 350.

In Wyatt, supra, the forged instrument was a county warrant which was purported to have been drawn by the president of the county commission rather than by the chairman of the court of county commissioners, which was the appropriate appellation. It was the payee’s signature that was forged on the county warrant.

This court in Wyatt, supra, stated:

“While hypertechnically, the proper appellation of a county governing body is ‘Court of County Commissioners’ . . .
“[I]t is our conclusion that the warrant as drawn in this case, unless a mechanical and hypertechnical mode of reasoning be resorted to, was drawn with sufficient substantial compliance to statutory regulation, possessed apparent legal efficacy, and carried with it a possibility of operating to cause injury.”

Similarly, in Clay v. State, 57 Ala.App. 630, 330 So.2d 453, this court held that a savings account withdrawal form, which was signed in the name of a person who did not have a savings account and which did not bear an account number, was not void when appellant presented it for payment. This court concluded that the instrument was a proper subject of forgery as alleged in the indictment and that it possessed apparent legal efficacy.

In the present case, the check in question possessed a sufficient appearance of legal efficacy to make it a proper subject of forgery. See Wyatt v. State, supra and Clay v. State, supra. Had it not been for prior notification that checks from the Alabama Motorists Association had been stolen, Mr. Griffin would not have detained the appellant and his fraud would not have been discovered.

In a forgery prosecution, it is not required that injury result from utterance of a fraudulent forged instrument, or that the defendant's fraudulent intent be carried out successfully. Hall v. State, 31 Ala.App. 455, 18 So.2d 572. Under the rationale in Hall, even though no injury resulted from the utterance of the forged check, the offense is still complete.

The appellant also contends that his motion to exclude should have been granted because the State failed to show who was authorized to issue checks on the Alabama Motorists Association account and that the instrument in question was not in fact signed by the party authorized to sign checks. Therefore, he insists that this was a failure to show the check was in fact false. This contention is based upon the following testimony of Ronald B. Worrell, which reads as follows:

“Q. Did you sign this check?
“A. Absolutely not.
“Q. Did you give anybody permission to sign this check?
“A. No, sir. It wouldn’t have been valid if I had.
“Q. Do you know the defendant there?
“A. Never seen him before except in a prior trial, the Grand Jury hearing.
“Q. Do you have the authority to sign even on that account?
“A. No, sir.
“Q. And you gave no one permission to sign that check?
“A. No, sir, I couldn’t have. I didn’t have the authority to give it nor the authority to sign it.”

In support of this contention, the appellant relies on Finney v. State, Ala.Cr.App., 348 So.2d 876, in which this court stated:

“The appellant’s motion for a directed verdict was due to be given.
“ ‘Forgery is not established by the bare fact that one man has signed the name of another to a writing having apparent legal significance because the signing (1) may have been authorized, in which case the writing is not false, or (2) though unauthorized may have been in the bona fide belief in the existence of such authority, in which case, although the writing is actually false, it was prepared without an intent to defraud.’ Perkins at 352.
See also: 2 Wharton, Criminal Law (1957) Sections 624-626, pp. 400-403. Because the state, in a prosecution for the forgery of a check, failed to prove that the check was false by not offering any evidence that the accused was not authorized to make the check, this case is due to be reversed. The absent proof may be supplied by the testimony of [the drawer] that he did not authorize the appellant to write or sign the check.”

In Finney, supra, the appellant wrote a check on the account of Mr. and Mrs. Wesley N. Nixon, signing the name of Wesley N. Nixon and uttering it at a clothing store for merchandise. The State proved that the appellant actually wrote Nixon’s name and that the signature was not Nixon’s, but Nixon did not testify. No proof was offered by the State that the appellant was not authorized to sign Nixon’s name.

The case at bar can be distinguished from Finney, supra, in that Mr. Worrell testified that the check in question was stolen. From the record:

“Q. I will show you what has been marked as State’s Exhibit No. 1 and ask you if you can identify that, please?
“A. Yes. It’s one of the checks that was stolen on Friday night — Friday or Saturday — in the latter week in April, April 24th I believe it was.
“Q. How did you determine those were stolen?
“A. They were missing after a break-in, every one of them. All the checks we had in the office were missing after a break-in.
“Q. Did you have the number of the stolen checks?
“A. We had the stubs left. They tore the checks out of the book so we knew the ones that were stolen from the ones we had written and completed the stubs, then all the rest of them were torn out of the book and missing.
“Q. Do you know Jerome Berry?
“A. Never heard of him.
“Q. Is that your name that appears down here—
“A. It’s my name.
“Q. —as the signature?
“A. —but not my signature.”

It is well established that proof of corpus delicti may be supplied by circumstantial evidence. See Ala. Digest, Criminal Law § 563. Here the foregoing testimony gives rise to the inference that the check was, indeed, false.

Furthermore, the State’s evidence tended to show that the appellant knew that the check was false and that he had intended to defraud Fred Griffin when he presented the check to him at the Big Bear food store. The appellant obtained the check and the documents of identification for Jerome Berry from a Tom or Thomas Fitzpatrick. The appellant later presented the check and the identification, showing that he was Jerome Berry, to Griffin, and gave the police officer the false name of Jerome Berry when he was asked his name by the arresting officer.

Intent to defraud or injure need not be proved by positive and direct evidence. Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90. Rather, the intent to defraud may be inferred from the accused’s conduct, in light of the surrounding circumstances. McGee v. State, 20 Ala.App. 221, 101 So. 321; Bartlett v. State, 8 Ala.App. 248, 62 So. 320.

It is our opinion that the evidence presented by the State was sufficient to present a question of appellant’s guilt for the jury and that the trial court was correct in overruling the motion to exclude.

We have searched the record for error and have found none prejudicial to this appellant. Therefore, the judgment of conviction by the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Wade E. McARDLE v. STATE.
    4 Div. 709.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearings Denied June 26, 1979.

      Michael Crespi, Headland, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for assault with intent to murder his wife. The trial court fixed his punishment at five years’ imprisonment.

I

Omitting its formal parts the indictment charges that:

“Wade E. McArdle, whose name is to the Grand Jury otherwise unknown, unlawfully and with malice aforethought, did assault Francis McArdle with the intent to murder her, . . .

The defendant contends that this indictment is legally insufficient because it fails to specify the act or acts constituting the alleged assault with intent to murder.

Section 15-8-150 of the 1975 Alabama Code states:

“The forms of indictment set forth in this section in all cases in which they are applicable, are sufficient, and analogous forms may be used in other cases.”

That part of the indictment pertinent to assault with intent to murder is verbatim to Alabama Code Section 15-8-150(14) (1975) and thus is sufficient in all particulars to advise the accused of that which he must defend. Case law also supports the position that an indictment for assault with intent to murder which follows the code form is sufficient. Buffalow v. State, 34 Ala.App. 418, 41 So.2d 417, cert. denied, 252 Ala. 536, 41 So.2d 420 (1949); Danley v. State, 34 Ala.App. 412, 41 So.2d 414, cert. denied, 252 Ala. 420, 41 So.2d 417 (1949); Stratford v. State, 32 Ala.App. 249, 24 So.2d 453 (1946); Barber v. State, 23 Ala.App. 584, 129 So. 492 (1930).

Although no objection was raised on the following point, we hold that it was not error for the alleged victim’s name to be spelled “Francis” in the indictment rather than “Frances”, as she signed her name on the arrest warrant and as her name appears elsewhere in the record. “The mere misspelling of the name of the accused party or of the name of a third person whom it may be necessary to mention, itself will not vitiate an indictment, or produce a fatal variance, unless it is apparent that the misspelling causes a material change in the pronunciation or sound of the two names. Whether one name is idem sonans with another, is not a question of orthography, but of pronunciation, ‘depending less upon rule than upon usage . . . Underwood v. State, 72 Ala. 220, 222 (1882).

II

The defendant next contends that the State did not prove a prima facie case of assault with intent to murder. The trial court overruled the defendant’s motion to exclude based on the insufficiency of the evidence and denied the requested affirmative charge.

Construing the evidence in the light most favorable to the State as is required, Ellis v. State, 338 So.2d 428 (Ala.Cr.App.1976); Colston v. State, 57 Ala.App. 4, 325 So.2d 520, cert. denied, 295 Ala. 398, 325 So.2d 531 (1975), the following facts are revealed: Francis McArdle, the defendant’s wife, arrived home at 4:45 on the afternoon of August 28, 1978, to find that her husband had not left for his evening shift of work. When she asked the defendant if he were sick he did not answer.

Mrs. McArdle went outside to take her clothes from the clothesline and her son Kevin returned from work. When he entered the house the defendant, his father, “had the rifle in his hands, and he told me to have a seat on the couch”.

Mrs. McArdle gathered the clothes and had “come back to the door to come into the house” when her husband met her with the “barrel of a gun”. The defendant told her, “Now, you are looking down the end of a barrel. How does it feel? I have been planning on doing this for a year, and today is the day.”

The defendant directed his wife to have a seat in the chair across from the couch where Kevin was seated and said:

“I would kill you now, but my one last ambition is for you to see me kill your daddy. And he reached in his pocket, and he pulled out daddy’s truck keys. He said I’ve got him stranded over there at Rayburn Hall’s right now. I’ve got his truck keys. And we are going to make a little trip. And I want you to see me kill him first. And he said you don’t believe I’ll shoot. And then he shot."

The defendant, who was standing six to seven feet away, fired four shots in Mrs. McArdle’s direction, on both sides and very close to her. “He was just shooting. He wasn’t exactly .aiming.” Mrs. McArdle considered her husband a “good shot”. He had always “hunted a lot” and she believed he had done well shooting targets in competition. The defendant then broke a light fixture and a ceramic ashtray with his rifle and continued to brandish the weapon in the faces of Mrs. McArdle and Kevin- saying, “see how it looks to see down the end of a barrel”.

Mrs. McArdle testified that just before they left on their “trip” she reached for her pocketbook lying on the table which contained her cigarettes and the defendant “jabbed me with the end of the barrel . and busted a blood vessel in my arm”.

The defendant ordered his wife and son to walk outside and “get in the back end of the truck” which he had parked behind some bushes and hidden from view. Mrs. McArdle “heard the gun being reloaded, or something. A clicking in the gun.”

The defendant drove to Mr. Hall’s house where Mrs. McArdle’s father’s truck was parked and then “headed back towards Headland and parked beside the road underneath this big oak tree”. The defendant said, “(N)ow, we’ll wait for him to come. Somebody will come and put him off directly, and you’ll get to see me kill him.”

After they had been parked beside the road for fifteen or twenty minutes Mr. Hall drove up from town and the defendant told his wife and son, “(I)f he stops, and y’all give me away, I’ll kill you now.” Mr. Hall stopped, talked a few minutes and left, after which the defendant remarked, “I never should have let him leave here. I should have killed him then. He’s gone now to call the law.”

The defendant drove back to his father-in-law’s truck, but his father-in-law was not there. The defendant continued to curse, harass and threaten his wife and son. Mrs. McArdle stated, “When he would be right in my face talking or harassing me, he would take a finger, and he would do me like that, in my mouth, and spread them, and grab me in the throat, and Kevin would say Daddy, Daddy, and he would quit. And he looked at me, and he said you look so much like your — you know what kind of daddy, I could cut your head off and hand it back to him on a platter.” The defendant stated that he wished Mrs. McArdle’s youngest sister were there: “He would love for her to see him kill my daddy, too.”

The defendant drove off through a field, stopped, got out of the truck and said to his son, “(H)ow would you like to dig a hole here?” The defendant then changed his mind and said “no, said, we’ll wait on digging that hole, because when we dig a hole, it’s going to take a big one. So, we’ll wait on that. And he kept saying that there was going to be the biggest write-up in the paper tomorrow that there had ever been.”

The defendant then drove home and parked his truck behind a utility building so that it could not be seen from the road. He told his wife and son, “(L)et’s get out and go in and have a seat and wait for him. He will soon be here.” Mrs. McArdle testified that the “phone kept ringing continuously”, but “(h)e dared us to answer . . . .”.

Joe McArdle, the defendant’s oldest son, came over later and asked “Daddy, what’s wrong?” The defendant replied, “(Y)ou leave from here now, or I’ll kill you”. Joe returned later with Officer Jesse Morgan of the Headland Police Department who placed the defendant under arrest.

From the foregoing facts there can be no question that the defendant criminally assaulted his wife.

“An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.
“To constitute an assault with a gun or pistol, it is necessary that the gun or pistol should be presented at the party charged to be assaulted, within the distance to which the gun or pistol may do execution.” Tarver v. State, 43 Ala. 354, 356 (1869).

It is also clear that the defendant committed a criminal battery upon his wife by striking her on the arm with the rifle barrel and by poking her mouth with his finger and grabbing her throat. “A battery is committed, whenever there is a wrongful violence inflicted upon another, without his consent.” Murdock v. State, 65 Ala. 520, 522 (1880). Both assault and assault and battery are lesser included offenses of assault with intent to murder. Horn v. State, 98 Ala. 23, 13 So. 329 (1893).

The question we must determine is whether the defendant is guilty of having committed an assault with intent to murder his wife, the crime for which he was charged and convicted.

Assault with intent to murder is an assault with an intent to take life, under circumstances which if successful would constitute murder in either degree. Horn supra; Sanders v. State, 354 So.2d 44 (Ala.Cr.App.), cert. denied, 354 So.2d 48 (Ala.1977); Bowen v. State, 32 Ala.App. 357, 26 So.2d 205 (1946).

“When the proof shows that an act was done, or attempted to be done, which in the course of nature was calculated to take life, and the attendant circumstances fail to show a case of self-defense, and fail to show it was brought about by sudden passion aroused by an unprovoked, personal wrong, not less grievous than an assault; or if the circumstances show that the accused made the attempt, pursuant to a formed design, to take life, no matter how recently that design may have been formed, — this is an assault with intent to murder.” 98 Ala. at 31, 13 So. at 331.

Intent to take life is an essential element of an assault with intent to murder and it must be proved to the satisfaction of the jury. Jackson v. State, 94 Ala. 85, 10 So. 509 (1892); Sparks v. State, 261 Ala. 2, 75 So.2d 103 (1954); Hall v. State, 348 So.2d 870 (Ala.Cr.App.), cert. denied 348 So.2d 875 (Ala.1977); Gilmore v. State, 339 So.2d 116 (Ala.Cr.App.), cert. denied, 339 So.2d 121 (Ala.1976). Any presumption of intent must be inferred from facts proved so clearly as to leave no reasonable doubt of the intent of the accused to commit murder. Hora, supra. While intent may be inferred by the jury from the character of the assault, the use of a deadly weapon, and other attendant circumstances, Jackson, supra, it is a rule of law in this State that there can be no assault with intent to murder without a present intention, as well as present ability of committing the offense. Marshall v. State, 21 Ala.App. 500, 109 So. 558 (1926), citing Chapman v. State, 78 Ala. 463, 56 Am.Rep. 42 (1885), as authority. Herein lies the difficulty with the defendant’s conviction.

The State presented no evidence that the defendant had a present intention to kill his wife. That the defendant had the present ability to kill her is certain; his rifle was loaded and he was a “good shot”. However, the defendant’s intention to murder his wife was conditional: “I would kill you now, but my one last ambition, is for you to see me kill your daddy”; “I want you to see me kill him first”; “Now, we’ll wait for him to come. Somebody will come and put him off directly, and you’ll get to see me kill him”; “Let’s get out and go in and have a seat and wait for him. He will soon be here.” This evidences an intention to kill at some time in the future.

A conditional offer of violence does not constitute an assault in Alabama, the criminal intent of the assailant being the essence of the crime and not the mere fact of unlawfully putting one in fear, creating alarm in the mind or causing apprehension of immediate battery. Stoutmire v. State, 358 So.2d 508, 513 (Ala.Cr.App.1978). Holding a gun in a threatening position, without any attempt to use it, or intention to do so, is not an assault. State v. Blackwell, 9 Ala. 79 (1846); Stoutmire, supra. A gesture that might otherwise seem menacing is not an assault if accompanied by words explaining why no harm is to be inflicted. Stoutmire, supra; Bishop, Criminal Law, Vol. 1, p. 26, § 34 (9th ed. 1973); Anderson, Wharton’s Criminal Law and Procedure, Vol. 1, pp. 677-678, § 331.

It cannot be said that the defendant presently intended to kill his wife by firing four shots into the floor near her at close range. This was at most an attempt to scare her, not an attempt to take her life. While malice and intent to murder may be presumed from the act of using a deadly weapon, circumstances may negate that presumption. Snipes v. State, 364 So.2d 424, 426 (Ala.Cr.App.1978). Neither can it be said the defendant presently intended to kill his wife by jabbing her arm with the rifle barrel, or by later poking his finger into her mouth or by grabbing her throat. His purpose had not yet been accomplished. The condition precedent to her murder, her witnessing her father’s murder, was never met.

We do not wish to be interpreted as holding that Mrs. McArdle was not assaulted; she was and we have previously so stated. However the offense of assault with intent to murder requires a present intention to kill. Putting one in fear through a conditional offer of violence to take place at some future time, holding a loaded gun with no intention of using it on the alleged victim, demonstrating physical behavior obviously not calculated to cause death, or using menacing gestures accompanied by assurances that no harm is to be presently inflicted, are all insufficient for a conviction for assault with intent to murder.

Although a present intention to kill is often difficult of direct proof and must be determined of necessity by subjective inferences, those inferences must be substantial. The scintilla rule does not apply in a criminal case. Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1933); Hollingsworth v. State, 366 So.2d 326 (Ala.Cr.App.), cert. denied, 366 So.2d 333 (Ala.1978). Here, those inferences of present intention to kill are simply insufficient to support the jury verdict. A conviction may not rest on speculation.

Because the State’s evidence fails to disclose that the defendant ever had the present intention of killing his wife during any one of the times he assaulted her, the evidence is insufficient to support the conviction of assault with intent to murder. The judgment must be reversed and the cause remanded.

REVERSED AND REMANDED.

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

DeCARLO, J., concurs in result.


text:
    Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
    78-695.
    Supreme Court of Alabama.
    July 20, 1979.
   ALMON, Justice.

WRIT DENIED.

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


text:
    James S. FLEENOR, Alias James Stan Fleenor v. STATE.
    6 Div. 821.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearing Denied June 26, 1979.

      Dan M. Gibson, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, James S. Fleenor, alias James Stan Fleenor, was convicted for unlawful possession of Phencyclidine (P.C.P.), a controlled substance, and sentenced to eight years imprisonment, and assessed a fine of six thousand dollars.

The appellant was represented by counsel of his choice, and by court appointed counsel at all proceedings in the trial court, and is represented by court appointed counsel in this Court.

The appellant contends that Act No. 520 Regular Session 1976, and Act No. 551 Regular Session 1977, of the Legislature of Alabama, are unconstitutional and violate Article IV, Sec. 105, and Article VI, Sec. 6.11 of the Alabama Constitution of 1901. The appellant also contends that the trial court committed reversible error when it overruled his objection to, and motion for a mistrial due to remarks made by state’s counsel in his closing argument to the jury.

The constitutionality of a statute should not be considered by this Court on appeal from the circuit court unless ESSENTIAL to the decision of the actual case before this Court. A decision in this case can be reached without deciding the constitutionality of Act No. 520 Regular Session 1976, and Act No. 551 Regular Session 1977, of the Legislature of Alabama. Smith v. Speed, 50 Ala. 276; Meeks v. Town Of Hoover, 286 Ala. 373, 240 So.2d 125; Ex Parte Alabama Textile Manufacturers Ass’n, 283 Ala. 228, 215 So.2d 443; State v. Simonetti, Inc., 273 Ala. 571, 143 So.2d 444; Knox v. State, 38 Ala.App. 482, 87 So.2d 671.

The appellant did not testify during his trial. There was testimony by a state witness that the appellant had needle marks on his arm and that appellant had stated to state’s witness that the marks were the results of injecting Mepergan Fortis. During the closing argument of the District Attorney to the jury the following occurred:

“MR. MADDOX: What did Stan Fleenor say about the tracks up and down his arm? I have been shooting Mepergan Fortis for my pain. He is not going to tell you he was shooting PCP. He is not going to say that. He would be crazy to say that.”
“MR. GIBSON: Judge, we’re going to object and I would like to approach the bench. We object to that portion of the prosecution’s argument and move for mistrial.
THE COURT: I will overrule the motion for a mistrial.
MR. GIBSON: I except.”

The appellant had exercised his right not to testify. The District Attorney, in his closing argument to the jury, commented on the appellant’s failure to testify. The appellant objected to the statements of the District Attorney and moved for a mistrial. The trial court overruled appellant’s motion for a mistrial. We have no choice other than to grant appellant a new trial. We hold that the foregoing statements of the District Attorney were direct references to the failure of appellant to testify. Article I, Sec. 6, Alabama Constitution Of 1901; Title 12-21-220, Code of Ala., 1975; Padgett v. State, 45 Ala.App. 56, 223 So.2d 597; Robinson v. State, Ala.Cr.App., 352 So.2d 11, certiorari denied, 352 So.2d 15; Beecher v. State, 294 Ala. 674, 320 So.2d 727.

For the error pointed out, the judgment of the trial court should be, and is hereby reversed, and this cause is remanded for a new trial.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
    78-665.
    Supreme Court of Alabama.
    July 20, 1979.
   ALMON, Justice.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Geraland GASS, alias v. STATE.
    7 Div. 637.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearing Denied June 26, 1979.

      Robert B. French, Jr., Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen. for the State, appellee.
   TYSON, Judge.

Geraland Gass, alias “Jug” Gass, was charged by indictment with the unlawful possession, sale, or furnishing of marijuana, a controlled substance, in violation of Title 22, Section 258(47)(a), Code of Alabama 1940, Recompiled 1958. The jury found the appellant “guilty as charged,” and the trial court, after obtaining a presentencing report, set punishment at five years imprisonment. It is from the overruling of the appellant’s pretrial motion to suppress and motion for new trial, each challenging the search and seizure in the instant case, that the appellant prosecutes this appeal.

I

The affidavit and search warrant are hereinafter set forth, as follows (R. p. 209):

“THE STATE OF ALABAMA COUNTY OF JACKSON
“AFFIDAVIT
“Before me John L. Haislip, Judge of the District Court of Jackson County personally appeared Hoyt A. Jones, who being duly sworn, deposes and says that he has probable cause to believe and does believe that M. Sally Robinson, Route 1, Bryant, has in her possession marijuana and controlled substances at described property. Travel West from the Bryant Post Office on a paved road ¼ mile, turn South on a paved county road and travel ¼ mile. Turn west on a paved county road and travel 3.5 miles to a frame duplex house, dark in color. Sally Robinson lives in West side. Based on surveilance, undercover investigation and information from a reliable informant, whose information has proven reliable, in the past, stated on February 13, 1977, that Sally Robinson has in her possession one pound of marijuana, Demerol, and is selling the contraband from said duplex apartment.
“S/ Hovt A. Jones Affiant
“Sworn to and subscribed before me on this the 14 day of Feb.. 1977.
“S/ John L. Haislip Judge of the Jackson County District Court
“SEARCH WARRANT
“THE STATE OF ALABAMA, JACKSON COUNTY TO THE SHERIFF OF JACKSON COUNTY:
“Proof by Affidavit having been made this day before me, by Hoyt A. Jones, “You are therefore commanded to make immediate search of residence of M. Sally Robinson, and if you find the same or any part thereof, to bring it forthwith before me, at the Jackson County Courthouse in Scottsboro, Alabama.
“Dated this the 14 day of Feb.. 1977.
“S/ John L. Haislip Judge of the Jackson County District Court”

Pursuant to the foregoing affidavit and search warrant, a group of ABC undercover officers and Jackson County deputy sheriffs drove to the farm residence of Sally Robinson, in Jackson County, on the night of February 14, 1977. There some four or five officers first knocked on the door and asked for one Anna Lisa Robinson, and upon being advised that this was a five year old child, the officers asked for the mother. The officers were armed with pistols and rifles. Some were “dressed in uniforms, and others were in hunting outfits.” All in all, some eighteen officers made a general search of the residence, as described in the above affidavit and search warrant, and seized a 30-30 rifle, a .12 gauge shotgun, and two pistols, a .38 and a .22 (R. p. 20).

The appellant, Geraland Gass, was charged with the unlawful possession of firearms and placed under arrest while seated on the hood of one of the officers’ vehicles parked in the yard of the home.

Mrs. Gass testified at trial that she was twenty-nine years of age, an immigrant from the Phillipines, and had been married to the appellant for something over two years, that the home in Jackson County was hers.

The appellant testified at the suppression hearing, and at trial, that he was told he was “under arrest for the gun” (R. p. 36).

The testimony of each witness, including each officer who participated in the search of the residence of Sally (Robinson) Gass, indicated that no contraband or illegal drugs of any kind were found at this residence.

Instead of relying upon the affidavit and search warrant, the State, in this case, relies instead upon the “consent,” allegedly given by Geraland Gass to several ABC agents and deputy sheriffs while in the yard of the Jackson County farm, and based upon which “consent” the State seeks to charge him with the unlawful possession of marijuana found approximately twelve miles away in a farm house in DeKalb County, Alabama.

Without dispute, Mr. Gass had been renting the farm in DeKalb County to one Richard Jenkins for $75.00 per month. Mr. Jenkins was employed at a furniture store in Atlanta, Georgia. According to the appellant, Jenkins had been renting the De-Kalb County farm for some six to eight months prior to the time of the search and seizure of items therein on the evening of February 14, 1977.

II

While we believe that the search warrant in the instant case leaves a good deal to be desired, insofar as naming the person and the place to be searched, as required by the provisions of Section 15-5-3, Code of Alabama 1975, and also some of the underlying circumstances which show the basis of the informant’s conclusions, that the items to be seized were where they said they were, see Miller v. State, 54 Ala.App. 230, 307 So.2d 40 (1974); and Pilkington v. State, 343 So.2d 548 (Ala.Cr.App.1977), as well as circumstances which give reasonable cause to believe that the informant is a credible person, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), nevertheless, in light of Davis v. State, 286 Ala. 117, 237 So.2d 640 (1970); and Neugent v. State, Ala., 340 So.2d 52 (1976), we move to consider the two issues, which we believe are dispositive of the instant appeal.

Ill

An immediate reading of the search warrant in the instant case brings forth the realization that it authorizes a general exploratory search.

As stated by Judge Harris, in Heavy v. State, Ala.Cr.App., 336 So.2d 199, cert. denied, Ala.Cr.App., 336 So.2d 202, general exploratory searches are forbidden by federal and state courts alike. See cases cited.

As heretofore noted, no contraband whatsoever was found at the Jackson County farm house, which residence was the subject of the search warrant in this cause.

In considering the next issue presented by the record, based upon the State seeking to justify the intrusion into the farm house in Dekalb County, several factors must be considered.

Mr. Justice Blood worth has set forth the several exceptions to the warrant requirements of the Fourth Amendment in an opinion known as Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Inasmuch as the State, without dispute, has pointed out that the appellant was under arrest, we must consider whether or not the “search incident exception” is applicable in the instant case.

In Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409 (1925), the Supreme Court of the United States observed that a search incident to a lawful arrest cannot be extended to places other than the locale of a defendant’s home, which was described in the warrant. More recent authorities are in accord, United States ex rel. Linkletter v. Waiker, 323 F.2d 11, affirmed, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1963). See also, Annotation, Search and Seizure, 19 A.L.R.3rd 789, § 24.

Moreover, in dealing with rented premises, or multiple unit dwellings, the address must be specifically set forth. See Hutto v. State, 50 Ala.App. 636, 282 So.2d 75. See also, Annotation, 11 A.L.R.3rd 1330.

In the instant case, the State attempts to argue that the search and subsequent seizure at the farm house, leased to Jenkins, in an adjoining county, some twelve miles away, were based upon the “consent” of the appellant given while under arrest in the yard of his Jackson County farm house.

The appellant testified that he went along and told them he would show them how to get there, but that he did not have a key to the residence, and had so explained this to the officers; that, without dispute, upon arrival, he kicked open the rear door, built a fire, and allowed the officers to search inside. See R. pp. 167-170. There seems to be no dispute that Mr. Gass looked surprised when marijuana was found in a closet in the bedroom area, as well as a small quantity of lose material, which was subsequently placed in a cardboard box, and found in the porch area, along with a set of small scales. The front porch was padlocked.

This Court, in Herriott v. State, Ala.Cr.App., 337 So.2d 165, cert. denied, Ala., 337 So.2d 171 (1976), passed upon the issue of a consent search by pointing out the following:

“In discussing the question of whether or not consent was voluntarily given, the Supreme Court of the United States, in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, stated:
“ ‘. . . Rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidence in our prior decisions involving consent searches.’
“In evaluating the circumstances surrounding the acquiescence to lawful authority, involved in a consent case, Judge Moylan of the Maryland Court of Special Appeals used the following language in Whitman v. State, 25 Md.App. 428, 336 A.2d 515: #
“ ‘. . . The lesson articulated by Bumper and Schneckioth in the area of search consents is that the individual subjected to the search may indeed be submitting rather than consenting, even in an atmosphere of relative cordiality because of the presence of psychological forces as potent and effectual in achieving a “consent” as the traditional techniques and familiar instruments of physical “persuasion.” We must, we find, be guided by the holding in Bumper that a consent which is actually simple acquiescence to lawful authority is not voluntary and, when the defendant is in custody, by the concern expressed in Schneckioth that “in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.”
“ ‘While each case must rest for decision upon its own facts and the “totality of the circumstances,” an arrest without probable cause followed by custodial prodding for the arrestee’s consent to a search, combined with police representations that the issuance of a warrant will be practically automatic — these are circumstances calculated only to persuade the individual that insistence upon Fourth Amendment guarantees will secure for him merely a delay of the inevitable search rather than the protection against unreasonable search and seizure to which he is constitutionally entitled
“Similarly, Mr. Justice Faulkner, speaking for our Supreme Court in Lietz v. State, 291 Ala. 133, 279 So.2d 116, stated:
“ ‘Unless we enforce the restrictions of the Fourth Amendment and Article 1, § 5 of the Alabama Constitution on searches and seizures, an old saying will have to be revised. A man’s home will no longer be his “castle,” but, his “open house” for everyone with a shred of governmental authority who wants to come inside. This cannot be permitted.’
“Mere submission to police authority will no? suffice. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Knox v. State, 42 Ala.App. 578, 172 So.2d 787, cert. den. 277 Ala. 699, 172 So.2d 795.”

We have carefully considered the circumstances, as established by the record in the instant case, and are firmly of the opinion that Mr. Gass simply accompanied the officers, in the officers’ automobile, to the adjoining county because of their request and direction. A group of fifteen to eighteen armed ABC agents and deputy sheriffs, who requested information and permission to visit the farm in the adjoining county, and to search therein, did scarcely leave the appellant any alternative. He simply acquiesced in their demands. At their direction, he kicked open the rear door because he, himself, no longer had a key to the farm house. The officers then went inside and made their search and subsequent Seizures of the marijuana. Without dispute, these premises had been leased out approximately six to eight months, and possibly longer. Mr. Gass, the appellant, no longer had a key. Viewing all the attendant circumstances, as shown by this record, as we are required to do, we are of the opinion that the “consent” in the instant case was not voluntary, but was mere submission to lawful authority. We are further of the opinion that, because of this, the appellant’s motion to exclude the seized marijuana and scales should have been granted. Because of the several deficiencies, as herein pointed out, we have no alternative but to reverse and remand this cause.

REVERSED AND REMANDED.

All the Judges concur.

      . Approximately twelve or thirteen years prior to the incident in question, the appellant had been found guilty of a Dyer Act violation in the Federal District Court; hence, this charge.

      . The search warrant in this case was subsequently held invalid by the Circuit Court of Jackson County, Alabama.

      . Moreover, we are further of the opinion that the State failed to properly prove “possession of the subject marijuana in the appellant.” Radke v. State, 52 Ala.App. 397, 293 So.2d 312, affirmed 292 Ala. 290, 293 So.2d 314 (1974). See also, Fields v. State, Ala.Cr.App., 333 So.2d 861 (1976).


text:
    Wilton Mason BLACKBURN, alias v. STATE.
    3 Div. 48.
    Court of Criminal Appeals of Alabama.
    June 26, 1979.

      George W. Cameron, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

The indictment consists of a first count charging burglary in the second degree, a second count charging grand larceny, and a third for buying, receiving and concealing stolen property. Pursuant to a verdict of guilt, the court imposed a sentence of ten years imprisonment.

The evidence indicates that appellant-defendant, a white male, and Darrell Busbin, an Air Force enlistee, were present on December 4, 1977, in the home of Sergeant Wayne Nakatsuka where appellant rented a room. The three played cards for a while.

According to Busbin’s testimony (who admittedly was in need of money), he and appellant, at the latter’s invitation, took an automobile ride that afternoon of December 4,1977, to Hope Hull in Montgomery County where appellant showed him Henderson’s T.V. and Appliance Sales and Service that was vulnerable to burglary. In the early morning hours of December 5,1977, the two burglarized the store and carried away five microwave ovens and four Zenith television sets, one of which was a twenty-three inch set described in the indictment.

Entrance into the store was gained by firing a pellet gun at a back window. The gun was used to set off any burglar alarm that may happen to be in the store. Appellant, after breaking the window with a crowbar, crawled through and opened the back door through which the witness Bus-bin entered. They both then proceeded to steal the ovens and the television sets.

When they were unable to load all the appliances into the one automobile, the appellant contacted his sister by telephone. She and his wife drove to the scene where the appliances were loaded in the two cars and transported to Montgomery. All or part of the appliances were taken to the house of Sergeant Nakatsuka. Only one of the appliances was described in Counts 2 and 3 of the indictment, namely “one twenty-three inch Zenith television.” It was left in the den and was not taken to the appellant’s room in the house.

An investigation by law enforcement officers led to the discovery of the twenty-three inch television in the den. The investigation also led to the sale of some of the appliances by witness Busbin, who at first denied any implication in the offenses alleged in the indictment. Several months later, Busbin elected to give a confession that implicated the appellant. He also elected to appear as a witness for the State.

George W. Henderson, who was the operator of the burglarized store and the owner of the stolen appliances, testified about the break in and the broken window. He also testified as to finding some gun pellets in the burglarized area. The testimony of Mr. Henderson fully established the corpus de-licti of the burglary and theft charged in the indictment. We note that the television stored in the den was properly identified as an appliance that was stolen from Mr. Henderson’s store as alleged in the indictment. The jury returned three specific verdicts of guilt:

“We, the jury, find the defendant guilty of buying, receiving, or concealing stolen property; we, the jury find the defendant guilty of grand larceny; we, the jury find the defendant guilty of burglary.”

I

Appellant here asserts that there was a fatal variance between the indictment and the proof. Contention is made that the grand jury knew the serial number, which does not appear in the indictment. We are not convinced that there was any variance. The two counts (2 and 3) adequately describe the stolen television set. In Lucious v. State, 44 Ala.App. 497, 214 So.2d 706, it was held by this court that the words “one Poulan chain saw” appearing in an indictment for larceny were a sufficient description to enable the jury to decide whether the chain saw in evidence was one upon which the indictment was founded. In Peters v. State, 100 Ala. 10, 14 So. 896, it was held that the words “two bales of cotton” in an indictment were a sufficient description of the stolen property. In an indictment for larceny of an animal, it was held not to be necessary to describe the animal by designating its sex. Also in Jones v. State, 19 Ala.App. 646, 99 So. 922, charging larceny of “one set of truck tools" was a sufficient description. However, it does not appear in the record that there was a proper objection, demurrer, or motion for a new trial raising the point. Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, Ex parte Waters, Ala., 360 So.2d 367.

II

It appears in the evidence of Deputy R. D. Bryan that he went to the home of Sergeant Nakatsuka in furtherance of an investigation of the burglary. There he found a television in the den. In pursuing the investigation, he knocked on the bedroom door of the appellant and asked him if the television belonged to him. He answered in the affirmative. This answer was admitted in evidence over appellant’s objection that no predicate was laid.

We think it clearly appears from the record that the deputy’s activities at that time were investigative and that accusation had not been focused on the appellant. It also appears that appellant had not been taken into custody by detention or arrest. Under such circumstances, there was no lawful requirement for a predicate. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Miranda becomes operative to protect constitutional rights only upon a custodial interrogation during which detention, restraint or arrest of the accused by an officer is “significant.” United States v. Montas, 421 F.2d 215 (5th Cir. 1970), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. Miranda defines “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The trial court did not err in overruling defendant’s objection to the evidence.

III

The third contention of error asserts that the trial court erred in refusing the affirmative charge as to the burglary accusation (Count 1) in the indictment. Appellant contends that the State’s evidence consisted solely of the uncorroborated testimony of two accomplices, Busbin and Nakatsuka, which will not support a conviction pursuant to § 12-21-222, Code of Ala.1975.

Corroboration of the testimony of an accomplice need not be sufficiently strong of itself to support a conviction, and it is sufficient if it tends to connect the accused with the offense. Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62. The State contends that the fact that Henderson found pellets in the floor of his store corroborates the testimony of Busbin that the appellant shot the store window out with a pellet gun to facilitate their joint entry. Henderson’s testimony only corroborates a detail of how the crime was committed, but does not connect the appellant with it. Busbin could have been- the only one present, fired the pellets himself, and then falsely accused the appellant. The criminal always knows all the details of the commission of the crime, and this is the reason corroborative testimony must go further and connect the accused with the crime. Lindhorst v. State, Ala.Cr. App., 346 So.2d 11, cert. denied, Ala., 346 So.2d 18.

Aside from finding pellets in the floor of the store, there is sufficient corroborative testimony in the record to support the conviction. Nakatsuka testified that around 5:00 or 5:30 on the morning of the crime he heard the voices of the appellant, the appellant’s wife and sister, and Busbin in the house. Later that morning when Nakatsu-ka went into the den, he found the twenty-three inch Zenith television sitting there. It was not there the night before. Later when Deputy Bryan was investigating the crime, he asked the appellant if that was his television set in the den, and the appellant stated that it was. Nakatsuka’s testimony would therefore corroborate Busbin’s testimony that upon burglarizing the store the appellant had his wife and sister come to the store and assist in carrying the stolen merchandise back to the Nakatsuka residence. Deputy Bryan’s testimony, likewise, connected the appellant with the recently stolen goods.

The unexplained possession of recently stolen goods will support an inference of burglary and larceny if there is also proof of breaking and entering and theft of the goods so connected in time as to permit the further inference that the larceny was the product of the breaking and entering. Goode v. State, Ala.Cr.App., 337 So.2d 1364; Stokes v. State, 54 Ala.App. 112, 305 So.2d 387.

Busbin was an admitted accomplice in the crime; however, Nakatsuka denied any complicity. We therefore cannot determine as a matter of law that Nakatsu-ka was an accomplice. Where the question of whether a witness is an accomplice is a disputed fact, it becomes a jury question. Ex parte State (re: Yarber v. State), Ala. [Ms. July 14, 1978, SC 2622]; Jacks v. State, Ala.Cr.App., 364 So.2d 397, cert. denied, Ala., 364 So.2d 406. The verdict of the jury resolved the issue in favor of Nakatsuka and against the appellant. Thus, the trial court was not in error in refusing to give the affirmative charge and by allowing the case to go to the jury.

IV

We note here that appellant’s affirmative charge as to Count 3 of the indictment should have been given.

Appellant did not take the witness stand, nor did he put up any witnesses. None of the evidence implies that he bought, received or concealed the television described in the indictment from another. The evidence implies that he stole the television set when he burglarized the store. “Since a thief may not receive stolen property from himself, the appellant cannot be convicted of receiving stolen property where the evidence shows that (he) actually stole the property.” Nicholson v. State, Ala.Cr.App., 369 So.2d 304; Davidson v. State, Ala.Cr.App., 360 So.2d 728, cert. denied, Ala., 360 So.2d 731.

The judgment of guilt as to Counts 1 and 2 is due to be affirmed. The judgment of guilt as to Count 3 is reversed, and the cause therein is rendered.

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

AFFIRMED IN PART AND REVERSED AND RENDERED IN PART.

All the Judges concur.