text:
    Charles Edward CHANCEY v. STATE.
    4 Div. 351.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Earl V. Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment in this cause (omitting formal parts) is as follows :

“The Grand Jury of said County charge, that before the finding of this indictment, Charles Edward Chancey, alias Charles Chancey, alias Edward Chancey, whose name respectively is unknown to the Grand Jury other than as stated, and being over the age of 18 years, intentionally and unlawfully did hit, beat, strike, cut, stab, burn, scald, or inflict unjustifiable physical pain or mental suffering upon a child, George Wesly Colley Um-barger, under the age of 16 years, in a manner which was not ordinary and reasonable discipline, against the peace and dignity of the State of Alabama.”

The jury found the appellant “guilty of child abuse” and fixed punishment at imprisonment in the state penitentiary for ten years. The trial court then entered judgment, setting sentence in accordance with this verdict.

Dr. Wheeler Gunnels testified that two year old George Umbarger was admitted to Mizell Memorial Hospital in Opp, Alabama, at 12:30 a. m. on July 24, 1974. He stated that he examined the child later in the day, and that the patient’s history indicated that he had fallen in the shower. Dr. Gunnels said that he determined that the child was in pain and ordered xrays to locate any possible fractures. He stated that the xrays indicated fractures in three separate areas; left lower leg, right upper leg, and right forearm. Dr. Gunnels testified that in his medical opinion, as based on the xrays, George Umbarger experienced pain at the time he incurred his injuries.

At this point the trial court excused the jury and conducted a hearing on the volun-tariness vel non of a signed statement given to the authorities by the appellant after his arrest and confinement.

On voir dire, Sheriff Elie Harrell testified that he first spoke with the appellant on July 25, 1974, at the county jail after he had been arrested for inflicting punishment on a minor child under sixteen by the name of George Umbarger. Harrell said that at this time he gave the appellant a “Miranda” warning, advising him of his rights, and that the appellant then signed a waiver form. He met with the appellant again on August 1, 1974, in the Sheriff’s Office in the County Courthouse, at which time the District Attorney was also present. Harrell testified that on this occasion, after having his rights read to him again, the appellant wrote out and signed a statement in his own handwriting to the effect that he lost his temper while bathing George and twisted and broke his right leg. Harrell stated that he read the statement back to the appellant and asked him if he wanted to make any changes, and that the appellant replied “No.” Sheriff Harrell concluded by stating that the appellant had not been threatened or abused, nor offered any reward, or hope of reward, or promised anything as an inducement for signing the statement.

The appellant then called his estranged wife, Joyce Chancey, and the man she had been living with, Wesley Owens, to testify in opposition to the introduction into evidence of his signed confession. Both of them stated that at appellant’s request they visited him in jail one night after his arrest, but before he had signed the confession. They testified that on this occasion, Sheriff Harrell told the appellant that if he would go ahead and plead guilty, he would try to get him off with a year and a day, but if he did not, he would do everything in his power to get him ten years. Mrs. Chancey and Owens said that the appellant told the Sheriff that he wanted to talk with a lawyer before signing any statement, and that the Sheriff told the appellant that the only way for him to get a lawyer would be to plead guilty.

The appellant took the stand and corroborated the testimony of Joyce Chancey and Wesley Owens. He added that when he went to court and the District Attorney did not recommend a year and a day, and it appeared that the judge would give him more, he changed his plea to not guilty, and told the judge that he did not break George Umbarger’s arm or leg, and that his signed statement to that effect had been at the Sheriff’s insistence.

On cross-examination, the appellant admitted that at the time of his arrest, Sheriff Harrell read him his rights, and asked him if he understood them, and that he replied, “Yes.” The appellant also stated that the rights that were read to him included the right to have a lawyer present during any questioning. He stated that his rights were read to him again at the jail, and that he then signed a waiver form. He said that later, on August 1, 1974, after being informed of his rights, he wrote out and signed a statement in the presence of the Sheriff and District Attorney in which he confessed that he lost his temper and broke George Umbarger’s right leg.

At this point the trial court ruled that the appellant’s confession had been given voluntarily, and could therefore be received into evidence with the jury to determine what weight it should be given.

Sheriff Elie Harrell was recalled in the presence of the jury and repeated his voir dire testimony.

Linda Johnson Bradley testified that she was the mother of George Umbarger, the injured child. She said that in July of 1974, she was living at 16th Street in Opp with two of her children, the appellant, and his son. Mrs. Bradley stated that on the night of July 23, she left around 9:30 to go to work at the Opp Cotton Mill, leaving the appellant, his son, and her two children at the house. A little past 11:30 p. m., appellant came to the cotton mill and told her that her son had fallen in the shower and needed to be taken to the hospital. Mrs. Bradley said that she went to her boss, who excused her for the rest of the night, and she and the appellant took her son to the hospital in Opp where Dr. Gunnels examined him the next morning.

On cross-examination, Mrs. Bradley testified that she was married to Roger Waldo Bradley, who was at Fort Riley, Kansas, but that she was living with the appellant, whose wife, Joyce Chancey, was living in Andalusia with Wesley Owens. She said that, together with Joyce Chancey, Wesley Owens, and the appellant, Charles Chancey, she went fishing on Sunday, July 21, 1974, at which time George’s left leg was bothering him somewhat. Then on Monday, someone at Wesley Owens’ house told her that her son had fallen down the steps and hurt his arm. Mrs. Bradley explained that she examined her son on each of these earlier occasions, but did not take him to the doctor because he did not act or appear to be seriously injured. She stated that she swore out a warrant for appellant’s arrest because, even though she was not positive that he had injured her son on the night in question, he had been rough with the child in the past, and furthermore if she had waited for Dr. Gunnels to report it, she too, would have become involved.

Roger Prestwood testified that in the summer of 1974, he was the District Attorney of Covington County, and that on August 1, he was present at a meeting in the Sheriff’s Office with Sheriff Harrell and the appellant. He stated that at this time the appellant, after having his rights read to him, signed a statement in which he admitted breaking George Umbarger’s right leg. Prestwood testified that neither he nor the Sheriff threatened the appellant or offered him any reward, or hope of reward, abused or otherwise intimidated him, in exchange for his confession. He said appellant wrote the statement out in his own handwriting, and the Sheriff then read it aloud and asked him if he wanted to make any changes, and appellant said, “No.”

On cross-examination, Prestwood testified that he spoke with the appellant only once, and was not at the jail when the Sheriff talked with the appellant in the presence of Joyce Chancey and Wesley Owens. He said that as far as he knew, the appellant did not have an attorney before he pleaded guilty.

At the conclusion of Prestwood’s testimony the State rested.

The first defense witness was Wesley Owens. He testified that he and the appellant’s estranged wife, Joyce Chancey, lived together in his house at Route 2, Andalusia. He said that George Umbarger was the child of Linda Bradley, the woman with whom the appellant had been living. Owens said that there was no animosity between the two couples, and that Sunday, July 21, 1974, they all went fishing together, at which time he noticed that George Umbarger was having touble walking. He stated that Linda Bradley and the appellant spent Sunday night with Joyce Chancey and him, and that the next morning, George Umbarger fell down some steps and hurt his arm, but his mother would not let anyone take him to the doctor. Owens said that, although Linda Bradley took out the warrant for the appellant’s arrest, she stated that she did not believe that he had broken her child’s leg. He said that later, after appellant’s arrest, Linda Bradley’s mother and father went into court and obtained custody of their daughter’s two children. Owens then recounted his voir dire testimony.

Joyce Chancey testified that the two couples went fishing together on Sunday, July 21, 1974, at which time one of Linda Bradley’s children, George Umbarger, could barely stand up. She said that the next day at Wesley Owens’ house, the child fell down the back steps and injured his arm, that Wesley Owens offered to take him to the doctor, but Linda Bradley said that it was only bruised. Mrs. Chan-cey stated that Linda Bradley said that if she did not take out a warrant for the appellant’s arrest, her parents would. Mrs. Chancey then went back over her voir dire testimony.

The appellant, Charles Chancey, testified that on the evening of July 23, 1974, Linda Bradley left for work around 9:30 p. m. Later, while giving George Umbarger a shower, he left the bathroom to get a towel, and returned to find that the child had fallen and injured his right leg. Appellant stated that he called Linda’s sister to come and stay with the little boy while he went to get Linda at the cotton mill. He said that he rode with Linda to the hospital and remained there until George was admitted and a nurse told them that the doctor would not be in until the next morning. He then returned home to take care of his son and Linda’s other child. Appellant stated that he was arrested by Sheriff Elie Harrell and a deputy at Wesley Owens’ house on the night of July 24, 1974. He said that during the week before he was admitted to the hospital, George Umbarger had fallen twice, injuring his left leg and right arm.

On cross-examination, the appellant testified that he was twenty-four years old, and lived in Opp, Alabama.

At the conclusion of the appellant’s testimony, the defense rested and the State called James I. Johnson in rebuttal. He testified that he lived at 1 IS Sixteenth Street in Opp, and that he was the father of Linda Johnson Bradley, and the grandfather of the injured child. Johnson stated that on the afternoon of July 24, 1974, while he was unloading his truck in front of his house, his grandson, who lived approximately one-eighth of a mile down the road, came running into the yard. He said that a short time after the child arrived, his mother and the appellant picked him up and took him home. He said that he noticed that his grandson had a big bruise on the left side of his face and that his left arm was swollen. Johnson stated that the child did not fall or in any way injure himself while at his own home, and that after Linda and the appellant picked him up, he did not see his grandson again until the following morning at the hospital.

On cross-examination, Mr. Johnson testified that subsequent to appellant’s arrest, the court had awarded custody of both of their daughter’s children to him and his wife.

At this point, the State rested.

I

The appellant argues that the allowance of his oral confession in evidence was error since the State did not sufficiently establish the voluntary nature of the statement.

Initially, we note that the trial court’s decision to allow appellant’s confession to be admitted into evidence should not be disturbed absent a showing that it is palpably contrary to the great weight of the evidence. Fewell v. State, 259 Ala. 401, 66 So.2d 771; Duncan v. State, 53 Ala.App. 122, 298 So.2d 52.

On voir dire examination, Sheriff Harrell stated that neither he nor anyone to his knowledge had threatened, intimidated, coerced, offered any reward or hope of reward, or other inducement to appellant in order to obtain a statement. Further, he stated that appellant was given a full Miranda warning on at least three separate occasions, originally at Wesley Owens’ house when he was arrested, then at the jail on July 25, 1974, at which time he signed a “waiver of rights” form, and finally on August 1, 1974, at the court house just before he wrote out and signed the confession.

It is true that appellant’s testimony, as substantiated by that of his wife and her boyfriend (both of whom it might be noted enjoyed a rather amicable relationship with appellant), contradicted Sheriff Harrell’s version of the facts.

From Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192, in which we cited Guenther v. State, 282 Ala. 620, 213 So.2d 679, cert. denied 393 U.S. 1107, 89 S.Ct. 916, 21 L.Ed.2d 803, the Alabama Supreme Court held:

“The true test of voluntariness of extrajudicial confessions is whether, under all the surrounding circumstances, they have been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor; and if so, whether true or false, such confessions must be excluded from the consideration of the jury as having been procured by undue influence. Womack v. State, 281 Ala. 499, 205 So.2d 579. ...”

This Court cannot infer from the evidence that appellant was mistreated, or placed in a state of fear, or confusion, which would have tended to coerce the statement. In cases of this type, the trial judge is in a better position to pass on the voluntariness of the confession. Hegmon v. State, supra.

The trial court’s determination that the appellant’s statement was voluntary is adequately supported by the facts. Shewey v. State, 48 Ala.App. 730, 267 So.2d 520; Bills v. State, 49 Ala.App. 726, 275 So.2d 706.

This determination was made after voir dire examination of Sheriff Harrell, and appellant and his corroborative witnesses, outside the presence of the trial jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.

The trial judge therefore properly admitted the appellant’s alleged statement into evidence. Duncan v. State, 278 Ala. 145, 176 So.2d 840; Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192.

We have carefully examined this record, as required by Title 15, Section 389, Code of Alabama 1940, and find same to be free from error. Williams v. State, 54 Ala.App. 244, 307 So.2d 53; Layne v. State, 54 Ala.App. 529, 310 So.2d 249.

The judgment is therefore due to be and the same is hereby '

Affirmed.

All the Judges concur.


source: Caselaw Access Project

author: CLARK, Supernumerary Circuit Judge.

license: Public Domain

text:
    Leo RAYFORD v. STATE.
    6 Div. 663.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.

      Jackson & Sikes, and John W. Kelly, III, Selma and Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

Early in the afternoon of June 7, 1973, an armed robbery occurred in an A & P store, in the city of Tuscaloosa, during which the assistant manager, Ferrell Cork, was killed. Appellant was tried for his murder, convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life.

The State called as witnesses several persons in the store when the robbery and killing occurred. It was a “super” store with four cash registers. The size of the store, the varied locations of the witnesses, the separate activities of the two robbers in different parts of the store at the same time, the physical arrangements of the inside of the store and other circumstances precluded each witness from having a comprehensive view of the entire occurrence. The testimony of the witnesses as a whole shows beyond serious question and without dispute that two “black males,” each armed with a pistol, entered the store; one told an employee of A & P to move aside and proceeded to take money from three of the cash registers and put the money in his pockets. The other at gunpoint forced the produce manager into the office and ordered him to open the safe; he stated that he could not open it, but that Mr. Cork, who at the time was outside, could do so. When Mr. Cork entered the store, he was ordered by the robber, who had rifled the cash registers, to open the safe, and was shot by him upon Cork’s refusal to open the safe. The two struggled with each other; while they were struggling, the robber in the office leaned over a counter and shot in the direction of Cork. The robbers then left the store.

A witness, who was in the cutting room of the store in the back at the time of the robbery, went out the back door after hearing shots and saw a “colored” man run around the side of the store toward an automobile, gold in color and with a black top, being driven by a person whom he could not describe. The automobile left the scene.

A meat cutter at the store, upon returning from lunch at home the day of the robbery and while within three or four blocks of the store, saw an automobile with “brownish gold body” and black top with two “black males” in it come from the direction of the store and run a red traffic light at a fast speed.

One witness in the store during the robbery identified appellant as the man in the office that fired his pistol at Mr. Cork. Other witnesses were unable to identify appellant as a participant, although ten of them had an opportunity to do so at a line-up.

A post-mortem examination of Mr. Cork revealed that deceased had been hit by at least four bullets. There was some indication, according to the examination, of a wound of a fifth bullet, but only four bullets were found in him. All four were 22 caliber. It was determined that two of them were not from a 22 caliber pistol that was introduced in evidence by the State and which is hereinafter discussed, but no determination could be made whether the other two bullets were from such weapon.

At approximately 3:30 the same afternoon, defendant was arrested approximately five miles from Sumiton, Alabama. He and another “black male” were in an automobile being driven at a high rate of speed from the direction of Jasper toward Birmingham on Highway 78. It was pursued by an officer of the Sumiton Police Department in a chase that lasted about five minutes, during which the automobile traveled an estimated speed of between 80 and 90 miles per hour, crossed double yellow lines, went off the traveled portion of the highway through a parking area for one or more filling stations and a restaurant, collided with two trucks and an automobile, went through two ravines, plunged into a ditch and “went up on its nose” along the side of the highway. This was in Jefferson County a short distance from the Walker-Jefferson County line. Appellant, who was driving, and the other occupant immediately abandoned the automobile. Appellant fled from the scene and was chased on foot by Officer J. R. Myers, who had been chasing him in the automobile. Officer Myers ran behind him into the woods a distance of a quarter of a mile, captured him after a struggle and placed him in custody under a charge of reckless driving and illegally crossing a double yellow line. A large crowd assembled in the vicinity of the incident. In the automobile, in plain view on the right front floor board thereof was a 22 caliber pistol with four spent and three unspent cartridges. The pistol was taken into custody by Officer Myers, who delivered his prisoner to Officer Norris, who had taken part in the chase of the automobile, with the direction' that appellant be taken to jail at Sumiton, in Walker County. Meanwhile Officer Myers maintained surveillance over the automobile, not allowing it to be touched by anyone. He stayed with the automobile until a wrecker from Sumiton came for it and towed it to Sumiton. During that time the chief of police of Sumi-ton joined Officer Myers at the scene. After the arrest, a knife, a live 22 cartridge, and nineteen dollars in currency and twenty-six cents “in change” were found in the pockets of appellant.

As the automobile was towed from the scene to the place of business of the “wrecker service” in Sumiton, Chief of Police Walter Allredd went with it. Promptly upon its being released from its tow, in an unenclosed area, the inside of the body of the automobile was examined by Officer Marvin Willcutt in company with Chief Allredd. Exposed to view before any entry into the automobile was the corner of a pillow case under the driver’s seat. From within and underneath the pillow case was obtained the total sum of five hundred and forty-four dollars in currency of various denominations. Testimony showed that five hundred and sixty-eight dollars and nineteen cents was missing from the store immediately after the robbery.

Appellant did not testify, but he presented four witnesses who testified in effect that he was in Birmingham at the time of subject crime. The first witness was his mother, who testified he left her home that day at 1:20 P.M. On cross-examination she testified she had had a stroke and “my mind is not good sometimes.” Others said they saw him soon after 1:20 P.M. at a pool room in Birmingham; the last one seeing him that afternoon said he last saw him about 2:15. Appellant was then driving an automobile, which, it seems reasonably clear, was the automobile in which he was riding at Sumiton and was the property of another, a close friend of appellant’s mother.

There was some discrepancy in the testimony as to the make, style and color of the automobile described by the Tuscaloosa witnesses, but two of them testified that it looked like pictures taken of the automobile which appellant was driving at Sumi-ton, which had a gold body and a black top.

The alibi testimony furnishes the only conflict with positive, convincing evidence that appellant was a participant in the first degree murder of Ferrell Cork. No serious insistence is made, and we think none can be made, that the time between the crime and the incident at Sumiton was not sufficient for the robbers to have traveled from the one point to the other. The time factor in this respect is in favor of the State rather than defendant, we think. The automobile bore a Jefferson County license tag. It was owned by a friend of appellant’s family, who evidently lived in Birmingham. The testimony as a whole warrants the conclusion that an automobile driven by one fleeing from the scene promptly after the robbery and murder and proceeding in a direction that would take it across the Warrior River bridge at Tuscaloosa, with Birmingham as the destination, could be expected to arrive at Sumiton about the time the incident at Sumiton occurred.

It also should be noted that there is a striking similarity in the traveling time between Tuscaloosa and Sumiton via Oak-man (which the evidence indicates was the route taken by the automobile) and Jasper and the traveling time from Birmingham to Oakman and return via Jasper to Sumi-ton. With the traveling time between Birmingham and Tuscaloosa of about an hour, it is to be seen that the alibi witnesses would not have to be more than about an hour off for their testimony to be without any force whatever. Such a difference in time can readily be accounted for as an honest mistake on their part, but whether so or not the jury was not required to believe their testimony, which seems to us of little weight. Prince v. State, 50 Ala.App. 368, 279 So.2d 539, cert. denied 291 Ala. 796, 279 So.2d 549; Chamberlain v. State, 48 Ala.App. 254, 263 So.2d 709.

The main contention of appellant is that there was error in admitting evidence of the finding of the money in the automobile from which appellant fled. He contends that the money was found as a result of a warrantless search, which he insists was unreasonable, and therefore violative of the Fourth Amendment, for two reasons: (1) that there was an absence of probable cause and (2) that the circumstances were not exigent. No search warrant was issued, but whether there was a “search” within the meaning of the word in the Fourth Amendment is less clear and is more assumed than argued. A determination of any such question is neither called for nor necessary at this time, and we proceed to a consideration of the question of unreasonableness, which constitutes the pivotal difference between the parties.

As to (1), the record shows that, soon after the commission of the crime, radio dispatches were flashed giving details of the crime, including a description of the participants as “two black males,” a description of the automobile and the direction it was traveling. The officer who found the money testified he had “heard a general discussion of the whole matter” by “his own people and also over the radio,” before he made the examination or search, although he had not heard “anything until after the wreck had occurred.” The search was conducted in the presence of the acting chief of police of Sumiton. Before the car was searched the two had discussed the matter. Both had heard of the robbery and had a description of the automobile and of the individuals in it. Both knew of the chase of the automobile, the capture of appellant and the seizure of a pistol in the car.

It is clear that at the time of the search of the automobile, the officer searching it, as well as the chief of police under whose direction the automobile was searched, had probable cause for believing that the last occupants of the automobile were guilty of the robbery, that contents of the body of the automobile would likely constitute important evidence bearing on the crime and that the automobile was a likely depository of at least part, if not all, of the loot, which circumstances justified the search of the automobile insofar as the necessity of probable cause is concerned.

As to (2) above, it is contended that a search warrant should have been obtained before searching the automobile, for that the circumstances were not of such an exigent nature as to justify a search without a warrant.

It would be an understatement to say that we do not suffer from a dearth of authorities on the question of whether the Fourth Amendment to the Constitution of the United States is violated by a warrant-less search of an automobile. We believe that appellant does not contend that if the automobile had not been damaged by the wreck, its search under the circumstances here presented, assuming probable cause, would not have been justified.

Appellant counts heavily upon the damaged condition of the motor vehicle to distinguish this case from those cases in which it has been held that the search of an automobile was justified. In other words, appellant insists in effect that for an automobile to come within that classification when the test of reasonableness of its search or seizure is applied, it must be readily automobile (automotive), as well as mobile, at the time it is searched or seized. It is not clear that the car’s condition was such that it was not readily mobile, but we will now proceed as if it was not.

In an effort to support appellant on the particular point, he cites cases of the United States Supreme Court that preceded the opinion in Suggs v. State, 49 Ala.App. 118, 269 So.2d 136 (1972), in which Judge De-Carlo ably reviewed the opinions in the cited cases. It would needlessly extend this opinion for us to go over all the same ground he has so carefully covered. If we should do so, it would merely be a repetition in substance of what he has said, but lacking its refinement, in giving full consideration to all that the United States Supreme Court had said on the subject at that time. For the purpose of this case, we think it sufficient to show that the opinion in Suggs clearly distinguishes Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, both relied upon by appellant in this case as well as by appellant in Suggs. We adhere to those distinguishing features as set forth in Suggs and apply them here. In Preston, supra, the charge was vagrancy, to which the search was not related. In Coolidge, supra, the search was as to a murder investigation that had occurred several weeks before one search and over a year before two subsequent searches; there was a deliberate and extended investigation, in which there was superabundant time to obtain a search warrant. Indeed, a search warrant was obtained but it was held to be invalid. In addition, in Coolidge, the automobile when seized was parked in the driveway of defendant’s home and was not then being used for any illegal purpose. Neither Preston nor Coolidge supports the contention of appellant that the circumstances of this case did not justify the search of the automobile.

In Suggs, supra, it was held that where an officer had probable cause to arrest defendant for burglary when he stopped his car during early morning hours, an on-the-spot search would have been permissible, and thus a later search of the impounded vehicle at City Hall was valid. In so holding, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 were relied upon, to which the court aptly referred as respectively enunciating and expounding the “principle, ‘exigency resulting from mobility.’ ”

It seems clear that in Suggs immediate automobility of the car was not considered as a requisite to its subjection to search, for the automobile, instead of being driven away, was “towed off” from the place of arrest to the City Hall.

We do not doubt that the degree or extent of mobility of the object searched is important and is to be taken into consideration in connection with all the circumstances in arriving at a correct conclusion as to the reasonableness of the search. Its incapacity for immediate movement by its own power could conceivably preclude the reasonableness of a search thereof under some circumstances that would otherwise make the search reasonable, but such impotence does not of itself prevent the application of “the principle of mobility.” In the a-borning process of the principle in Carroll, supra, it was expressly declared that a “wagon” was to be classified as a vehicle that “can be quickly moved out of the location or jurisdiction in which the warrant must be sought.” We think that Suggs is ample authority for a disposition of the particular question adverse to appellant. However, since Stiggs, there have been judicial developments that merit our attention and call for further consideration of the question immediately before us.

In Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), we have an automobile disabled by an accident. Defendant was arrested for drunken driving. The police had exercised a form of control over the automobile; it was towed to a private garage. Defendant, a policeman, was thought to have possessed a revolver; to keep the revolver from falling into the hands of vandals, a warrantless search was made of the automobile. The search failed to reveal the revolver but did lead to the discovery of evidence tending to connect defendant with murder, with which he was subsequently charged and for which he was tried and convicted. The court termed the search a “caretaking” activity as to a vehicle “that was neither in the custody nor on the premises of the owner” and held:

“ . . . . Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not ‘unreasonable’ within the meaning of the Fourth and Fourteenth Amendments.’ ”

Four justices dissented. The opinion was followed in Carey v. Gammons, 414 U.S. 807, 38 L.Ed.2d 43, 94 S.Ct. 59, in which there was a dissent by one of the justices dissenting in Cady.

In Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), another “towed” automobile had been the object of a “seizure and examination” claimed to be violative of the Fourth and Fourteenth Amendments. Evidence was obtained from paint scrapings from the exterior of the car and a rear tire which tended to connect defendant with an alleged murder. Four of the justices composing the majority in Cady v. Dombrowski were of the opinion that there was no violation of defendant’s Fourth and Fourteenth Amendment rights; a fifth justice, who concurred in the opinion in Cady, concurred in the result in Cardwell. The four justices dissenting in Cady also dissented in Cardwell. In the opinion in Cardivell upholding the conduct of the officer as constitutional, it is stated:

“An underlying factor in the Carroll-Chambers line of decisions has been the exigent circumstances that exist in connection with movable vehicles. '[T]he circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable.’ Chambers v. Maroney, 399 U.S. at 50-51, 90 S.Ct. 1975, 26 L.Ed.2d 419. This is strikingly true where the automobile’s owner is alerted to police intentions and, as a consequence, the motivation to remove evidence from official grasp is heightened.
“There is still another distinguishing factor. ‘The search of an automobile is far less intrustive on the rights protected by the Fourth Amendment than the search of one’s person or of a building.’ Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view. See People v. Case, 220 Mich. 379, 388-389, 190 N.W. 289, 292 (1922). ‘What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.’ Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576; United States v. Dionisio, 410 U.S. at 14, 93 S.Ct. at 771, 35 L.Ed.2d 67. This is not to say that no part of the interior of an automobile has Fourth Amendment protection; the exercise of a desire to be mobile does not, of course, waive one’s right to be free of unreasonable government intrusion. But insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.” [Emphasis supplied]

The plurality opinion in Cardwell followed the majority opinion in Cady in noting that for constitutional purposes there was no difference on the one hand between seizing and holding an automobile before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant, that “Given probable cause to search, either course is reasonable under the Fourth Amendment.”

It is neither necessary nor possible for us to rationalize all of the inconsistencies of judicial expressions on the subject; nor can we reconcile the differences between or among the individual members of the controlling authority, the Supreme Court of the United States, but we are confident that we are not in contravention of any decision of that Court, that we are in accord with the opinions of the appellate courts of this state, and that we are following the course of reason in protecting the rights of the individual and the public — victims as well as criminals — in holding that the constitutional rights of defendant were not violated by the search of the automobile and that evidence of the results thereof was admissible.

Instead of condemning the conduct of the officers involved, we commend them. We have in mind particularly the officer who chased the defendant for a quarter of a mile through the woods, which of itself sheds some light upon the temper of the Sumiton officers on this occasion. Although himself armed, he sacrificed his own safety by capturing the defendant without the effective use of a weapon, a weapon that, as experience has shown, could have been taken away from him and used against him. He gave full measure of devotion to constitutional rights of the individual. He also kept in mind his duty as a law enforcement officer to protect the personal and property rights of the public. He stood guard over the automobile to prevent anyone’s inadvertent or intentional stealing or spoiling that which had been stolen, which otherwise someone from the gathering crowd could readily have done. He, the chief of police and Officer Will-cutt, who actually searched the automobile and found the money, knew, or should have known, that the most likely place for the money that had been stolen at the time of the robbery and murder of Mr. Cork was in the automobile that was abandoned. They knew or should have known that every few minutes of passing time increased the hazard of the money’s being stolen again by criminals working with the participants in the robbery or on their own, knowing full well that “[Wjheresoever the carcass is, there will the eagles be gathered together.” If the car had not been searched as it was, if time had been taken to procure a search warrant — and considerable time is necessary to obtain a search warrant in the observance of all legal requirements — the result could have been a disposition or handling of the money in a way that would have prevented its restoration to the owner or broken the link connecting it with the defendant and the robbery and murder, or cast suspicion upon innocent persons, including the officers as to the money in the car. In such an event, the officers now criticized for not obtaining a search warrant would not have been faithful to the trust reposed in them.

Under all the circumstances, justification for the warrantless search in this case is to be found in the fifth of “at least six exceptions under which warrantless searches have been held valid” helpfully listed and discussed by Mr. Justice Bloodworth in Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). He summarizes the fifth exception as follows:

“(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) . . .”

The State argues that the search is also justified as constituting a part of an effort to inventory the contents of the automobile, and relies upon United States v. Boyd, 436 F.2d 1203 (5th Cir. 1971), wherein the search was held to have been valid as within a justifiable inventory process. We do not find that the Supreme Court of the United States has definitely decided whether the search of an automobile, in a process of taking inventory of its contents, is justified when otherwise it would not be. There is a lack of uniformity in the authorities elsewhere. Somewhat, if not diametrically, opposed to Boyd, supra, and United States v. Kelehar, 470 F.2d 176 (5th Cir. 1972) is United States v. Lawson, 487 F.2d 468, (8th Cir. 1973), in which the court said:

“ . . . nor do we wish to create an exception for what might be called 'searches incident to police custody and control.’ If such an exception is to be created, we feel that it should be done by the Supreme Court. In so holding, we do not formulate a rule that every inventory search is per se unreasonable.

The suggested additional exception is not found in Daniels, supra, but it is made clear therein that the six exceptions listed are not necessarily all-inclusive. A correct decision herein on the subject is not dependent upon an additional exception, and we do not attempt the creation of one. However, we know of no commonly possessed valuables, if any, that are more worthy than money of accurate and careful inventory, and especially so under the circumstances of the search in this case.

The only other insistence of appellant on reversible error is directed to an occurrence during recross-examination of one of defendant’s alibi witnesses. On redirect examination he had testified that he learned of the crime in Tuscaloosa “on the news that night on T. V., when he got off.” Promptly thereafter counsel for the State questioned him intensively as to details of the television news program, which program he said he had witnessed. Upon answering that he did not know who the commentator was, that he could not remember “all that” was said, the following occurred:

“Q Did they say that Leo Rayford was in the Tuscaloosa County Jail ?
“A I don’t remember the exact words that they said.
“Q Did they say Leo Rayford was in custody ?
“A (No audible answer)
“MR. LACKEY: Excuse me. Judge, should T warn him or should Your Hon- or warn him?
“THE COURT: I think we’ll remove the jury from the room for a few minutes. Mr. Clements, if you’ll take the jury out of the room.
“MR. LACKEY: ‘Advise’ was the word I intended to say, Judge. Excuse me.
“(The jury was removed from the Courtroom and the following occurred outside their presence and hearing:)
“MR. BURROUGHS: Your Honor, now since the jury has left the room, may I make an objection ?
“THE COURT: Yes, sir.
“MR. BURROUGHS: I object to Mr. Lackey’s use of the words, shall he ‘warn’ him, or shall you ‘warn’ him in the presence of the jury. We move for a mistrial.
“MR. LACKEY: Of course, if the Court please, I tried to say in their presence that I intended to use the word, ‘advise’, not ‘warn’. Of course we have heard ‘Miranda warning’, ‘Miranda warning’, ‘Miranda warning’, and all this sort of thing. It just gets to be part of the usual courtroom conversation. I did not intend to infringe on his rights nor to infringe on the Defendant’s rights. The word I intended the connotation of was to advise him of his rights as to the possibility of perjury in case he knowingly makes a misstatement about a material fact, and any facts having to do with where the Defendant was, if it was someplace else, based on an incorrect statement would be, in my judgment, material.
“MR. BURROUGHS: In fact, he did use the word, ‘warn’, Your Honor, and you say, ‘Well, we’ll do it outside the presence of the jury.’, and the jury was getting up to leave was when Mr. Lackey jumped up and said, I meant to say ‘advise’.
“THE COURT: Well, you may take that up with the Court of Criminal Appeals of the State of Alabama.
“MR. BURROUGH: Are you overruling my objection, sir?
“THE COURT: Yes, sir.
“MR. BURROUGHS: Are you overruling my motion for a mistrial ?
“THE COURT: Yes, sir.
“MR. BURROUGHS: All right. We except of course.”

Promptly thereafter, out of the presence of the jury, the trial judge stated that he didn’t see where there had been any harm done at all. He then addressed remarks to the witness, which, instead of being construed as a warning bordering on intimidation, was in the nature of advice for the protection of the witness, given in as fair and as considerate a manner as possible, it seems to us. He was given an opportunity, which he took, to consult with an attorney for further advice and protection. Upon the return of the jury to the courtroom, the trial court stated:

“THE COURT: Before your short recess a question of law was directed to the Court, and as I told you in the beginning the trial of the case is divided into two parts, one of law and one of facts, and that you are the ultimate decider of the facts and the Court must decide the law. I didn’t want you to think that because the Court was removing the Jury that anybody had a conspiracy to keep anything from you. There was just merely a question of law directed to the Court that I had to decide, and that I had to ask you to leave the room, and that was all there was to it. It was a minor, insignificant, procedural matter that had to be cleared up. Now we’re ready to continue.”

It is argued that the'District Attorney “intimidated the witness.” We do not think so. His quick substitution of the word “advise” for the word “warn,” removed the sting, if any, of the word “warn.” Furthermore, the “no audible answer” to the last question propounded to the witness before the incident complained of indicates that the jury probably understood that a warning or advice against inaudible answers, instead of a warning or advice against perjury, was suggested. Worthy of note, also, is the fact that no objection whatever came from defendant at the time of the occurrence before the jury. The only objection made was after the jury retired, which objection was addressed merely to use of the word “warn,” which, if objectionable, had been corrected by the substitution of a clearly innocuous word. Some complaint is now made to the effect that the trial court should have instructed the jury in such a way as to remove any harmful effect of what had occurred. No motion was made that the trial court do so, and after the trial court had informed the jury as to the occasion for its retirement, no complaint was registered by defendant and no request was made for additional instructions by the court. Defendant’s objection, out of the presence of the jury to the use of the word “warn” in the presence of the jury, should have been overruled, but a ruling in favor of defendant on the question would of itself have availed defendant nothing. The overruling of defendant’s motion for a mistrial was proper, we think. Even if our tendency were otherwise, the action of the trial court was within its discretion in this respect and should not be disturbed. Shadle v. State, 280 Ala. 379, 194 So.2d 538; Edgeworth v. State, 54 Ala.App. 93, 304 So.2d 911; Hopkins v. State, 54 Ala.App. 75, 304 So.2d 629.

Our review of the record pursuant to the provisions of Title 15, Section 389, Code of Alabama 1940 fails to reveal any prejudicial error therein.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

Affirmed.

All the Judges concur.

      . However, tlie dissenting opinion found reasons for disagreement that cannot be found in this case. The minority concluded that “there were no exigent circumstances to justify the warrantless search” and stated as the basis for the conclusion, “For even assuming that the officer had reason to believe that respondent’s revolver was in the Thunderbird, the police had left the car in the custody of a private garage and did not return to look for the gun until two and one-half hours later.” In contrast, is the fact that in this case the automobile was kept under watchful official eye and searched immediately upon its arrival at a suitable place.

      . Applying the emphasized quotation from Cardwell in this ease, which we do not find necessary to support our views, any right of privacy as to the inside of the body of the automobile is nearer fantasy than fact. Certainly there is nothing sacrosanct about an unlocked automobile in the unenclosed premises of a wrecker service place of business along a Highway. On the question of the violation of a right of privacy in a portion of U.S.Anno. “Validity, Under Federal Constitution of Warrantless Search of Automobile — Supreme Court cases,” 26 L.Ed.2d beginning at page 893, it is reasoned in Footnote 4 that a distinction should be drawn between “a search of concealed parts of an automobile which would normally be considered private, such as the trunk or glove compartment” and a search of “those parts of an automobile which might be deemed to be in plain view.” We suggest also that an entry into the body of an unlocked automobile for any purpose other than a criminal one is not comparable to, and certainly cannot be equated with, an entry into a locked automobile or into the closed trunk or glove compartment thereof, which is not involved here.

      . It is so designated in the dissenting opinion.


author: DeCARLO, Judge. CATES, Presiding Judge

text:
    Martis Errole EDWARDS, alias v. STATE.
    6 Div. 951.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.

      James R. Shaw, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin O. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   DeCARLO, Judge.

Appellant was convicted of the murder of C. W. Higginbotham and sentenced to life imprisonment.

On November 21, 1974, Jimmy Bunn heard there had been trouble at the residence of his in-laws, Mr. and Mrs. C. W. Higginbotham. Around 11:00 P.M. he went to their store-home combination in the Adger Community of Jefferson County. Noticing the lights out and the doors locked, he called the authorities. After the sheriff’s deputies arrived, Bunn kicked in the back door and they entered. In the living room he saw the bodies of his in-laws. Mr. Higginbotham was sitting on the couch and Mrs. Higginbotham was kneeling with her head in his lap.

About 1:00 A.M. on November 22, 1974, the deputy coroner arrived and upon examining the body of Mr. Higginbotham, observed four gunshot wounds. One in the center of the forehead, another in the lip, a third in the groin, and a graze-type wound under the right arm. He examined Mrs. Higginbotham and found two gunshot wounds in the head. He testified that an autopsy was performed and it was his opinion that a portion of the missile entered the brain, causing Mr. Higginboth-am’s death.

Sgt. Earl Robins of the Jefferson County Sheriff’s Department arrived at the Higginbotham residence at about 1:10 A. M. and during his investigation found three spent cartridge casings on the bed and one under the night table in the bedroom. He recovered a bullet from a hole in the living room wall behind the couch where Mr. Higginbotham was sitting.

The same morning, Mr. Hansel Rogers, Jr., a member of the police department in Okolona, Mississippi, was traveling on Highway 45 Alternate, and saw a Volkswagen weaving on the road. It was 2:00 or 2:15 A.M. when he stopped the car and found Martis Edwards driving, accompanied by a four or five-year-old girl. He noticed the appellant had been drinking and saw a .22 caliber rifle on the floor of the car, which he removed.

The appellant did not have a driver’s license and Rogers asked him to take an in-toximeter test. He agreed and Rogers drove Edwards and the little girl to the jail about 2:30 A.M. A photoelectronic intoximeter test was administered and revealed a .173 reading.

After Edwards was arrested, he told Rogers to call the Jefferson County Sheriff’s Department and see if he was not wanted in connection with two murders. Rogers called his chief who subsequently arrived and called the Jefferson County Sheriff.

Later that morning, Rogers stated he saw Sgt. Robins and Lt. Jacobs of the Jefferson County Sheriff’s Department take the appellant and the rifle away.

About 2:50 A.M., Sgt. Robins received a call from the dispatcher; he and Lt. Jacobs then drove to Okolona, Mississippi. They arrived about 7:00 A.M. and saw the appellant thirty minutes later. Edwards did not appear to be under the influence of alcohol and seemed to be in possession of his faculties.

After appellant signed a form waiving his constitutional rights, Robins talked to him and reduced their conversation to writing. Edwards did not read the written statement, but remarked that it was true and signed it.

At the trial appellant objected to the statement but after a hearing outside the jury’s presence it was admitted into evidence. The statement reads:

“Nov. 22, 1974
“My name is Martis Erróle Edwards and I am 30 years old and I live at Rt. 1 Box 392 Adger, Alabama. I am making this statement to Sgt. E. E. Robins at the Okolona, Miss. County Jail.
“On Wednesday night I was at my mother’s and step-father’s house at Route one, box 392 Adger. I had been having some trouble with my ex-wife, Bobby Edwards, over our baby girl. I had decided that I was not going to let my child grow up as I had to grow up. I did not have but $100.00 that I had been saving to get her away. While at my mother’s house on this Wednesday night I made up my mind to get my step-father’s car and guns and get my child away from there. The thought entered my mind at that time that if I had to I would kill both my step-father and mother if I had to in order to get their car and guns.
“On Thursday Nov. 21, 1974, I went to mother and step-father’s store near Oak Grove. I entered the store and went on back to the living quarters in the rear. My mother was in the kitchen and my step-father was sitting on the couch in the living room. I was standing in the bedroom which is located between the kitchen and the living room. I removed a .22 Cal. Automatic rifle from a rack on the wall in the bedroom. My step-father was facing me on the couch watching television. I aimed the rifle between his eyes and shot him two times. My mother ran from the kitchen through the store to the living room and kneeled down beside my step-father. I raised the gun again and shot her four times. I then went to the front of the store and locked it and then removed a shotgun and two boxes of shells, the rifle, a box of rifle shells and a bottle of whiskey from the bedroom and left the house by the rear kitchen door. I got in my stepfather’s car and drove to my grandfather’s and grandmother’s house near there. My wife and baby girl were at their house. My wife and I started fighting and my grandfather took the shotgun away from me. I then got my child and left in my step-father’s car.
“I do not remember what time I went to the store but I believe it was about 2:30 P.M. or 4:00 P.M. After I left my grandfather’s house I drove to Columbus, Miss, and then to Okolona, Miss. I was on my way to Texas. While driving through Okolona, I was stopped by a policeman. While he was walking up to my car, I placed the rifle by my window and was planning on shooting him. Before he got to the car I changed my mind and decided not to run anymore.
“I have made this statement without any threats or promises made to me and it consists of five pages. I have had this statement read to me and it is a true statement to the best of my knowledge.
“Signed x (sgd) Martis E. Edwards “Witness (sgd) E, E. Robins.”

The State toxicologist testified that he compared the spent .22 caliber shells received from Sgt. Robins with those test-fired from the .22 caliber rifle recovered from appellant. It was his judgment that the spent shells were fired by the same rifle. He further stated that the bullets taken from the bodies were badly battered but identified them as .22 caliber.

Martis Edwards testified that prior to the shooting he had been living in the Hig-ginbotham house and there had been quite a bit of trouble between his mother and step-father. On November 21, he had been drinking and after arriving at his mother’s house, some questions arose concerning Edward’s unemployment check and his mother told him to get out. When appellant and his step-father made plans to leave, his mother said Mr. Higginbotham had gone off many times before and that she would kill him before she allowed it to happen again.

The Higginbothams began to argue and while appellant was packing, two shots were heard. He turned and saw his mother go into the living room and kneel at his step-father’s feet. The appellant stood in the hallway looking, and his mother said, “come help me get this bastard out of here before someone comes in the store, he’s dead.” When appellant did not respond, she said, “I’ll get his feet, you get his head. If you don’t I’ll kill you too.” At that point, appellant picked up the rifle and shot his mother. Edwards stated she always carried a gun but he did not see it at that time.

After the shooting, appellant went to his grandparents and told his ex-wife what had happened. He then left with his daughter and while driving to Okolona, Mississippi, was stopped.

Edwards testified that he was “very well drunk” and did not remember talking to the Mississippi officers or to Sgt. Robins. He explained that before leaving he drank some beer and whiskey and that while driving to Okolona, Mississippi, he consumed three and one-half pints of whiskey.

I

Appellant contends that it was error to admit his confession taken some five hours after his blood alcohol level had been measured at .173 on the intoximeter. Counsel argues that, assuming the normal rate of alcohol assimilation in the human body, in five hours the appellant would still have been “legally drunk” when the statement was taken. In substance, counsel is maintaining the confession was involuntary.

Whether a confession is voluntary is a question to be determined by the trial court. Harris v. State, 280 Ala. 468, 195 So.2d 521, and its judgment will only be disturbed upon a showing that it was “manifestly wrong.” Bonner v. State, 55 Ala. 242.

The circumstances surrounding the taking of the alleged confession were shown in the testimony of Sgt. Robins. He testified that, at the time the statement was taken, Edwards was in control of his faculties and did not appear to be under the influence of alcohol. Further, the Mississippi officer testified that at 8:00 A.M. on the morning of the statement he saw Edwards with Sgt. Robins and in his opinion appellant was not intoxicated.

In this jurisdiction only proof of intoxication amounting to “mania” will render a confession inadmissible. Stewart v. State, 49 Ala.App. 681, 275 So.2d 360. See also: Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408.

The facts before the court did not indicate such an impairment and in our judgment the confession was properly admitted.

II

Next appellant urges that the judgment should be reversed because of the improper argument of the Deputy District Attorney. He insists that the cumulative effect of the following statements was calculated to prejudice the minds of the jury and should not have been admitted.

“MR. REYNOLDS: ‘ . . . .It makes me sick to my stomach to try a case of a man who’s killed two people and — ’
“MR. JORDAN: I object to that, if Your Honor please, he’s not on trial for killing two people.
“THE COURT: Overruled.
“MR. JORDAN : We except.
“MR. REYNOLDS Martis Edwards killed his step-father, and wasn’t any ‘may it please The Court’ and ladies and gentlemen of the jury Martis Edwards took the life of the woman who gave him life. . . . ’
“MR. JORDAN: We object to that, if Your Honor please, not on trial for that.
“THE COURT: Overruled.
“MR. JORDAN: We except.”

The evaluation of alleged prejudicial remarks by the District Attorney during argument must be determined on the merits of each case. Racine v. State, 290 Ala. 225, 275 So.2d 655.

In regulating such argument the trial judge of necessity, must be given wide discretion. Trials are adversary in nature and a vigorous prosecution and defense is to be expected. Neither side should be hampered too closely in making their particular presentation. Bullard v. State, 40 Ala.App. 641, 120 So.2d 580.

So long as counsel does not travel out of his case and confines statements to reasonable inferences deducible from the evidence, he should not be controlled. Notwithstanding the language used, if decorous and inoffensive, the argument would be proper. Brown v. State, 121 Ala. 9, 25 So. 744.

Judge Stone in Cross v. State, 68 Ala. 476, summed up the rule in this language:

“ . . . The statement must be made as of fact; the fact stated must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury;”

The court went on to say:

“It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client; but he is outside of his duty and his right when he appeals to prejudice irrelevant to the case.” Cross, supra.

In the present case the evidence disclosed a double homicide on the same night and at a time when the appellant was present. Mrs. Higginbotham’s body was found kneeling at the feet of Mr. Higgin-botham with her head in the dead man’s lap. Each had been shot with the same rifle, and appellant by his own admission, said he shot his mother.

Whether we accept appellant’s testimony at trial or his confession, at best, only a few minutes elapsed between the two homicides. As we see this evidence in this case, Mrs. Higginbotham’s death was so closely connected as to constitute a part of res gestae. Dillard v. State, 27 Ala.App. 50, 165 So. 783. Thus it was a proper subject of comment.

We do not agree that the cumulative effect of the remarks produced the undue bias necessary for reversal. The statements complained of were reasonably deducible from the evidence in the case and within the scope of legitimate argument.

III

It is also insisted that the court committed error in not excluding the following portion of the prosecutor’s argument:

“MR. REYNOLDS You better believe that every citizen in this community has an interest in this case, every one of us has an interest in it. I know you have watched T.V., saw lawyers rant and rave . . . ’
“MR. JORDAN: We object, Your Hon- or.
"THE COURT: Overruled.
“MR. JORDAN: We except.”

This comment was neither an appeal to prejudice, nor a statement of fact bearing on guilt, but an expression of opinion seeking to impress the jury with the case’s importance. Bridges v. State, 26 Ala.App. 1, 152 So. 51; Russo v. State, 236 Ala. 155, 181 So. 502. In view of the foregoing the comment was proper.

No error appears in the record.

Affirmed.

All the Judges concur.

CATES, Presiding Judge

(concurring).

Warren v. State, 44 Ala.App. 221, 205 So.2d 916, stands for the propositions (1) that a confession is presumed to be involuntary and (2) that independent disinterested State psychiatrists’ testimony of alcoholism exhibiting delirium tremens shifts the burden further to involuntariness.

In the instant case, Edwards’ testimony if believed, showed him on a spree but did not show chronic and persistent drunkenness. Moreover, without the confession the State by ballistic opinion evidence made out a case of his guilt.

As to appellant’s admitted presence at the killing, see Ala. Digest Homicide Key No. 151(1) as to excuse, justification and mitigation.


author: HARRIS, Judge.

text:
    Terry BRIDGES v. STATE.
    7 Div. 370.
    Court of Criminal Appeals of Alabama.
    Nov. 14, 1975.

      Frederick T. Enslen, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the offense of assault with intent to rob and the court sentenced him to five years imprisonment in the penitentiary. The court further ordered that this sentence would not begin until after the expiration of the sentence that appellant was presently serving in the penitentiary. Prior to arraignment the court found appellant indigent and appointed counsel to represent him.

After sentence was imposed, appellant gave notice of appeal and requested a free transcript which request was granted by the trial coi rt. This court appointed counsel to represent appellant on this appeal.

The victim of the crime for which appellant was convicted was Virgil Bonner from Anniston, Alabama. The offense was committed just outside Pell City, in St. Clair County, Alabama, on a Saturday night in the latter part of June, 1974, at a place known as Ed’s Lounge.

Bonner testified that he met his cousin, Claudus Bonner, at the American Legion Hall in Anniston earlier that night where he drank on beer. They decided to go to Ed’s Lounge in his cousin’s car which was driven by Claudus’ wife. Enroute to Ed’s Lounge he and his cousin each drank one beer. When they got to Ed’s Lounge, they went inside and got a table and ordered a beer which was then and there consumed. They arrived some time before 12 o’clock and the place was crowded.

He further testified that he had to go to the rest room, and on the way back he was intercepted by a woman whom he did not know but subsequently learned was one Peggy Bridges who asked him to dance. He told her he could not dance but would try. A band was playing and they danced until the number ended. At this point Peggy asked Bonner to go outside with her and he followed her out the front door. Peggy asked Bonner to loan her five dollars and he told her he did not have it to loan her. She then said, “Let’s take a walk up to the car,” and he walked to her car with her. According to the testimony of Bonner, when they got to the car, appellant and one Gravette were standing in the dark behind the car and appellant came around the car and struck him in the face with a baseball bat knocking him down. While he was trying to get up, appellant struck him a hard blow with the bat and someone “jabbed” him- with a knife. He started back to the door of the lounge and felt a hand go into his right hip pocket. He put his hand back there and pushed her hand off and looked back and saw Peggy Bridges. He stated he had $123.00 in his billfold but she did not get it as he pushed her hand away. He finally made it back to the lounge and was looking for Ed. Someone told him to go into the bathroom and he would try to find Ed. Bonner went into the bathroom as he was bleeding profusely. He stayed in the bathroom until some police officers came and carried him to a local hospital where his lacerations were sutured and he was carried to the University Hospital in Birmingham where he was an inpatient for six to eight weeks. Before the officers carried him to the local hospital in Pell City, he pointed to appellant as the man who struck him twice with a baseball bat. He further made an in-court identification of appellant as his assailant.

The next witness for the state was Edward J. Wilson, the owner of the lounge, where the assault took place. He testified that Bonner was dancing with appellant’s wife. He stated that appellant and Steve Gravette followed Bonner and Mrs. Bridges out the door and he went out behind them. He saw appellant scuffling with Bonner and saw Gravette swing the bat at Bonner but he didn’t know whether he hit him. Wilson further testified that he was trying to stop the fighting. That he heard his wife holler that Bonner was bleeding badly and he told her to call the officers. The officers arrived about five minutes later. That appellant, his wife, and Gravette got in the car and he held a rifle on them to keep them from leaving until the officers arrived.

Morris K. Smith of the Pell City Police Department testified that he investigated the case and found the baseball bat in the automobile occupied by appellant, his wife and Gravette. He arrested them for public drunkenness. He took charge of the baseball bat and kept it in his possession until it was introduced in evidence over appellant’s objections.

The state rested and appellant made a motion to exclude the state’s evidence on the ground the state failed to make out a prima facie case. This motion was overruled and denied.

Appellant did not testify. Appellant’s wife had already been convicted of this same offense but she was not called in his defense and neither was Gravette called as a witness for the defense. The only witness called by appellant was his sister, Mrs. Ellen New. Mrs. New testified that she was present at Ed’s Lounge on the night of the alleged assault and she saw Bonner dance with Peggy Bridges several times. That while they were dancing, Bonner kept feeling around on the body of Peggy but she did not tell her brother about this. She further testified that she followed Bonner and Peggy outside the lounge and Bonner kept trying to play around with Peggy and appellant slapped him saying, “Keep your hands off my wife.” She stated she saw Steve Gravette hit Bonner with the bat. She further testified that she did not see anyone stab Bonner or try to rob him.

There was no motion for a new trial; there was no request for the affirmative charge; and there were no specific exceptions reserved to the court’s oral charge to the jury.

There was no error in overruling appellant’s motion to exclude the state’s evidence. Young v. State, 283 Ala. 676, 220 So.2d 843, wherein the Supreme Court said:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

In a prosecution for assault with intent to rob, intent can only be shown by facts and circumstances from which the jury is authorized to draw the inference. Porter v. State, 30 Ala.App. 46, 1 So.2d 309; Burk v. State, 22 Ala.App. 107, 114 So. 71.

In Bass v. State, Ala.App., 312 So.2d 576, this court held:

“The law is settled that when by pre-ar-rangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. The community of purpose need not be proved by positive testimony. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Stokley v. State, 254 Ala. 534, 49 So.2d 284.
All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must be indicted, tried and punished as principals. Mitchell v. State, 51 Ala.App. 411, 286 So.2d 85.
The participation in a crime and the community of purpose of the perpetrators need not be proved by direct or positive testimony, but may be inferred from circumstantial evidence. Parsons v. State, 33 Ala.App. 309, 33 So.2d 164.”

Testimony of the victim of the alleged assault to rob which was offered to establish identity of the defendant presented a jury question on that matter. Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Whether there is such evidence is a question of law; its weight and probative value are for the jury. Bolton v. State, 21 Ala.App. 373, 108 So. 631; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

Conflicting evidence always presents a question for the jury as to the defendant’s guilt. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Irons v. State, 42 Ala.App. 349, 165 So.2d 125.

A careful examination of the record reveals no reversible error. Accordingly, the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


author: SIMMONS, Supernumerary Circuit Judge. CATES, Presiding Judge.

text:
    John BURRESS v. STATE.
    8 Div. 659.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.

      Philip A. Geddes and Charles T. Frew III, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   SIMMONS, Supernumerary Circuit Judge.

These consolidated appeals (one from a conviction of murder, the other from a conviction of robbery) were originally assigned to the Presiding Judge. After-wards, the writer, under Section 2 of Act No. 288, July 7, 1945, took over the assignment and prepared Parts I-V of this opinion. Cates, P. J. prepared the remainder.

I

Under Code 1940, T. 15, § 389, this court must search the record for any adverse rulings in the trial below which contain error injurious to the appellant. See Rendle-man, The Scope of Review in Criminal Appeals, etc., 22 Drake L.R. 477; Rule A, 49 Ala.App. XXI and 28(a)(7) ARAP and Form 23.

We cite the foregoing because we find in the record before us the following order:

“The defendant John Burress having given notice of appeal from his conviction in the above styled cause and having filed his petition for a free transcript, the court being of the opinion that the provisions of Sections 380(14)-380(25), Code of Alabama 1940 as amended, and in particular Section 380(17), should be followed,
“It is therefore ORDERED, ADJUDGED and DECREED by the court that the petition by the defendant be amended to comply with said provisions.” R. 118

The trial judge seemingly imposed a merit test on a pauper seeking a free transcript under his construction of § 4 of Act 525, September 16, 1963. This section requires averments of error in a pauper’s petition for a free transcript of testimony. The enforcement of this section so as to revive assignments of error is unwarranted since § 389 is a paramount provision which has not been repealed.

Also since § 4, supra, applies only to paupers it cannot be construed to cut off a poor man’s access to an appellate court in any significant way which is different from that available to an affluent appellant. Draper v. Washington, 372 U.S. 487, 88 S.Ct. 774, 9 L.Ed.2d 899.

Concededly, appellant did not complain of the trial judge’s order quoted above by an appeal under § 6 of Act 525, supra. Whether or not in such proceedings an appellant is constitutionally entitled to have the sought for transcript sent up on the ancillary appeal (from denial of a free transcript) we need not here decide. But compare Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 where we find:

“ * * * If, on the other hand, the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the defendant’s application, the Court of Appeals must provide the would-be appellant with both the assistance of counsel and a record of sufficient completeness to enable him to attempt to make a showing that the District Court’s certificate of lack of ‘good faith’ is in error and that leave to proceed with the appeal in forma pau-peris should be allowed. If, with such aid, the applicant then presents any issue for the court’s consideration not clearly frivolous, leave to proceed in forma pau-peris must be allowed.”

In the light of Draper and Cop-pedge, supra, we have carefully considered the entire record before us which contains only one evidence transcript, i. e., that of the murder trial. No appeal was lodged here under § 6 of Act 525. No claim is made in brief that the evidence on the robbery trial was different from that on the murder trial. Nor is there any reference to adverse rulings made in the robbery trial that do not appear in the record which appellant’s counsel have filed here. In Orum v. State, 286 Ala. 679, 245 So.2d 831, our Supreme Court said:

“The appellant is under the duty of seeing that his appeal is perfected according to the requirements of statutes and rules of court. * * *”

II

Appellant-defendant was convicted of two separate and distinct offenses; namely, murder in the first degree, and subsequently, robbery. The indictments were separate, returned at the same time, and the alleged offenses were tried separately on the different dates. The appeals are combined here by agreement in the same transcript. For the conviction of murder the punishment was life (a general verdict) and for robbery the punishment was ten years. Both punishments were fixed by a jury. Defendant was an indigent at nisi prius with appointed counsel. The same indigency with appointed counsel obtains here.

We note that the record or transcript here filed contains a certified copy of the evidence and of the exhibits in the murder trial, but not in the robbery proceedings. However, it appears that the murder charge was an incident to the robbery according to the transcript of the evidence. We have no assurance that the evidence in both trials comported in all respects with each other. Our summary of the evidence is based on the evidence adduced in the murder trial.

The robbery occurred at about 8 p. m. on November 14, 1974, at a general urban grocery store located on the fringe of Huntsville, Alabama. The victim of the homicide was Anthony Lasiter, the twelve year old grandson of Glen Thomas and his wife.

An additional and brief résumé of the evidence will suffice. Mr. and Mrs. Brown had closed and locked their grocery store building. They were proceeding with their daughter and grandson to their automobile for transportation to their house. The robbers halted them enroute to the automobile parked nearby, and commanded them to turn over their money. Mrs. Brown delivered about $2,000.00 in currency and checks while the daughter surrendered a bag of coins in her possession. The husband and grandson did not have any money to surrender. The money was the proceeds of the business operated by Mr. and Mrs. Thomas.

At the time, the defendant had possession of a small caliber pistol, which he pointed at the face of Mrs. Brown, and the companion robber was brandishing a 38 caliber pistol; the robbers made threats to kill them.

The robbers directed them to turn over their automobile key, and to go back inside the store. The robbers were told that the key was in a money box and that the store was locked. The family thereupon proceeded to the store where Mr. Brown broke a window pane was his fist and unlocked the store door from the inside. The whole family entered through the unlocked door and sought shelter from further intimidation and danger.

While the family was complying with the order to enter the store, the robbers tried to crank the car. Failing, they retreated from the store on foot and while so doing, with the defendant Burress in the lead, the companion fired his 38 pistol in the direction of the store. A bullet entered the building through the glass of a window. The projected bullet found lodgement in a sensitive part of the grandson who was killed thereby. Death was immediate.

Brenda Burress, a sister of the defendant, was called as a witness for the defense. She testified that some detectives called at her house in search of her brother and that when her brother called her over the telephone from Nashville, she told him about the homicide and robbery and that he was wanted for arrest in connection therewith. She further testified that he returned immediately and submitted to arrest.

It further appears in the testimony of Mr. Brown that the time element between the beginning of the robbery and the firing of the fatal shot was about three minutes. As to how far the defendant had retreated when the shot was fired is not free of uncertainty.

Ill

ON THE HOMICIDE

We will now address our comments and opinion to appellant’s contentions of error in the murder trial and the questions of law pertinent thereto.

Title 14, Section 314, Recompiled Code, 1958, embracing the felony-murder rule, reads in part as follows:

“Every homicide * * * committed in the perpetration of * * * robbery, * * * although without any preconceived purpose to deprive any particular person of life, is murder in the first degree * *

Appellant asserts that the trial court erred in refusing some written charges. The asserted errors refer to charges numbered 7, 9, 10, 1.1, 12, 14 and 15. We have carefully examined each charge, supra, and conclude that the Court’s refusal of each charge was free of error. The charges are either abstract, not based on the evidence, not applicable to the evidence, argumentative, misleading, confusing, or were covered by the oral charge. Duchac v. State, 52 Ala.App. 327, 292 So.2d 135(8); Adkins v. State, 20 Ala.App. 278, 101 So. 779, cert. den., 212 Ala. 125, 101 So. 780; Reynolds v. State, 154 Ala. 14, 45 So. 894; Bain v. State, 61 Ala. 75; Mitchell v. State, 14 Ala.App. 104, 71 So. 982; Champion v. State, 35 Ala.App. 7, 44 So.2d 616, cert. den., 253 Ala. 436, 44 So.2d 622; Duke v. State, 257 Ala. 339, 58 So.2d 764; Title 7, Section 273, 1940 Code. For other collated cases see Vol. 6A, Ala.Digest, Criminal Law, 813 and 814(3). With particular reference to defendant’s refused charge 11, this charge is predicated on a finding from the evidence that defendant robbed deceased. For aught that appears, deceased was not robbed of anything. It is also argumentative.

IV

The jury, after deliberation had begun, returned to the court room. A member propounded a question to the Court as follows :

“If the murder was committed during the commission of a felony, is it required by law that we find first degree murder?”

The trial court proceeded to give further instructions which it deemed responsive to this interrogatory. There were no exceptions or objections by defendant thereto. We will not review this response.

However, immediately following the jury’s verdict and sentence of defendant, the trial court, outside the presence and hearing on the jury, at 10:30 p. m. with all parties and counsel present, observed as follows:

“THE COURT: Now, at the request of Mr. Frew who is one of the attorneys for the defendant, let the record show that prior to the rendition of the verdict in this case the jury submitted a written question which is as follows: ‘If a homicide is committed while fleeing a robbery is it presumed to have occurred as part of the robbery?’
“Let the record also show that prior to the court having answered this question for the jury, they sent the message by the bailiff that they no longer desired that this question be answered by the court. And shortly thereafter indicated that they had reached a verdict and in fact did so.” (R. 105)

The record fails to show when during the jury’s deliberation the question was asked. We have already decided, supra, why the written instructions were refused.

V

If counsel for defendant was unhappy with the court’s oral charge, or any part thereof, because of its omission or deficiency, if such was a fact, he was privileged to submit written charges meeting the demands of law and supplying the omitted phases of applicable law. Edwards v. State, 51 Ala.App. 433, 286 So.2d 308(8), cert. den., 291 Ala. 777, 286 So.2d 313.

The judgment for murder is affirmed.

CATES, Presiding Judge.

VI

THE ROBBERY CONVICTION

As is shown in Judge Simmons’ recital of the evidence, the robbery and murder were legally discrete crimes which came from a single transaction, i. e., taking money by violence. The jury was entitled to view the killing as a terroristic act intended to deter or delay pursuit of the robbers.

The trial judge in the murder case elaborated in his instructions on the felony-murder doctrine. These directions became the law of the case. Our Clerk tells us the trial judge allowed only one transcript.

In the 1923 Code of Alabama first adopted a bar to double punishment which now appears in Code 1940, T. 15, § 287 which reads as follows:

“Any act or omission declared criminal and punishable in different ways by different provisions of law, shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision.”

The appellant pleaded double jeopardy. Here, as in Yelton v. State (1975), 56 Ala.App. — , 321 So.2d 234, where the other conviction is not yet final we would be speculating as to whether or not punishment under the murder conviction would preclude punishment under the robbery conviction. Accordingly, we consider that the New York practice of concurrent sentences is the only pragmatic solution.

The judgment of conviction for robbery is affirmed but the cause is remanded so that the sentence of ten years imprisonment is to run concurrently for the first ten years of the life sentence for murder. If the murder conviction is set aside such action will not affect the sentence under the robbery conviction.

Murder conviction affirmed.

Robbery conviction affirmed but cause remanded for concurrent sentence.

All the Judges concur.

      . “ * * * And if you are satisfied from the evidence beyond a reasonable doubt and to a moral certainty, as I have explained to you, that a homicide was committed and that it was committed in the perpetration of the offense of one of these enumerated, that I have explained to you, then, the degree of the homicide would be murder in the first degree. If perpetrated or committed in the perpetration of or the attempt to perpetrate in the arson, robbery, rape or burglary or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, the offense would be murder in the first degree. And if you are so satisfied from the evidence, satisfied beyond a reasonable doubt and to a moral certainty, then, in that event the form of your verdict would be, ‘We, the jury, find the defendant guilty of murder in the first degree.’ ”


author: TYSON, Judge.

text:
    Gale A. HUDSON v. STATE.
    4 Div. 322.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.

      Adams & Bates, Dothan, for appellant.
    William J. Baxley, Atty. Gen., Frank L. Thiemonge III and David W. Clark, Asst. Attys. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant, Gale A. Hudson, and Mark Lee Mathis with robbery, by taking $335.00 and one .32 caliber pistol from the person of Charles Davis. The jury found the appellant guilty as charged, and fixed punishment at thirty years imprisonment. The court then entered judgment, setting sentence in accordance with this verdict.

Charles Davis testified that he was employed at Alley’s Grocery, located on U. S. Highway 84 West in Houston County, Alabama, on August 10, 1974. He testified that between 9:30 and 9:45 that evening the appellant came in the store, and as he was turning his head, the appellant struck him on the back of the head with a pistol and demanded that he give him the money in the cash register. He stated that he turned around and saw the appellant take the proceeds from the cash register, that the appellant struck him again with the pistol, and as he fell the appellant shot him once through the shoulder. He testified that he lay there until appellant left the store, and that he raised up in time to see the appellant drive away in a green Rambler automobile. He testified that he attempted to use the telephone, but about that time two friends, Donnie and Mark Driscoll, came up. They called the police and then took him to the hospital.

Davis made a positive incourt identification of the appellant.

Mark Driscoll testified that on August 10, 1974, he and his nephew, Donnie Dris-coll, drove up to Alley’s Grocery and saw Charles Davis try to get up off the floor, that he had been shot, that they then notified the police, and took Davis to the hospital.

Billy C. Alley testified that he lived in Newton, Alabama, and was the owner of Alley’s Grocery Store, located on U. S. Highway 84 West in Houston County. He testified that on August 10, 1974, Charles Davis was working there. He testified that he went to the store about 10:00 that evening and discovered there had been a robbery. He testified that he found that $325.00 and one .32 caliber Arminius revolver, Serial Number 175606, were missing from his store. He testified that he had purchased this pistol on February 5, 1970, from one Freddie P. Smith.

O. E. Jones testified that he was Chief Deputy Sheriff of Houston County on August 10, 1974. He testified that in response to a telephone call he went to Alley’s Grocery Store on U. S. Highway 84 West, and there found the two Driscoll men and Charles Davis. He testified that Davis gave him a description of the people who robbed the store, and that he noticed that Davis had been shot. He then put out an “all points bulletin,” giving a description of the people and the automobile involved.

Sergeant Leroy Davis testified that he was employed by the Alabaster Police Department on night of August 10-11, 1974. He stated that he had received a bulletin as to the description of a certain type vehicle, and that he observed the vehicle in question at the intersection of U. S. Highway 31 and I 65 in Shelby County, Alabama. He stated that the driver of the vehicle was a young white man, named Mark Mathis, and a young white lady, named Susan Lawson, was seated in the middle, that the appellant, Gale Hudson, was seated on the passenger side. He and his fellow officer ordered the three out of the car, the appellant refused at first, and began to use profanity. He then placed the appellant under arrest and noticed that he had a .32 caliber, nickel-plated pistol strapped to his person. He testified that the Serial Number on the pistol, which he took from the appellant, was 175606, and that it was an Arminius pistol. He further testified that he found a .22 caliber Rutger pistol lying on the floor of the automobile, and that the appellant, Gale Hudson, had nineteen .22 caliber shells in his shirt pocket at the time of his arrest.

The appellant moved to exclude the State’s evidence, which was overruled. The appellant presented no testimony at trial.

I

In Tarver v. State, 53 Ala.App. 661, 303 So.2d 161 (1974), Judge Harris, in speaking for this Court, observed:

“The three essential elements of the crime of robbery are: (a) felonious intent, (b) force, or putting in fear as a means of effecting the intent, and (c) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. Douglass v. State, 21 Ala.App. 289, 107 So. 791; Hardis v. State, 28 Ala.App. 524, 189 So. 216; Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382.”

We are of the opinion that the State here presented a prima facie case of robbery, which, when tested by appellant’s motion to exclude, was properly submitted to the trial jury. Lambert v. State, 48 Ala.App. 600, 266 So.2d 812; Moore v. State, 48 Ala.App. 719, 267 So.2d 509; Clay v. State, 52 Ala.App. 272, 291 So.2d 364; Gross v. State, 6 Div. 902, October 21, 1975.

We have carefully examined this record and find no error therein. The judgment of the trial court is due to be and the same is hereby

Affirmed.

All the Judges concur.


text:
    Raymond LANDRY v. STATE.
    1 Div. 595.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.

      David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree. He was convicted of murder in the second degree and his punishment was fixed at twenty years in the penitentiary. Prior to arraignment he was found to be indigent and the court appointed counsel to represent him. He is in this court with a free transcript and another attorney represents him on appeal.

It was shown without conflict that appellant and four other Negro men drove from New Orleans, Louisiana, to Mobile, Alabama, on August 4, 1974, to obtain narcotics. They met a local user, referred to by one of appellant’s accomplices as “Bruce” whose true name was Robert L. Brown. Brown put the five men from New Orleans in touch with a local pusher from whom they bought seven caps of heroin for $87.00. They went to an apartment occupied by one Freeman and his girl friend and “shot up” the heroin by injecting it in their arms. This was a low quality drug and the men got mad because they had been cheated. Brown then assisted the men in obtaining three caps of heroin from the deceased for which they paid him $47.00 and owed him $5.00 more. Appellant and his friends went back to the apartment and used the drugs. The deceased appeared at the apartment to collect the balance due him. He was shot with a pistol in the hallway of the apartment house in the presence of appellant and his four companions from New Orleans.

One of appellant’s accomplices, Marvin Sartain, claimed that he heard the shot but that neither he nor any of his companions were involved in the shooting.

According to the testimony of Brown, the local narcotics user who helped appellant and his four associates “score” with -the deceased, the five men came downstairs where the deceased was in the hallway. One of the accomplices stated that he was going to “take care of his business” with the deceased. Brown left to go to the laundromat next door for some water. He heard a shot, observed appellant and his companions depart the scene and discovered Leroy Malone shot to death just inside the apartment hallway.

The investigating officers obtained a description of the automobile and its occupants and issued a radio dispatch for the vehicle and its five occupants stating they were suspects to a murder that had just been committed in Mobile. The radio dispatch described the vehicle as a white 1963 Dodge automobile bearing a Louisiana license plate beginning with the numbers 1-7-9. This police alert was picked up by Captain J. W. Stallings, District Commander for the Alabama Department of Public Safety. He called other units to set up a road block on Interstate 10, west of Mobile. Captain Stallings observed the wanted vehicle above the road block and followed it to the road block, radioing ahead, “ . . . that our Louisiana Dodge was on their way

The automobile was stopped at the road block. The driver was taken from the vehicle. At that point the officers noticed appellant sitting in the left rear seat “with his hands behind his back shuffling.” The appellant was removed from the automobile and an automatic pistol was found behind where he was seated in a crack behind the rear seat.

The officers arrested all five men and searched them and the automobile for other weapons and found two more pistols under the front seat of the car. A sawed off shotgun was found in the trunk of the car.

An autopsy was performed by a doctor who had been practicing for thirty years. He removed a spent bullet from the body of the deceased. He stated that the cause of death was a gunshot wound to the chest.

The slug removed from the body of the deceased, together with a spent cartridge found between the legs of the deceased and the automatic weapon were delivered to the office of the Department of Toxicology in Mobile. The automatic pistol was test-fired and a comparison was conducted. The examiner concluded that the spent cartridge and piece of lead were fired from the automatic pistol. This was the same automatic pistol the officers saw appellant trying to shove behind the left rear seat where he was sitting when they removed him from the Dodge automobile.

All five men caught in the fleeing Dodge automobile after the murder were indicted for murder in the first degree. This was proper under Title 14, Section 14, Code of Alabama 1940.

When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not. Stokely v. State, 254 Ala. 534, 49 So.2d 284.

Such community of purpose may be formed in a flash. Ray v. State, 32 Ala.App. 556, 28 So.2d 116.

The possession by the accused of the murder weapon a short time after the killing tends to connect the accused with the murder. Holland v. State, 49 Ala.App. 104, 268 So.2d 883.

Where there is probable cause to believe that a vehicle, which is capable of being moved, contains evidence of a crime, law enforcement officers may search the vehicle without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706.

This was a “hot pursuit” case and is controlled by Daniels v. State, 290 Ala. 316, 276 So.2d 441, and the United States Supreme Court cases cited therein.

Appellant did not testify but offered the testimony of two convicts to the effect that the deceased was a known dealer in narcotics.

In Bass v. State, Ala.App., 313 So.2d 208, this court said:

“This is one of the strongest circumstantial evidence cases to find its way to this court in a long time. Circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided that it points one way, viz., to the guilt of the accused. Where, as here, the prosecution relies to a great extent on circumstantial evidence for a conviction, very wide latitude is allowed in making proof. Willis v. State, 37 Ala.App. 185, 66 So.2d 753; Sumeral v. State, 39 Ala.App. 638, 106 So.2d 270; Cline v. State, 25 Ala.App. 433, 148 So. 172; Hollenquest v. State, Ala.App., 53 Ala.App. 501, 301 So.2d 264.
We are required to consider the evidence in the most favorable light for the prosecution. Womack v. State, 34 Ala.App. 487, 41 So.2d 429.
In Hill v. State, 26 Ala.App. 347, 159 So. 503, we find this expression:
‘Anything said or done at the time of the alleged offense by [the] parties present is relevant and admissible in evidence on trial therefor.’
The corpus delicti is a fact, proof of which may be shown by circumstantial evidence, and if there is a reasonable inference to prove its existence, the court should submit to the jury for consideration the question of the sufficiency and the weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Burleson v. State, 52 Ala.App. 399, 293 So.2d 317.
Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Price v. State, 53 Ala.App. 465, 301 So.2d 230; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Bolton v. State, 21 Ala.App. 373, 108 So. 631.”

We have carefully examined the record for errors which injuriously affected the substantial rights of appellant and have found none. Accordingly, the judgement of conviction is affirmed.

Affirmed.

All the Judges concur, except CATES, P. J., who concurs in the result.