author: DeCARLO, Judge.

text:
    Richmond Preston ROGERS, Jr., alias v. STATE.
    6 Div. 377.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Larry Waites and Charles E. Caldwell, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Richmond P. Rogers, Jr., was indicted by the Jefferson County Grand Jury for first degree murder in the shooting death of Hollis Lindley. Following a jury trial on October 14, 1976, Rogers was found guilty and sentenced to life imprisonment.

The evidence presented at trial established that about 1:00 A.M., on March 9, 1976, Rogers went to the bar area in the Back Door Lounge in Birmingham, presumably to talk to his wife. After discovering that his wife was not there, he ordered a drink and made a telephone call.

Rogers then went down a hall to the door of a back-room in the lounge where he thought his former wife, Nancy Morgan, was working. He asked to be admitted, and according to Rogers, was told by Hollis Lindley that he could not enter. Rogers said Lindley hit him in the stomach and threw him out of the lounge. When Rogers tried to re-enter the club a struggle between the two men ensued, during which time Lindley was shot and killed.

On the night in question, Patricia Nix, the bartender at the Back Door Lounge, testified that Lindley called to her from the foyer of the club and asked her; “Do you know this guy?” She replied: “No.” She said that the man with Lindley in the foyer was Rogers and that he was bent over, making weird noises and saying that he wanted to come in and make a telephone call. Subsequently, Rogers attempted to enter the club and Lindley told her to call the police.

According to Nix, as she turned to leave, she heard a “smack” which sounded like someone being slapped in the face. She said she then heard someone say: “If you move or if you make another move, you’re dead . . ” Further, she said that shortly afterwards, she heard a shot. Nix remembered that she hit the floor, crawled to the corner, and remained there until Cargile, a bar patron, crawled over to her. They then, together, left the lounge to hunt a policeman.

Richard Ayers testified that he along with Rogers, Lindley, a waitress, and several other customers, were at the Back Door Lounge at the time of the shooting. According to Ayers, as he sat at a table having a drink, Rogers got up, went through some swinging doors, and used the telephone. He was gone approximately ten minutes, returned to the bar and subsequently left the building.

After the appellant left, Lindley came in, gave some keys to the waitress and told her to lock up. Lindley then left but returned shortly thereafter and asked the waitress to “come here.” She went over to where Lindley was standing near the back door. Ayers heard Lindley ask; “Do you know this guy?” and the waitress replied: “No.” Lindley then told her to call the police. According to Ayers, Lindley and Rogers were arguing. Rogers insisted on using the telephone while Lindley kept telling him that he was trying to close up and that he would have to use the telephone outside.

Ayers testified that as he was going to the restroom, he saw Lindley restraining Rogers from coming inside. Ayers stated that while he was in the restroom he could not understand what was being said but did recall hearing a “lick passed and a scuffle.”

Ayers said that, he heard a shot a few seconds after he left the bathroom. He said he thought at first it was a firecracker and as he continued to walk down the hallway he saw the appellant step in the doorway and walk toward him with a gun in his hand. According to Ayers, he told the appellant, “everything will be alright,” and the appellant replied, “okay.” Ayers said he walked on by Rogers and went into the lounge. Ayers testified that Hollis Lindley was lying face down in the doorway at the time.

Clark Cargile, another bar patron, testified that he was sitting at the bar when Hollis Lindley, the victim, asked the waitress; “Do you know this guy?” Cargile said that he assumed Lindley was referring to the appellant.

Cargile recalled, as Lindley was trying to close the outside door, the appellant made a request to use the telephone. Lindley told appellant that they were closing and that he could use the telephone outside. Cargile then heard a thud that sounded “like somebody falling or pushing against a wall.” Cargile said he looked to his left and saw that one man had another by the shirt while the other had his right hand across the first man’s waist.

According to Cargile, at that point, he heard one of the men say, “you m- f-, if you make one move you’re dead.” He saw a flash, from what he thought was the muzzle of a gun, and then heard an explosion. Cargile said that he “squatted down” behind the bar and subsequently crawled out the side entrance of the lounge with Pat Nix and a Mr. Garbart.

Officer R. M. Stidham of the Birmingham Police Department testified that on the morning of the shooting, at approximately 1:00 A.M., he was informed by a citizen that there had been a shooting at the Back Door Lounge. Stidham went to the lounge and as he entered the rear door of the lounge he stumbled across a body lying on the floor.

Stidham said he then returned to the outside so that his “walkie-talkie” could transmit and asked for additional policemen to proceed to the scene. In a few minutes, Sgt. Whisenhunt of the Birmingham Police Department arrived and Stidham informed him of what he had found. About that time, Stidham said they noticed a “subject on the other side of the East Lake Auto Sales,” located just across the street from the building where the Back Door Lounge was housed. According to Stidham, the subject appeared to be darting into an alley that separated the parking lot from the auto sales lot. Stidham yelled at the man to halt which he did. The appellant was identified as the man whom he and Sgt. Whisenhunt apprehended the night of the shooting. Stidham stated that the appellant did not offer any resistance and that while he was being searched he said: “I .killed him, didn’t I?”

Whisenhunt testified that in response to Stidham’s call he proceeded directly to the Back Door Lounge. On his arrival he saw Stidham come from the rear of the building. Stidham informed him that a man had apparently been fatally shot and was lying in the door of the lounge. Whisenhunt said that, as Stidham was informing him of what had occurred, they both saw a man behind a building across the street. According to Whisenhunt they called to the subject and within seconds they apprehended the man whom they later learned to be the appellant.

Whisenhunt stated that a search of the man revealed a pistol in a shoulder holster. Whisenhunt said the man was not asked any questions but as he took the gun from the holster the man said: “I shot him and I would shoot him again if he isn’t dead, when a man messes with your kids he should be shot.”

Whisenhunt said the man did not say anything further until they took him to the East Lake Precinct, about fifteen minutes later. Whisenhunt said the appellant was read his Miranda warnings at that time. While Officer Stidham was filling out his report, the appellant said on his own volition that he had been following the victim around for a few weeks prior to the homicide, with plans to shoot him.

After having a few drinks at another lounge, the appellant went to the Back Door Lounge. He went to the club’s back office where he thought the man he was looking for was located. The appellant went on in his statement and said that he pretended to be intoxicated and sick. He asked Lindley to help him. Rogers concluded his statement by saying that, when the victim came to assist him, he, Rogers, pulled a gun from his belt, placed it to the victim’s head, and shot him.

Edward K. Alley, Jr., a police officer with the City of Birmingham, was involved in the investigation of the shooting at the Back Door Lounge. According to Alley, after completing his investigation at the Back Door Lounge, he and several other officers went to the East Lake Precinct where he saw the appellant, Richmond Preston Rogers. In Rogers’ presence, Alley was asked by Officer Stidham what the victim’s name was and told Stidham that the victim was Hollis Lindley. The appellant turned toward Officer Alley and asked: “Who?” The officer repeated the name of the victim, at which time the appellant said: “I don’t know that man, I shot the wrong man.” Alley said from that point on the appellant’s whole demeanor changed. He seemed to be shocked and became quiet.

Several other police officers, including Whisenhunt, Alley, and Gaut, testified that the appellant, after having been transferred to the East Lake Precinct, made a series of statements of an inculpatory nature in their presence.

Officer J. A. Rose, an evidence technician with the Birmingham Police Department, testified that he took pictures at the scene of the shooting at the Back Door Lounge. He received two pistols, one from a holster on the victim’s body and the other taken in the search of the defendant. Rose stated that the pistol taken from the defendant contained five live rounds and one spent one. He went on to say that he test fired the defendant’s pistol and had given the test bullets to Sgt. David L. Higgins.

Sgt. David Higgins of the Birmingham Police Department assigned to the scientific investigation unit, testified that he made ballistic comparisons with the known bullets from the defendant’s pistol and the bullet taken from the victim. It was his opinion that the bullets were fired from the same weapon.

Jefferson County Deputy Coroner, Jack R. Parker, testified that an autopsy was performed on the body of Hollis Lindley at which time a bullet was removed from the head area. He said there was a “penetration wound at the tip of the nose and there was no point of exit.”

Jay Glass, the assistant pathologist at Cooper Green Hospital in Birmingham, Alabama, performed the autopsy on the body of Hollis Lindley. Glass stated that he found a gunshot wound at the tip of the nose and that this was “a contact or near contact wound.” Further, he said he found gun powder tattooing or burns on the victim’s face.

At the close of the State’s evidence the defense made a motion to exclude, assigning as grounds, that the State had not proved the elements of premeditation and deliberation.

The motion was overruled and the defense called, as its witness, the appellant. He said that Lindley hit him in the stomach and threw him out of the lounge; that he tried to re-enter the lounge in order to talk with his wife, Nancy Morgan, who he thought was in a back room. The appellant said, as he attempted to push his way past Lindley, a struggle ensued. During the struggle Rogers discovered that Lindley was carrying a pistol in a holster.

According to Rogers, when Lindley shoved him through the inner door to the foyer, Lindley said to Rogers: “I ought to kill you boy,” and slapped him in the face. Rogers said that, at that point, Lindley made a motion with his hand towards his pistol; that he, Rogers, attempted to hit Lindley; and at the same time, pulled his weapon and said to Lindley: “Don’t go for it. If you do, I’m going to shoot you.” He went on to say that Lindley moved toward his gun and that he, Rogers, shot him.

Several character witnesses were called and testified that Rogers had a good reputation in the community for truth and veracity. At the conclusion of this testimony, the trial ended.

I

The appellant complains that his rights were prejudiced when the State was allowed a preferential setting for the trial in his case.

The case involving the appellant was set preferentially the week of October 11,1976, in slot number 47. Following this preferential treatment, counselor for defendant made a motion to restore the case to the docket as it originally appeared, claiming that the setting worked a hardship on the defendant.

In support of his motion, the defense attorney stated that, on October the first, the assistant district attorney assigned to the case called him and said he was going to ask for a preferential setting.

The setting was requested due to an out of town witness. The record indicates that at the time the request was made it was believed that the out of town witness lived in Cleveland, Tennessee, when in truth, he lived in Cleveland, Alabama, which is located approximately thirty miles outside of Birmingham. Further, after the assistant district attorney discovered his mistake, he still felt justified in his request, asserting that he did not know where Cleveland, Alabama was located.

Counsel for the defense stated that he informed the assistant district attorney that he would object to a preferential setting and requested that he have an opportunity to go with him to the docket control judge so that he could make known his objections to the setting. According to the defense attorney, he was at home, sick, when the district attorney first called him and informed him that a request for a preferential setting would be made. The next contact between the two adversaries was three days later when the district attorney called the defense attorney again and told him that such a setting had been obtained.

In the defense motion for a continuance it was alleged that the State would suffer no hardship in restoring the case to its original place lower in the docket. Counsel argued that the out of town witness worked for Delta Air Lines, within a few miles of the courtroom, and could easily be placed on call by the State.

Counsel insisted that the preferential setting, on the other hand, worked a hardship on his client, in that it prevented him from having adequate preparation time. Counsel maintained that if the case was restored to its original slot it would not come to trial until Tuesday or Wednesday of that week, whereas, as it was preferentially set, it would come up Monday afternoon or Tuesday morning.

The trial judge noted that the shooting occurred in March, the preliminary hearing was in April, and this was now October. In overruling the motion, the court noted that the defense was not prejudiced at all by the preferential setting and that counsel had had adequate opportunity to prepare. The judge went on to say:

“I just don’t see where you have got any kick coming about when the case is set on Tuesday or Monday afternoon or Wednesday morning. I really don’t see where that works any great disadvantage to you or the Defendant in this case, . . . ”

Section 11, of the Criminal Division Operating Procedure for the Tenth Judicial Circuit of Alabama reads:

“In criminal cases where the District Attorney or attorney for the defendant desires a ease be given preferential assignment, they shall apply no later than Thursday before the Monday the case is set for trial, to the Judge calling the docket the week the case is set. That Judge shall determine whether the case should be given preferential assignment and if he so decides; the case shall be assigned at once to a particular Judge for trial at 9:30 A.M. on the following Monday morning.”

The defense attorney interprets this rule to mean that the presence of both the defense attorney and the district attorney is required to obtain a preferential setting. Defense counsel complains that the district attorney, knowing that he, the defense counsel, was sick, appeared before the docket control judge alone. He also contends that the State’s reason for the request was frivolous because, in fact, the absent witness lived not far from Birmingham and worked at the Birmingham Municipal Airport.

It is the law of this State that the circuit court has inherent powers to make reasonable rules for the conduct of the business of the court. Brown v. McKnight, 216 Ala. 660, 114 So. 40.

In Porter v. State, 27 Ala.App. 441, 174 So. 313, this court noted that an act of the legislature superceded any local rule of court that was contrary to it. However, it was quick to add that this pronouncement was not intended to: “Limit the inherent right of courts of general jurisdiction to make such rules as are necessary in the dispatch of business in said courts . .”

Further, the Alabama Supreme Court held in G. McClendon Trucking Company v. Hall Motor Express, Inc., 285 Ala. 98, 229 So.2d 488, that:

“The interpretation by a court of its own rules ... is entitled to the greatest weight by a reviewing body and will be followed unless it appears to be clearly unreasonable or arbitrary.”

See Alabama Public Service Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 So.2d 653.

It is without question that the Tenth Judicial Circuit of Alabama has authority to promulgate rules of procedure for the effective administration of its court business. This court will uphold the interpretation given to the local rules by the courts in the tenth judicial circuit, unless those rules appear to be “clearly unreasonable or arbitrary.” McClendon, supra.

Evidently, the trial judge did not interpret the rule in question to mean that all attorneys involved are required to be present in court at the time a request for a preferential setting is made. This seems to be a reasonable interpretation of that rule from our reading of it.

We also agree with the circuit court in that we fail to see where the rights of the appellant were unduly prejudiced by the failure to grant the motion for a continuance. The granting of such motion for a continuance would only have delayed the trial of the case, at the most, three days.

The record indicates that the defense attorney had been representing the defendant from the time of the preliminary hearing which had been held six months earlier. This should have been adequate time to prepare a defense.

In our judgment, the docket control judge’s interpretation of the preferential setting rule was not arbitrary or unreasonable and there was no abuse of discretion in so setting the case of the defendant for trial.

II

The appellant next complains that the trial court abused its discretion in not allowing him additional time to obtain an absent witness, who he claims, was material to his defense, and would have been beneficial in the preparation of his case. Counsel argues that the denial of compulsory process and the refusal of the continuance prejudiced the rights of the appellant.

On October 11, 1976, approximately six months after the shooting occurred, the appellant filed a motion requesting a continuance. In that motion, he alleged that one of his witnesses was temporarily unavailable and that he had made a diligent effort to obtain his presence at trial. Further, he averred that the testimony of said witness was material and necessary and that it would not be “cumulative in nature or substance.”

In the hearing held on the motion, the following facts came to light. Two witnesses, Chuck Garbart and Johnny Jones, were missing. Although counsel for defense had never talked to Garbart and Jones, he did have knowledge of what Garbart’s testimony would be. The district attorney had a statement from Garbart and maintained that Garbart’s testimony would be essentially the same as other witnesses that would be called on behalf of the State.

The judge remarked during the hearing that if the two witnesses and their testimony were exculpatory and different from what other witnesses might say, and they (the two witnesses) could not be found, the case might be continued. The court added, however, that if said testimony was not exculpatory and was merely cumulative, the motion would be denied. The trial judge went on to say that, since defense counsel had not availed himself of any opportunities since the preliminary hearing in April to talk with the alleged missing witnesses, the court would be compelled to look at statements these witnesses had given to the police in order to determine if the testimony would be exculpatory or cumulative.

During the hearing Sgt. Gaut testified that he talked to both Garbart and Jones and that their statements were essentially the same as other witnesses who would be called to testify. Further, Gaut responded that the testimony of these two witnesses was not exculpatory.

Defense counsel countered that, according to Gaut, Jones, the proprietor of the lounge, would testify that the defendant had come to a back room where a poker game was in progress and that the victim had forcibly ejected him. According to defense counsel, this was material to their case of self-defense, and the other witnesses would not be testifying to the fact of Rogers’ intrusion on the poker game. At that point, the court ruled that these two witnesses’ testimony was not material or exculpatory and was cumulative. Further, the court commented that Garbart would be a stronger witness for the prosecution than he would be for the defense.

In our review of the record, we find that defense counsel had reasonable time in which to ascertain what the two absent witnesses’ testimony would be. Further, the court had testimony from Sgt. Gaut indicating that testimony from other prosecution witnesses would make Garbart’s and Jones’ testimony cumulative and not exculpatory.

In Alabama, the law is well settled that the matter of continuances in the trial of criminal cases is clearly within the trial court’s discretion and such exercise will not be disturbed unless there be a clear showing of abuse. Sparks v. State, 46 Ala.App. 357, 242 So.2d 403; U. S. v. Bolton, 438 F.2d 1219; Hannon v. State, 284 Ala. 487, 226 So.2d 90; Robinson v. State, Ala.Cr.App., 337 So.2d 1382; Sowells v. State, Ala.Cr.App., 339 So.2d 1090; Jenkins v. State, Ala.Cr.App., 337 So.2d 72.

Denials of such motions made due to absent witnesses are not considered an abuse of discretion where the absent witnesses’ testimony would be merely cumulative. Segers v. State, 283 Ala. 694, 220 So.2d 882; Divine v. State, 279 Ala. 291, 184 So.2d 628; Pounders v. State, 55 Ala.App. 204, 314 So.2d 123; Goodwin v. State, 27 Ala.App. 493, 175 So. 415.

The appellant relies heavily on Stovall v. State, 46 Ala.App. 181, 239 So.2d 323, wherein this court observed that where a showing of an absent witness’s testimony had been made and where that witness had been subpoenaed, the trial court should grant a defendant a continuance, until such time as the witness could be brought in. It reasoned that a showing was the only way to “alleviate denial of compulsory process

In Stovall v. State, supra, the showing consisted of an affidavit executed by the defendant outlining what an absent witness would testify to if she were present at trial. The trial court ruled that the showing was insufficient because the attorney had not talked to the witness.

In reversing the case, this court commented that, because the trial court ruled the showing was insufficient due to the fact that the defense attorney had not talked to the absent witness, it was in essence requiring the defense counsel to vouch for the truthfulness of the contents of the defendant’s affidavit. Therefore it was incumbent on the trial court to grant the defendant a continuance until such time as the witness could be brought into the court. It went on to say that there was no requirement in Alabama for the movant to vouch for the truth of what the witness would testify to if called. A showing was only to “alleviate denial of compulsory process for the witness” and therefore the lower court’s ruling was error.

Based on Stovall v. State, supra, where a motion for a continuance had been made in order to obtain an absent witness’s presence in court, and that motion had been denied, the trial court should either allow the defense to make a showing by way of an affidavit indicating what the absent witness would say if he were present to testify, or grant his motion for a continuance. The court in Stovall, supra, explained that the allowing of a showing by way of an affidavit was in no way an admission of the truth of what was contained in the showing. This was merely an admission that, had that absent witness been there, he would have testified as to what the affidavit said he would.

The present case can be distinguished from Stovall v. State, supra. Here the defense attorney was not required to vouch for the truthfulness of an affidavit executed by his client. He was afforded an opportunity in support of his own motion to make a showing. He had known the identity of the two absent witnesses some six months, but, as of the time of the hearing on the motion, had not talked to them. There was, however, testimony at the hearing of Sgt. Gaut which indicated that the testimony of the two absent witnesses would be substantially the same as the testimony of other witnesses to be called by the State.

In our view, Stovall v. State, supra, is not applicable in the present case because there was a proper showing that the testimony at the hearing on the motion indicated that the absent witness’s testimony would be cumulative.

In view of the foregoing, the trial court in denying the motion for continuance did not abuse its discretion.

Ill

Thirdly, the appellant complains that during jury selection the trial judge discharged a juror without the consent of the defendant. He maintains that this was in violation of defendant’s constitutional right to a struck jury, and that it was error.

We have reviewed and examined that portion of the record concerning the jurors in question and have found that, at the time jurors Ripples and Ferguson were excused, no objection was made by the defense attorney. In view of such, no alleged error is preserved for review. Williams v. State, 51 Ala.App. 1, 282 So.2d 349; Douglas v. State, 50 Ala.App. 602, 281 So.2d 652.

Under the facts of this case, had there been a proper objection, the court would not have been in error. The right to excuse jurors is given to the court by statute, T. 30, § 5, Code of Alabama 1940, Recomp. 1958; Code of Alabama 1975, § 12-16-5. The statute mandates that the trial court may excuse any juror if that juror is disqualified or exempt, or if in the determination of the trial judge some reasonable cause or purpose exists for excusing the juror. Further, under this section on abuse of discretion is shown when jurors are excused without defense’s consent. Mullins v. State, 24 Ala.App. 78, 130 So. 527.

The record clearly indicates that the trial judge, in exercising his discretion to excuse jurors, was fulfilling his duty to provide both the State and the defendant with a fair and impartial jury. In doing so he did not abuse the wide discretion granted to him for this purpose. Biggs v. State, 20 Ala.App. 449, 103 So. 706.

Under these circumstances, excusing the jurors was not error.

Iv

A fourth claim of error concerns the admission of evidence of specific statements made by the accused, following the shooting, while he was being detained by the police. The appellant insists that they were not part of the res gestae and were inadmissible.

During a voir dire hearing on the admissibility of these statements made by the appellant, Officer Stidham testified as follows:

“A What did he say?
“Q You said he said something?
“A He said, ‘You’re the man with the shotgun.’
“Q You’re the man with the shotgun?
“A Yes, sir.
“Q Did he say anything else to you?
“A Yes, sir.
“Q What did he say?
“A He said, ‘Watch your darkest corners when you arrive on a scene like that.’
“Q Did he say anything else?
“A Yes, sir, he did.
“Q What did he say?
“A He said I was lucky he — T didn’t have nothing against you or I would have killed you too.’
“Q Did he say anything else?
“A He said one other thing, I believe.
“THE COURT: What was that?
“A T got the man I wanted.’ ”

Whether or not the above statements are part of the res gestae is not important because the contents of these statements were not self-serving. Simmons v. State, 39 Ala.App. 477, 105 So.2d 691. Acts and declarations of an accused before or after the offense, whether a part of the res gestae or not, are admissible against him. Only when admitted for his benefit must they be part of the res gestae. Hoback v. State, Ala.Cr.App., 338 So.2d 439; O’Neal v. State, 53 Ala.App. 133, 298 So.2d 62; Mitchell v. State, 52 Ala.App. 174, 290 So.2d 241; Easley v. State, 56 Ala.App. 102, 319 So.2d 721.

All extra judicial admissions are prima facie involuntary and inadmissible, and the trial judge has the duty to determine their voluntary nature before admitting them. Hines v. State, 260 Ala. 668, 72 So.2d 296. The statements in the present case were not given in response to any question asked to the defendant, but were made freely of his own volition, a factor in itself, demonstrating the voluntary nature of the statements. Barnes v. State, 45 Ala.App. 6, 221 So.2d 399.

The test for the voluntary nature of an extra judicial confession or incul-patory statement is whether in the light of all the surrounding circumstances, the statement was free from inducement, threat or promise, either express or implied, which would have produced in the mind of the accused any fear of harm or hope of favor. Guenther v. State, 282 Ala. 620, 213 So.2d 679; Bass v. State, 55 Ala.App. 5, 312 So.2d 576; Bell v. State, 5 Cir., 367 F.2d 243.

V

Appellant insists that the court abused its discretion in not granting a continuance on the basis of a newspaper article concerning the case which appeared in the Birmingham News one day prior to jury selection. Appellant argues that such article would tend to inflame the minds of prospective jurors against those who are charged with crimes, and for that reason a continuance should have been given.

During the hearing on the motion for continuance, counsel for the defense made the following comments concerning the article.

“MR. WAITES: Motion for continuance based on an article from the Birmingham News yesterday.
“THE COURT: Article in the Birmingham News?
“MR. WAITES: Yes, sir. I think you have the original there. Don’t you have the original motion?
“THE COURT: You mean the Birmingham News is writing about this case? You mean this general article here?
“MR. WAITES: Yes, sir. That on the first and second page, and I have witnesses that would ask the Court to allow me to present on behalf of this motion. That’s the reason I asked which we were going to take up first.
“THE COURT: What witnesses?
“MR. WAITES: I have about five lawyers at this time and, of course, I was not aware of this until yesterday and I have not had an opportunity as you know, I was in Federal Court until 11:30 in the morning. I have not had an opportunity to contact and prepare to present witnesses on this motion this quickly.
“THE COURT: I’m not going to continue the case just because of this article.
“MR. WAITES: Are you denying me the right to present witnesses?
“THE COURT: If all the lawyer is going to say in his opinion nobody could get a fair trial because of this article.
“MR. WAITES: Judge, I have talked to—
“THE COURT: Unless they have some peculiar insight that other people are not privileged to.
“MR. WAITES: I have an offer to this Court, at least three people that I have talked to, and would proffer their testimony to say that based on the article that I have attached to the motion that this Defendant of this charge in their opinion could not get a fair and impartial verdict. I’m telling the Court that I was limited for time because of my being required to be in Federal Court this morning at 9:30, and I have been limited in obtaining—
“THE COURT: I’ll let the lawyers get up and say that. Call your first one.
“THE COURT: I thought you said you had five here.
“Mr. WAITES: I told you that I had contacted at least three lawyers about testifying.
“THE COURT: Jim Fullan and who else?
“MR. WAITES: No, I couldn’t get him. Fred Erben, Charles Purvis, Louis Wilkinson and Chuck Tarter. I walked into your chambers and asked you which motion we were going to take up because I had to round up some witnesses and you said let’s get at it. I have not had an opportunity to subpoena them. I have not had time. If I can have 30, 45 minutes.
“THE COURT: I don’t think we need to do that, Mr. Waites. All of them are good layers, honorable people, and I accept what they say, but I’m not going to continue the case because of this motion and because they would testify that this Defendant couldn’t get a fair trial in this case.
“MR. WAITES: Then I except to the Court’s ruling on the motion, and especially we except to the Court not allowing me to put witnesses on the witness stand.
“THE COURT: You’re telling me what they would say and I’m telling you if they would say that, no questions asked on cross examination, I would rule — that I would not continue the case.
“MR. WAITES: I’m saying based on what I have been told they would say this Defendant could not get a fair trial in this Court this week.
“THE COURT: Okay.
“MR. WAITES: And we except to the Court’s ruling.”

Newspaper publicity concerning a particular crime does not, in, and of itself, constitute grounds for continuance. Littlefield v. State, 36 Ala.App. 507, 63 So.2d 565. A denial of a motion for continuance, because of unfavorable publicity, is not an abuse of discretion where the concerned articles are merely of a narrative nature. Collins v. State, 234 Ala. 197, 174 So. 296. See Jenkins v. State, Ala.Cr.App., 337 So.2d 76.

A review of the newspaper article in question was a general press release concerning the case. Such a news item was not of such an inflammatory nature as to require the trial judge to grant the motion for a continuance in order to protect the rights of the defendant.

The defense counsel had ample opportunity to question the prospective jurors concerning their knowledge of what was involved in the newspaper article and what prejudice, if any, it might have caused in their minds. See Murphy v. Fla., 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589.

VI

The last assignment of error concerns the admissibility of statements by the defendant which are claimed to have been made while the defendant was in an intoxicated “manic condition” thereby, rendering him unconscious of such statements.

The appellant cites us to four incidents in the record which he relies on to show the defendant’s intoxicated condition.

“Q He appeared to be intoxicated at that time, didn’t he?
“A He was drinking.
“Q Well, didn’t he appear to be intoxicated in your opinion?
“A Well, it was hard to say. I could tell that he was drinking.
“Q All right, sir.
“THE COURT: Let me ask you this, sir. This is a hypothetical question. If you had seen him on the street would you have arrested him for being a public drunk?
“A It’s a possibility.”
“Q I’ll ask you if I didn’t ask you, ‘As a matter of fact, he was babbling to a certain extent?’ And you didn’t say, ‘Yes, sir, he was talking. He appeared to be very excited and he was talking very freely?’
“A Yes, sir, I believe I did say that.
“Q All right. You could smell whiskey on him, couldn’t you?
“A Yes, sir, I could.
“Q And he told you that he had been drinking whiskey most of the day, didn’t he?
“A Yes, he did.
“VOIR DIRE EXAMINATION
“Q. All right. Based upon what you saw at that time and your observations, was he intoxicated?
“A No, sir.
“Q Do you know whether or not you could tell he had been drinking?
“A Yes, sir, I could tell that he had been drinking.”

In Edwards v. State, 56 Ala.App. 405, 321 So.2d 744, this court held that:

“In this jurisdiction only proof of intoxication amounting to ‘mania’ will render a confession inadmissible.”

A lesser state of intoxication would not render a confession inadmissible. Balentine v. State, Ala.Cr.App., 339 So.2d 1063; Patterson v. State, 56 Ala.App. 359, 321 So.2d 698; Carter v. State, 53 Ala.App. 43, 297 So.2d 175.

In order for intoxication to render a confession inadmissible, it must be shown that the mind would have been impaired substantially. Ray v. State, 39 Ala.App. 257, 97 So.2d 594.

Intoxication which would affect the voluntariness of the confession is a question of fact which the trial judge must first determine before allowing it to be submitted to the jury for their consideration. Anderson v. State, 45 Ala.App. 653, 235 So.2d 902.

Where ample evidence, even though conflicting, exists from which the trial judge could conclude that the appellant was not intoxicated to the extent of mania, the admission of a confession for a jury’s consideration is not an abuse of discretion.

The testimony in this case indicated that the man may have been intoxicated and possibly could have been arrested for public drunkenness but his intoxicated condition did not reach the stage of mania. Woods v. State, 54 Ala.App. 591, 310 So.2d 891. As in Anderson, supra, there was no abuse of discretion shown in this case. The evidence indicates that the appellant was in a somewhat emotional state after he had learned that he had shot the wrong man, but nowhere does it show that he was not sufficiently in control of his faculties.

Due to the fact that no proof of mania was shown, as a result of this defendant’s intoxication, the trial court’s decision in admitting these statements was correct.

We have examined the record and transcript of evidence in this case and have found no error, therefore, the judgment is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte Richmond P. ROGERS, Jr.
    78-90.
    Supreme Court of Alabama.
    Dec. 22, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Bobby Gene TURNER v. STATE.
    8 Div. 102.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.
    Myron K. Allenstein, Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen. for the State, appellee.
   BOWEN, Judge.

The appellant pled guilty to^the offense of burglary in the second degree. The court accepted his plea and sentenced him to three years’ imprisonment on February 15, 1978. On that same date a probation hearing was scheduled and eventually held on May 5, 1978. Probation was denied and on May 11,1978, the appellant gave written notice of appeal “from his conviction and notice of appeal from his denial of probation”.

Notice of appeal must be filed in the trial court within forty-two days after the entry of the sentence appealed from. Rule 4(b), Alabama Rules of Appellate Procedure. This is a jurisdictional requirement.

A request for probation following sentencing does not extend the time for appeal from a judgment of conviction.

A ruling on a motion to permit a defendant to withdraw his plea of guilty is not an appealable order. Dawson v. State, 37 Ala.App. 16, 66 So.2d 567, cert. denied, 259 Ala. 205, 66 So.2d 568 (1951).

The original granting or denial of probation is entirely within the discretion of the trial judge and is not reviewable on appeal from a judgment of conviction. Driggers v. State, 344 So.2d 226 (Ala.Cr.App.1977); Hughes v. State, 45 Ala.App. 250, 228 So.2d 862 (1969).

For the reasons expressed above this appeal is dismissed.

DISMISSED.

All Judges concur.


author: ALMON, Justice.

text:
    In re: Bobby Gene TURNER v. STATE of Alabama. Ex parte Bobby Gene TURNER.
    78-99.
    Supreme Court of Alabama.
    Dec. 22, 1978.
    Myron K. Allenstein, Gadsden, for'petitioner.
    No brief for the State.
   ALMON, Justice.

WRIT DENIED.

In denying this petition for writ of certiorari we do not wish to be understood as precluding the petitioner from asserting a claim under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), in a petition for writ of error coram nobis in the trial court.

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


author: HARRIS, Presiding Judge.

text:
    Jerry BAGONY v. CITY OF BIRMINGHAM.
    6 Div. 708.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied Dec. 19, 1978.

      Jesse W. Shotts, Birmingham, for appellant.
    W. O. MaeMahon, III, Asst. City Atty., Birmingham, for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted in Birmingham Municipal Court for Driving a Vehicle While Intoxicated, in violation of Section 34-56 of the General Code of the City of Birmingham, Alabama, 1964, as amended. Subsequently, in a trial de novo in Jefferson Circuit Court, appellant was convicted by a jury of said offense and fined three hundred dollars. The trial court, adjudging appellant guilty in accordance with the verdict, sentenced appellant to pay the jury imposed fine and an additional punishment of ten days at hard labor.

A statement of the facts is set out below, appellant having preserved the sufficiency of the evidence for review on a motion for new trial, which was denied.

Norman A. Stapp testified that he was a policeman for the City of Birmingham. In eight years of experience on the force, Stapp had occasion to see persons in various stages of intoxication and drunkenness. On September 10, 1977, at approximately 8:45 a. m., Stapp, in his blue and white police vehicle, received a radio message. Immediately thereafter, Stapp observed appellant driving a blue Volkswagen Rabbit, approaching Stapp from behind. Appellant then passed Stapp and was clocked by Stapp for six blocks at a speed of sixty miles in a posted forty mile per hour speed zone. Stapp further testified that appellant’s vehicle was weaving as it passed him. After clocking appellant’s speed, Stapp turned on his siren and blue light and appellant pulled over and stopped.

Appellant got out of his car and presented his driver’s license to Stapp. Stapp testified that appellant “had a strong odor of an intoxicant on his breath,” that his walk was unsteady, and that his speech was slurred. In Stapp’s opinion, appellant was intoxicated and Stapp placed him under arrest for driving while intoxicated.

Approximately an hour after arresting appellant a wrecker towed appellant’s car in. During this period of time, appellant had nothing to eat, drink, or smoke. Because appellant had told him that he had been beaten up, Stapp took appellant to Cooper Green Hospital for treatment. However, Stapp noticed no injuries on appellant’s person. At the hospital, appellant refused treatment and signed a “release form.” Stapp then took appellant to Birmingham City Jail. After a test conducted on appellant in his presence, Stapp returned to his regular duties.

The City then introduced into evidence, without objection, the rules and regulations of the Alabama State Board of Health pertaining to the Alabama Chemical Intoxime-ter Test. The trial court also took judicial notice of Section 34-56, General Code of Birmingham, 1964, as amended, which designates this procedure as the test to be given in intoxication charges.

Howard Calton testified that he was employed by the Birmingham Police Department and that he was the Custodian of Records of Photo-Electric Intoximeter tests, including checks of those machines by members of the State of Alabama Department of Public Safety. Calton further testified that these records reflected that Machine number 174 was checked on August 11, 1977, at 12:20 p. m., by Sergeant L. H. Wikingstad, an Alabama State Trooper. Appellant objected to the admission of this record entry into evidence, on the ground that it contained hearsay, Sergeant Wiking-stad being the only person who could testify to such information. The trial court overruled appellant’s objection. Calton further testified that this record was in his care, custody, and control, and that these records were kept in the regular course of business.

Frank E. Williamson testified that he was a police officer for the City of Birmingham, receiving and discharging prisoners at the jail. Additional duties included administering Photo-Electric Intoximeter tests to subjects. Williamson explained that he was trained to operate the intoximeter in Montgomery, Alabama, during a course which lasted a week. Williamson had conducted this test approximately two hundred times.

On September 10, 1977, Williamson ran a “P.E.I.” test on appellant using machine number 174. Officer Stapp witnessed the test. Additionally, Williamson did not observe appellant eat, drink, or smoke anything before the test was administered. Appellant objected to the reading of the test results on the ground that the rules and regulations of the State Health Department had not been met. This objection was overruled, and Williamson testified that the alcohol content in appellant’s blood was .17 percent. Williamson further testified that he was duly licensed to operate an intoxim-eter and produced his license from the Alabama State Board of Health in Court. At this time the City introduced a record of appellant’s P.E.I. test results without objection. Williamson’s testimony concluded the City’s case and the City rested.

Appellant testified that, on the evening of September 9, 1977, he went to Bank’s Lounge where he had seven or eight drinks of vodka. After appellant left the bar, at approximately 2:30 a.m. the next morning, a lady asked him to walk her home. Shortly thereafter appellant was attacked and hit on the head. Appellant further testified that he awoke at a quarter till nine that morning to find a fireman administering oxygen to him. Appellant jumped up and ran to his car because he was scared. When appellant was pulled over by police, he was en route to a hospital because his head and ribs were hurting.

Appellant further testified that he was asthmatic and that he had taken Primatene Mist for this condition for ten years. At this time appellant introduced a bottle of the medicine in evidence. After appellant was pulled over he took some of the Mist in back of the police car. Appellant kept his medication with him the entire time he was in jail.

On cross-examination, appellant testified that he had not eaten since the night before, prior to going to Bank’s Lounge. He said there might have been a stale sandwich in his car left over from work. Appellant did stop on his way to the hospital, before he was arrested, to buy three corn dogs. After the P.E.I. test at the police station, appellant ate the corn dogs.

Appellant told a weird story concerning the events the night' he went to Bank’s Lounge. He testified that he had six thousand seven hundred dollars in one dollar bills in his socks and three hundred and eighty dollars in his right front pants pocket when he left the lounge. Though he claims he was knocked unconscious by an unknown assailant as he was walking a strange woman to her home, the money was still on his person when he was arrested. The officers took possession of the money when appellant was put in jail and returned it to him when he was released.

In rebuttal the City called J. H. Jones, a police officer for the City of Birmingham. On September 10,1977, Jones arrived at the scene of appellant’s arrest, after appellant had already been pulled over. There Jones observed three corn dogs in the appellant’s car. Jones smelled a strong odor of alcohol about appellant’s breath and observed appellant staggering. In Jones’ opinion, appellant was intoxicated. Jones further testified that appellant ate, drank, and smoked nothing up to the time the P.E.I. test was administered.

Appellant first contends that it was error to introduce the intoximeter log book showing a check of machine number 174 in that it contained hearsay information. Here there was no error since the record was admissible under Section 12-21-43, Code of Alabama 1975. That Section provides,

“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction or event if it was made in the regular course of any business and it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term, ‘business’ shall include a business, profession, occupation and calling of every kind.”

Secondly, appellant urges the court to find that the administration of medicine containing alcohol would rebut the presumption raised by the results of the PhotoElectric Intoximeter test and hold the results of the test inadmissible. There was no error in admitting the results of the P.E.I. test in the case at bar. The evidence shows that a proper predicate for the result was laid and that all prerequisites for admissibility were present. Patton v. City of Decatur, Ala.Cr.App., 337 So.2d 173, reversed, Ala., 337 So.2d 321. Only appellant testified that he used the medication Primatene Mist before the test was conducted, all law enforcement officers testifying that appellant had nothing to eat, drink, or smoke from the time of arrest till after the P.E.I. test was administered. Appellant’s testimony that he had taken medication after time of arrest and that he was not intoxicated, which was in conflict with the City’s evidence, presented the question of appellant’s intoxication vel non to the jury. Dowdy v. State, 39 Ala.App. 178, 96 So.2d 687. Numerous other authorities may be found in Alabama Digest, Automobiles, Section 356.

Finally, appellant contends that the result of the P.E.I. test given him is inadmissible because the City tested the blood alcohol content using a standard of grams per one hundred cubic centimeters. Section 32-5-193(a)(4), Code of Alabama, 1975, specifies that the amount of alcohol in blood shall be weighed in milligrams per one hundred cubic centimeters. Appellant contends that the City adopted a less stringent measure of proof of intoxication than has the State. Appellant’s argument is specious at best, since the conversion from grams to milligrams requires only the move of a decimal point, which does not change the amount of alcohol in the blood.

A careful search of the record reflects no error injuriously affecting the substantial rights of appellant, and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Leon L. FRAZIER, alias v. STATE.
    4 Div. 671.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      R. A. Prestwood of Prestwood & Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen. for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit judge.

The grand jury of Covington County returned an indictment against the appellant, Leon L. Frazier, alias Leon LaDon Frazier, alias LaDon Frazier, charging him with assault of Mary Lou Frazier, with intent to murder her. The appellant entered a plea of not guilty. A jury found the appellant guilty of assault and battery and assessed a fine of five hundred dollars against him. The trial court duly assessed a fine of five hundred dollars and cost against the appellant and duly sentenced him to imprisonment in the county jail for six months. Appellant’s motion for a new trial was denied and he appeals to this Court.

This appeal was submitted on briefs. The appellant was represented by counsel of his choice at all proceedings in the trial court and is so represented in this Court.

Appellant contends that his conviction should be reversed because the trial court would now allow him to state to the jury on his opening statement what he expected his evidence to show concerning the bias of state’s witness, Mrs. Mary Lou Frazier, and its depth and intensity against the appellant.

The scope and extent of an opening statement to a jury is a matter that rests within the sound discretion of the trial judge and his rulings will not be reversed by this Court unless an abuse of discretion is shown by the record. The record contains only fragments of appellant’s opening statement to the jury. We have searched the entire record and find no abuse of discretion by the trial judge to justify a reversal. Cooper v. State, Ala.Cr.App., 348 So.2d 532; Stewart v. State, 245 Ala. 511, 17 So.2d 871; Burns v. State, 226 Ala. 117, 145 So. 436; Pope v. State, 174 Ala. 63, 57 So. 245.

The appellant contends that the trial court erred to appellant’s prejudice by unduly restricting his right to cross-examine state’s witness, Mrs. Mary Lou Frazier, the injured party.

It appears from the record that during the cross-examination of state’s witness, Mrs. Mary Lou Frazier, the following occurred:

“Q. Well, now, you were — before this trial, you were placed under arrest for assault with a deadly weapon
MR. MCGILL: We object to this.
THE COURT: Yes, sustained.
MR. PRESTWOOD: This is for bias, if the court, please. And we say that if we'can’t show that this happened, that it would possibly bias the witness against the Defendant, that cross-examination has lost its meaning in the State of Alabama.
THE COURT: I sustain as to any charges made.
Q. You were placed under bond, weren’t you?
MR. MCGILL: We object to this, Your Honor.
THE COURT: Yes, I sustain.”
And again we quote from the record:
“Q. All right. Now, then the state of your feeling toward La Don is very, very vicious and bad, isn’t it?
A. It shore is right now, if you were in my feelings, you would be feeling the same way.”

A party to a criminal prosecution may elicit from a prosecuting witness on cross-examination any fact tending to show bias against him or that the witness is interested in the outcome of the prosecution. The facts that the appellant had caused the witness to be placed under arrest or placed under bond are facts having a tendency to create bias. Ferguson v. State, 40 Ala.App. 389, 114 So.2d 302; Lanier v. State, 43 Ala.App. 447, 192 So.2d 256.

In accordance with Rule 45 of Appellate Procedure we have made an examination and review of the entire record, we are of the opinion that it does not appear that the error complained of has injuriously affected substantial rights of the appellant. Cary v. State, Ala.Cr.App., 349 So.2d 616; Wells v. State, 292 Ala. 256, 292 So.2d 471, reversed and remanded, 52 Ala.App. 356, 292 So.2d 475.

Appellant also contends that the trial court erred to his prejudice by sustaining state’s objection to a question propounded by appellant’s counsel on cross-examination of state’s witness, Deputy Sheriff, Howard Easley, as to whether he considered a hand gun in evidence to be material evidence in this case. We quote from the record:

“Q. Well, wouldn’t that be an item of evidence from what you had heard just from Mr. La Don Frazier about that is when the tussle started, when the gun was brought out? Wouldn’t you consider that material evidence in the case?
MR. MCGILL: We object to what he thinks is material.
THE COURT: Yes.”

The court allowed unlimited cross-examination by counsel of appellant with reference to the hand gun.

Justice Lawson, in the case of Seals v. State, 282 Ala. 586, 213 So.2d 645, said:

“It is provided by a statute of this state that the right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him. Sec. 443, Title 7, Code 1940. But the extent of cross-examination is a matter addressed to the sound discretion of the trial court, not reviewable except for abuse. Bosarge v. State, 273 Ala. 329, 139 So.2d 302; Roberson v. United States, 5 Cir., 249 F.2d 737, 72 A.L.R.2d 434, cert. denied, 356 U.S. 919, 78 S.Ct. 704, 2 L.Ed.2d 715.”

We hold that this record shows no abuse by the court of its discretion in sustaining state’s objection to the foregoing question. Seals v. State, supra; Allen v. State, 55 Ala.App. 549, 317 So.2d 517; Waters v. State, Ala.Cr.App., 360 So.2d 358.

Appellant contends in his brief that the trial court erred to his prejudice by overruling his objection to a question propounded by state’s counsel on cross-examination of appellant’s witness, Mr. D. Frazier, the father of appellant, as to whether witness was too loaded to know where appellant’s wife got a camera from. We quote from the record:

“Q. Where did she get the camera from?
A. I don’t know, out of the car .
Q. Out of the car? She says she got it out of the house, do you know where she got it?
A. No, I don’t know where she got it.
Q. You were about too loaded to know, weren’t you?
A. No, sir. I .
MR. PRESTWOOD: We object to the form of that question.
THE COURT: Overruled.”

We hold that the question was harmless because of the negative reply. Odom v. State, Ala.Cr.App., 356 So.2d 242; Baldwin v. State, 282 Ala. 653, 213 So.2d 819.

Appellant argues in his brief that the trial court erred by allowing the court reporter to play back a tape recording of the court’s oral charge to the jury without first establishing that it was, in fact, a correct recording and by doing so emphasized a portion of the trial court’s original charge to the jury.

The facts in the record are; there was no objection by the appellant to the court’s oral charge before the jury retired at 5:35 P.M. to the jury room to deliberate on the case. At 6:30 P.M. the jury returned to the courtroom and requested the court to explain the law again on the charges in the indictment. The court then allowed the court reporter to play back the entire tape of his charge. At the conclusion of the playing of the tape recording of the court’s oral charge, the jury left the courtroom and resumed its deliberation at 6:45 P.M.

Appellant made no objection to the court’s charge to the jury before it retired for its deliberation at 5:35 P.M. The appellant made no objections to the court’s allowing the tape recording of his charge to the jury to be played back before the jury retired for its deliberation at 6:45 P.M.

The tape recording was made in the presence of the court, it was played back in the presence of the court, and its authenticity was not questioned before the jury retired from the courtroom for its deliberation. We hold that in the absence of a timely objection there is nothing for this Court to review. Cox v. State, 280 Ala. 318, 193 So.2d 759; Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782; Owens v. State, 53 Ala.App. 553, 302 So.2d 240; Certiorari Denied, 293 Ala. 769, 302 So.2d 243.

We have searched the entire record for errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

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

The judgment below is hereby affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON, DeCARLO and BOOKOUT, JJ., concur.

BOWEN, J., concurs in result.


text:
    James M. RUSSELL, alias v. STATE.
    6 Div. 749.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      Joel L. Sogol, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen. for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the second degree and his punishment was fixed by the jury at fifteen years in the penitentiary. At arraignment, in the presence of his counsel, appellant entered a plea of not guilty. Following sentencing, he gave notice of appeal. An appeal was ordered in forma pauperis, wherein appellant is represented by trial counsel.

Appellant was charged by indictment with the unlawful killing with malice aforethought but without premeditation and deliberation of James L. “Pop” Loden, by pushing, throwing or otherwise causing him to fall into a body of water or the Black Warrior River whereby he drowned.

Appellant alleges two points of error in the actions of the trial court: (1) That the trial court erred in refusing to charge the jury on the law of accomplices and (2) that it was reversible error to deny appellant’s request to examine the portion of a police report used by a witness to refresh his recollection. The sufficiency of the evidence is also raised by means of appellant’s motion to exclude the State’s evidence and request for the affirmative charge, both of which were denied by the trial court.

The chief witness for the State was Gail Cooley. Ms. Cooley testified that, on September 10, 1977, she and appellant, along with “Pop” Loden, Cliff Holmes and Sonny Bishop, left the Crescent Rooms Hotel in Bessemer around 1:30 or 2:00 in the afternoon. The five left the hotel in Cliff Holmes’ car and Sonny Bishop was driving. They stopped and bought beer and wine, and spent the afternoon “riding and drinking.”

According to the testimony of Ms. Cooley, they ended up in Tuscaloosa and went to a “place on the river.” Bishop told Ms. Cooley, appellant and Loden to get out of the car and he and Holmes drove down the road, leaving the three at the river. While they were sitting there drinking and waiting for the others to return, the deceased began complaining and appellant told him to shut up and that if he didn’t shut up, he was going to throw him in the river. Ms. Cooley testified that Loden continued to complain and appellant jumped up, grabbed him by his ankles, dragged him over, and threw him in the river. She ran over, saw him in the water, and started screaming. At that point, Sonny Biship came running back to the river.

Ms. Cooley testified that after James Russell threw the victim into the river, he said, “Let him drown.” Then he picked up his bottle of wine, walked back over to where he had been sitting, and continued to drink. Ms. Cooley testified that she was still screaming and that Sonny Bishop told her there was nothing they could do. She and Bishop walked back to the car and left with Cliff Holmes, leaving appellant at the scene. Later that night she reported the incident to the police and returned to the scene on the following day with Officer Don Lake, an investigator from Tuscaloosa County.

On cross-examination, Ms. Cooley denied having argued with the deceased, “Pop” Loden, that afternoon and stated that she did not hear appellant argue with Mr. Lo-den. She testified that she drank between twelve and fourteen beers during the course of the afternoon and that she was five feet, four inches tall, and weighed one hundred and forty pounds. She denied that she told Loden to shut up or she would have someone throw him in the river, and that appellant had actually said, “Let him swim,” not “Let him drown.” She stated that all five members of the group were “pretty drunk,” and there were parts of the day she didn’t remember at all.

Dr. Henry Santina, pathologist, testified that, on September 11, 1977, he performed an autopsy and identified photographs as those taken of the body at the postmortem examination. The external examination showed abrasions and contusions consistent with those which might be sustained rolling down a rocky embankment, and there was a bruise on the head. The cause of death was asphyxia, consistent with drowning. Blood and tissue samples were turned over to the State Toxicologist.

On cross-examination Dr. Santina testified that a person with a blood alcohol level of .23 would be quite drunk and that ability to swim would be substantially impaired. He further testified that consumption of twelve to fourteen beers in a three and a half hour period would affect the perception and coordination of a five foot, four inch tall, one hundred and forty pound female.

Jim Britton, State Toxicologist, testified that the results of the test on the blood sample received from Dr. Santina at the postmortem examination showed a blood alcohol level of .23, which would indicate intoxication. On cross-examination, Britton testified that a female weighing one hundred and forty pounds and five feet four inches tall would have a blood alcohol level of approximately .33 after consuming twelve to fourteen beers in three and one-half hours.

Ron Fulgham, Deputy Sheriff of Tuscaloosa County, testified that on September 11, 1977, around 2:45 a. m., he and another officer saw appellant, James Russell, at Daniel’s Creek on the Warrior River. He appeared to be drunk. The officers took appellant to the Tuscaloosa County Jail, but he was not arrested. Appellant went with the officers voluntarily.

Don Lake, Deputy Sheriff of Tuscaloosa County, testified that he went to Daniel’s Creek on September 11,1977, around 8:00 a. m., with other officers and Ms. Cooley. Lake made photographs of the scene, including drag marks leading to the river embankment and down to the river. He was present when the body was removed from the river. Officer Lake identified a photograph taken at the postmortem examination as that of the body removed from the river.

Daniel Branton, son-in-law of the deceased, identified the photograph previously identified by Officer Lake and Dr. Santina as that of the deceased, Larkin Loden.

Gail Cooley was recalled for further cross-examination and denied telling Sonny Bishop on the drive back to Bessemer that appellant “must have pushed Pop in the river” because she didn’t think she did.

Sergeant Tom Eddings, of the Jefferson County Sheriff’s Department, testified for the defense that, some time after 1:00 a. m. on September 11, 1977, he saw Gail Cooley at the Bessemer Police Department. She appeared to be intoxicated and told Eddings what had happened the previous day between appellant and the deceased. Sergeant Eddings testified that Ms. Cooley had difficulty relating the facts and appeared confused. On cross-examination, Eddings testified that her story never varied as to who actually pushed Loden in the river.

The testimony of Henry “Sonny” Bishop was substantially the same as that of Gail Cooley regarding the events of September 10, 1977, except that he did not witness the alleged drowning. He further testified that Ms. Cooley told him that “she had told Pop to shut up or she was going to have Jim throw him in the river.” It was Bishop’s opinion that all those present, including himself, were intoxicated.

Appellant, James Russell, testified in his own behalf. His version of the events of September 10, 1977, was substantially the same as previous witnesses until the point at which he got out of the car at the river. It was appellant’s testimony that he got out of the car, sat down, drank some wine, and went to sleep. The others returned and said they would be back later to pick him up. The next thing he knew, the deputies came to pick him up.

Appellant testified that he did not throw anyone into the river or see anyone thrown in the river, and that he was “pretty well intoxicated.” On cross-examination, appellant testified that only he got out of the car at the river and that Gail Cooley and Loden left with the others.

Sonny Bishop was recalled for further cross-examination. He testified that appellant, Gail Cooley, and Pop Loden all got out at the river, and he and Cliff Holmes left together.

The State presented eyewitness testimony that appellant threw “Pop” Loden into the river, causing him to drown. The testimony of appellant controverted the eyewitness account. Conflicting testimony presents a question for the jury as to the defendant’s guilt. The jury resolved this issue against the appellant. Morris v. State, 47 Ala.App. 132, 251 So.2d 629.

Appellant excepted to the Court’s oral charge due to failure to charge on the law of accomplices and requested the following charges, which were refused:

“DEFENDANT’S REQUESTED CHARGE NO. 2
“I charge you, members of the jury, that you can not convict James Russell on the uncorroborated testimony of Gail Cooley.”
“DEFENDANT’S REQUESTED CHARGE NO. 6
“The Court charges you, members of the jury, that the Defendant cannot be convicted upon the testimony of Gail Cooley unless corroborated by testimony of witnesses as to material elements of the offense, and that unless you find such corroboration you may not find the Defendant guilty based on that testimony of Gail Cooley.”

Appellant contends the trial court erred in refusing requested charges 2 and 6.

The test for determining whether a witness is an accomplice is whether he or she could have been indicted and convicted for the offense charged, either as principal or accessory. Miller v. State, 290 Ala. 248, 275 So.2d 675. This determination is a question of law initially directed to the trial judge. Strange v. State, 43 Ala.App. 599, 197 So.2d 437. On the other hand, where there is conflicting evidence on the question of complicity, a question of fact is presented for the jury. Leonard v. State, 43 Ala.App. 454, 192 So.2d 461; Fairbanks v. State, 46 Ala.App. 236, 239 So.2d 908.

The only evidence presented at trial tending to show that Gail Cooley was an accomplice was the testimony of defense witness “Sonny” Bishop that Ms. Cooley had told the deceased to “shut up or she was going to have Jim (appellant) throw him in the river.” This evidence was in conflict with Ms. Cooley’s testimony that it was appellant who told Loden to “shut up or I’ll throw you in the river.”

This issue was submitted to the trial court on a motion to exclude the State’s evidence as based on the uncorroborated testimony of an accomplice. The Court found that evidence demonstrating complicity had not been presented and overruled the motion.

The burden is on the defendant to show that another person was an accomplice to the charged crime. There is absolutely no evidence even tending to show that Ms. Cooley was an accomplice to this crime of murder. After appellant dragged the victim down the embankment and threw him in the water, Ms. Cooley screamed for help and that was her only connection with this crime. Sharpe v. State, 51 Ala.App. 534, 287 So.2d 245; Snowden v. State, 211 Ala.App. 14, 165 So. 410; Davis v. State, 257 Ala. 447, 59 So.2d 592.

The trial court did not err in refusing appellant’s requested charges based on the assumption that Ms. Cooley was an accomplice as a matter of law. According to appellant’s own testimony he did not throw the victim in the water and he did not know the deceased was thrown in the water.

Appellant further contends that the trial court erred in refusing to allow him to examine that portion of the investigation file referred to on direct examination by Officer Don Lake to refresh his recollection. Officer Lake had with him on the witness stand his investigation file, consisting of some thirty to fifty pages. On cross-examination, Lake testified that he had referred to the first page of the report, which was a synopsis of the file, and to the page concerning the autopsy. Appellant requested to examine the pages referred to by Lake.

The witness was examined outside the presence of the jury and it was determined that he referred to his report to refresh his memory concerning what time he received the call to go to the scene, when the autopsy took place, and who was present. The Court refused to allow appellant to inspect the report and appellant excepted to this ruling.

For a better understanding of the issue presented we quote from the record:

“CROSS-EXAMINATION BY MR. SO-GOL:
“Q. Don, during the case of your testimony — during the course of your testimony on direct, did you refer to your case report?
“A. Yes, sir, I have.
“MR. SOGOL: Your Honor, at this time we would request an opportunity to observe those things which Mr. Lake has referred to in his report.
“MR. HUDSON: Your Honor, we object to any search of the officer’s report. We would not object to him looking at any pages that the officer said that he referred to to refresh his memory in this case.
* * * * * *
“THE COURT: We’re going to take up the matter of the request to examine the case report of the officer made just prior to our recessing for lunch. Alright, if you would, state your motion again, Mr. Sogol.
“MR. SOGOL: Your Honor, during the course of direct testimony, I observed Officer Lake referring and going through his case report. I have no way of knowing exactly which pages he referred to or anything like that. I would like the opportunity to go over the report for cross-examination at this point. We feel that since he has used the report to refresh his memory, I have a right to look at it.
“THE COURT: You have anything to ask him, Mr. Smith?
“MR. SMITH, Yes, sir.
“EXAMINATION BY MR. SMITH:
“Q. Don, did you use any part of your report, a summation or a summary of your own work product when you were [on] the stand?
“A. The only thing I looked at was the first page, a synopsis, and most of my looking through here was in anticipation of questions to come. I was trying to prepare myself for questions to come. And the only other page I looked at was the part concerning the autopsy. I wasn’t exactly sure of the time when the autopsy took place, and that’s what I was looking for.
“Q. Those are the only pages that you looked at?
“A. Yes, sir, I looked at the first page of the synopsis to determine exactly when the calls came in, that information, and I further looked to see the time as to when the autopsy was and who was present at the autopsy.
“Q. Alright.
“THE COURT: Alright, how many pages are contained in that report, Mr. Lake?
“MR. LAKE: They aren’t numbered, somewhere in the vicinity of thirty to fifty.
“THE COURT: Pages?
“MR. LAKE: Yes, sir.
“THE COURT: As I understand from your testimony, that you referred to them specifically a couple of times to get dates and times?
“MR. LAKE: Yes, sir, I looked at two different pages specifically. I had to turn through the whole thing. This thing is not in exact order as I laid it out, so when the secretary typed it up, she had some things that are not in context, and I had to look through the whole thing to find what I was looking for, but I looked specifically at two pages, two different pages.
“THE COURT: That was for date and time?
“MR. LAKE: Yes, sir, and to determine who was present at the autopsy.
“MR. SOGOL: Your Honor, I believe that Don has stated as far as looking at that particular point, he looked with reference to the autopsy thing to see who was there, but I believe he’s also stated that he looked at the first page of the synopsis. Was that merely to get a date or to refresh your recollection?
“MR. LAKE: That was merely to refresh my recollection the time, the times that the call came to me.
“THE COURT: Well, I’ll overrule the request. I don’t think an isolated check would entitle you to peruse a thirty to fifty page work product.
“MR. CHANDLER: Your Honor, could we ask a couple more questions.
“THE COURT: Yes, sir.
“EXAMINATION BY MR. CHANDLER:
“Q. Don, you testified that you looked through the report in anticipation of questions that you expected were forthcoming?
“A. Yes, sir.
“Q. And was that during the entire time that you were on the stand, or the majority of the time?
“A. The question’s not exactly clear, Mr. Chandler.
“Q. Well, you just testified that you had looked through, that you had looked through your report on occasion in anticipation of questions that you thought would be forthcoming, is that correct?
“A. What I was concerned with was the time of my notification and the time of the autopsy, were the only two things I wasn’t exactly sure of, and I was anticipating being asked those specific questions.
“Q. Alright. And is that the only two things that you refreshed your remembrance of?
“A. Yes, sir.
“MR. CHANDLER: That’s all.
“THE COURT: Alright, I believe the defense has a copy of the autopsy report, is that not correct?
“MR. SOGOL: Yes, sir, we also have a copy of the statement which Mr. Lake took from Mr. Russell.
“THE COURT: Alright, I’ll overrule the request to inspect Mr. Lake’s report.
“MR. SOGOL: We would respectfully except, Your Honor.”

It is to be noted from the above quoted excerpts that appellant had been furnished copies of the autopsy report and appellant’s statement. Officer Lake did not testify to any other material matters relating to the offense for which appellant was on trial that were in any manner harmful to him.

As this Court said in Cooks v. State, 50 Ala.App. 49, 276 So.2d 634:

“While it is true that a court’s refusal to permit defense counsel to see and examine a memorandum used by the witness on the stand to refresh his memory constitutes reversible error, (McMurtrey v. State, 44 Ala.App. 658, 219 So.2d 414; Henry v. State, 46 Ala.App. 175, 239 So.2d 318) yet the rule is subject to reason and the whole of the record convinces us that there was no error in this ruling of the Court. . . . ” (Emphasis supplied)

We hold the trial court was correct in not allowing appellant to make an unwarranted excursion into the work product of the investigating officer in this case, which consisted of thirty to fifty pages, when he referred to his report on the witness stand for only two innocuous purposes, viz., to refresh his memory as to the time the call relative to the crime was received by him and to determine who was present at the autopsy.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Junior KNOX v. STATE.
    6 Div. 767.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Michael Cornwell, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted for rape and sentenced to twenty-five years’ imprisonment. Both at trial and on appeal he is represented by the Public Defender of Tuscaloosa County.

I

Initially the appellant contends that Section 12-21-203, Code of Alabama 1975, unconstitutionally restricts his right of confrontation because it renders inadmissible evidence relating to the past sexual behavior of the complaining witness in prosecutions for criminal sexual conduct. The claim of unconstitutionality was initially advanced in the motion for new trial.

There are two specific instances where the appellant alleges he was unduly restricted in his cross examination of the prosecutrix. The prosecutrix testified that shortly before midnight she parked her car near the railroad tracks and was waiting for her boyfriend, David Wheeler, to get off from work when she was attacked and ravished by the appellant. Defense counsel attempted to show that she “went to the train tracks that night looking to have an affair”. However the trial court sustained the state’s objection. The second instance of alleged error occurred when defense counsel was not permitted to cross examine the prosecutrix about her relationship with Sidney Dockery and show that they were living together.

A determination of the constitutional validity of Section 12-21-203, Code, is not necessary for the disposition of this appeal. The rule is clear that the constitutional validity of a statute will not be considered unless essential to a disposition of the cause. Alabama State Federation of Labor, Local Union No. 103, United Broth. of Carpenters and Joiners of America v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945); Wright v. Turner, 351 So.2d 1 (Ala.1977); Smith v. Speed, 50 Ala. 276 (1874).

Prior to April 21, 1977, the effective date of Section 12-21-203, Code, the law in Alabama was that, in a prosecution for rape, the accused could introduce evidence of the bad general reputation for chastity of the prosecutrix in an attempt to prove that she consented to the alleged intercourse. Story v. State, 178 Ala. 98, 59 So. 480 (1912); McQuirk v. State, 84 Ala. 435, 4 So. 775 (1887); C. Gamble, McElroy’s Alabama Evidence, Section 32.01 (3rd ed. 1977). Such character could be shown by evidence of her general reputation in that respect, or of her previous intercourse with the accused, but not by proof of particular acts of unchastity with third persons. Stone v. State, 243 Ala. 605, 11 So.2d 386 (1943); Story, supra; McQuirk, supra; Williams v. State, 51 Ala.App. 1, 282 So.2d 349, cert. denied, 291 Ala. 803, 282 So.2d 355 (1973); Waller v. State, 35 Ala.App. 511, 49 So.2d 232 (1951); Green v. State, 19 Ala.App. 239, 96 So. 651 (1923).

“The view to which this court long ago gave its approval, as stated, found its chief support in 3 Green, on Evi. § 214, where that learned author said: ‘The character of the prosecutrix for chastity may also be impeached; but this must be done by general evidence of her reputation in that respect, and not by evidence of particular instances of unchastity. Nor can she be interrogated as to a criminal connection with any other person, except as to her previous intercourse with the prisoner himself; nor is such evidence of other instances admissible.’ ” Story, 178 Ala. at 101, 59 So. at 481.

The questions propounded by the appellant obviously ran afoul of this rule for they sought to elicit specific acts or conduct of the prosecutrix with third persons. For that reason the state’s objections to questions concerning the sexual relations and relationships of the prosecutrix with other named persons besides the appellant were due to be sustained without any reference to Section 12-21-203, Code. If the ruling of the trial court is correct for any reason it will not be reversed. Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972); Nettles v. State, 222 Ala. 236, 132 So. 41 (1931); McKenney v. State, 17 Ala.App. 117, 82 So. 565 (1919).

II

The appellant also contends that the trial court erred in refusing his requested instructions on consent of the victim in a prosecution for rape. The instructions given by the court were accurate statements of the law. Dawkins v. State, 58 Ala. 376 (1877); Rhoden v. State, 49 Ala.App. 605, 274 So.2d 630 (1973); Herndon v. State, 2 Ala.App. 118, 56 So. 85 (1911). Though the charges requested by the appellant were also correct statements of the law they were properly refused because they were fairly and substantially covered in the court’s oral charge to the jury. Rhoden, 49 Ala.App. at 610, 274 So.2d 630.

We have carefully searched the record for error and finding none affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


text:
    Cecil McDANIEL v. STATE.
    6 Div. 832.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      Roger A. Brown, Russell T. McDonald, Jr., of McDonald, Brown & Tipler, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for rape. Since the offense was committed before the effective date of Section 13-1-130, Code of Alabama 1975, the jury fixed punishment at ten years’ imprisonment.

The only allegation of error concerns the State’s use of a 1961 conviction for grand larceny to impeach the appellant. The appellant contends that the seventeen year old conviction for a crime committed when he was seventeen years old is too remote in time to have any value in determining the credibility of a witness.

The rule in Alabama is settled and clear.

“It is within the sound discretion of the trial judge to decide whether a prior conviction is too remote in time to have any present probative value toward showing the lack of credibility of the witness.” C. Gamble, McElroy’s Alabama Evidence § 149.01(19) (3rd ed. 1977).

Section 12-21-162, Code of Alabama 1975, authorizes examination of a witness as to his conviction of a crime involving moral turpitude. Rush v. State, 253 Ala. 537, 45 So.2d 761 (1950). “(T)he lapse of time from the date of the conviction does not toll nor affect the application of the statute in any respect.” Davenport v. State, 50 Ala.App. 321, 323, 278 So.2d 769, 771 (1973). “There is no fixed time at which a previous conviction is too remote to be admissible.” Lanier v. State, 43 Ala.App. 38, 41, 179 So.2d 167, 170 (1965). It is a matter within the sound discretion of the trial court under the facts of each particular case. Dickerson v. State, 46 Ala.App. 183, 239 So.2d 325 (1970); Lanier, 43 Ala.App. at 41, 179 So.2d 167; Flournoy v. State, 34 Ala.App. 23, 37 So.2d 218, cert. denied, 251 Ala. 285, 37 So.2d 223 (1948); Hale v. State, 10 Ala.App. 22, 64 So. 530 (1913).

“Where the probative value of character testimony is rendered questionable because of remoteness in time, great weight should be accorded the trial judge’s determination as to the admissibility of such evidence.” Flournoy, 34 Ala.App. at 27, 37 So.2d at 222.

Convictions occurring twenty, Davenport, supra, and even thirty years ago, Lanier, supra, have been held admissible for purposes of impeachment and not an abuse of the discretion of the trial judge.

Remoteness in time may affect the weight of the testimony and is admissible as “a circumstance to aid [the jury] in determining how much the witness’s testimony on the present trial should be discredited, if at all, by reason of such prior conviction”. Lanier, supra; Hale v. State, 10 Ala.App. at 29, 64 So. at 533.

The State’s evidence was sufficient, if believed by the jury, to support the conviction. We have searched the record and found no error prejudicial to the appellant. Therefore the judgment of conviction is due to be and is hereby affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ivan BALLOU, Alias v. STATE.
    7 Div. 622.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.

      William D. Hudson, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was charged with burglary in one count of a two-count indictment and with grand larceny in the other count. His appointed counsel, who has faithfully represented him here and in the trial court, filed a petition, subscribed and verified by defendant, that defendant-petitioner be treated as a youthful offender. The petition was granted pursuant to Ala.Code 1975, § 15-19-1. At the conclusion of the State’s evidence on the trial of defendant as a youthful offender, defendant moved for an exclusion of the evidence as to each count. The court granted the motion as to the burglary court but denied it as to the larceny count. Thereupon the defendant proceeded with his evidence, which consisted of his own testimony.

The record before us is in two parts: (1) the certified “record on appeal,” including “the clerk’s record and the reporter’s transcript,” which “record on appeal” was filed in this Court on September 7, 1978, and (2) a certified copy of purported corrections of the trial court’s judgment and entry of judgment on arraignment and its judgment and entry of judgment on its final determination of the case, which, as a supplement to the record, was filed in this Court on October 26, 1978.

Neither in the bench notes of the trial judge nor in the clerk’s entries of orders of the trial court as shown by the “record on appeal” filed in this Court on September 7, 1978, is there a recital of any plea by defendant. Furthermore, such record on appeal, as shown by the trial judge’s bench notes and the clerk’s record of the formal judgment, shows that defendant was found guilty of grand larceny and was sentenced to three years in the custody of the Director of the Department of Corrections.

In the supplement to the record on appeal, it is shown, by revisions made by the trial judge in his bench notes and revisions (captioned partly as “corrected” or “amended” items) in the records of the clerk’s office of the formalized orders and judgment of the trial court, that defendant pleaded not guilty. By the revision in the bench notes it is shown that defendant was found guilty as a youthful offender; by the revision in the records of the clerk’s office, it is shown that he was adjudged a youthful offender. By both revisions it is shown that he was “committed to three years in the custody of the Director of the Department of Corrections.”

Appellant urges that the judgment must be reversed by reason of failure of the record to show that defendant either pleaded to the charge against him or that he refused or neglected to plead and that a plea of not guilty was entered for him. He relies upon the proposition that in the absence of a recordation of any arraignment or joinder in issue, the judgment must be reversed on appeal. Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90, cert. denied 258 Ala. 579, 64 So.2d 102 (1953); Rorex v. State, 44 Ala.App. 112, 203 So.2d 294 (1967); Newsome v. State, 49 Ala.App. 248, 270 So.2d 680 (1972). In response to appellant’s contention, appellee argues the applicability of Rule 10(f) of the Alabama Rules of Appellate Procedure as follows:

“If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.”

This Court has not been called upon in this case to take any action under said Rule 10(f). We are not informed, except by vague references in briefs of parties, as to “any difference” that arose “as to whether the record truly discloses what occurred.” The supplemental record shows that the corrections were made on September 13, 1978, as to which the parties seem to be in agreement. However, appellant complains that he was given no notice of any attempt by appellee to have the record corrected, and states:

“Neither Ballou nor his trial counsel have any recollection of ever pleading to the indictment in this case, yet they had no opportunity to get their recollections on record because the amendment to the docket sheet and judgment order was done without notice or hearing.”

Without questioning in any way the correctness of the statements made in the briefs of the parties, there is no issue now before us as to whether the record on appeal as supplemented is correct, and we can only conclude in this posture of the case that it is. We must decide any reviewable question by what the record on appeal now shows, not by what it previously showed. The present record reveals an appropriate arraignment, the interposition by defendant of a plea of not guilty and a judgment that is not now subject to the infirmity of the judgments reversed in Huddleston v. State, and other cases, supra. We do not understand that the trial court by making the particular correction was merely purporting to do what it should have done by appropriate arraignment procedure, but that by the correction the trial court is in effect candidly stating that defendant did in fact plead not guilty, but that such fact was “omitted from the record by error or accident” and that in the respect under consideration the record now “truly discloses what occurred in the trial court.”

The other indicated correction of the record is of a somewhat different nature, and we doubt the applicability thereto of Rule 10(f) ARAP. As we construe such indicated correction, it was to do that which the trial court should have done at the time it found defendant guilty, that is, it should have “adjudged” him “a youthful offender” and committed him “to the custody of the Board of Corrections.” Ala.Code 1975, § 15-19-6. Appellant does not complain of the language of the judgment in this particular as the record now stands. As to this particular part of the judgment, if no correction had been made, we would have remanded the case for the rendition of the appropriate judgment as required by the Youthful Offender Act. Such an error of the trial court would not be a basis for a reversal of the judgment.

Appellant insists that at the time the State closed its case against defendant, there was no evidence that defendant was a youthful offender in the transgression charged against him of grand larceny. This position is not well taken, for the evidence at that time showed that there had been a larceny as charged in the indictment, of property sufficient in value to constitute grand larceny, particularly an “Admiral colored television.” There is strong and convincing evidence that such television set, a bedroom suite, a lamp and a coffee table were all stolen from the house of William E. Barnes on July 18, 1977. A witness testified that at the time such items were unquestionably stolen and removed from the Barnes’ home, she saw defendant coming out of the house with something that looked “like he had something like a television or a record player.” She saw him while he was standing in the door. She further said, “It was either a record player or a tape player or something, one of them big items, you know, like stereo.” There was another person with him whom she did not know, but she stated positively that she recognized defendant as one in the door of the house, and removing an article as stated above out of the house. It was dark but there was a light on in the house in the living room. She was extensively cross-examined by defendant’s counsel as to her ability to see and identify defendant by his facial features, but she steadfastly maintained that she could and did. Whether she could and did was a factual question, one determinable by the trial judge, properly trying the case without a jury.

Appellant also insists that there was a violation of the principles set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) as a prerequisite to the admission in evidence of the confession of an accused. Appellant predicates this insistence upon the contention that there was some conflict in the evidence of the two officers whose testimony taken together shows that an incriminating statement made by defendant that was admitted in evidence was made after he had been fully advised of all of his rights referred to in Miranda, that he had voluntarily and knowingly waived his right to an attorney and his right against self-incrimination, that he had been fully informed and understood his right to an attorney at the expense of the State, and that his incriminating statement met all of the pre-Miranda and post-Miranda requirements of voluntar-iness. There were some discrepancies between the testimony of one of the officers and that of the other, but they are discrepancies that are readily resolvable without any impairment of the substance of the testimony as a whole on the essentials as to the admissibility in evidence of one’s confession. The court was not in error in admitting the statement of defendant, signed by him, as well as the lengthy statement signed by him that consisted of a plenary waiver of his constitutional rights and concluded:

“No threats or promises have been made to me to induce me to sign this waiver of counsel and to make a statement to the officers.”

Appellant’s only other contention for a reversal is based upon the claim, and some evidence supporting it in the testimony of defendant, that whatever he did that might constitute the crime of larceny, either as an active participant or as an aider or abettor, was because of threats of physical harm against him by a loan shark, to whom he was indebted. Neither in the incriminating statement of appellant admitted in evidence nor in his testimony did he admit participating in the larceny by being at the house from which the property was stolen at the time it was stolen. In his written statement he said that he told a named “loan shark” about “a house that had some furniture in it and that he could break into the house and get the furniture and sell it for I owed [him] some money and this would make me even with him.” The gist of his testimony as to any threat by the loan shark is as follows:

“A I would pay him twenty-five dollars a week, and he told me it wasn’t good enough. He wanted all of his money.
“Q Wanted all of his money. Did he threaten you in any way if he didn’t get his money?
“A Yeah, he told me I — I saw what happened to a couple more guys that owed him some money and if I didn’t pay him his money it would happen to me too.
“Q What had you seen that had happened to other people that had owed [defendant’s creditor] money and hadn’t paid him?
“A A couple of guys with stockings over their face pulled a guy out of a club one night — Royal Palm — guy named . ., stays in East Gadsden, pulled him out of there, stopped traffic in the street, beat him down to the ground and left him that way.
“Q Had you ever seen anything similar to this happen to anybody else that owed [defendant’s creditor] money?
“A Yes, a boy, they called him Mac.
“Q What happened to him?
“A He was found behind a house laying down. He was badly beaten.
“Q And [defendant’s creditor] told you something like that was going to happen to you if you didn’t get his money right then?
“A Yeah.
“Q Were you afraid something like that was going to happen to you?
“A Yes.
“Q Did you believe him? Did you think he was capable of it?
“A Yes.
“Q And is that when you told him you knew where he could get some furniture? “A Yes.”

Notwithstanding the mitigating nature of the testimony of defendant as to the pressure applied upon him by the “loan shark,” it was for the trier of facts to determine the extent to which the claimed duress influenced defendant’s action. The evidence does not as a matter of law meet the test set forth in Haywood v. State, 43 Ala.App. 358, 190 So.2d 725, 727, cert. denied 280 Ala. 171, 190 So.2d 728 (1966):

“The compulsion or duress which will excuse an act which would otherwise constitute a crime ‘must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done.’ Moore v. State, 23 Ala.App. 432, 127 So. 796; Browning v. State, 31 Ala.App. 137, 13 So.2d 54; Thomas v. State, 134 Ala. 126, 33 So. 130.” (Emphasis supplied).

We have found no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . Defendant was eighteen years old when the alleged offense was committed. The exclusionary rule as to confessions of juveniles (Ala. Code 1975, § 12-15-67) is not applicable. Ala. Code 1975, § 12-15-1(3).