author: BOWEN, Judge.

text:
    John T. CARROLL v. STATE.
    8 Div. 989.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    As Corrected on Denial of Rehearing Oct. 4, 1977.

      Sherman B. Powell, Jr., for Powell & Powell, Decatur, for appellant.
    William J. Baxley, Atty. Gen. and James S. Ward, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

Petitioner was adjudged guilty of contempt of court for “disruptive misconduct in open court in the courtroom during judicial proceedings, i. e., abusive and obscene language to a female officer of the court”, and was sentenced to five days confinement in the Morgan County Jail and fined fifty dollars.

On December 2, 1976, a petition for a writ of certiorari was transferred from the Court of Civil Appeals to the Supreme Court of this state. The Supreme Court granted the writ and this case was submitted on February 15, 1977. On July 6, 1977, the case was transferred to this court on a determination by the Supreme Court that this court has jurisdiction.

Essentially there are two questions which must be answered on this appeal: (1) Did the petitioner’s use of abusive language to the court reporter constitute contemptuous conduct, and (2) were due process requirements met in the determination of petitioner’s guilt by the lower court.

On November 2, 1976, Ms. Lesa Nelson was acting as a court reporter for Judge K. J. Griffith who had been appointed to assist Judge C. Bennett McRae in the Morgan County Court. According to Ms. Nelson, Judge Griffith had left the courtroom to make a phone call. Because the other court reporter had also left the courtroom, Ms. Nelson remained because she thought the judge “might want something taken”.

While sitting in the courtroom, Ms. Nelson noticed the petitioner come up to her through the swinging doors near where the jury box was located. Although it does not appear in the transcript of the testimony, the petition for writ of certiorari avers that the petitioner was a venireman duly called to serve in the Morgan County Court for the week of November 1,1976. Ms. Nelson stated that the petitioner had previously complained to Judge Griffith about all the delays, observing that his time was valuable.

Petitioner told Ms. Nelson that he had been noticing her ever since he came into court and he remarked that she was pretty. He stared at her chest and stated that he noticed she had freckles on her chest. Ms. Nelson put her hand on her chest as she felt uncomfortable. Petitioner then stated, “Do you have freckles on your titties?” Although Ms. Nelson explained that was personal, petitioner insisted on an answer. Ms. Nelson told him it was none of his business and then began to explain why court took so long, apologizing to him for any inconvenience.

Petitioner then stated to Ms. Nelson how she was trying to change the subject, stating, “Aren’t you going to answer me.” Petitioner continued by inquiring, “Would you scream if I leaned over and kissed you?” When Ms. Nelson responded “Yes”, petitioner stated, “Well, I am and you’re going to have to scream.” At that point, petitioner leaned over and she pushed him away. He told her that “I want to give these people out here — amuse them while they are having to wait.” After that comment, Ms. Nelson left the courtroom and told what had happened to Judge McRae’s secretary. Ms. Nelson also stated that the petitioner told her he wished that she had been convicted of a crime when he was on the jury because he would let her go.

Judge McRae then brought the petitioner into his chambers and informed petitioner that:

“ . . the purpose of me having you come in my office is to consider if I should hold you in contempt of court and, secondly, to consider whether I should report your actions, if it has been improper, to the County Solicitor or the District Attorney or possibly the Sheriff, and to see if there are any actions that should be taken that would be for them to determine.”

The petitioner was given an opportunity to obtain counsel and to explain his conduct or his version of what had happened. Petitioner admitted knowledge of the remarks and conduct the judge had reference to but refused to tell Judge McRae what those comments were. Petitioner was then taken to the Court Reporter’s office. Ms. Nelson was brought into the judge’s chambers and examined by Judge McRae as to the remarks and conduct of the petitioner. Although this proceeding was reported it does not appear that Ms. Nelson was under oath. After Ms. Nelson related the events to Judge McRae, the proceedings moved to the courtroom. The court reporter read to petitioner the testimony of Ms. Nelson.

Upon hearing Ms. Nelson’s testimony the petitioner admitted his guilt.

“THE COURT: Or you want to ask anything else? Is there anything you don’t understand?
“MR. CARROLL: No, sir. I just want to pay the fine, or go to jail, or whatever the hell you want to do.”

The petitioner is fifty years old and an admitted alcoholic. He stated that he had had something to drink that morning as he had every morning but there was no way he could judge how much he had had to drink.

At this stage in the proceedings, Judge McRae again gave petitioner the opportunity to secure counsel. He also advised him of the maximum punishment for contempt. After briefly conferring with Sheriff Ward the petitioner again confessed his guilt. Judge McRae then sentenced petitioner to five days incarceration in the Morgan County Jail and fined him fifty dollars.

I

The initial question this court must answer is whether the conduct of the petitioner in using vulgar language to the court reporter in the courtroom constitutes contempt where the court is in session but the judge is temporarily absent.

Contempt is divided into four classes: (1) Civil or (2) criminal, (3) direct or (4) constructive. The distinction between civil and criminal contempt lies primarily in the purpose for which the proceeding is brought and the sanction is imposed. Civil contempt sanctions seek to compel or coerce compliance with orders of the court in the future, Ex parte Abercrombie, 277 Ala. 479, 172 So.2d 43 (1965); Ex parte King, 263 Ala. 487, 83 So.2d 241 (1955); Ex parte Hill, 229 Ala. 501, 158 So. 531 (1935); and in failing to do something, ordered to be done by a court in a civil action, for the benefit of opposing counsel. Ex parte National Ass’n for Adv. of Colored People, 265 Ala. 349, 353, 91 So.2d 214 (1956). Criminal contempt sanctions are imposed to punish for an act of past disobedience, to preserve the power and vindicate the dignity of the court, and to punish any act which is in disrespect of the court or tends to obstruct the administration of justice, or which tends to bring the court into disrepute. Ex parte Seymore, 264 Ala. 689, 89 So.2d 83 (1956); Dangel, Contempt, p. 3-4.

The petitioner was apparently a venireman called to jury duty in the Morgan County Court. The record only reveals that while some type of proceedings were being conducted in a civil case in the county court, the judge left the courtroom to make a telephone call. During his absence, petitioner made some remarks to the court reporter which have previously been set forth in this opinion. The language used by petitioner may very well have been obscene and profane within the meaning of Davidson v. State, 19 Ala.App. 77 at 78, 95 So. 54 (1923) defining “obscene” as that which is offensive to chastity and modesty, and Slaughter v. State, 47 Ala.App. 634 at 637, 259 So.2d 840, cert. denied, 288 Ala. 751, 259 So.2d 845 (1972) defining “profane” as to vulgarize and to make offensive to good taste. Title 14, § 11, Code of Alabama 1940 condemns the use of abusive, insulting, or obscene language in the presence of a girl or woman and attaches criminal sanctions to such conduct. Thus the petitioner may be guilty of a misdemeanor carrying a fine of two hundred dollars and a term of imprisonment in the county jail for up to six months.

We have carefully considered the nature of petitioner’s conduct and conclude that it tended to diminish or impair the respect due to judicial tribunals and in particular the county court of Morgan County. Petitioner’s conduct was not a mere private conversation or flirtation with a female court reporter. Ms. Nelson stated that in attempting to kiss her the petitioner declared:

“ T want to give these people out here’— something to the effect, 'amuse them while they are having to wait.’ ”

The statements and conduct of the petitioner were not only a personal affront to the court reporter who was “trying to do her job” but an attempt by the petitioner to entertain the people in the courtroom during the judge’s absence.

Not only was petitioner’s conduct in disrespect of the court but his conduct did, in fact, disturb, obstruct and delay the administration of justice and orderly proceedings of court in the sense that Ms. Nelson, who was waiting in the courtroom because the judge “might want something taken down” had to leave to escape petitioner’s unwarranted antics and unwanted attention. Such abuse of court personnel and forum cannot be tolerated.

II

Having determined that petitioner’s conduct is contemptuous, we must next consider whether the actions of the judge in ascertaining petitioner’s guilt of contempt were correct and in accordance with constitutional and due process standards. Before we can proceed to such a determination we must first ascertain whether petitioner’s contemptuous conduct constitutes a direct or a constructive (indirect) contempt.

The distinction between direct contempt (punishable without notice or hearing) and constructive contempt (punishable only upon notice and hearing) involves more than a mere geographical separation.

“Three elements must coalesce in order to remove a contempt from the general category of ‘constructive’ to the instantly punishable class of ‘direct’ contempt: (1) The contempt must be committed in the actual physical presence of the court; (2) every element of the contempt must be within the personal knowledge of the judge; and (3) the contempt must require immediate vindication, making delay an unfeasible alternative.” P.S. McKinney, 26 Alabama Law Review 655 at 680, The Contempt Power in Alabama State Courts; Ex parte Morris, 252 Ala. 551, 42 So.2d 17 (1949).

Applying these criteria to this case, we find that (1) the contempt was committed “in presence of court” because it was committed in the courtroom itself while court was in session. See Ex parte Morris, 252 Ala. 551, 42 So.2d 17 (1949) for a definition of the phrase “in presence of court”. (2) However all the facts necessary to constitute the contempt were not within the personal knowledge of the judge and a witness was necessary to inform him of the details of the misconduct. Courts may summarily punish for direct contempt because the personal knowledge of the judge in whose presence the act was committed takes the place of evidence. Ex parte Tarpley, 53 Ala.App. 363, 369, 300 So.2d 401, 406, affirmed 293 Ala. 137, 300 So.2d 409; Brutkiewicz v. State, 280 Ala. 218, 191 So.2d 222 (1966). (3) We do not consider the conduct of the petitioner to be in “such flagrant defiance of the person and presence of the judge before the public as, if not summarily dealt with, would result in demoralization of the court’s authority before the public.” Ex parte Morris, 252 Ala. 551, 555, 42 So.2d 17, 21 (1949); In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Based upon this analysis, it is our conclusion that petitioner’s conduct constitutes constructive contempt.

There are no rigidly fixed procedures which contempt prosecutions must follow in Alabama. Hunter v. State, 251 Ala. 11, 13, 37 So.2d 276, 278 (1948). Therefore the only procedural principles which the courts must adhere to in contempt proceedings are the constitutional guarantees of the Federal and Alabama Constitutions. The Supreme Court of Alabama and of the United States have each held that a proceeding for indirect contempt requires that the accused be afforded due process of law. Tarpley, supra; also Ex parte Bankhead, 200 Ala. 102, 75 So. 478 (1917); Hunter v. State, 251 Ala. 11, 37 So.2d 276 (1948); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925). Where an individual is charged with indirect or constructive contempt due process requires that he be given notice of the charges and a reasonable opportunity to meet them, including the assistance of counsel, if requested, the right to call witnesses and confront his accuser, and the right to give testimony, relevant either to the issue of complete exculpation or extenuation of the offense and in mitigation of the penalty imposed. Hunter, supra; Seymore, supra; Bankhead, supra; In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948).

In Alabama, a written accusation is essential to initiate an indirect contempt proceeding. International Brotherhood of Electrical Workers, Local 136 v. Davis Construction & Engineers, Inc., Ala., 334 So.2d 892 (1976); Hunter, supra; Tarp-ley, supra. A constructive contempt prosecution may be initiated by issuing a warrant of arrest requiring the accused to be held and be heard on the charge. A warrant must be supported by an oath or affirmation which affords probable cause as required by § 5 of the Constitution of Alabama. Alternatively, a constructive contempt proceeding may be begun by issuing a citation or rule nisi to the contemptor to appear before the issuing court and show cause why he should not be held in contempt. If a citation or rule is employed, no affidavit would be required. Tarpley, supra, 53 Ala.App. at 369-370, 300 So.2d 401; Robertson v. State, 20 Ala.App. 514,104 So. 561 (1924); Hunter, supra; Atkins v. State, 34 Ala.App. 101, 40 So.2d 444 (1948), cert. denied, 252 Ala. 227, 40 So.2d 446 (1949).

While neither of these initiation procedures were followed in this case the petitioner did receive actual notice of the charges against him — but only at the time of the hearing which was approximately thirty minutes after the conduct was committed. However the petitioner’s conviction of contempt must be reversed on other grounds. Where the accused is not afforded the right and opportunity to confront and cross examine his accuser in a hearing to determine his guilt or innocence of a charge of constructive criminal contempt he is denied due process of law. Oliver, supra; Seymore, supra; Hunter, supra. In this proceeding the petitioner’s liberty and freedom were at stake. Therefore the question of due process was essential. Seymore, 264 Ala. at 692, 89 So.2d 83. In view of our conclusion that the petitioner was denied certain constitutional rights and safeguards his admission of guilt is of no consequence. To hold otherwise would be to rule that a denial of due process of law constitutes harmless error in view of the subsequent confession of guilt by the accused. Such a doctrine is repugnant and hostile to the concept of basic and fundamental rights under which our criminal justice system operates.

In reversing petitioner’s conviction because he was not afforded his constitutional rights of due process we are careful not to rebuke or level any criticism against Judge McRae. Petitioner’s conduct was as disturbing to him as it is to this court. To tolerate such behavior would turn the courtroom into a jester’s stage where fools perform. In his zeal to maintain the dignity of his court and protect it from abuse and scorn, Judge McRae unwittingly but in good faith and with the highest of motives committed another wrong.

In view of our conclusion that the petitioner was not afforded due process of law, his conviction for contempt is reversed. These proceedings are remanded to the county court of Morgan County with directions that new proceedings for contempt be instituted against the petitioner. A warrant of arrest with supporting affidavit or a citation or rule nisi should be issued for the petitioner to appear and show cause why he should not be held in contempt. The warrant or citation should set forth the charge and allow the petitioner adequate and reasonable time to prepare a defense. While petitioner is not entitled to a jury trial on this issue, the contempt should be prosecuted by the District Attorney’s Office with a county judge sitting as the trier of fact. All witnesses should be placed under oath or affirmation and petitioner should be given the opportunity to cross examination. Petitioner is entitled to representation by counsel if requested.

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Clarence CHARLES v. STATE.
    6 Div. 543.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.

      Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for assault with intent to ravish. The trial judge sentenced him to twenty years imprisonment.

On Sunday morning, January 23, 1977, Minor Sims, an employee of Partlow State Hospital, saw the appellant, also an employee, lying on top of a patient on the floor of the recreation room in the hospital. Sims observed the appellant through a crack between the door and the wall for two or three seconds. The appellant’s pants were down around his knees and the appellant was “moving his hips on top of her” and “poking” her in the side with his fist. Sims could not see if the appellant was actually having intercourse.

Sims attempted to open the door but his key would not fit in the lock because the appellant had placed his key in the lock from inside the room. The appellant then got up, pulled up his pants and opened the door for Sims. The patient went to the back of the recreation room where some other female patients were.

Sims got a cigarette from the appellant but did not mention to him what he had seen. He returned to his “group” and told two aides of the incident. Sims testified that he did not smell alcohol or notice any symptoms or signs of intoxication exhibited by the appellant at this time.

Around noon on the following Thursday, Sims talked with the appellant at the canteen for fifteen or twenty minutes. The appellant stated that he had been accused of having sex with the patients, and said that there “was a possibility that he did do it because he was drunk that morning when he came in”.

Larry Ingram was an investigator for the Department of Mental Health at Partlow in January of 1977. He investigated the incident and took two statements from the appellant. In these statements, the appellant denied any sexual activity with any of the patients and denied that this particular incident occurred. In both statements the appellant stated that he had been out the night before and was sleepy so he took five patients in the recreation room to get some sleep. While he had his head down on a desk, two men from the laundry came into the recreation room through an outside door to get the dirty laundry.

While riding back to Partlow from the Tuscaloosa City Police Department, the appellant told Ingram that he had been out drinking and was still pretty intoxicated when he came to work that Sunday morning. The appellant stated that he had a hangover and was still intoxicated from the night before and that it “was possible that it could have happened, but he didn’t know whether or not it did happen”.

Before this testimony was allowed before the jury, voir dire was conducted in which testimony was adduced that the appellant voluntarily rode with Ingram to take a polygraph test at the Tuscaloosa Police Department; that before he was given the test, he was advised of his constitutional rights and that the appellant said that he had been told that he had “flunked” the test. When the appellant made the statement to Ingram he was not under arrest and they were having a general conversation about the incident.

During this time Burns Brown was the laundry manager at Partlow. He testified that Luke Lavochie, identified in the defendant’s statements as a laundryman he saw that morning, was not at work Sunday and that there was no laundry service on the weekends.

Rick Hardy was a psychiatrist at Partlow who had worked extensively and almost daily with the victim for a substantial period of time. He described her degree of mental retardation and mental illness. According to his testimony, the victim is mentally ill and very afraid of people. She does everything under her power to insure that people stay away from her and cannot form any kind of close personal relationship with anyone.

“If you try to come up to her and shake her hand, she’ll try to get away as quickly as possible. One of the things that we found out is that she could perform certain acts, academic skills. We would simply come up to her and put our hand on her and say . ., if you will give us your age or give us your ‘ABC’s’ or count to twenty, we’ll take our hand from you’. Or even having — when we take her down to the dining room and if she’s having problems eating, we can come up to her and we’ll say that we’ll walk away from you if you eat faster. This tells us that she is afraid of people, and she does everything to insure that people stay away from her.”

The patient’s mental age is four or five although chronologically she is in her early twenties.

At trial, the patient was not called as a witness but was displayed before the jury “in the nature of an item of evidence”, “merely as an exhibit”. Defense counsel objected and the court would not permit the patient to testify.

The appellant did not testify and presented no evidence in his defense.

I

During closing argument the state objected to comments made by defense counsel regarding evidence and testimony which the state had not produced at trial: a bed sheet and two eyewitnesses.

“MR. SOGOL (Defense Counsel): And Mr. Ingram asked him in these statements while he was questioning him, told him about a sheet and there were two eyewitnesses, and we haven’t seen these things brought into court.
“MR. SMITH (Deputy District Attorney): We object to this, your Honor.
“MR. SOGOL: They don’t have any physical evidence.
“MR. SMITH: Judge.
“THE COURT: Alright, Mr. Smith, I’ll sustain your objection to that.”

The appellant alleges that the action of the trial court constituted an improper limitation upon his right to argue reasonable inferences from the evidence. He contends that the argument was proper in view of statements made in a transcript of the interrogation of the appellant by Investigator Ingram. Although the transcript was admitted into evidence, it was not copied into the record on appeal nor certified to this court. Therefore, assuming that the transcript does contain statements by Investigator Ingram that “two eyewitnesses say they saw you (appellant) do it” and that there was a sheet on the floor which would reveal if the incident took place, we will address the merits of the argument.

This court firmly and tenaciously adheres to the principles set forth in Roberts v. State, Ala.Cr.App., 346 So.2d 473, cert. denied, Ala., 346 So.2d 478 (1977) concerning the liberal rules to be allowed counsel in drawing inferences from the evidence in their arguments to the jury. However, counsel for the accused may not comment on the state’s failure to produce certain articles in evidence which it is not incumbent on the state to produce. In Roberts v. State, 122 Ala. 47, 25 So. 238 (1899) the Alabama Supreme Court held that in a prosecution for rape in which the prosecu-trix testified that the undergarment worn by her at the time of the offense had blood on the front and back of it, that the trial court properly disallowed defense counsel to comment upon the state’s failure to produce the garment as evidence in the case because it was not incumbent upon the state to produce such clothing. Here also the trial court properly disallowed defense counsel from commenting upon the absence of evidence which was not necessary for the state to produce.

Additionally we note that at trial there was no evidence presented to the jury regarding any sheet or eyewitnesses other than the one who testified. This additional “evidence” appeared solely in a transcript and was heard by the jury for the first time in the closing argument of defense counsel. While Investigator Ingram was cross examined by defense counsel he was not questioned about the existence of any sheet or other eyewitnesses.

II

A' witness for the state was permitted to testify over objection that the victim would not be able to understand or appreciate the nature of a sexual act. The appellant argues that the witness was not qualified to give an opinion on this subject.

Rick Hardy testified that he was a unit psychiatrist at Partlow State School and Hospital, that he had been there approximately three and one-half years, that he had a Master’s Degree in General Experimental Psychology and three years toward a Ph.D. He was “involved in program development for the residents who are classified as being either severely profound or moderate mental retarded”. He testified that “we” initially evaluated the victim and that she came back under his supervision about a year ago; that he has seen and worked extensively with her during that time on approximately a daily basis. Hardy stated that he was familiar with her condition and nature, had made a “behavioral assessment” of her conduct and had observed and analyzed her conduct on the ward. He testified that her mental age was four or five years old.

The criterion for the admission of expert testimony is that the witness, by study, practice, experience or observation as to the particular subject should have acquired a knowledge beyond that of ordinary witnesses. White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). An “expert witness” is one who can enlighten a jury more than the average man in the street. Woods v. State, 54 Ala.App. 591, 310 So.2d 891 (1975). A witness can be qualified as an expert if his knowledge extends beyond or supercedes that of an ordinary witness. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973); Nesbitt v. State, 55 Ala.App. 534, 317 So.2d 501, cert. denied, 294 Ala. 766, 317 So.2d 504 (1975). An “expert witness” is one who is shown, either by training or experience, to be better informed than the hypothetical average juror. Ward v. State, 44 Ala.App. 229, 206 So.2d 897, cert. denied, 281 Ala. 650, 206 So.2d 922 (1966). An expert witness, by definition, is any person whose opportunity or means of knowledge in a specialized art or science is to some degree better than that found in the average juror or witness. Frazier v. State, 40 Ala.App. 67, 112 So.2d 212, cert. denied, 269 Ala. 696, 112 So.2d 218 (1959).

It is the opinion of this court that the experience of the state’s witness alone in observing the victim on a daily basis would qualify him to testify as to whether she would be able to understand the nature of a sexual act. Not only had the witness observed the victim’s conduct but he had observed her mental condition and worked with her. The trial court properly permitted the expert to testify over the objection of defense counsel.

Ill

In sentencing the appellant the trial court remarked:

“And the only reason I am giving you twenty years (the maximum sentence allowed by statute) is I can’t give you any more. This is one of the worse things I have heard of.”

The appellant urges this court to consider the trial court’s statements.

We have reflected upon these remarks very carefully and find that, under the circumstances, they exhibit a remarkable degree of restraint on behalf of the trial judge. The crime committed is not only vile in its very essence but sordid and loathsome because of the particular circumstances. The execution by the appellant of his lustful desires upon the mind and body of one so weak bespeaks a characteristic utterly shocking and repulsive to this court.

We have read the entire record as required by law and found no error prejudicial to the substantial rights of the appellant. The judgment of the trial court is therefore due to be

AFFIRMED.

All Judges concur.


author: HARRIS, Judge.

text:
    Bobby WEAVER, alias v. STATE.
    6 Div. 569.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of assault with intent to murder and the Court sentenced him to twenty years imprisonment in the penitentiary. He was found to be indigent and attorneys from the Public Defender’s Office of Tuscaloosa County were appointed to represent him. He is in this Court with a free transcript and trial attorneys were appointed to represent him on appeal. At arraignment, in the presence of his attorneys, he pleaded not guilty and not guilty by reason of insanity.

Pursuant to Title 15, Section 428, Code of Alabama 1940, the Court ordered appellant committed to Bryce Hospital for examination to determine his mental status, and to determine when he would be capable of rendering assistance to his counsel in the trial of his case. Upon the coming in of the report from the Staff at Bryce Hospital that appellant had been restored to his right mind, it was ordered that the case proceed to trial. Prior to trial appellant withdrew his plea of not guilty by reason of insanity.

The evidence is undisputed. Appellant did not testify and he did not offer any evidence in his behalf. The evidence adduced by the State established a clear case of guilt.

On January 12, 1977, the victim was a student at the University of Alabama and resided at the Tutwiler Dorm located on the campus of the University. Around 3 o’clock on the afternoon of that date she drove her car from class to the parking area of Tut-wiler Dorm. When she pulled into a parking space she got out of her car and opened the back door to remove some things from the car and at this point a car pulled into a parking space next to her car. She felt someone behind her and she turned around and saw the car which was parked beside her had a plastic covering on the window over the passenger side. As she turned around she was face to face with a man who put his hand over her mouth and stuck a gun in her stomach. This man told her to get back in her car and she jerked her head away and started screaming. The man shot her and immediately got in his car and left. The victim stated that the attempted abduction and shooting occurred within the span time of two to three minutes and that during this period of time she was looking straight in the face of her assailant. She made a positive in-court identification of appellant as the man who put his hand over her mouth and shot her in the stomach.

She further testified that after she was shot she stood there for a few seconds and someone came up and asked her if she was all right. She was bleeding and a woman took her to a ear to wait on the ambulance. She was carried to the emergency room at Druid City Hospital where she was seen and treated by Dr. Floyd Fitts.

On cross-examination she testified that she got a good look at this man during this two to three minutes and she described him as having medium length hair and a mous-tache. She said he was wearing blue jeans and some type of flannel shirt. He was driving an old model car that was blue in color.

It was further developed on cross-examination that the victim had seen some photographs of the defendant on the morning of the trial. These photographs were not shown to her for the purpose of identification by any law enforcement officers or the District Attorney. She was sitting in the District Attorney’s Office on the morning of the day of the trial and just happened to see a number of photographs on his desk and she looked at them. They were photographs of the defendant and she recognized him. There were other photographs on the desk, of her car, and the parking lot where she was shot. She further testified that she was not basing her identification of appellant on the photographs she just happened to see in the District Attorney’s Office. She stated that the photographs of appellant that she inadvertently saw in the office of the District Attorney did not aid her in any way in the identification of appellant but on the contrary her identification was based solely on the face to face confrontation of him during the two or three minutes she saw him when he grabbed her, put his hand over her mouth and then shot her.

She further testified as to the difference in the appearance of defendant at the time of the trial and the day he shot her. She stated that appellant’s hair was a little shorter at the time of trial than it was on the day that he attempted to abduct her and then shot her, and that she had an independent recollection of appellant in spite of the pictures she saw on the morning of the trial; that these photographs in no way aided her in the identification of appellant.

There were several people near the place where the shooting occurred who saw the man struggling with the victim and heard the shooting. They thought at first that this was a struggle and fuss between a “boyfriend and a girl friend.” After the shooting they observed the man run to his car and drive away. They described the man to the officers just as the victim had described him and two of them testified that appellant looked like the man who shot the victim but would not make a positive identification.

Mrs. Louise Green testified that she saw a girl struggling with a man as she was driving by the Tutwiler Dorm. She noticed the girl slump back and fall into a car and then saw the man run in her direction with a gun in his hand. The man got into a vehicle and drove past her at which time she read his tag number which she identified in court as being the tag number of appellant’s car. Mrs. Green further testified that in her opinion appellant was the man who shot the girl.

Mr. John Brown, a University police officer, testified that he arrived on the scene, attempted to stop the victim’s bleeding and called for an ambulance. He also took statements from several witnesses from which he developed a composite description of appellant and his car which was put on a radio dispatch. About an hour later State Conservation Officers Gill Green and Sammy Anders saw appellant parked in his car on an unpaved dead-end road. When the officers went to check the car they saw appellant move a pistol from his lap to the middle of the seat. The officers reached in the car and got the pistol and laid it on the hood of the car. Officer Green identified appellant as the man they apprehended. Green further testified that appellant attempted to leave the car and a struggle ensued to prevent his escape. They notified the Tuscaloosa Police Department and appellant was taken into custody.

When the police officers arrived they transferred him from the Conservation Officer’s car to their patrol car, handcuffed him, read him the Miranda rights and warnings, and transported him to the Homicide Office of the Police Department. These officers also took into their possession a .22 caliber revolver and six cartridges which they turned over to Sergeant Dempsey Marcum. Marcum delivered the pistol and cartridges to Mr. Jim Britton of the State’s Toxicology Department in Tuscaloosa.

State Toxicologist Britton testified that the .22 caliber revolver and a box containing six cartridges were delivered to him by Officer Marcum. He said that he test-fired two of the cartridges and stated, “The results I obtained reveal that the cartridge cases in State’s Exhibit 2 were detonated in the mechanism of this pistol.” The pistol recovered from appellant was identified and introduced into evidence as State’s Exhibit 1.

Dr. Floyd Fitts testified as to the damage the bullet caused upon entering the victim’s body. In the doctor’s own words he stated, “The abdomen was opened and the bullet had not actually entered the abdominal cavity. It had skirted around and hit the little iliac crest, or this bone which is shaped obliquely — hit it and ricocheted back toward the midline and the bullet (was) lying in the muscle structures posteriorly, out of the abdominal cavity. I did not remove the bullet at the time, because it would have been much easier to remove from a different approach.”

Officer Marcum further testified that he interviewed appellant the afternoon of the day of the shooting. Before he asked appellant any questions he read him the Miranda rights and warnings and he signed a waiver of rights form in which he stated that he understood his rights.

After the proper predicate was laid appellant made and signed a confessory statement which was then read to the jury.

From the record:
“Q. Now, in relation to this statement, I’d like to ask whether or not he made any statement to you concerning his whereabouts in relation to the University Campus?
“A. Yes, sir.
“Q. All right, sir, and where did he say he was?
“A. Stated in the parking lot behind the Corner Drug Store off of 10th Street.
“Q. All right, sir, and are you familiar with the area that he’s speaking of?
“A. Yes, sir, I am.
“Q. Would this be the parking lot behind Tutwiler Dorm?
“A. It would be.
“Q. And did he make any references to anyone that he may have seen there in that lot?
“A. Yes, sir, he did.
“Q. What did he state to you about that?
“A. Stated, saw a girl in a red, fairly new car pull in and park.
“Q. And did he make any statements as to what happened after that?
“A. Yes, he did. Stated he parked beside of her. Got out of his car and walked around the car to where she was.
“Q. Go ahead.
“A. Stated, he had his 22 caliber pistol that he had bought four or five days or longer, from a drunk man at the Ponde-rosa Lounge in Northport for $25. Stated, he pointed the pistol at her and told her to sit down, meaning in her car. Stated, ‘she pushed me away and I stumbled back and moved back toward her and pushed her down towards the seat. That’s when the gun went off and she started screaming and started bleeding. I put my left hand over her mouth. She was slumped over leaning against her car door. I got in my car and left. I came out by the Krystal and turned left. Then at the book store across from the Krystal I turned right, went to the River Road and turned left, to the old dump down Clinton Drive. Down the Sanders Ferry Road. I turned off the Sanders Ferry Road to the right to the old dump and parked. I had been there a couple of minutes when the Game Wardens drove up and got out of the car and wanted to take it and I wouldn’t let him. When they were driving up, I took the empty shells out and loaded another round in the pistol. One of them asked me to give it to him and I said, “No.” I laid it on the seat and one of them reached in and took it. They asked me what I was doing down there and what was wrong. I told them I had shot somebody. In a little while, the Deputy Sheriffs came and got me and brought me here. Signed, Bobby Weaver.’ ”

Appellant contends that an impermissibly photographic display was made which may have resulted in the misidentification of appellant. We do not agree. The record does not in the least support the contention of appellant. The evidence in this case does not show there was a “line-up identification,” nor a “show up,” nor a “photographic display,” in which the victim identified the appellant as the man who shot her. The evidence does show that on the morning of appellant’s trial the victim was alone in the District Attorney’s Office and just happened to see a number of photographs of appellant on a desk in that office. She flipped through a stack of photographs on a desk in the office and recognized appellant. She did not see the name of appellant on any of the photographs.

From the record:
“Q. Let me ask you this. Would you have an independent recollection of the Defendant in spite of those pictures?
“A. Yes.
“Q. Did those pictures in any way aid your identification of this man?
“A. No.”

No one connected with the police or the Prosecutor’s Office showed her the photographs or told her to view the photographs to see if she recognized appellant. This is a clear case of “an independent source.” The victim had a face to face confrontation for two to three minutes at the time he put his hand over her mouth when she was screaming and at the time he put the pistol against her stomach and shot her. She made a positive in-court identification of appellant and that was the only identification the victim made in this case.

The most recent United States Supreme Court case dealing with this issue is Manson v. Brathwaite, - U.S. -, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In Manson, pretrial identification from a single photograph which was both suggestive and unnecessary was held not to be so improper as to prevent identification of the defendant even though the witness had only observed the defendant for a “couple of minutes.” The Court held that identification testimony would be admissible if under the “totality of circumstances” the identification is reliable. The Court went on to say:

“We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), confrontations.”

Factors to be considered include “The opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson, supra.

Applying these factors in the present case we find the victim looked at her assailant the entire time, face to face for two or three minutes at close quarters during daylight hours. The victim was not a casual or passing observer. Her attention was focused directly on the man who put his hand over her mouth and put the gun to her stomach and shot her. The record does not indicate the victim gave a description to the police as she was rushed to the hospital for medical treatment. Other witnesses at the scene did give an accurate description of the gunman and he was arrested and confessed the very afternoon of the shooting and long before the victim recovered from her wounds. The victim made a positive identification of her assailant at trial and was subjected to a vigorous cross-examination during which she accurately described the defendant’s facial features and clothes at the time of the shooting.

The shooting occurred on January 12,1977, and the in-court identification was made on May 23, 1977, a period of about four months. Reliability is still the “linchpin” in identification testimony.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, the Supreme Court of the United States upheld a conviction based on an identification which took place over seven months after the crime.

Under the totality of the circumstances in this case, there does not exist “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247.

We hold that the in-court identification of appellant was not tainted by the happenstance that the victim saw photographs of the appellant on the morning of the trial. This is a clear case on “independent source.” She knew him because she saw him face to face for two or three minutes while appellant was struggling with her in broad daylight and at the time she was shot. Hannon v. State, 48 Ala.App. 613, 266 So.2d 825.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Presiding Judge. BOWEN, Judge,

text:
    Charles Curtis DONILSON v. STATE.
    6 Div. 576.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.

      B. Don Hale, of Hale & Williams, Cull-man, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged the appellant with the robbery of George W. Threadgill by taking a large quantity of prescriptive drugs of the value of $240.00 and $198.00 in currency from his person and by putting him in fear, etc. The jury found the appellant guilty as charged and fixed punishment at twenty years imprisonment. The trial court sentenced the appellant accordingly.

George William Threadgill testified that he was employed as a pharmacist in charge of the Blue and Gray Drugstore in Hanee-ville, Alabama, on June 28, 1976. Thread-gill indicated that he was on duty in the prescription department about 4:00 o’clock in the afternoon when two men entered the store. He testified that one of them, whom he positively identified in court as the appellant, approached him and handed him a cloth bag, then said, “Give me your narcotics.” He testified that one of the saleswomen, a Mrs. Cargo, was dialing the telephone, and she was told to hang up the telephone and to lie on the floor. Threadgill stated he gave the key to the narcotics drawer to the appellant, and he unlocked this and took a large number of vials and capsules containing various tablets. The appellant also unlocked the drawer containing liquid narcotics, then placed them in another bag. The appellant then asked him where the amphetamines were, and he told him that all the drugs were in those two drawers. Threadgill was then made to lie down on the floor. From there he observed the appellant opening the cash register and taking the cash at pistol point. Threadgill stated that he lay on the floor for a few minutes until he was sure the appellant was gone, then got up and telephoned the police.

Threadgill made a positive in-court identification of the appellant, indicating that he had a good look at him for several minutes as he unlocked the narcotic drawers, and also when he opened the cash register, taking the proceeds therefrom. He stated that he was approximately two feet away from him at this time. Threadgill stated that he made up a list of the drugs taken from the inventory at the store. From the record (R. pp. 21-22):

“Q. Is this the list that you made that day?
“A. Yes, sir.
“Q. Would you read that list?
“A. Okay. There were 100 Percodan Demi tablets; 100 Biphitamine 12.5 mg. capsules; 155. Biphetamine 20 mg. capsules; 53 Codeine Sulfate 30 mg. tablets; 104 Demeral 50 mg. tablets; 2 Demeral injections 100 mg. liquid; 1 Demeral injection 50 mg. liquid; 8 Demeral Elixir liquids; 106 Percodan tablets; 156 Parest 200 mg. capsules; 247 Parest 400 mg. tablets; 100 Preludin 25 mg. tablets; 93 Preludin 75 mg. tablets; 50 Eskatrol spansule capsules; 81 Ethobral tablets; 1-12 oz. Dexedrine Elixir liquid; 1-12 oz. Dexamyle Elixir liquid; 2-30 cc Leritine liquid; 106 Leritine tablets; 76 nembu-tal V2 grain capsules; 78 Nembutal 100 mg. capsules; 1-10 oz. Morphine Elixir liquid; 114 Quaalude 300 mg. tablets; 59 Quaalude 150 mg. tablets; 104 Optimil 400 mg. capsules; 64 Optimil 200 mg. capsules; 128 Ritalin 50 mg. tablets; 82 Ritalin 10 mg. tablets; 76 Sopar 300 mg. tablets; 150 Sopar 150 mg. tablets; 80 Mepergan Fortis capsules; 1-12 oz. Pa-pine liquid; 56 Dilaudid 4 mg. tablets; 100 Amvicel tablets; 128 Sedabarb capsules.
“Q. You described these as being narcotics, would you?
“A. Correct.
“Q. Tell the jury what a narcotic is.
“A. Well, there are probably several ways you could define it. I think for purposes here the best way to define narcotic would be a substance that requires a narcotic order form in order to purchase or is under the Bureau of Narcotics and Dangerous Drugs. It is on that list of Bureau of Narcotics and Dangerous Drugs of drugs subject to abuse.
“Q. Are these drugs — would it be necessary for you to have a prescription before you could get these drugs?
“A. Most definitely.
“Q. Do you know approximate value of these drugs?
“A. Yes, $240.00.
“Q. Okay. Besides these drugs what else was taken from the store?
“A. A $198.00 in cash.”

On cross-examination Threadgill was asked about some photographs which were brought to him over a period of several weeks by the Sheriffs deputies. He testified that Deputy McAnnally brought photographs on several occasions, but it was not until October 2, 1976, that he selected the appellant from a group of eight photographs exhibited to him.

Also, on cross-examination, Threadgill stated that the appellant was carrying a short barrel pistol at the time of the robbery.

Threadgill further stated that the appellant and his companion were also identified by Kathleen Griffith, who was also on duty in the store, and near the front during the time of the robbery. He stated that Mrs. Griffith looked at the photographs and that she also made a positive identification. The photographs were admitted in evidence over the appellant’s motion and objection.

Kathleen Griffith testified that she had been employed at the Blue and Gray Drugstore in Hanceville, Alabama, for approximately fifteen years as of June 28, 1976. She stated that about 4:00 o’clock in the afternoon on that date the appellant, whom she positively identified in court, and a companion, Steve Baird, entered the drugstore and announced, “This is a holdup.” She was directed to sit down at pistol point while the appellant went over to the prescription department with a bag in his hand. She stated that she later saw the appellant come back to the cash register and reach into it, though she could not see inside the register. She stated that after the two men left, the police were notified, and that she gave a description of each of the men to the Sheriff’s deputies.

On cross-examination Mrs. Griffith testified that groups of photographs were brought to the drugstore for her to observe on several occasions, and it was not until October 2,1976, that she selected the photograph of the appellant. She stated that she selected this photograph without talking with Mr. Threadgill, or Deputy McAnnally, or anyone else.

On cross-examination Mrs. Griffith was handed a group of photographs, and she immediately selected the appellant’s photograph, which had been marked as State’s Exhibit 1, as being the photograph that she had selected on October 2, 1976.

On redirect examination Mrs. Griffith stated in response to questioning that her identification was based solely on her recollection of seeing the appellant on June 28, 1976, in the Blue and Gray Drugstore in Hanceville, Alabama, with pistol in hand.

The appellant’s motion for a directed verdict and to exclude the State’s evidence were overruled.

Steven Russell Baird testified that he was presently being held in Walker County to answer some charges. He testified that he had a record of several felonies. He admitted that he committed the robbery of the Blue and Gray Drugstore in Hanceville, Alabama, on June 28, 1976. He testified that he had entered a guilty plea and had been sentenced for this.

Baird testified that he first met the appellant, Charles Curtis Donilson, in early 1977 when he was placed in the “bull pen” in Cullman County with Donilson. He testified that Donilson was not his accomplice, that he was not with him at the time of the robbery of the Blue and Gray Drugstore.

On cross-examination Baird admitted receiving a thirty-year sentence for the robbery in question, and also admitted receiving a fifteen-year sentence in Walker County for the robbery of a drugstore.

I

Appellant’s counsel argues that the identification in court of the appellant was based on an impermissibly suggestive photographic identification, and cites us to Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

The test for this Court to apply under Simmons, supra, is to consider the totality of circumstances presented by the record. While it is true that approximately three months passed before Mr. Threadgill and Mrs. Griffith each, separately, selected the photographs of the appellant from those being shown to them, each nevertheless did so according to the record, without hesitation and without having to confer with anyone else. Moreover, each of them stated that a number of photographs were shown to them on several occasions before selecting the photograph of the appellant.

Both Mr. Threadgill and Mrs. Griffith testified that their positive in-court identification was based upon their view of the appellant at the time of the robbery on June 28, 1976.

We are therefore of the opinion that the in-court identification of the appellant was not so tainted by the pretrial exhibition of the photographs to the two witnesses, and therefore the trial court properly permitted Mr. Threadgill’s and Mrs. Griffith’s testimony to be submitted to the trial jury. Redmon v. State, 47 Ala.App. 421, 255 So.2d 604; Dawson v. State, Ala.App. 293, 253 So.2d 362; McGhee v. State, 48 Ala.App. 330, 264 So.2d 560; and Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied Ala., 339 So.2d 601.

II

Appellant’s counsel also submits that a pretrial lineup here took place, and that counsel should have been present at the time of such lineup.

Mr. Threadgill and Mrs. Griffith both testified that when they were walking down the hallway prior to trial, they could not recall observing the appellant, Charles Curtis Donilson, in the witness room, and that was not the basis of their identification of the appellant. We do not consider this type occurrence to be a police lineup within the due process of law. Cannon v. State, 53 Ala.App. 509, 301 So.2d 272. Moreover, this Court is firmly committed to the position where, as here, the identification process took place prior to indictment, counsel is not required. Swicegood v. State, Ala.Cr.App., 343 So.2d 806, cert. denied Ala. 343 So.2d 810, and authorities therein cited.

Ill

We note also in the record that appellant’s counsel made objection because the jury viewed the appellant during a recess as the appellant was being taken away in custody as arrangements were being made to go to lunch. From the record (R. pp. 55-56):

“THE COURT: Well, the Court recalls when the Defendant came in this morning. He came in with the Sheriff himself, not with any uniformed officer and not with any cuffs on or anything of that nature. Just happened to enter the door together. There was no hand laid upon the Defendant. They came in together. The Court is of the opinion that that is not prejudicial.
“Now, later on before we adjourned for lunch the jury was departing the Courtroom and in the Court’s opinion didn’t have an opportunity to see anything that might have been done or might not have been done in connection with the Defendant and Officer McAnnally, who was here standing with him. No cuffs were placed on the Defendant in the Courtroom. So, is there anything that the State wants to say about those motions?
“MR. HARRIS: I just think that he has not been prejudiced. And, there has to be some safeguards when there are people who are incarcerated at the time they are sent to trial, they can’t just let them run loose. The Sheriff came in with him, not a uniformed officer. And, the time right before lunch I think the jurors had already gone through or fixing to go through the door and had their backs turned.
“THE COURT: There was nothing, as I recall it, which was in my full view that indicated that nothing was done. In fact, the Court instructed the officer to stand back and he did stand back and no positive action was taken with regard to placing his hands on the Defendant or placing any restraints on him or anything of that nature.
“MR. HALE: We will take exception, Your Honor.
“THE COURT: All right. I will deny.
“MR. HALE: Appreciate the opportunity to present the motions.
“THE COURT: Anything else?
“MR. HALE: No, sir.
“THE COURT: Bring the jury in. “(WHEREUPON, the jury was returned to the Court room.)”

We have carefully examined this record in light of the trial court’s findings and order, and we are of the opinion that this ruling is correct, and the appellant’s rights were safeguarded. We are of the opinion, under the circumstances presented, that no error is shown.

We have carefully examined this record, as required by law, and find same to be free from error. The judgment is therefore

AFFIRMED.

All the Judges concur.

BOWEN, J., files an opinion.

BOWEN, Judge,

concurring.

I concur in the opinion of Judge TYSON with the following comments.

From the record it appears that the appellant was not handcuffed or physically restrained. We have held that it is not ground for mistrial that the accused appears in the presence of the jury in handcuffs when such appearance is only a part of going to and from the courtroom. Evans v. State, Ala.Cr.App., 338 So.2d 1033 (1976); Moffett v. State, 291 Ala. 382, 281 So.2d 630, cert. denied, 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 114 (1973). For other authority see 6A Alabama Digest, Criminal Law, <§=> 637. Therefore even if the jury saw the appellant leave the courtroom with a deputy sheriff it would not be grounds for a mistrial or require a reversal.

One of the main arguments asserted by the appellant is that the admission into evidence of the “police photographs” of the appellant resulted in the admission of evidence of the appellant’s bad character and evidence of a separate and independent crime. The opinion by Judge Tyson has failed to address this issue. I respectfully submit that a consideration of the question is necessary so that the record may reflect that we have reviewed this case in its entirety.

The photographs of the appellant are commonly referred to as “mug shots”. They depict the appellant’s face in a front view and a profile view and are official police photographs. A series of numbers and the inscription “Police Dept., Alabaster, Ala.” appear at the bottom of each photograph.

The general rule is stated in Scott, Photographic Evidence, 429, § 1081.

“Ordinarily, therefore, when the defendant’s character is not in issue the state should not be allowed to introduce in evidence a photograph of the defendant which shows on its face that it is a rogues’ gallery photograph. Nor should witnesses be allowed to say that they identified defendant by examining a group of police photographs. Nor should a witness be permitted to testify that a photograph being shown to him is from police files.”

See also 30 A.L.R.3d 908, “Annotation : Admissibility and prejudicial effect of admission, of ‘mug shot’, ‘rogues’ gallery’ photograph, or photograph taken in prison, of defendant in criminal trial.”

However each case must be reviewed on its own merits and the admission of a mug shot, even where proper objection is made, does not automatically require a reversal. In some decisions where the use of mug shots has been upheld, the courts have stressed that the photographs in question were used to prove an extrajudicial identification. 30 A.L.R.3d at 911, § 3(a).

Although there is authority to the contrary, there is support for the rule that the admission of a mug shot does not interject a defendant’s character into evidence. Atcheson v. State, 136 Ga.App. 152, 220 S.E.2d 483; Creamer v. State, 229 Ga. 704, 708, 194 S.E.2d 73 (1972) and cases cited.

In Carson v. State, 49 Ala.App. 413, 272 So.2d 619 (1973) this court held that the introduction of a police photograph of the appellant taken prior to the offense for which he was tried and which was shown by police officers to witnesses who identified the appellant as being one of the persons involved in the robbery did not violate the rule against proving other offenses committed by the appellant where no evidence was offered by the state of any previous conviction of the appellant. Shiflett v. State, 52 Ala.App. 476, 294 So.2d 444 is not in point.

Under Carson, the admission of the police photographs was not error. Additionally, this ground for objection was not asserted at trial and therefore must be considered as waived on appeal. Roynica v. State, 54 Ala.App. 436, 309 So.2d 475, cert. denied, 293 Ala. 772, 309 So.2d 485, cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 85 (1974); See 6A Alabama Digest, Criminal Law, 695(5). For these reasons the admission into evidence of the “mug shots” was not error.


author: DeCARLO, Judge.

text:
    Phillip Harold LEE v. STATE.
    7 Div. 533.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.

      Larry W. Morris, Alexander City, for appellant.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Violation of the Alabama Uniform Controlled Substances Act (possession of marijuana not for personal use); three years.

Lawrence T. Turner, an agent of the ABC Board of the State of Alabama, had as his primary duty, the enforcement of whiskey and narcotic laws. Turner was stationed in Clay and Randolph Counties and lived in Wedowee, Alabama. About one week prior to May 20, 1976, he received a telephone call from an unidentified caller who told him “there was about three-hundred marijuana plants in a casket box” on the back side of Phillip Lee’s pasture. Several days after the call, Turner and Harry Sheppard, another agent, went to the Lee pasture. After walking for approximately an hour they found the marijuana in a metal casket box on the bank of a small branch at the edge of a honeysuckle patch.

Turner testified that there was “a well-worn trail” leading to the location of the marijuana. He went on to say that there were car and tractor tracks leading to the trail.

According to Turner it was sometime after lunch on May 19, 1976 when they found the box, at which time, Agent Sheppard returned to Ashland, Alabama to get the sheriff and deputies. They returned and remained there until dark on May 19th. The following day Turner and Sheppard met Deputy Ray Latham and the three went to the pasture “at daylight.” Turner said he and the other two officers were in a ditch some fifty or sixty yards from where the casket was located. That afternoon at approximately 1:20 or 1:25, they heard a tractor. Turner recalled that they watched the tractor come into view and go straight to the marijuana and stop. He testified that the person driving the tractor was Phillip Lee, the appellant, and that in his judgment the tractor had come from the direction of the appellant’s house. Turner said the tractor was driven straight to the casket where it stopped. After the appellant stopped the tractor, he went to the metal casket and “started pulling the marijuana plants, and shaking the dirt off them.” The officer observed the appellant for about fifteen or twenty seconds before approaching him from behind. Turner spoke to the appellant and asked, “How are you doing Phillip?” The appellant turned and responded, “G-damn, I didn’t think this would ever happen to me.”

Turner testified that Lee was placed under arrest and the marijuana was carried to the appellant’s house on his tractor. The appellant had pulled up thirty-six plants and the officers pulled an additional thirty-seven plants from the casket. Upon arriving at the appellant’s house, the sheriff was called, and when he arrived, the marijuana was turned over to him.

During Turner’s testimony, he stated that he had received training in the identification of marijuana and narcotic “plants”. Turner stated that he knew the characteristics of a marijuana plant and that some even grow to a height of eight feet. Turner said he was familiar with growing a marijuana plant and that, “it takes plenty of water and sunshine.” Turner acknowledged that it would be his judgment that the seventy-three marijuana plants found in the metal casket were being grown correctly.

Harry Sheppard, also employed in the drug and alcohol division of the ABC Board, was with Officer Turner when marijuana was found on Phillip Lee’s farm in May of 1976. His testimony was substantially the same as that of Officer Turner, except during cross-examination, he said that he had previously been hunting marijuana on the appellant’s farm. Sheppard said that he saw a casket down at the hog parlor a year before that had marijuana in it.

Ray Latham, a deputy sheriff for Clay County, was with agents Sheppard and Turner when they were conducting the surveillance of Phillip Lee’s farm. In addition to giving a similar account of what had occurred prior to and after the arrest of Phillip Lee, Latham said that the marijuana plants were placed in his possession at the sheriff’s office for transport to the State laboratory. He said he took a sampling from the plants, sealed them in a brown envelope and carried them to the State toxicologist’s office in Auburn. Latham testified that the plants remained in his custody and control from the time they were given to him by Sheriff Morris, and that they were in the same condition when he delivered them to Auburn as they were when he was given possession of them at the sheriff’s office in Clay County.

Billy Morris, Sheriff of Clay County, stated that on May 19th he accompanied Agent Sheppard to Lee’s farm where he saw marijuana growing in a metal casket. He said the following day he saw the appellant at his farm and saw marijuana plants lying on the ground in the appellant’s yard. Morris took two bunches of marijuana to his office and placed them in an evidence vault where they remained for about a month until they were dried. After drying, some leaves were sealed in an envelope and given to Deputy Latham, who was instructed to take the envelope to the lab in Auburn and have the marijuana analyzed.

Fred Taylor Noggle, Jr., was the director of the Auburn Toxicology Laboratory. He related that he specialized in the examination and identification of dangerous drugs and narcotics and during the five and one-half years he had been a toxicologist, he had examined several thousand narcotic drugs.

Noggle testified that Deputy Latham delivered an envelope to him containing a green-brown vegetable matter. According to him, the laboratory analysis of the substance revealed the presence of marijuana which contained the substance, tetrahydro-canabinol. During cross-examination, Nog-gle testified that marijuana was not usually found growing wild in Alabama.

At the completion of Noggle’s testimony, the State rested and after the jury had retired from the courtroom, the appellant made a motion to exclude the State’s evidence on the ground that a prima facie case had not been made. The motion was denied and the appellant was called to testify in his own behalf.

Phillip Lee stated that in May of 1976 he lived on his father and mother’s 130 acre farm and had lived there around fourteen or fifteen years. According to Lee, on the day in question, he had gone “over to the back forty” to do some “bush-hogging.” He said that he rode over there on the tractor to “pick up” the “bush-hog.” Lee said that sitting at the edge of the field was one of the caskets that had originally been at the barn for the purpose of feeding livestock. According to him, out of curiosity, he went to see what the casket was doing there. He stated there were some kind of plants growing in the casket but said, “I didn’t have much of a chance to do anything next . . . the arresting officers came out of the bushes there.”

Lee denied pulling up any of the plants or having planted the marijuana in the casket. He also denied that he had assisted anyone in moving the casket to the area where it was found.

Lawrence Turner and Harry Sheppard were recalled for rebuttal testimony and each testified that prior to the time the marijuana was found in the casket they did not at any time see the “bush-hog” in the area. Each testified on cross-examination that they did not see a bush-hog but they were not looking for one.

I

It is contended that the verdict, “we the jury find the defendant guilty of violation of the Alabama Controlled Substances Act,” fails to show whether the jury found the defendant guilty of a felony or of a misdemeanor. Counsel argues that the trial court was therefore without authority to impose a felony sentence.

The Alabama Uniform Controlled Substances Act, T. 22, § 258(47)(a), Code of Alabama 1940, Recompiled 1958, in pertinent part reads:

“ . . . Any person who possesses . controlled substances . is guilty of a felony and upon conviction for first offense may be imprisoned not less than 2 nor more than 15 years and, in addition, may be fined not more than $25,000: except any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and upon conviction for the offense shall be imprisoned in the county jail for not more than 1 year, and in addition, shall be fined not more than $1,000; but the penalties for the subsequent offenses relating to possession of marihuana shall be the same as specified in the first sentence of this section 258(47)(a).”

Possession of marijuana for personal use is a lesser included offense under an indictment charging possession of marijuana. Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760; Butts v. State, Ala.Cr.App., 346 So.2d 497. Where marijuana is for personal use only the crime is a misdemeanor for the first offense, otherwise, it is a felony. Palmer v. State, 54 Ala.App. 707, 312 So.2d 399, reversed on other grounds. The degree of possession whether a felony or misdemeanor depends upon the use of the prohibited substance. Powers v. State, 49 Ala.App. 690, 275 So.2d 369, reversed on other grounds.

The burden of proving that the possession was for personal use is a defensive matter and the burden of bringing himself within the misdemeanor exception of the act creating the offense was upon the appellant. Fuller v. State, 39 Ala.App. 219, 96 So.2d 829; Schenher v. State, 38 Ala.App. 573, 90 So.2d 234. See Johnson v. State, 51 Ala.App. 649, 288 So.2d 186; Corbin v. State, 55 Ala.App. 33, 312 So.2d 604, footnote 1, p. 34.

In the present case the trial court specifically instructed the jury on three possible verdicts returnable under the indictment presented against this appellant. The three proposed verdicts given to the jury without an exception being noted by the appellant were: (1), “We, the jury find the defendant guilty of violation of the Alabama Uniform Controlled Substances Act.” (2), “We, the jury, find the defendant guilty of possession of marijuana for his own personal use.” (3), We the jury find the defendant not guilty.”

The burden of proving that the appellant did not possess the marijuana for his personal use was not on the State. It was the duty of the appellant to bring himself within that exception in the statute. There is no evidence from which the jury might conclude beyond a reasonable doubt that the appellant’s possession was in fact for his personal use.

We are of the opinion that the evidence was sufficient to sustain the conviction, and the motion to exclude was properly overruled.

II

The appellant also maintained that the verdict of the jury was not sufficiently definite to allow an entry and pronouncement of judgment on the law. Counsel argues that the indictment charged the defendant with a general violation of the Alabama Uniform Controlled Substances Act, which defines violations and punishments for both felonies and misdemeanors. Counsel insists that where the indictment charges a felony in one count and a misdemeanor in another, a general verdict is without effect and the court is without authority to pronounce judgment.

In Blount v. State, 49 Ala. 381, the Supreme Court ruled that where a verdict merely ascertained the defendant’s guilt without more it is properly construed to mean guilty as charged in the indictment and authorizes the pronouncement of sentence. The court reasoned:

“The verdict was responsive to the issue, ascertained and declared the guilt of the appellants, and authorized the judgment rendered. That the words ‘as charged in the bill of indictment,’ or words of similar import, are not added to the finding of guilty, does not render the verdict incomplete. The law supplied them by referring the finding to the indictment, and the offence therein charged.”

In Ramsey v. State, 43 Ala.App. 617, 197 So.2d 763, this court said that no requirement exists for the jury to indicate by its verdict whether a defendant is guilty of a felony or a misdemeanor and, in fact, it is without authority to so specify in its verdict. This court in Russell v. State, 231 Ala. 297, 165 So. 255, further stated:

“The verdict will be referred to the indictment, without adding ‘as charged in the indictment,’ or other like recital.”

In the present case the single count indictment was framed under the Alabama Uniform Controlled Substances Act and was an indictment for a felony. Even though the penalty provision of § 258(47)(A), of the act provides for an exception which is a partial defense it does not create separate degrees of the offense. The exception relates to the first time conviction for possession of marijuana for personal use and as such would not make the general verdict form as used in Isbell v. State, 54 Ala.App. 85, 304 So.2d 904, defective in the present case.

Therefore a general verdict refers to the felony indictment and the form used in this case was sufficient to warrant sentencing under the felony provisions of the act.

Ill

The appellant insists that his failure to object at trial to a faulty verdict does not waive his right to have error corrected on appeal. He argues that this court has the right to notice errors of the lower court when an error is very plain and it is necessary to meet the ends of justice. Swindle v. State, 50 Ala.App. 403, 279 So.2d 574.

No objection was interposed to the reception of the verdict by the trial counsel but it is assigned as error on this appeal by new and retained counsel.

In our judgment, the verdict in this case is not so unintelligible as to render it invalid and one need not speculate on what the jury intended to do. The intention of the jury can be gleaned from the choice of verdicts they had before them and the verdict ultimately rendered. See Vol. 23A of C.J.S. Criminal Law § 1416.

IV

The appellant’s motion to exclude the State’s evidence on the grounds that a pri-ma facie case was not established and his later motion for a new trial were each properly overruled.

There are three essential elements necessary for the proof of possession of controlled substances. Those elements are:

“ . . . (1) actual or potential physical control (2) intention to exercise dominion and (3) external manifestation of intent and control.”

Cook v. State, Ala.Cr.App., 341 So.2d 183, citing DeGruy v. State, 56 Ala.App. 521, 323 So.2d 406.

The law seems clear that when the presence of the accused at the scene is established along with evidence of his knowledge of the presence of the prohibited substance which can be shown circumstantially, the issue of the defendant’s guilt should be submitted to the jury. Radke v. State, 292 Ala. 290, 293 So.2d 314; Parks v. State, 46 Ala.App. 722, 248 So.2d 761; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169; Fields v. State, Ala.Cr.App., 333 So.2d 861.

After reviewing the evidence submitted at trial, a substantial portion of which is recited above, it is our judgment that the requirements set forth in Cook v. State, supra, and Radke v. State, supra, were met. Legal evidence was presented to the jury from which they could by fair inference find the defendant guilty. The existence of such evidence is a question of law and its weight and probative value is for the jury. Under these circumstances, this court has no authority to disturb the verdict. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

No error appearing in the record, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    STATE v. Dennon R. LASH.
    8 Div. 910.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.

      William J. Baxley, Atty. Gen., and Robert A. Macrory, Asst. Atty. Gen., for the State.
    William A. Barnett, James L. Hunt, Tus-cumbia, Florence, for appellee.
   DeCARLO, Judge.

Fishing gill nets in prohibited waters.

On September 15, 1976, Richard Wallace, a game warden for the State of Alabama, obtained a warrant for the arrest of Den-non Ray Lash for fishing with gill nets in prohibited waters of the Tennessee River and its tributaries.

The affidavit, supporting the warrant of arrest, alleged that Dennon R. Lash “. . . did on or about 9/15/76 take, catch, capture or kill a non-game fish, to wit a drum by use of a gill net in Second Creek a tributary of the Tenn. River lying within the boundaries of Ala., in Lauder-dale, Ala.”

The warrant of arrest based on the foregoing affidavit was issued and Lash, on September 15, 1976, signed his bond and trial was set for September 17, 1976. Lash was represented by two attorneys and each filed a demurrer on September 22, 1976. On October 18, 1976, the judge of Lauder-dale County Court sustained the demurrers and ruled that Act No. 336, Acts of Alabama, 1976 Regular Session, violates the Alabama Constitution of 1901, specifically, Article 4, § 104(14), and § 105, and could not be enforced.

The State of Alabama gave notice of appeal on October 18, 1976, and on November 3, 1976, the Lauderdale County Court on its own motion amended the above order and stated the “affidavit” also violated § 110, of Article 4 of the Alabama Constitution of 1901.

The act, upon which this arrest was based, reads:

“Section 1. It shall be unlawful for any person to take, catch, capture or kill any game or nongame fish by use of a gill, trammell or similar type net in that part of the Tennessee River lying within the boundaries of Alabama and all tributaries thereto.
“Section 2. Any person violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars ($100.00), nor more than five hundred dollars ($500.00), or by imprisonment in the county jail for six (6) months, or both such fine and imprisonment.
“Section 3. The provisions of this act are severable. If any part of the act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
“Section 4. All laws or parts of laws which conflict with this act are repealed. “Section 5. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

I

The sole question presented by this appeal is whether Act No. 336, Acts of Alabama 1976, Regular Session, is a local law within the meaning of the Constitution of Alabama, Article 4, § 110, and 104(14).

Section 110 of Article 4 of the Alabama Constitution of 1901 reads:

“A general law within the meaning of this article is a law which applies to the whole state; a local law is a law which applies to any political subdivision or subdivisions of the state less than the whole; a special or private law within the meaning of this article is one which applies to an individual, association or corporation.”

The Supreme Court of Alabama observed in State ex rel. Attorney General v. Sayre, Judge, etc., 142 Ala. 641, 39 So. 240:

“It appears to be beyond question, as has been suggested, that when the Constitution defines a general law to be one that applies to the whole state, and that a local law is one which applies to any particular subdivision or subdivisions of the state less than the whole, it has reference to statutes in a territorial application, and not in their subject-matter.”

In our judgment Act No. 336, supra, does not propose to regulate fishing in the entire State, but prohibits the taking, catching, capturing or killing game or non-game fish by use of gill, trammel or similar type nets in that part of the Tennessee River lying within the boundaries of Alabama and all tributaries thereto.

The act specifically states that it is to operate “. . .in that part of the Tennessee River lying in the boundaries of Alabama and all tributaries thereto.” This is a specific designation and we take judicial notice that the territorial limits of the Tennessee River are bound by only nine counties in this State. Nolen v. State, 35 Ala.App. 249, 45 So.2d 786. Those counties are: Colbert, DeKalb, Jackson, Lauderdale, Lawrence, Limestone, Madison, Marshall and Morgan.

In view of the holding in State ex rel. Attorney General v. Sayre, Judge, etc., supra, we are compelled to find this was a local law. See State ex rel. Gray v. Stoutamire, Sheriff, 131 Fla. 698, 179 So. 730.

Being a local law it is mandatory that notice of an intention to apply for its passage be published. Failure to comply with Amendment 341 (Amendment of § 106), Alabama Constitution of 1901, would render the act void. State ex rel. Attorney General v. Sayre, Judge, etc., supra; Couch v. Rodgers, 253 Ala. 533, 45 So.2d 699.

We have searched the House and Senate Journals of Alabama of 1976 and did not find certification of notice of the act in question. Without an affirmative showing that this act was passed in accordance with the provisions of Amendment 341, supra, we must pronounce it void.

Further, § 104 Article 4, Alabama Constitution of 1901, provides that:

“The legislature shall not pass a special, private, or local law in any of the following cases: . . . (14) Fixing the punishment of crime . . . .”

It is clear that § 2 of Act No. 336, supra, provides punishment for a “crime.” State v. Rogers, 281 Ala. 27, 198 So.2d 610; and Thompson v. State, 274 Ala. 383, 149 So.2d 916.

See also Chancey v. State, 170 Ala. 83, 54 So. 522.

II

The State has contended that the trial judge did not find that the act in question did not apply to the State as a whole. The record indicates that the demurrers filed by the appellee’s two attorneys were sustained on October 18,1976 and the court ruled that the act was in violation of Article 4, § 104(14), and § 105 of the Alabama Constitution. Also, on November 3, 1976, the court amended its previous order and stated that the affidavit also violated § 110 of Article 4 of the Alabama Constitution of 1901.

The demurrer, filed by one of the attorneys for the appellee, specifically addresses this point. The demurrer, as shown in the record, assigned these pertinent grounds:

“4. That said Act, on it’s [sic] face, shows that it is in violation of Art. 4, Sec. 110 of the Constitution of the State of Alabama in that it does not apply to the State as a whole.
“5. That it shows upon it’s [sic] face that the persons that would be convicted under said law must live within the counties embraced within the walls of the Tennessee River and all of it’s [sic] tributaries.”

In view of the court’s ruling, on November 3,1976, and its sustaining the appellee’s demurrer, we are of the opinion that the court determined that Act No. 336, supra, did not have application to the State as a whole.

Ill

The State insists that a statute should not be held to be local where, by its terms, given a reasonable and fair construction, it may be interpreted as a general law. The State maintains this is an established rule of interpretation which should be followed, regardless of the law involved. Further, the State says in its brief:

“The Supreme Court has also noted that it is the imperative duty of the Court to uphold the statute, fairly susceptible to two interpretations, even though doing so be the less natural interpretation.”

It is argued that the act in question names no county and refers only to the Tennessee River and its tributaries within the State boundaries. The State maintains this “. . could affect the entire State, if not now then some time in the future, as ‘less natural’ and interpretation as that might be.”

In support of this contention, the State has cited State ex rel. Collman v. Pitts, Probate Judge, 160 Ala. 133, 49 So. 441, 445. In that case the Supreme Court said:

“. . . it is an established rule of construction, which makes it the imperative duty of the court to uphold a statute, when it is fairly susceptible of two interpretations, one of which will uphold its constitutionality, and the other defeat it, though the adoption of the former be the less natural.”

However, the Supreme Court of Alabama in McCall v. Automatic Voting Mach. Corporation, 236 Ala. 10, 180 So. 695, noted there were limitations to the above “established rule of construction!” The court said:

“There are, however, limitations to the application of these principles, and the courts are not at liberty in order to sustain a statute to give it a forced construction or to read into it and interpolate words which do not appear in the language enacted by the legislature.”

After reading and examining Act No. 336 recited above, it is our judgment that it is not susceptible to two interpretations without a “forced construction.” It seems impossible that a “less natural” interpretation would mean that the act applied to any other territories except those bordering the Tennessee River and its tributaries.

Having determined the act in question is unconstitutional under §§ 104(14), supra, and 106, supra, we do not deem it necessary to discuss the effect of § 105, supra, on the act.

Since the act in question was in violation of the Alabama Constitution of 1901, the demurrers were properly sustained.

IV

Under Act No. 1631, Acts of Alabama, 1971 Regular Session, and Act No. 27, Acts of Alabama, 1964 Special Session, appeals from the Lauderdale County Court were to be to the Circuit Court of Lauder-dale County. The record shows this appeal was taken directly from the Lauderdale County Court to this Court in violation of the above statutes. See State v. Hewlett, 124 Ala. 471, 27 So. 18. Although we have discussed the constitutionality of the act in question, we have no recourse but to dismiss the appeal for lack of jurisdiction.

APPEAL DISMISSED.

All the Judges concur.


text:
    Roger Carlos HOUSE v. STATE of Alabama.
    8 Div. 927.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Joe H. Yates, Florence, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

Appellant, Roger Carlos House, was indicted by the grand jury of Lauderdale County for the offense of unlawfully possessing marijuana, after having been previously convicted for the offense of possession of marijuana. He entered a plea of not guilty to the indictment, and a jury found him guilty as charged in the indictment, and assessed a fine of five thousand dollars against him. He was duly sentenced to pay a fine of five thousand dollars, and four years in the penitentiary. Appellant filed a motion for a new trial which was denied and he appeals to this Court.

This appeal was submitted to this Court on a no merit letter and brief of appellee. Appellant is now, and was at all times in the trial court, represented by court appointed counsel.

State’s evidence tended to prove that on August 11th, 1976 the appellant, after having been previously convicted for violating the Alabama Uniform Controlled Substance Act, sent 41 marijuana cigarettes, contained in a carton of Vantage cigarettes into the Lauderdale County Jail to one, Ballentine, who was confined in the jail. State’s evidence further tended to prove that one, Campbell, was at the same time confined in the jail; that recently appellant had been confined with Ballentine and Campbell in the jail but appellant was not presently confined; that appellant gave the carton of Vantage cigarettes, which contained 41 marijuana cigarettes, to Campbell’s wife and requested her to deliver it to Campbell when she visited her husband; that Mrs. Campbell gave the carton to the jailor, Mr. Valentine, and requested him to deliver it to her husband; that Mrs. Campbell did not know the carton contained any marijuana cigarettes; that the carton was delivered to Ballentine; that Ballentine did not deliver the carton to Campbell but kept it for about five minutes until Charlie Ford, an officer of the law, recovered the carton from Bal-lentine; that the packages of cigarettes contained in the carton were sealed when they were given to Mrs. Campbell and when the carton was recovered from Mr. Ballen-tine.

The appellant did not testify as a witness in his behalf. He offered testimony of three witnesses, all who were confined in the Lauderdale County Jail, that at the time the carton of cigarettes was delivered to Ballentine, that the carton had been delivered to Campbell, and Campbell gave it to Ballentine.

State’s evidence in the record is sufficient to sustain the jury verdict finding the appellant guilty as charged. We hold that the trial court did not commit error in overruling appellant’s motion for a new trial. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Williams v. State, Ala.Cr.App., 335 So.2d 249; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Alabama Uniform Controlled Substance Act, Section # 258 (47), (53), of Title 22, Code of Alabama, 1940 Recompiled, as last amended.

We have searched the record for any 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 under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.