text:
    L. C. JEFFRIES v. Henry LOFTIN.
    Civ. 1390.
    Court of Civil Appeals of Alabama.
    May 10, 1978.

      James L. Hunt, Tuscumbia, for appellant.
    William N. Pitts, of Pitts & Hamby, Sheffield, for appellee.
   HOLMES, Judge.

The plaintiff brought suit against the defendant on an open account, account stated, and for labor performed by the plaintiff for the defendant. The jury returned a verdict in favor of the plaintiff and against the defendant. A judgment was entered thereon and it is from this judgment that the defendant appeals.

The defendant, through able counsel, raises four issues on appeal. These issues, as we perceive them are as follows: 1. Did the trial court err to reversal in refusing defendant’s challenge for cause of a juror? 2. Did the trial court err to reversal in giving what defendant alleges to be a charge to the jury prior to the conclusion of the evidence? 3. Did the trial court in fact comment on the evidence? 4. Did the trial court err in responding to a question by a juror? We find the trial court committed no reversible error and affirm.

I

One of the jurors made known to the trial court that she had prior knowledge about the case. Thereafter, the trial court examined the juror concerning her knowledge. Specifically, the juror answered as follows:

“BY THE COURT: Mrs. Stutts, I don’t want you to answer out one way or the other about which way you think — but have you made up your mind about which way the case ought to go?
“MRS. STUTTS: No.
“BY THE COURT: Do you feel like anything anybody has said to you about— any reason you have why you could or could not reach a verdict in this case fairly?
“MRS. STUTTS: No.
“BY THE COURT: Has anybody suggested an answer to you about this lawsuit?
“MRS. STUTTS: No.”

Thereafter, the trial court denied defendant’s challenge for cause.

The law in Alabama is clear in that to justify a challenge for cause there must be a statutory ground, or some matter which imports absolute bias or favor, and leaves nothing for the discretion of the court. Competency under statute is a question of law, but in other cases is a question of fact to be determined by the trial court in the exercise of sound discretion. See Felton v. State, 46 Ala.App. 579, 246 So.2d 467 (1971).

A challenge for favor or bias is to be determined by the trial court as any other question of. fact, tried without a jury, and is reviewable on like principles. The decision of the trial court on such question founded on oral evidence is entitled to great weight and will not be interfered with unless clearly erroneous, equivalent to an abuse of discretion. See Coca-Cola Bottling Co. v. Hammac, 48 Ala.App. 60, 261 So.2d 893 (1972).

In view of the above, we find no such clear error or abuse of discretion.

II

During the course of the trial, as opposed to the conclusion of the evidence, the trial court gave what could be described as instructions on what the applicable law was as applied to the facts which were before the court at that time.

Defendant contends that Rule 51, ARCP, requires that the court instruct the jury after the arguments are completed and therefore the court’s action, as indicated above, was reversible error. We cannot agree.

Rule 51 also requires that an objection be made before the jury retires in order to assign as error the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge. No such objection was made in this instance.

This court can review error below only upon proper objection. Matters not objected to at trial cannot be raised for the first time on appeal. See Speed v. Speed, Ala.Civ.App., 341 So.2d 156 (1976).

Additionally, Rule 61, ARCP, states that no error or defect in any ruling or order or in anything done or omitted by the court is ground for modifying or disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. Here, we find no such action being inconsistent with substantial justice.

Ill

Defendant next contends the trial court violated Rule 51 which prohibits the trial court from expressing its opinion of the evidence. This argument is bottomed on the following exchange:

“BY THE COURT: Just a minute, please. Now I’ve told witnesses before and I don’t care one way or the other about this case — the witness has got a right to explain their answer, but to explain their answer is to explain it, not to — well, I can’t limit the answer. But the time for argument of the case is later on, please. The witness is not limited to yes or no. The witnesses can answer yes or no, then they have a right to explain their answer if it calls for an explanation. Go ahead.
“A. I just wanted to bring out this point, sir. Yesterday Mr. Aycock went into such a length to say about the farm and how he paid his debts and I didn’t pay mine. Mr. Aycock of Ay-cock Equipment Company was handling a lot of this money — the money would come in down there, he was a partner, and naturally in partnerships, you have to have some point of doing business and have somebody you trust and depend on. And Mr. Aycock got so involved in writing checks out of-
“BY THE COURT: Just a minute, please. I don’t want to limit anybody. That .is argument and if it’s admissible as argument, we will go into that later on. Read the question, Mrs. Bridges, please, ma’am.
“BY THE COURT REPORTER: Did you and Neil Aycock receive payment from the ASCS Office for that work?
“BY THE COURT: That’s the question— you’ve got a right to explain your answer to that question, please, if you like. I don’t want to be in a position of limiting anybody, but that’s one of the purposes for a judge to sort of confine the case to the issues involved. Go ahead, please, if you would like to explain that answer as to that question.”

Quite frankly, we fail to perceive defendant’s argument regarding a violation of Rule 51, ARCP. Suffice it to say, we find no such violation of Rule 51 requiring reversal.

We would further note that no objection was made concerning the action of the court. As noted above, matters not objected to at trial cannot be raised for the first time on appeal.

IV

Defendant’s final contention is that the trial court erred to reversal in its answer to a juror’s question. The defendant alleges that he was prejudiced by the following:

“MR. GRIFFITH: Well, I just want to know in general terms. In a partnership when one partner, he has authority to commit himself or bind both partners?
“BY THE COURT: As far as it relates to the business of the partnership. The answer is yes in a restricted way, do you understand what I am saying?
“MR. GRIFFITH: All right, sir. Now let me ask you one other question — is it necessary that partners agree on that?
“BY THE COURT: Well, let me just answer it this way. If you and I are partners in the trucking business, let’s say, and you are in Nashville and we have agreed that — ahead of time that you can buy trucks or do what’s necessary to repair them, or all four tires blow out on you or something, you’d have — I can’t answer your question, but I can sort of — if it’s necessary maybe or an agreement has been made in the past. Do you understand what I am saying to you?
“MR. GRIFFITH: Yes, sir.”

We cannot say that the above statement was in fact prejudicial to the defendant. Furthermore, no objection was made to the court’s action and therefore error cannot be predicated on such answer.

The above being dispositive of the issues in this case, the trial court is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: BOOKOUT, Judge. BOOKOUT, Judge.

license: Public Domain

text:
    Randolph HARRISON v. STATE.
    4 Div. 549.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.
    After Remandment March 21, 1978.
    Myron H. Thompson, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen. for the State.
   BOOKOUT, Judge.

Grand larceny; sentence: seven years imprisonment.

We have endeavored to set out the facts as accurately as possible considering that the record is replete with contradictions, unclear and confusing testimony. It appears from the record that on the night of January 14, 1977, Johnny M. Smith drove his 1969 green Chevrolet Impala to the Busy Bee Cafe in Houston County. Smith testified that he entered the cafe around midnight and did not leave until about two hours later, at which time he discovered his automobile was missing. Smith stated that he never gave anyone permission to remove his automobile from that location. He later found his car at a wrecker service in Headland, Alabama, where it had been taken after being abandoned by the appellant and his companion.

Johnny Bernard Rudolph, appellant’s accomplice, testified that he and the appellant went to the Busy Bee Cafe the night of January 14 around eleven or twelve o’clock. He stated that he and several others, including the appellant and Smith, left in Smith’s green Impala, but returned in a few minutes to the Busy Bee to play pool. Rudolph said that the appellant played one game of pool and then left. Rudolph left about five minutes later. He testified that he made no mention to the appellant that Smith’s keys were left in the car. Rudolph left in Smith’s car, saw the appellant walking down the street and offered him a ride. The appellant got in, and Rudolph drove to Headland, wrecking the automobile once in route. The car quit running in Headland.

Rudolph testified that the appellant did not know the car was stolen until “after it quit in Headland.” When the car quit, Rudolph got out and attempted to take a battery from a nearby automobile belonging to a Mr. Faison. Mr. Faison saw Rudolph in the process of stealing the battery and yelled at him, whereupon Rudolph and the appellant fled on foot. Rudolph, age fifteen, testified that he later admitted stealing the car, entered a plea of guilty, and had been placed in a boys’ correctional school.

The appellant testified that he, Rudolph and another companion went to the Busy Bee, played a couple of games of pool, and then went to another cafe next door after the Busy Bee closed. They met Johnny Smith and Johnny Richardson at the second cafe. Appellant testified that after a while, Richardson drove the appellant, Smith and Rudolph to the Scooter Store in Smith’s car. He said that they returned to the cafe shortly and began playing pool. He testified that Rudolph came up to him and said something about Smith’s car keys being left in the ignition, and that he, appellant, left about fifteen minutes later. Appellant stated that Rudolph pulled up behind him on the street in Smith’s automobile and that he got in and asked Rudolph to take him home. Rudolph said he wanted to go to a Junior Food Store and then ride around, to which appellant agreed.

Rudolph drove the car into a telephone pole, and then drove on to Headland, where the car broke down. Appellant stated that Rudolph tried to take a battery from a car, but a man came out whom the appellant thought was armed, and they fled. He stated that the police came up as they were walking down Peachtree Street and that Rudolph threw the car keys into the bushes. Appellant said that the police ordered them to fall to the ground on their hands and knees, and then questioned them. The police later took them to the police station, and the appellant testified that he then decided to cooperate and that he assisted the police in finding the keys.

Officer Jesse Morgan, of the Headland Police Department, testified that he and another officer responded to a call from Mr. Faison early on the morning of January 15, and found a green 1969 Chevrolet Impala blocking the road. Mr. Faison described the man who had attempted to take the battery, and the officers began searching for him. They saw the appellant and Rudolph walking along Peachtree Street. The officers stopped the pair and, “took them into custody,” because Rudolph fit the description which Mr. Faison had given them. Officer Morgan asked the two suspects several questions, then took them back to the abandoned automobile, became increasingly suspicious, then formally arrested the appellant on suspicion of grand larceny.

The only issue raised on appeal is whether the trial court committed reversible error in allowing into evidence a statement of a somewhat inculpatory nature by the appellant, without having apprised him of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In criminal trials, the prosecution may not use inculpatory statements stemming from custodial interrogation of an accused unless it demonstrates that the accused was first apprised of the procedural safeguards embodied in the Miranda decision. “Custodial interrogation” was defined in Miranda as, “Questioning initiated by law enforcement officers after a person had been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Though parts of the record are vague, it appears that the appellant and Rudolph were taken into custody, placed in the police vehicle, driven back to the location of the abandoned car, and questioned before they were given the required Miranda warning. In addition, there was unrebut-ted testimony that the two suspects were ordered to fall on the ground on hands and knees at the time police approached them, and Officer Morgan himself testified that he “took them into custody,” when he approached them on Peachtree Street.

Miranda, supra, does not prevent traditional investigatory functions such as general on-the-scene questioning, but it does become operative where restraint of an individual by law enforcement personnel is “significant.” United States v. Montos, 421 F.2d 215 (5th Cir. 1970) cert. denied 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. The dividing line between general investigation and custodial interrogation is not drawn with precise demarcation, but is determined on a case-by-case factual analysis. Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972). Criteria used to determine the necessity of Miranda safeguards include: probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation. Montos, supra. Especially important is whether the focus of the investigation had finally been centered on the accused. Brown, supra; DeGruy v. State, 56 Ala. App. 521, 323 So.2d 406 (1975) cert. denied 295 Ala. 399, 323 So.2d 411. Evaluating the above facts in light of Miranda and Brown, supra, we find that the appellant was in custody when he made his somewhat incriminating statement to the officers. At the time Officer Morgan accosted the appellant and Rudolph on the street, the focus of the investigation was clearly centered on the two men. Furthermore, it must have appeared to the two suspects, from the manner and approach of the police, that they were not free to go at any time. They were “significantly restrained” at the moment the police officers stopped them and took them into custody, whether or not they were immediately placed under formal arrest.

Officer Morgan testified that he asked the two suspects if they knew anything about the abandoned car, and both stated that they knew nothing about it. The following then occurred:

“Q. Did they tell you what their names were?
“MR. THOMPSON: I object to what the defendant said, Your Honor.
“THE COURT: About what his name was or what are you objecting to? “MR. THOMPSON: Any statement, unless he lays a predicate.
“THE COURT: I understand he asked him what his name was and I overrule you as to that.
“Q. Okay. Did you ask them what their names were?
“MR. THOMPSON: I continue my objection.
“THE COURT: I overrule you.
“THE WITNESS: I don’t believe I asked their name until we got back to the vehicle.
“Q. Did you find anything in the vehicle?
“A. Yes, Sir. I found two cards, Alabama State Employment Cards that I have here.
“Q. Do they have any name on them? “A. Yes, Sir. They have the name of Johnny Smith.
“Q. All right. After you found the cards in the car, did you ask anything regarding the names on the cards?
“A. Yes. I pulled the card in my hand and walked up to the car and asked who Johnny Smith was.
“Q. All right. Did anyone reply to that question?
“A. Yes, Sir. Randolph Harrison said he was Johnny Smith.
“MR. THOMPSON: I maintain that general objection.
“MR. SORRELLS: We submit it was an investigation and he was under custodial interrogation.
“THE COURT: Yes. I overrule the objection.”

The prosecutor was apparently arguing that the appellant’s statement was admissible because, “he was under custodial interrogation.” We agree that the appellant was under custodial interrogation, but for that reason the statement was inadmissible rather than admissible. Miranda, supra.

In reviewing the statement made by appellant, it should be emphasized that the giving of a false name to the police at the time of such interrogation is a circumstance which may be looked upon by the jury as indicating a consciousness of guilt, or an attempt to escape detection. Certainly the introduction of such a statement was prejudicial to the appellant. Upon a proper, specific and timely objection, such a statement should not have been admitted into evidence. However, that portion of the record, quoted above, clearly shows that the objection came after the question was answered. The objection was neither timely nor specific.

It has long been held in Alabama that an objection after an answer is given, comes too late. Lewis v. State, 121 Ala. 1, 25 So. 1017 (1899). After a question is asked, and a responsive answer given, an objection comes too late, and the trial court will not be put in error absent a motion to exclude and an adverse ruling thereon. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1976); Miller v. State, 52 Ala.App. 525, 294 So.2d 774 (1974); Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974). We find no error on the part of the trial court.

AFFIRMED.

All the Judges concur.

AFTER REMANDMENT

BOOKOUT, Judge.

On application for rehearing in the Supreme Court, Justice Maddox suggests that our finding that appellant was under custodial interrogation may have been based upon a statement to that effect by the prosecutor which may have been incorrectly transcribed by the court reporter. He contends that if the prosecutor actually said that when the questioning took place, appellant was not under custodial interrogation, then we could move to correct the record under Rule 10(f), ARAP, and change our finding.

From a reading of our opinion, it clearly appears that the basis of our finding of custodial interrogation was from the following facts set out in the opinion at length:

(1) “. . . The officers stopped the pair and, ‘took them into custody,’ because Rudolph fit the description which Mr. Faison had given them. . . ."
(2) “. . . Officer Morgan asked the two suspects several questions, then took them back to the abandoned automobile, became increasingly suspicious, then formally arrested the appellant on suspicion of grand larceny.”
(3) . . [AJppellant and Rudolph were taken into custody, placed in the police vehicle, driven back to the location of the abandoned car, and questioned before they were given the required Miranda warning. . . ”
(4) “. . .In addition, there was un-rebutted testimony that the two suspects were ordered to fall on the ground on hands and knees at the time police approached them, and Officer Morgan himself testified that he ‘took them into custody,’ when he approached them on Peachtree Street.” (Emphasis supplied.)

We recognized in our opinion that Miranda does not prevent traditional, general on-the-scene questioning until restraint of the individual by police becomes “significant.” We cited Brown v. Beto and DeGruy v. State, supra, setting out criteria for making such a determination. We then specifically stated that our finding was based upon the above enumerated facts. It was not until later in our opinion that the prosecutor’s statement appeared in a quoted portion of the record. We made a casual reference to his statement, and in no way did we base our finding upon that comment by the prosecutor. Therefore, there is no need to use Rule 10(f), ARAP, to correct a comment of the prosecutor which was not evidence in the case and was not considered in reaching our finding.

REVERSED AND REMANDED ON MANDATE OF THE SUPREME COURT.

All the Judges concur.


author: BLOODWORTH, Justice. MADDOX, Justice

text:
    In re Randolph HARRISON v. STATE. Ex parte Randolph Harrison.
    77-46.
    Supreme Court of Alabama.
    Feb. 10, 1978.
    As Corrected on Denial of Rehearing March 10, 1978.

      Myron H. Thompson, Dothan, for petitioner.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   BLOODWORTH, Justice.

The question presented to us by this petition for writ of certiorari is: “Did the Court of Criminal Appeals err in affirming the trial court which allowed into evidence petitioner’s inculpatory statement without his first having been given the Miranda warnings?” We answer in the affirmative and reverse and remand.

The facts are that petitioner and another allegedly stole a car. When the car stalled, they allegedly attempted to steal a battery from a Mr. Faison, who saw them and called police. The police came and took the two “into custody” because one of them fit the description given by Mr. Faison. The arresting officer asked if they knew anything about the stalled stolen car. They replied they did not. The Court of Criminal Appeals made a finding that what then took place was a “custodial interrogation,” viz:

“Q. Did they tell you what their names were?
“MR. THOMPSON: I object to what the defendant said, Your Honor.
“THE COURT: About what his name was or what are you objecting to?
“MR. THOMPSON: Any statement, unless he lays a predicate.
“THE COURT: I understand he asked him what his name was and I overrule you as to that.”
******
“Q. Okay. Did you ask them what their names were?
“MR. THOMPSON: I continue my objection.
“THE COURT: I overrule you.
“THE WITNESS: I don’t believe I asked their name until we got back to the vehicle.”
******
“Q. Did you find anything in the vehicle?
“A. Yes, Sir. I found two cards, Alabama State Employment Cards that I have here.
“Q. Do they have any name on them? “A. Yes, Sir. They have the name of Johnny Smith.
“Q. All right. After you found the cards in the car, did you ask anything regarding the names on the cards?
“A. Yes. I pulled the card in my hand and walked up to the car and asked who Johnny Smith was.
“Q. All right. Did anyone reply to that question?
“A. Yes, Sir. Randolph Harrison said he was Johnny Smith.
“MR. THOMPSON: I maintain that general objection.
“MR. SORRELLS: We submit it was an investigation and he was under custodial interrogation.
“THE COURT: Yes. I overrule the objection.”

The Court of Criminal Appeals held that the statement was “inadmissible” and that the giving of a false name at the time might be looked to by the jury “as indicating a consciousness of guilt” or “an attempt to escape detection” and was “clearly prejudicial” to petitioner.

The court went on to hold, however, that because the objection came after the question was answered it came too late, and, further, that it was not specific. The court held the trial court should not be put in error absent a motion to exclude and an adverse ruling thereon, i. e., “waiver.”

The Miranda Rule clearly mandates that the prosecution may not use statements, inculpatory or exculpatory, stemming from a “custodial interrogation” of a defendant unless it proves that the Miranda warnings were given prior to questioning. The burden on the prosecution is heavy, Miranda holds, to prove that the defendant “knowingly and intelligently waived his privilege against self-incrimination.” Miranda v. Arizona, supra; see also Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976).

In view of the heavy burden on the prosecution to prove waiver, the mandatory character of the Miranda Rule, and the uncontroverted finding, of the Court of Criminal Appeals that this was a custodial interrogation, we think the Court of Criminal Appeals erred in holding “waiver” under the circumstances of this case. We think that portion of the record from which we have quoted does not support such a holding.

It is thus that we hold that, in any “custodial interrogation,” the duty is on the state to prove, in accordance with the mandates of Miranda, that the Miranda warnings were given, in order to use, at trial, any statements, exculpatory or inculpatory, where, as here, there was an objection thereto.

We do not hold that general-on-the-scene questioning of suspects may not take place without the giving of Miranda warnings. See Miranda, supra, which speaks to that issue.

REVERSED AND REMANDED.

All the Justices concur.

On Rehearing

OPINION CORRECTED.

APPLICATION FOR REHEARING OVERRULED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

In view of the fact that the opinion has been modified to hold that the State has to prove the mandates of Miranda, “where . . there was an objection thereto,” I concur in the result of the remand for the reasons I later state.

I hope that the Court of Criminal Appeals, on remand, will re-examine its finding that Harrison was “under custodial interrogation.” If this finding of custodial interrogation was influenced, as it appears it was, by the statement in the record by Mr. Sorrells to the effect, “We submit it was an investigation and he was under custodial interrogation” — then I call that court’s attention to the fact that the State contended here — and it apparently is a fact — that what Sorrells actually said was: “We submit it was an investigation and he was not under custodial interrogation.”

Harrison is entitled to a fair trial, but he is not entitled to have the Court of Criminal Appeals base its finding of “in custody” on an incorrect record, if that is the case. The new appellate rules of practice, specifically Rule 10(f), are flexible enough to permit that court, on remand, to allow the State to get a corrected record. This Court has allowed a similar procedure for a defendant, even on certiorari. Ex parte: State of Alabama, ex rel. Attorney General, In re: Milton H. Satterwhite, Jr. (1977), Ala.Sup., 357 So.2d 819.

In short, if this appeal turns on whether the defendant was or was not in custody, that determination should not be made on an erroneous record, when the court has the power to get a correct one, on motion of the parties, or on its own motion, under Rule 10(f), A.R.A.P.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: HARRIS, Judge.

text:
    Chrissell HAMILTON v. STATE.
    3 Div. 721.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.
    Bob E. Allen, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary. In the presence of retained counsel at arraignment he pleaded not guilty and not guilty by reason of insanity. After conviction he gave notice of appeal and requested a free transcript. He was determined to be indigent and was furnished a free transcript. One of appellant’s counsel was appointed to represent him on appeal.

The evidence in this ease is in sharp conflict. Only a jury could unscramble the conflicting testimony and arrive at a verdict.

On Sunday, April 25, 1976, appellant shot the deceased while the deceased was in his car parked in front of 234 Mildred Street, in the City and County of Montgomery, Alabama. This address was the home of appellant’s mother.

On the afternoon of April 25, 1976, the wife of the deceased went to 234 Mildred Street and saw her husband’s car parked there. She was taken there in a car driven by a cousin. She knocked on the door and asked if her husband was there and was informed that he was inside. She entered the house and talked to her husband for ten or fifteen minutes. During this period he pulled $30.00 out of his pocket and gave it to her. He then took out his wallet and showed her that he had $150.00 left. According to the wife her husband had seven $20.00 bills and two $5.00 bills. She left her husband at this Mildred Street address and she saw him again that same afternoon at a local hospital. He had sustained two gunshot wounds to his head. He died in the hospital and the next time she saw him he was in a casket at a funeral home. She was shown two photographs of her husband taken at the funeral home and she identified them as her husband. They were introduced into evidence over appellant’s objections.

She further testified that present in the house when she was there were appellant, his mother (Clara Mae Porter), A1 Peterson, Eddie Holt, Jim Clark, Debora Harris, her husband, and several others whom she did not know. She stated that appellant and his mother were playing the piano and the others were sitting on the sofa drinking and playing cards.

Police Officer George Roger Owens of the Montgomery Police Department was the first officer to arrive at the scene to investigate the shooting. He stated that he arrived at approximately 3 o’clock in the afternoon and found a black male in a Buick automobile slumped over the front seat and that his arms were dangling to the rear seat of the four-door car. He said the trunk of his body was still under the steering wheel and his right foot was right over the gas pedal but a little higher than the gas pedal. He said that his left foot was twisted around a little further. He found a small Barlow knife in the back floorboard of the automobile. He identified this knife and it was introduced into evidence.

Officer Owens further testified that the paramedics arrived and he removed the billfold from the shot man as they were putting him on a stretcher to transport him to the hospital. There was no money in the billfold but he found a cheek stub on the right side of the car where the right door would have opened that had the name of the deceased, Aaron Davenport, on it.

The officer talked to people around the car and on the porch and could not get any information as to what had occurred. Everyone there said they did not see anything and did not know anything. While the officer was trying to get some information appellant came walking up Mildred Street, and at this time he was not a suspect. The investigation had not focused on appellant, but appellant started to make a statement.

At this point a voir dire hearing was had out of the presence and hearing of the jury at the request of appellant’s counsel. The officer testified in answer to counsel’s questions that he had talked to appellant’s mother and sister there at the house and several other people there at the scene and they would not tell him anything. They said they didn’t see anything. He stated that he then saw appellant walking up to him and he spoke to appellant.

From the record:

“Q. Do you know him?
“A. Yes, sir.
“Q. You also knew that he had a record?
“A. Well, yes, sir. I knew he was in the County Jail at the time.
“Q. What did you say to him?
“A. I asked him if he could help me. I couldn’t get any information from any of the people there at the house.
“Q. And what did he say back to you?
“A. He said he would tell me one truth if I would tell him one.
“Q. Tell him one what?
“A. He said, ‘If you will tell me a truth, I’ll tell you one.’
“Q. And then what did he say?
“A. I said, ‘That’s fair enough.’ He asked me if there was a knife in the automobile, and I told him that there was. And he said, ‘Well, I shot him.’
“Q. Let me ask you about the knife; was it open when you found it?
“A. Yes, sir, it was.”

Back before the jury the State proved the substance of the above quotation.

Clara Mae Porter was called as a witness for the State. She testified that appellant was her son and that she had known the deceased five or six months. She said that the deceased came to her home on the day he was shot around 3 or 4 o’clock in the afternoon and he came with A1 Peterson, Eddie Holt and her son. She stated that her mother, daughter, Arthur Billingsly, Jim Clark and George Paul McGee were present when the others arrived. She stated that they were sitting around having fun, drinking and playing cards. She said the deceased was drinking and appellant had a beer. She stated that all of them were drinking but she was paying strict attention to her son because she “knew that he was already in trouble. That’s- why I was paying attention to him.”

Counsel for appellant' objected at this time to the question, “Oh, he was already in trouble . . . ” but the objection was overruled by the Court saying, “That’s part of the res gestae, as I understand it.” There was further mention of the fact that appellant was already in trouble, but the Court sustained appellant’s objection.

Counsel for the prosecution asked appellant’s mother if he was living with her on April 25, 1976, and she replied that he was not. Then she was asked where he was living at that time and she replied, “He was living at the County Jail at-that time.” Appellant’s counsel then moved for a mistrial and the motion was overruled.

This witness further testified that the wife of the deceased came to her home and had a conversation with him and the deceased gave her some money but she didn’t know how much he gave her, and she didn’t know if he had any more money left after giving his wife some money. She stated that, after the wife of the deceased left her house with the money he had given her that the deceased sat on the sofa between A1 Peterson and her son. The deceased dozed off and slept for fifteen or twenty minutes and while he was asleep her son got up and went to the back room to the bathroom. She further testified that he awoke and started cursing her son and accusing him of taking his money; that the deceased told appellant that he knew he had taken his money and he threatened to kill him. Appellant returned to the room and told the deceased that he did not take his money.

Clara Mae Porter continued to testify that the deceased began using obscene language and threatened to kill appellant several times. A1 Peterson and Eddie Holt carried deceased outside on the porch but that the deceased returned with a knife in his hand and again threatened to kill appellant. She said she did not see anyone take the deceased’s money.

On cross-examination she testified that the deceased stood in the hallway between her living room and dining room with an open knife in his hand and told appellant that he was going to kill him and at this point she ordered the deceased to leave her house.

George Paul McGee testified that when the shooting took place he was on the porch and had been on the porch for about 30 minutes. He stated that he did not hear any argument inside the house. He said the deceased left the house and walked down the steps with witnesses Peterson and Holt and he had a knife in his hand at that time. He said, that five to ten minutes later appellant came out of the house and walked towards the car and at this time the deceased made a break to get out of the car with the knife in his hand. He stated that the deceased had one foot on the ground with the knife in his right hand and had his left hand on top of the car. He could not testify whether the deceased ever got completely out of the car, but at the time he attempted to appellant was standing on the sidewalk six or seven feet from the automobile and had a gun in his hand. He said he looked off and heard a shot or two and when he looked around he saw the deceased slumped over the seat with the knife still in his hand.

On cross-examination he stated that the deceased was in the front seat of the ear under the steering wheel and that the driver’s side was next to the sidewalk. He stated that when appellant came out of the house and walked by the automobile the deceased started out of the car with a knife in his hand. He said there was an argument at the car between the deceased and Eddie Holt and A1 Peterson. He heard the deceased say he was going to kill appellant.

Jim Clark testified to substantially the same facts as witness McGee, but he did not see anyone take the deceased’s money while he was asleep on the sofa between appellant and A1 Peterson. He said when they got the deceased to his automobile he got in the car and sat down but had one leg hanging out of the car. He also stated that the deceased had been drinking but he did not seem to be drunk.

A1 Peterson testified that he lived at 438 Caroline Court and that he had known the deceased about two years before his death; that he first saw the deceased on April 25, 1976, around 9:00 a. m. He said they were with some other individuals including Eddie Holt, and they were joined by appellant later that day. They went to the appellant’s mother’s home and they were drinking. He stated that he, appellant and the deceased sat on the sofa with the deceased in the middle. He said he dozed off the the next thing he remembered hearing was a statement by the deceased that appellant had clipped him. He didn’t know whether appellant clipped the deceased or not while both of them were asleep.

Peterson further testified that they persuaded the deceased to “get up, and let’s go.” He said that he wanted to break up the argument and he, Eddie Holt and Jim Clark all went to the deceased’s car. They got in the car and the deceased was sitting under the steering wheel. He stated that he got in the back seat and that Clark was on the passenger side in the front seat. His door was closed and he thought all doors to the car were closed. The next thing he heard was some shots and the deceased was in the car when he got shot and he was sitting down. He denied they had to scuffle with the deceased to get him in the car. He further stated that after the deceased was shot he slumped over the back seat and he got out of the car and went home. He said that at the time the deceased was shot he had a knife in his hand.

Detective Roger D. Boothe testified that he was assigned to investigate the shooting involving the death of Aaron Davenport. He stated that when he arrived the paramedics were putting Davenport on the stretcher. The car was empty and he looked in the back of the car and saw an open knife on the floorboard of the passenger side in the back of the car. He made a close inspection of the car and found that the door on the driver’s side would not open from the inside.

Boothe further testified that while he was at the scene of the shooting Officer Owens came up and had appellant with him. He asked Owens what happened, and Owens said, “I think you need to talk to Chrissell Hamilton.” Boothe stated that he talked to appellant briefly at the scene. Thereupon the prosecutor made known to the Court that he wanted to take this matter up outside the presence of the jury and the jury was excluded from the courtroom.

During the voir dire hearing it developed that Boothe gave appellant the Miranda rights and warnings at the scene of the shooting. After advising appellant of his constitutional rights appellant said he understood his rights and Detective Boothe asked him what led up to the shooting. Appellant told Boothe at the scene that Davenport accused him of taking some money and pulled a knife on him and he shot Davenport. Boothe asked him where he got the gun and appellant said that a boy came walking up the street with a gun in his hand and that he snatched the gun out of the boy’s hand and shot Davenport and then threw the gun back and he didn’t know who had the gun. After appellant made this statement to Detective Boothe he was carried to police headquarters and given his constitutional rights again. Boothe gave him a waiver of rights form which he read and signed. This form is as follows:

“City of Montgomery, Alabama; Department of Police; Name, Chrissell Hamilton, Jr., Black male, age twenty-five; place, Detective Division, Montgomery Police Department; date, 4/25/76; time, 6:40 p. m.; charge, assault to murder. “ ‘Before asking you any questions, I must explain to you that you can remain silent, that anything you say can be used against you in court, that you can talk to a lawyer first and that you have the right to the advice and presence of a lawyer even though you cannot afford to hire one. If you cannot afford to hire a lawyer and want to have one present during interrogation, the court will appoint one before we question you. If you want to answer questions now, you can do so, but you can stop answering at any time.’ And I signed that, Officer R. D. Boothe. “The next part: T fully understand the foregoing statement and do willingly agree to answer questions. I understand and know what I am doing. No promise or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.’ And it is signed by Chrissell Hamilton, Jr.”

Boothe further testified that after appellant signed the waiver form he questioned him further. He stated that he did not apply any physical force to appellant to get him to make a statement and no one in his presence did. He said that only he and appellant were present in the interrogation room. Boothe said appellant was not threatened in any manner; that no promises were made to him and no hope of reward or other inducements were held out to him to get him to make any statement. This was followed by a question and answer interview which was reduced to writing. It reads as follows:

“ ‘4/25/76; 6:45 p. m. This is the statement of Chrissell Hamilton, Jr., concerning the shooting of Aaron Davenport in front of 234 Mildred Street on 4/25/76 at approximately 3:00 p. m.
“ ‘Q Did you see Aaron Davenport on this date?
“‘A Yes.
“ ‘Q Did you and Davenport get into an argument concerning some money that he said that you had stolen from him while he was asleep?
“ ‘A It wasn’t an argument. He just indicated that me or A1 had taken his money.
“ ‘Q Did you shoot Aaron Davenport twice in the head?
“ ‘A I shot twice. I don’t know where they hit.
“ ‘Q Did you intend to kill Aaron Davenport?
“ ‘A Yes, I did.
“‘Q Why?
“ ‘A He had a knife and I didn’t know what he would have done if he had the chance.
“ ‘Q Where was Davenport when you shot him?
“ ‘A Advancing on me from his car.
“ ‘Q Was his feet on the ground or in the car?
“ ‘A He was standing outside his car with one hand on the door and a knife in the other.
“ ‘Q Did Davenport ever try to cut you?
“ ‘A I don’t know what his intentions were.
“ ‘Q What kind of gun did you have?
“ ‘A A .22 caliber.
“ ‘Q Where did you get this gun?
“ ‘A I snatched it out of this boy’s hand.
“ ‘Q Who was this boy?
“ ‘A I don’t know. I just know him when I see him.
“ ‘Q Where is the gun now?
“ ‘A I wouldn’t know if he hasn’t got it. “ ‘Q Who did you give the gun to?
“ ‘A I don’t know him by name.
“ ‘This statement is true and correct to the best of my knowledge.’ And I signed it and Chrissell Hamilton, Jr. signed it.”

On cross-examination Boothe was asked if appellant did not later come back to him and state that a part of the statement was incorrect; that he had actually lied to him and wanted to straighten matters out. Boothe replied that appellant did not voluntarily return to him to straighten anything out but that he interviewed him again. Appellant told Detective Boothe on this occasion that he had his pistol in his pocket all day that day. He had been gambling and he had brought the pistol back and had put it up until he and Aaron started arguing again, and he went and got the pistol back again.

Back before the jury .the proper predicates were laid and the waiver of rights form and the confessory statement were introduced into evidence and read to the jury.

Boothe further testified that two days after the shooting and after Hamilton had given him a confessory statement he went back to the jail and talked to appellant again. Appellant told him the gun was in his mother’s house and if he would let him call his mother he would tell her to give him the gun. Boothe let the defendant call his mother in his presence but the defendant did not tell his mother to surrender the gun to the officer.

Detective Boothe went to appellant’s mother’s home and saw the gun on the table and he picked up the gun. The gun was empty and he told her he needed everything that had been removed from the gun. The mother told one of the small children present to go and get the bullets. The child returned with four live cartridges and two spent hulls and gave them to the officer. The officer later fired one of the cartridges to see if the pistol would fire. The pistol, the live cartridges and the three spent cartridges were introduced into evidence without objection. The waiver of rights form and the confessory statement previously read to the jury were then formally introduced into evidence over appellant’s objection that they had already been read to the jury. The objection was overruled.

The State rested and appellant made a motion out of the presence and hearing of the jury to exclude the State’s evidence on the first degree murder charge saying, “The State has failed to make a prima facie case of first degree murder.” This motion was overruled.

The appellant called Willie Mae Davenport and attempted to prove the deceased had been convicted of various crimes. The State objected and the objection was sustained by the Court who advised counsel, “There is higher and better evidence than that.” The Court was referring to certified copies of judgments of convictions. Appellant’s counsel persisted saying he wanted to test her recollection but the trial court sustained the State’s objection.

The defense then called two witnesses who restated the facts brought out by the State on direct examination concerning the threats made by the deceased to kill appellant because of the money he had taken from him while he was asleep on the sofa between appellant and Peterson. One of these witnesses was appellant’s sister and her testimony was somewhat at variance with the testimony of the other witnesses.

Appellant did not testify.

The trial court charged the jury on all four degrees of homicide. He also gave the jury all of appellant’s written charges — fifteen in number. The Court refused appellant’s request for the affirmative charge. He also charged the jury on the law of self-defense.

In Young v. State, 283 Ala. 676, 220 So.2d 843, 847, the Supreme Court held:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error.”

It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness of conflicting evidence. May v. State, Ala.Cr.App., 335 So.2d 242. Ala.Dig.Crim.Law, 1159.3(1).

Appellant claims reversible error was committed by the prosecutor in making reference to prior arrests of appellant. The record does not support this contention. Appellant’s mother volunteered on direct examination that he was living at the County Jail at the time he shot the deceased. The prosecutor did not mention the word “arrest”, nor was there a reference made to a prior conviction of appellant. The question as to where appellant was living was a proper subject of inquiry. The responses made by the appellant’s mother were not direct references to appellant’s bad character but were only incidental in explaining the witness’s attentiveness or defendant’s place of abode at the time of the shooting. If appellant’s counsel had perceived that the mother’s responses tended in any manner to reflect on appellant’s character he should have moved the Court to exclude her answers. This he did not do. Under the holding in Chicarella v. State, 39 Ala.App. 22, 93 So.2d 802, we do not think reversible error was committed.

In Willingham v. State, 261 Ala. 454, 74 So.2d 241, 244, the Supreme Court observed:

“Where a question which does not manifestly call for incompetent testimony but the answer itself discloses the incompetency, the remedy is by a motion to exclude.”

In Brown v. State, 21 Ala.App. 371, 108 So. 625, this Court stated the law to be that, where accused’s objections to questions were overruled but he made no motion to exclude the answers, he waived their admissibility.

Instead of making a motion to exclude the statement of appellant’s mother that he was living in the County Jail counsel made a motion for a mistrial. This motion was denied, and properly so. Shadle v. State, 280 Ala. 379, 194 So.2d 538; Carroll v. State, 45 Ala.App. 92, 225 So.2d 198.

During closing arguments appellant made a second motion for a mistrial. The prosecutor was merely referring to facts already in evidence. There was no error in denying this second motion for a mistrial. Bullard v. State, 40 Ala.App. 641, 120 So.2d 580; Arant v. State, 232 Ala. 275, 167 So. 540.

Photographs of the body of the deceased were properly admitted into evidence. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Boulden v. State, 278 Ala. 437, 179 So.2d 20; McKee v. State, 253 Ala. 235, 44 So.2d 781; Grissett v. State, 241 Ala. 343, 2 So.2d 399.

Appellant contends that the Court erred in overruling his motion to exclude the State’s evidence with reference to the failure of the State to make out a pripia facie case of murder in the first degree, We do not agree. This was an issue for the jury and the evidence in this case fully supports the verdict of the jury. Garner v. State, 34 Ala.App. 551, 41 So.2d 634; Graham v. State, Ala.Cr.App., 339 So.2d 110.

We have carefully searched the 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: PER CURIAM.

text:
    In re Chrissell HAMILTON v. STATE of Alabama. Ex parte Chrissell Hamilton.
    77-124.
    Supreme Court of Alabama.
    May 5, 1978.

      Bob E. Allen, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   PER CURIAM.

Chrissell Hamilton was convicted in Montgomery County Circuit Court of murder in the first degree of Aaron Davenport and sentenced to life imprisonment. Cer-tiorari was granted by this court to review the decision of the Court of Criminal Appeals upholding the conviction. We quash the writ as improvidently granted.

In quashing the writ, we make the following observations.

We cannot agree with all the reasons advanced by the Court of Criminal Appeals for affirming the conviction.

We do agree that the question as to where Hamilton was living at the time of the offense was a proper subject of inquiry by the State since the issue of self-defense on the part of Hamilton was clearly raised at trial. Since the threats which precipitated the shooting occurred inside Mrs. Porter’s house, the prosecutor’s question, as to Hamilton’s place of residence on April 25, 1976, was relevant to the issue of self-defense in order to raise the application of the duty to retreat rule.

Hamilton’s second allegation of error is that his mother’s comments that she was paying close attention to her son because she knew “that he was already in trouble” were prejudicial and informed the jury of his previous arrests. We agree that such comment did not constitute reversible error because of the context in which it arose. The question put was: “Why did you pay strict attention to him and know he only drank one beer?” The answer, if unresponsive, should have been the subject of a motion to exclude. Brown v. State, 21 Ala.App. 371, 108 So. 625 (1926). We note there was no specific reference to any prior arrest or conviction of Hamilton and that the answers given by Mrs. Porter were not statements made to show Hamilton’s bad character, but were merely incidental remarks made during her detailed account of the events of April 25, 1976. Moreover, the objection by defendant’s counsel was made after the prosecuting attorney began to repeat the mother’s answer. The objection was not made to the original question, nor the answer itself. Furthermore, the court sustained this objection and did not permit any further inquiry into this matter.

WRIT QUASHED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Robert LAMBERT v. STATE.
    3 Div. 799.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.

      Frank L. Thiemonge, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the second degree and the jury fixed his punishment at twenty years imprisonment in the penitentiary. He was represented by retained counsel and at arraignment pleaded not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal and petitioned the Court for a free transcript. He was found to be indigent and he was furnished a free transcript. New counsel was appointed to represent appellant on this appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment,
ROBERT WINSTON LAMBERT, alias
BOB BAMBERT, alias
ROBERT W. LAMBERT, alias
WINSTON LAMBERT, alias
ROBERT LAMBERT,
whose name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforethought, killed Alma Jean Weaver, otherwise known as Alma Jean Lambert, by hitting her with his hands, or by hitting her with his fists, or by hitting her with a baseball bat, against the peace and dignity of the State of Alabama.”

At the close of the State’s case appellant made a motion to exclude the evidence only as to murder in the first degree alleging the State failed to prove the element of premeditation. This motion was overruled. We will summarize the evidence.

James Larry Gothard testified that the deceased, Alma Jean Lambert, was his mother. He said that she was married to Winston Weaver but they were never divorced. She had lived with appellant approximately four years; that during this period of time Gothard lived with his mother and appellant for about two weeks but moved out because “there was too much fighting and fussing going on to get to sleep at night.” He further stated that appellant kept a baseball bat beside his bed or somewhere handy. He admitted that his mother and appellant often drank to excess and both would get drunk.

Joseph Lambert testified that appellant was his brother and that on Monday, November 15, 1976 he arrived at appellant’s trailer around six o’clock that morning; that a few minutes later appellant left to go to his place of employment. He said that he and Alma Jean Lambert started drinking gin and beer and drank together until eight or nine o’clock that night. He stated the reason he went to the trailer that morning was to tell his brother that he was moving back to his rented room on East Second Street in Oak Park.

He further testified that when it got dark he told Alma Jean that he was going home and she asked him to take her to her son’s home on Cherry Street. He drove her to Cherry Street but she didn’t know the number of her son’s home. He then drove to East Second Street and went to his room. Alma Jean spent the night in the bedroom with his landlady. On Tuesday night appellant came to the house on Second Street and shouted to Joseph Lambert through the window. He told appellant he did not want any trouble with him and appellant left but returned shortly and entered the house. He and appellant “tangled” and appellant kept saying he knew Alma Jean was in the house. He said the second time appellant came to the house he had a baseball bat in his hand. He told appellant that he had called the police twice and he had better leave. Appellant and Alma Jean left together and this was the last time he saw Alma Jean. He stated that appellant was drinking but he was not drunk.

William L. Gardener testified that he was employed by the Montgomery Fire Department as a medic; that around 5:00 a. m. on November 18, 1976 he and his partner answered a call at the home of appellant. He stated that appellant let them in the trailer and showed them the body of Alma Jean Lambert lying half on and half off the bed. He stated that he examined the body and that rigor mortis had set in and that she was cold and stiff. He said appellant was highly nervous and appeared to have been drinking.

James R. Brown, Jr., employed by the Montgomery Fire Department Rescue Unit, testified that he had occasion to go to the trailer home of appellant on November 18, 1976 where he found the deceased in the bedroom. He asked appellant if his wife had been sick and he replied, “No, I beat her.” Appellant then explained that he found his brother with his wife and he beat him up and then beat his wife and drug her in the house. Brown stated he could not tell whether appellant had been drinking but appellant told him that he had been drinking.

Police Officer B. W. Knighten testified that he and his partner went to appellant’s trailer home on November 18, 1976, and in the back bedroom they found a white female lying on the bed apparently dead. He believed this was a homicide and called the Homicide Unit.

Clifford 0. Bolden, an evidence technician with the Montgomery Police Department, stated that on November 18, 1976, he arrived at the scene of the alleged homicide and made numerous photographs of the homicide scene and collected physical evidence from Officer Tom Totty. He photographed the bedroom where the victim was found and adjoining rooms where there were clothes and a softball bat. He identified State’s Exhibit 2 as an accurate portrayal of the bathroom where the bat was located. This Exhibit was introduced into evidence without objection. This witness also identified State’s Exhibit 4 as the baseball bat found at the scene and Exhibits 5-7 as items of clothing found at the scene. All of these items were given to Officer Totty who personally delivered them to the Toxicologist.

Police Officer Totty testified that he received State’s Exhibits 4-7 from Detective Bolden and kept them in his exclusive possession until he delivered them to the Toxicologist the following day. Totty also identified State’s Exhibit 9 as a piece of evidence collected from appellant’s automobile. He observed blood on the passenger side of the dashboard, the front seat backrest and on the front seat between the driver’s side and the passenger side. He obtained samples of this blood and delivered them to the Toxicologist. State’s Exhibit 8, another blood sample, was admitted into evidence without objection.

Dr. Richard Roper, the Toxicologist in charge of the Montgomery Laboratory, whose qualifications were admitted by defense counsel, performed a postmortem examination on the body of the victim on November 18, 1976. He made numerous photographs of the nude body of Alma Jean Lambert which revealed cuts, bruises and lacerations over her entire body. Over appellant’s objection he was permitted to illustrate his autopsy findings with the use of these photographs and slides on a screen to the jury.

Dr. Roper stated that based on his autopsy examination and findings it was his opinion that death occurred as the result of a traumatic intracranial hemorrhage though the skull was not fractured. He said the hemorrhage was the result of some violent force applied to the body and to the head area, causing the hemorrhage to be of a slow nature. He further testified that this would have resulted from being beaten about the face.

Ms. Mary Wisdom, a Toxicologist, whose qualifications were admitted, testified that the blood samples submitted to her revealed that Alma Jean Lambert’s blood type was Group 0. She stated that her examinations of State’s Exhibits 10-12, stained gauze, which she received from Officer Totty, were inconclusive, but that State’s Exhibit 13, stained tissue paper, revealed that the stain was Group 0 human blood.

Ms. Wisdom identified State’s Exhibit 5, a ladies coat which had a large area of leaf material on the back as well as Group 0 human blood stains on it. She also identified State’s Exhibit 9, a raincoat, on which she found Group 0 human blood. She examined State’s Exhibit 4, the softball bat and found Group 0 human blood on it. State’s Exhibits 4, 5, 7, 9 and 13 were admitted into evidence without objection.

Detective Richard F. Matthews of the Homicide Unit was assigned to investigate the death of Alma Jean Lambert. He went to appellant’s trailer home where he viewed the body of the deceased. Appellant was arrested and carried to Headquarters where Detective Humphrey read appellant the Miranda rights and warnings in the presence of Detective Matthews and appellant signed a waiver of rights form which was witnessed by Matthews.

A voir dire hearing was conducted out of the presence and hearing of the jury and it developed that the officers made no threats, promises, rewards or other inducements to appellant to sign the waiver of rights form. It was further determined that the officers made no threats, promises, rewards or other inducements to appellant to get him to make a statement concerning the death of his wife. The Court determined that everything appellant told the officers was voluntary and of his own free will.

Back before the jury the proper predicate was laid and the waiver of rights form, State’s Exhibit 23, and appellant’s confesso-ry statement, State’s Exhibit 24, were admitted into evidence and read to the jury.

The confessory statement is as follows: “The first question Detective Humphrey asked was: Mr. Lambert, would you tell me about the incident in which your common-law wife, Alma Jean, was beat? And the answer: Yes, sir, I will. The question again: What happened? The answer was: I worked Monday and I came home from work and when I came home from work she was gone with my brother, gone, and my brother was gone also. I did not find her Monday night, and I did not go and look for her. I started drinkin’, and when I went over to my sister-in-law’s house in Oak Park on East Second Street, and we all drank, I then asked Katherine Lambert where, or had she seen my wife Alma. They would not tell me right then, but we kept drin-kin’ and she did tell me that she was in the house, and I went into the back of the house and found her, and she had been drinkin’ also. I dragged her out of the house, and I then got into an argument with my brother, Joe Lambert, and he got up out of bed and came in where I was, and I hit him, and told him he should have left Alma at home, and not take her off drinkin’. I then went to my car and got the ball bat out, and my brother came outside where I was, but he never did come up to me. I told him he should have not done me this way. And he was, as he was stayin’ with me, and they should have stayed at home while I was workin’. I was hit on, I was hit on the head by my brother with his fist or something. I do not really know what. I then took Alma home to Fleming Court, where we sat in the car and we were talking, and one word led to another, and then I started beating her. I then got out of the car and I beat her with my fists and I think I kicked her some, but I really did not know for sure. She was laying on the ground, and I sat down in the car for a while, then I drug her into the house and put her in the bathroom. She laid in the bathroom a long time, and I was drinkin’, and then I put her in the bed, where she was this morning. I drank all day yesterday, which was a Wednesday, bathed her, put the clothes on her, and that she has on now. I noticed early this morning that she was not breathing, and I called the Fire Department. Question from Detective Humphrey: Robert, was Alma breathing or talking yesterday, which is Wednesday? His answer was: Yes, she talked to me yesterday, but she was still drunk and I did not have any heat in the room, and I turned on the heat. Question: How long did she lay out in the yard after you beat her? Answer: She stayed out in the yard for hours. Question: When you took her inside and put her in the bathroom, did you undress her then and change her clothes? Answer: No, I just lay her down in the floor, and a long while later I went back and bathed her off and changed her clothes and put her to bed. I then laid down beside her and woke up this morning and she was cold, and I jumped up and ran outside and used the phone and called the Fire Department and told them to come to my house, and I thought my wife was dead, and I would wait outside for them, and I did. And they went in, and they called the Police Department. Question: What did you beat her with? Answer: Just my fists, I think. I kicked her several times also. Question: Have you ever beat her before? Answer: Yes, I have, and I have got her out of another man’s house not too long ago. Question: Are you and Alma Jean married? Answer: No, we are just common-law. Question: Mr. Lambert, have you been drinking this morning? Answer: No, I finished drinking last night about midnight. Question: Do you know what you are doing, you know what you are doing now, don’t you? Answer: Yes, sir, I know what I am saying or doing, and I am not nowhere near drunk. Question: Robert, have you told me the truth about what happened? Answer: Yes, sir, I have.
“Q. Is anything else on the statement?
“A. Yes, sir. It says: I, Robert Lambert, have read the above statement which is on two pages, and it is the truth to the best that I can remember, and I make this statement freely and voluntarily to Detective C. Humphrey and I freely sign my name, and I have not had any threats or promises made to me.”

Appellant was the only witness in his behalf. He related the events leading up to calling the paramedics. He admitted beating his wife but he denied hitting her with a softball or baseball bat. He stated that when he got home with his wife they started fighting and both fell out of the car and continued to fight. He claimed that he was drunk and that he had a half of a case of whiskey in the car and that his wife did not drink any of it. He denied dragging her into the house but said that he aided her to get inside the house and to the bathroom where he bathed her and put her in the bed.

The investigating officer denied that appellant was drinking at the time they interviewed him and at the time he made the confessory statement.

The only issue raised on this appeal concerns the officers removing the items from appellant’s home without a search warrant.

Appellant did not file a motion to suppress the evidence removed from his home and he did not object to the introduction of these items into evidence.

In Harris v. State, Ala.Cr.App., 347 So.2d 1363, this Court held:

“Title 15, § 389, Code of Alabama 1940, requires that this court must ‘consider all questions apparent on the record or reserved by bill of exception (now transcript of the evidence) and must render such judgment as the law demands’. This statute does not mean that in a case of this kind a review will be made of questions which were not properly raised in the trial court. Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975) and cases cited at 55 Ala.App. 17, 312 So.2d 583; 7 Alabama Digest, Criminal Law, <s=» 1028. Review on appeal is limited to a consideration of questions properly raised in the trial court. Knox v. State, 38 Ala.App. 482, 87 So.2d 671 (1956); Handley v. State, 214 Ala. 172, 106 So. 692 (1926). Matters not objected to in the trial court cannot be considered for the first time on appeal since review on appeal is limited to those matters on which rulings are invoked at nisi prius. Daniels v. State, 53 Ala.App. 666, 303 So.2d 166 (1974); Shiver v. State, 49 Ala.App. 615, 274 So.2d 644 (1973); Cooper v. State, Ala.App., 331 So.2d 752, cert. denied, Ala., 331 So.2d 759 (1976). Even constitutional rights have to be raised seasonably in the trial court in order to be considered on appeal. Fuller v. State, 269 Ala. 312, 113 So.2d 153 (1959); Steele v. State, 289 Ala. 186, 266 So.2d 746 (1972).”

The legality of a search cannot be considered for the first time on appeal. Woodward v. State, 52 Ala.App. 524, 294 So.2d 772.

In Retowsky v. State, Ala.Cr.App., 333 So.2d 193, this Court stated:

“Clearly the authorities which are construed under the provisions of Title 15, Section 154, Code of Alabama 1940, permit an officer to make an investigation where, as here, he has been notified of the commission of a felony and enters the scene unaccompanied by a warrant.”

The evidence was sufficient to sustain the trial court’s finding that defendant’s confession to murder was voluntary and not induced by intoxication. Balentine v. State, Ala.Cr.App., 339 So.2d 1063; Stewart v. State, 49 Ala.App. 681, 275 So.2d 360.

Photographs of the deceased and the locus in quo are admissible in murder prosecutions when they shed light upon the character and location of the wounds on the victim’s body and the proper predicate has been laid. Balentine v. State, supra.

There is no error in the record and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Robert LAMBERT.
    77-386.
    Supreme Court of Alabama.
    May 26, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    James POLLARD v. STATE.
    3 Div. 782.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Rehearing Denied March 21, 1978.

      Rick Williams, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of robbery and fixed his punishment at imprisonment for ten years. He was sentenced accordingly. He had pleaded not guilty and not guilty by reason of insanity.

On the issue raised by the plea of not guilty, the only evidence was that presented by the State, chiefly the testimony of the alleged victim of the robbery, Grady Jones. He testified that on September 20, 1976, defendant came to him, a salesman for Brewbaker Motors in Montgomery, and inquired about a 1974 Chevrolet Camaro; that he and defendant drove away and returned in it, during a part of which time defendant drove the automobile. Grady Jones priced the automobile at $4,495.00 and told defendant it would take about four or five hundred dollars as a down payment. Later the same day defendant returned and informed Jones that he wanted to make a down payment and would like for Jones to drive him to the First Alabama Bank where he could obtain the money to make the down payment. According to the witness, he was driving the automobile, and when they reached the bank’s parking lot the following occurred:

“A I backed in the parking place, before I stopped he said he needed the car.
“Q And what did he do?
“A He said I got a big knife here in my pocket. I don’t want to have to hurt you.
“Q Did he show you the knife, Mr. Jones?
“A Well, he had his hand in his pocket. All I seen was a handle of it.
“Q And he said I got a big knife in my pocket?
“A Yes.
“Q And you could tell it was a knife?
“A Yes, sir.
“Q What did you do when he told you that?
“A I got out of the car. He told me he needed the car.
“Q Did he tell you to get out of the car?
“A Yes, sir.
“Q And you did that?
“A Yes, sir.
“Q And what happened then?
“A I got out and he take off and I went across the street and called the police.
“Q He slid over there to where you were?
“A He got over in the — the shift is on the floor and he crawled over there in the driver’s seat.”

On cross-examination, the witness said in part as follows:

“Q Now, at that time, did he make a motion to you? Toward you or anything?
“A The only thing he said was Let me see if you got a gun on you and he felt in my right pocket.
“Q And you did not?
“A No.”

The witness testified that the incident occurred about 1:00 P.M.

According to the testimony of police officers, they apprehended defendant while driving the automobile in the early part of the afternoon of September 20, 1976. He was taken into custody but made no statement of an incriminating or exculpatory nature.

Appellant urges that the evidence is insufficient to show the crime of robbery in that it fails to show that the automobile was taken from Jones “by violence to his person, or by putting him in fear” (requisite to robbery) as held in such cases as Louis v. State, 24 Ala.App. 120, 130 So. 904 (1930), and Thompson v. State, 24 Ala.App. 300, 134 So. 679 (1931), upon which appellant relies.

We discuss briefly the facts in Louis and Thompson in order to show whatever similarity there is in them to the facts in this case and the facts that distinguish them from this case.

In Louis, the alleged victim was caused by defendant to go to the bank and withdraw money therefrom and turn it over to defendant. Her testimony was that she was “hypnotized” or that defendant “put her under a spell.” Defendant used no force express or implied against her. The court held there was no robbery.

In the other interesting case relied upon by appellant, Thompson v. State, the alleged victim was “Colonel Takeo Oyama” who testified through an interpreter that while riding on a train between Opelika and Montgomery, he was invited by defendant to a drawing room. He accepted the kind invitation. Soon after entering the drawing room, two others, companions of defendant, entered and the three commenced playing cards and invited the Colonel to join them. This he declined, stating that he knew nothing about cards. While the three were playing cards among themselves, one of the three took eight one hundred dollar bills out of the pocket of the victim’s coat, which was “lying over on another seat in the drawing room” and immediately “ran out of the drawing room.” The Colonel attempted to catch the fellow with the money, but defendant “held me while the small man ran out of the door.” The court upheld the insistence of appellant therein that “The testimony of the Japanese conclusively shows that the force relied upon by the State to substantiate the charge of robbery was applied after the money was taken. Under no theory of the law can this be robbery. . . . ”

Each of the cited cases, Louis and Thompson, is a splendid example of a fine distinction between robbery and other evil or criminal conduct, but neither supports appellant’s contention. The wrong committed in Louis, if the alleged victim’s testimony was true, has rarely plagued the courts. There is no hypnotism, no conjuration, or like conduct, involved in the case now before us. If there were, we would have little legal light to guide us. In legislation and in jurisprudence, such behavior has been largely relegated to oblivion with such offenses recognized by Blackstone as witchcraft, enchantment and sorcery. 4 Bl. Comm. 60.

In Thompson, the decision turned on the question of the precise time that force was exerted on the victim of the larceny. In the case under review, the victim did not surrender possession of the automobile until after defendant had threatened to injure him with a knife.

Robbery requires force on the part of defendant or conduct, by word or action, that places the victim in fear of injury, but the extent of the fear is sufficient if it causes the victim to part with his property unwillingly. Under the evidence, brief though it was, the only reasonable conclusion is that Jones was caused by defendant to part unwillingly with the automobile by reason of fear of injury by defendant.

The insistence by appellant that he was denied the constitutional right to compulsory process for the attendance of Dr. Thomas Smith, a psychiatrist at Bryce Hospital, is answered adversely to appellant by Judge Almon, now Justice Almon, in Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973). It was there held that the statutory procedure provided by Code of Alabama 1940, Recompiled 1958, Tit. 45, § 226, of which appellant complains, for obtaining the testimony of the superintendent or a physician of a State mental health facility or hospital by way of deposition, is a constitutional alternative to compulsory attendance at trial. It is also to be noted that defendant did not raise the constitutional question on the trial. Furthermore, the record shows that he was afforded time and opportunity prior to trial to take the deposition of Dr. Smith, that he did not issue a subpoena for Dr. Smith personally, and that he was permitted by the court ample opportunity to develop findings and opinions of Dr. Smith as revealed by the records of the hospital. The court was not in error in denying defendant’s request for an attachment for Dr. Smith.

On the issue raised by the plea of not guilty by reason of insanity, defendant showed by documentary evidence that on February 11, 1977, he was found by the Forensic Evaluation Board, of which Dr. Smith was a member, not to have been free from mental defect, disease or derangement at the time of the alleged offenses in this case, so as to be able to distinguish right from wrong and that he on February 11, 1977, did not possess sufficient mental capacity to understand the nature of the proceedings against him and to cooperate and assist in the conduct of his defense; that on April 25, it was determined by the same Board that he was competent to stand trial. It was also shown that during the last approximately fifteen years before trial, defendant had spent most of his time in jails or in the penitentiary by reason of several felonies including robbery and grand larceny.

The trial court comprehensively instructed the jury on the subject of insanity as a defense. The determination against the defendant of that issue was clearly within the province of the jury. Boyle v. State, 229 Ala. 212, 154 So. 575 (1934); Hawkins v. State, 267 Ala. 518, 103 So.2d 158 (1958); Carr v. State, 43 Ala.App. 642, 198 So.2d 791 (1967); Luster v. State, 45 Ala.App. 19, 221 So.2d 695. In each of such cases, it was stated that even the undisputed testimony of expert witnesses that defendant was insane did not preclude a valid finding by the jury to the contrary. In Boyle, it was said:

“Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.
“But courts should be careful not to invade the province of the jury in cases of this character. Although the evidence may be offered only by the defense, and all tend to one conclusion, yet, in view of the presumption of sanity, if the evidence is inconclusive, and reasonable inferences may be drawn that the act was that of a sane man as defined by law, the affirmative charge should be refused. (229 Ala. 222, 154 So. 583)
“The rule is fully settled with us that opinion evidence, even of experts, and in insanity cases, is to be weighed by the jury, and its probative force in overcoming the presumption of sanity, as a rule, is for them. Parrish v. State, 139 Ala. 16, 36 So. 1012; Anderson v. State, supra [209 Ala. 36, 95 So. 171].” (229 Ala. 224, 154 So. 586)

It is to be noted that the evidence is lacking in any suggestion of insanity other than as it is related to crimes such as robbery and larceny. It should be further noted that all during the time defendant is claimed to have been insane in this case, he matched wits with a sophisticated used car salesman and won.

We find no error in the record prejudicial to defendant, and 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 provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte James POLLARD.
    77-425.
    Supreme Court of Alabama.
    May 26, 1978.
   SHORES, Justice.

WRIT DENIED.

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