author: HARRIS, Judge.

text:
    Jerry Arlen SMITH v. STATE.
    7 Div. 401.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    Patrick H. Tate, and David A. Rains, Ft. Payne, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Seven two-count indictments were returned against appellant, charging (1) burglary and (2) grand larceny. Upon being arraigned he pleaded not guilty in the presence of two court appointed lawyers. When the cases came up for trial on February 27, 1975, appellant made known to the court, through counsel, that he wished to change his not guilty plea and plead guilty to each indictment. There was a colloquy between the court and- appellant for the court to determine if the guilty pleas were voluntarily and intelligently made. All of the Boykin rights were fully explained to appellant with the exception of the range of punishments. The court advised appellant that he. could get a total of twenty years under each two-count indictment. Stated another way the court advised appellant that he could get the maximum of ten years on the count charging burglary and the maximum of ten years under the count charging grand larceny. In so advising appellant as to the range of punishment the trial court fell into error. Carter v. State, 291 Ala. 83, 277 So.2d 896.

In Jackson v. State, 249 Ala. 348, 31 So.2d 519, the Supreme Court held that where an indictment contains two counts charging offenses calling for the same punishment, and relates to a single criminal transaction, only one penalty can be imposed.

See also Key v. State, 55 Ala.App. 232, 314 So.2d 307, which is directly in point.

In Jones v. State, 48 Ala.App. 32, 261 So.2d 451, we specifically held that before accepting guilty pleas, the trial court must inform the defendant as to the minimum and maximum punishment for the offense charged.

We note there was no direct appeal from the judgment of conviction in these cases. Had there been a direct appeal, these convictions would have been reversed because of the error above noted. No motion for a new trial was filed bringing this error to the attention of the trial court.

It was brought to the attention of the trial court that he had failed to ask the defendant if he had anything to say why the sentence of the law should not be imposed on him. Thereupon the court set May 14, 1975, as the date to resentence appellant.

From the record :

“(THE FOLLOWING PROCEEDINGS WERE HAD ON MAY 14, 1975) “COURT: The State vs. Jerry Arlen Smith, cases 1524, 1474, 1526, 1527, 1528, 1530 and 1533. All of them, except 1474, charge him with burglary second degree and grand larceny. Case number 1474 charges him with buying, receiving and concealing stolen property, and burglary second degree. On February 21, 1975, youthful offender treatment was denied. On February 27, 1975, the defendant appeared, with his attorneys, and entered a plea of guilty. His rights were explained to him, that he had a right to plead not guilty and have a public and speedy trial, see and hear and cross-examine the witnesses the State had against him, the right to offer witnesses, the right to testify, if he desired, the right to remain silent. It was explained to him that there were two counts in each indictment, each charging an offense which provided punishment in the state penitentiary of not less than one year nor more than ten years. He said that he understood that by pleading guilty he gave up those rights. He understood the maximum and minimum punishment, and his plea of guilty was accepted at that time and he was sentenced to three years in the state penitentiary to run consecutively in cases 1474, 1524, 1526, 1527, 1528, 1530 and 1533, and all of this colloquy the court had with the defendant was recorded, along with the sentencing. Mr. Jerry Arlen Smith is before the court now, with his attorneys, and a motion was filed with the court wherein it was asked that the court have the defendant reappear before this court for the purpose of resentencing, and a request was made for a hearing at that time. The court observed, from the petition, that at the time of sentencing the defendant was not asked if he had anything to say before sentence was pronounced by the court, and on that basis, the motion was granted, or the petition was granted, and the defendant brought back for resentencing, and that is the purpose of our being here today, this is the day that was regularly set for this hearing, and the defendant is present with his attorneys, the Honorable David Rains and the Honorable Pat Tate. Also present, of course, representing the State, is the Honorable A. Richard Igou. The probation officer is also present.
“BY THE COURT:
“Q. Mr. Smith, do you understand these charges that are against you ? There are seven charges of burglary second degree, six charges of grand larceny, and one charge of buying, receiving or concealing stolen property. You understand those?
“A. Yes, I do.
“Q. It would not be your desire, then, that the Court explain these to you ?
“A. No.
“Q. You have had them adequately explained to you by your attorneys ?
“MR. RAINS: Your Honor, may I say one thing, for the purpose of explanation? I don’t know that Jerry really understands, and I don’t think I have explained to him the significance of being charged with two charges in one indictment, and what that means with regard to a sentence which he can receive.
“Q. Well, now, I’ll pick one of these up, case number 1533, and you are charged in an indictment containing two counts. One count charges you with burglary second degree. That carries punishment of not less than one year in the state penitentiary, nor more than ten years in the state penitentiary. Another count charges you with grand larceny, and if you should be convicted, or plead guilty, that would carry not less than one year in the state penitentiary, nor more than ten years, or a total in this one particular case of not more than twenty years.
“MR. RAINS: Your Honor, my understanding is they would be multiplicious for sentencing purposes.
“MR. TATE: Since they grew out of the same offense, I don’t think he could be sentenced to more than ten years in each case.
“COURT: All right.
“Q. If they all grew out of the same offense, we will only consider one of the counts, burglary second degree in each of them, and in that, burglary second degree, would be not less than one year, nor more than ten years in the state penitentiary.
“MR. RAIN S: So, what you are saying to Jerry is that he can receive on any one indictment there is ten years ?
“COURT: That’s right.
“Q. Do you understand that, Mr. Rains ?
“MR. RAINS: Yes.
“Q. Do you understand that, Mr. Smith?
“A. Yes.
“Q. All right, I believe that I have gone over all of the things with the defendant, that is required by the Boykin decision, and Honeycutt.
“MR. RAINS: Your Honor, I would like to move at this time that the original finding of guilt be set aside, and the case be restored to the docket for trial, and the reason for that being, that I believe the transcript will show that during the original colloquy in this case Jerry was not explained the sentence he could receive, in other words, the explanation which you have just now rendered to him about the maximum sentence he could receive on each one of these indictments was not adequately explained at that time, and in fact, there was some implication, at least, that he could have received a longer sentence because of the fact that there were two counts in each of the indictments, and that his plea was not intelligently made at that time.
“COURT: Now, that portion of your motion asking that the sentence be set aside, I grant that.
“MR. RAINS: Yes sir.
“COURT: But, his guilty plea, I won’t set that aside. I deny that portion of the motion.”

In order for a guilty plea to be an acceptable waiver of constitutional rights it must be an intelligent and voluntary plea. Waldrop v. State, 54 Ala.App. 163, 306 So.2d 29.

When the trial court set aside the sentences imposed on appellant, this had the effect of restoring all these cases to the trial docket to be pleaded to anew. At this point the trial court should have allowed appellant to withdraw his guilty pleas and go from there in the disposition of the pending cases. Failing to do so was tantamount to forcing appellant to plead guilty and no court should hold such a plea to be voluntary.

For the failure of the trial court to grant appellant’s motion to withdraw his guilty pleas this case is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

All the Judges concur.


source: Caselaw Access Project

author: CATES, Presiding Judge.

license: Public Domain

text:
    Fred CAIN v. STATE.
    7 Div. 337.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.
    Hubert L. Taylor, Rowan S. Bone, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Cain appeals from a conviction of receiving a stolen lawn mower. The trial judge sentenced him to eight years in the penitentiary. Code 1940, T. 14, § 338.

An admitted thief testified that he stole the lawn mower by taking it from the owner’s front porch. He then took it to Cain who paid for it with two dollars cash and twenty amphetamine pills. The State brought in other evidence to corroborate this testimony.

On appeal defense counsel argues that the value of the machine, alleged in the indictment to be $50.00, was not established. Value in our larceny and related statutes is an ingredient (1) to show that the property is a subject of larceny and (2)to fix the punishment where a differentiation must be made in price to mark the line between grand and petty larceny, ordinarily twenty-five dollars.

Here the indictment charged the lawn mower was worth fifty dollars. The jury’s verdict found Cain guilty as charged in the indictment — a finding which adopted the averred value. See Middleton v. State, 27 Ala.App. 564, 176 So. 613.

The oral charge did not mention value. Defense counsel took no exception to the trial judge’s general charge nor did he tender any written requested charges. Hence, the oral charge became the law of the case, binding on the jury in their deliberations. Smith v. State, 53 Ala.App. 657, 303 So.2d 157; Felton v. State, 46 Ala.App. 579, 246 So.2d 467; and Dodd v. State, 251 Ala. 130, 36 So.2d 474.

Under Code 1940, T. 14, § 336 where, as was the case here, the stolen property has been returned to the owner, the jury does not need to assess its value. Glover v. State, 23 Ala.App. 81, 121 So. 2.

The owner of the lawn mower on direct examination valued the lawn mower at $50.00. That on cross he wavered only made the weight of his evidence a jury question. He was a competent witness.

The judgment below is

Affirmed.

All the Judges concur.

      . Statutory exceptions of presumptive grand larceny are, among others, equine, canine and bovine beasts. Code 1940, T. 14, § 331, as amended. Michie’s Code, T. 14, § 331(1) and 346(2). Cultivated fish are within protection of the punishment for petty larceny. Michie’s Code, T. 14, § 343(1).

      . Code 1940, T. 7, § 367; McElroy, Evidence (2d ed.) § 128.11.


author: MERRILL, Justice.

text:
    In re Fred CAIN v. STATE. Ex parte Fred Cain.
    SC 1562.
    Supreme Court of Alabama.
    Dec. 4, 1975.
    Hubert L. Taylor and Rowan S. Bone, Gadsden, for petitioner.
    William J. Baxley, Atty. Gen., and Hermit M. Downs, Asst. Atty. Gen., for the State.
   MERRILL, Justice.

Petition of Fred Cain for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cain v. State, 56 Ala.App. — , 323 So.2d 390.

Writ denied.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    J. T. CARTER v. Gatha CARTER.
    8 Div. 680.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Rehearing Denied Oct. 1, 1975.
    Patton, Latham & Legge, Athens, for appellant.
    No appearance for appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

This is an appeal from a judgment of the circuit court denying a writ of habeas corpus to release appellant from jail wherein he was confined for civil contempt for failure to obey the mandates of a divorce decree requiring him to pay specific sums in support of his minor children and for failing to obey certain other orders relating to medical payments and hospital insurances ; also for failure to pay attorney’s fee in the divorce proceedings.

The divorce proceedings originated on May 4, 1973, when appellant filed his complaint for divorce against appellee and for custody of some of the minor children of the parties. The grounds asserted for the divorce were irreconcilable differences and incompatibility.

Appellee responded by also filing for divorce and asking for certain relief as; (1) payment for support of their children, alimony, etc.; (2) full title to some family owned real property; (3) award to her of household furniture and a 1961 Volkswagen automobile; (4) to transfer insurance policies; (5) payment of small sums appellant owed their minor children; (6) certain tax refunds be paid her and (7) her attorney’s fee in the proceeding. Asserted grounds for relief that cross-respondent was guilty of adultery.

The trial court entered a final decree on December 20, 1973, wherein it granted relief to the parties on the grounds of adultery. The decree recited inter alia that the annual earnings of appellant (cross-respondent) as reflected in his last three income tax returns were $15,000.00, and over $17,000.00.

The divorce decree required specific acts to be done relative to the insurance policies ; did not award alimony; ordered payment to the Register, the sum of $27.50, per week for support of each of the five minor children, ages 4, 9, 12, 14 and 15, and specified when payments to be terminated; also the decree ordered appellant to pay $400.00, to his wife’s attorneys. We omit further details of the divorce decree.

On or about February 20, 1974, Mrs. Carter filed her petition in the circuit court wherein she alleged that appellant had willfully failed or refused to make the child support payments, refused to pay hospital and doctor bills, and also to pay the attorneys’ fee. She prayed for a rule nisi to appellant to show cause why he should not be punished for contempt.

Rule nisi was issued, served, and a hearing had before the court. Both sides were represented by employed counsel.

The court, on April 25, 1974, adjudged appellant in contempt of court and ordered attachment issue for him and that he be confined to jail; that he be held there until he purged himself of the contempt. Execution of the attachment was deferred for ten days, after which, on March 22, 1975, it was executed and appellant committed to jail.

Conditions of the purge were; (1) payment of attorneys’ fee; (2) pay $478.00, doctor’s bill; (3) pay support installments in arrears in the sum of $737.50, as well as future support installments; (4) pay all court costs to date; (5) pay $150.00, attorney fees for services in the contempt proceedings. This decree was entered on April 25, 1974.

Thereupon, on March 28, 1975, writ of habeas corpus was prayed and hearing thereon was held on April 3, 1975. Appellant was committed to jail pursuant to attachment of March 22, 1975, nearly one year after the decree of contempt was entered, namely on April 25, 1974.

Appellant, released on bail in the sum of $15,000.00, pending this appeal, contended below and here that he is financially unable to meet the mandates of the contempt decree, dated April 25, 1974; that he only has $240.00, an insufficient amount, and that continued imprisonment will not solve the problem. He admits that the only payments he made were five installments in the sum of $75.00, each, plus $1,000.00, which was paid to his attorney. Mrs. Carter refused acceptance of this sum.

Appellant further admits that after the decree of April 25, 1974, the date of the contempt decree, he quit his Alabama job and went to another state where he remained. He further asserts that he did not leave the State to avoid the mandates of the decree, but left because he could not pay and to avoid prosecution for failure to do so. The evidence shows that he was an expert pipe welder and that his hourly wage was not less than $7.34, and at times was more than this by as much as fifty cents, depending on the local wage scale.

We note that he specifically denied making a statement at a hearing before Judge Hundley, that he was going to do just exactly what he wanted to do and that he didn’t care what anyone told him; and that he was not going to pay any attorney’s fee and he didn’t care what the judge said.

The record inferentially reflects manifestation of contumacy on the part of appellant; that while away he was reasonably employed and making excellent wages; that he failed to comply with the judicial orders and left his five children to “root-hog or die,” showing no concern for their welfare or co-operative willingness to comply with the court orders.

He contends that he does not have the money to pay, needing the $240, in his possession to get started again. However, appellant’s accounting for the excellent wages he received while away is very hazy, general, and lacks specificity in dollars and cents.

This probably supports the tyial court’s denial of the writ and his conclusion that appellant has funds stashed away which would come out of hiding upon denial of the writ. We note he testified on the ha-beas corpus hearing that his earnings were basically the same money that he was making when the divorce decree was entered, $15,000.00, to $17,000.00, per year.

The evidence to us is not as convincing as appears in the case of Muery v. Muery, 46 Ala. 617, 247 So.2d 123, cert. denied 287 Ala. 737, 247 So.2d 128; A. & E. 830(1), Divorce, 206, 269(9).

The trial court saw the witnesses and was acquainted with the atmosphere of the trial. The court was in a better position than this court to ascertain the truth.

We are unwilling to disturb the decree. It is affirmed.

The foregoing opinion was prepared by Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

Affirmed.

All the Judges concur, except CATES, P. J., not sitting.


author: MADDOX, Justice.

text:
    In re J. T. CARTER v. Gatha Ann CARTER. Ex parte J. T. Carter.
    SC 1497.
    Supreme Court of Alabama.
    Dec. 4, 1975.
    David U. Patton, Athens, for petitioner.
    T. Schram Woodroof, Athens, for respondent.
   MADDOX, Justice.

Petition of J. T. Carter for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Carter v. Carter, 56 Ala.App. -, 323 So.2d 392.

Writ denied.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.


author: TYSON, Judge.

text:
    John Grover REYNOLDS v. STATE.
    1 Div. 599.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.

      Willis W. Holloway, Jr.,,Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the unlawful sale of Marihuana to J. D. Bur-chett. The jury found the appellant guilty as charged, and the trial court fixed punishment at four and one-half years imprisonment.

J. D. Burchett testified that he was an employee of the Alabama ABC Board, working in the Alcohol and Drug Division. He testified that on November 14, 1974, he had been sent to Mobile, Alabama, to work as an undercover agent with the police in the city of Mobile. He testified that on November 14, 1974, he went to the Burger King Restaurant located at the corner of Government and Common Streets, and there met the appellant, John prover Reynolds. He testified that he accompanied the appellant to the Montauk Apartments on Montauk Avenue and entered Apartment A-9. He stated that on this occasion he was accompanied by an informer also, by the name of Michael Norton. He stated that upon entering the apartment he asked the appellant where the stuff was, that appellant said it was down the hall in a bedroom, that he was seated, and in a few minutes the appellant returned with a brown paper bag, and sat it down in front of him. He said the appellant told him that inside the brown bag were two smaller bags which contained Marihuana, and that the price would be $300.00. He testified that he then paid the appellant and left the apartment. He stated that he took the brown paper bag containing the two smaller bags of green vegetable material, which he believed to be Marihuana, to the ABC Field Office at 1052 Dauphin Street in Mobile. He said that after going in this office, he turned over the brown paper bag to Sergeant Don Gill of the Narcotics Division of the Mobile Police Department.

Sergeant Don Gill testified that on November 14, 1974, he saw ABC Agent J. D. Burchett in the Burger King at Government and Common Streets. He said he saw him leave in an automobile, and that he trailed him to the Montauk Apartments on Montauk Avenue. He stated that at about 8:56 p. m. Mr. Burchett met him at the ABC Field Office, that he received a brown paper bag, containing two smaller bags of a green vegetable material, that he placed his initials on the brown bag and sealed it up on November 14, 1974. Sergeant Gill further testified that the next morning, November 15, 1974, at 9:28 a. m., he delivered this brown paper bag to Miss Alike Pillman at the State Toxicology Office in Mobile.

Miss Alike Pillman testified that she was an employee of the Criminal Laboratory Office of the State Department of Toxicology in Mobile. She testified that part of her duties was to make various chemical tests for this department, and that she had been trained under Dr. Rehling. She testified that she received a brown paper bag on November 15, 1974, at 9:28 a. m., from Mobile Police Sergeant Don Gill. She testified that she opened the bag and examined the contents, that it contained two smaller paper bags. She stated that each of these smaller bags contained Marihuana, a total of 798.4 grams, or 27.5 ounces, that this was a little over a pound and a half. The two bags of Marihuana, which had been in her possession, were then admitted into evidence.

The appellant’s motion to exclude the State’s evidence was then overruled. The appellant presented the testimony of several character witnesses, each of whom testified that appellant’s general character and reputation for truth, on November 14, 1974, was good.

The appellant, John Grover Reynolds, testified that he was an employee of the Alabama Dry Dock and Shipbuilding Company, and had first met an individual named Michael Norton when the two of them worked at Ingalls Shipyards. He testified that just prior to November 14, 1974, he had several telephone calls from one Michael Norton and had agreed to meet him at the Burger King on the corner of Government and Common Streets that evening. He testified that he did so, and then later was accompanied by Mike Norton and Mr. Burchett when he went to Apartment A-9, at the Montauk Apartments, that this apartment belonged to Carl Nelson. He testified that he did not know there was any Marihuana on the premises, that Carl Nelson had made the arrangements with Mike Norton concerning the Marihuana, and that Carl Nelson walked down the hall and brought the Marihuana back into the room and just handed it to him.

On cross-examination, the appellant stated that Mike Norton had made the arrangements with Carl Nelson concerning the Marihuana, and that he simply took the man over to Carl Nelson’s apartment. He admitted, on cross-examination, however, that he knew that a sale was taking place, and that the price was $150.00 a pound for two bags which were then put in a brown paper bag.

I

Appellant first argues that the trial court erred in overruling his demurrer which challenged the indictment on the basis that the same did not properly identify the unlawful substance allegedly sold by the appellant in violation of law. The demurrer further stated that the indictment referred to the substance as “marijuana,” when the Alabama Uniform Controlled Substances Act refers to the substance as “marihuana,” hence the item charged in the indictment is not among the substances listed in the Alabama Uniform Controlled Substances Act.

The Alabama Supreme Court in Boswell v. State, 290 Ala. 349, 276 So.2d 592, determined that the Alabama Uniform Controlled Substances Act satisfies the constitutional requirement of having a single subject, and further that the Legislature could include Marihuana with so-called “hard drugs,” that such was a reasonable classification. See also Sawyer v. State, 50 Ala.App. 490, 280 So.2d 196; Kenny v. State, 51 Ala.App. 35, 282 So.2d 387, cert. denied 291 Ala. 786, 282 So.2d 392.

Moreover, recently this Court in Peppers v. State, 53 Ala.App. 695, 304 So. 2d 39, cert. denied 293 Ala. 770, 304 So.2d 43, and Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied 294 Ala. 758, 312 So.2d 414, determined such an indictment to be legally sufficient.

II

The appellant next contends that his plea of entrapment should have been sustained by the trial court. In light of the testimony in this cause, we are of the opinion that there was no room for the operation of the defense of entrapment. Johnson v. State, 36 Ala.App. 634, 61 So.2d 867; Miller v. State, 53 Ala.App. 213, 298 So.2d 633, cert. denied 292 Ala. 741, 298 So.2d 639; Peppers v. State, 53 Ala.App. 695, 304 So.2d 39, cert. denied 293 Ala. 770, 304 So.2d 43.

III

During the district attorney’s closing argument, the following occurred [R. pp. 52-53]:

“MR. HUGHES: He said he wasn’t in the business of selling marijuana, but it’s hard to tell that he wasn’t in the business when he’s sitting there taking $300.-00 from the guy-—
“MR. HOLLOWAY: Now, Judge, I’m going to object to the Assistant District Attorney’s stating ‘It’s hard to tell that he wasn’t in the business.’ and holding up this bag of marijuana, as improper argument.
“MR. HUGHES: Your Honor, I don’t know—
“THE COURT: On what grounds, Willis?
“MR. HOLLOWAY: That it’s improper argument seeking to impassion and prejudice the jury; and the other grounds would be alleging crimes not included in the indictment.
“THE COURT: Just confine it to what he’s charged with, Mr. Hughes; confine it to ‘that he did sell marijuana.’
“MR. HUGHES: All right, Judge—
“MR. HOLLOWAY: Judge, could I have a ruling on that last objection?
“THE COURT: Overrule the objection.
* * * * * *
“MR. HUGHES: This (a fine up to $25,000.00) isn’t going to cut out this sort of thing in Mobile County, but it might cut John Grover Reynolds out of doing it in Mobile County.
“MR. HOLLOWAY: Judge, now I’m going to object to that, where the Assistant District Attorney stated, and I quote, ‘that this may not cut this out in Mobile County, but it will stop John Grover Reynolds from doing it in Mobile County,’ as being improper argument.
“THE COURT: Confine it to this one case, Mr. Hughes; let’s try him on this one charge now. I’m going to sustain the objection. He is only charged with one offense.
“MR. HOLLOWAY: Judge, I would move for a mistrial.
“THE COURT: Motion denied.”

The appellant asserts the above rulings to he erroneous. As may be seen, the district attorney, when he held up the bag of marihuana, made the statement, “It’s hard to tell that he wasn’t in the business,” was pointing out matters of evidence and arguing their legitimate inferences. Such was properly within the scope of the evidence, and the trial court’s ruling in this respect was proper. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353, and authorities therein cited.

Further, in light of the trial judge’s instructions, shown above, as indicating to the district attorney to confine his argument to the case at hand, the trial court properly overruled the appellant’s objection and motion for a mistrial.

Clearly, this ruling is correct. We believe that these instructions covered the alleged prejudicial argument so that error to reversal is not here shown. George v. State, 54 Ala.App. 90, 304 So.2d 908; West v. State, 54 Ala.App. 647, 312 So.2d 45, cert. denied 294 Ala. 78, 312 So.2d 52; Barnett v. State, supra, and authorities therein cited.

IV

At the conclusion of the trial court’s oral charge, the appellant announced, “No exceptions.” The trial judge then gave six of the written requested charges. The remaining refused charges were either covered by the trial court’s oral charge and the given charges, or were abstract, not properly predicated on the evidence in this case, were misleading, or were incorrect statements of the applicable legal principles; hence, their refusals were proper. Title 7, Section 273, Code of Alabama 1940.

We have carefully examined this record and find same to be free from error. The judgment of the trial court is due to be and the same is hereby

Affirmed.

All the Judges concur.

ON REHEARING

Appellant’s counsel asserts that this Court did not fully or correctly state certain facts in its original opinion in this cause in two aspects. From appellant’s brief in support of his application for rehearing, he states:

“That part of the opinion stating that Agent J. D. Burchett testified
“ ‘. . . That he was seated, and in a few minutes the appellant returned with a brown paper bag, and sat it down in front ow [sic] him. He said the appellant told him that inside the brown bag were two smaller bags which contained Marijuana . . .’
is also incorrect. The transcript clearly shows that Agent Burchett NEVER stated these facts. In fact, no one ever testified to anything resembling these statements.
“Finally, the opinion NEVER mentions the fact that the agent (informer), Michael Norton, was being paid $25.00 by the Mobile Police Department for every case he made. (R. 26)
“Appellant strongly requests that the Court re-examine the transcript.”

In ABC Agent J. D. Burchett's testimony, which commences on Record Page 18 of the Transcript in question, after having testified that he was working at the time as an undercover agent with the police in Mobile County, he testified with reference to his meeting with Mr. Reynolds, the ap-, pellant, as follows [R. PP. 19-21] :

“Q. All right. Now, you saw him at the Burger King. Then what if anything happened ?
“A. He told me to follow him.
“Q. When you say 'he,' who are you talking about?
“A. Mr. Reynolds.
“Q. And he told you to follow him; all right, sir. And where did you go ?
“A. Followed him to an apartment complex, Montauk Apartments on Montauk Avenue.
“Q. Now, you’re going to have to speak up a little louder. Okay, you followed him to the Montauk Apartments on Montauk, is that right?
“A. Yes, sir.
“Q. What if anything happened then?
“A. Got out of the vehicle and went to Apartment A-9.
“Q. What if anything happened then?
“A. Subject opened the door and I followed Mr. Reynolds and the informer inside.
"Q. Inside the apartment ?
“A. Inside A-9.
“Q. All right. What if anything happened then?
“A. Mr. Reynolds and the other gentleman that was in the apartment turned facing me and I asked him where the stuff was and he said it’s down the hall—
“Q. You’ve got to keep it a little bit louder and maybe a little bit slower so everybody can hear you.
“A. We walked in and asked where it was; they said it’s down in the bedroom down the hall, and pointed to which was to my right down a little hall; and I went into the bedroom and it was setting in a brown paper bag — two bags, setting at the foot of the bed in this bedroom.
“Q. All right. What if anything did you do then?
“A. I knelt down and felt of it and smelled it, and turned to Mr. Reynolds and asked him how much, Three Hundred; and he—
“Q. All right. You say you looked in the bag?
“A. Yes, sir.
“Q. What if anything did you see in the bag?
“A. Green plant like material.
“Q. Had you had an occasion prior to this time to see marijuana ?
“A. Yes, sir.
“Q. Did this have the same appearance?
“A. Yes, sir.
“Q. Did it appear to you to be marijuana?
“A. Yes, sir.
“Q. Okay. What if anything did you do then?
“A. Well, I turned to Mr. Reynolds and asked him how much, Three Hundred; and he said yes—
“Q. Now — go ahead, I’m sorry.
“A. —and so I pulled out my wallet and started counting out Twenty Dollar bills until I got $300.00; and I handed it to Mr. Reynolds.
“Q. And that’s the man seated over here?
“A. Yes, sir.
“Q. And you paid him $300.00 ?
“A. Yes, sir.
“Q. Now, this $300.00, that’s not your money, is it ?
“A. No.
“Q. Whose money is that ?
“A. It was furnished by the City of Mobile for an undercover operation.
“Q. Okay. Now, this apartment you said you were in, can you tell me where that is located in—
“A. Montauk Avenue.
“Q. And in what city is that ?
“A. Mobile, Alabama.
“Q. And what county is that in ?
“A. Mobile.
“Q. And state?
“A. Alabama.
“Q. Okay. And this is where the sale took place, is that right ?
“A. Yes, sir.
“Q. All right. After you gave Mr. Reynolds here the money, what if anything did you do then ?
“A. I picked up the bag — -the two bags and told him well, I had to go.
“Q. How long were you in the apartment altogether ?
“A. I’d say approximately three minutes.
“Q. Okay. Where did you go after you left?
“A. To the ABC’s Field Office, 1052 Dauphin Street.
“Q. Which is how far from the apartment?
“A. I’d say approximately five blocks.
“Q. Okay. What if anything did you do then?
“A. Went inside with the evidence and handed the evidence to Sgt. Gill of the Mobile Police Department.”

The appellant also questions one aspect of this Court’s statement concerning the appellant’s testimony. From appellant’s brief:

“This Court found the following facts from Appellant’s testimony :
“ ‘He testified that he did not know there was any Marijuana on the premises, that Carl Nelson had made the arrangements with Mike Norton concerning the Marihuana, and that Carl Nelson walked down the hall and brought the Marihuana back into the room and just handed it to him.
“ ‘On cross-examination, the appellant stated that Mike Norton had made the arrangements with Carl Nelson concerning the Marihuana, and that he simply took the man over to Carl Nelson’s apartment.’
“Appellant submits that this finding of facts is erroneous and has absolutely NO BASIS ANYWHERE IN THE TRANSCRIPT, and Appellant strongly requests that the Court redirect its attention to pages 43-50 of the transcript.
“Appellant testified that he had not ‘seen this marijuana’ (R. 45) but that he ‘knew there was marijuana in that apartment.’ (R. 48) He further testified that he negotiated the sale with Mike Norton (R. 45, 48) and that
. . Carl Nelson said it was back there in the back, and we went on back to the back and it was on the floor, and he picked it up and looked at it . . . ’ (R. 46)”

The appellant’s testimony on direct examination commences on Record Page 43, and déscribes himself as being twenty-one years of age, and an employee of the Alabama Dry Dock and Ship Building Company. He states that he met one Michael Norton when working at Ingalls Shipyards, and that his conversation had been with Mr. Norton by telephone prior to his understanding that he would meet with Mr. Burchett. The appellant’s testimony concerning this is as follows [R. PP. 45-49]:

“MR. HOLLOWAY: Mr. Reynolds, concerning this particular night, when was the first time that you saw Mr. Burchett ?
“A. At the Burger King.
“Q. At the Burger King, all right. Did Mr. Burchett make any negotiations concerning this sale with you ?
“A. No, he did not.
“Q. And who made the negotiations concerning this ?
“A. Mike Norton.
“Q. All right. Now, how many times did he contact you concerning this ?
“A. In a two or three week period before it happened, he must have contacted me ten times or more by the telephone calls.
“Q. Mr. Reynolds, are you in the business of selling marijuana?
“A. No, I’m not.
“Q. All right. On this occasion did you have any marijuana in your possession?
“A. No, I did not.
“Q. All right. Who did the marijuana that we’ve heard of in the testimony today belong to?
“A. It belonged to the man at the apartment that we went to.
“Q. All right. Who was that person ?
“A. Carl Nelson.
“Q. All right. That was Apartment A-9?
“A. A-9 I believe it said.
“Q. Now, when you went to the apartment, had you, prior to this night of the 14th — had you been over there prior to that time and seen this marijuana ?
“A. No, I had not.
“Q. And when Undercover Agent Bur-chett went there, who told him where the marijuana was ?
“A. Mr. Nelson did.
“Q. All right—
“A. We went in the door, and he told him it was back down the hall.
“Q. All right. Just tell the jury what happened.
“MR. HUGHES: Your Honor, I’m going to object to the narrative form answer. Let him ask the proper questions, because I don’t know what may or may not be objectionable.
“THE COURT: Wait now; he has us right there in the apartment in Mr. Bur-chett’s and Mr. Norton’s presence. You can tell us anything now that was done or said in your presence and in Mr. .Bur-chett’s presence — only on that occasion.
“WITNESS: Well, we went in the apartment and he said — Carl Nelson said it was back there in the back, and we went on back to the back and it was on the floor, and he picked it up and looked at it, and then he gave me the money, and then they left and I gave the money, and then they left and I gave the money to Mr. Nelson.
“MR. HUGHES: I object, Your Honor; that was out of Mr. Burchett’s presence and there’s no way to offer what he’s saying; and I ask that that be striken — whatever happened after Mr. Burchett left.
“THE COURT: I’m going to leave that up to the jury, Greg; and I’m going to let you cross him on that. I overrule the objection.
“MR. HOLLOWAY: Did you ask Mr. Burchett for the money ?
“A. No, sir.
“Q. He just handed it to you ?
“A. Just handed it to me.
“Q. Now, on these ten or more times that Michael Norton contacted you concerning this, what did he tell you ?
“MR. HUGHES: I object, Your Honor; that would be hearsay.
“THE COURT: Sustained.
“MR. HOLLOWAY: That’s all.
“THE COURT: Any cross ?
“MR. HUGHES: Yes, Your Honor.
“CROSS EXAMINATION
“BY MR. HUGHES:
“Q. Mr. Reynolds, you said that Mr. Norton called you and negotiated the sale with you several times, is that right ?
“THE COURT: I’ve ruled out what Norton said now, Greg.
“MR. HUGHES: Your Honor, he testified to that, that Norton called him and they negotiated the sale several times.
“THE COURT: I’ve just ruled it out now; but now if you want to try to get into it, that’s something else.
“MR. HUGHES : Well, I’m sorry, I—
“THE COURT: His last question was what Norton said, and I sustained it on the ground that it was hearsay.
“MR. HUGHES: Your Honor, I apologize.
“THE COURT: All right.
“MR. HUGHES : You said you met Agent Burchett at the Burger King, is that right ?
“A. That’s right.
“Q. And you led him over to this apartment, is that not right ?
“A. That’s right.
“Q. Nobody made you lead him over there, did they ?
“A. Nobody was making me, no sir.
“Q. Nobody made you do anything in connection with this, did they ?
“A. No, nobody made me.
“Q. You did everything involved in this transaction — you did that on your own free will, didn’t you ?
“A. I did it as a favor for—
“Q. I’m not asking you why you did it. I said, did you do it of your own free will?
“A. That’s right. I was telling you why
“Q. I’m not asking you that. You led Agent Burchett to the apartment, right?
“A. That’s right.
“Q. You went in that apartment, right?
“A. Yes, sir.
“Q. You knew there was marijuana in that apartment, didn’t you ?
“A. Yes, sir.
“Q. You knew that there was a sale taking place, didn’t you ?
“A. Yes, sir.
“Q. You had negotiated the sale, hadn’t you?
“A. (No response.)
“Q. I’m waiting.
“A. Yes.
“Q. All right. You negotiated the sale; then you got the money from Agent Bur-chett, didn’t you ?
“A. Yes, but I didn’t get the money.
“Q. I didn’t ask you that. I asked you did you—
“MR. HOLLOWAY: Judge, I’m going to object to him arguing with the witness.
'THE COURT: Let him answer.
“MR. HOLLOWAY: And I’m going to ask him to slow down, too — give him time to answer.
“THE COURT: Yes, sir. Give the witness a little bit more chance to answer now. Repeat your question, Mr. Hughes.
“MR. HUGHES: Mr. Reynolds, you got $300.00 or thereabouts — was it $300.00?
“A. Yes, sir.
“Q. You got the money yourself, didn’t you?
“A. No, I did not get it.
“Q. Who was it paid over to ?
“A. It was Mr. Nelson’s money—
“Q. I’m not asking you—
“A. He handed the money to me, but I didn’t get the money.
“Q. Agent Burchett paid the money over to you, is that right ?
“A. That’s right.
“Q. And anything you claim to have happened, happened after Agent Burchett had gone; is that right ?
“A. That’s right.
“Q. So we have nobody’s word but yours
“MR. HOLLOWAY: Judge, that’s argumentative; I object to that.
“THE COURT: Sustained.
“MR. HUGHES: Did you know how much marijuana there was there ?
“A. I saw the bag but I was going to take the man up there to look at it to know how much it was.
“Q. Did you know what the price was going to be ?
“A. Yes, sir.
“Q. How does it break down pricewise?
“A. I believe they said $150.00 a pound— it was two bags.
“Q. And you were the one that — you arrived at that price yourself ?
“A. No, I did not.
“Q. All right. Where were you living when this came about back on November the 14th of 1974?
“A. I was living where I am now, with my mother and father.
“Q. And what was the fellow’s name that owned this apartment ?
“A. Carl Nelson.
“Q. Is he a friend of yours — a good friend of yours?
“A. Well, he is a friend; I wouldn’t say good friend, but he was a friend of mine.”

This Court believes that our original statement of the facts, which, as in all cases, was an effort to give a succinct rendition of same, may have been too favorable to the appellant, upon further examination of the record. We therefore set out the disputed evidence verbatim.

The jury resolved the conflict in the evidence in favor of the State’s witnesses, and this is fully supported by the record in this cause. Clearly, therefore, the trial court properly submitted this matter to the jury. Grissom v. State, 51 Ala.App. 285, 284 So. 2d 739; cert. denied 291 Ala. 780, 284 So. 2d 740; Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169.

Upon reexamination of the record, we adhere to the views expressed on original deliverance, that the trial court properly determined that under the testimony in this cause, there was no room for the operation of the defense of entrapment. Authorities cited on original deliverance.

Opinion corrected and extended: application overruled.

All the Judges concur.

      . Title 22, Section 258 (25)-258(60), Code of Alabama 1940, as amended 1971.


text:
    In re John Grover REYNOLDS v. STATE. Ex parte John Grover Reynolds.
    SC 1553.
    Supreme Court of Alabama.
    Dec. 4, 1975.
    Willis W. Holloway, Jr., Mobile, for petitioner.
    No appearance for respondent.
   MERRILL, Justice.

Petition of John Grover Reynolds for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Reynolds v. State, 56 Ala.App. -, 323 So.2d 394.

Writ denied.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Calvert Emile WESTFAUL v. STATE.
    1 Div. 609.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.
    Willis W. Holloway, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State..
   TYSON, Judge.

The indictment charged the appellant, Calvert Emile Westfaul, with the indecent molestation of Cherie McLendon, a female child under sixteen years of age. The jury’s verdict found the appellant “guilty of indecent molestation, as charged in the indictment,” and the trial court then set sentence at three years imprisonment in the penitentiary.

Jackie Bailey testified that she was seven years old and in the second grade. She knew appellant as “Pee-Wee,” and had been to his “trailer house.” During the summer of 1974, she, her little sister, Gretchen, Cherin McLendon, and Desiree McLendon were at appellant’s trailer swimming. Jackie stated that the four of them took a bath in appellant’s trailer after which Gretchen went home. She said that after Gretchen had left, and while .Cherin and she were in the back bedroom, the appellant came in and put his mouth on Cherin’s private parts, and Cherin put her mouth on his private parts. The appellant also stuck his hand in Cherin’s pants.

Huey McLendon testified that he was the father of Cherin McLendon, that she was seven years old, and that appellant lived off of Bailey’s Marina Road in Mobile County, Alabama.

Cherin McLendon testified that she was seven years old and knew the appellant as “Pee-Wee.” One day during the summer of 1974 she went to the appellant’s trailer to go swimming. As to appellant’s alleged misconduct, Cherin testified, “He made me put my mouth on-. He made me put my mouth on his privates.” She said that at the time of the act, she and Jackie Bailey were in a back bedroom at appellant’s trailer.

On cross-examination Cherin testified that the appellant was married to her mother.

Calvert Westfaul testified that he was forty-one years old, and had worked at Campbell Piping Company for fifteen years. He stated that Cherin and Desiree were twins and that he was married to their mother. Westfaul said that the twins lived with their mother and him until she went to a mental hospital at which time they went to live with his wife’s ex-husband. He testified that he lived on Old East Fowl River, and that he remembered the girls going swimming, but he denied committing any illicit sexual acts with Cherin McLendon. Appellant’s request for the affirmative charge was denied.

I

Appellant’s sole contention on appeal is that inasmuch as the indictment alleged the molestation of “Cherie McLendon,” whereas all of the State’s evidence pertained to a “Cherin McLendon,” his request for the affirmative charge should have been granted as there was a fatal variance between the indictment and the State’s evidence.

We do not find appellant’s contention to be well taken. The rule in such cases is set out by Mr. Justice Thomas in Jones v. State, 241 Ala. 337, 339, 2 So.2d 422, 422-423 (1941):

“We may observe that a variance is not fatal, if the name of the deceased, or person injured, as indicated in an indictment and as shown by the evidence, is slight or immaterial and such as to leave no doubt as to the identity of the deceased or person injured named. Such is the instant case. In such case the trial court will not be put in error for refusing a defendant’s requested affirmative charge.”

In McCoy v. State, 232 Ala. 104, 106, 166 So. 769, 770, the indictment alleged that defendant killed “Herbert Pierce,” whereas the evidence all related to “Hubert Pierce” as the name of the man killed. There, the court stated:

“ . . . True the name of the dead man must be correctly stated, and a material variance is fatal. But a mere inaccuracy, where the identity of the person named in the indictment with the .one named in the evidence is established, is not fatal under the modern rule. 31 Corpus Juris, 847. The rule adopted in this state is that if the variance in the name be so slight as scarcely to be perceptible, and the deceased would have been readily known by the name thus called, then such variance is immaterial. . ” Cases cited.

Therefore, the slight variance between “Cherie McLendon,” as alleged in the in-indictment, and “Cherin McLendon,” as shown by the evidence is not fatal. The trial court correctly refused the appellant’s request for the affirmative charge. See also, Hardie v. State, 260 Ala. 75, 68 So.2d 35.

We have examined this entire record, as required by law, and find no error therein. The judgment is due to be and the same is hereby

Affirmed.

All the Judges concur.


text:
    In re Calvert Emile WESTFAUL v. STATE. Ex parte Calvert Emile Westfaul.
    SC 1530.
    Supreme Court of Alabama.
    Dec. 4, 1975.
    Willis W. Holloway, Jr., Mobile, for petitioner.
    No appearance for respondent.
   MADDOX, Justice.

Petition of Calvert Emile Westfaui for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Westfaul v. State, 56 Ala.App.-, 323 So.2d 404.

Writ denied.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.


author: CATES, Presiding Judge. DeCARLO, Judge

text:
    Glenn DeGRUY, alias v. STATE.
    6 Div. 562.
    Court of Criminal Appeals of Alabama.
    March 18, 1975.
    Rehearing Denied April 22, 1975.

      Rosen, Wright, Harwood & Albright, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Brent Thornley, Asst. Atty. Gen., for the State, appellee.
   CATES, Presiding Judge.

Possession of marijuana for personal use: sentence, twelve months in the county jail together with a $1,000 fine. Act No. 1407, September 16, 1971 — Alabama Uniform Controlled Substances Act.

I

About 11:00 a. m., September 29, 1971, four deputy sheriffs and two policemen came to the door of an apartment wherein DeGruy was a guest. Announcing their intention to execute a search warrant, the officers ordered everyone to sit down and be still (R. 91, 107). They then proceeded to search the apartment.

One Greg Yestadt was seated at a table on which the officers found a metal bowl and a pipe, both containing marijuana. (R. 44-45) Elsewhere was a bag, belonging to Yestadt (R. 31), containing 31 lids of marijuana. (R. 80) Between the wall and the end of a couch on which DeGruy and Margaret Conner were seated the officers found a yellow canvas bag containing marijuana, a homemade pipe, and two letters addressed to DeGruy. (R. 56) Before DeGruy was given the Miranda warnings (R. 60), the officer who found the bag asked DeGruy if it belonged to him, to which question DeGruy gave an affirmative reply. (R. 61)

DeGruy waived a jury trial (R. 2, 36) and asked for youthful offender treatment. (R. 3-4) The petition was denied because he was over twenty-one at the time of the offense. (R. 14-15)

Over objection, the court allowed the in-culpatory statement acknowledging ownership of the bag to be received into evidence, stating that the court would rule later on whether it would use the statement in arriving at a judgment. (R. S8-61) The record is devoid of any subsequent hearing or ruling on the admissibility of this statement.

On March 30, 1973, over four months after the date of the trial, the court adjudged DeGruy guilty of possession of marijuana for personal use and sentenced him to twelve months confinement in the county jail and a fine of one thousand dollars. (R. 21-23)

The District of (Columbia Court of Appeals has twice held that the questioning of a person whose movement is restricted during a police search does not constitute a “custodial interrogation” within the meaning of Miranda. Tyler v. United States, D.C.App., 298 A.2d 224; Wells v. United States, D.C.App., 281 A.2d 226. We distinguish the latter case as well as People v. Fischetti, 47 Ill.2d 92, 264 N.E.2d 191.

The Fifth Circuit in Brown v. Beto, 468 F.2d 1284, per Gewin, J. held that one who was present during a search of his store under a warrant was in custody rendering inadmissible a self-incriminatory statement made by him to the searchers prior to receipt of the Miranda warnings. There the court noted certain criteria looked to in determining whether or not there had been a custodial interrogation, probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation.

We quote from Brown, supra:

“Before law enforcement officers can subject a citizen to custodial interrogation, he must first have been given the Miranda warnings. In Miranda ‘custodial interrogation’ was defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ This court has yet to formulate a general rule for distinguishing custodial from non-custodial interrogation but instead has preferred to take a case-by-case approach. It has been made clear that the simple fact that interrogation takes place in the familiar surroundings of the defendant’s home or place of business rather than in the police station does not necessarily mean that the defendant is not being subjected to custodial interrogation. In making the distinction between custodial and non-custodial interrogation this court has singled out certain criteria as having special significance; these include probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation. Although none of these factors is alone determinative, we have recently indicated that the most compelling is whether or not the focus of the investigation has finally centered on the defendant.
“Evaluating the present case in light of the foregoing discussion, we find that Brown was in custody, when he made the incriminating statement in question. At that moment the focus of the investigation was clearly centered on Brown. The police had arrived at the drugstore with a search warrant which was supported by an affidavit naming Brown as the possessor of suspected contraband. They immediately summoned Brown from the back of the store to witness a painstaking search of the premises. From these facts it can readily be inferred that the police had intended to catch Brown ‘red-handed.’ Furthermore it must have appeared to Brown that he was not free to go at any time. Jarred from a position of repose, Brown was confronted with nine armed officers who closed the doors of the store and obliged him to be present as they combed the premises. The district court properly ruled that in these threatening circumstances Brown should have been given the protection the Miranda warnings afford before being asked ‘What is this?’
“Implicitly recognizing the validity of the district court’s approach, the State of Texas argues that the applicability of Miranda principles alone should not be conclusive and that instead we should review the entire record in this case to determine whether under the totality of the facts and circumstances disclosed by the record Brown’s statement was voluntarily given. In effect Texas urges us to reincarnate the old due process standard of voluntariness for testing the admissibility of incriminating statments, a test that the Supreme Court intended to obviate with its decision in Miranda. Applying this test, though by no means adopting it, we still find Brown’s statement inadmissible.
“The situation in which Brown found himself on the evening of March 11, 1966 was obviously coercive. He had been resting in a back room of the store when he was unexpectedly summoned to the front where he found the doors closed and nine armed officers waiting for him. The police required him to watch while they engaged in a lengthy search of the premises. After 30 to 45 minutes and with the tension mounting, the brown paper sack was discovered, Brown was confronted with it, and he was asked ‘What is this ?’ He had not been warned of his right to remain silent and that any statement he did make could be used as evidence against him.
“Although the issue presented is subject to valid contentions pro and con, we feel that Brown’s answer to the question posed was not his ‘free and voluntary act.’ In making this determination we do not hesitate to recognize that the presentation and execution of a search warrant in the nighttime by a substantial number of police officers at premises in the possession and control of an individual is tinged with a certain amount of coercion. As Mr. Justice Stewart aptly stated in Bumper v. North Carolina. [391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797]
‘When a law enforcement officer claims authority to search a home under a warrant he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.’ ,
“Considering all of the foregoing factors, we conclude that Brown’s statement was more the product of the intimidating setting in which he found himself, a setting created by the police, than his own voluntary admission.”

In the instant case, the testimony of DeGruy and Margaret Conner is uncontra-dicted that they were told to sit down and be still before the search began.

On finding the yellow bag containing marijuana and two letters addressed to DeGruy one of the officers asked him if the bag was his. The investigation had then focused accusatorily on DeGruy. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311.

Since the officer’s question came before the Miranda warnings, the trial court was in error in allowing the statement to be introduced into evidence.

Where a case is tried by a judge without a jury, the introduction of illegal evidence dictates reversal unless the remaining evidence is without conflict and is sufficient to support the judgment. Dutton v. State, 226 Ala. 1, 145 So. 581; Pigford v. Billingsly, 264 Ala. 29, 84 So.2d 664; Supreme Court Rule 45, Code 1940, T. 7 Appendix.

Excluding the evidence of DeGruy’s ownership of the yellow bag, the only evidence in support of DeGruy’s conviction for possession of marijuana for personal use is the presence of some marijuana in a bowl on the table and DeGruy’s knowledge that Yestadt had marijuana in the apartment.

DeGruy had just arrived at the apartment in which the marijuana was found on the morning of the search, and the apartment was not owned or rented by him.

In Radke v. State, 42 Ala.App. 397, 293 So.2d 312, aff’d 292 Ala. 290, 293 So.2d 314, this court set out three attributes of possession: (1) actual or potential physical control (2) intention to exercise dominion and (3) external manifestations of intent and control. See Garsed v. State, 51 Ala.App. 622, 288 So.2d 161; 28 C.J.S. Supp. Drugs and Narcotics §§ 157—159.

II

The inventory of items seized during the search of the apartment listed five packages of heroin. Evidence of heroin in a case dealing with possession of marijuana is inadmissible due to its irrelevancy and its highly prejudicial nature. The trial court committed reversible error in admitting the inventory into evidence over DeGruy’s objection. We do not consider Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975) to be controlling.

The judgment below is reversed and the cause is remanded for new trial.

Reversed and remanded.

All the Judges concur, except De-CARLO, J., who dissents.

DeCARLO, Judge

(dissenting).

From my review, the relevant facts surrounding the question did not demonstrate the kind of custodial interrogation denounced by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and based upon the following, I respectfully dissent:

Appellant was visiting in the apartment of Greg Yestadt at the time the search warrant was executed. Upon the arrival of four officers, all of the six occupants were told to take a seat and be still. The presence of appellant under these circumstances did not create “custody.” Wells v. United States, D.C.App., 281 A.2d 226 (1971).

At the time the yellow bag was found, the officers had already recovered marijuana, smoking paraphernalia, and heroin, and they had no idea as to the ownership of these items.

There is no evidence to indicate the investigation had focused on appellant to the exclusion of the others. The yellow bag contained two letters addressed to appellant and one to Margaret Conners. After inspecting the bag, Officer South asked appellant, “If the bag belonged to him.”

Nothing in the record establishes a police dominated atmosphere which would affect substantially the appellant’s will to resist or even compel him to speak out. On the contrary, appellant was among friends in an apartment which lacked the coercive setting or compelling influences of a station house.

The appellant’s affirmative answer to the officer’s inquiry was nothing more than general on-the-scene questioning as to facts surrounding a crime. It was part of the fact-finding process, and specifically excluded under the holding in Miranda, supra.

Five other people were present in the apartment, and I submit, the officer, after finding the letters was justified in determining the bag’s ownership. Tyler v. United States, D.C.App., 298 A.2d 224.

I distinguish Brown v. Beto, 5 Cir., 468 F.2d 1284 (1972), for these reasons; (1) the affidavit upon which the search warrant was issued named Brown as possessor of the suspected contraband; (2) he was manager of the drug store; (3) he was the only one called to the rear while the search was being conducted and; (4) Brown was the only one present besides the officers when the heroin was found.

From the facts in the instant case, I am convinced the investigation did not focus on DeGruy until he acknowledged ownership of the bag, however, the investigation in Brown, supra, had centered on him from the moment the officers entered his drug store.

      . “The Miranda warning was read, I believe, as we were leaving; which is maybe an hour and a half later; but I don’t think I was placed under arrest officially till we got — till we were leaving. * * * ”

      . “Q All right, sir. Now, did you examine any other contents, if any, of the yellow canvas bag that you told us about?
      “A Yes, sir.
      “Q What else, if anything, did you find in there?
      “A As I said earlier, the plastie bag containing marijuana, home made pipe constructed from a aluminum can; looked as if probably was a film can with a stem made from a plastic can, a small canister containing pills. There was two cans of Skoal.
      “Q That’s Skol?
      “A Skoal, I believe.
      “Q Al?
      “A Yes, sir.
      “Q All right.
      “A There was two letters in the canvas bag addressed to Glenn DeGruy.
      “Q Both of them addressed to Mr. De-Gruy?
      “A There was two in the bag addressed to Glenn McGruy.
      “Q All right, sir. Now, I’ll ask you this, could you tell us — well, first let me ask you do you recall any other contents of the bag, yellow canvas bag, or is that all?
      “A That’s all my notes indicate. There was three letters in all in the bag.
      “Q Three?
      “A Yes, sir.
      “Q All right, sir. Only two of them addressed to Mr. DeGruy?
      “A Yes, sir.
      * * * * *
      “Q Now, did •'you move that bag, the yellow canvas bag from where it was?
      “A Yes, sir.
      “Q Did you — I’ll ask you did you make any statement to the Defendant concerning this bag?
      “A Yes, sir.
      “Q What was that statement?
      “A I asked the Defendant if the bag belonged to him.
      “Q All right, sir. And did he respond to that question?
      “A Yes, he did.
      “MR. WRIGHT: Your Honor, please I want to object to anything he stated.
      “THEI COURT: I’ll allow him to answer, subject to an argument on the law pertaining to its admissibility and if the Court determines it’s not admissible, I’ll reject it from the evidence.
      “MR. WRIGHT: All right, sir.” (R. 56-58)


author: HEFLIN, Chief Justice.

text:
    In re Glenn DeGRUY v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1276.
    Supreme Court of Alabama.
    Oct. 2, 1975.
    Rehearing Denied Dec. 18, 1975.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for petitioner.
    No appearance for respondent.
   HEFLIN, Chief Justice.

Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to' review and revise the judgment and decision of that Court in DeGruy v. State, 56 Ala.App.-, 323 So.2d 406.

Writ denied.

MERRILL, FAULKNER, JONES, SHORES and EMBRY, JJ., concur.

BLOODWORTH, MADDOX and AL-MON, JJ., dissent.


text:
    Robert George KIRCHEIS v. STATE.
    1 Div. 594.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.
    D. Wayne Childress, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree involving the death of his wife and was sentenced to life imprisonment in the penitentiary. He was represented by court-appointed counsel at arraignment and throughout the trial proceedings. He pleaded not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

Omitting the formal parts the two-count indictment upon which appellant was tried reads as follows:

“The GRAND JURy of said County charge, that, before the finding of this indictment ROBERT GEORGE KIR-CHEIS whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought killed Evelyn Norton Kircheis, by striking her with a hammer, against the peace and dignity of the State of Alabama.
The GRAND JURY of said County further charge, that, before the finding of this indictment ROBERT GEORGE KIRCHEIS whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought killed Evelyn Norton Kircheis, by striking her with a blunt instrument, a more particular description of which is to the Grand Jury otherwise unknown, against the peace and dignity of the State of Alabama. CHARLES R. BUTLER, JR., District Attorney for the 13th Judicial Circuit of Alabama (County of Mobile)”

The testimony adduced by the state made out one of the most brutal, heinous, merciless and senseless killings imaginable. A defenseless woman was bludgeoned to death by a claw hammer or blunt instrument while in her own bed dressed in a night gown.

Mr. Michael Cook testified that he was employed by the Cypress Creek Country Club which was formerly the Riviere du Chien Country Club; that he knew appellant as he was formerly employed as comptroller at the club. He identified appellant by pointing to him in the courtroom. He further testified that he knew appellant’s voice. He stated that on Saturday night, April 13, 1974, he received a telephone call from his employer, Mr. Jack Maloney, and as a result of his telephone conversation he went to apartment 202 of the Skyline Apartments and knocked on the door. Appellant and his wife lived in this apartment. He did not receive an answer in response to his knock on the apartment door. He then went to the apartment manager and asked her to please open the door because he was concerned that Mrs. Kircheis was ill. The manager let him in the apartment and he called Mrs. Kircheis and received no answer. The time was about 8:00 p. m. The lights in the apartment were out and he turned on the lights in the dining room and he saw no one around. He walked back to a bedroom. The light from the dining room shone clearly in the bedroom. The bed was rumpled and he lifted the cover and recognized the body of Mrs. Kircheis. He went downstairs and told the manager not to let anyone in that apartment and he called the Mobile Police Department. He went back upstairs and stayed at the front door of the apartment until the police arrived. Subsequently he gave the Police Department a written statement and he talked to no one except the police officers.

Mr. Ronald S. Myers was employed by the Mobile Police Department as an evidence technician and in this capacity he was on call twenty-four hours a day. He was at home on April 13, 1974, and received a call at approximately 9:05 p. m. to go to the apartment of appellant at 1164, apartment 202, Skyline Arms. He arrived at this apartment at 9:12 p. m. He carried his camera with him. He was met at the apartment by Sergeant Eugene Ganoe. Upon entering the apartment he and Ganoe walked down a small hallway to a bedroom where he saw a woman in bed. He took a series of pictures of the woman in bed and different scenes of the bedroom and of the entire apartment, and he drew a plan of the apartment. He drew a sketch of the floor plan on the blackboard before the jury and related the sketch to some 16 photographs he made at the scene.

Dr. Earl B. Wert, the Coroner of Mobile County, and a duly qualified pathologist, performed an autopsy on the body of Evelyn Kircheis on April 15, 1974, in the presence of Mr. Nelson Grubbs, Assistant State Toxicologist in charge of the Mobile Division.

From the record :

“Q All right, sir. And could you tell us what you found as a result of your autopsy ?
A We found multiple blunt and sharp wounds of the head, neck, face, and back of the head, numbering nineteen, the most severe of which was at the angle of the left jaw penetrating down to involve the skull.
Q Doctor, could you point these out on me if you are able to so that the jury can fully understand? Or on yourself?
A Well, on myself. At this position here at the base of the skull, fracturing the skull and temple and the jaw with attachments to the skull. These wounds measured approximately two inches deep and about an inch wide. In addition, there were other fractures of the mandible, the lower jawbone; and a wound to the back of the head; and two parallel pressure wounds in the front of the forehead between the eyebrows which suggested the track of a claw hammer might have made such wounds; the extensive hemorrhaging to the brain and fracture of the skull, but no other wounds internally, on her back, or extremeties. Death was attributed to blunt instrument wounds of the head with hemorrhage and fractured skull and damage to the brain.”

Dr. Wert further testified that the wounds weren’t such as might have produced immediate death. He could not pinpoint the time of death but stated the date could not have been prior to April 13, 1974, and that rigor mortis was present at the time he performed the autopsy. A series of photographs were made by a police officer during the autopsy.

One of the investigating officers described the murder scene as follows:

“WITNESS: Well, when I went in the bedroom, the first thing I noticed was the condition of the body. The body was covered with' a sheet. The sheet was removed, and I observed the body, and the body was very bloody. The body had bruise marks all over it. The head appeared to have been — the skull was punctured. There was matted blood all in the hair of the body. The sheets and bed clothing were soaked with blood, and there was blood splattered all over the ceiling, walls, floor, closets.”

A claw hammer was found in a tool box in the back corner of a closet next to the living room which was a good distance from the bedroom where the body of the woman was found. The tool box was obscured by a long evening gown. The gown was removed so that a photograph could be made of the hammer in the tool box. The underside of the claw appeared to be bloodstained.

In the course of the investigation the officers learned that the deceased owned a Plymouth Duster, bearing a Florida license tag, and the color of the car was white over red. The car was missing and appellant could not be found in the Mobile area. A radio dispatch was put out for appellant and the missing automobile.

Mrs. Ann Tallman testified that on April 12, 1974, she lived in an apartment at the Skyline Arms Apartments and that appellant and his wife lived in the apartment above hers. She stated that on that Friday morning, April 12, 1974, she got up as usual and dripped her a cup of coffee. That the Kircheis’ master bedroom was right above her master bedroom. She said after drinking her coffee, she was preparing to take a shower when she heard a scream. She listened for a few minutes in silence and heard nothing else for a few minutes and then she. heard some sobbing —kind of hysterical like crying and sobbing and then she heard nothing else.

Mrs. Tallman further testified that though appellant was her neighbor, she only spoke to him on a few occasions.

From the record:

“Q Mrs. Tallman, you said that Mr. Kircheis here was your neighbor. Did you ever have an occasion to talk with him?
A Well, very little. We did have one conversation, I think on my porch; and I spoke to him as I saw him occasionally.
Q Now, what did this conversation relate to ?
A Well, one — this must have been about three weeks before his wife moved in with him, he mentioned the fact that he had gotten married. I said, ‘Well, congratulations.’ And in answer to that he said, ‘This isn’t what you think; it’s more a marriage of convenience.’ And I said. — well, you know, to each his own; and he said, ‘Well, sometimes it’s just more convenient businesswise to be married than it is to be single.’ And that was the extent — pretty much the conversation. We talked about my pecan cracker — and that was it.
Q That was the extent of the conversation?
A Yes.”

This witness further stated that she went out of town that afternoon after her work day was over and did not return until Saturday night and found an ambulance and police cars around the apartment.

Mrs. Carolyn Larmon testified that she and appellant were good friends; that she met him in October, 1973, prior to his marriage in January, 1974. She stated that he called her on the telephone several times before and after his marriage. That he visited her in her apartment both before and after his marriage and they engaged in sexual relations. He told her he loved her and that his marriage was a mistake. He told her he married for business reasons— it gave him a better business report. After his marriage he told her he was going to Las Vegas and asked her to go with him but her employment prevented her from going.

She further testified that subsequent to his marriage, he bought her an outfit— pants and a top for a birthday present and gave her a check for $650.00 because she was out of work and very desperate as far as finances were concerned. She cashed the check but it later bounced. She stated appellant called her from a motel on Thursday before the killing occurred that weekend and asked her to come to his motel but she didn’t go. After appellant’s arrest and while he was in jail, she visited him on two occasions and carried him money and presents. He told her he wanted to continue their relationship.

Mr. Jack Maloney, Jr., testified for the state. According to his testimony, he knew both appellant and his first wife. He met them in Miami, Florida, and was present at their marriage some time in the year of 1972. Photographs of the wedding party were introduced in evidence over appellant’s objection. The court overruled the objections on the ground that the photographs showed they were husband and wife and that Mr. Maloney was an attendant. The court said, “I’m going to let them in for what they are worth. If for nothing else they show the relation of Mr. Maloney to both parties.”

Mr. Maloney further testified that appellant came to work for him at his club a few weeks after the wedding. He stated that both appellant and Michael Cook worked for him. He said he had not seen Mrs. Kircheis for a couple of days and he called Cook to go to her apartment and check on her, and that was the reason for Cook going to her apartment and discovering her body.

Mr. Marion Lee Sennett employed by the State Department of Toxicology as a Criminalist testified, after his qualifications were admitted, that the hammer introduced in evidence was brought to the laboratory for examination for fingerprints but he was not able to find any usable prints but did find human blood stains on the hammer.

Three young ladies, all of whom were employed at different branches of the First National Bank of Mobile, Alabama, testified that on Friday, April 12, 1974, they each cashed a $50.00 check drawn on the account of Evelyn M. Kircheis and payable to R. G. Kircheis. That Mr. Kircheis endorsed each of these checks in their presence and that he was driving a white and red automobile. Each of these witnesses were shown copies of the original checks they cashed and identified their “teller” numbers but the court sustained objections to the introduction of the checks because they were not the originals. However, each of these witnesses pointed to appellant in the courtroom and positively identified him as the man for whom they cashed these checks during banking hours on April 12, 1974.

Mr. Joseph Connick who was employed by the Mobile Police Department testified that on April 13, 1974, he assisted in the investigation of the death of Mrs. Kircheis. In the course of his investigation he learned that the deceased owned a Plymouth Duster automobile, white over red in color; it had a Florida tag. That he did not find Mr. Kircheis in the area of Mobile; that the first time he saw him was on May 31, 1974, in jail in Reno, Nevada. At that time he gave him the Miranda rights and warnings by reading to him his rights from a Miranda card. That he read appellant these rights in the presence of Captain Kater Williams. That no one in his presence of hearing threatened the appellant, made any promises to him or hope of reward, abused him in any way, nor made any inducements to him to get him to make any statement. After giving him his rights he asked appellant if he understood his rights and he said he did. The officers brought appellant back to Mobile and placed him in the Mobile County Jail where on June 3, Officer Connick gave appellant the Miranda rights for the second time.

One Melvin Summerlin, a convict serving a five-year sentence in Quincy, Florida, was called as a witness for the state. He was brought back to Mobile and put in the same cell with appellant. He identified appellant in court.

From the record:

“Q And, Mr. Summerlin, where are you presently residing ?
A At this time in the City Jail.
Q I ask you if you know Robert Kir-cheis ?
A Yes, sir.
Q Would you look around this Courtroom and identify him?
A The man on the end over there — the last man.
Q What’s he wearing?
A A blue shirt.
Q I’ll ask that the record reflect that he identified the defendant, Robert Kir-cheis. Now, Mr. Summerlin, how is it that you have come to know Mr. Kir-cheis ?
A I’ve come to know him as a cell mate in the City Jail.
Q What city jail? ■
A At Mobile City Jail.
Q And when was this ?
A July of last year — July or August of last year.
Q All right. Now, while you were in the cell with him, did you ever have occasion to talk with him ?
A Yes, sir.
Q Did he ever discuss his wife ?
A Yes, sir.
Q Okay. And I ask you what was the nature of that — let me ask you, did you question him about her or did he just volunteer—
A We were talking.
Q All right. What if anything did he tell you about his wife?
A Well, he told me that he was in there for- — that he was a suspect of murder of his wife at that time.
Q All right. And did he made (sp) any statements to you about the murder itself —or the killing?
A He told me the night he — in other words, the night that it happened and all that. He told me he went out on the—
Q Relate to us what he said.
A He said he went out on the town and had come in; he said he had been partying and when he come back in he wanted to have sex relations with his wife and she objected, so he started slapping her around. Then he said that he had used a hammer and he’d beat her; and he said that when he realized she was dead, he took her car and went and parked it somewhere about three blocks away; and then from there he come back and took a shower; and he got her check book and he cashed some checks on her at a bank down here in Mobile; and then from there he went to Memphis, Tennessee; from Memphis, Tennessee he went to Des Moines, Iowa. In Des Moines, Iowa he said he opened up another checking account and started cashing checks so he could get money to go to Reno, Nevada. From Reno, Nevada he said he was apprehended by the F.B.I. That’s what he told me.
Q Did he ever make any reference to anything about a motel in Mobile ?
A Eight Day Inn was the name of it; he said he stayed there the night after he realized she was dead.
Q Okay. Did he ever make any mention of a man named Maloney ?
A Yes, sir. He said he contacted Mr. Maloney the day after the day he realized that she was dead and asked Mr. Maloney if he had seen her — said he had done this for an alibi; and then he said he contacted Mr. Maloney later on in the day.
Q Now, Mr. Kircheis told you that he was doing this for an alibi ?
A That’s what he said.”

On cross-examination this witness testified that he was charged with murder in Mobile but pled guilty to manslaughter and received a twenty-two month sentence after his conversation with Mr. Kircheis. He stated that he was put in the same cell with appellant at the suggestion of Captain Williams who told him that appellant was suspected of murder and wanted him to talk to him and see if he could get any information. That Captain Williams did not tell him that Mr. Kircheis was a suspect in the death of his wife. He further testified that he was not promised anything by Captain Williams or any other official. He said he stayed in the cell with the defendant about two weeks and after he related the conversation the defendant had with him to the officers he was left in the city jail and appellant was transferred to the county jail. He gave the police a signed statement as to what Mr. Kircheis told him. He said he talked to the D.A. and he handed him the statement and asked him if that was the statement he had given and he answered, “Yes, sir.”

On re-direct examination he testified as follows:

“BY MR. HUGHES:
Q In the process of these conversations, did you ever threaten Mr. Kircheis to get him to talk with you ?
A No, sir.
Q It was strictly a voluntary conversation?
A Yes, sir.
Q Now, have I, or has anybody from my office, ever offered you anything in regard to this case ?
A Never.
Q To testify or anything else ?
A Never.
Q And you don’t have any cases pending here now, do you ?
A No, sir.
Q And you are serving your time down in Florida?
A Yes, sir.”

Appellant testified in his behalf. He denied killing his wife and he denied making any statement to that effect to his cell mate, Melvin Summerlin.

On direct examination he stated that he and his wife had a discussion about their marital status and his drinking problem. That his wife was originally from Florida where she was a school teacher and that she was due two to three thousand dollars. That she suggested that she return to Florida with a friend and he could use her car to seek employment and that she would give him six months to straighten up and they would move back to Florida and resume their marriage relationship. He said this understanding took place on April 10, 1974. On April 10, he packed most of his clothes and started to leave town but got to drinking and slept in the car in a parking lot near his apartment. That the last time he saw his wife alive was late in the afternoon on April 11.

He further testified that on Friday, April 12, 1974, he again tried to leave town but got to drinking and decided he couldn’t leave and spent the night at a motel — either Day’s Inn or Eight Day Inn — on Government Boulevard. He said he left Mobile between 6:00 and 7:00 a. m. Saturday morning. He stated he spent Saturday night in a motel in Memphis, Tennessee, but ended up spending most of the night in a topless joint near the motel. On Monday he went to Des Moines, Iowa, where he spent two days looking for work. From Des Moines he went to Reno, Nevada, where he was arrested by F.B.I. agents on an unlawful flight warrant to avoid prosecution for forgery.

On cross-examination he testified he spent Friday night at a motel in Mobile. It should be noted here that no attempt was made to introduce in evidence his motel registration to support his testimony.

He admitted his relationship with Carolyn Larmon and that he told her he loved her. He admitted asking her to go to Las Vegas but denied that he did so after he married. He also said that he loved his wife and told her that during the time he was going with Carolyn Larmon.

He denied cashing the three checks on his wife’s account in the First National Bank of Mobile on April 12, 1974. He admitted cashing a check in Des Moines in the amount of $1,100.00 and that the check was not good, and he knew he didn’t have $1,100.00 in his bank account.

He was shown the claw hammer which was introduced in evidence as State’s Exhibit No. 17 and said that could be his hammer and that he kept it in a shoe box in the front closet of his apartment.

He admitted that while he was in jail Carolyn Larmon visited him and brought him books and money and that she wrote him six letters and he wrote her the same number.

He stated that he was a fairly well educated man and had nine hours toward his Master’s Degree.

On re-direct examination he said when the F.B.I. agents arrested him, they read him his rights and told his he was under arrest for — “charges other than this one.”

Appellant made several motions to exclude the testimony of Melvin Summerlin on the ground he was acting on behalf of the police and his confession was involuntary. The court overruled these motions on the grounds that Summerlin was not in a position to offer appellant anything and that Summerlin was not subject to the same rigid test as police officers with reference to the Miranda warnings.

Appellant urges this court to reverse this case on the following four grounds:

1. Denial of appellant’s motion to dismiss the indictment on grounds that appellant was denied a speedy trial.
2. The court erred in admitting into evidence over appellant’s objections photographs which were cumulative in nature and having no probative value.
3. The court erred in denying appellant’s motion to exclude the testimony of Melvin Summerlin.
4. Denial of appellant’s motion to exclude the state’s evidence and enter a finding of not guilty.

We will treat these claimed errors in the order presented.

Appellant states that the court continued this case twice over his objections and that 307 days lapsed from the time of his arrest until he was brought to trial. One of these continues was due to a motion for change of venue filed by appellant because of widespread publicity and he could not get a fair trial.

Some of the factors to be considered by appellate courts in determining whether an accused has been denied a speedy trial are set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. These factors are: (1) length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. The defendant in this case has not shown that he was prejudiced in any way. He filed a motion for change of venue on October 18, 1974, and it was not denied until February 26, 1975. Another factor that must be considered is the congestion of court dockets.

In Giles v. State, 52 Ala.App. 106, 289 So.2d 673, this court held that a delay of twelve months is not sufficient to show a denial of the right to a speedy trial absent a showing of prejudice to the accused.

In Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81, this court held that a delay of slightly over eight months was not too long where there was no evidence of prejudice to the defendant.

In Cole v. State, 52 Ala.App. 447, 293 So.2d 871, this court said:

“There has been no unreasonable delay on the part of the state in bringing appellant to trial. It is settled law that speedy trial rights to not operate to deprive the state of a reasonable opportunity to prosecute defendants. A defendant cannot claim his constitutional rights have been denied where the delay is caused by him, or where delays are made necessary by the law itself, or occasioned by want of time to try the case. Sample v. State, 138 Ala. 259, 36 So. 367; Braden v. State, 49 Ala.App. 97, 268 So.2d 877.
In Sellers v. State, 48 Ala.App. 178, 263 So.2d 156, we said:
‘In addition to showing a demand for speedy trial, to make a prima facie case for release an accused normally must also show that actual prejudice resulted from the fact that trial was delayed. Hoskins v. Wainwright, 440 F.2d 69 (5th Cir., 1971); United States v. King, 431 F.2d 734 (5th Cir., 1970); United States v. Fitzpatrick, 437 F.2d 19 (2d Cir., 1970); cf. Dickey v. Florida, supra [398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26]. According to Hoskins, supra, if the accused relies on passage of time alone to establish prejudice, he can meet this burden by showing (1) that prosecution was delayed beyond the point at which a probability of prejudice arose; (2) that he himself was not responsible for the delay; and (3) that the state ought reasonably to have avoided the delay.’ ”

It is settled law that speedy trial rights do not operate to deprive the state of a reasonable opportunity to prosecute defendants. Hamilton v. State, 52 Ala. App. 96, 289 So.2d 663.

There was no error in the denial of the motion to dismiss the indictment.

There was no error in the admission of the photographs into evidence. Gruesomeness is not grounds for excluding photographs if they have a reasonable tendency to prove or disprove some material fact which is in issue or which at the time appeared to be probably in dispute or material. This is true even though the photographs have a tendency to inflame the minds of the jury and were merely cumulative of detailed oral testimony. McHugh v. State, 53 Ala.App. 473, 301 So.2d 238; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Stallings v. State, 249 Ala. 1, 32 So.2d 233.

In Hurst v. State, supra, we said:

“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 when the proper predicate has been laid. Snow v. State, 50 Ala.App. 381, 279 So.2d 552; Boulden v. State, 278 Ala. 437, 179 So.2d 20.”
* * * * * *
“There was no error in admitting photographs of the deceased taken at the scene of the homicide five days after he was killed. Concededly, these photographs are unsightly—even ghastly. However, gruesomeness is not ground for excluding evidence consisting of photographs if it has a reasonable tendency to prove or disprove some material fact in issue, or which at the time appeared to be probably in dispute or material, and if it illuminates the issues in any way, and is relevant, it is admissible even though possessing a tendency to inflame the minds of the jury. McKee v. State, 33 Ala.App. 171, 31 So.2d 656; Grisset v. State, 241 Ala. 343, 2 So.2d 399; Wilson v. State, 31 Ala.App. 21, 11 So.2d 563; Harnage v. State, 49 Ala. App. 563, 274 So.2d 333, (reversed on other grounds, 290 Ala. 142, 274 So.2d 352).”

The court did not err in overruling appellant’s motion to exclude the testimony of Melvin Summerlin. Judge De-Carlo, in the case of Canada v. State, 56 Ala.App. -, 325 So.2d 513, released by this court on August 19, 1975, held that a confession obtained through trickery is voluntary. He cited with approval the case of Commonwealth v. Hipple, 333 Pa. 33, 3 A.2d 353, wherein the Supreme Court of Pennsylvania held:

“A confession, procured by a trick or artifice, not calculated to produce an untruth, is never vitiated thereby.”

In Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384, the Supreme Court of the United States said:

“But to say that a public jail is the equivalent of a man’s ‘house’ or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection. A business office is a protected area, and so may be a store. A hotel room, in the eyes of the Fourth Amendment, may become a person’s ‘house/ and so, of course, may an apartment. An automobile may not be unreasonably searched. Neither may an occupied taxicab. Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day.”

The facts in the case of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, are clearly distinguishable from the facts in the instant case.

There was no error in overruling appellant’s motion to exclude Summerlin’s testimony.

There was no error in denying appellant’s motion to exclude the state’s evidence.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the 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. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

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: FAULKNER, Justice.

text:
    In re Robert George KIRCHEIS v. STATE. Ex parte Robert George Kircheis.
    SC 1540.
    Supreme Court of Alabama.
    Nov. 26, 1975.
    D. Wayne Childress, Mobile, for petitioner.
   FAULKNER, Justice.

Petition of Robert George Kircheis for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Kircheis v. State, 56 Ala.App. — , 323 So.2d 412.

Writ denied.

HEFLIN, C. J„ and BLOODWORTH, ALMON and EMBRY, JJ., concur.