author: TYSON, Judge. TYSON, Judge.

text:
    Ruth ZUCK v. STATE.
    6 Div. 860.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.

      J. Louis Wilkinson, and Charles M. Purvis, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment by the grand jury of Jefferson County charged Ruth Zuck with the first degree murder of her husband, Gordon Darnell Zuck, “by beating him with an iron bar, or by means otherwise unknown.” The jury found the appellant guilty of murder in the second degree and fixed punishment at fifteen years imprisonment in the penitentiary. The trial court then entered judgment in accordance with this verdict.

Wilma Zuck Aulsbrook testified that she was the daughter of Gordon Darnell Zuck, and that she last saw her father alive about three weeks prior to his death (night of December 4-5, 1973).

J. O. Butler, Sr., testified that, as Coroner of Jefferson County, he examined the body of the deceased and determined that the cause of death was numerous blows to the head which had caused several skull fractures. He also identified several photographs he made at the Zuck home where Mr. Zuck’s body was found on the early morning of December 5, 1973.

Flynn Jerald, a fireman with the Vesta-via Fire Department, testified that he went to the Zuck residence on 2509 Beaumont Circle, Vestavia, at 6:18 a. m., on December 5, 1973, in response to a call. He testified that he remembered seeing Mrs. Ruth Zuck in front of the house, on the steps, when he arrived. Upon entering a downstairs bedroom, he found the body of a man sitting in a chair with a black cloth draped over his head. He testified that he saw no weapon, and that he asked one of the other firemen to call the police and coroner.

Stephen Gregory Renfroe testified that he answered a call, as a member of the Vestavia Police Department, to go to the Zuck residence on Beaumont Circle, and arrived there shortly before 6:30 a. m., on December 5, 1973, accompanied by Officer Jim Minor. He testified that Sergeant Thomas Kines was already on the scene when they arrived. He testified that Mrs. Ruth Zuck asked him to notify her sons and daughters, and that “she presumed her husband had passed away.” He testified that he also talked with Mrs. Zuck’s son, Richard, that morning, and that he (Ren-froe) notified a Mrs. Deedee McDonald, a police radio dispatcher at Vestavia Hills, to notify the family. He also stated he saw the body of the deceased, Gordon Darnell Zuck, in a chair in a downstairs bedroom.

Sergeant Thomas J. Kines testified that he was a Patrol Sergeant with the Vesta-via Police Department. He testified that he arrived at the Zuck home on the morning of December 5, 1973, at about 6:25, and upon arrival, he met three members of the Vestavia Fire Department, who were paramedics, two of whom were Captain Flynn Jerald and Louis Harrison. He stated that he saw the deceased’s wife, the appellant, Mrs. Ruth Zuck, standing on the front porch, that she was not crying. He stated that he went into the room where the three firemen were and found the body of Gordon Darnell Zuck sitting in a chair in a downstairs bedroom, that he remained at the scene about one hour. He also identified a diagram of the interior of the home. He stated that while he was inside the house, Richard Zuck, a son, came in and gave him permission to remove certain papers. He testified that later, after the coroner had come and examined the scene, he talked with Mrs. Zuck and told her that her husband was dead, and that “it looked as though he had met with foul play.” He testified that Mrs. Zuck then stated that she had spent the preceding night at the apartment of her son, Richard Zuck. From the record (R. pp. 61-63):

“Q As best you recall, tell us everything that you said to her and she said to you?
“A I asked Mrs. Zuck how long it had been before she had talked to Mr. Zuck or had seen him. She said she talked to him sometime between, the last time between eleven and midnight.
“THE COURT: Of the night before?
“A The night of December the fourth and the morning of December the fifth.
“Q Did she tell you where she was when she talked to him on that occasion?
“A She was at Rick’s apartment.
“Q Did she tell you whether or not she had had any other conversation with him that night before the occasion of eleven or twelve o’clock?
“A She made the statement that she had called Mr. Zuck from Maplesville on her way back from Selma.
“Q Did she tell you what time she called Mr. Zuck from Maplesville ?
“A If she did I don’t recall.
“Q Did she tell you about any other conversations that she had with Mr. Zuck?
“A She called him again in Montevallo. From Montevallo. But I don’t even recall asking her the time.
“Q What else did she tell you on that occasion ?
“A She said she had called Mr. Zuck, and told him that they had gotten some business or something straightened out in Selma and she was going to Ricky’s apartment and she would call him from there. And from her statement she said that she called Mr. Zuck again from the apartment around nine o’clock or thereabout. And she told him that she was there and they were gonna go over some business. What the business transaction was I have no idea.
“Q Did she tell you anything else that you recall?
“A That Mr. Zuck told her for her to stay on over there and for her and Richard to get together and get the business straightened out. That he would see her in the morning.
“Q Did she tell you where she spent the night that night?
“A At Richard Zuck’s apartment.
“Q Did she tell you who else was there at that apartment that night ?
“A Richard and Linda.
“Q Did she tell you anything else about Richard’s whereabouts that night ?
“A I don’t recall. I don’t recall asking her that question.
“Q Did she tell you what time Linda went to bed?
“A No sir.
“Q Did she tell you what time she went to bed?
“A She told me that she called Mr. Zuck somewhere between eleven and twelve o’clock and Mr. Zuck wanted Richard to come over and take him down to the theatre. And Richard left. Then Linda was laying on the bed in Richard’s room. And then she went in there and laid across the bed with Linda.
“Q Did she tell you whether or not she saw Richard come back to that apartment that night?
“A I don’t recall her saying whether or not she did.”

On cross-examination, Sergeant Kines stated that he saw the fifteen year old daughter of the Zucks, Linda, and their fourteen year old son, Lou, both of whom were crying.

Vestavia Police Lieutenant Joe Stewart testified that he went to the home of Gordon Zuck on the morning of December 5, 1973, about 7:30, that he saw the appellant, Mrs. Ruth Zuck, and her daughter, Susan Morton, in the kitchen of the residence. He also stated that a Mrs. McDonald, who was a radio dispatcher for the Vestavia Police Department, and a Mrs. Sanders, a neighbor, were also there. From the record (R. pp. 69-70):

“Q What did you do there in the kitchen?
“A I asked Mrs. Zuck what had happened.
“Q What did she tell you ?
“A She stated that Gordon had hemorrhaged again and was dead.
“Q What did you say to that? Anything ?
“A I asked her how she had discovered the body and so forth and she said that she and Linda had been out of town for about the last four days from the previous Thursday and that they had come home that morning at about six-fifteen a. m.
“Q They who?
“A Mrs. Zuck and Linda.
“Q Did she tell you where she had spent the night?
“A She had spent the night at her son, Rick’s apartment at The Club Apartments.
“Q Go ahead.
“A That they had arrived at the Zuck residence at approximately six-fifteen a. m. and had brought a load of luggage into the house and Mrs. Zuck said that she went into the kitchen and that Linda had gone into her bedroom.
“Q Her who?
“A Linda’s bedroom.
“Q All right go ahead.
“A Mrs. Zuck stated that she called to. Linda to go get her daddy to help unload the car. She said that Linda went into her daddy’s bedroom and came screaming back down the hall shouting mother something’s happened to daddy. Mrs. Zuck stated that she then ran down the hall to Mr. Zuck’s bedroom door and saw him sitting in a chair there covered with blood. She stated that she told Linda to go wake up Lou, her son.
“Q Did she tell you whether or not she went into that room?
“A She said she took one step into the room.”

She stated that her daughter, Linda, went in and woke up her young son, Lou, and that he ran from the house to the home of a doctor friend, crying. He further testified that Mrs. Zuck stated she had been to Selma the previous day with her daughter, Linda, and that she had been in telephone contact with her husband several times that day (December 4, 1973). She stated that she had advised her husband by phone that they were leaving Selma after taking care of some business with the family theatre, and that she had also talked with him by phone from Ma-plesville and Montevallo en route home. She stated that she reached Birmingham and went to her son’s, Rick’s, apartment about 8:30 that evening. Mrs. Zuck further stated that she and her son, Rick, then went to the Rodeway Inn to get something to eat, and that her son dated a girl by the name of Alice Salter, who was employed in the Lounge at Rodeway Inn. She stated that upon arrival at Rodeway Inn, her son asked Alice to accompany them when she got off work. She stated she telephoned her home from there and that Mr. Zuck told her to go ahead and spend the night at her son’s apartment and to bring the business papers over the next morning. She further stated that after arrival at her son’s apartment, Alice Salter came by, shortly after 12:00 p. m., and that her daughter, Linda, was asleep on the couch when she came into the apartment. He stated that Mrs. Zuck told him that she telephoned her husband from the apartment and told him that she would be over the first thing the next morning, that she, her daughter, Linda, and Alice Salter sat up and talked. She stated that Linda went to bed after a while. From the record (R. p. 75):

“Q On the morning of December five when you talked to Mrs. Zuck or that night of December Five when you talked to her, did she make any mention to you about the business, the family business?
“A She said the business was in some difficulty and they had quite a few bills that were past due and that she had brought back some money from Selma on this trip she had been on and that Mr. Zuck in one of her phone calls had instructed her to go to Rick’s apartment to determine, she was bringing some money back, but it wasn’t enough to cover all the bills and to go to Rick’s apartment and decide who to pay and who not to pay out of this money.
“Q Did she tell you anything about Mr. Zuck’s condition and about his whereabouts three or four days before his death ?
“A Yes sir. She said that Mr. Zuck was in bad health and that he had withdrawn and that creditors were hounding him and he wouldn’t answer the phone and so forth and that he hadn’t been out of the house and wouldn’t leave the house in over a week prior to his death.
“Q When you saw Mrs. Zuck that morning of December five was she crying ?
“A No sir.
“Q Was Linda crying?
“A Yes sir.”

Morton Hall testified that he delivered newspapers for the Birmingham Post-Herald on Beaumont Drive and Beaumont Circle in Vestavia. He testified that about 2:25 a. m., he was delivering newspapers on Beaumont Circle and saw Richard Zuck standing in front of the Zuck residence. He testified that he delivered the rest of his papers and then completed his route by going by Vestavia City Hall, and arrived there about 2:50 a. m., where he saw Mrs. McDonald, the police dispatcher.

Jennifer Worthington testified that she was formerly employed as a secretary by Mr. and Mrs. Gordon Zuck. She testified that Mrs.' Zuck had interviewed her, and that she worked at the offices of Jerry Lewis Cinema Theatre in Vestavia. She testified that in addition to handling secretarial duties for both Mr. and Mrs. Zuck, she occasionally did typing for their daughter, Susan Morton, and their son, Richard Zuck.

She testified that she had previously plead guilty to the murder of the deceased, Gordon Zuck, and was presently incarcerated at Tutwiler Prison for Women in Alabama. She testified that about two or three days before the Alabama-Auburn Football Game that fall (December 1, 1973), she had a conversation at the thea-tre office with Richard Zuck, Susan Morton, Joan Farris and Jackie Farris. From the record (R. p. 101) :

“A At that time Rick and Jackie were talking about Mr. Zuck and how they thought that he could be killed. At this time they were talking about chloroform while he was asleep.
“Q Did you enter into that conversation?
“A No. But I was sitting there -while they were talking about it.
“Q Was that also in the presence of Susan Morton and Joan Farris ?
“A Yes it was.
“Q Did they say anything along that line?
“A No sir.
“Q How long did this conversation last, the part about the chloroform ?
“A About fifteen minutes.
“Q Do you recall the night of December four and December five of 1973?
“A Yes sir.
“Q And at that time were you employed in the Zuck business ?
“A Yes sir.”

Jennifer Worthington further testified that about a week prior to Mr. Gordon Zuck’s death, she had a conversation with Richard Zuck about the family’s business, and that Richard told her the business was in great financial trouble, that his mother, Ruth Zuck had some checks outstanding, and that they could not get the money from his father to cover these. From the record (R. pp. 103-104) :

“A He told me that affairs hadn’t been going very well and the business deals were messed up by Mr. Zuck because he wouldn’t go along with them. So the business, he thought, was going to go into bankruptcy because they needed the money and they needed it, you know, now, not later. And that his mother had written some checks that couldn’t be covered and that Mr. Zuck would not give her the money, and he was afraid that they were going to bounce and she would have some trouble.
“Q Did he say what would have to be done to straighten this matter out ?
“A He told me at that time that he thought Mr. Zuck was going to have to be killed.
“Q Now, on Saturday night before December four and December five, did you see Richard Zuck ?
“A Yes I did.
“Q Where?
“A At his apartment.
“Q Who else was present, if anybody?
“A No one.
“Q Did you have some conversation with him at that time ?
“A Not pertaining to Mr. Zuck, but I was with him for approximately an hour.
“Q Did you get any money from him that night ?
“A Yes I did.
“Q How much ?
“A Two hundred dollars.
“Q What did you use that money for?
“A For an abortion.
“Q And when did you have an abortion?
“A On the third.
“Q What day of the week was that? “A Monday.
“Q On that Monday after you went to the doctor, at any time during that day or night did you have a conversation with Richard Zuck ?
“A Yes I did.
“Q What did he say to you and what did you say to him ?
“MR. WILKINSON: We object again, same grounds.
“THE COURT: Overruled.
“MR. WILKINSON: Except.
“A After I came home I called him at approximately six-thirty.
“Q Where did you call him ?
“A At his apartment.
“Q What did he say to you and what did you say to him ?
“A I just told him that I was back home and that I was all right and he said then the same thing that he had told me in essence a week before that he was upset about his family and they were having great financial trouble and that he had decided that then his father had to be done away with.
“Q Did he say anything about the checks on that occasion ?
“A Yes he did. He mentioned his mother’s checks again and said that he thought they had gone through the bank and they wouldn’t clear.
“Q Did he talk to you on that occasion about killing Mr. Zuck ?
“A Yes he did.
“Q What did he say ?
“A He asked me at that time if I knew anyone and I told him I didn’t but I was sure that if he wanted someone, someone could be found.
“Q What did he say to that ?
“A Well, he said it would be worth twenty-five thousand dollars.”

Mrs. Worthington further testified that this conversation took place on Monday night, and that she would be paid from insurance monies received by his mother from the estate. She further stated that the next afternoon she saw Richard Zuck again in the office about 2:00 p. m. On this occasion Richard Zuck stated that he was offering $25,000, and that something had to be done immediately. She testified that she later talked with him by telephone about 7:00 that evening. She stated that in the meantime, she had talked with Jackie Farris about 4:00 that same afternoon, and that in her conversation with Jackie Farris, he stated (R. pp. 106-108):

“A Jackie told me that he had spoken with Rick about this for himself and wanted to know if he had said anything to me about it, and I told him yes he had. Jackie said that he had told him that it was worth twenty-five thousand dollars and Jackie said that that kind of money would be nice for both of us and I said yes and we dropped it at that. It went no further.
“Q Did you talk to Richard Zuck by phone or in person at seven o’clock ?
“A That'was by phone.
“Q Did you call him or did he call you?
“A I called him.
“Q Where were you when you called him?
“A I was at my apartment and I called his apartment.
“Q What was that conversation? What did he say to you and you say to him?
“MR. WILKINSON: We object. Same objection.
“THE COURT: Overruled.
“MR. WILKINSON: We except.
“MR. WAITES: Go ahead.
“A When I called I was just talking to him about anything and everything, and he started on the finances again.
“Q What did he say about them ?
“A He said something had to be done that night. That if it wasn’t the whole business was going into bankruptcy and there wouldn’t be any money at all.
“Q Did he propose what had to be done?
“A He said his father had to be killed. And he asked me if I knew anybody or if I would be willing to do it for him, and I told him that I would help him but I didn’t know anybody else other than Jackie Farris. And I told him that I would have to call Jackie and I didn’t know whether he would or not.
“Q Did you call Jackie?
“A Yes I did.
“Q What did you say to Jackie and what did he say to you ?
“MR. WILKINSON: Same objection.
“THE COURT: Overruled.
“MR. WILKINSON: Except.
“MR. WAITES: Go ahead.
“A I called Jackie at the theatre about eight or eight-thirty and told him that I had talked to Rick and that Rick wanted me to talk to him about his father and Jackie said that he would come to my apartment when he got off work, for me to call him and give him directions. So at approximately between nine-thirty and ten I called Susan Morton’s house, she answered the phone, and said that Jackie wasn’t there, but while I was talking to her he came in and I talked to him and gave him directions how to get to my house.”

She testified that she went and picked up Jackie Farris after talking with him at Susan Morton’s house, and that she and Jackie then went back to her apartment about 10:30 that evening. She testified that about 11:00, she telephoned the Rode-way Inn and talked with Richard Zuck, that he told her he would meet them at the Pancake House in Vestavia, and he would tell us what to do. She testified that Richard Zuck came alone to the Pancake House, that they sat in a booth and discussed the matter. From the record (R. p. 110):

“A Rick came in and sat down with us and told us that he wanted us to go to the house, later, he had to go back over several times to. see his father. That he was going to work out all the details and that we would go there that night and kill him, kill his father.”

She further testified that Richard Zuck told them to next meet him at the Dobbs House in Homewood, and they so agreed. She further testified that while at the Pancake House, she had given some pills to Richard which she had obtained from her doctor, they were to be used as pain pills. She stated that Richard told her he would put these in some hot chocolate and give them to Mr. Zuck (R. p. 111).

She stated that later Richard Zuck met her and Jackie Farris a' second time at the Pancake House, and that on this occasion he gave them a key to the Zuck home, and told them that his father was there alone, and when they got through to telephone him at his (Richard’s) apartment. She said that he further told her that she and Jackie would both be richer by $12,500 each (R. p. 112).

Mrs. Worthington further testified that early that morning she and Jackie Farris drove to the Zuck home on Beaumont Circle in Vestavia and opened the door with Jackie entering first. She stated that he carried a tire tool, which he brought from his automobile, that they entered from the basement stairs to the hallway upstairs, and then walked down the hall to Mr. Zuck’s bedroom. She stated that the bedroom was down the hall on the right. From the record (R. pp. 114-116):

“Q Who went in the bedroom first?
“A Jackie.
“Q What happened when you got inside the bedroom ?
“A We went inside the bedroom and Mr. Zuck was in the chair and he started to get up and he said something to Jackie and. Jackie hit him and he fell back in the chair and I turned around and closed the louvered doors.
“Q Tell me where there are some louvered doors please ?
“A As you first go into the bedroom there’s a big door.
“Q From the hall entrance ?
“A Yes.
“Q Dressing room ?
“A Ah ha. Then there’s louvered doors past the big door.
“Q From the dressing room into the bedroom ?
“A Right.
“Q Can you see this (indicating diagram) :
“A Ah ha.
“Q Would the louvered doors be here (indicating) ?
“A Right there.
“Q This is a solid door (indicating) ?
“A Right.
“Q Which door did you close ?
“A The louvered doors.
“Q After Jackie hit Mr. Zuck what happened ?
“A I closed the doors and I went around on the other side, around the chair. I hit him two or three times and Jackie hit him again. After that we left.
“Q Did you or Jackie take anything with you from that room ?
“A Yes.
“Q What?
“A The tire tool, billfold and rings.
“Q Whose billfold?
“A Mr. Zuck’s.
“Q Who got the billfold ?
“A Jackie.
“Q Who got the rings off his fingers?
“A Jackie.
“Q Did you see anybody else in the house that night?
“A No.
“Q How long did you and Jackie remain in that room ?
“A About ten minutes.
“Q When you left the bedroom did you leave the house ?
“A Yes we did. The same way we came in.
“Q Did you leave in Jackie’s car ?
“A Yes we did.
“Q Where did you go?
“A To my apartment.
“Q What did you do when you got to your apartment?
“A Called Rick.”

She stated that after she and Jackie returned to her apartment they telephoned Rick at his apartment, and then each proceeded to take a bath. She stated that she took some clothes to the laundrymat and washed them. She testified that she next saw Richard Zuck at the home of Susan Morton on Thursday night, December 6, 1973, and that she saw Mrs. Zuck on Friday night, December 7, 1973, at Richard Zuck’s apartment, which was after the funeral, that there were a number of people there. She stated that later she telephoned Mrs. Zuck, that Mrs. Zuck said she had been by City Hall, and that some questioning had taken place, but that she did not have to go back the next day to take a lie detector test if she did not wish to. She stated that Mrs. Zuck told her she would give her two weeks’ pay and to take her, Mrs. Zuck’s, family station wagon and go to Selma to work at the family theatre there. She stated that Jackie Farris brought the Zuck family station wagon and picked her up, that they went to see Mrs. Zuck, that they left the next morning and went to Selma where she registered under the name of Ann Green at a motel. She stated that she remained in Selma, but that she did not go to work again until March, 1974, when Mrs. Zuck employed her as a secretary to keep the books and records for the family business in Selma. She stated that on two or three occasions that spring, Mrs. Zuck spoke about her husband’s death with the idea that she was concerned about Rick, but she stated that she did not think he would be convicted, referring to his coming trial. She stated that shortly before Rick’s trial, she told Mrs. Zuck that she needed an automobile, and that Mrs. Zuck purchased a 1967 Cadillac, that she, Jennifer Worthington, went to the bank and obtained a loan, and that Mrs. Zuck cosigned the note at the bank. She stated that she received the automobile on Friday before Richard Zuck’s trial, which commenced the following week. She stated that on June 14, 1974, during the trial of Richard Zuck, she received $350.00 from Susan Morton. This check was identified and placed in evidence. She stated that this was for some repairs which were done on her automobile. She stated that she later saw Mrs. Zuck again at the Ramada Inn Lounge on June 18, 1974, and then went to Selma, where she was arrested.

Mrs. Worthington testified that she struck Mr. Zuck three times on the early morning of December 5, 1973, with a tire tool after Jackie Farris had first struck him, and that she received a sentence of twenty years after pleading guilty for this offense.

W. J. Underwood testified that he was a Deputy Sheriff with Jefferson County. He testified that he also worked in his off-duty time as a security man at the Rodeway Inn on Oxmoor Road in Homewood. He testified that he was on duty on the night of December 4, 1973, and saw Richard Zuck in the lobby and talked with him. He testified that later Richard introduced him to Mrs. Zuck, and that she had just gotten off the telephone. From the record (R. p. 135):

“Q Where was she?
“A On the phone in the lobby.
“Q When she came up to you what was said?
“A The first statement she said was ‘Damn, its hard to get rid of the old man.’ Something along those lines.”

He stated that it appeared both Richard and his mother had been drinking.

Alice Salter testified that she was an employee of the Rodeway Inn at Oxmoor Road in Homewood in November and December, 1973. She further testified that she had an apartment, which was located directly below the apartment of Richard Zuck, and that each of them lived alone at this time, that Richard often times stopped by the Rodeway Inn Lounge to have a few drinks, and occasionally he would eat with her when he was off work. She testified that on Tuesday, December 4, 1973, Richard Zuck came by her apartment and made several phone calls about building a new theatre. He had stated that he needed some franchise money. She stated that after going to work, she saw him about 8:30 that evening at the Rodeway Inn Lounge, and that he brought his mother, Ruth Zuck with him. She stated that she served each of them drinks, that Richard drank Canadian Club and Seven-Up; and Mrs. Zuck drank Old Forrester and Ginger Ale. She stated that Richard Zuck left the Rodeway Inn, saying that he was going by his apartment, that Mrs. Zuck stayed there and had another drink and a sandwich while he was gone. She stated that he then returned and came up to the bar where she was working and told her he was expecting a phone call and to please get him when it came in. She stated that after a few minutes he answered the phone, and after this conversation, he turned around to her and stated: “Alice I got the money I needed but you’re going to hate me when you find out how I got it.” (R. p. 144) She said “What do you mean?” He stated, “Bring me another drink and a cup of coffee.” She stated that during the evening Richard Zuck had either three or four drinks, and Mrs. Zuck had three. She said that later that evening, she had a conversation with Richard Zuck on the telephone and, that he told her, “Alice daddy is dead, meet me at the apartment when you get off and I'll explain it later.” She said that she' did not see Richard again until about 6:00 the next morning, December 5, 1973. She testified that after getting off work, she went by Richard’s apartment, and that Mrs. Zuck and Linda, his sister, were there. She stated that Linda was asleep on the couch. She testified that Mrs. Zuck told her to get up, that she wanted to introduce her to someone. She testified that she remained at Richard Zuck’s apartment until about 3:00 in the morning, and that she last saw him around 6:00 in his apartment. She stated that later Mrs. Zuck came back to Richard’s apartment and that she had been fixing some coffee, that Mrs. Zuck and her daughter, Linda, and two other daughters had gone over to Richard’s apartment at that time. She stated that later that day, Lt. Stewart had talked with her and asked her what time she got home, and she had told him about ten minutes after two. She stated that he asked her what time Richard Zuck got home, and she said she was not sure, and that Mrs. Zuck was trying to say to her in a whisper voice, 2:15, 2:15 (R. p. 154). She testified that she left her job at Rodeway Inn the next week and took a job working for Mrs. Zuck, Susan, and Rick at the theatre; and that during this time Mrs. Zuck stayed at Rick’s apartment until she got an apartment of her own at The Club Apartments in Birmingham. She stated that she continued to date Richard Zuck until about a week before his trial on June 10, 1974.

Frank Meadows testified that he had been employed by the Zuck family in Birmingham. He testified that three or four months prior to November, 1973, he thought during July, he had a conversation with Mrs. Zuck and her daughter Susan Morton, at the theatre in which “They offered me $500.00 if I could find somebody to knock Mr. Zuck off.” (R. p. 164) He stated that the following Sunday morning, he met Mrs. Zuck at the Country Club, and that she told him to “forget it.” She stated, “We’ll handle it ourselves.” (R. p. 165) He testified that he worked for the Zucks for about six months at their Birmingham theatre.

Shawn O. Spencer testified that he lived in Selma, Alabama, during the summer of 1973, and that while working for Mrs. Zuck, he approached her as follows (R. pp. 191-192):

“A The conversation I had with Mrs. Zuck was, I asked her what she would do if one of her friends approached her and asked her to hurt another friend or to go as far as to kill a friend of hers.
“Q What did she say to that ?
“A The first thing I believe she said was, ‘It sounds like Frank Meadows.’
“Q What did you say to that?
“A I said no it’s not Frank.
“Q What else was said ?
“A Then she went in to tell me that Frank and Mr. Zuck hated each other, and that it sounded like something he would do. I went ahead and said well it was Frank and she said well I wouldn’t take it too seriously because one of Mr. Zuck’s cousins or brother-in-law or something was a high ranking official with a law enforcement agency, I believe it was the FBI, I’m not sure, and no one would be so stupid as to do this so, you know, I dismissed this.
“Q Did you tell her what Frank Meadows said to you in that conversation?
“A None other than Frank asked me about killing'someone and, this has been some months ago, but I believe I did go as far as to say it was Frank and Mr. Zuck Frank was talking about.”

Ida Richardson testified that she lived in the Penthouse Apartments in Birmingham on December 4, 1973. She testified that she met Richard Zuck around the first of November, 1973. She testified that -she met Richard’s mother, Mrs. Zuck, on Thanksgiving day at the Vestavia Country Club. She testified that on the night of December 4, 1973, she had a telephone conversation with Rick and his mother at his apartment shortly after 8:00 p. m., and that in this telephone conversation, Mrs. Zuck stated that Mr. Zuck “had been giving her some problems,” and that “she would be better off if she were rid of him.” She further said that Mrs. Zuck stated, “We will get together next week and celebrate.” She asked her what they would celebrate, to which Mrs. Zuck replied that she didn’t know, but she would find something to celebrate about (R. p. 194).

Kenneth Mudd testified that he was employed by Tillman Realty Company in Homewood, and that in November, 1973, Richard Zuck came by and told him that he was looking for an apartment, that later in a conversation with Richard Zuck and Mrs. Zuck concerning renting an apartment, Richard Zuck told him he would need one for his mother. Mr. Mudd stated that he next saw Mrs. Zuck on Friday evening following her husband’s funeral, and that she went to look for an apartment and that he showed one to her (R. p. 200).

Thomas Lineburger testified that he was a Certified Public Accountant with offices in Birmingham. He testified that for several years he had prepared the tax returns for several corporations in which the deceased, Mr. Gordon Zuck, was an owner. He testified that he prepared the Florida tax return for Dar-Jan, Inc., a Florida corporation, and for Automated Theatres, or Jerry Lewis Cinema, the name of the operating company with offices in Vesta-via and Homewood. He testified that this corporation had an operating loss from October 10, 1971, through December 31, 1973, of $74,897.82. He said that an interim statement for the period September 1, 1973, through December 31, 1973, showed a loss for that period of $19,695.11. He stated that Mr. Zuck owned 90% of the stock of Dar-Jan, Inc., and 50% of the stock of Automated Theatres. He testified, on cross-examination, that there had been occasions while visiting his offices when Mr. Zuck hemorrhaged extensively, and it took some time to stop the bleeding.

Frank Meadows was recalled to the witness stand and testified that he had worked for Mrs. Zuck for about four or five months in Selma before coming to Birmingham, and that he had been out with her and members of the family to discuss business matters. He testified as to one occasion on Saturday evening when Mrs. Zuck stated that she was trying to get papers signed declaring Mr. Zuck to be mentally incompetent, and that her daughter, Susan Morton, said, “I wished he was dead and we was rid of him.”

Captain Bill R. Myers testified that he was a Police Captain in charge of homicide with the Birmingham Police Department. He testified he had participated in the investigation of the death of one Gordon Zuck. He testified that he arrested that appellant, Ruth Zuck, and that Police Chief Catón and Lieutenant Spivey were with him. He testified that prior to any conversation with Mrs. Zuck a full Miranda warning was given to her, and that there were no threats, promises, or other inducement, or any type coercion, made in order to obtain a statement from her.

Cecelia Ammons testified that she was employed at the Jerry Lewis Cinema in Selma, Alabama, as an employee of Mr. and Mrs. Zuck. She stated that Mr. Zuck telephoned the theatre from Birmingham at least three times on the evening of December 4, 1973. She stated that subsequently she had testified during the trial of Richard Zuck, and thereafter she had had a conversation with the appellant, Ruth Zuck, pertaining to the telephone calls. She stated that Mrs. Zuck had informed her that she had the phone bill, and that she was mistaken about Gordon Zuck calling the Theatre on the night of December 4. She stated that Mrs. Zuck told her that she had some antiques that she wished to share with her. She also told her that she was going to give her a roll-top desk.

Jack Porterfield testified that, as an attorney in Birmingham, he represented Equitable Life Insurance Society. He testified that the deceased, Gordon Zuck, had taken out several policies with this company, that death claims had been filed with the company, and that the proceeds of these had been paid into the United States District Court in Birmingham for distribution pending the outcome of some litigation, less some funds paid directly to City National Bank. He stated that about $26,000 had been paid into Federal Court, which was after paying $7,900 to the bank. Mr. Porterfield then gave the names of all of the Zuck children and adopted children (R. p.224).

Jennifer Worthington was then recalled, and said that she had seen Mr. Gordon Zuck hemorrhage from the nose and mouth when he was at work at the office.

Steve Joseph Kinner testified that he lived in Selma, Alabama, and that on one occasion in June, 1974, he had been present at the home of Jennifer Worthington when Mrs. Zuck came by to pick up Jennifer’s children. He said Mrs. Zuck made the statement in his presence that she knew that Jennifer Worthington had killed Mr. Zuck (R. p.229).

Ray Mahon testified that he was employed by Provident Life and Accident Insurance Company in Chattanooga, Tennessee, and was responsible for the claims filed with this company. He testified that the deceased, Gordon Zuck, had four policies with this company; that one for $40,000 was paid up; the total being for $33,704.20, with the beneficiary being the appellant, Ruth Zuck, that its proceeds had been paid to the assignee, City National Bank of Birmingham; that a second policy for $25,000 had been paid up in the amount of $24,877.77, that Mrs. Zuck was also the beneficiary, and that the proceeds had been paid to the assignee, City National Bank of Birmingham.

Mr. Mahon further testified that another policy in the face amount of $100,000 had been paid in the amount of $75,817.33, with the beneficiary being Dar-Jan, Inc., and that the cancelled check had 'been endorsed Dar-Jan, Inc., by Ruth Janet Zuck, Secretary. He stated that the fourth policy was for $5,000, and had been paid to Mr. Zuck’s daughter, Wilma Aulsbrook, his oldest child.

Louis Gordon Zuck testified that he was fifteen years of age and was the adopted son of Ruth Zuck, and the deceased, Gordon Zuck. He testified that Mr. Zuck was his natural grandfather, and that his natural mother was Mr. Zuck’s oldest daughter, Wilma Aulsbrook. He testified that he had a natural sister, Linda, and that the four older children, David, Sandra, Rick, and Susan Zuck Morton, were the natural children of the appellant, Ruth Zuck, and Gordon Zuck. He testified that in December, 1973, he had been employed at the Jerry Lewis Cinema, and that when he got off work at 9:00, December 4, Jackie Far-ris had driven him to the home of his father, Gordon Zuck, between 9:15 and 9:30 p. m. He stated that his father was the only one at home when he came in, that he went to bed between 11:00 and 11:30. He testified that he had been asleep for some time and was awakened by screams, that he got up, ran down the hall, looked at the clock, that he thought it was either three or four o’clock in the morning, ran on down the hall toward his father’s bedroom and saw his father seated in a reclining chair, that Jennifer Worthington was standing on the other side hitting him with an iron rod. Jackie Farris was also standing over him, near the dressing room. He said that Jackie Farris spoke to him and said, “Lou go back to the bedroom and stay there.” (R. p. 239) He testified that he went back to his bedroom, locked the door and got in bed and cried. He testified that the next morning he saw his mother and sister, that someone asked him to go down the street and get a doctor, and he ran down the street and got Dr. Randle, a neighbor, to come to the house.

On cross-examination, he testified that he did not tell anyone about what he had seen until the time of his brother’s Rick’s, trial the following June. He testified that he told his mother, the appellant, Ruth Zuck, about this on the day Rick was convicted, and that Mrs. Zuck had told him, “Wait a minute, let’s call the lawyers.” He testified that they were staying at the Kahler Plaza Hotel in Birmingham at this time, and Attorneys Roderick Beddow and Fred Erben, who had been defending Richard Zuck, came over. He stated that he told them the same story on June 14, 1974, that this was after the verdict in Rick’s case had come in.

At this point, the State rested, and the appellant moved to exclude the State’s evidence, which was overruled (R. p. 249).

At this point, a stipulation was placed in evidence, which indicated the total assets of the Zuck estate was $67,000 cash in the bank, plus some Georgia Real estate, and that there were claims for approximately $350,000 from creditors.

The appellant, Ruth Janet Zuck, testified that she was fifty-four years old, and was at the time of her trial residing at Crest-wood Drive in Selma, Alabama. She testified that she and the deceased, Gordon Zuck, had four natural children, David Zuck, Richard Zuck, Sandra Weigand, and Susan Morton, who was divorced. She testified that she and the deceased had adopted two grandchildren, Louis Gordon Zuck, age fifteen, and Linda Ruth Zuck, age seventeen. She testified that the two younger children had been living with her, but that Linda was presently in her freshman year at college. She testified that her husband, for a number of years, had a steel pail manufacturing firm, and that she had been in the employ of this company for a number of years after her children were born and had begun to grow up. She stated that she had been actively employed in the family business. She testified that until about 1970, Mr. Zuck had been a very active business man, but that he began to have health problems, so they sold their last steel container plant, and had moved to Fort Walton, Florida. She testified that in 1971, she and her husband bought the franchise of Jerry Lewis Cinema and opened one in Selma, and another in Ves-tavia here in Birmingham. She testified that the Dar-Jan, Inc., was a corporation which her husband owned 90% of the stock and that she owned 10%. She said that of the proceeds of the life insurance, $100,000, which was payable to the company, $67,000 had been used to pay off a loan and debts, and the remaining $31,000 she had kept. She testified that during 1971, her husband’s physical abilities had begun to diminish, and that he was troubled by hemorrhaging, and that on occasions his memory was faulty. She said that during this period he began to curtail his business trips, and that, together with her daughter, Susan, she traveled over the seven southern states, selling the Jerry Lewis Cinema franchises. She testified that in January, 1973, her husband, Gordon Zuck, had given her a general power of attorney,, under which she had complete authority to handle his business affairs. A copy of the power of attorney was placed in evidence (R. pp. 257, 258). She testified that her usual routine had been to go to Selma each week, and then over to Livingston, during the fall of 1973, as they were building a theatre there. She testified that she had several conversations on December 4, 1973, with her husband by telephone, and that at one point he had suggested that she and her daughter, Linda, stay there rather than go to Birmingham because of bad weather.

Mrs. Zuck stated that on her return, she stopped both in Maplesville and Monte-vallo to use the telephone to call her husband, and that he had told her to go to her son’s, Rick’s, apartment and call him from there. She testified that she arrived in Birmingham about 8:00 that evening and telephoned her husband, and after explaining that they had not had dinner, and that her son had offered to take her to get a bite to eat, that she was going to go with him and let her daughter, Linda, remain at Rick’s apartment while they were gone.

She testified that her husband asked her to get the business papers together and bring them over the next morning. She said she told him she would, and that she would call him from the restaurant where she was going to have dinner. She stated that she and her son, Rick, went to the restaurant and lounge at Rodeway Inn on Ox-moor Road and that her son’s girl friend worked there, her name being Alice Salter. She testified that she had two drinks, ate a turkey and lettuce sandwich, and then drank a cup of coffee. She said that she chatted with Alice Salter and told her that Linda had remained at Rick’s apartment, that they had to go back to Rick’s apartment and go over some business papers. She testified that they left the motel about 11:30, and that she telephoned her husband before leaving Rodeway Inn. She testified that she spoke to a security guard, who was introduced to her by her son, and that there was some mention made about horses, that her family enjoyed riding. She testified that she arrived at her son’s apartment shortly before 12:00 p. m., and telephoned her husband again. She said that she told him that Linda was resting and watching television, and that her husband suggested that they spend the night at Rick’s apartment, then come over the next morning. She testified that she had a telephone call at the apartment from Deputy Sheriff Jarred in Selma, and that her daughter Linda, and her son, Richard, also spoke to him, that they were discussing the sale of the Livingston, Alabama, theatre. She testified that she dozed off to sleep, and a little after 2:00 a. m., Alice Salter came in and shook her, then asked if there was anything she could do for her. She testified that she telephoned her husband again, telling him that she would be over the first thing the next morning. She stated that she and her daughter, Linda, went to sleep, and about 6:00 the next morning they were awakened by an alarm clock. She testified that they then drove to their home and entered, that they found Mr. Zuck sitting in a chair in the bedroom. She asked her children to call a doctor and to notify the rest of the children. She said that she left her home about 9:00 a. m. and returned to Rick’s apartment to look over some business papers.

She denied that she ever plotted or planned with anyone to injure or kill her husband, and that she never planned with Jackie Farris, or Jennifer Worthington, or anyone else, to kill her husband, Gordon Zuck. She stated that she had awakened her young son, Lou, that morning, and asked him to go over to Dr. Randle’s house, that “daddy was bleeding again.” She stated that Dr. Randle told her, after he had examined her husband, that he had hemorrhaged to death. She said that later that morning, the coroner came in and told her that he felt that her husband had met with foul play. She testified that she had been planning to move into an apartment with her young child prior to her husband’s passing, and that she did take a three-bedroom apartment in the Club Apartments, and stayed there during part of 1974. She testified that the law firm of Beddow, Embry and Beddow had represented her son, Richard Zuck, at his trial in 1974, and he had received a forty-year sentence on June 14. She testified that on going back to the Kahler Plaza, where they were staying, her young son, Lou, told her that he had seen Jennifer Worthington and Jackie Farris, that she immediately notified her attorneys, Mr. Roderick Beddow, Jr. and Mr. Fred Erben, to come over, and that they did so.

Mrs. Zuck testified that she had never had a conversation with Frank Meadows in 1973, when she allegedly offered him $500 to get someone to “knock off her husband.” (R. p. 284) She said that she had cashed a check from time to time for $200 to $300 and would give the proceeds to Miss Worthington, as Secretary, to pay certain bills for the business. She testified that, with reference to her conversation with Lt. Stewart, she thought he was asking what time her son’s girl friend had come over, and she whispered 2:15, that that is what she remembered because she had awakened her.

On cross-examination, Mrs. Zuck testified that they were “selling theatre franchises in the southeast,” and that her business was not in financial difficulty, but that they had made a small business loan in 1973. When confronted with the CPA’s statement, Mrs. Zuck simply answered, “I don’t know,” referring to the loss statement in 1973. She testified that she did remember one check, which was over $500, being returned by the bank, but that she could not remember the amount. She denied having a telephone conversation with Ida Richardson, though she said that she had seen her at the Vestavia Country Club. She also denied ever having gone out with Captain Jarred of the Selma Sheriff’s Department, or that she had ever given him a gun or a boat. She testified that Rick had gotten out of the Army in the fall of 1973, and had come home to help sell franchises. She testified that she had talked with Captain Jarred in Selma, but she did not remember talking a total of 104 minutes, and that her son and daughter had also spoken with him. She also denied offering Mrs. Ammons some furniture. She also denied telling Lt. Stewart, on the morning of December 5, 1973, that her son, Richard, had come home about 2:15 that morning. She said that she had been told by one of the police officers that the newspaper man had seen her son, Richard, near her home, but that she did not remember telling the coroner, or the police lieutenant, or anyone else, that he came in about 2:15 a. m. Mrs. Zuck also testified that she had had nurse training in college and had worked around a clinic for some doctors prior to her marriage. She said that she had taken her husband to several physicians, and that there was nothing that could be done for his hemorrhaging condition. Mrs. Zuck also admitted that she had never spent the night at her son’s apartment prior to December 4, 1973. She also admitted co-signing a note on Friday before her son’s trial with Jennifer Worthington so that she could get some cash to have her car repaired, but she denied authorizing these repairs to be done personally. On cross-examination, Mrs. Zuck contended that the several $275 to $400 checks made payable to cash, which were cashed for her by Susan Jennifer Worthington, were for business expenses and not for the purpose of having Jennifer’s car repaired. She also admitted that Jackie Farris had dated her daughter, Susan Morton, and that he had worked for them, and also had helped them at the stables.

Mrs. Zuck also denied calling Mrs. Am-mons in Selma in January of 1974, and asking her to get a motel room in order to keep Lou Zuck away from the police.

Captain A. C. Jarred testified he was a captain in the Sheriff’s Department in Dallas County. He testified that he knew Mrs. Zuck and had worked as a security guard in the evenings at the Selma theatre. He testified that on one occasion she told him she was going to California, that he told her he had a daughter there, and that he would give her the address and phone number. He testified that on the night of December, 4, 1973, he did receive a phone call shortly after midnight, and that he talked with Richard, Linda, and Mrs. Zuck from Birmingham. He said she asked him how the business had been that evening, and asked him to be on the lookout for some 30 to 40 acres of land near town. She also told him that she was not going to California and asked him to be on the lookout for two good walking horses. He denied that Mrs. Zuck had ever given him a boat, but stated that on one occasion she had allowed his son to keep a boat for about two months.

On cross-examination, Deputy Sheriff Jarred admitted that Mrs. Zuck had given him a suitcase and several guns. He testified that he thought their conversation of December 4, 1973, and on the early morning of December 5, lasted for about forty-five minutes.

Lieutenant Joe Stewart was then recalled as a rebuttal witness and testified that on the morning of December S, 1973, he had talked with Mrs. Zuck about 10:30 in the morning. He stated that she told him Rick had come to his apartment about 2:15 that morning, and that his girl friend, Alice Salter,, was also there and could verify this.

Mrs. Betty Sanders, a neighbor on Beaumont Drive testified that she had known Mrs. Zuck for about three years prior to December, 1973, and that on one occasion Jennifer Worthington had come by her home and was introduced as Mr. Zuck’s secretary. She said that this was during the week of December 10, 1973, and that Mrs. Zuck had given her some money in her presence. Mrs. Sanders stated that Mrs. Zuck’s reputation for truth and veracity was bad.

Alice Salter was recalled and testified that when she left Richard Zuck’s apartment to go to her apartment, it was around, 3:00 a. m., and that she did not see him again until about 6:00 the next morning. She also testified that on one occasion, Wednesday, December 12, 1973, after Mr. Zuck’s death, she was at Mrs. Sanders’ home and saw Mrs. Zuck’s Cadillac there. She also testified, on cross-examination, that her apartment was located directly below that of Richard Zuck at the Club Apartments, in December, 1973.

Mr. Cliff Holman was called as a rebuttal witness, and testified that he had been employed at the Jerry Lewis Threatre at Vestavia, and had seen Mr. Zuck on several occasions during the fall of 1973. He said that Mr. Zuck appeared to be very sharp in his conversation with him, and also, he thought, was “a very sharp business man” (R. p. 369).

Mrs. Sid Hall testified that she had known Mr. and Mrs. Zuck, and had been employed by them from August until the middle of November, 1973, that in October, 1973, she was at the theatre office with Susan Zuck Morton and Mrs. Zuck when Susan slammed the telephone down in her mother’s presence and stated after talking to her father, “Somebody ought to kill that man.”

Steve Ammons was called as rebuttal witness and testified that Mrs. Zuck’s reputation for truth in Selma was bad, and that on January 24, 1974, she had telephoned him and asked him to rent a room for Lou Zuck so he would “stay safe because the police were harrassing him” (R. p. 385).

The State also called two or three other persons who had seen Mr. Zuck active in the fall of 1973, at the office, and who testified that Mrs. Zuck’s reputation for truth was bad.

I

Appellant’s able counsel contends that during the voir dire examination of the venire, reversible error occurred with reference to the following (R. pp. 21-22):

“MR. WILKINSON: Before the next juror is brought in Judge, I would like to make the following motion. Two of the prospective jurors so far have indicated knowledge that Mrs. Zuck has a drug case pending in Selma, Alabama, which relates to a very recent arrest on that charge. If the State were to attempt to show some sort of a charge like that in front of a jury, if they were to try to show it, I think it would be error and I think it would be prejudicial to the point of a mistrial, no matter what they did say about it or didn’t say about it, just the attempt to show a charge would be prejudicial enough, in my judgment, to make the Court consider a mistrial. That being what I think is true, I do not believe that it is fair for us to be required to select a jury from a venire comprised of people who have prior knowledge obtained outside this courtroom about a separate independent charge of the type and kind of a drug charge. I think those people should be stricken as a matter of cause.
“THE COURT: Denied.
“MR. WILKINSON: We except.
“THE COURT: Do you want to make that as to anybody who has any knowledge about that ?
“MR. WILKINSON: Anybody who has any knowledge of the drug charge yes sir.
“THE COURT: That is denied..
“MR. WILKINSON: We except.”

Following the denial of the above motion, prospective individual jurors were then brought into chambers, and one at a time were examined by defense counsel (R. pp. 22, 23). After examination of Mrs. Hearst a recess was declared, and after that the examination of prospective veniremen continued. The record then reflects that this continued for over an hour, during which time defense counsel continued to ask questions of prospective members of the venire. The record reflects the following (R. pp. 26-27):

“(THEREUPON, Mr. Wilkinson continued asking questions of the jury venire, during which no objections were made nor exceptions reserved. The following proceedings were then had and done:)
“THE COURT: Ladies and gentlemen we will take about fifteen minutes while the attorneys go over their lists. We’ll select a jury at four-fifteen, so please be back in the courtroom sitting in the seat where you have been sitting all along at that time. There will be fourteen of you who are selected to sit on this jury, so please do not discuss this case with anyone in the hall or permit anyone to discuss it in your presence. Thank you.
“(THEREUPON, Proceedings were in abeyance from 4:02 p. m. until 4:15 p. m., at which time the following proceedings were had and done:)
“THE COURT: Are you gentlemen ready to strike ?
“MR. WILKINSON: Yes sir.
“MR. WAITES: Yes sir.
“THE COURT: You may proceed.
“(THEREUPON, a jury of fourteen was struck between 4:17 p. m. and 4:45 p. m. The following proceedings were then had and done:)
“THE COURT: Is the State satisfied that we have the correct jury in the box?
“MR. GARRETT: The State is satisfied.
“THE COURT: Is the defendant satisfied?
“MR. WILKINSON: Yes sir.”

As may be seen from a careful examination of the above record, the trial court allowed individual questioning of prospective members of the venire.

The record affirmatively reflects the ex-cusal of one member, Mrs. Hearst, because of an opinion formed by her. This was, of course, proper. Title 30, Section 52, Code of Alabama 1940.

Inasmuch as the trial court permitted extensive individual examination, and the record also reflects that no further objections or exceptions are shown, we cannot say that reversible error is here shown. Massey v. State, 49 Ala.App. 345, 272 So.2d 271, cert. denied 289 Ala. 747, 272 So.2d 278, and cases therein cited.

II

We have detailed the evidence in this case, and beyond question the State presented a prima facie case. The trial court therefore properly overruled the appellant’s motion to exclude, and her request for the affirmative charge. Zuck v. State, 1975, 57 Ala.App. 15, 325 So.2d 531, cert. denied 1976, 295 Ala. —, 325 So.2d 539, and authorities therein cited.

III

The appellant asserts as error the admission into evidence of the statement allegedly made by Mrs. Zuck to Frank Meadows in the presence of her daughter Susan Zuck Morton, wherein she purportedly offered Mr. Meadows $500 if he could fine someone to “knock Mr. Zuck off.” The appellant asserts this was evidence of another offense and should not have, therefore, been admitted in evidence in this cause.

We do not agree as the statement in question bears on the feelings or sentiments the accused had on prior occasions expressed toward the victim. Such was therefore material and relevant as tending to show either malice or motive of the accused.

The applicable legal principles governing the admission of such testimony are fully discussed in Padgett v. State, 49 Ala.App. 130, 269 So.2d 147, cert. denied 289 Ala. 749, 269 So.2d 154, and authorities cited therein.

IV

At the conclusion of the trial court’s oral charge, the appellant announced, “We are satisfied.” The trial court then gave eight written requested charges.

As stated by Judge DeCarlo in Zuck v. State, supra:

“We reviewed the refused charges and found they were either covered by the court’s general charge, other given charges, or were abstract, misleading or invasive of the province of the jury. In our judgment, their refusal was proper. T. 7, § 273, Code of Alabama, Recompiled 1958.”

We have carefully examined this record and find no error therein. The judgment is therefore

AFFIRMED.

All the Judges concur.

ON REHEARING

TYSON, Judge.

The appellant asserts that the trial court improperly denied her challenge for cause, with reference to the question of whether or not any individual juror had heard of a pending narcotics case against the accused.

We have carefully re-examined the voir dire in this cause and find that no individual juror expressed such a hostility to the appellant as to suggest a case of actual prejudice. Moreover, the appellant has failed to show that the setting of the trial was inherently prejudicial or that the jury selection process, of which she complains, permits an inference of actual prejudice. Murphy v. Florida, 1975, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589.

OPINION EXTENDED, APPLICATION OVERRULED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Ruth ZUCK v. STATE. Ex parte Ruth Zuck.
    SC 1791.
    Supreme Court of Alabama.
    May 21, 1976.
    J. Louis Wilkinson, Birmingham, for petitioner.
    None for respondent.
   PER CURIAM.

Petition of Ruth Zuck for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Zuck v. State, 57 Ala.App. —, 331 So.2d 777.

WRIT DENIED.

HEFLIN, C. J., and MERRILL, MADDOX, FAULKNER and JONES, JJ., concur.


author: HARRIS, Judge.

text:
    Thomas Lee LINDSEY v. STATE.
    8 Div. 702.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    George A.-Moore, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to ten years imprisonment in the penitentiary.

He was found to be indigent and petitioned the Court for a full transcript so that he could appeal his conviction. The trial court granted the appellant an abridged transcript designating certain testimony to be incorporated in the record.

The United States Supreme Court, the Alabama Supreme Court, and this Court have held that an indigent’s right to appeal cannot be thwarted by inaction on the part of the court reporter. Brooks v. State, 283 Ala. 459, 218 So.2d 271 (1968); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).

In Draper, supra, the United States Supreme Court stated, in part:

“ . . .In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds—the State must provide the indigent defendant with means of presenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions.”

It is the opinion of the Court that on the record before us appellant has not been afforded an adequate record for appellate review. This cause is remanded with directions to the trial court to correct the record so as to provide this Court with a full and complete transcript of the evidence together with the exhibits introduced by the State as well as the oral charge of the Court. A full and complete transcript of the evidence and all the proceedings had in the case should be filed with the Clerk of the Circuit Court from Madison County within 60 days of this date, unless that period be extended by the trial court for cause pursuant to the statute. The complete record shall be filed with this Court by the Circuit Clerk, upon receipt of the court reporter’s transcript as provided by law.

Remanded with directions.

All the Judges concur.


text:
    Thomas Lee LINDSEY v. STATE.
    8 Div. 702.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.

      George A. Moore, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to ten years imprisonment in the penitentiary. He was represented at arraignment and trial by court-appointed counsel. He pleaded not guilty. After sentence was imposed, he gave notice of appeal and petitioned for a free transcript. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The evidence is conflicting but it is undisputed that between. 8:00 and 8:30 p. m., on June 4, 1974, a black man robbed Love-man’s Department Store in Huntsville, Alabama, at gunpoint and escaped with nearly $5,000.00. Eleven months later a man identified as appellant was picked out of a lineup in Rochester, New York, as the robber. There was an extradition hearing and he was ordered to be returned to Alabama to stand trial. His defense was an alibi and during his testimony he never attempted to explain to the jury why he left Alabama immediately after the robbery and went to the state of New York.

Prior to trial appellant made a motion to suppress the eye witness testimony of the two women who were robbed in the Credit Department of Loveman’s on the night of June 4, 1974, and a full blown hearing was held on this motion. At the conclusion of this hearing the motion to suppress was overruled and denied.

Testifying for the State were Ms. Debbie New and Ms. Barbara Collins who were alone in the Credit Department at the time of the actual robbery. The store closed at 9:00 p. m. and all the customers had just left the store.

Around 8:10 p. m. on the night of the robbery the bandit approached Ms. New to discuss opening a credit account with Loveman’s. At this time Ms. New was waiting on several customers and she told him she would get with him as soon as she could. Ms. Collins was on break at the time the bandit approached Ms. New, but she returned to the Credit Department while the robber was still standing there and Ms. New asked Ms. Collins to wait on him. Ms. Collins discussed the procedure to open a credit account and handed the man a credit application form and told him to complete the form and either leave it with her or mail it in as it would take a few days to process it. The man took the application form and walked to the furniture department where he met another black man and both of them began to look over the application form. A few minutes later both men walked further back in the store out of sight of Ms. Collins:

After the last customer left the store, the man returned to the Credit Department and laid the application form on the counter and asked some more questions concerning it. Then suddenly and without any warning he jumped over the swinging door leading into the Credit Department and pulled a pistol out of his pocket and stated he wanted the money. Ms. New stepped back and the bandit nudged her with the pistol and told her not to move again but to get the money. Ms. New hesitated and the bandit nudged her again and demanded the money. Ms. Collins looked at Ms. New and Ms. New told her to give him the money. Both Ms. New and Ms. Collins went to each cash register and got the money bags and brought them to the counter in the Credit Department where the bandit was standing with the pistol in his hand. He asked them for a large bag to put the money bags in and they told him they did not have a large bag. The robber saw a box under the counter and told them the box would do. One of them handed him the box and he put the money bags in the box and put a top on the box and went through the swinging door and ran out the back of the store. Ms. New ran to the switchboard operator and asked her to call the security guard and she started in pursuit of the bandit toward the back door. As she approached the rear of the store she saw the other black man with whom the robber had conferred in the furniture department and she froze as she did not know if this man was armed. This man followed the man with the box of money out the back door. When Ms. (New finally got to the back door she did not see either one of the men and did not see an automobile in which the men made their escape.

Both women testified they got a good look at the robber with the gun as they were in close quarters with him in a well lighted store and at times were within six inches to two feet from him during the robbery and he was not disguised in any way. They stated that from the time he first asked for the credit application until the robbery was completed the time lag was from ten to fifteen minutes.

Ms. New testified that the robber had on a shirt that had big flowers on it, brown with white centers, and a pair of brown knit slacks and black boots. He had a fairly short Afro and his hair was braided. She stated he didn’t have a beard or mustache at the time of the robbery but he had a beard and mustache at the trial. She further testified that about a week before the trial she went to the District Attorney’s Office where she was shown a photograph of the lineup in Rochester, New York. There were five black men in the lineup and one of them looked like the robber but she wanted to see a close-up picture of the man. She was' shown a close-up photograph and as soon as she saw it, she immediately identified appellant as the robber. She then was shown the lineup photograph again and picked number 4 as the man who robbed them on June 4, 1974. She made a positive in-court identification of appellant as the bandit and said she could have identified him in person .without regard to the photographs and that she based her identification on seeing him for ten to fifteen minutes during the robbery. She withstood a vigorous cross-examination and was never shaken in her identification of appellant as the bandit.

Ms. Collins testified that following the robbery she viewed numerous mug shots on several occasions and one lineup of four men and that appellant was not in any of the photographs she saw.

She further testified that around March 1, 1975, she went to Rochester, New York, with Tim Morgan from the District Attorney’s Office of Madison County, and Detective Dick Yearick of the Huntsville Police Department where she attended a lineup. They were met by a member of the Rochester Police Department and a representative from the District Attorney’s Office. She viewed a lineup of five black men and immediately identified appellant as the man who robbed her and Ms. New on the night of June 4, 1974, in the Credit Department of Loveman’s in Huntsville, Alabama. As soon as the five men took their places in the lineup, she held up four fingers to signify that the number four man was the robber. The next day she went to an extradition hearing and identified appellant again as the robber.

At trial she made a positive in-court identification of appellant and stated that if no lineup had ever been conducted, she still would be able to identify appellant based solely on her observation of him during the robbery and her face to face conversation with him concerning the credit application she personally handed him. In her words, “I would be able to identify the man when I came face to face to him, no matter whether a lineup or on the street.”

There was an extensive voir dire examination of both Ms. New and Ms. Collins in an attempt to suppress their identification of appellant as the robber. At the conclusion of the hearing the Court denied the motion to suppress.

Detective Richard Yearick of the Huntsville Police Department was assigned to investigate the robbery and he went to Loveman’s that night and talked to both Ms. New and Ms. Collins and generally inspected the scene where the robbery occurred. He observed the credit application on the counter where appellant placed it just before he jumped over the swinging door and committed the robbery. He saw the open money drawers and was advised where the robber placed his hands. He immediately had these areas blocked off so that no one would have access to them and called Mr. Van Pruitt from the Department of Toxicology to come to the scene and process the same for evidence. No one touched the credit application before Mr. Pruitt arrived and took the application in his possession. In the course of his investigation he was advised that the money was placed in a white cardboard box and the robber left the store with this box in his possession. He was also advised by other police officers that they found a vehicle fitting the description of the one used in the robbery. The car was located in the 1500 block of Timber Lane. The detective went to this location and found a 1966 Pontiac Tempest, 1974 Alabama tag number 47-78703. The car windows were down and he looked in the back seat and saw a white box with “Curtis 1000 Inc., Identi-Matic Envelopes, IM-622-A,” on it. The car was impounded and taken to Loveman’s Store where Mr. Pruitt removed the box and several other items. He stated that the box was later identified as the one the robber used to carry the money bags in.

This officer further testified that Mr. Van Pruitt, Assistant State Toxicologist, picked up the credit application and put it in a plastic envelope and carried it with him.

This officer testified on cross-examination that warrants were issued for appellant, Winfred Ford and Roderick McElroy. He further stated that McElroy was serving time as a result of this case, that Ford was serving time in Tennessee, and appellant was then on trial for the Loveman robbery.

Mr. Van Pruitt testified that he was employed as Assistant Director of the Huntsville branch of the Department of Toxicology and Criminal Investigation. After stating his education, experience and qualifications and that he had been in charge of the Huntsville office since 1964, he was asked if he had any training in lifting fingerprints and he answered in the affirmative. He further testified that he picked up the credit application from the counter where Ms. New and Ms. Collins told him the bandit put it. This credit application was introduced in evidence as State’s Exhibit 1. Latent fingerprints were lifted from the credit application, from the counter in the credit area of Loveman’s Store, from the cardboard box found in the automobile, and four latent prints from the Pontiac Tempest automobile. Some ten latent prints were sent to the Federal Bureau of Investigation in Washington, D. C.

Mr. Ramon Dale Drayer who was employed by the Federal Bureau of Investigation as a fingerprint specialist came to Huntsville and testified for the State at appellant’s trial. The qualifications and experience of this witness were most impressive. He had been with the Bureau for 21 years and the latent fingerprints he had examined in that length of time ran into the millions. He testified that on State’s Exhibit 1 (credit application handled by appellant) there were three latent fingerprints of value.

After appellant was returned to Alabama he was fingerprinted at the jail in Huntsville and this fingerprint card was sent to Mr. Drayer for comparison with the other latent fingerprints which were sent him. This card was introduced as State’s Exhibit 10. Mr. Drayer made a comparison of the three latent prints on the credit application with the fingerprint card and testified as follows:

“There were three latent fingerprints of value. They were present on State’s Exhibit 1. And they are identical with the fingerprints appearing on State’s Exhibit 10, fingerprint card.”

The taking of a fingerprint exemplar after arrest without counsel present does not violate one’s Fifth Amendment privilege against self-incrimination or one’s sixth Amendment right to counsel and testimony of a fingerprint expert is admissible. United States v. Gibson, 5 Cir., 444 F.2d 275; Davis v. State, 33 Ala.App. 68, 29 So.2d 877.

An in-court identification of an accused by a witness who has viewed the accused in a lineup before trial, without counsel or the waiver of counsel, is not admissible unless an independent origin of the identification is established.

Based on the testimony of Ms. New and Ms. Collins we hold that the in-court identification was not tainted by the lineup. This is a clear case of an “independent source.” It would serve no useful purpose to repeat their testimony as above set forth. Hannon v. State, 48 Ala.App. 613, 266 So.2d 825; Smith v. State, 49 Ala.App. 147, 269 So.2d 164; Houston v. State, 49 Ala.App, 403, 272 So.2d 610.

The “independent source” is explicit in Ms. Collins’ statement: “I would be able to identify the man when I came face to face to him, no matter whether a lineup or on the street.”

Appellant makes much of the fact that he was the only one of the five men in the lineup that had on a “red” tee shirt and thus the officers arranged it that way to focus attention on him. Appellant’s own testimony on direct examination refutes any suggestion that the attire worn by the men in the lineup was attributable to “official cunning.” From the record:

“Mr. Moore: How were you dressed?
“Mr. Lindsey: Dressed in a red shirt.
“Q. Who gave you that red shirt?
“A. I had the red shirt. It was a red shirt I had under here.
“Q. How were all these people dressed ?
“A. All the rest dressed in uniforms, uniforms from the county. See, in the county up there the one who gets time they dress in different uniforms. The one who did not get time they dress in a different one. So, all the fellows in the lineup were dressed in a similar sentence (sic) uniforms and I was the only one who did not have his on.”

Conflict in alibi testimony presented by the defendant and identification testimony presented by the robbery victims was peculiarly within the province of the jury to resolve. Smith v. State, 53 Ala.App. 27, 296 So.2d 925; Price v. State, 53 Ala.App. 465, 301 So.2d 230.

The testimony of the fingerprint expert from the Federal Bureau of Investigation in Washington, D. C. exploded appellant’s alibi; and the jury so found along with the testimony of the two victims of the robbery.

There was no motion to exclude the State’s evidence; there was no motion for a new trial; there was no request for the affirmative charge; and no exceptions were reserved to the oral charge to the jury. In this state of the record nothing is presented to this Court for review. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358; Hall v. State, 57 Ala.App. 132, 326 So.2d 660.

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.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


text:
    Lloyd Charles WELLS v. STATE.
    4 Div. 397.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.
    Rehearing Denied March 16, 1976.
    Powell & Sikes, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., Montgomery, for the State.
   HARRIS, Judge.

Appellant was convicted of assault with intent to murder and the Court sentenced him to five years imprisonment in the penitentiary. At arraignment and trial he was represented by retained counsel. He pleaded not guilty to the indictment. After sentence was imposed, he gave notice of appeal.

The evidence was in sharp dispute. There was no motion to exclude the State’s evidence, but there was a request for the affirmative charge which was refused and we think rightly so.

There was a motion for a new trial containing numerous grounds. The grounds of major concern was the nondisclosure of two jurors that they were over the age of 65 years. These two jurors were among the twelve on the jury who convicted appellant. On the hearing of the motion for a new trial, it developed that a woman was 66 years of age and a man was 72 years of age by their own testimony. All the credible evidence showed that during the general qualifications of the jury, these two jurors did not make known to the Court that they were over 65 years of age. Several other jurors disclosed they were over 65 and these jurors were challenged for cause either by the State or the defense and the challenges were sustained.

The Circuit Clerk testified that these two jurors did not make known to the Court that they were over the age of 65 years. The official Court Reporter testified that he had examined his notes and his tape recorder, and he had no record that these two jurors answered that they were over 65.

In Letson v. State, 215 Ala. 229, 110 So. 21, the Supreme Court said:

“It is the policy of the law not to have persons over or under age on the jury.”

In Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247, Justice Bloodworth writing for the Court said:

“Our courts have held that the concealment by a juror of information called for in voir dire examination need not be deliberate in order to justify a reversal, for it may be unintentional, but insofar as the resultant prejudice to a party is concerned it is the same.”

In Gardner v. Baker, 40 Ala.App. 374, 113 So.2d 695, Judge Cates (now Presiding Judge) held that Section 55, subd. 8, Code of Alabama 1940, gives a good ground for challenge that a man is over 65 years of age. It was further stated in this case that it was not necessary to show prejudice to justify reversal.

We hold that the trial court fell into error in not granting a new trial because of the nondisclosure of the ages of these two jurors.

Appellant claims numerous other errors were committed in the trial of this case but we forego treating these alleged errors as they will not likely re-occur when this case is retried.

This case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

CATES, P. J., and TYSON and DeCARLO, JJ., concur.


author: MADDOX, Justice.

text:
    In re Lloyd Charles WELLS v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1777.
    Supreme Court of Alabama.
    May 21, 1976.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State, petitioner.
    None for respondent.
   MADDOX, Justice.

Petition of the State by its Atty. General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Wells v. State, 57 Ala.App. —, 331 So.2d 802.

WRIT DENIED.

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


text:
    James ATCHISON, alias v. STATE.
    3 Div. 431.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied March 30, 1976.
    Richard D. Shinbaum, Anniston, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted of robbery and sentenced to ten years imprisonment. The State called only one witness, Don Barron, the victim. The defense called only the appellant as its witness.

Barron testified that he had known the appellant for several years and that he had occasionally loaned him money. Around 10:00 A.M. on Sunday, March 5, 1975, At-chison went to Barron’s home and borrowed $20.00. From there on, the testimony is in dispute.

Barron said Atchison returned with one Buck Yarbrough to his home around noon the same day. He said Atchison and Yar-brough knocked him to the ground and that Atchison put his knee in Barron’s stomach. They took Barron’s wallet from him and took approximately $135.00 from the wallet and left. Barron’s testimony establishes the minimum essential elements of the offense of robbery.

Atchison testified that he did not return to Barron’s home at noon with Yarbrough and did not rob Barron. He said he and Yarbrough went out drinking, and they knew nothing about the robbery until they were arrested later that day around 5:00 P.M. Atchison testified that he was “pretty intoxicated” at the time of the arrest.

In closing argument to the jury, the Assistant District Attorney stated:

“I’ve tried a lot of cases where a defendant has given a written confession and then get on the stand and deny every bit of it—”

Again, during argument, the Assistant District Attorney commented:

“In fact, he was so intoxicated that the Deputy Sheriff that made the arrest could not even interrogate him, so he placed him in jail—”

From the first statement, the jury may have gathered that the appellant had made a confession which, for some reason unknown to them, had not been admitted into evidence. However, the ground assigned for objection was not sufficiently specific as required by Anderson v. State, 209 Ala. 36, 95 So. 171.

The second statement that the deputy sheriff could not interrogate the appellant due to his intoxicated condition is a statement of fact not based on the evidence and does not appear to be a reasonable inference which could be drawn from the appellant’s testimony that he was “pretty intoxicated” at that time. However, we do not base reversal on either of those statements, standing alone.

Later on, in closing argument to the jury, the Assistant District Attorney stated:

“If you want to find him not guilty just on the grounds he only had one witness to present to you ladies and gentlemen on the Jury, you had better think twice, because like I said again, it could happen to you. Some of you ladies especially, some guy walks out there on the street and puts a gun on you and forces you down in the woods somewhere and rapes you and —”

The defense counsel immediately objected, and the following occurred:

“MR. SHINBAUM: We would like to object to that statement directed specifically at the ladies about somebody raping them. There had been no question of rape in this case, and I think it is highly improper argument.
“THE COURT: I overrule your objection. It is argument only. It’s up to the Jury.
“MR. SHINBAUM: I move to exclude the statement.
“THE COURT: I deny your motion.
“MR. SHINBAUM: I move for a mistrial.
“THE COURT: I deny your request. Go ahead.”

There are no firm legal standards by which the prejudicial qualities of improper remarks by a prosecutor during trial can be gauged. Each case must be reviewed on its own merits. Smith v. State, 282 Ala. 268, 210 So.2d 826; Edson v. State, 53 Ala.App. 460, 301 So.2d 226.

On review of the latter statement of the prosecution, we find it to be so prejudicial in nature and so irrelevant that the failure of the trial court to sustain objection thereto amounts to reversible error.

We are not unmindful that wide latitude should be given counsel during closing argument. We approve of vigorous prosecution and have often cited Arant v. State, 232 Ala. 275, 167 So. 540, for the proposition that wide latitude must be given to counsel in drawing inferences and deductions from the evidence; that juries usually value exaggerated arguments at their true worth; and that, “a trial is a legal battle, a combat in a sense, and not a parlor social affair.” We cannot approve, however, of appeals to fear or venturing outside the evidence to argue prejudicial matter to the jury.

It is not permissible to single out a juror or jurors in argument and appeal to their fears or prejudices. In Little v. State, 18 Ala.App. 98, 89 So. 303, the former Court of Appeals said:

“The court, in ruling on an objection to a remark of the solicitor, said: ‘Yes, it is no difference how any individual juror feels or would like to be treated. You can argue the effect it would have on society,’ etc. This was entirely proper. It is the duty of the court to direct the trial and to keep the argument of counsel within legal rules.”

Also see The Alabama Lawyer, Vol. 33, p. 222.

Not only was it improper to single out the women on the jury for special argument, but the content of that argument, when subjectively applied to them, was grossly prejudicial. There can be no analogy between the relatively simple robbery, without a deadly weapon, charged here and the heinous crime of rape. The prosecutor was arguing against the release of an accused robber, but in effect he told the women jurors that an acquittal of such a person may in some way enhance the possibility of their being raped at gunpoint.

There is not a scintilla of evidence in the record from which the prosecution could have drawn the inference that women in the the community would be in danger of rape if the accused was acquitted. The argument in question is not simply an appeal for law enforcement nor is it a legitimate comment on the effect of the offense on society. Neither could the comment be considered a proper appeal for “protection of womanhood as in Arant, supra, as the victim here was not a woman.

The proof of the offense here charged was simple and uncomplicated. The argument in question was unnecessary. Error could have been averted by the trial court sustaining appellant’s timely objection and by admonishing the jury to disregard the comments. May v. State, 42 Ala.App. 401, 166 So.2d 860, cert. denied 277 Ala. 700, 166 So.2d 865; Wilson v. State, 39 Ala.App. 77, 94 So.2d 408.

We find it unnecessary to decide the issue relative to the prosecution’s comment on appellant’s failure to call Yarbrough as a witness. Neither is it necessary to review the prosecution’s references in cross examination as to what certain State’s witnesses may testify to, if called, but who were never called by the State. It is unlikely that such comments will occur on retrial.

REVERSED AND REMANDED.

All the Judges concur, except HARRIS, J., concurs in the result.


author: FAULKNER, Justice.

text:
    In re James ATCHISON v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1795.
    Supreme Court of Alabama.
    May 7, 1976.
    William J. Baxley, Atty. Gen., and Jane LeCrojr Robbins, Asst. Atty. Gen., for petitioner, the State.
    None for respondent.
   FAULKNER, 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 Atchison v. State, 57 Ala.App. —, 331 So.2d 804.

WRIT DENIED.

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


text:
    Walter Lee DAVIS v. STATE.
    3 Div. 502.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Bob E. Allen, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

A jury found appellant-defendant guilty of robbery in Montgomery County and fixed his punishment at ten years imprisonment in the penitentiary. Judgment therefor was duly entered and this appeal was taken therefrom.

I

An issue here presented is whether defendant should have been arraigned by the court, advised of the charges against him and called upon to plead in person.

Section 2, Act 314, Acts of Alabama, Special and Regular Sessions 1973, Vol. 1, p. 444, a general act with local application to Montgomery County, reads as follows:

“If a defendant in a criminal case pending in a court of competent jurisdiction shall enter a written plea of not guilty at any time prior to the day of his arraignment such plea shall constitute a waiver of his right to have an arraignment at which he is present in person or at which he is represented by an attorney.”

It appears that defendant, with the concurrence and approval of his attorney, who executed a certificate of approval, signed a waiver of .his right to have an arraignment in this case at which he is present and represented by his attorney. In this waiver, defendant entered a plea of not guilty.

No constitutional issues concerning this waiver or the effect thereof, or the constitutionality of the Act were raised in the lower court and will not be heard on this appeal. There was no motion for a new trial, and for aught appearing in the record, no constitutional issues were heard by the trial court. We will not here consider these issues for that they were not raised below. City of Talladega v. Ellison, 262 Ala. 449, 79 So.2d 551; Howard v. Pike, 290 Ala. 213, 275 So.2d 645; Alabama Digest, Vol. 2, 170(2).

The waiver which defendant signed and the certificate of his attorney appear in the record (Tr. 3). We are impressed that defendant was fully informed as to what he was signing and waived arraignment; also he entered his plea of not guilty and was tried on that issue. In re Hudson v. State (1976), 295 Ala. —, 333 So.2d 592.

II

The next assertion of error relates to the admission in evidence of defendant’s confession.

It appears in the record that the trial court, outside the presence of the jury, heard evidence as to the voluntariness of the confession and also evidence relating to the Miranda warning given defendant who also testified. The court ruled the warning was given and the confession was voluntary.

The State also adduced evidence before the jury as to such warnings and to the effect that the confession was voluntarily given after predicate that there was no force, threats, inducement, etc., by the officer taking the confession or by anyone in his presence. The jury had the benefit of this voluntary confession and its weight. The confession was properly admitted in evidence.

III

The next contention is whether “prior questioning by police concerning certain burglaries and grand larcenies is admissible in evidence.”

The following excerpt from the record indicates a question posed by defendant’s counsel to defendant’s mother who took the stand for her son:

“Q. And your son has not been in trouble with the police before, serious trouble?
“A. No. Not serious trouble.”

The following excerpt from the record indicates a question posed by his counsel to defendant and his answer:

“Q. All right. Even if you heard the words, that you didn’t understand ?
“A. I didn’t know them. Like I told him, I ain’t never been in trouble with the law. Not—No less than petty larceny, or something like that.”

These questions and answers were the subject of cross-examination by the State and questions on cross relating to his arrests for crimes were permissible. Lewis v. State, 43 Ala.App. 16, 178 So.2d 649; Johnson v. State, 42 Ala.App. 511, 169 So.2d 773.

This judgment should be and it is affirmed.

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

AFFIRMED.

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


text:
    Zebedee BECOATS v. STATE.
    1 Div. 666.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Warren L. Finch, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the second degree. At arraignment with counsel present appellant pleaded not guilty. The jury returned a verdict finding appellant guilty of manslaughter in the first degree and fixed his punishment at ten years in the penitentiary and he was sentenced in accordance with the verdict of the jury. After sentence was imposed, appellant gave notice of appeal and his bond was set at $10,000.00. He was furnished a free transcript and trial counsel represents him on appeal.

The prosecution and defense counsel stipulated that if a Dr. Montgomery was present, he would testify that the deceased, Percy Longmire, received a bullet wound to the side of his neck which exited in the back of his neck and that he died from the loss of blood caused by the gunshot wound.

The evidence for the State tended to show that on the night of April 4, 1975, around 9:30 o’clock, the deceased and five or six other boys were standing on Twelfth Street right off Lincoln Boulevard in the city and county of Mobile, Alabama, when appellant drove his car off the paved portion of Lincoln Boulevard and was going at such a rate of speed that his car went in a ditch near where the boys were standing. That the deceased told appellant to “slow it down” or “to cool it.” That appellant backed his car out of the ditch and jumped out of the car and walked over to the deceased with a pistol in his hand saying, “Don’t you know I’m old enough to be your Daddy” and hit the deceased across the neck and the pistol fired at the same time. According to the testimony of the boys the deceased did not say anything else to the appellant before he was shot. He did not curse or threaten appellant or make any move in his direction before the shot was fired. That after the shot was fired, appellant got back in his car and left at a high rate of speed.

Some of the boys present varied in their testimony as to the events leading up to the fatal shooting but in no material respects. All of them testified to substantially the same thing. That the deceased did nothing whatsoever to appellant to provoke an argument or curse or threaten him in any manner. Some of the boys said that appellant took a step toward the deceased and it looked like appellant hit and shot him at the same time. One State witness said it seemed like appellant was trying to hit the deceased with the pistol but shot him instead. It is undisputed that the deceased had no weapon of any kind at the time he was shot and killed.

Appellant offered evidence as to his good character and general good reputation in the community.

Appellant testified thát as he approached the deceased he put his hand in his pocket and that he did not know what he was going to do and that he hit the deceased with the pistol and the gun went off. He said the pistol did not belong to him but he had taken it in pawn about a week before. He claimed he was on his way to return the pistol and get his money back when he ran in the ditch and heard the deceased make some statement to him about the way he was driving.

Appellant further testified that at the time he got into his car he thought that he had just hit the man and did not know he had shot him. He stated that he had no intention of harming anybody and did not intend to hurt the deceased. He said he did not intend to shoot the deceased.

He further testified that he drove to Mississippi and he threw the pistol out of the window of his car as he was driving because he was afraid. After getting to Mississippi he called a member of his family and found out the deceased was shot and was dead. He came back to Alabama and turned himself in. Actually he went to a bonding company and the bonding company officials carried him to the City jail.

On cross-examination he testified that he did not have the pistol in his hand when he walked up to the deceased but had it in the side pocket of his pants. That he did not intend to shoot the deceased. That he got in his car and left and he was scared when he threw the pistol out of the car. He stated he did not know where he was when he threw the pistol but he threw it away to get rid of it. He said he did not point the pistol at the deceased and that he wasn’t just exactly trying to hit him in the head. That when he left the scene, he looked back and saw the deceased staggering but did not know he was shot. He further stated that he did not know who was hollering at him when he drove around the corner and went into the ditch. That when he got out of his car, he asked, “Who was that hollering at me like that?” Someone told him it was the deceased. He said no one made him get out of his car, no one was blocking him, and he could have left the scene without hinderance.

The record reflects that the deceased met his death over a matter of no material consequence. No doubt the jury felt the same way as they deliberated only 40 minutes before returning the verdict.

There was no motion for a new trial; there was no request for the affirmative charge, and no exceptions were reserved to the oral charge of the Court. After the defense rested, counsel moved to exclude the State’s evidence for failure to make out a prima facie case. The motion was denied and rightly so. Young v. State, 283 Ala. 676, 220 So.2d 843.

Under the facts and circumstances of this case it was for the jury to determine whether the shooting was accidental or whether it was intentional. McMillan v. State, 44 Ala.App. 216, 205 So.2d 603; Powell v. State, 219 Ala. 557, 123 So. 34; Macon v. State, 36 Ala.App. 651, 63 So.2d 32.

We have carefully considered the entire record and find no reversible error therein. The judgment is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.