author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Lamar SMITH, Alias v. STATE.
    6 Div. 816.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied March 6, 1979.

      Jon B. Terry, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment for ten years.

The indictment was as follows:

“The Grand Jury of said county, charges that before the finding of this indictment Lamar Smith, alias Ricky Hill, whose name to the Grand Jury is otherwise unknown, feloniously took $100.00 in lawful money of the United States of America, of the value of $100.00, the property of Roosevelt Allen, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

According to the undisputed evidence, on the night of February 18, 1976, two men entered a room at the men’s dormitory at Miles College and robbed the only occupant thereof at the time, Roosevelt Allen, of one hundred dollars in currency. One of the robbers was identified as defendant. The other robber was a “guy named Soap.” Both of the robbers had guns. One of them slung at Allen and told him “to sit on the bed and put the gun to my head, and put the — told me to act like a hero and he would shoot me.” Allen complied by sitting on the bed and not offering any resistance. One of the robbers had asked him where his roommate, Douglas Bryant, was. The robbers proceeded to go through the drawers of the furniture in the room; they tried to open the trunk but couldn’t get it open; they found the one hundred dollars in his roommate’s desk drawer; the money belonged to Allen’s roommate, Douglas Bryant. The robbers searched the room thoroughly and left it in great disarray. Before they left, Allen’s roommate, Douglas Bryant, entered the room. The robbers required him to pull off his clothes, and about that time Victor Cunningham and a man called “K — Dog” came in. The robbers told Victor and K — Dog to take off their clothes, which they did, after Victor was hit “up side the head with a pistol” by one of the robbers. There was then some noise in the hall made by some football players, and the robbers left the room with the money, the one hundred dollars, that had been taken from the drawer. The robbers left the dormitory running and fired a pistol or pistols about three times as they were about to cross over a fence.

After leaving the campus, “They got in the car and they ran in a ditch. And, they got out and started running.” They were soon thereafter apprehended.

The unique feature about the case is that, under defendant’s plea of not guilty, there was apparently no effort made by defendant to show that there had not been a robbery of Roosevelt Allen by taking property from his person, or in his presence, but, according to the statement of his counsel, marijuana, not money, was taken. His counsel said:

“MR. JACKSON: Judge, this is the whole defense that this man was being framed — what they said was robbery, when in fact some marijuana was taken.”

In support of the claim of defendant that marijuana, instead of one hundred dollars in money, was taken, defendant offered the testimony of two witnesses to the effect that Douglas Allen had stated after the alleged robbery that marijuana, instead of money, was taken. One said:

“And, he said one hundred dollars worth of reefers. But, he said he was going to tell the police he took one hundred dollars in cash.”

The other witness said:

“A He told me that he — my cousin stole one hundred dollars worth of his stuff. He was talking about reefers.
“Q About what?
“A Reefers, marijuana.
“Q Did he say what he was going to say was stolen?
“A He said he was going to press charges that he stole one hundred dollars.”

In furtherance of defendant’s “defense,” his counsel showed on cross-examination of State’s witnesses that nothing was taken from any of the persons in the room while the robbery was taking place or from any of the furniture or furnishings in the room, other than what the alleged victim of the robbery said was taken from the drawer of the desk of his roommate.

Notwithstanding defendant’s failure to take the stand, we understand from the record before us that the pivotal issue of fact between the parties was whether the property taken was the one hundred dollars, as testified by the alleged victim, or marijuana as contended by defendant.

“The evidence must show a taking of some property answering substantially to that described in the indictment or information as taken.” 77 C.J.S. Robbery § 44b(l)

Except as to the value of the property, which can become material in a larceny case so as to distinguish between grand larceny and petit larceny, the description of the property in an indictment for robbery is as material as in an indictment for larceny. In Hammac v. State, 44 Ala.App. 459, 212 So.2d 849 (1968) it was held:

"In a prosecution for larceny the proof must correspond with the description of the identical thing alleged in the indictment to have been taken. The court erred in denying the defendants’ motion to exclude the state’s evidence on the ground that the description of the property was not proved as charged in the indictments. Morris v. State, 97 Ala. 82, 12 So. 276; Smith v. State, 30 Ala.App. 158, 2 So.2d 341; Wright v. State, 52 Ga.App. 202, 182 S.E. 862; Wilson v. State, (1956) 93 Ga.App. 375, 91 S.E.2d 854.”

The verdict of the jury was well supported by the evidence that the property described in the indictment was taken, but evidence to that effect was not so conclusive as to preclude a verdict of not guilty based on a variance between the indictment and the evidence as to the identity or description of the property actually taken.

In the court’s oral charge there was no particularization of the only controverted issue in the case, namely, that of the identity or description of the property. No charge was given that the description of the property was a material averment of the indictment and that the jury could not convict unless it was satisfied from the evidence beyond a reasonable doubt that the property as described in the indictment was taken. The nearest to such an instruction is in the following portion of the charge:

“Now, it is necessary for the State to prove to the jury beyond a reasonable doubt and from the evidence that Roosevelt Allen, either owned the property described in the indictment or that it was under his personal protection and control, and he was in lawful possession of it by consent of the owner of such property.”

The following written charge requested by defendant was refused:

“If you find from the evidence that the Defendant did not feloniously take $10(P in lawful money of the United States of America of the value of 10022 property of Roosevelt Allen from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, you must acquit the Defendant.”

The charge should have been given. In Hamilton v. State, 147 Ala. 110, 41 So. 940 (1906), a larceny case, it was held that instructions hypothesizing the description of the money allegedly stolen in counts of the indictment, and requiring that the defendant could not be convicted as to such counts unless the proof showed that the money stolen was in whole or in part the kind of money described in the indictment, were improperly refused.

“Charge No. 2 [asked] by defendant should have been given. It hypothesized the material allegations of the indictment as necessary to be shown beyond a reasonable doubt, before the jury could find the defendant guilty.” Crane v. State, 111 Ala. 45, 20 So. 590 (1895).

Notwithstanding the natural aversion to the acquittal of a defendant on a charge of having robbed another of, or stolen from him, property of a particular description when the evidence shows that he did steal from, or rob another of, property other than that described in the indictment, the law so requires. As a matter of law appellant was entitled to be protected against a conviction on a finding by the jury that property was taken from the alleged victim under circumstances that would constitute robbery but that the property taken was not the property described in the indictment. We find nothing in the record to show that the jury was ever instructed in accordance with that principle.

One of the last paragraphs of the court’s oral charge was as follows:

“Now, during the course of this trial, the defendant has not testified during the course of this trial. I instruct you that no inference can be drawn from this fact. The defendant has a right under our Constitution not to be compelled to be a witness against himself.”

At the conclusion of the court’s oral charge, the following occurred:

“[THE COURT] Are there any exceptions?
“MR. SHIELDS: No exceptions.
“MR. JACKSON: We except to the part of the jury charge regarding failure of the defendant to testify.
“THE COURT: Overruled.
“MR. JACKSON: We except.
“THE COURT: Mr. Alternate Juror, you can be excused.
“(WHEREUPON, THE JURY RETIRED TO THE JURY ROOM TO DELIBERATE AT 4:27).”

We think the quoted portion of the court’s oral charge was erroneous.

There is a conspicuous lack of uniformity among the American courts as to whether the trial court should instruct the jury as to defendant’s failure to take the stand in the absence of a request by defendant for such instruction. 75 Am.Jur.2d Trial §§ 775-778. In § 777 it is stated:

“There has been a conflict of authority as to whether it is proper under the Griffin rule for a trial judge, without having been requested by the accused, to instruct the jury that no inferences should be drawn against the accused because of his failure to testify. Some cases have held that since the Griffin decision expressly prohibits only an instruction by the trial judge that the accused’s silence is evidence of guilt, and since the Griffin rule is intended to prevent only those instructions which authorize the jury to draw adverse inferences from the accused’s failure to testify, it is proper for the trial judge, even if the accused does not so request, to instruct the jury that no inferences should be drawn against the accused because of his failure to testify.
. On the other hand, it has been held that since the main purpose of the Griffin rule is to give the fullest possible meaning to the accused’s constitutional privilege not to testify, the accused should have the right to decide whether or not his failure to testify should be mentioned to the jury by anyone, and that since any instruction which calls the jury’s attention to the fact that the accused has not testified, regardless of how favorably to the accused the instruction may be worded, will necessarily highlight, emphasize, or single out the fact of the accused’s failure to testify and may inadvertently cause the jurors to consider certain adverse inferences which would not otherwise have entered their minds, such an instruction should not be given unless the accused requests it. Where the giving of such an instruction has been considered error, such error has been held to warrant the reversal of the accused’s conviction. In some cases, the courts without expressly stating either that there was no error or that error was committed but without prejudicial effect, have apparently grouped the issues of propriety and prejudicial effect together and have held simply that it did not constitute reversible error for a trial judge, in the absence of a request by the accused, to instruct the jury that no inferences should be drawn from the accused’s failure to testify.”

By Blakely v. State, 43 Ala.App. 654, 198 So.2d 803 (1967), this Court is committed to the proposition that a trial court’s inclusion in its oral charge of a reference to failure of a defendant to testify in the case does not necessarily constitute error, even though the allusion to his not testifying was made without defendant’s request and contrary to his expressed desire. Blakely was a burglary case, in which the trial court said in its oral charge:

“ ‘The defendant in this case has not seen fit to take the stand in his behalf and the Court charges you that he is not required to take the stand and it is not to be used as evidence against him; we don’t have to prove ourselves innocent; the State has to prove you guilty, under our system of the law, and I can’t urge this too strongly—you are not to consider against him the fact that he did not testify in his own behalf’.”

It was held in Blakely:

“Code 1940, T. 15, § 305, inter alia, forbids the District Attorney’s commenting on the defendant’s failure to exercise his statutory right to testify. This prohibition does not in its terms prevent the judge from charging the jury as Judge Mashburn did here. Indeed, we commend his instruction.”

It is to be noted that in Blakely the commendation was as to the particular instruction given, not as to the giving of an unrequested instruction on the subject. It is to be further noted that the instruction given was about as strong and favorable to defendant as any conceivable proper instruction on the subject. This emphasizes the fact that the principle of law involved is one that is for the protection of defendant.

The statutory law on the subject is Code Ala.1975, § 12-21-220:

“On the trial of all indictments, complaints or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel. If the District Attorney makes any comment concerning the defendant’s failure to testify, a new trial must be granted on motion filed within thirty days from entry of the judgment.”

As the principle involved is one for the protection of defendant, we can well understand the expressed view of many courts to the effect that there should be a trial court caveat to the giving of an instruction on the subject in the absence of a request by defendant. Some appellate courts have strongly expressed the view that it is better practice not to instruct the jury on the subject of the failure of defendant to testify unless requested to do so by defendant. Such view is worthy of serious consideration, whether we agree with it or not. The view has been emphatically expressed in several cases, including State v. Emrick, 129 Vt. 330, 278 A.2d 712 (1971); State v. Wallace, 261 Iowa 104, 252 N.W.2d 266 (1967) and State v. Davis, 294 N.C. 397, 241 S.E.2d 656, 660 (1978), wherein it was said:

“. . . While it is better practice for the court not to instruct on defendant’s failure to testify, State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976), it is entirely proper to give the instruction upon defendant’s request. . . .”

We note no disagreement among the authorities with the principle that should the trial court, in the absence of a request of the defendant, charge the jury as to defendant’s failure to testify, the charge should give defendant full benefit of the principle that no inference adverse to him should be drawn from his failure to testify.

In the trial court’s reference in its oral charge to the failure of defendant to testify, there was included the statement, “that no inference can be drawn” from the fact that defendant had not testified, but this, in our opinion, was a de-emphasis of the protective principle that the inference that is not to be drawn is an inference unfavorable to defendant. This is made even clearer by the last statement of the court on the subject, “The defendant has a right under our Constitution not to be compelled to be a witness against himself.”

The statement as to “no inference” in the instruction is subject to a reasonable construction by the jury, unacquainted with the refinements of the law on the subject, that no inference unfavorable to the State could be drawn from the failure of the State to have defendant testify as to his guilt or innocence. The statement as to defendant’s constitutional right could have been reasonably construed as implying that if defendant had testified, he would have testified “against himself.” '

To equate the right against self-incrimination guaranteed by the Fifth Amendment and the right of a defendant in a criminal case to elect whether he will testify in the case is to truncate both rights. The one goes beyond the perimeter of a case in which the beneficiary of the right is a defendant; the other extends beyond the boundary of self-incrimination. The one is not always self-invocative. The other always is. The two are progenies of different sires. Although there is some relation between the two rights, they are cousins at the best.

“This section [Ala.Code 1975 § 12-21-220] came into our law by stages. Historically, at Common Law the defendant could not be a witness in his own behalf. Then, in 1882, by Act No. 3 (p. 4), approved December 2, 1882, the Legislature gave the defendant the privilege of making an unsworn statement to the court and jury. See Blackburn v. State, 71 Ala. 319; Chappell v. State, 71 Ala. 322; Beasley v. State, 71 Ala. 328, 329; Burke v. State, 71 Ala. 377; Whizenant v. State, 71 Ala. 383; and Williams v. State, 74 Ala. 18. Also, Jones v. State, 181 Ala, 63, 61 So. 434; 1 Mayfield Dig., Witnesses, Competency 3, p. 882; Wigmore, § 579, n.6; Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783.
“After amendment to present form, Code 1940, T. 15, § 305, Act No. 3, was repealed. Act No. 80, approved February 17, 1885.” Padgett v. State, 45 Ala.App. 56, 223 So.2d 597 (1969)

On the same subject, Justice Bouldin in Turner v. State, 238 Ala. 352, 354-355, 191 So. 396, 398 stated:

“It is fair to assume all these matters were in the mind of the law makers when framing this carefully worded statute. Their aim was to abolish the rule which compelled the accused to sit dumb before his accusers, to enable him, at his election, to give his version of the affair, to present facts, maybe known to him alone, tending to show freedom from guilt, or to mitigate the offense made out, in many cases, by adversaries highly interested. Many reasons, other than admission of the State’s evidence, may, under advice of counsel, influence the election not to testify.”

We have some reservation as to the sufficiency of the exception taken by defendant to the instruction of the court. We conclude that it was sufficient under the circumstances.

“It is sufficient that the exception substantially recite the instruction to the extent of informing the court of the portion of the instruction excepted to. Kelley v. State, 226 Ala. 80,145 So. 816; Brewington v. State, 19 Ala.App. 409, 97 So. 763; Brown v. State, 17 Ala.App. 30, 81 So. 366; Ex parte Cowart, 201 Ala. 55, 77 So. 349.
“The exception was in our opinion sufficient to direct the lower court’s attention to that portion of the court’s instruction to which appellant was excepting.

We would be more concerned about the sufficiency of the exception if any part of the instruction to which the exception was taken were properly given. As indicated above, if an instruction as to the failure of the defendant to testify is given, without its being requested by defendant, it should set forth completely and clearly as possible the protective feature to defendant of the principle. Neither the instruction to which the exception was taken nor any part of it did so.

During the argument of counsel for the prosecution, the following occurred:

“MR. SHIELDS: They didn’t deny they were robbed. The only defense is some sort of defense that we robbed them of dope and not of money. I don’t believe that from the—
“MR. JACKSON: Judge, I’m going to object.
“THE COURT: Overruled.
“(Whereupon, Mr. Shields addressed the jury in closing argument on behalf of the State during which the following occurred:)
“(Whereupon Mr. Shields and Mr. Jackson approached the bench and a conversation was had out of the presence of the jury:)
“THE COURT: Ladies and Gentlemen, the last statement of counsel where he stated that they did not deny that they were there, did not deny that they robbed, I ask that you exclude that from your mind and not consider that in your deliberations. I ask you to erase that from your minds and not consider it when you arrive at your verdict.
“MR. JACKSON: Judge we would like to move for a mistrial on the grounds we feel it would be impossible for the jury to erase that from their minds.
“THE COURT: Overruled.”

Appellant urges as a ground for a reversal the action of State’s counsel and the trial court as above narrated, insisting that the argument of State’s counsel amounted to an improper comment upon the defendant’s failure to testify. We do not agree with appellant in this particular. Although the particular argument is ambiguous by reason chiefly of uncertainty of the identity of the persons for whom the personal pronoun “they” was twice used, it seems to us that counsel was referring by the first “they” to defendant and “Soap” and by the second “they” he was referring to the alleged victim of the robbery and his roommate. It appears, however, that counsel for both sides and the court came to an understanding that perhaps the particular argument referred to the failure of defendant to testify. Whether such understanding was correct or not, it may well have tended to prompt the trial judge, in a commendable desire to prevent injustice to defendant by reason of his failure to testify, to caution the jury on the subject. This being true, we commend him for his effort, but think that it did more harm than good, much harm and no good, to defendant.

Our conclusions as stated above make it unnecessary for us to pass upon appellant s other contentions for a reversal.

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

REVERSED AND REMANDED.

All the Judges concur.

      . The witnesses said “Douglas Allen” but the context of the testimony indicates that they were referring to Douglas Bryant. As no one has explained this discrepancy, we will treat it as an overlooked error in the name.

      . Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, reh. den. 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730.

      . The last sentence is not to be given the mandatory effect which its language imports. To do so would violate the Separation of Powers Section (§ 43) of the Constitution of Alabama. Broadway v. State, 257 Ala. 414, 60 So.2d 701.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-377.
    Supreme Court of Alabama.
    May 11, 1979.
   EMBRY, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Jerry Wayne ANDREWS and Namon Earl Andrews v. STATE.
    4 Div. 681.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.

      Samuel L. Adams of Adams & Bates, Dothan, for appellants.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen. for the State, appellee.
   BOWEN, Judge.

Jerry Wayne Andrews, Namon Earl Andrews, and Billy Gerald Oliver were jointly indicted for the burglary of the uninhabited dwelling house of Terry Dixon. Jerry and Namon Andrews were tried jointly and convicted. Each was sentenced to four years’ imprisonment.

The only question on appeal is the sufficiency of the evidence to support the convictions.

The State’s chief witness was Billy Gerald Oliver who admitted his participation in the burglary and was an accomplice as a matter of law. Jacks v. State, 364 So.2d 397, 403 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978); Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972). As such his testimony requires corroboration. Section 12-21-222, Code of Alabama 1975.

Oliver testified that he told Jerry Andrews, who was driving a red van, to stop at Dixon’s house. Oliver then went up to the door and knocked. Finding no one home, he went to the garage on the side of the house and broke into the freezer, took the meat out and, with Namon’s help, started putting it in Jerry’s van. Jerry then broke into the house with a tire tool. Jerry and Oliver went in while Namon “rode around, up and down the road”. Inside the house they “plummeted around, looked around”. Oliver carried a microwave oven outside and Jerry took a .22 caliber rifle.

Namon returned, picked them up and they all went to Jerry’s trailer where they left all the stolen merchandise except some of the meat which they were going to take to Oliver’s house. On the way they were stopped and arrested by officers of the Do-than police and Houston County Sheriff’s Department.

The test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). A neighbor stated that a red van pulled up in front of Dixon’s house and two men ran from the van to the house. The van left and twenty minutes later returned, stopped, and then left again.

Dixon testified that when he returned to his house, which had been locked the back door was open as were the sliding glass doors. The “closet doors were open, clothes were shuffled, as though someone had been looking in the closet”. A .22 caliber rifle and a microwave oven were missing. Also “the freezer had been broken into and a quantity of meat was missing”. The freezer was “under the carport, outside the house”, and “not in any enclosure”. The neighbor notified Dixon at 8:30 P.M.

Dothan city police officer Jackie Mend-heim testified that around 9:30 P.M. on the night of the burglary, after receiving a radio dispatch, he attempted to stop a red van which “ran from” him. The van was stopped with the assistance of Houston County deputies and Jerry was driving. Namon and Oliver were also in the van. A portion of the stolen meat was found in a styrofoam cooler in the van.

Appellant Namon Andrews testified on behalf of both appellants that they picked up Oliver at Dixon’s house after he had requested them to meet him at a nearby church. Oliver got into the van with the chest of meat which the appellants did not know he had just stolen. Namon testified that they never saw a rifle or a microwave oven and disclaimed any knowledge of or participation in the larceny and burglary.

The corroboration of an accomplice must tend to connect the accused with the commission of the crime but need not refer to any statement or fact testified to by the accomplice. “Corroborate means to strengthen, to make stronger; to strengthen, not the proof of any particular fact to which the witness has testified, but to strengthen the probative, criminating force of his testimony.” Malachi v. State, 89 Ala. 134, 140-141, 8 So. 104,106 (1889); Smith v. State, 230 Ala. 413, 416, 161 So. 538 (1935); Brown v. State, 31 Ala.App. 529, 19 So.2d 88 (1944). The corroborative evidence need not be strong, nor sufficient of itself to support a conviction, the criterion being that it legitimately tend to connect the accused with the offense. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). Corroborative evidence need not directly confirm any particular fact nor go to every material fact stated by the accomplice. Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974); Dykes v. State, 30 Ala.App. 129, 1 So.2d 754 (1941). Corroborative evidence need not directly connect the accused with the offense but need only tend to do so. State v. Canada, 107 Ariz. 66, 481 P.2d 859, cert. denied, 404 U.S. 848, 92 S.Ct. 154, 30 L.Ed.2d 87 (1971). See Pearce v. State, 26 Ala.App. 492, 495, 164 So. 114, cert. denied, 231 Ala. 150, 164 So. 118 (1935) (“(B)ut, as we read the cases, the corroboratory evidence, if it meets the test of ‘tending to connect the defendant with the commission of the offense’, need not be, in and of itself alone, that tending in any wise to fasten guilt upon the defendant”); 23 C.J.S. Criminal Law § 812(3) (1961). The sufficiency of corroborating evidence is established if its probative value tends to connect the defendant with the commission of the crime. Lowe v. State, 32 Ala.App. 178, 22 So.2d 618 (1945). The corroboration of an accomplice may be shown by circumstantial evidence. Blevins v. State, 56 Ala.App. 115, 319 So.2d 734, cert. denied, 294 Ala. 753, 319 So.2d 739 (1975); Tidwell v. State, 23 Ala.App. 409, 126 So. 186 (1930).

In certain instances, association with the accomplice tending to show the accused’s proximity, chronologically and geographically, to the alleged offense may furnish sufficient corroboration. Boss v. State, 74 Ala. 532 (1883); DeGraaf v. State, 34 Ala.App. 137, 37 So.2d 130 (1948). Evidence of the defendant’s possession of property stolen at the time of the offense may also be sufficient to corroborate an accomplice’s testimony. Malachi, supra; Green v. State, 342 So.2d 419 (Ala.Cr.App.1977); Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972); Phiffer v. State, 44 Ala.App. 611, 217 So.2d 823 (1969). Evidence of flight or other indications of consciousness of guilt may be considered as corroborative evidence. Freeman v. State, 41 Ala.App. 512, 138 So.2d 56 (1962).

Applying these principles to the facts of this case we find that the testimony of the accomplice was sufficiently corroborated. While the larceny of the meat from the freezer was not a product of the burglary, the two crimes, though separate, were part of a single criminal transaction occurring at the same time and place. Goode v. State, 337 So.2d 1364 (Ala.Cr.App.1977); Bibb v. State, 339 So.2d 1108 (Ala.Cr.App. 1976). The possession of the meat and the attempted flight, to mention but two corroborating factors, logically and reasonably tend to connect the appellants with the charged crime. Under the circumstances of this case the corroborative evidence is inconsistent with the innocence of each appellant and does more than merely raise a suspicion of guilt.

While the mere presence of the stolen meat in the van may be consistent with the innocence of the two appellants under their version of the facts, the flight when the police attempted to stop them is wholly inconsistent. At trial the appellants did not attempt to explain the flight and simply denied that it occurred. Here several facts, even though slight and entitled to little consideration when standing alone, combine to form a tightly woven web of circumstantial evidence tending to connect the appellants with the crime and corroborate the testimony of the accomplice. Those facts are that both appellants and the admitted accomplice were apprehended in a red van containing the fruits of a larceny committed at the same time and outside the house which was burglarized. One appellant was driving the van. There was evidence of an attempt to elude the police and escape. According to a neighbor’s testimony at least three men participated in the burglary and used a red van similar to the one in which the appellants were riding when apprehended. Under these facts the guilt or innocence of the appellants was properly submitted to the jury.

We have searched the record and found no error prejudicial to either appellant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte Jerry Wayne ANDREWS and Namon Earl Andrews.
    78-437.
    Supreme Court of Alabama.
    May 11, 1979.
   EMBRY, Justice.

WRIT DENIED.

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


author: DeCARLO, Judge.

text:
    Kurt WINNINGS v. STATE.
    6 Div. 781.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.

      Henry C. Wiley, Jr., Jasper, for appellant.
    William J. Baxley, Atty. Gen., and L. G. Kendrick, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Kurt M. Winnings was convicted in the circuit court of Walker County, Alabama for violating the Alabama Controlled Substances Act. An application for probation was filed and sentencing was postponed. At a subsequent hearing, probation was denied and the appellant was sentenced to six years imprisonment. Appellant gave notice of appeál after a motion for a new trial was denied by the trial court. The appeal is now before this court for review and appellant has been provided with a free transcript and appointed counsel.

From the transcript at trial the pertinent facts appear as follows:

On June 1, 1977, Agents Bill Ingram and Gerald Courington, both employees of the Alabama Alcohol Beverage Control and Drug Division, located a box in the woods, just off “Whittimore Road” in Walker County, Alabama. According to Agent Ingram, the box “was in the woods there and nothing to conceal it.” Inside the box was a “brick or block type of” substance which appeared to be marijuana. Nothing else was in the box other than the “white like paper” and the newspaper that the block was wrapped in. Ingram added that the box was along “a well worn path.”

After locating the marijuana, Ingram and Courington returned to the Walker County Sheriff’s office, where they contacted Deputies Binkley and Guthrie.

Ingram and Guthrie returned to the box “a little after four,” found it to be in substantially the same condition it had been in when they originally discovered it, and walked back toward Whittimore Road. Upon reaching the road, they saw a 1964, white Dodge automobile, containing three people, come to a stop, and the appellant, Kurt Winnings, get out of the car. At that point, Winnings was about thirty steps from them and approximately twenty-five steps from the box containing the marijuana, according to Ingram.

Ingram testified that Winnings went to the box and opened it.

“I could see him putting something in what appeared to be a bowl-type container and then I could see him holding up a plastic bag in this manner (indicating) looking at it and he turned it as I was looking at it. I couldn’t tell what was in the bag, just that it was a plastic bag.”

Winnings stayed at the box approximately seven minutes and left carrying the bowl.

When the appellant started back toward the road, the vehicle containing the other two people returned, “blowed one time,” and Winnings got in. Ingram stated that the car contained the same two people who were in it when Winnings got out.

According to Ingram, Agent Guthrie then radioed the two deputies to stop the vehicle. Ingram returned to the box and found that the “marijuana block” was not there, and that the white paper surrounding the block was on the ground outside of the box. There were three plastic bags with an amount of green substance in them in the box. Ingram testified that he took possession of the box and stored it in the safe located in the Walker County Sheriff’s office. Later, he turned over the contents of the box to the State toxicologist in Birmingham, Alabama.

Joel Guthrie, an investigator with the Walker County Sheriff’s Department, testified to substantially the same facts outlined in Ingram’s testimony. According to Guthrie, on the day in question the four officers involved in the investigation had driven to the area where the box was located, and Agents Guthrie and Ingram got out of the car and walked to the location of the box. Officers Courington and Binkley drove a short distance down the road and turned onto a side road.

Subsequently, while waiting on the edge of the wooded area Guthrie said he saw a four-door, white Dodge, with a Tennessee license plate on the front, coming down the road. The car stopped at the edge of the road just above where he and Ingram were waiting.

Guthrie saw three people in the car and saw one of the occupants, the appellant, get out. Guthrie testified that he saw the appellant go to the box and remain there for about ten minutes. Appellant opened the lid on the box and began “doing something down inside the box.” After approximately ten minutes, the car returned, blew its horn, and appellant closed the box and made his way back to the' road. Appellant got into the car and the car drove away. Guthrie said that, at that point he radioed Couring-ton and Binkley and told them to “stop the car and check it out.”

Guthrie recalled that, after he placed the radio call to Deputies Courington and Bink-ley, all four officers drove to the appellant’s home where they saw the white Dodge automobile parked. Guthrie also stated that the automobile had a Tennessee license plate on the front and a Louisiana tag on the back. The officers found three people in appellant’s home, one of whom was the appellant. At that point, the appellant was placed under arrest.

Gerald Courington testified that, on June 1, 1977, while conducting an investigation with officers of the Walker County Sheriff’s Department, he and three other officers drove to an area known as “Curry,” where Agents Guthrie and Ingram got out of the car. He and Deputy Binkley drove down the road for a quarter of a mile and “pulled off on an old log road.”

According to Courington, they were in communication with Guthrie and Ingram by radio and they had remained parked at that location for approximately twenty minutes when they were called on the radio. Cour-ington stated that they were asked to stop a white Dodge with a Louisiana tag. He said that he and Binkley returned to the main road, and that, when they first saw the other car, they were about one hundred yards behind it. Courington, who was driving, turned the “blue light” on, and the Dodge stopped about “150 yards on down the road.”

Courington observed three people in the car at the time, and, when he turned his blue light on, he saw someone sitting on the right side of the car next to the driver hold a “white bowl out the window . sideways.”

The driver of the automobile was a Mr. Bennett; a young lady was sitting in the center of the front seat; and the appellant was sitting on the passenger side. According to the officer’s testimony, the bowl was held out of the car window on the appellant’s side of the vehicle.

Courington testified that the three people were searched when the automobile was stopped but that he did not find anything in the car “that we could determine what it was.” He did not place the appellant under arrest at the time because “I didn’t have evidence at that time to place him under arrest.”

According to Courington, they then “went back up to pick up Guthrie and Ingram.” Agents Guthrie and Ingram informed him of what they had seen, and the four officers went to the appellant’s home.

Bunny Cottrell, Chief Deputy Sheriff of Walker County, testified that the key to the box found by the officers had been left for safekeeping in his desk drawer. According to Cottrell, the drawer was normally locked, and Deputy Guthrie also had a key to the drawer. Cottrell was unable to state definitely whether the drawer was locked or unlocked at any particular time because, he explained, on an average day, “forty or fifty” people were in and out of the sheriff’s office. He also testified that the vault in which the box was kept often remained open during the day, and that approximately fifteen people employed by the sheriff’s department knew the combination to the vault.

Arthur Craig Bailey testified that he was an employee of the State Department of Toxicology in criminal investigation, and was assigned to the Birmingham office. He stated that he was familiar with the testing procedures for identifying marijuana, and that he had analyzed substances alleged to be marijuana on “many occasions.” Bailey explained that, in following accepted testing procedures for marijuana, he normally conducted two tests, and testified that he had conducted two tests on the substances turned over to him in the present case.

According to Bailey’s testimony, on July 26, 1977, Officer Ingram, of the Walker County Sheriff’s Department, submitted two plastic bags,containing material alleged to be marijuana to the toxicology office for examination. Bailey stated that the results of this examination were “positive” and that, in his opinion, the material was marijuana.

Bailey testified, over defense counsel’s objection, that on the morning of the trial he had performed another test on some of the same material turned over to him by Ingram. The results of that test were also positive, and it was his opinion that the substance was marijuana.

On further questioning, Bailey stated that the substance turned over to him weighed approximately 364.5 grams or a little over thirteen ounces. It was his judgment that this amount of marijuana could be purchased for about one-hundred and fifty to two-hundred and fifty dollars “on the streets.” He stated that he did not run a test on the material turned over to him to determine the presence of tetrahydrocanna-binol, hereinafter, THC.

During cross-examination, Bailey testified that THC was a “common constituent of marijuana” and, “in the cases I have analyzed for, it has been found, yes, sir.” He also stated that he did not know of any marijuana that did not contain THC or, was not hallucinogenic.

At the conclusion of the State’s case, defense counsel made a motion to exclude the State’s evidence on the grounds that the appellant was charged with possession of marijuana, which encompassed the possession of THC, because of the spelling of the word marijuana. Appellant asserted that THC is the controlled substance whose possession is proscribed by the Alabama Controlled Substances Act.

The motion to exclude was overruled and defense counsel then made a motion for mistrial, based on the fact that the State, in its opening statement, had indicated to the jury that the officers found marijuana in appellant’s possession. This motion was also overruled by the trial court.

Kurt Winnings, the appellant, took the stand as the only defense witness and testified that the box in question was his and that the substance in the box also belonged to him. He acknowledged that on the date in question he did carry a bowl to the site where the box was located and that he did put a small portion of marijuana in it. He denied having any plastic bags or doing anything with plastic bags at the location of the box.

According to appellant, during the trip to his home, about one-half mile away, he admitted emptying the bowl out of the car window. He knew the police were behind him and that he “wasn’t suppose to have it.” He stated that he had acquired the marijuana in exchange for some work, and that it was for his personal use.

I

The appellant insists that the trial court erred in refusing to grant his motion for a mistrial after the State failed to prove the presence of marijuana in his automobile. He points out that the prosecuting attorney had claimed, in his opening statement to the jury, that law enforcement officers found “traces of marijuana in the [appellant’s] car,” and that in failing to show this through the evidence presented, the State had provided grounds for a mistrial.

From the transcript, the portion of the prosecuting statements to which objections and exceptions were taken, reads as follows:

“MR. THORNLEY: We expect the evidence to show that the defendant had taken a bowl out to the marijuana and was sitting on the right hand passenger side of the front seat, that during the time they were pursuing them, we expect the evidence to show that they held the evidence out the window, that when the officers stopped them that there was no mari — that they found only traces of marijuana in the car.
“MR. NICHOLSON: Your Honor, we would like to object at this time and move for a mistrial on the basis that it is my understanding of the evidence in this case will not show that any marijuana was found in the automobile whatsoever and in the event the State fails to prove that, we move for a mistrial.
“THE COURT: Well, we will cross that bridge when we get to it. Be careful — all of you — be careful in stating what you expect the evidence to show. Ladies and gentlemen of the jury, the purpose of the opening statement is to tell you what he expects the evidence to show. If for some reason the evidence doesn’t show that, then you will not consider that evidence at all. But we will cross those bridges when we get to them.”

The scope and latitude of counsel’s opening statement are matters addressed to the trial court’s discretion, and such ruling will not be disturbed on appeal without a showing of abuse. Hooks v. State, 45 Ala. App. 221, 228 So.2d 833.

Whether a mistrial should be granted is also a matter directed to the sound discretion of the presiding judge, and he has been given wide latitude in such matters. He is in the best position to observe the effect of such utterances on the jury and to determine whether or not they are harmful or prejudicial to the rights of the defendant. Ballard v. State, 51 Ala.App. 393, 286 So.2d 68.

For support of his contention of error in the trial court’s ruling, appellant relies on Stennett v. State, Ala.Cr.App., 340 So.2d 67. In that case, the State’s attorney, in his opening statement, in a prosecution for unlawful sale of amobarbital, stated that the case was “about the defendant selling marijuana.” The defendant’s motion for a mistrial was overruled without any clarifying instructions by the trial judge.

There, the ruling by this court stated that, without such clarifying instructions or polling of the jury, such comment was ineradicable and constituted prejudicial error. Stennett v. State, supra, at p. 68.

The facts in Stennett are clearly distinguishable from those presently before the court. In the instant case, the trial judge gave clarifying instructions to the jury, as can be seen from the foregoing paragraphs. In addition, he gave the following curative instruction:

“If for some reason the evidence doesn’t show [what the district attorney stated he expects it to show], then you will not consider that evidence at all.”

The trial judge, the authority best situated to determine its effect, heard the opening statement by the district attorney, and it was his opinion that the remark was not harmful or prejudicial to the rights of the appellant. Under these facts, his judgment in this matter should not be disturbed.

II

The appellant contends that the trial court erred in refusing to grant his motion to exclude the State’s evidence and his motion for a new trial. He maintains that the State failed to prove that the material in question contained the incriminating ingredient, tetrahydrocannabinol, (THC).

From the record we find that an employee of the Alabama Department of Toxicology testified that he had examined the substance turned over to him by Officer Ingram, by conducting an analysis consisting of two tests, and that the results indicated that the substance was marijuana.

This court stated in Radney v. State, 342 So.2d 942:

“Once . . . the toxicologist employing his testing procedures, concluded that the questioned substance was marijuana, no proof of the tetrahydrocannabinol content was necessary. It was a question for the jury to weigh his testimony and find with him if they so desire.”

In the present case, the substance tested by the toxicologist was positively identified as marijuana, and, under the rationale in Radney v. State, supra, no proof of THC content was necessary. Therefore, the trial court’s failure to grant the defense motion to exclude and its later motion for a new trial was not error.

Ill

Finally, appellant maintains that, prior to sentencing, the trial court obtained information on a “social basis and from witnesses not in court” which affected the denial of probation. Appellant complains that he was denied the right to cross examine the witnesses from whom this information was obtained.

However, from the transcript of the probation hearing, it appears that the information referred to as that given on a “social basis” was information obtained by a State probation officer, not by the trial judge. Information used by the probation officer as the basis of the presentence report came from the same individuals alleged to have also talked with the trial judge. All of this information was revealed to the appellant at a probation hearing prior to sentencing and he had an opportunity at that time to cross examine the probation officer.

The United States Supreme Court in Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516, referring to the ruling in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, stated:

“[Ojnce the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination of witnesses in open court but may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person’s life and characteristics.”

Further, in United States v. Jones, 5 Cir., 473 F.2d 293, cert. den. 411 U.S. 984, 93 S.Ct. 2280, 36 L.Ed.2d 961, the United States Court of Appeals for the Fifth Circuit, in affirming a decision from the middle district of Alabama, stated:

“Reliance by the court on undisclosed pre-sentence information is not constitutionally proscribed, Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959);” [Further citations omitted].

The court went on to say that when the errors in the pre-sentence report “surfaced the trial court inquired into them and accepted defendant’s corrections, and only then was sentence imposed.” U. S. v. Jones, supra.

In the present case the information concerning appellant, which was given to the trial judge, was also given to the probation officer, and during the probation hearing counsel for appellant had ample opportunity to cross examine the probation officer on these matters.

A reading of the transcript of evidence which reported the probation hearing did not show that any of the information or assumptions about the appellant were materially incorrect. Further, it was not shown that the court had relied on any undisclosed pre-sentence information. The probation officer testified that he had obtained the information used as the basis of his report from the same sources who had spoken with the trial judge and that the information imparted was substantially the same in both instances. Also a copy of the pre-sen-tence report was given to defense counsel before the hearing.

We distinguish Poole v. State, 44 Ala.App. 169, 204 So.2d 564, from the case at bar because, in Poole, the appellant challenges the use of any pre-sentence report, and the court held that a pre-sentence report is acceptable as long as it is received in open court. In this appeal, the appellant complains that the information, which was the basis of the pre-sentence report, was gathered outside of court. Of course, any pre-sentence report is compiled of information gathered outside the court, but, as long as that report is disclosed in open court and the appellant given an opportunity to cross examine the author of that report, the requirements of Poole are met.

From our reading of the record, we find that there were two instances in which the trial judge had possibly talked with other persons regarding the appellant out of court. Appellant’s wife was called to his office by the judge to answer certain parts of the pre-sentence report when the probation officer stated he had been unable to contact her. The probation officer was present during part of her visit and she was a witness at the probation hearing, and thus available for cross-examination by appellant.

Secondly, appellant’s sister-in-law contacted the probation officer regarding some threats she stated appellant had made to his wife, and claimed she had also called the trial judge regarding the threats. The probation officer, as a witness at the probation hearing, was available for cross-examination by appellant regarding this part of his report. Under these facts, we do not find that the judge made an inquiry regarding the appellant out of court, and no conflict with Poole, supra, is apparent.

In our judgment, the appellant has failed to show any abuse of the discretion of the trial court and, without such showing, the ruling of the trial court will not be disturbed.

We have searched the record and transcript of evidence for error and have found none, therefore, the judgment of conviction by the Circuit Court of Walker County is affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Kurt M. WINNINGS.
    78-433.
    Supreme Court of Alabama.
    May 11, 1979.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    Gary Willis ALEXANDER v. STATE.
    8 Div. 170.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    Rehearing Denied March 27, 1979.
    Gary P. Wilkinson of Poellnitz, Cox, McBurney & Jones, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Debra Jean Williams, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted of robbery and sentenced to twenty-five years’ imprisonment. He argues that his conviction should be reversed for three reasons.

I

“The fact that a defendant has an attorney does not mean, as a per se rule, that law enforcement officials cannot procure a statement of any kind from the defendant without prior notice to, if not the consent of, the attorney.” This rule was fully discussed and applied in Thompson v. State, 347 So.2d 1371 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977). In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 1243, 51 L.Ed.2d 424 (1977), the United States Supreme Court implicitly rejected any such “per se” rule.

Here there is no evidence that the law enforcement officer who questioned the appellant had any knowledge that the appellant was represented by appointed counsel. The evidence is without conflict that although this “could” have been discovered it was not. There is absolutely no evidence or indication that any officer willfully or by subterfuge bypassed the presence of the appellant’s counsel in order to obtain a confession or statement from the appellant.

The State proved beyond question that the appellant’s confession and waiver of counsel were voluntary. Indeed, there is no testimony or evidence to dispute this conclusion. Indulging every reasonable presumption against waiver of the right to counsel, the only conclusion based upon the uncontradicted evidence is that the appellant voluntarily waived that right.

II

The appellant contends that his confession should not have been admitted because Deputy Charles Perkins had no personal recollection of the circumstances involving the voluntariness of the confession.

The voluntariness predicate for the admission of the confession was presented through the testimony of Deputy Perkins. Perkins did testify that the only thing he could remember was “the statement” itself. However Perkins also testified that he could “remember basically what the conversation was” and that his testimony was based on his “recollection” as opposed to his “habit” from testifying in other cases. .

The rule is that “a witness may testify as to facts within his knowledge, although his recollection thereof is vague or imperfect”. 97 C.J.S. Witnesses § 54 (1957).

“The law does not require absolute or positive knowledge or perfect recollection in a witness. His knowledge is sufficient if he had an opportunity of personal observation and did get some impressions even if his recollection is faint.”
* * * * * *
“When it appears that the witness had an opportunity to observe the facts about which he offers to testify, and that his testimony signifies only imperfect observation or imperfect recollection, there is no valid objection to admitting the testimony.”
C. Gamble, McElroy’s Alabama Evidence, § 115.01(1) (3rd ed. 1977).

The fact that Deputy Perkins could not remember the appellant’s manner of dress, what the appellant said word for word (“that’s the reason I wrote the statement”); the weather; and certain other details of the day and time the appellant confessed goes to the weight and credibility to be given his testimony but not to its admissibility. Pond v. State, 55 Ala. 196 (1876); Brister v. State, 26 Ala. 107 (1855); Walker v. Blassingame, 17 Ala. 810 (1850). His testimony reveals that he did in fact have a personal recollection of the circumstances involving the voluntariness of the confession.

Under the evidence, the State overcame the presumption of the involuntariness of the confession. The record justifies the conclusion of voluntariness made by the trial judge.

Ill

The only evidence tending to connect the appellant with the robbery was the testimony of his accomplices and his own confession. The testimony of an accomplice may be corroborated by the voluntary confession of the accused. Snoddy v. State, 75 Ala. 23 (1883); Biddle v. State, 20 Ala.App. 49, 100 So. 572 (1924); Williams v. State, 52 Ala.App. 406, 293 So.2d 324 (1974). Therefore the appellant was not convicted upon the uncorroborated testimony of an accomplice.

We have searched the record and found no error prejudicial to the appellant. He received a fair trial and the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.

      . “The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not.”

      . “Q. But is it your testimony then though that the only thing that you can remember is the statement itself?
      “A. Yes, sir, the statement itself.”


text:
    Ex parte Gary Willis ALEXANDER.
    78-450.
    Supreme Court of Alabama.
    May 11, 1979.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    William Earl FLINT v. STATE.
    6 Div. 246.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied May 1, 1979.

      Larry Waites, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., Birmingham, for the State.
   BOWEN, Judge.

The appellant, an expert in the Korean martial art of Tae Kwon Do, killed Geraldine Feagin by striking her with his hand. The single blow lacerated Ms. Feagin’s liver causing shock, hemorrhage and death. A jury convicted the appellant of murder in the first degree and set punishment at life imprisonment.

I

Initially the appellant contends that the prosecutor made a “grossly abusive prejudicial comment” in closing argument containing “a racial slur directed toward the appellant, a direct reference to police brutality, and a smear of the process of waiver of constitutional right”.

“ASSISTANT DISTRICT ATTORNEY: We know that everything he has said time and time again to you, to the Police and everything is a lie continually right down the line. And he got on that witness stand and he lied to you and he told you that they shoved that confession to him and he signed it. Shoved it in front of me and I signed it, that’s what he said. You are going to have it back there. And page after page after page he wrote in changes. You’ve got this, this is in evidence, and you are going to have it back there. And page after page after page he wrote in something that they shoved in front of him and said sign it. And brutal Mr. Knight standing over him with a club saying boy, sign it, or I will kill you.”

The trial court did not rule on the objection made by defense counsel but instructed the jury in the following language:

“Members of the jury, you heard what was said. And you may consider what is in the evidence and disregard that which is not in the evidence.”

At the beginning of trial the judge instructed the jury that “(w)hat the attorneys say is not evidence in this case”. See Austin v. State, 354 So.2d 40 (Ala.Cr.App.), cert. denied, 354 So.2d 44 (Ala.1977).

In attempting to explain a statement in his written confession which conflicted with his trial testimony, the appellant stated he “possibly more than likely overlooked it from having a statement pushed at (him) and signed”. Immediately afterward the appellant stated that he would not have the jury believe that he “only just signed this statement when it was pushed at (him) and that (he) didn’t read it”.

After his arrest, the appellant initially denied any involvement in Feagin’s murder. However, shortly thereafter he retracted a part of that statement and gave a second written statement in which he admitted the killing but maintained that it was an accident.

There is no evidence to show that either statement was coerced and when both statements were offered in evidence, after the State had laid a predicate for voluntariness, defense counsel specifically stated “no objection”.

Clearly the prosecutor’s" argument of “brutal Mr. Knight standing over him with a club saying boy, sign it, or I will kill you” is improper because it is not supported by any evidence.

To require a reversal on the ground that the prosecutor has made a statement unsupported by the evidence, the objectionable statement must be made (1) as of fact, (2) the fact must be unsupported by any evidence, (3) must be pertinent to the issues, and (4) its natural tendency must be to influence the finding of the jury. Smith v. State, 261 Ala. 270, 73 So.2d 916 (1954); Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337 (1975).

Here the prosecutor’s statement concerning “brutal Mr. Knight” was entirely extraneous to any issue actually involved in the appellant’s trial. Moreover, it did not have a natural tendency to influence the finding of the jury. “Although being a statement of fact unsupported by the evidence, not being pertinent to the issue of defendant’s guilt and not having a natural tendency to influence the finding of the jury, it fails to meet the requirements of the rule for reversal of the cause.” Smith, 261 Ala. at 272—273, 73 So.2d 916 at 918. It is not every improper remark to which objection is not sustained which will require a reversal. Simpson, 354 So.2d 317, 322, (Ala.Cr.App.), cert. denied, 354 So.2d 324 (Ala.1978); Parker v. State, 337 So.2d 1378, 1381 (Ala.Cr. App.1976). We do not regard the remarks in question as having a natural tendency to influence the jury adversely to the appellant or to have denied him a fair trial under the facts and issues of this case. The credibility of a witness is a legitimate subject of criticism and discussion. Smith v. State, 344 So.2d 1239, 1242 (Ala.Cr.App.), cert. denied, 344 So.2d 1243 (1977).

While the instructions of the trial judge could have been more emphatic, under the circumstances, they were sufficient to remedy any prejudice in the prosecutor’s remarks.

II

The trial judge sustained the State’s objections to the appellant’s answers that (1) he accidentally killed the deceased, (2) that he took her clothes because he panicked and “didn’t know what else to do”, and (3) that the appellant told the truth in his written statement given to the police.

The rule is that a witness may testify on direct examination to his intention, motive, or other physically unexpressed mental state, provided that the testimony is material to the issues in the case. Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974).

Responses (1) and (2) were made by the appellant to questions requiring simply a yes or no answer. The State specifically objected on this ground and the court sustained. The appellant’s answers were only partly responsive and constituted an unsolicited attempt to explain his actions. Therefore the objection was properly sustained, the matter being within the sound discretion of the trial judge. Lowman v. State, 161 Ala. 47, 50 So. 43 (1909). Furthermore, evidence that the killing was accidental and that the appellant panicked afterward was properly before the jury from other testimony given by the appellant and contained in his confession.

The question, “Did you tell him the truth?”, was improper as calling for a conclusion within the province of the jury. The truth or falsity of a voluntary confession is a question for the jury. Huffman v. State, 130 Ala. 89, 92, 30 So. 394 (1901)." A question of whether or not a witness has told the truth calls for a conclusion and is invasive of the jury’s province.” Elliott v. State, 48 Ala.App. 515, 517, 266 So.2d 318, 320, cert. denied, 289 Ala. 742, 266 So.2d 321 (1972).

Ill

We have reviewed the evidence and find that it is sufficient to support the conviction for murder in the first degree.

Here the body of a twenty-three year old nude female was discovered in the bathtub of a room at a motel. The room was not registered to anyone. The victim’s death was caused by some blunt force trauma to her abdomen. The time of death was between 12:30 and 6:30 on the afternoon of October 23, 1975. The appellant was seen walking with the deceased in the direction of the motel that afternoon. That very night, while demonstrating Karate to some friends, the appellant admitted killing someone with his hands but stated that he “couldn’t tell . . . who it was”. After the police came to the house of Mary June Carter, the appellant told her, “Bitch, if you call the police on me, I done kilt one, now I will kill you”.

The appellant was a martial arts expert. After his arrest he gave two conflicting statements. Initially the appellant denied any direct knowledge of the death of the deceased. However, in a second statement the appellant confessed to the killing but claimed that it was accidental. In this second statement the appellant admitted placing the victim in the bathtub and attempting to wash fingerprints off her skin and taking her clothes and putting them in a trash dumpster. There was some evidence that the appellant attempted to revive Ms. Feagin using artificial respiration. In its case on rebuttal the State introduced evidence of flight by the appellant.

Under these circumstances the question of whether the death was criminal or the result of a mere accident was for the jury’s determination. Harrell v. State, 160 Ala. 91, 49 So. 805 (1909); Little v. State, 340 So.2d 88 (Ala.Cr.App.1976). The State does not have the burden of proving the lack of an excuse for the commission of a homicide. Henderson v. State, 11 Ala.App. 37, 65 So. 721 (1914). Every killing is unlawful unless expressly excused or justified by law; a homicide being shown, the defendant must prove circumstances in mitigation, excuse or justification unless shown by the evidence produced against him. Champion v. State, 35 Ala.App. 7, 44 So.2d 616, cert. denied, 253 Ala. 436, 44 So.2d 622 (1950). Malice may be inferred from the character of the assault and the facts and circumstances surrounding the offense, Kirkland v. State, 21 Ala.App. 348, 108 So. 262 (1926), including the nature and amount of force used in inflicting the fatal injury. Diamond v. State, 219 Ala. 674, 676, 123 So. 55 (1929); Clarke v. State, 117 Ala. 1, 23 So. 671 (1898).

The evidence that the killing was accidental was far from the quality and quantity produced in Easley v. State, 17 Ala.App. 667, 88 So. 194 (1921). The jury is not bound to accept the testimony of a defendant as true, Kemp v. State, 278 Ala. 637, 639, 179 So.2d 762 (1965), and, thought the defendant’s testimony with regard to the accidental nature of the killing was without dispute, its credibility was for the jury who could, in their discretion, accept or reject it. Cook v. State, 46 Ala.App. 663, 665, 248 So.2d 158 (1971).

We have searched the record and found no reversible error. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Joseph James TURNER v. STATE.
    6 Div. 278.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.
    Robert W. Gwin, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant-defendant was indicted for murder in the first degree of Shequita Denise Lamar by allegedly “beating her with his fist, belt or by means otherwise unknown to the Grand Jury.” A jury found him guilty of murder in the second degree and fixed his punishment at imprisonment for thirty years. He was sentenced accordingly.

The alleged victim was a two-year-old child of Diane Mims, with whom defendant had been living at an apartment in West End, Birmingham, for about a month at the time of the death of the alleged victim. Diane Mims had two other children, Anthony Wayne Mims and Tyrone Collier. Both Shequita and Anthony were living with her and defendant from the time that Diane and defendant started living together, but during that time her oldest child, Tyrone, was living with Diane’s mother.

About 6:00 A. M. on December 26, 1975, defendant and Diane brought Shequita to the emergency room of the Children’s Hospital, where she was examined and sent to the University Hospital, where she expired on December 29 at 11:15 A. M. At the time she was brought to the Children’s Hospital she had numerous abrasions and contusions on her body, including her head, from which she never recovered and which, according to medical testimony, caused her death. Both defendant and Diane were charged with the murder of Shequita. Diane was one of the main witnesses against defendant.

Before Diane commenced her testimony as to anything that could incriminate her, her employed counsel was notified to be present in order for him to counsel the witness as to any potential violations of her constitutional right not to incriminate herself; her counsel remained in the courtroom for that purpose during all of her testimony. She testified that defendant "whooped” Shequita severely for wetting her pants about 7:00 or 8:00 P. M. December 25. The child was put to bed and some time thereafter it was observed that she was unconscious. Not being able to revive her, they took her to the Children’s Hospital.

At the conclusion of the cross-examination by defendant’s counsel of the mother of the alleged victim, the record shows:

“MR. GWIN: That’s all I have at this time.
“THE COURT: Anything else?
“MR. GWIN: I reserve the right to recall her.”

At the conclusion of the State’s redirect examination of the witness, the record shows:

“MR. BLOCKER: That’s all I have got.
“THE COURT: All right. Anything else?
“MR. GWIN: That’s all I have right now. I would like to reserve the right to recall her later.
“THE COURT: All right. Thank you, Mrs. Mims, you may step out.”

The witness succeeding Diane as a witness was an officer who testified that after the arrest of Diane and defendant and while they were together in the custody of officers, and after the two had been fully advised of their rights to counsel at no expense to them and warned and advised as to their rights against self-incrimination, Diane turned and looked at appellant and said, “You did it. You beat my baby.” And then appellant looked at Diane and said, “Shut up, because you done it, too.” There is no contention that the “baby” to which reference was made was not Shequi-ta, even though Anthony was younger than Shequita.

After the officer following Diane as a witness had testified, counsel for defendant said, “I want to recall Mrs. Mims, if I can,” and the court said in reply, “All right. But we will have to call Mr. Durward [her counsel], if you do.” Thereupon a recess was declared and a lengthy colloquy took place among the trial judge, State’s counsel and defendant’s counsel, in which defendant’s counsel stated that he proposed to question Diane “with regard to statements she made to the Birmingham Police Department after being arrested concerning either her guilt or innocence or this Defendant’s guilt or innocence, meaning Joe Turner, on the charge of murder of Shequita Lamar and the charge of child abuse on Anthony Mims.” He further said that the particular statement by her that he wished to show by her testimony upon recall “would have been that neither Joe Turner” nor the witness was “responsible for any injuries to Anthony Mims, which would in effect exonerate, that testimony by her would exonerate Joe Turner from the child abuse charge.” After a hearing by the court of the respective positions of the parties, the court let it be known that it would sustain objections to questions that defendant’s counsel proposed to ask Diane as to what she had said relative to the guilt or innocence of defendant of the charge of child abuse of Anthony Mims. Appellant urges the stated action of the trial court as his only basis for a reversal.

Appellant, with commendable frankness, asserts that, although he has no direct authority or precedent for his only claim for a reversal, his claim is correct by analogy to the principle that permits some exceptions to the rule of exclusion of testimony in a criminal case of other crimes committed by defendant. He concludes that the same rationale that permits such exceptions to the rule of exclusion of testimony of other crimes should enable defendant to show that he is innocent of other crimes with which the evidence shows he is charged. Whether so or not, the court’s ruling was not that he should not be allowed to show that he was not guilty of child abuse of Anthony. The court’s ruling was that he was not entitled to show a statement made by Diane tending to exonerate defendant of child abuse of Anthony.

Appellant does not, and did not, contend that the evidence sought from Diane would have been admissible as substantive evidence but that it would have been admissible as impeaching testimony, that is, testimony impeaching her as a witness. We find nothing in her lengthy testimony, tending in any way to show that defendant had abused Anthony. If she had been allowed to be recalled and had testified that she, in making a statement to officers to the effect that defendant had been the cause of She-quita’s death, said that defendant had not abuse Anthony, such evidence would not have been in disparagement of her as a witness as to any of her testimony. At no time during her testimony did she state any conversation between her and another as to defendant’s guilt or innocence of the crime charged in the instant case.

There was testimony by another witness, as quoted above, as to what Diane had said in' the presence of defendant as to his battery of Shequita, in which there was no reference to any abuse of Anthony. What such witness would have said that Diane said on that question, we do not know. If he would have said that Diane said that defendant had not abused Anthony, that would have been all that defendant could have desired in connection with this particular question. On the other hand, if such witness had testified that Diane did not say that defendant had not abused Anthony, he would have been the one, not Diane, who would have been subject to impeachment as a witness by the proposed testimony of Diane. The trial court was not in error in the respect urged by appellant.

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Joseph James TURNER.
    78-495.
    Supreme Court of Alabama.
    May 11, 1979.
   ALMON, Justice.

WRIT DENIED.

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


text:
    David Wayne VAUGHN v. STATE.
    1 Div. 21.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Thomas E. Harrison, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Paul E. Johnson, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Mobile County returned an indictment against the appellant, David Wayne Vaughn, charging him with murder in the first degree. Appellant entered a plea of not guilty. A jury found the appellant guilty of murder in the second degree and fixed his punishment at life imprisonment. The trial court duly sentenced the appellant to life imprisonment in the penitentiary, and the appellant appeals to this court.

The appellant was at all proceedings in the trial court represented by retained counsel and is represented in this court by court-appointed counsel. This appeal was submitted to this court on briefs.

The appellant in his brief contends that the trial court erred when it denied his challenge for cause of six prospective jurors who were over sixty-five years of age. The appellee contends in its brief that § 12-16-150(8), Code of Ala.1975, was repealed by Act No. 594, enacted by the legislature of Alabama effective April 27,1978. The trial of the appellant was held on December 4, 1978.

A jury venire was brought in, sworn by the clerk, and qualified. During the qualification, the following occurred:

“THE COURT: Anything further from the Defendant?
“MR. HOLLOWAY: Judge, if anyone is over sixty-five.
“THE COURT: All right. Is there any juror who is over the age of sixty-five years?
“(Jurors raise hands.)
“THE COURT: All right. Let’s start over here. Would you stand and give me your name and panel number?
“JUROR: Eugene Dusville.
“THE COURT: And your panel number, please sir.
“JUROR: One.
“THE COURT: Thank you, sir.
“JUROR: J. C. Armstrong, Panel One.
“JUROR: John J. Ambrose, Panel One.
“JUROR: Arthur McClain, Panel Four.
“THE COURT: Thank you, sir.
“JUROR: Mary Tidwell, Panel Six. “THE COURT: Thank you.
“JUROR: Edward E. Johnson, Panel Four.
“THE COURT: All right. Is that all, Mr. Holloway?
“MR. HOLLOWAY: Judge, we would challenge for cause.
“THE COURT: Deny your challenge.
“MR. HOLLOWAY: Could we have that on the record?
“THE COURT: Yes, it’s on the record.
“THE COURT: (To Mr. Holloway.) Anything further?
“MR. HOLLOWAY: No, sir.”

The preamble, Section 1 and Section 2, of Act No. 594, Acts of Alabama 1978, Vol. 1, p. 712, read as follows:

“To provide for the qualifications and selection of jurors; to provide for a master list, master jury box and trial court box; to provide for qualification forms and the questionnaires to be used thereon; and to repeal Sections 12-16-2, 12-16-4, 12-16-5, 12-16-39, 12-16-41, 12-16-42, and 12-16-43 of the Code of Alabama 1975.
“Section 1. Declaration of Policy. It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court and that all qualified citizens have the opportunity in accordance with this act to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.
“Section 2. Prohibition of Discrimination. A citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin, or economic status.” (Emphasis supplied.)

Section 11 of Act No. 594 specifically repealed the following sections of the Code of Ala.1975: 12-16-2, 12-16-4, 12-16-5, 12-16-39, 12-16-41, 12-16-42 and 12-16-43. Sections 12-16-2,12-16-4 and 12-16-5 of the Code of Ala.1975 are in Chapter 16, Jurors, Article 1, General Provisions, and deal with persons exempt from jury duty, excusing unfit persons from jury service, and excusing from jury service of exempt or disqualified persons. Sections 12-16-39, 12-16-41, 12-16-42 and 12-16-43 of the Code of Ala.1975 are in Chapter 16, Jurors, Article 2, County Jury Commission, and deal with duties of the clerk of the jury commission, the duty of the jury commission as to preparation of jury rolls and jury boxes, the preparation, maintenance of jury rolls, cards and box generally, and the qualifications of persons to be placed on the jury roll and in the jury box generally, and service on jurors of persons over the age of sixty-five. Section 12 of Act No. 594 repealed all laws, and parts of laws, in conflict with its provisions to the extent of such conflict. Section 12-16-43 of the Code of Ala.1975 provides in part the following:

“. . .No person over the age of 65 years shall be required to serve on a jury or remain on the panel of jurors unless willing to do so.”

The foregoing quote was not contained in any part of Act No. 594, and no reference to age sixty-five is mentioned in Act No. 594.

Section 6(a) (l)-(4) of Act No. 594 set out qualifications for prospective jurors. With reference to age of a prospective juror, Section 6(a) and (1) provide that the prospective juror must be a person who is a citizen of the United States and a resident of the county for more than twelve months and over the age of nineteen years. Section 8 of Act No. 594 provides that no qualified prospective juror is exempt from jury service.

Chapter 16, Juries, Articles 3 through 9 of the Code of Ala.1975, were not referred to by Act No. 594. Article 4 of Chapter 16 provides for drawing, summoning, impaneling, etc., of jurors in criminal cases generally. Article 6 provides for challenges to jurors, and § 12-16-150(8) provides that it is good grounds for challenge of a juror by either party that he is under nineteen or over sixty-five years of age. Section 12-16-150(8) was not expressly repealed by Act No. 594, and it was reversible error for the trial court to deny a challenge of a juror by the appellant on the ground that the juror was over sixty-five years of age unless § 12-16-150(8) was repealed by implication because it was in conflict with some provision of Act No. 594. Gardner v. Baker, 40 Ala.App. 374, 113 So.2d 695; Wells v. State, Ala.Cr.App., 331 So.2d 802, cert. denied, Ala., 331 So.2d 803; Slay v. State, Ala.Cr. App., 338 So.2d 3.

The question presented by this record for our decision is whether that part of § 12-16 — 150(8), Code of Ala.1975, conferring the right of the appellant to challenge a juror over sixty-five years of age for cause was repealed by Act No. 594. The rule is well settled in this state that the repeal of a statute by implication is not favored by law. The courts should interpret legislative acts so as to harmonize them. Repeal of statute is a legislative function and not a judicial function. A court should not declare a prior act to be repealed by a subsequent act in the absence of an express word of repeal or unless the provisions of the two statutes are irreconcilably inconsistent. Act No. 594 says nothing about a person being over sixty-five years of age, it says nothing about causes for challenge of jurors or selection, or striking jurors in a criminal case. Section 2 of Act No. 594 prohibits discrimination by providing that a citizen shall not be excluded from jury service in this state on account of race, color, religion, sex, national origin or economic status. No mention of age is contained in Section 2.

We have searched Act No. 594 word by word, line by line, and section by section, from its beginning to its end, and nowhere in any part do we find a provision in conflict with any part of § 12-16-150(8), Code of Ala.1975. There is, and cannot be, any conflict between the provisions of § 12-16-150(8), Code of Ala.1975, and any section of Act No. 594. Act No. 594 may be found in 1978 pocket parts of §§ 12-16-55 through 63, Code of Ala.1975. Section 12 of Act No. 594 repealed only all parts of law in conflict with the provisions of the Act and only to the extent of the conflict. Act No. 594, Acts of Alabama 1978, Vol. 1, p. 712; Roberts v. Pippen, 75 Ala. 103; May v. Head, 210 Ala. 112, 96 So. 869; Williams v. State, 28 Ala.App. 73, 179 So. 915, cert. denied, 235 Ala. 520, 179 So. 920; Abernathy v. State, 78 Ala. 411; Jansen v. State, 273 Ala. 166, 137 So.2d 47; Johnston v. State, 54 Ala. App. 100, 304 So.2d 918.

We hold that the appellant had the right to challenge for cause all jurors on the venire who were over sixty-five years of age; that the trial court erred when it overruled appellant’s challenge.

We have searched the record for any other errors prejudicial to the appellant and have found none. For the error pointed out, the judgment of the trial court should be and is hereby reversed, and this cause is remanded for a new trial.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a Retired Circuit Judge, serving as a judge of this court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328, Act No. 1051, 1973); his opinion is hereby adopted as that of the court.

The judgment below is hereby

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ronnie WASHINGTON v. STATE.
    2 Div. 240.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Vreeland G. Johnson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

According to the parties, the only issue on appeal is whether appellant-defendant was denied his right to a speedy trial. Appellant insists that he was and that his conviction of the crime of buying, receiving, or concealing a stolen 1972 Monte Carlo automobile, knowing it to have been stolen, should be reversed and defendant discharged.

The record shows that the conduct of defendant forming the basis for the indictment occurred in April 1976. The record does not show that he was charged with the crime before September 1977. On May 5, 1976, he was sentenced in the Circuit Court of Shelby County, Alabama, on an unrelated charge of grand larceny and was serving such sentence in the Shelby County jail in September 1977, when he was visited by members of Dallas County Circuit District Attorney’s office and questioned concerning his involvement with the 1972 Monte Carlo. According to the testimony of one of the representatives of the office of District Attorney of Dallas Circuit Court, defendant gave them the information as to the names of persons who might in some way have been involved in transactions in April 1976 relative to the Monte Carlo automobile; after such information was considered in connection with further investigation, evidence was presented to the grand jury of Dallas County that resulted in the indictment of defendant, in January 1978. A writ for his arrest was served upon him while still in the Shelby County jail in early February 1978.

In May or June 1978, defendant made known to the jail administrator of the Shelby County jail that he desired arrangements to be made for him to be sentenced in the case against him in Dallas County if the sentence could be concurrent with the sentence he was serving in Shelby County or if he could be released on bond after he had completed the sentence in Shelby County. This information was communicated to the office of the District Attorney in Dallas County, but no action was taken thereon.

Defendant was arraigned on the case now before us on September 15, 1978, and his case was set for trial on November 6, 1978. At the time of his arraignment he filed and presented a “Notice of motion to dismiss indictment defendant deprived of right to speedy trial.” In said document, it was stated that the ground for the motion was “that said indictment was founded in violation of the Sixth Amendment of the United States Constitution because of the fact that Defendant was deprived of a ‘speedy and public trial,’ . . .” Also filed was an “affidavit in support of motion to dismiss indictment,” verified by defendant, in part as follows:

“. . .1 make this affidavit in support of my application to dismiss the indictment herein on the ground that the indictment was obtained in violation of my constitutional right to a speedy and public trial, pursuant to the Sixth Amendment of the United States Constitution.
“. . .1 respectfully submit that this inordinate delay between my arrest and indictment has been such as to unduly prejudice me to my right to a speedy and public trial as guaranteed by the Sixth Amendment of the United States Constitution.”

The motion to dismiss, upon which testimony was taken, was heard on October 27, 1978, and was overruled. For some reason not clearly shown by the record, the case was not tried on November 6, but the trial commenced on December 4, 1978.

Although appellant argues that the interval between the time of the commission of the alleged crime and the time of trial was so great that under all the circumstances it constituted a denial to defendant of a speedy trial, it is to be observed that in the motion presented to the trial court, defendant was exclusively relying upon the interval between the time of the commission of the alleged crime and the return of the indictment. As to this, there is no evidence of any unreasonable delay that is properly chargeable to the prosecution. During that time defendant was in jail on an unrelated matter, and it appears that the authorities in charge of the prosecution of the matter of the particular automobile involved did not know where defendant was until September 1977 and, even then, made no charge against him but continued an investigation with reference to the automobile in the light of information received from him while he was in jail in Shelby County.

As to any delay after the return of an indictment, there was no complaint by defendant, as hereinabove noted, and we see little basis for any complaint at the present time. As indicated above, defendant desired to enter into a “plea bargaining” arrangement with Dallas County authorities, but it does not appear that he wanted to be brought to trial before serving his sentence in Shelby County. This vividly distinguishes this case from Prince v. Alabama, 507 F.2d 693 (5 Cir. 1975), wherein defendant had written three letters to the prosecution authorities, one in 1963, another in 1965 and the third in November 1966, requesting that Alabama withdraw its detainer that it had filed against him in California or dismiss its charges against him so that he could proceed to receive the most favorable treatment and training programs offered by the California Department of Corrections. Moreover, on July 9, 1968, he sent the district attorney in Birmingham, Alabama, a request for a trial upon the charges pending against him. Prince was tried in March of 1972.

In light of the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101, 117 (1972), we find that there is no substantial basis for any charge that defendant’s constitutional right to a speedy trial was violated and further that no injury to him occurred by reason of his not being tried prior to the date of his trial.

There was ample evidence to support the verdict. We have found no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.