author: MARVIN, Judge. HALL, Judge. MARVIN, Judge

text:
    STATE of Louisiana v. Jerry D. CAMP.

    Nos. 12655 to 12666.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 16, 1975.
    On Rehearing Feb. 9, 1976.
    Marvin, J., dissented and filed an opinion.

      John A. Richardson, Dist. Atty. by Dan J. Grady, III, Asst. Dist. Atty., Shreveport, for plaintiff-appellant.
    Booth, Lockard, Jack, Pleasant & LeSage by Curtis W. Cary, Shreveport, for defendant-appellee, Jerry D. Camp.
    Alfred E. Soderman, Jr., and T. Lynn Geneux, Shreveport, for defendants-appel-lees, Ralph J. Foster, Latson, Phills, Jackson, Burton, W. C. Garner, Jr., Tucker, L. H. Foster, Harris, Johnson & Tarno.
    Before PRICE, HALL and MARVIN, JJ-

       Consolidated with: State of Louisiana v. Foster, 12656; Latson, 12657; Phills, 12658; Jackson, 12659 ; Burton, 12660; Garner, 12661; Tucker, 12662; Foster, 12663; Harris, 12664; Johnson, 12665; Tarno, 12666.

   MARVIN, Judge.

In each of these cases, consolidated for the purposes of an appeal by the State, the State filed a rule against the respective defendant alleging him to be a habitual offender within the meaning of R.S. 32:1472 of the Motor Vehicle Habitual Offender Law. Attached to each petition is a certified copy of the record of the driving convictions of each defendant as required by Section 1473 of the law. It was also stipulated that in each case the defendant’s drivers license had been previously revoked or suspended under provisions of Title 32 other than the Habitual Offender Law.

In each case, with the exception of Number 12,655, where only a Motion to Dismiss in the nature of an exception of res judicata was filed, the defendants filed the exception of prematurity, the preemp-tory exception of no right or no cause of action, and the exception of res judicata. The trial court sustained the exceptions of res judicata and no right, no cause of action from which ruling the State appeals.

The defendants generally contended be-„ low and the lower court sustained exceptions in each case on the grounds that (1) the State’s petition did not allege or show the presence or intelligent waiver of counsel in the criminal convictions on which the State relies to invoke the Habitual Offender Law, and (2) that the defendants’ driving privileges had already been revoked in the prior criminal proceedings, thereby rendering an action under the Habitual Offender Law premature and as having the status of a thing adjudged since the Habitual Offender action is based on the same cause of action and the same demand between the same parties as in the prior criminal action against the defendant resulting in revocation or suspension of his driving privileges.

In State v. Love, 312 So.2d 675 (La.App.2d Cir.), rehearing denied June 3, 1975, application for writs denied, September 8, 1975, La., 317 So.2d 627, we held that the State in a civil proceeding authorized by the Motor Vehicle Habitual Offender Law, may have a person declared a habitual offender on the basis of prior un-counseled convictions, even though the declaration results in the loss of his driving privileges and possibly will lead to additional proceedings of a criminal nature resulting in imprisonment.

In Love, we said:

“Insofar as the instant civil suit is concerned we find the decisions of the United States Court of Appeal, Fourth Circuit, persuasive ... In our opinion, the constitutional safeguards . do not completely invalidate an uncounseled misdemeanor conviction. Only the loss of liberty or imprisonment resulting from the conviction is invalid; consequential civil disabilities are not . To extend Argersinger [Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530] to automobile driver license revocation proceedings would frustrate the legislatively determined state policy of removing habitually hazardous drivers from the highways. The constitutional foundations for Ar-gersinger, the protection of fair trial and due process, do not require this result.”

For the reasons expressed in Love, the exceptions of no cause or right of action are without merit and should have been overruled.

The fact that the original suspension and the instant action seeking adjudication of each defendant as a habitual offender is based somewhat on the same offense, does not automatically preclude this action under the Habitual Offender Law. We are dealing with the Louisiana law of res judicata as found in Civil Code Article 2286, and any doubt in regard to its application must be resolved against the party seeking its application. Makar v. Ivy, 291 So.2d 861 (La.App. 3rd Cir., 1974).

“Res judicata applies only when the thing demanded is the same, the demand is founded on the same cause of action and the demand is between the same parties in the same capacities.” Barnett v. Develle, 289 So.2d 129, 141 (La., 1974).

In Love, we recognized that the legislatively determined policy was to remove habitually hazardous drivers from the highways of the state. Under the Habitual Offender Law, the defendant is prohibited from driving for a period of up. to five years and if he does violate the prohibition, the penalties therefor are enhanced and are much greater than the penalties merely for driving under revocation or without a license as provided in other sections of R.S. Title 32. See particularly Sections 1480, 1481. The thing demanded by the State of Louisiana is not the same and the demand is not founded on the same cause of action, although the demand could be broadly said to be between the same parties. It should be noted however, in the first instance, the suspension or revocation may be done by the Department of Public Safety extra-judicially, while in this instance the State as parens patriae is seeking a judicial determination that the defendant is a habitual offender which may expose him to enhanced penalties, in an effort to remove the habitual offender from the highways of the state. The exception of res judicata should not have been sustained.

The same reasoning may be applied to the exception of prematurity, on which there was no ruling below. Moreover, if the one year suspension under a D.W.I. or similar statute may be said to serve as a bar to a suspension of five years under the Habitual Offender Law until the one year suspension runs, the result could be a total suspension for six years if the state is required to wait until the one year suspension had run. We can reasonably conclude that none of these defendants seek this result.

The statute (Act 697 of 1972) is clear in its stated policy and further provides in Section Four thereof that it should not be construed to preclude the exercise of regulatory powers of any department of the State having authority to regulate licensing of persons to operate motor vehicles. We find that the statute is not ambiguous and that the Habitual Offender Law may be invoked notwithstanding that a defendant’s driving privileges may have been previously suspended under some other provision of the law.

NO. 12,655

STATE V. JERRY D. CAMP

MOTION TO DISMISS APPEAL

This case was filed some ten days before the other cases with which it was consolidated for the purposes of appeal. Judgment on the motion to dismiss in the Camp case was rendered September 6, 1974, and signed on September 10, 1974. In the remaining cases, the judgment was signed on February 13, 1975, after a hearing in these cases on November 19, 1974.

In Camp, the minutes of the lower court show the following:

“Sept. 10, 1974 Judgment showing the rule to show cause in this case dismissed at Plaintiff’s cost was this day read, signed and filed. (See decree) (Judge Fant)
“Dec. 4, 1974 The District Attorney gave oral notice of his intention to apply to the Second Circuit Court of Appeals for writs. The Court allowed the District Attorney ten days in which to apply for writs. (Judge Fant)
“Dec. 20, 1974 The Court ordered the Minutes of December 4, 1974 be amended to read, ‘the District Attorney made an oral motion for an appeal to the Second Circuit Court of Appeals, said motion was granted by the Court’. (Judge Clark)
“Feb. 13, 1975 The defendant, not present, but represented by Alfred E. Soderman, Jr., attorney at law, Motion for Appeal and for Consolidation for Appeal was filed this day by the District Attorney. Order that an appeal be granted and that Cases No. 97,600, 97,682, 98,146, 98,148, 98,149, 98,150, ■98,151, 98,152, 98,153, 98,154, 98,160 and 98,422 be consolidated for appeal and that the return date for this appeal be fixed at April 2, 1975 was filed this day and signed by Judge William J. Fleni-ken. (Judge Alexander)”

Appeals from a judgment under the Habitual Offender Law are to be subject to the rules as appeals in civil actions. R. S. 32:1478.

Defendant’s Motion to Dismiss the appeal in this case is based on the contention that the delays for appealing did not extend to December 20, 1974, the date of the amendment of the December 4, 1974, minutes. The delays for appealing had not expired on December 4, 1974, and the amended minutes of that date do show that an appeal was sought by the State and was granted on that day by the lower Court. Article 2125, La.C.C.P. states that the return day of the appeal shall be fixed by the trial court at not more than 60 days from the date the appeal was granted. While this apparent oversight on the part of the trial court should not be lightly condoned, the duty of timely fixing the return date rests with the court and not the appellant and the failure of the court should not prejudice the appellant. See Hannagriff v. King, 11 La.App. 467, 123 So. 391, 1st Cir., 1929. Appellee’s Motion to Dismiss the appeal is denied.

In each of these consolidated cases, the ruling of the lower court sustaining exceptions, whether one or more, is reversed and each case is remanded for further proceedings consistent with the views expressed herein.

Before PRICE, HALL, MARVIN and SMITH, JJ.

ON REHEARING

HALL, Judge.

A rehearing was granted in this case brought under the Motor Vehicle Habitual Offender Law (LSA-R.S. 32:1472, et seq.) to reconsider our original decision denying appellee’s motion to dismiss the appeal.

The motion to dismiss is based on contentions that the appeal was not taken prior to the expiration of the ninety day delay for perfecting an appeal provided in LSA-C.C.P. Art. 2087, that no return date was fixed at the time the appeal was granted as required by LSA-C.C.P. Art. 2121, and that the return date as subsequently fixed was more than sixty days as required by LSA-C.C.P. Art. 2125.

The minutes of the district court reflect the following sequence of events:

“Sep. 6, 1974 The defendant, being present with his counsel, John R. Pleasant, Motion to Dismiss was filed this day by defendant. Said motion was argued, submitted and granted. The District Attorney gave notice in open court of his intention of applying to the Supreme Court of Louisiana for writs. (Judge Fant)
“Sep. 10, 1974 Judgment showing the rule to show cause in this case dismissed at Plaintiff’s cost was this day read, signed and filed. (See decree) (Judge Fant)
“Dec. 4, 1974 The District Attorney gave oral notice of his Intention to apply to the Second Circuit Court of Appeals for writs. The Court allowed the District Attorney ten days in which to apply for writs. (Judge Fant)
“Dec. 20, 1974 The Court ordered the Minutes of December 4, 1974 be amended to read, ‘the District Attorney made an oral motion for an appeal to the Second Circuit Court of Appeals, said motion was granted by the Court.’ (Judge Clark)
“Feb. 13, 1975 The defendant, not present, but represented by Alfred E. Soderman, Jr., attorney at law, Motion for Appeal and for Consolidation for Appeal was filed this day by the District Attorney. Order that an appeal be granted and that Cases No. 97,-600, 97,682, 98,146, 98,-. 148, 98,149, 98,150, 98,-151, 98,152, 98,153, 98,-154, 98,160 and 98,422 be consolidated for appeal and that the return date for this appeal be fixed at April 2, 1975 was filed this day and signed by Judge William J. Fleni-ken. (Judge Alexander)”

LSA-R.S. 32:1478 provides that an appeal may be taken from any final action or judgment entered under the provisions of the Motor Vehicle Habitual Offender Law in the same manner and form as appeals in civil actions. LSA-C.C.P. Art. 2087 provides that the delay for taking of a devolutive appeal expires within ninety days of the expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been timely filed. No application for new trial was filed in this case. The delay for applying for a new trial at the time judgment was signed in this case was three days under Article 1974 prior to its amendment. The delay for taking a devolutive appeal expired on December 13, 1974.

In our original opinion we held the minutes of December 4, 1974, as amended, show an appeal was sought by the State and granted on that date by the district court, and the appeal was, therefore, timely. Reconsideration leads us to a different conclusion.

The delay for perfecting an appeal expired on December 13, 1974. On the face of the record as it existed on that date, no appeal having been sought or granted, the delays for appeal had expired and the judgment dismissing the State’s action was final.

Thereafter, on December 20, 1974, an order was entered in the minutes, by a judge other than the one who rendered and signed the judgment and before whom the December 4 action was taken, ordering the minutes of December 4 be “amended” to read that an appeal was moved for and granted. This latter action was taken ex parte, without notice to appellee, and with no explanation in the record or minutes as to the reason for the amendment.

If the December 4 minutes as originally prepared were in error and if the State did, in fact, on that date move for an appeal which was granted, the district court retained jurisdiction and authority to correct the erroneous minute entry. See LSA-C.C.P. Arts. 2088 and 2132. If the minutes were not in error and the State did not, in fact, move for an appeal on December 4, the district court had no authority to subsequently amend or change the minute entry for that date.

In any event, such an amendment changing the substance of the minutes for that date and affecting significant, substantial rights of the appellee should not have been done ex parte. The proper procedure for correcting the minutes would have been by contradictory motion with notice to appellee and an opportunity for appellee to raise any objection he might have had thereto. Ex parte orders may be granted only where the mover is clearly entitled to the relief sought without supporting proof. If the order is one to which the mover is not clearly entitled, or which requires supporting proof, the adverse party is entitled to a contradictory hearing. See LSA-C.C.P. Art. 963.

In this instance, the amendment of the December 4 minutes could only be justified by supporting proof that the original minutes were in error and the State did, in fact, move for an appeal which was granted. No supporting proof of such facts appears in the record. Appellee was not afforded the opportunity of contradicting any supporting proof the State may have offered.

In this Court, the State has not responded to appellee’s motion to dismiss the appeal, either originally or on rehearing. No reason for or basis for the December 20 action of the district court in ordering the amendment to the December 4 minutes is advanced.

The minutes should not have been “amended” without a contradictory hearing and without supporting proof and reasons therefor shown in the record. In the absence of such hearing and a showing in the record of valid reasons therefor, the order directing the amendment of the minutes is void and of no effect. Considering the amendment ineffective, the minutes then reflect that no appeal was perfected prior to the expiration of the delay for perfecting an appeal. Accordingly, the judgment became final, this Court is without jurisdiction, and the State’s appeal must be dismissed.

The foregoing conclusion makes it unnecessary to discuss appellee’s other contentions relating to irregularities in setting the return date of the appeal.

For the reasons assigned, our original opinion and judgment is set aside, appel-lee’s motion to dismiss appeal is sustained, and the appeal is dismissed.

Appeal dismissed.

MARVIN, J., dissents and assigns written reasons.

MARVIN, Judge

(dissenting).

In DePriest v. Connecticut Fire Ins. Co., 140 So.2d 458, 460 (La.App. 1st Cir. 1962) it was stated that “. . . the law of this state is settled to the effect that the formal minutes of a court of record are presumed correct in the absence of positive proof to the contrary.”

We have no positive proof to the contrary and we must presume that on December 4 the State did in fact move for an appeal which was granted, as the Decemer 20 minutes so clearly stated. This is the only conclusion which can be drawn from reading the two minute entries together.

The majority on rehearing recognizes that if the State did in fact on that date [December 4] move for an appeal which was granted, the district court retained jurisdiction and authority to correct the. erroneous minute entry [to which I would add “at any reasonable time after December 4”].

The delays for appealing had not expired on December 4 and the amended minutes of that date do show an appeal was sought by the State and was granted by the lower court.

Moreover, the December 20 minutes show that “The Court ordered” the amendment of the December 4 minutes and do not in any way suggest that this was done necessarily on the motion of the State. Lower courts have express and inherent power to correct minute entries without contradictory hearings with the parties litigant. La.C.GP. Art. 2132. In no case have I found any instance where an appeals court has adulterated this power of the lower court over its own minutes by requiring a contradictory hearing below. Yet the majority is doing here, in effect ex parte, what the majority condemns, because the result is the district court is being told that it can no longer correct its minutes ex parte, if significant and substantial rights of a litigant are affected. This result affects significant and substantial rights of a district court without giving the district court an opportunity to be heard and raise objections.

Those who are involved with the press of paperwork obligations in our courts, whether minute clerks, reporters, lawyers or judges, are not infallible but are subject to all the frailities of human nature. Lawyers and judges, like witnesses, sometimes mumble or unknowingly talk at the same time. This sometimes results in confusion, misunderstandings or mistakes on the part of minute clerks and court reporters. Frequently, a trial court finds the minutes in error and directs or “orders” (as here) the minute clerk to correct or amend the minute entry. Where a district court amends or corrects a minute entry in any case in the future, out of an abundance of precaution that significant and substantial rights of a litigant might be affected, the district court likely will deem it necessary to hold a contradictory hearing. This result here will lead to unnecessary clutter and imposition on the working schedule of district courts. The courts below should be able to spend their time on more productive things than contradictory hearings to determine the necessity of correcting or amending its own minutes, especially on its own and without an application by a litigant.

La.C.C.P. Art. 963 contemplates that one litigant apply for by written motion the order which may be in question.

If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party,
if the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party. (Emphasis supplied).

By the record before us, the order correcting or amending the minute entry was not applied for by written [or oral] motion by anyone. The minutes simply reflect “The court ordered . . .” Art. 963 should not be applied where a district court corrects or amends its minutes on its own, and without the order for the Correction or amendment being applied for by written motion as the article clearly states. We must presume the minute entry to be correct under established jurisprudence and in the interest of judicial efficiency.

I respectfully dissent.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Marion Marie Collins Wright, wife of/and Melvin WRIGHT v. Myrtis JOHNSON et al.
    No. 7217.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Roy J. DiVincenti, III, Pitard, Pitard & Porobil, New Orleans, for James T. Fields and Sam Taylor, defendants-appellees.
    William S. Vincent, Jr., Carl & Roussel, New Orleans, for Marion Marie Collins Wright, wife of and Melvin Wright, defendants-appellants.
    Myrtis Johnson, in pro. per.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This suit arises out of an intersectional collision between an automobile and a taxicab. Plaintiffs, passengers in the cab, have sued the driver and owner of the cab alleging negligence. The trial court found in favor of the defendants and plaintiffs have appealed. We affirm.

This accident occurred at the intersection of North Claiborne Avenue and St. Louis Street in the City of New Orleans. North Claiborne Avenue, the superior roadway, is a wide four-lane thoroughfare. In the middle of the avenue is a wide neutral ground (approximately 116 feet) and above this neutral ground is an elevated interstate highway. Defendant, Sam Taylor, was driving the cab on North Claiborne in an easterly direction in the lane closest to the neutral ground. Myrtis Johnson was driving her automobile on St. Louis Street in a southerly direction. The Johnson vehicle crossed in front of the cab which had the right of way and was struck.

The issue before this court is whether Sam Taylor knew or should have known of Myrtis Johnson’s attempt to cross his path and, if so, did he have time to avoid the collision ?

Plaintiffs refer us to Taylor’s testimony that he saw the Johnson vehicle run the stop sign on St. Louis Street. An examination of Taylor’s entire testimony discloses that at that time Taylor was confused as to which stop sign or stop was being mentioned in the questioning. North Claiborne has two traffic roadways separated by the wide neutral ground. At the corner of North Claiborne (going west) and St. Louis is a stop sign. Taylor appears to have testified that he saw the Johnson car run this stop sign (as did one of the plaintiffs). Under examination by the court it became clear that the “stop sign” Taylor had mentioned earlier in his testimony was not the above mentioned stop sign but the legally required “stop” in the neutral ground before entering the other roadway of North Claiborne (going east), the roadway the cab was in. There is no stop sign there but the motorist is under a duty to yield to the oncoming traffic with the right of way.

Taylor’s testimony is consistent on the point that the first time he saw the Johnson car it was stopped behind a support pole in the neutral ground. The next thing he knew it started up and across his lane of travel. He further stated that he applied his brakes but was unable to avoid hitting the Johnson car.

Melvin Wright testified that he was a passenger in the cab, seated in the back seat. He saw, by looking through the automobile pound fence, the Johnson car run the stop sign on the opposite roadway and proceed to traverse the neutral ground. When the car showed signs of not yielding for the cab he called out a warning to Taylor. He estimated that two and a half seconds elapsed from the time he called out the warning until impact. At that time the cab was an estimated 19 or 20 feet from the intersection. He stated that Taylor did nothing to avoid the impact and did not apply his brakes.

The other plaintiff, Mrs. Wright, saw the Johnson car only an instant before impact. She was unsure about most of the facts of the accident because she apparently was not paying much attention.

The law as to this type of situation was best expressed in a recent decision of this court, Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La.App. 4th Cir. 1975). In that case we stated:

“[3] A motorist traveling on a high-speed, multilane highway is not required to anticipate that a-motorist entering the highway will not yield the right of way. Mrs. Melancon’s entering the highway and crossing the traffic-free eastbound lanes did not serve to place a westbound motorist on notice that she would not stop or pause momentarily in the neutral ground area and yield the right of way to westbound traffic. By the time Bland knew or should have known she was not going to respect his right of way, it was too late for him to take any evasive action.”

This statement is accentuated in this case because the neutral ground was 116 feet wide, whereas in the Bland case it was only 8 feet.

The basic problem in this case is the conflicting testimony. Mr. Wright stated that he saw the Johnson car run the stop sign and traverse the neutral ground. Upon seeing that the car would not yield the right of way to the cab he called out a warning to the driver. Mr. Taylor stated that he saw the Johnson car stopped behind a support post in the neutral ground and that it suddenly accelerated into his path. He heard no warning from his passengers but applied his brakes and could do nothing of any effect to avoid the collision. The trial judge resolved this conflict in testimony in favor of Taylor.

The law places no great duty upon a driver with the right of way until it becomes clear that a car approaching from a less favored street or neutral ground is not going to yield. With an estimated two and a half second reaction time until impact we fail to see how Taylor could have avoided the collision.

Assuming two and a half seconds was sufficient time to avoid the collision, Taylor testified that he had almost no time and the accident occurred almost instantaneously after he became aware of the Johnson car. In such an instance, with conflicting time estimates, the trial court is deemed the best judge of the demeanor and credibility of the witnesses. We find no legal or factual basis for disturbing the findings of the trial court.

For the above reasons the judgment of the trial court is affirmed. Plaintiffs to pay all costs.

Affirmed.

      . The driver of the automobile, Myrtis Johnson, was also made defendant, but she is not involved in this appeal.


author: PETERS, Judge ad hoc.

text:
    Paul GUILBEAU, Plaintiff-Appellant, v. Benjamin GUILBEAU et al., Defendants-Appellees.
    No. 5321.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    See also La.App., 308 So.2d 435.
    J. Minos Simon and Gerald J. Block, Lafayette, for plaintiff-appellant.
    Richard J. Bertrand, Lafayette, for defendants-appellees.
    Before HOOD, GUIDRY and PETERS, JJ-
   PETERS, Judge ad hoc.

This is an action for damages for a battery inflicted on plaintiff in an altercation with defendants on May 8, 1970. Defendant Benjamin Guilbeau is plaintiff’s brother and defendant Lionel Guilbeau is Benjamin Guilbeau’s son. At the time of the incident plaintiff was on unfriendly terms with defendants. Plaintiff was working in his field in the afternoon on May 8 when the defendants drove by on the road adjoining plaintiff’s field. Benjamin was driving a pick-up truck and Lionel was driving a tractor. As they drove by, plaintiff made a gesture at Lionel. Lionel stopped his tractor and started yelling at plaintiff. Benjamin also stopped. Plaintiff had three wrenches nearby and he started throwing them at Lionel and Benjamin. Plaintiff claims he threw the wrenches because defendants were attempting to enter his land to beat him; defendants claim they had committed no agression toward plaintiff when plaintiff threw the wrenches. In any event, none of the wrenches struck either of the defendants. Lionel and Benjamin then went onto plaintiff’s field and Lionel beat the plaintiff severely. Plaintiff sustained a fracture of the left ulna, a hematoma of the left forearm, bilateral hematomas of both eyes, multiple abrasions of the face, and a severe thickening of the right maxillary sinus which caused profuse bleeding from the nose.

The trial court rendered judgment against Lionel for $7260.10 but found Benjamin not liable because he took no part in the actual battery. On a prior appeal, this court affirmed the judgment as it related to Lionel but refused to consider the issue of Benjamin’s liability because the trial court had not signed a written judgment dismissing plaintiff’s claims against Benjamin. Guilbeau v. Gtdlbeau (La.App. 3rd Cir., 1975), 308 So.2d 435. The trial court subsequently signed a judgment dismissing plaintiff’s claim against Benjamin and plaintiff appeals from that judgment.

There is conflicting evidence concerning Benjamin’s role in this altercation. Plaintiff claims Benjamin told Lionel to beat plaintiff and then proceeded to join Lionel in inflicting the blows. Benjamin claims he never struck plaintiff. Benjamin’s position is that he was a mere nonparticipating by-stander. However, the evidence indicates otherwise. When asked why he didn’t leave the scene when plaintiff had thrown the last of the wrenches, Benjamin replied the “hour had arrived where I had to take a stand.” Along with Lionel, he jumped a ditch to enter plaintiff’s property in pursuit of plaintiff. Lionel was carrying a wrench he had taken from his tractor so Benjamin should reasonably have known plaintiff might be severely beaten. Benjamin conceded he threw dirt in plaintiff’s face. Benjamin testified at trial that he told Lionel to stop the beating when he thought plaintiff had “had enough.” Lionel did cease to beat plaintiff upon his father’s command. It is obvious, therefore, that Benjamin did exercise some degree of control over Lionel’s infliction of the beating.

One who causes another to do an unlawful act or assists or encourages in the commission of such an act is liable in solido with that person for the damage caused by the act. LSA-C.C. 2324; Walker v. Champion, 288 So.2d 44 (1973); Tabb v. Norred (La.App. 3rd Cir., 1973), 277 So.2d 223; Perigoni v. McNiece (La. App. 4th Cir., 1972), 262 So.2d 407. While the evidence does not indicate Benjamin caused Lionel to beat plaintiff, it clearly shows he assisted and encouraged Lionel in the beating.

For the reasons assigned, we hereby reverse the judgment rendered by the trial court on June 10, 1975 which dismisses plaintiff’s suit insofar as it is directed against defendant Benjamin Guilbeau, and we hereby render judgment in favor of plaintiff, Paul Guilbeau, and against defendant, Benjamin Guilbeau, for the sum of $7,260.10, together with legal interest from date of judicial demand until paid, and for all costs of these proceedings. We also decree that defendant, Benjamin Guil-beau, is liable in solido with Lionel Guil-beau to plaintiff for the amount of this judgment, the liability of Lionel Guilbeau having heretofore been decreed by judgment of the trial court rendered on January 23, 1974.

Reversed and rendered.


author: PER CURIAM.

text:
    Ex parte J. B. PENNINGTON.
    6 Div. 127.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 3, 1976.
    Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for petitioner.
    William J. Baxley, Atty. Gen., and Sam L. Webb, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an original application for a writ of mandamus.

Honorable Aubrey Dominick, one of the Judges of the Sixth Judicial Circuit, had on May 29, 1975, set bond on appeal to this Court at $5,000. Then on November 20, 1975 (applicant not having filed bond), Judge Dominick raised the amount to $25,000. We issued the rule nisi.

The Circuit Court rendered judgment of conviction May 8, 1975, and sentence was pronounced the same day, and the judge, with defense counsel present, advised the defendant of his right to appeal. No motion for new trial was filed. Code 1940, T. 13, § 119.

Written notice of appeal was filed on May 29, 1975. This was the only such notice. “Under Code 1940, T. 15, §§ 368 and 372, execution of a sentence under twenty years may be stayed if the appeal is taken ‘at the time of judgment rendered.’ This has been consistently construed as meaning the time at which the sentence is definitively pronounced. See Ex parte Downer, 44 Ala.App. 77, 203 So.2d 132.” —Ex parte Rogers, 53 Ala.App. 245, 298 So.2d 665.

The rule nisi, under the applicant’s own exhibit, i. e., a photo copy of the bench notes or docket sheet, was improvidently issued. Any order setting bail after delayed notice of appeal is coram non judice.

In this case no suspension of execution of sentence was within the power of the trial court after May 8, 1975.

Writ quashed: application for mandamus denied.

All the Judges concur.


author: HARRIS, Judge.

text:
    Wilbert WATTERS v. STATE.
    6 Div. 995.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Gary W.- Weston, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was tried and convicted of the offense of robbery, and the jury fixed his punishment at twenty years in the penitentiary. He was represented at arraignment and trial by Court-appointed counsel. He pleaded not guilty. After sentence he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

Omitting the formal parts the-indictment reads as follows:

“The grand jury of said county charge that, -before the finding of this indictment, WILBERT WATTERS, whose name is to the Grand Jury otherwise unknown, feloniously took TWENTY SIX DOLLARS of the lawful currency of the United States of America, a more particular description and denomination of which is otherwise unknown to the Grand Jury, twenty seven bottles of wine of the aggregate value of THIRTY FIVE DOLLARS, one .22 caliber pistol of the value of THIRTY.DOLLARS and one clock radio of the value of FORTY SEVEN DOLLARS, the personal property of Alberta Womack, from her person and against her will, by violence to her person or by putting her in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

The testimony was in sharp conflict. The evidence for the State tended to show an aggravated case of robbery between the hours of 11:30 p. m. and midnight on December 6, 1974. The testimony of appellant was that though he was present in the house with two companions on the night in question, no robbery was committed.

The evidence is undisputed that appellant, one Ronnie Davis, and another individual whose name was never revealed, went to the home of William R. Womack, 1529 Pine Avenue, Southwest, Ishkooda, a community in Jefferson County, Alabama, on the night of December 6, 1974. What happened after they entered the home is conflicting.

At the Womack home were the husband, wife, three daughters and. a four-year old grandson. According to the State’s evidence, appellant and his two companions were armed with a sawed-off shotgun, a regular .12 gauge shotgun and a pistol. They terrorized all members of the family using harsh, ugly and threatening language, and at all times had the shotguns and the pistol trained' on them. Appellant went to Alberta Womack’s bedroom and made her get out of bed. He demanded, “every -thing you all got.” Alberta gave him all the money she had which was $26.00. This small amount of money incensed appellant, and he insisted there must be more money around the house. Appellant continued to threaten Alberta and her entire family with death unless they produced more money. Appellant dragged William Womack out of his bed simultaneously striking him with a weapon and demanding more money.

Appellant was so infuriated as to the small amount of money taken that he threatened to kill the entire family and had to be restrained from doing so by one of the other robbers. His behavior became so strident that Alberta tried to placate him by telling him she had some wine in the refrigerator. Appellant, still armed, took her to the kitchen and made her get 27 bottles of wine from the refrigerator and place them in a trash receptacle. Appellant demanded that Alberta get a sheet off the bed and tear it into pieces and he used these pieces to bind the hands and feet of her husband. Appellant and his companions then went on a rampage,- ransacking the house, looking for other things of value. One of the Womack daughters apologized for the family’s lack of more money at which point appellant said, “I ought to kill you, _,” and slapped her in the face.

Unknown to the robbers, Sharon, another daughter of the Womacks, had gone to the bathroom, jumped out the window and went to a neighbor’s house to call the Police Department to report that the robbery was still in progress. Officer J. M. Robertson, a member of the Birmingham Police Department, responded to the call. He was followed by a backup unit. On arriving at the scene of the robbery, the officer saw a 1966 Buick automobile with appellant in the driver’s seat parked in front of 1529 Pine Avenue with the motor running. The officer also saw one of the other robbers walking from the house toward the Buick carrying a shotgun. The officer commanded him to halt, but he did not stop but went to the passenger’s side of the waiting Buick. The backup unit arrived and the officers went to the Buick and arrested appellant and Ronnie Davis and put them in separate patrol cars and gave them the Miranda rights and warnings. The officers searched the Buick automobile recovering a shotgun and a pistol under the feet of appellant. A further search of the automobile culminated in the recovery of the radio, a jewelry box and several bottles of wine.

After robbing the Womack household, they were told to remain still for at least five minutes and not to call the police. Appellant told them if they did not heed his warning, they would come back later and burn the house down.

After the robbers were arrested, the officer went to the Womack house and got them to come out to the car to view the articles of property discovered by the officers. They immediately identified the property as belonging to them. The officers took the property, locked it in the trunk of the patrol car and carried the items to the Ensley Precinct Station where they were locked up in the evidence locker and where they remained until they were brought to appellant’s trial and introduced in evidence over appellant’s objections that these items of property were illegally seized without a search warrant.

On cross-examination the Womacks were asked if the house where they lived was known as a “shot house.” They admitted that at one time they had sold alcoholic beverages there but not in the last four or .five years.

In an attempt to impeach the testimony of the Womacks, appellant offered the testimony of two of his sisters that they had bought alcoholic beverages at this place during the year 1974.

Appellant testified that on the night of the alleged robbery he and his companions went to the Womack house where he gave Mr. Womack $5.00 for a bottle of gin. That at this point one of the trio made a statement about one of the Womack girls who was dressed in a nightgown. The remark made Mr. Womack mad, and he pulled a pistol and ordered them out of the house. When they got to the car, the third man whose name was never called, told appellant and Davis that since they did not get the bottle of gin, they should get their money back. According to appellant this unnamed man reached in the back seat of the car and got a shotgun and they returned to the Womack house to get the money which was paid for the undelivered gin. That when they got back in the house and asked about the $5.00, that Mrs. Womack gave them the 27 bottles of wine in lieu of the $5.00 and he carried the wine to his car and about that time the police arrived. Appellant denied that they robbed the Wom-acks and further stated he did not know the unnamed man had a shotgun in his car.

On cross-examinaton he testified that he did not know the radio and jewelry box were in his car and that the first time he saw them was at the Ensley Precinct in possession of the police officers. He did admit that he had previously been convicted of burglary and grand larceny.

The officers had a right to search the automobile belonging to appellant under Daniels v. State, 290 Ala. 316, 276 So.2d 441, and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.

There was no variance in the allegations of the ownership of the property laid in the indictment and the proof offered at trial. Riggens v. State, 44 Ala.App. 275, 207 So.2d 141.

Conflicts in evidence as between defense and prosecution are for the jury to resolve. Miller v. State, 39 Ala.App. 584, 105 So.2d 711; Haney v. State, 42 Ala.App. 94, 153 So.2d 652.

Appellant was caught “red handed” at the place of the robbery and the fruits of the robbery were in his car. He received a fair and impartial trial. He was due this and nothing more.

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

Affirmed.

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


text:
    Alfred HALL v. STATE.
    6 Div. 991.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Knopf & Wright, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Randolph P. Reaves, Birmingham, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Hall was convicted of robbery and the jury fixed his punishment at ten years imprisonment in the penitentiary. With counsel at arraignment he pleaded not guilty. After sentence he gave notice of appeal and he was furnished a free transcript and new counsel was appointed to represent him on this appeal.

The evidence for the State was not disputed that on November 10, 1973, at approximately 6:00 p. m., Mr. James Darwin Norris, Assistant Manager of the Site Service Station located at 4111 First Avenue North in Birmingham, Alabama, was robbed at gunpoint of $58.00.

Appellant offered alibi evidence and supported his alibi by members of his family.

Mr. Norris testified that on the day of the robbery his hours of duty were from 2:00 p. m. until midnight. He stated that appellant came in the service station around 5:00 p. m. and bought a package of potato chips, looked around, and then left. Appellant returned about an hour later and pulled a pistol on him and said, “Get in the back room, old man, before I kill you.” The back room was a storage room and Mr. Norris went to the room as directed. Mr. Norris had the company’s money in his shirt pocket. Appellant had the pistol in his right hand and took the money with his left hand and told Mr. Norris to “stay in the room,” and appellant left the station.

Mr. Norris immediately called the Police Department and when the officers arrived, he gave them a description of the man who had just robbed him. He further testified that about two weeks later some City detectives brought to his home two sets of mug shots and without the slightest hesitation he identified appellant as th'e man who robbed him. Later that same day he viewed a lineup of six people at the .City jail and immediately identified the number 2 man in the lineup as the robber. He also made a positive in-court identification of appellant as the man who robbed him at gunpoint. This identification was based on having seen appellant at close quarters on two occasions within an hour on the day of the robbery.

Detective H. B. Felts of the Birmingham Police Department testified that he was assigned to investigate this robbery and that he carried mug shots to the home of Mr. Norris and that Mr. Norris identified appellant as the man who robbed him on November 10, 1973. He further testified that later on the same day he was present when Mr. Norris viewed a lineup at the City jail and Mr. Norris picked out the number 2 man in the lineup as the robber.

Appellant did not testify in his behalf but offered testimony by his mother, sister and a nephew that on the day of the robbery appellant attended a birthday party for a niece. They testified that appellant arrived for the party between 2:00 and 3:00 p. m. and stayed until after 7:00 p. m. at which time he borrowed an automobile to go and pick up his wife and that he was gone 20 or 30 minutes. It should be noted here that appellant’s wife did not testify and neither did Milton Keith, the owner of the automobile that appellant allegedly borrowed to pick up his wife.

It was brought out on the voir dire examination of the witnesses concerning the makeup of the lineup that appellant was not represented by counsel.

It is settled law that an accused is not entitled to counsel at a pre-indictment lineup where he has not been formally charged with a crime. Houston v. State, 49 Ala.App. 403, 272 So.2d 610; Giles v. State, 52 Ala.App. 106, 289 So.2d 673; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

The testimony of the victim in a robbery prosecution offered to establish the identity of the accused as the robber presented a jury question on that issue. Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336.

The weight of the evidence, the credibility of witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Braswell v. State, 51 Ala.App. 179, 283 So.2d 630.

Alibi evidence, like all evidence in a criminal prosecution, is a matter for the jury to resolve. Price v. State, 53 Ala.App. 465, 301 So.2d 230.

There was no motion to exclude the State’s evidence; there was no motion for a new trial; there was no request for the affirmative charge, and no exceptions reserved to the oral charge of the Court. Therefore, nothing is presented to this Court for review. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358.

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

Affirmed.

All the Judges concur.


text:
    Anthony Reed VAUGHN, alias v. STATE.
    8 Div. 651.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Cary L. Dozier, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years imprisonment in the penitentiary. With counsel present at arraignment a not guilty plea was entered. After sentence was imposed he gave notice of appeal and alleged that he was indigent. He was furnished a free transcript and trial counsel was appointed to represent him on appeal, but he failed to file a brief and this Court appointed counsel to represent him.

Around 9:45 p. m. on July 10, 1974, a man entered the Paradise Motel located on the Jackson Highway in Sheffield, Colbert County, Alabama, and pointed a rifle at the night clerk and demanded the money. The night clerk, Donnie Golden, was on the telephone talking to the manager of the motel restaurant when the robber came to the registration desk and pointed the rifle at him and demanded the motel’s money. Donnie Golden dropped the receiver and went to the cash register and got all of the currency and handed it to the robber. The amount was $103.00 and according to Golden, the man gave him a real weird look because of the small amount of money and he asked him if he wanted the change and the man said no and walked out of the motel at a fast pace. Golden then picked up the receiver and told the manager that he had just been robbed. He then called the Police Department and reported the robbery.

A detective was dispatched to the motel immediately and Golden gave him a description- of the robber. He stated that the man was over six feet tall and had on dark blue clothes with a dark blue toboggan hat that had big eye holes and a mouth hole and that he was a young white male.

Mr. Golden further testified that Douglas Aycock of the Sheffield Police Department called him the next morning and asked him to come to the Department and look at some photographs. When he arrived, the detective spread nine photographs on a table in his office. Mr. Golden immediately picked out appellant as the man who robbed him. The detective did not tell Golden the name of the man he identified from the photographs.

Later that afternoon Mr. Golden called Detective Aycock and told him he knew the name of the man who had robbed him. He stated that he had looked at some old registration forms and came across one with Tony Vaughn’s name on it. He told the officer, “That’s the person that robbed me. His name in Tony Vaughn. I remember the night he stayed here.” The registration form showed that Tony Vaughn had stayed at the Paradise Motel on June 24, 1974, and it was introduced in evidence without objection. The card was signed “Tony Vaughn.”

Golden further testified that he distinctly remembered Vaughn coming to the motel and checking in on the night of June 24, 1974, as there were several people present that Vaughn knew and he talked to them about twenty minutes before he went to his room and that during this time he had the opportunity to observe him and hear his voice. He stated that after Vaughn got to his room, he called him and asked to speak to the people in the office that he had been talking to.

Golden made a positive in-court identification of appellant as the man who robbed him on the night of July 10,1974.

The testimony of the. victim in a robbery prosecution offered to establish the identity of the accused as the robber presented a jury question on that issue. Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336.

A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Gray v. State, 38 Ala.App. 508, 88 So.2d 798; Smith v. State, 53 Ala.App. 27, 296 So.2d 925.

Appellant did not testify but offered several alibi witnesses who testified that they were with appellant or had seen him at approximately the time of the robbery.

The weight of the evidence, the credibility of witnesses, and inferences to be drawn from the evidence, where susceptible or more than one rational conclusion, are for the jury. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Braswell v. State, 51 Ala.App. 179, 283 So.2d 630.

In Willcutt v. State, supra, the Supreme Court said:

“The scintilla rule does not apply in criminal cases. There must be substantial evidence tending to prove all the elements of the charge. Ex parte Grimmett, 228 Ala. 1, 152 So. 263. The burden is on the State to prove beyond a reasonable doubt that the crime has been committed and that the defendant was the person who committed it. Jarrell v. State, 251 Ala. 50, 36 So.2d 336. The weight of the evidence, the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible or more than one rational conclusion, are for the jury alone. Byrd v. State, 213 Ala. 333, 104 So. 830.
“We cannot say in the instant case that there was not enough evidence to allow the jury to draw the inference that the defendant was the person who committed this robbery. The defendant presented a strong case in support of his alibi. The testimony of his witnesses was in direct conflict with the testimony of the State’s witness. Yet the State’s witness made a positive identification of defendant as the person who robbed and burned him. The State presented substantial evidence and the jury had before it an adequate basis for drawing inferences and conclusions against the defendant. It is for the jury, not .the trial court or this court, to find the facts and to determine guilt or innocence. The State presented sufficient evidence upon which the jury could base its verdict.”

Appellant claims that the Court’s oral charge on the question of flight was highly prejudicial and misleading and he reserved an exception thereto. The record reflects that this exception was taken outside the presence of the jury. The rule is well settled that where the defendant and his counsel were present in court and heard the oral charge, they had the burden of stating the defendant’s objections to the Court before the jury retired to determine their verdict. Cox v. State, 280 Ala. 318, 193 So.2d 759.

It is settled law that in criminal cases the flight or attempted flight of a defendant is a circumstance which the jury may take into consideration in determining guilt. Pierce v. State, 51 Ala.App. 166, 283 So.2d 618.

Appellant claims that the trial court erred in permitting the police radio dispatcher, Willie Vance, to testify to a telephone conversation he had with appellant’s father, Thomas Vaughn, on the night of the robbery. Telephone conversations are admissible as substantive evidence against an accused where the identity of the party calling is established. Identity may be established by either direct or circumstantial evidence. Dentman v. State, 267 Ala. 123, 99 So.2d 50.

The identity of the caller as Thomas Vaughn was established by Vaughn’s own testimony that he had called the Florence Police Department throughout the night of the robbery trying to ascertain if his son had been located. He had been on the bonds for other offenses committed by his son and had been forced to pay several fines assessed against his son. Vance’s testimony was not otherwise objectionable because it was offered solely for the purpose of impeaching the defense witness Thomas Vaughn as to the time and purpose of his telephone calls to the police station on the night of the robbery.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

Affirmed.

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


author: CATES, Presiding Judge.

text:
    Ronald Paul ADAMS v. STATE.
    4 Div. 303.
    Court of Criminal Appeals of Alabama.
    May 6, 1975.
    After Reply to Remand, July 28, 1975.
    Lewis & Hornsby, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Second degree burglary: sentence, four years imprisonment.

Under Mayberry v. State, 48 Ala.App. 276, 264 So.2d 198, this cause is remanded for a further hearing as to whether or not the State denied appellant a speedy trial. See Prince v. Alabama, 5 Cir., 507 F.2d 693.

Remanded with directions.

All the Judges concur.

AFTER REPLY TO REMAND

Dismissed as moot.


text:
    Michael Anthony MAYOLA v. STATE.
    6 Div. 86.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Michael Anthony Mayóla, pro se.
    William J. Baxley, Atty. Gen., and Sam L. Webb, Jr., Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

The record before us in this case shows that on November IS, 1962, appellant was convicted of murder in the first degree and sentenced to imprisonment in the penitentiary for life. While serving his sentence, he became an avid student of law by means of a library furnished him at public expense. The record does not indicate that he spent much time to determine legal standards of behavior but that in the eleven years service of his sentence prior to the institution of this proceeding he spent months and even years in self-service in delving deeply into legal means by which the guilty, as well as the innocent, can escape punishment as criminals.

On April 3, 1973, appellant filed a pro se petition for writ of error ■ coram nobis, which he subsequently amended, and which as amended was heard and denied in August 1973. The case now before us is an appeal from the judgment denying the cor-am nobis petition, which appeal was submitted on pro se brief of appellant and brief of appellee on November 25, 1975. As an indigent, he was afforded counsel on the hearing of the coram nobis petition, a free transcript and counsel on appeal.

In his coram nobis petition, he sets forth a miscellany of charges relative to his communications with law enforcement officers, their conduct relative to the crime with which he was charged, his arraignment, his trial and publicity attendant upon his trial and circumstances preceding it. Categorized, the charges were:

1. He was interrogated without counsel having been provided for him and “without signing a waiver” of the right to counsel; and
2. That he was arraigned without benefit of counsel;
3. That he was in a “state of fear and despair of his life” and that his statements “were not the product of a rational intellect and were mentally coerced, and received in violation of the 5th, 6th, and 14th Amendments.”
4.That he was not aware of his right to remain silent and not to incriminate himself and that no “relative warnings or information” were given him.

There were other purported charges in the amended petition, some of which were to some extent repetitious of the charges stated above; some were vague and indefinite, consisting chiefly of argument; some of them were not even alluded to by him when he testified on the hearing of the petition.

On the hearing, petitioner was his only witness. He testified that his repeated confessions that he had been guilty of the crime against nature and had deliberately murdered the victim, an eleven-year-old boy, by shooting him under an eye with a pistol, were made before he was made aware of his rights against self-incrimination, his right to counsel, and were in effect extorted from him instead of being voluntary on his part. He also testified that at his arraignment, at which he pleaded not guilty and not guilty by reason of insanity, he was not represented by counsel. He indicated that two of his counsel, appointed by the court, now deceased, were hostile or unsympathetic to him. He said very little, if anything, that constituted any indication that the other two attorneys appointed by the court did not defend him with superior skill and devotion.

Evidence for the State on the coram nobis hearing consisted of the testimony of Russell E. Vorpagle, a former investigator for the Federal Bureau of Investigation at Baltimore, Maryland; Robert G. Jenson, former assistant agent in charge of the FBI office at Birmingham; Roy McDowell, long time an investigator with the Alabama Department of Public Safety; and one of his attorneys on the trial of his case, now Honorable Wayman Sherrer, United States Attorney for the Northern District of Alabama.

Mr. Vorpagle testified that while he was in his office in Baltimore, on August 7, 1962, he was asked to speak to a man who had come into the office and wanted to talk about a parole violation. It was May-óla, the appellant. After discussing the matter of a possible parole violation, May-óla told him that something had been bothering him a great deal, that he had killed a little boy in Alabama and wanted to get it off his chest. The witness had never heard of the incident. Mayóla gave him the details of the crime. According to him, “he volunteered all of these statements.” He was not in custody at the time. With the exception of advising defendant that, if he was indigent, he would be furnished free counsel if desired (mandated two years later as to offenses “under FBI jurisdiction” by the Criminal Justice Act of 1964), the witness complied with all of the requirements thereafter compiled in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. (1966). After the discussion, a transcript of the colloquy between him and Mayóla was made, which was read to Mayóla, but which he declined signing. The transcript was introduced in evidence on the coram nobis hearing. Included in it are the following statements as to what happened five days before, after he had kidnapped the victim and his youthful companion, another boy, at Midfield in Jefferson County,. the other boy had escaped, and he had taken the victim to a house in Blount County, put him in a bed and committed sodomy:

“I dozed off a few times. And in the early morning, while he was still asleep, I took a .22 caliber revolver from under my pillow and shot him. I tried to make it as painless as possible. I looked around and pulled the trigger.
“After I shot the boy, I wrapped him up and took him outside to a trench around the cabin. I put him in the corner of the trench and covered him with dirt. Then I went to work.”

Mr. Jenson testified that he went to Eto-wah County August 12, 1962, for a meeting with other law enforcement personnel and defendant. He had his notes of the conference, which he read on the hearing and which showed that defendant was fully advised of, and waived, his rights, including his right to an attorney, and there the defendant made a complete confession in line with the confession he had made in Baltimore. He had obtained a copy of the transcript of the confession in Baltimore, in which defendant made some minor corrections and then signed it. The witness emphasized the voluntariness of the conduct of Mayóla and stated that Mayóla had not complained of any mistreatment “in any way whatsoever.”

Mr. McDowell testified that he went with Sheriff Stephason of Blount County to Baltimore, Maryland, and brought defendant back to Alabama, where he was placed for a while in the Etowah County jail, that defendant voluntarily signed a waiver of extradition. Before he talked to Mr. Mayóla, he advised Mr. Mayóla of his constitutional rights. He made a statement confessing the crime and signed it.

Mr. Sherrer testified that he accepted the appointment as one of Mr. Mayola’s attorneys, that he worked with the other attorneys in the case, that he actively took part in the trial, that he discussed the matter with Mr. Mayóla in the jail; that he made an investigation and interrogation of witnesses. He knew about the confessions that Mayóla had made; he said Mr. May-óla never denied that he signed a confession. He said he was present when Mr. Mayóla was arraigned in the court room. He supported his testimony by notes that he had made contemporaneously with his services as Mr. Mayola’s attorney. He fully advised Mr. Mayóla as to his rights. He and Mr. Gerald Swann “engaged in very vigorous defense for the Defendant.” Mr. Mayóla never asked the lawyers to ask any questions that they “failed, refused, or neglected to ask.” He said that in Mr. Swann’s closing argument to the jury he asked the jury “not to electrocute Mr. Mayóla, but to give him life or nine hundred and ninety-nine years.” The case was not appealed. After discussing the matter with his client, the decision was made not to appeal. This was with his client’s consent.

Appellant’s pro se brief in this Court consists largely of a congeries of claims, many of which are in addition to any claim or contention made in the petition and on the hearing in the trial court, and most of which, if true, would have been known to defendant and his attorneys before or during his trial. Some of them relate to claimed adverse rulings by the trial court, which could have been reviewed by the trial court on motion for new trial and by this Court on appeal. The remedy afforded by writ of coram nobis is “not intended to relieve a party from his own negligence, and cannot serve, as a substitute for an appeal, nor to enable defendant to question the merits of the case for which he stands convicted.” Groce v. State, 48 Ala.App. 709, 267 So.2d 499.

Even though the petition falls short of containing clear and positive averments entitling petitioner to relief upon proof of the averments, we find that any averments thereof that could be construed as sufficient to entitle him to relief, if proved, have been proved to be absolutely false by testimony presented by the State. From the record presented to us, it appears that petitioner’s allegation of a violation of his constitutional rights is without foundation, that the contest between the State and this defendant and his attorneys revolves around the question of whether he should be sentenced to death or to life imprisonment, that his attorneys won for him an outstanding victory and that his present charges are in marked contrast with the truth he proclaimed, according to the record before us, upon allocution, “I deserve at least that much.”

The case was tried ten years before Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); the coram nobis petition was filed the next year after Furman. It is obvious that without Fur-man, he would not have dared to ask for a new trial by motion or by appeal and thereby run the risk again of capital punishment; that with Furman, there is nothing for him to lose by a petition of this kind, which we find absolutely without merit and which in no way tends to mitigate the terrible crime committed or to assuage in the least the grief of the parents of the youth whose “blood is crying . from the ground” for justice.

The judgment of the trial court was as follows:

“On hearing of Petitioner’s application or petition for writ of error coram nobis, the Court finds no proof in support of petitioner’s allegations and satisfactory proof that petitioner was at all times fully and adequately advised and informed of his constitutional rights, and that no rights guaranteed to him by the Constitution of Alabama were violated in the least. It is therefore considered and ordered by the Court that petitioner’s petition or application be and is over-ruled and denied.”

The judgment should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act-288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

Affirmed.

All the Judges concur.

      . The witness’ testimony finds support in Miranda, 384 U.S. at 483, 86 S.Ct. 1602, in references made to standards previously observed by the FBI, which served as a guide to the Court’s pronouncements in the case.


text:
    Worley JAMES, alias v. STATE.
    3 Div. 424.
    Court of Criminal Appeals of Alabama,
    Feb. 3, 1976.
    Crenshaw & Minor, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of assault with intent to ravish and sentenced to twenty years in the 'penitentiary. At arraignment with court-appointed counsel present, he pleaded not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. New counsel was appointed to represent him on appeal.

The evidence adduced by the State made out an aggravated case of assault with intent to ravish. The victim’s testimony was somewhat incoherent and confusing about the time element concerning when the attack occurred but she was certain as to the identity of the man who assaulted her and stated that she had known him approximately twenty-five years. She testified that she lived on Decatur Street in the city and county of Montgomery, Alabama, and that on March 11, 1972, she was walking to her son’s house when appellant grabbed her and carried her to his house where he sexually assaulted her orally. We do not deem it necessary to set out the revolting details relative to the perverted acts committed on her by appellant. According to her appellant tore her clothes off and performed unnatural acts on every part of her body. She stated that after the attack, her son carried her to a local hospital where she was treated for injuries to her breasts and numerous bites in and around the area of her vagina. Her injuries were seen and described by two City detectives who interviewed her at the hospital.

The victim further testified that when appellant had completed the perverted acts on her, he told her, “Don’t tell nobody. Somebody done whooped you up, and don’t tell nobody. If you put me in jail, I’ll kill you.”

• Appellant testified that he was walking home and came upon a nude woman lying in the street. The woman was badly beaten and appeared to have been thrown from an automobile. That he picked her up and carried her to his home and treated her injuries with Witch Hazel and then went to bed in another room. That the next morning he asked her if she wanted to stay at his home or go to her home. She told him she wanted to go to her home and he carried her home. He denied that he had ever beaten, assaulted, raped or bitten the victim in any manner whatsoever.

On cross-examination appellant denied that he had previously been convicted of carnal knowledge.

On rebuttal the State called the Clerk of the Circuit Court of Montgomery County who testified that according to the judgment records, appellant had been convicted of carnal knowledge and sentenced to death.

The death sentence was commuted and appellant was on parole at the time he was convicted in this case.

The sufficiency of the evidence is not presented-to this Court for review. There was no motion to exclude the State’s evidence; there was no motion for a new trial. No exceptions were reserved to the oral charge, and there was no request for the affirmative charge. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Broadnax v. State, 54 Ala.App. 37, 304 So.2d 278.

Appellant claims the trial court committed reversible error in giving the jury the “Allen” or “dynamite”' charge after the jury had reported on two occasions that they were unable to reach a verdict and were hopelessly deadlocked.

The trial judge told the jury that the case would have to be disposed of by them or another jury and asked them to reconsider their positions and to see if they could reason together and reach a verdict. When the judge completed his supplemental charge, he asked appellant’s counsel if he was satisfied with the charge and counsel replied, “Satisfied.”

This Court and the Supreme Court have repeatedly held that the correctness of the trial court’s oral charge cannot be raised for the first time on appeal. Segers v. State, 283 Ala. 682, 220 So.2d 848; Cox v. State, 280 Ala. 318, 193 So.2d 759; Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716; Snider v. State, 39 Ala.App. 234, 97 So.2d 163; Cronnon v. State, 46 Ala.App. 632, 247 So.2d 387.

In Cronnon v. State, supra, this Court said:

“It is argued in brief for appellant that the court's additional instructions to the jury, given after they had deliberated for some time and reported they were unable to agree, were coercive in nature. Since no exception was reserved to the court’s instructions there is nothing for this court to consider. Franklin v. State, 45 Ala.App. 27, 221 So.2d 919.”

We have carefully examined the record and have found no reversible error. Accordingly, the judgment of conviction is affirmed.

Affirmed.

All the Judges concur, except CATES, P. J., who concurs in the result.


text:
    Larry Hudson SWEAT v. STATE.
    7 Div. 277.
    Court of Criminal Appeals of Alabama.
    Aug. 18, 1975.
   Appeal from Cherokee Circuit Court.

It having been made known to the Court that appellant was indigent at the time of trial and at the giving of notice of appeal, it is hereby ordered that the granting of the state’s motion to strike the record and the dismissal of the appeal Ala.Cr.App., 54 Ala.App. 111, 305 So.2d 386, be set aside.

It is further ordered that the cause be restored to the docket and the appeal reinstated, for decision.

See also, 57 Ala.App. -, 326 So.2d 671, and 295 Ala. -, 326 So.2d 674.


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. DeCARLO, Judge

text:
    Larry Hudson SWEAT v. STATE.
    7 Div. 277.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.
    Myron K. Allenstein, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant was indicted on August 22, 1972, on the charge of assaulting Willard Westcott, a peace officer of the city of Centre, Alabama, with a deadly weapon to-wit: a pistol. It is charged in the indictment that said officer at the time of the assault was engaged in the active discharge of his lawful duty. The trial court imposed a sentence of fourteen years imprisonment in the penitentiary. Judgment was entered therefor, and this appeal is from said judgment.

On October 29, 1974, this Court granted the State’s motion to dismiss the appeal for failure to file the transcript within the time provided by law. On August 11, 1975, the United States District Court for the Northern District of Alabama, Middle Division, issued an order finding the appellant to be an indigent and further ordering the State of Alabama to either: (1) retry the appellant, or (2) grant him an out-of-time appeal, or (3) release him from custody.

This Court on August 18, 1975, upon motion of the Attorney General, withdrew its original opinion (326 So.2d 671) dismissing the appeal, set aside such dismissal and restored the appeal to the docket, not as an out-of-time appeal, but because the original dismissal of the appeal was ordered without this Court being informed that the appellant was indigent. Upon such being made known to this Court, and being in term time, we restored the appeal to the docket. We now consider the appeal upon its merits.

It appears from the evidence that the defendant and two other men had on the night of May 10, 1972, between 9:00 or 9:30 p. m., or thereabouts, burglarized Proctor Ford, where motor vehicles were sold and repaired.

The assaulted officer, Willard Westcott, and Officer Green, an auxiliary police officer on regular duty at the time as a substitute for an absent police officer, were alerted to the entry by a motorist, Billy W. King, who happened to be passing and observed someone in the building.

The two officers, Sgt. Westcott - and Green, went immediately to the Proctor Ford building. They got out of the automobile that took them to the scene. They separated, one officer going to one side of the building and the other officer on the other side, to make an inspection.

Green testified that after he got to the back of the building, he heard Sgt. West-cott holler, “Halt.” Then he heard a couple of shots at which time he ran to a large window in the building and did not see anything there. He then heard a couple of more shots, at which time he ran over to a little window in the door of the building. He looked in this window and saw three men in the building, one of whom was the defendant, Larry Hudson Sweat. He, Sweat, had an automatic pistol in his hand that he was pointing towards a window which was broken out. He, Sweat, whirled around and ran back towards the other side of the building towards the witness. The witness was about twelve steps from Sweat. He also saw a person, later identified to him as James Thomas, whom he arrested at that time.

After the arrest, the witness then called .the police station on his car radio and then went around to where Sgt. Westcott was.

On cross examination, the witness testified that immediately after he heard Officer Westcott holler, “Halt,” he heard two or three shots, after which there was a slight pause, then heard two or three more shots. All the shots, he testified, did not have the same sound. The last was louder than the others.

Officer Westcott had a .38 caliber pistol. He was shot with a .25 caliber. A .38 caliber makes a louder report. The witness further stated that the three men he saw in the building were facing the other direction and one had on a hat. He did not see any sort of flash from inside or outside the building.. The inside of the building was lighted with lights and was just like daylight. He also testified he never saw any shots fired by anybody; that it was an automatic Sweat had; and that he never found this gun.

Deputy Sheriff Aker, called by the State, testified that about 9:30 p. m. on the night of May 10, 1972, he searched the building and found three freshly spent shells from a .25 automatic pistol. He also found a piece of lead that was fired apparently from another gun, Willard West-cott’s, that went into the trunk of a car that was sitting at the wash rack. The spent cartridges were in the wash rack inside the building at the window where Officer Westcott was shot.

Dr. John Adams, admittedly a competent physician, testified about the bullet wounds on the person of Sgt. Westcott. He stated that he extracted a .25 caliber bullet from Officer Westcott’s body and that the patient was referred to a Gadsden physician for treatment. He further testified that the patient stated that he had been shot.

There is a total absence of evidence as to who, if any, of the three men in the building, fired the pistol containing the spent cartridges. There is no testimony that the automatic pistol, which Officer Green testified he saw in the hand of the defendant, was a .25 caliber automatic. It appears further that Officer Green did not see the pistol fired, nor did he see any blaze therefrom. For aught appearing, either one of the three burglars could have fired the pistol that expelled the three spent cartridges.

Under the adduced evidence and the lack of evidence, the jury was left to rely on conjecture and suspicion as to the guilty person who wounded Officer Westcott with the bullet extracted from his body.

Under the circumstances, we are constrained to reverse the judgment of guilt entered against the defendant. The trial court erred in refusing defendant’s written request for the affirmative charge. The judgment is reversed and the cause is remanded for a new trial.

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

Reversed and remanded.

CATES, P. J., and TYSON, HARRIS and BOOKOUT, JJ., concur.

DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting).

It is my view there was sufficient evidence presented to sustain the jury’s finding of guilt.

The relevant facts indicating appellant shot Officer Westcott were: After Officer Green heard Officer Westcott shout “Halt”, he heard two or three shots and after a pause two or three more shots. The last shots were louder than the first. At that point Green ran to a small window and saw three men standing in the building. One of the men was appellant, who had an automatic pistol pointed in the direction of a broken window.

Later Officer Westcott was found lying right in front of some windows on' his back. One of the windows was broken.

Inside the building three spent .25 caliber shells were found in a washrack at the broken window.

The attending physician extracted from Officer Westcott’s back a .25 caliber bullet.

Although no one actually saw the appellant fire the pistol in his hand, the jury could reasonably infer from the facts shown that Sweat shot Officer Westcott.

This conclusion is supported by Haggler v. State, 49 Ala.App. 259, 270 So.2d 690, where the court reasoned:

“. . . [Wjhere there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value is for the jury.”

Further it is apparent that one of the three had to shoot the officer. No others were seen or found in the building and the only one of the three seen with a gun was the appellant.

Additionally, under these circumstances all could be guilty even though only one pulled the trigger.

“Conspiracy, or a common purpose to do an unlawful act, need not be shown by positive testimony. Nor need it be shown that there was pre-arrangement to do the specific wrong complained of. When two or more persons enter upon an unlawful enterprise with a common purpose to aid, assist, advise, encourage each other in whatever may grow out of the enterprise upon which they enter, each is responsible civilly and criminally for everything which may consequently and proximately result from such unlawful purpose, whether specifically contemplated or not, and whether actually perpetrated by all or less than all of the conspirators. And it is not necessary to this equal accountability that positive proof be made of the unlawful common purpose with which the enterprise was entered upon. It may be inferred from the conduct of the participants. ‘All those who assemble themselves together, with an intent to commit a wrongful act, the execution whereof makes probable, in the nature of things, a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime Martin v. State, 89 Ala. 115, 8 So. 23.

The obvious common purpose of the three was the burglary of the Proctor Ford Building and inherent in this design was their desire to escape apprehension. When one of their members started shooting, the existence of the common intent to resist arrest by violence was apparent and reasonably inferable.

At that point the common purpose became the escape.

In my judgment this case should be affirmed and based on the foregoing, I respectfully dissent.


author: ALMON, Justice.

text:
    In re Larry Hudson SWEAT v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1526.
    Supreme Court of Alabama.
    Nov. 13, 1975.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State, petitioner.
    No appearance for respondent.
   ALMON, Justice.

Petition of the State by its Attorney General for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Sweat v. State, Ala.Crim.App. 1975, 57 Ala.App. -, 326 So.2d 671.

Writ denied solely for failure to comply with amended Rule 39, Revised Rules of the Supreme Court of Alabama.

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

See also, 57 Ala.App. -, 326 So.2d 671.


text:
    Noah Michael SUITER v. STATE.
    5 Div. 297.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Rehearing Denied Dec. 9, 1975.
    Alice L. Anderson, Enterprise, for appellant.
    William J. Baxley, Atty. Gen., and Jack L. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

The grand jury of Coffee County returned a two-count indictment against appellant charging, (1) possession of amphetamine, and (2) the sale of amphetamine.

Appellant filed a motion for change of venue alleging that because of widespread publicity by the news media he was unable to obtain a fair and impartial trial in Coffee County and the other surrounding counties in that area of the state. At the conclusion of the hearing on the motion the court granted the motion and transferred the case to Lee County.

At arraignment, with employed counsel present, appellant pleaded not guilty.

The case was set for trial in the Circuit Court of Lee County on March 11, 1975. By agreement of counsel the court struck count one of the indictment and the case was submitted to the jury on count two. On March 12, 1975, the jury returned a verdict finding appellant guilty of the sale of amphetamine as charged in count two of the indictment but declined to assess a fine. Thereupon the court sentenced the accused to twelve years imprisonment in the penitentiary.

The first witness called by the state was George Donald Smith who testified that he was employed by the Alabama Department of Safety as a State Trooper assigned to the Law Enforcement Division. That on October 24, 1973, he was assigned as a narcotics undercover agent in the Investigation and Identification Unit and was engaged in undercover work in Coffee and Dale Counties. His avowed purpose was to ferret out the sale and possession of narcotics in that area of the state.

. He posed as an ex-convict. He was dressed in blue jeans and a tee shirt. He wore his hair below his ears. He had a mustache and a pretty good growth of beard at that time. He further testified that he took up residence at a place called Shady Grove Trailer Park in Daleville, Dale County, Alabama, where on October 24, 1973, he met appellant who came to the trailer at around 5:00 p.m. He described the trailer as having three bedrooms and from eight to ten young people would spend the night. That it was an open door situation where young people would go and leave at their pleasure. That'three girls stayed in this trailer more or less on a permanent basis. When eight to ten people spent the night, they would sleep in sleeping bags on the floor, on sofas, couches, or wherever they could lay their heads. He occupied a private bedroom in the trailer.

He stated that when appellant came in, he asked him if he could sell him some “speed,” and he said yes, “but I’ll have to go get it.” They agreed on the price at $45.00 per one hundred tablets of amphetamines known as “white cross.” This witness stated that appellant used the term “white cross.” He said he left Daleville and went to Coffee County to a place known as “Sergeant Pepper’s” which was a “hangout” for hippie-type people. He stated this was a little fun area type place that had pinball machines and other game machines. He arrived at this place at 8:00 p.m. and appellant arrived a few minutes before .9:00 p.m. Appellant told him he had the “white cross” or amphetamines for him but he wanted to go outside as he didn’t want to be seen selling the drugs on the inside of the place.

Smith further testified that he was driving an orange van which he used for undercover work. He and appellant walked out and got in the van and appellant asked him to pull down toward the end of a shopping center where the place was not so well lighted and he drove the van as requested by appellant and stopped the van. At this location appellant pulled out a little plastic bag tied with a little knot at the top. The plastic bag contained the amphetamines — supposed to be one hundred and he asked Smith to count them.

From the record:

“A. Well, I took out a cooler-top, an ice chest cooler top and laid on the console of this van and I clipped the top, had to clip the top off of the little plastic container, and I poured them out there and I wasn’t that interested in being exactly a hundred, so I just made a fast count. He wanted me to be satisfied that there was that amount. It turned out not to be that amount but I did thumb through them there and I said, ‘That’s fine,’ and pulled out forty-five dollars and paid him and then he left.
“Q. Did you see the defendant when he left?
“A. As I recall, he left with two girls in a little foreign-type sports car, MG or something of that sort.”

After the sale and purchase were completed Smith drove his van back in front of “Sergeant Pepper’s” place and parked. Since the plastic bag delivered to him by the appellant had been cut, he poured the small tablets in a chewing gum pack and crimped the top and that made a container for the tablets and he put that container in his pocket where it remained until about 12:40 a.m. when he turned over the container to Investigator Doug Nelson at a prearranged spot on a little dirt road in Daleville behind some abandoned houses where they could not be seen. He further stated that when he gave Nelson the container in which he put the tablets, they were in the same condition they were in when they were delivered to him by appellant as he had not opened the package.

Smith further testified that he arranged to have himself and appellant arrested at a prearranged place. He had appellant in the van with him and drove past the Coca Cola place where the officers were going to be parked. As he was driving down the road the officers stopped the van and arrested him and appellant. They were searched at the place of arrest and carried to the Dale County Jail. Later Smith was released from jail. The arrangements for the sale and delivery of the amphetamines were actually made in Dale County but the actual sale and purchase were made in Coffee County.

On cross-examination he testified that this was not the first occasion that he had dealings with appellant pertaining to drugs. He had dealings with him on three occasions. His first contact with appellant was at his home in Daleville where appellant sold him marihuana. On the second occasion the discussion was about drugs but the deal fell through. The third occasion occurred on October 24, 1973, when he bought the amphetamines from appellant for $45.00 cash.

On being questioned by the court Smith testified that appellant never offered to sell him drugs, or marihuana, or amphetamines or anything without Smith asking him for it.

Corporal Doug Nelson was the next witness called by the state. He testified that he was employed by the Alabama Department of Public Safety and is still with the Department. That in October, 1973, he was working in the Narcotics Unit, stationed in Dothan, and was in charge of ten counties. He stated that in the early marning hours of October 25, 1973, he met Patrolman George Donald Smith on a small county dirt road close to Cairn’s Army Air Field in Daleville, Alabama. He said he knew Smith as a State Trooper assigned to the Narcotics Unit, under his direct supervision, working undercover in Daleville and Enterprise. He further stated that he and Smith had routine meeting places and on October 25, 1973, he met Smith at the place above described and received from him 87 tablets of “white cross” amphetamines. When asked what he did with these tablets, he replied:

“I took these tablets and sealed them in a manila envelope, a small one, about three by five, placed the evidence inside, sealed the opening with — the little flap, wrote my initials cross the flap and sealed it with plastic tape and on the outside of it, I wrote, ‘Mike Suiter,’ and put my initials on it.”

He further testified that he received the tablets from Smith at 12:40 a.m. and after sealing the envelope, he put it in his briefcase and locked the briefcase in the trunk of his car and that afternoon at 1:50, he went to the Enterprise State Laboratory and gave the envelope to Mr. Richard Carter who was in charge of the laboratory of the State Toxicologist Department. He stated that he was the only person who had a key to the trunk of his car. He testified that when he delivered the envelope to Mr. Carter, it was in the same condition as when he received it from Officer Smith.

There was no cross-examination of this witness.

Mr. Richard Dale Carter testified he was employed at the Enterprise Regional Laboratory of the Alabama Department of Toxicology and Criminal Investigation and had been so employed for over four years. That on the afternoon of October 25, 1973, around 1:50 o’clock, Officer Doug Nelson turned over to him a small manila envelope which was sealed with masking tape and the initials “D.N.” on it. He stated he put this envelope in the evidence room in the laboratory and the next day he sent it by certified mail to Mr. Taylor Noggle to the main laboratory in Auburn, Alabama. He further testified that at the time he mailed the envelope to Auburn it was in the same condition it was in when he received it from Doug Nelson.

Mr. Taylor Noggle testified that he was employed by the Department of Toxicology and Criminal Investigation in the Auburn Regional Laboratory. He said that on October 25, 1973, he received a sealed manila envelope by certified mail number 184667, from the Enterprise Laboratory, containing a second sealed manila envelope, which had a Doublemint chewing gum package containing approximately eighty white double-scored tablets and he made an analysis on these tablets and they contained DL amphetamines. The qualifications of Mr. Noggle were admitted by defense counsel.

Upon being questioned by the court this witness said that amphetamine is a drug which is classified as a central nervous system stimulant. After the analysis was made he sealed the tablets and kept them in his possession until he went to a preliminary hearing in Coffee County in December of 1973, where the envelopes containing the drugs were introduced in evidence during the preliminary hearing. He stated that except for the analysis he made of the contents of the envelope, it was in the same condition as when he received it by certified mail.

From the record:

“MR. INGRUM: We have no further questions.
“THE COURT: At the time — you carried it to a preliminary hearing?
“THE WITNESS: Yes, sir, that’s correct.
“THE COURT: Well, you turned it over in Court at the preliminary hearing?
“THE WITNESS: Yes, sir.
“THE COURT: At that time was the envelope and the contents therein in the same condition as they were when you received them through the mail except for the examinations that you made of it?
“THE WITNESS: Except for the examination and identification marks which I put on the envelope and on the package which was delivered to me.
“THE COURT: What — do you remember what identification marks were on the envelope when you received it ?
“THE WITNESS: On the — if I can refer to my notes, I’ll tell you what was written on the envelope at the time I received it.
‘Auburn’ was written on the envelope. ‘C-99362, Mike Suiter, 10-24-73, Coffee DN’ was written on the manila envelope. The manila envelope was sealed with clear plastic tape and the initials ‘DN’ along the seals of the envelope.
“THE COURT: State whether or not that envelope from its appearance, had been opened ?
“THE WITNESS: No, sir, it had not, from its appearance.
“THE COURT: All right.”

Mrs. Gladys Clark testified that she was Clerk of the Circuit Court of Coffee County and by virtue of holding that office she was ex-officio Clerk of the Inferior Court of Coffee County on December 11, 1973. She stated that she was present at the preliminary hearing of Noah Michael Suiter when numerous pills were introduced in evidence. She said that at the conclusion of the hearing she took custody of the envelope and the contents thereof and carried them to her office and sealed the envelope and put it in the vault in her office which had a combination lock. That only she and her Chief Deputy knew the combination to the vault lock. Mrs. Clark further testified that the envelope remained in the locked vault until she removed it and carried it to appellant’s trial in Opelika. She said the envelope and its contents were in the same condition when she removed them from the vault as they were when she locked them, up after the preliminary hearing in Coffee County on December 11, 1973. After a voir dire examination the envelope and its contents were admitted in evidence.

Mr. Noggle was recalled as a witness for the state and identified the envelope and its contents being State’s Exhibit One. He further testified that he recognized these by “my case number, the date on which I received the case and, also, by my initials.”

From the record:

“THE COURT: Can you look at those and tell if the identification — the same identification marks on there that were on there when that was introduced in the Inferior Court of Coffee County ?
“THE WITNESS: Yes, sir, appears to be the same identification.
“THE COURT: And your initials on that envelope?
“THE WITNESS: My initials are on the envelope and also on the—
“THE COURT: Chewing gum wrapper ?
“THE WITNESS: Chewing gum wrapper.”

Over objections of appellant that the chain of custody had been broken, State’s Exhibit Number One, containing the envelope and its contents, was admitted in evidence.

Appellant offered the testimony of two witnesses to prove his good character and his good reputation for truth and veracity.

Appellant admitted selling Smith the drugs in question for $45.00 but only after Smith had asked him on twenty-five occasions to obtain drugs for him over a period of two weeks. His defense was entrapment.

It should be noted that appellant’s testimony is in direct conflict with the testimony of Officer Smith that he had only three contacts with appellant. On the first contact appellant sold him some marihuana. The second contact concerned the sale and purchase of drugs but the deal was never consummated. The third and last contact was on October 24, 1973, when appellant sold him the amphetamines made the basis of this prosecution.

There was no motion to exclude the state’s evidence; there was no request for the affirmative charge; there were no specific exceptions reserved to the oral charge of the court to the jury. There was a motion for a new trial, but this motion was not designed to test the sufficiency of the state’s evidence and no testimony at all was offered on the motion for a new trial. At the hearing legal arguments only were heard. In this state of the record nothing is presented for review. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358.

The evidence as to the custody and possession of Exhibit One unequivocally shows there is no missing link in the chain of identification. Identification and continuity of possession were sufficiently established, affording ample assurance of the authenticity of the tablets and the analyses conducted by the toxicologist. Green v. State, 42 Ala.App. 439, 167 So.2d 694; Dennison v. State, 259 Ala. 424, 66 So.2d 552; Lackey v. State, 41 Ala.App. 46, 123 So.2d 186; Jemison v. State, 40 Ala.App. 581, 120 So.2d 748; Aaron v. State, 271 Ala. 70, 122 So.2d 360; Powell v. State, 47 Ala.App. 582, 258 So.2d 923.

In Dennison, supra, the Supreme Court said:

* * * “The preliminary proof identifying and describing the considered articles fully complied with the rule and under no sort of theory would the trial court have been warranted in refusing their admission.” * * *

The above is fully applicable to the instant case.

In Johnson v. State, 36 Ala.App. 634, 61 So.2d 867, 869, this court stated:

“[Ejntrapment is not available as a defense to a person who has the intent and design to commit a criminal offense and who in fact does commit the essential acts constituting it, merely because an officer of the law, in his efforts to secure evidence against such person, affords an opportunity to commit the criminal act * *

To like effect are the holdings of our Supreme Court in Boswell v. State, 290 Ala. 349, 276 So.2d 592 and Johnson v. State, 291 Ala. 639, 285 So.2d 723.

We find no error in the record and the case is affirmed.

Affirmed.

All the Judges concur.