text:
    In re Noah Michael SUITER v. STATE of Alabama. Ex parte Noah Michael Suiter.
    SC 1634.
    Supreme Court of Alabama.
    Feb. 5, 1976.
    Alice L. Anderson, Enterprise, for petitioner.
    None for the State.
   ALMON, Justice.

Petition of Noah Michael Suiter for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Suiter v. State, 57 Ala.App. —, 326 So.2d 675.

Writ denied.

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


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Bruce L. SMITH, alias v. STATE.
    3 Div. 383.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.

      James W. Garrett, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Robbery; ten years.

The indictment in this case charged:

“. . . . Bruce L. Smith, alias feloniously took $5.00 in lawful currency . . . , the property of Arlin Smith, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same..."

In support of this charge the State presented the following testimony.

On April 27, 1974, Arlin Smith’s car stalled near the interstate in Mongomery, Alabama. After leaving his car, Smith walked to nearby Court Street where a car, occupied by three males, pulled into a driveway in front of him. One of the trio asked him for a cigarette. When he went over to the car the following occurred:

“. . . One asked me for a dollar in my pocket, and I told him I didn’t have one, and then he said, ‘give me a dollar in your pocket’. And I said, ‘Well, I don’t have one.’ And the guy sitting on this side of the car, the passenger, said, ‘Let me see your billfold.’ And I didn’t say anything. And the driver stuck the gun up and said, ‘The man wants to see your billfold’. So I pulled my billfold out of my pocket and said I didn’t have but five dollars, so they took my billfold and took the five dollars and gave me my billfold back. And the guy said he was going to find a store or something, so they left.”

Arlin Smith stated that the billfold was turned over to the appellant.

Detective Kenneth A. Hitson of the Montgomery Police Department received the robbery complaint on the afternoon of the incident. He testified that Smith related what had occurred and gave him the license number of the car. A line-up was conducted on the following Sunday and Smith identified the appellant.

At the conclusion of the State’s case the appellant’s motion to exclude was overruled and the following testimony was offered.

George Davis, a codefendant, testified that he met the appellant only minutes before the alleged robbery. He had been asked by George Douglas to drive the car to appellant’s house. When they arrived, Bruce Smith got into the car and Davis continued to drive. Douglas was sitting on the back seat and appellant sat next to Davis in the front seat. While driving on Court Street, Davis saw Arlin Smith and remarked he knew him. One of the others called to Smith and when he came over to the car Douglas asked for the loan. Davis gave this account of what followed:

“After that, he [Arlin Smith] said, ‘Man I ain’t got none. I ain’t got no money.’ So they kept talking, and then he said, T got one five dollars.’ And Bruce told him he had change, and he handed it to him; and then he said he didn’t have change. So then we backed out and was fixing to go. We went up on Marshall Street — .” (Bracketed material added).'

Davis denied the three had any agreement to rob and stated he did not point a gun at Arlin Smith.

In a statement made to the police, Davis admitted showing the gun to “the boy,” Arlin Smith. He stated the reason “the boy” gave Bruce the money was, “I reckon he was scared. He said he could have the five dollars, ‘just let me go home.’ ”

The appellant testified that just before they encountered Smith, Davis remarked he knew him and Douglas who was sitting on the back seat called to Arlin Smith:

“. . ." George Douglas, said, ‘Hey, man, loan me a dollar.’ So he said, T don’t have no money,’ just like that. So he said, ‘Loan me a dollar, man.’ He said, T don’t have no money.’ So he said, ‘Man, loan me a dollar.’ So he said, ‘Well, man, all I got is five dollars,’ just like that. ‘All I got is five dollars,’ and he did his hands something similar to this (indicating).
“So he went in his pocket and pulled his wallet out; and when he pulled his wallet out, he opened his wallet up, and his wallet had a little money compartment with a bill compartment. He opened it up just like that and said, ‘All I’ve got is five dollars,’ just like that. So, I said, ‘Look here, man, I might have some change.’ So I run my hand in my pocket, and I went through my bills, and I didn’t have but three one dollar bills, you know. I had about ten twenties but I didn’t have but three one dollar bills. I said, ‘Man, I don’t have no change.’ I said, ‘I’m going to go to the store and get some change,’ just like that.
“So he handed the five dollar bill in the car. He handed it to me in the car; and by me sitting on the side that he was, I took the five dollar bill. I accepted the five dollar bill from him. I said, ‘We’ll go get some change,’ so we left..."

Appellant stated he did not threaten Ar-lin Smith and denied seeing the gun on this occasion. He admitted seeing it later.

I

Under T. 15, § 389, Code of Alabama 1940, Recompiled 1958, this court is required to examine all rulings adverse to appellant’s cause and in deference to that duty we reviewed the following.

During Arlin Smith’s testimony, he began to recount what occurred after the trio drove away and subsequently returned. Appellant objected, arguing what occurred after the original encounter was not part of the res gestae. In a hearing out of the jury’s presence, the court concluded it was. Smith then testified that when the car returned, appellant approached him and this occurred:

“So he came back to the corner, and he told me- — something about first he couldn’t find a store, and then he told me to come over to the car, and I told him I had to go home. He said something. I can’t remember what he said, but that’s when he grabbed me by the arm and told me to come over to the car; so we go down, and he pulled my hair and pulled my head into the car and rolled the window up on my neck.”

Later Ted Wiggins was allowed to testify over appellant’s objection to the following facts relating to the same incident.

At about 3:30 P. M. on the day in question, Wiggins saw a car occupied by three males stop on Marshall Street. One of the occupants got out of the car and walked over to Arlin Smith. Some words were exchanged and Smith followed the man over to the car. The man got back into the car on the passenger side next to the driver. At that time, Smith bent over near the car window and the man grabbed Smith’s hair. He pulled his head into the window and rolled the window up' on Smith’s neck.

Wiggins stated he saw the driver point a gun at Smith and the man on the back seat deliver a blow to Smith’s head. At the time, Wiggins was standing in his yard and yelled at the group several times. Smith was then released and the trio drove away.

Time is not the only criterion for determining whether a thing said or done is a part of a given transaction. If the act done, or statement made leads up to, or is the result of the main fact, or tends to shed light upon, or gives character to the occurrence constituting the gist of the inquiry; then it is admissible as part of the res gestae. Dillard v. State, 27 Ala.App. 50, 165 So. 783.

In the present case the acts occurring after the main fact were not disjoined by a great span of time. The evidence indicated that the trio could not have driven more than a block before they returned to the scene. Under this circumstance, we believe the acts done and statements made afterwards were not only connected by the time factor, but were the result of the main fact. This evidence shed light upon, and gave character to thing done. It was part of the res gestae.

II

The appellant testified in his own behalf and described the circumstances surrounding his involvement in the alleged robbery. He explained they approached Arlin Smith only because George Douglas wanted to borrow a dollar from him.

When the State’s cross-examination was concluded, the court proceeded to question the appellant. After the court’s examination, defense counsel approached the bench. He requested a mistrial be declared, alleging through its questioning the court had illustrated the incongruity of appellant’s story. Counsel averred the questioning intimated an unlikelihood a loan would be sought from a little known person when appellant possessed a large sum containing dollar bills.

It was asserted that during this questioning the court demonstrated in its tone of voice and facial expressions a disbelief in appellant’s answers. Counsel complained this had a prejudicial effect on the jury.

In responding to appellant’s motion, the court remarked:

“THE COURT: Well, the Court felt it was its duty in the interest of justice to ask certain questions of the defendant so the jury would not be confused about it, because it was in the interest of justice that the Court asked certain questions that have not been asked by the lawyers. So far as the Court’s attitude and being disgusted, the Court, I might say, has been rather — I wouldn’t use the word ‘disgusted’ throughout the whole trial, because — and I have been looking at the ceiling several times, not because of what the defendant is saying, but because of what the lawyers are saying.”

The motion was overruled and the jury was recalled.

Appellant now contends it was error to refuse the motion for a mistrial. Counsel argues this behavior by the court constituted an expression of opinion on appellant’s credibility as a witness.

In determining the foregoing question we reviewed the record and found that the judge in his preliminary remarks cautioned the jury what he said during the upcoming trial was not to be taken as evidence. Also in the court’s oral charge the judge again admonished the jury on the same point in this language:

“. . . The evidence you get is what comes from here and not from anybody else, including me; so you can’t take anything I say or anything either one of the counsels says as evidence. The evidence has to come from the witness stand and from no other place, and that’s what you have to use in determining what the truth is in this particular case.”

It is difficult for us to evaluate from this cold record what impressions were given by the court’s tone of voice and facial expressions. In this regard we note a similar issue was discussed in Allen v. State, 290 Ala. 339, 276 So.2d 583. There the Alabama Supreme Court acknowledged :

“The trial judge is a human beiftg, not an automaton or a robot. He is not required to be a Great Stone Face which shows no reaction to anything that happens in his courtroom. Testimony that is amusing may draw a smile or a laugh, shocking or distasteful evidence may cause a frown or scowl, without reversible error being committed . . . ”

Unquestionably a trial judge has the right to question a witness about various aspects of a case. The exercise of this prerogative does not transcend his authority or invade the rights of the accused. Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218.

In view of the court’s admonitions and the language in Allen, supra, we are unable to find error.

Ill

It is contended that appellant’s conviction cannot stand due to the State’s failure to establish his knowledge of companion’s weapon. Counsel argues that without proof appellant knew the threat of force was being employed, no evidence existed he was an accomplice or had any intent to rob.

In the present case, appellant was not indicted for a conspiracy to commit a robbery, but as principal in the crime.

The statute pertaining to principals provides :

“ . . . [A] 11 persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, .” T. 14, § 14, Code of Alabama, Recompiled 1958.

Although a community of purpose on the part of the conspirators to act criminally must exist at the time the crime was committed, such combination may be formed in a flash. It need not be shown that the specific act complained of was by prearrangement. Ray v. State, 32 Ala.App. 556 28 So.2d 116.

The rule is well established that:

“When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not.” Stokley v. State, 254 Ala. 534, 49 So.2d 284.

In Williams v. State, 81 Ala. 1, 1 So. 179, the issue of joint culpability was considered and Judge Somerville concluded:

“ . . . [T]he responsibility for incidental and often for accidental results broadens with the magnitude or heinousness attached to the unlawful act specifically agreed to be perpetrated. This is upon the principle that every one is presumed to intend, and therefore must be held responsible for, the natural and probable consequences of his own acts. It necessarily follows that, where one person combines with another to do an unlawful act, he impliedly consents to the use of such means by his confederate as may be necessary or usual in the successful accomplishment of such an act. The more flagrant and vicious the act agreed to be done, the wider is the latitude of the agency impliedly conferred to execute it.”

Participation and community of purpose may be shown by circumstantial evidence or inferred from the conduct of the participants. Appellant’s complicity is a question for the jury. Skumro v. State, 234 Ala. 4, 170 So. 776; Pearce v. State, 4 Ala.App. 32, 58 So. 996.

Although the facts surrounding the incident given by the victim, are in conflict with appellant’s version of what happened, it is for the jury to pass on their truth or falsity. Stephenson v. State, 28 Ala.App. 418, 185 So. 910.

Mere presence of appellant in the car would not make him a principal. Raiford v. State, 59 Ala. 106. Such facts as his presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participancy may be inferred.

In the present case the evidence is undisputed that appellant was in the car during the alleged robbery and was sitting beside the driver who exhibited the gun. All three of the men in the car participated in the incident in various ways. Although the appellant did not use a gun or actually make any threats against Arlin Smith, it could reasonably be inferred that he aided in the commission of the offense.

It is our judgment the acts of the appellant in conjunction with those of his companions in the back seat and those of the driver with the gun, created a circumstance from which the jury was justified in concluding a common design to rob.

IV

At the conclusion of the court’s oral charge, defense counsel approached the bench and requested appellant’s written instructions be given. The judge declined and explained they had been incorporated in the court’s oral charge. Appellant did not take an exception and announced “Satisfied.” Counsel contends the refusal of appellant’s requested charges was error.

We reviewed the refused charges and found they were covered by the court’s oral charge or were invasive of the jury’s province; their refusals were proper. T. 7, § 273, Code of Alabama 1940, Recompiled 1958.

V

The evidence detailed above presented questions of fact for the jury and such evidence if believed was sufficient to sustain a conviction. Denial of the motion to exclude and the overruling of the motion for a new trial were proper. Young v. State, 283 Ala. 676, 220 So.2d 843.

Affirmed.

All the Judges concur.


author: ALMON, Justice.

text:
    In re Bruce L. SMITH v. STATE. Ex parte Bruce L. Smith.
    SC 1688.
    Supreme Court of Alabama.
    Feb. 20, 1976.
    James W. Garrett, Jr., Montgomery, for petitioner.
    None for the State.
   ALMON, Justice.

Petition of Bruce L. Smith for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Smith v. State, 57 Ala. App. -, 326 So.2d 680. Writ denied.

HEFLIN, C. J., and BLOOD WORTH, FAULKNER and EMBRY, JJ., concur.


text:
    Eva Austin WILLIAMS, alias Coony Williams v. STATE.
    6 Div. 865.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    On Rehearing Ex Mero Motu Denied Jan. 16, 1976.

      Ralph C. Burroughs, Public Defender, James P. Smith, Third Year Law Student, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

On separate indictments, one charging defendant-appellant with an assault with intent to murder Leonard M. Euler and the other with the crime against nature with Leonard M. Euler, the cases were consolidated for trial by agreement of the parties and the jury returned verdicts of guilt in both cases. His punishment was fixed at imprisonment in the penitentiary for twelve years in the assault with intent to murder case and for five years in the crime against nature case. The cases are submitted on appeal on a consolidated record and briefs of attorneys for the parties.

Euler was a patient at Bryce Hospital and, in an effort to go therefrom to his home in Birmingham he asked one of a group of men in an automobile for a ride. According to Euler, defendant was asleep in the back seat of the automobile and appeared to be intoxicated at the time. Euler further testified that he offered the men some money to take him to Birmingham and that they agreed to take him to Bessemer, but that they drove him to what he afterwards learned was appellant’s home in Brookwood, in Tuscaloosa County. During the trip Euler said he consumed several beers. As they arrived at appellant’s house, it seemed that appellant had locked himself out of his dwelling and that some of the occupants of the automobile attempted to break into the house. One occupant, Gary Mahan, gave Euler a tire tool in order to attempt to break the lock on one of the doors. Meanwhile, appellant, who had gained entrance through the back door, observed Euler trying to break the lock with a tire tool, took the tire tool away from Euler and hit him on the head. Thereafter, they all went into the bedroom of the house, where Mahan proposed sexual intercourse in the presence of defendant and Cecil Higginbotham, who had been in the automobile with them. Mahan started beating on him; the others did not hit him. He said there was some anal penetration by Mahan.

Mahan testified as a witness for the State, he having been indicted in a separate indictment for carnal knowledge of Euler. He said he was drunk at the time. Although defendant did not personally commit the unnatural act, Mahan, as well as Euler, testified in detail that defendant was present at the time and aiding Mahan in his criminal conduct. Mahan testified that the defendant made the proposal to Euler. He testified that all had been drinking. He further testified that he applied a lighted cigarette to defendant’s buttocks, which according to a physician who examined Euler after the incident:

. . [WJould tend to overcompensate' or overtrigger the nervous impulse that go to the rectal sphincter. This is a muscle that holds the rectum together and if you excite the nerves to this muscle often enough, then you pass a threshold that they can be excited and the muscle relaxes.”

The other occupant of the automobile, Cecil Higginbotham, testified that after they went into the house defendant told Euler that he would teach him “the way they do it in prison,” referring to the particular form of sexual perversion involved. He said he was not in the house at the time of the alleged act of carnal knowledge. He said he saw defendant hit Euler with the tire tool, which he testified that defendant obtained from the automobile.

We see no need to discuss further the repulsive testimony as to the crime against nature charge. To be added to our summary of the evidence as to the assault with intent to murder charge, we note that pictures of Euler taken soon after he went to the hospital for his injuries show that he received a severe injury to his head. We are convinced that the evidence amply supports the verdict of guilty in each case.

Before arraignment of defendant was completed, he was presented a written detailed explanation of rights in each case, which he and his appointed attorney acknowledged in writing. In the crime against nature case, it was erroneously stated that the minimum punishment was imprisonment in the penitentiary for “one year” instead of “two years” as provided by Code of Alabama 1940, Title 14, Section 106. In all other respects the explanation of rights in each case was accurate. Appellant urges that the mistake made in this particular constituted reversible error in the crime against nature case. Communication to an accused of information of minimum and maximum possible sentences is a prerequisite to the acceptance of a guilty plea. Carter v. State, 291 Ala. 83, 277 So.2d 896. The principle was subsequently applied in Moore v. State, 54 Ala.App. 463, 309 So.2d 500, and appellant seeks to avail himself of language in that opinion wherein the court, in emphasizing the reason for requiring such information before accepting a plea of guilty, said that defendant would thereby have an opportunity to give as adequate consideration to the possible extremity of the consequence if he pleads not guilty as if he pleads guilty “so that he can determine voluntarily and intelligently whether he is willing to risk such punishment by a trial on a plea of not guilty.” This, however, was said in the context of a plea of guilty. A similar reason does not apply to the acceptance of a plea of not guilty. In fact, the court has no discretion in the matter of the acceptance of a plea of not guilty. A trial judge is not required to inform defendant as to the consequences of a plea of not guilty when there is not before the court a proposal or an offer to plead guilty. There was no such proposal or offer in this case. In this circumstance the action of the court. in advising defendant on the subject of the minimum and maximum punishment was supererogatory. By no stretch of reason can we find that defendant was in any way prejudiced by the inaccuracy.

If Euler consented to the unnatural intercourse by Mahan, as to which there was evidence that defendant was an abettor, Euler would have also been guilty of a crime against nature. As to defendant, he would have been .an accomplice, but if he did not consent, or if his consent was forced or coerced by fear or duress, he was not an accomplice, and his testimony did not require corroboration to sustain a conviction of defendant on that charge. LaBryer v. State, 45 Ala.App. 33, 222 So.2d 361. There was strong evidence that Euler was not an accomplice, that he did not voluntarily consent to the carnal act.

In connection with the question whether Euler was an accomplice, appellant urges that certain written charges requested by him as to an accomplice should have been given. . In Charge X, Euler is categorized as an accomplice, which of itself justified its refusal. In VIII and IX, Mahan and Higginbotham are referred to respectively as accomplices. The testimony of neither should have been singled out as that of an accomplice requiring corroboration. Where one witness who is not an accomplice testifies as to all essential facts, there is no necessity for an attempted application of the rule to another witness who is an accomplice. In none of the requested charges does the defendant in effect request that the court instruct the jury that if Euler was an accomplice the jury could not convict defendant of the charge of the crime against nature on his testimony alone or upon his testimony without corroboration. Nor was any charge requested substantially the same as the charge (Charge 2) that was held to have been erroneously refused in LaBryer v. State, supra.

At the conclusion of the oral charge, defendant excepted to “the fact the court failed to charge the jury as to an attempt in the case of sodomy.” The trial court did not charge the jury as to an attempt to commit sodomy or a crime against nature. Appellant urges that the court’s failure to so charge the jury constituted prejudicial error. The State urges that the evidence would not support a finding of a mere attempt, that if the testimony as to what occurred is believed, the crime expressly charged was consummated. The evidence showed that Mahan had entered a plea of guilty to the charge of “sodomy” and that he testified in this case. Euler testified that there was penetration. We see little, if any, basis for a contention that there was a mere attempt. To have justified an instruction as to an attempt the evidence must have furnished reasonable support for the contention that Mahan’s conduct, as to which defendant was found guilty as an abettor, fell short of the crime expressly charged. Stovall v. State, 34 Ala.App. 610, 42 So.2d 636. Moreover, defendant requested in writing a charge that unless the jury “finds proof of penetration, it must acquit the defendant.” Even though the written charge was refused by the trial court, it did charge the jury orally that penetration was essential to a conviction in the case, which in effect constituted an instruction in accord with the written charge requested, which would have been contrary to any charge to the effect that defendant could have been convicted of an attempt.

There are times when it is to the best interest of defendant in a criminal case to have a jury instructed as to an attempt or any other lesser included offense. On the other hand, there are times when it is to the best interest of defendant for the case to go to the jury on the issue as to the express charge only. If the evidence reasonably supports a position that he was not guilty of the express charge but that he was guilty of a lesser included charge, he is entitled to instructions as to the lesser included charge or charges, but he is not entitled to inconsistent charges on the subject, one in effect saying that there can be a “not guilty” verdict if he has not committed the offense expressly charged and the other saying that there can be a “guilty” verdict, even though he has not committed the offense expressly charged but has committed a lesser included offense. He may be entitled to one of the two at times, but he is never entitled to both. We find no error in the action of the trial court as to the question of a lesser included offense in the “sodomy” case.

In the assault with intent to murder case, the court did orally charge as to the lesser included offense of assault and battery. Defendant reserved no exception to any of the court’s charge in this respect. He requested two written charges in that case which were refused. One was clearly covered by the oral charge. The other was:

“II
“I charge you that voluntary drunkenness is no excuse for a crime involving a specific intent, regardless of the defendant’s resulting mental condition, though such drunkenness may negate the intent, consequently reducing the offense from assault with, intent to murder to assault and battery.”

Although there was some evidence that defendant was intoxicated at the time he struck Euler over the head with the tire tool, it is far from conclusive that he was so drunk “as to render impossible some specific mental condition which is an essential element of the criminal act,” The requested charge was not predicated upon such a state of intoxication and was properly refused. Walker v. State, 91 Ala. 76, 9 So. 87 (1890); Beasley v. State, 53 Ala.App. 488, 301 So.2d 252 (1974).

Over the objection of defendant, the court admitted in evidence photographs of Euler’s buttocks taken while he was in the hospital after the alleged crimes. Appellant complains that the admission in evidence thereof constituted reversible error, that the probative value of the photographs was outweighed by their prejudicial effect by reason of their “gruesome and prejudice arousing” appearance. We think that the court, the jury, and we could have been well spared the necessity of viewing them, but having done so we are convinced that the trial court was not in error in admitting them.

The record recites that while a witness was testifying the trial judge addressed a bailiff, saying “that fellow back there keeps shaking his head. Take him out of the court room. All right, go ahead.” We note no further reference to the incident in the record. In this brief he states:

“Appellant does not contend that the Court lacks the authority to eject someone from the courtroom who causes a disturbance. In this instance, however, the person who was ejected was an epileptic. He had a nervous twitch that caused his head to nod. This was an insufficient reason to have him ejected. For this error the convictions should be reversed.”

Appellant contends that by the incident defendant was denied his right to a public trial. He cites the Sixth Amendment of the United States Constitution and Article I Section 6 of the Alabama Constitution of 1901. We see no need for indulging in the ramifications of the question whether a public trial is mandated in prosecutions in state courts by the Sixth Amendment or the Fourteenth Amendment of the Federal Constitution. 21 Am.Jur.2d, Criminal Law, § 257; 4 L.Ed.2d 2132. It suffices that the right to a public trial is guaranteed by Section 6 of the Constitution of Alabama of 1901 in all criminal prosecutions, other than those excepted by Section 169. That right has been zealously upheld by the appellate courts of the state of Alabama, but no authority is presented wherein the principle has been applied to a situation such as the one involved here. If the conduct of a spectator admitted to a criminal trial interferes with the administration of justice, he may be removed. Such removal does not constitute a denial of any right of the public or the accused to a public trial. 21 Am.Jur.2d, Criminal Law, § 264; United States v. Kobli, 172 F.2d 919 (3rd Cir.); State v. Keeler, 52 Mont. 205, 156 P. 1080. No showing is made to the effect that any removal of the spectator was not for the best interest of the defendant or that the trial judge in any way abused the discretion vested in him to prevent a distracting influence that would interfere with the administration of justice.

Other asserted bases for reversal relate to portions of the oral charge of the court to which no exceptions were taken or objectons made. Such contentions of error are not reviewable on appeal. Morris v. State, 53 Ala.App. 236, 298 So.2d 658 (1974); Loggins v. State, 52 Ala.App. 204, 290 So.2d 665 (1974). The cases cited are in accordance with an unbroken chain of authorities extending back to at least the middle of the last century, as indicated in McPherson v. State, 198 Ala. 5, 73 So. 387 (1916).

The public defender representing appellant has presented, we believe, every conceivable question that could be raised, and he is to be commended for his efforts. In addition, we have undertaken to search further the record for error prejudicial to defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 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.

      . To avoid confusion, it is to be noted that “accomplice” has two distinct fields of consideration and application in this case: (1) ■Whether defendant was an accomplice of Mahan so as to warrant defendant’s conviction and (2) Whether Euler was an accomplice of Mahan so as to require corroboration of his testimony.


author: FAULKNER, Justice.

text:
    In re Eva Austin WILLIAMS v. STATE of Alabama. Ex parte Eva Austin Williams.
    SC 1655.
    Supreme Court of Alabama.
    Feb. 20, 1976.
    Ralph C. Burroughs, Public Defender, Tuscaloosa, for petitioner.
    None for the State.
   FAULKNER, Justice.

Petition of Eva Austin Williams for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Williams v. State, 57 Ala.App. -, 326 So.2d 687.

Writ denied.

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


author: CATES, Presiding Judge.

text:
    Gary David SMITH v. STATE.
    7 Div. 380.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Rehearing Denied Dec. 9, 1975.

      Wilson, Propst & Ison and Gordon F. Bailey, Jr., Anniston, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

The charge was rape, the verdict guilty and sentence is ten year's in the State’s penitentiary.

The prosecutrix testified that Smith— whom she identified from pictures, in a lineup (where he had a lawyer) and in court — came to her apartment December 20, 1974. He asked directions to the apartment of another woman. On the prosecu-trix’s undoing the door chain to point out beyond the entry, Smith pulled a gun and forced his way inside. Her scream was heard by a ten year old child. Smith forced himself upon the prosecutrix, having torn her garments off. She further testified that he slapped her and her chest got scratched.

In the course of the intercourse the prosecutrix noticed a question mark tattooed on Smith’s hip. A police photograph corroborated this proof. The State proved penetration and early complaint.

Smith’s defense was alibi. Though he did not take the stand, he preferred one Patricia McGinnis who stated she was with appellant in the afternoon and evening of December 20, 1974. The jury had her testimony read back by the court stenographer, over objection of defense counsel.

I

The first claim of error is based on the judge’s overruling this objection.

We consider' that the trial judge did not abuse his judicial discretion in letting the jury hear from the reporter’s notes. There is no claim of inaccuracy of the reading as was shown in Adams v. State, 46 Ala.App. 402, 243 So.2d 386.

We see no prejudice to the appellant from the repetition. Morrow v. State, 52 Ala.App. 145, 290 So.2d 209. See also, Autry v. State, 34 Ala.App. 225, 38 So.2d 348; Anno. 50 A.L.R.2d 176, § 2(a).

Ordinarily the judge admonishes the jury that they, as triers of fact, should pay attention to the witnesses and remember the testimony. Certainly he, under Code 1940, T. 7, § 270, may not without a request charge on the effect of the testimony. Therefore, the only way the jurors can refresh their recollection of viva voce evidence under our present reporting system is to have a reading from the notes taken in open court.

A party may always tender a written requested charge that the jury must consider all the evidence. Such a charge could have been tendered in circumstances such as we have here because the jury is not in retirement.

II

The defense, at the close of the State’s case in chief, moved to exclude the evidence. One of the grounds was failure of proof of penetration. On appeal his argument boils down to:

“ * * * By the State’s own testimony, there was no evidence of penetration except that of the prosecutrix who according to her testimony, had never previously engaged in sexual intercourse.”

On both direct and cross examination the prosecutrix testified that she was penetrated. On cross she further was asked if she was aware of the meaning of the term. (R. 108).

Appellant mistakes the office of corroboration in rape cases. At common law corroboration was adjured as a help to the jury but it was not, and is not, a mandatory element of proof. iv. Blackstone Comm. 213. Certainly a woman taken forcibly or under duress cannot rationally be considered as an accomplice of the rapist. Plainly, Code 1940, T. IS, § 307 does not fit a ravisher.

The fact that a physician cannot detect laceration of the vagina, vulva or pubic area of the victim, does not negative penetration. Such a fact may be negative proof on the issue of consent vel non. But as negative proof its office is to raise doubt, not to take the case from the jury.

Moreover, the physician did testify as to the prosecutrix’s having a bruised cheek. Other corroborative testimony came from her screaming as Smith forced himself into her apartment. Another witness testified that Smith came to her apartment afterwards and she saw the gun. He also hid until a detective went away. The photograph of the question mark on Smith’s hip tells more than a thousand words to bear out the prosecutrix, particularly where the defendant did not rely on consent, but only identification.

Her making a complaint to another female tenant of the building at the earliest possible moment is admissible — strictly not as corroborative — but to show consistency with her trial testimony, a kind of allowable anticipatory bolstering of a witness.

The motion was palpably frivolous. The affirmative charge was not warranted.

We have carefully reviewed the entire record and consider the record is free of error. The judgment of conviction is

Affirmed.

All the Judges concur.

      . “The court may state to the jury the law of the ease, and may also state the evidence when the same is disputed, but shall not charge upon the effect of the testimony, unless required to do so by one of the parties.” Code 1940, T. 7, § 270.


text:
    In re Gary David SMITH v. STATE of Alabama. Ex parte Gary David Smith.
    SC 1619.
    Supreme Court of Alabama.
    Feb. 5, 1976.
    Gordon F. Bailey, Jr., Anniston, for petitioner.
    No appearance for the State.
   ALMON, Justice.

Petition of Gary David Smith for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Smith v. State, 57 Ala.App. -, 326 So.2d 692.

Writ denied.

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


author: CATES, Presiding Judge. CATES, Presiding Judge.

text:
    Kenneth Ray BARTON v. STATE.
    4 Div. 376.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Rehearing Denied Dec. 16, 1975.
    James M. Prestwood, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

This case originated under an indictment in Covington County which was transferred to Pike for trial.

The appeal is from an involunatry manslaughter conviction, which came from a jury’s verdict which also fixed a fine of $500.00 and carried a sentence of twelve months imprisonment in the county jail. On the defendant’s failure to pay the fine and costs or confess judgment therefor, the court additionally sentenced Barton to serve 145 days for the fine and 135 days for the costs of $403.85.

I

On the night of Friday, April 19, 1974, about 8:30 or 9:00 p. m., K. M. Las-siter, a highway patrolman, stopped Kay Lord on US 331 north of Opp. She had been going south driving 61 mph in a 55 mph zone. Officer Lassiter, after giving her a warning ticket, was preparing to get back in his patrol car when a pickup truck sideswiped Miss Lord’s MG, the patrol car, and struck Lassiter. Lassiter was dead when he was brought to the hospital in Opp.

The investigators for the Department of Public Safety and “criminalists” from the Toxicologist’s office collected broken chrome strips and other debris from the two sideswiped cars.

The State produced as a witness Billy Joe Coon, employed by a contractor engaged in work at a nursing home on the north side of Opp. At the job site was a trailer used as the job office. It had a refrigerator which on the afternoon of April 19 had a stock of beer. The appellant drove up in his Chevrolet pickup truck. Also there was “Slick” Dority who was tending the trailer that weekend for the general contractor.

Barton brought and unloaded some equipment to be used later by his' crew— he being the masonry subcontractor.

Coon and Barton engaged in target practice and all three men drank beer, then about dark they went to the Red Wagon. There, according to Coon, each bought a round of beer and then went back to the nursing home. There Barton got in his truck and drove off. Coon saw no one else in the vehicle; he thought it was 8:35 or 8:40 p. m.

The next morning Barton’s father brought the truck in to the Sheriff’s office. It had been badly torn up on the left front side. The appellant rode into Andalusia with his father.

J. B. Pemberton, an investigator with the Department of Public Safety, took appellant to an upstairs office in the court house. He administered the Miranda warnings to Barton. The State — though contradicted by the defense — made sufficient showing of voluntariness to support the trial’s judge’s ruling that Barton’s statement could go to the jury.

We quote in part from Officer Pember-ton’s testimony relating his interrogation of the appellant:

“And got off at about 4:00 P.M. I stayed around the nursing home and was working on a fork lift. With me was a man whose last name is Coon, white male about thirty to thirty-two who lives in Opp, Alabama.

“Q. Said he was with a man named Coon about 30 to 32 years old ?

“A. Lived in Opp, Alabama.

“Q. All right.

“A. And a white male who is about fifty and he goes by the name of Slick who I think lives in Anniston, but stays in a trailer which belongs to O. V. Industries and is located there at the nursing home. We were all drinking beer, Bud and Schlitz, and I dranked a lot and I was drunk.

******

“Q. Continue please ?

“A. We decided to leave and they told me I couldn’t drive for I was too drunk. I had dranked several beers before I started drinking with them. I had went out to Donaldson’s Grocery and bought a 6 pack of Schlitz about 2:30 P.M.

“Q. What time was that ?

“A. Two thirty P.M.

“Q. And that’s talking about the day before on the 19th ?

“A. Friday the 19th. And dranked this before quitting time. I had also dranked some that morning that I had bought at the same place.

% ‡ ‡ ‡ ^

“Q. Please continue.

“A. We left the nursing home in Coon’s car, about a ’66 Chevrolet, grey, with Coon driving and we went somewhere where there was loud music and dancing. I drank several beers and some mixed drinks while there. It was dark when we went there, but I don’t know what time it was. I was too drunk to recognize anyone there that I knew. I don’t even remember leaving this place. I don’t even remember being in the pickup truck at all last night. It was left at the nursing home when we went to this joint or dance hall. I got off stool to dance and hit the floor and I don’t remember anything from there until about 10:15 A.M. this morning. My mother called. The telephone was what woke me up. I was at my home in bed. I answered telephone and it was my mother, Beatrice Barton, who lives nearby. She called to find out how my father-in-law, Tom Rawls, was. We talked about this for about five minutes. Mother asked me had I heard the news and I said, no, and she said you remember that patrolman that kept you from bleeding to death last year. I said, yes. She said somebody run him down last night. I said, ‘Oh, good Lord,’ and asked her if they had found out who done it. She said, no, they got a statewide search out looking for him. This was the first time I heard anything about the patrolman and remarked to her that it looks like you can’t even walk out into your back yard now without getting run over or shot by black panthers or some revolutionist of some kind. Then I went back and lay down and went to sleep. In a little bit I heard someone driving up, because my dog barked and it was my daddy, Fletcher Barton. I got up when he came into the house and went into the kitchen where he was. We discussed a fence and the problem we had regarding said fence. We walked out back and got a pack of cigarettes out of the right side of my truck. When I walked around I saw the truck was bent up on the left side and I said, ‘Oh, my God, somebody has tore my truck up again. Then I stood there and looked at the truck and could see what looked like blood. I remembered then what my mother had said about the trooper being run down and she told me that they had said over the radio that they had a hub cap and a head lamp. That’s when I noticed both of my hub caps on the driver’s side were gone. I said to daddy that this might be the truck that they are looking for because the hub caps missing and mother told me that the pickup was a late model that they were looking for. I told daddy I was going to carry the pickup down to the sheriff’s office. Daddy said no you can’t drive, but I’ll drive you down there. I was still in kind of bad shape. We left and came to sheriff’s office and met Glenn Chambers, a deputy, and asked him to go look at the pickup and see if he could tell me if that was the one involved in that last night of running Mr. Lassiter down. After looking the truck over Deputy Chambers said I am not positive, but I think it is. He looked the truck over and said it looked like where his (Lassiter) head hit the windshield. I said well, good Lord, let’s get something straight. If I was on that pickup and I done it I want to know it. We came back inside the sheriff’s office. This was about 12 noon. We sat around the sheriff’s office and I guess the sheriff called somebody, for in a little while, about ten to fifteen minutes later Mr. Brewer came in. ‘

“I never go up U.S. 331 after work to go home or I never come that way coming to work. If I was going up 331 to go home I would have to go to Brantley I reckon to get back to Gant. [Barton lived on the Gant-Red Level road.]

“I do own the ’73 Chevrolet pickup that I came to the sheriff’s office in. I came to work at about seven A.M. yesterday in my pickup. The last time I drove it was about 2:00 P.M. I went to a place which is south of Opp going toward Florala. It' is about two miles south of Opp. I don’t know the name of it, but it’s got a neon light in front of it. It’s a little grocery store that sells beer. It’s on the right hand side going south. I bought two beers there.

“All this time my truck was not bent up. The last time I saw my pickup on the past date was about 4:15 P.M. at the nursing home. I pulled it up by the fork lift we were working on. The truck did not have the windshield broke out at this time.

“I have told you the truth as far as I can remember.” — bracketed matter added.

Pemberton also asked Barton what clothes he had worn the night before. It turned out that Mrs. Barton had already washed them except for his socks and shoes. Pemberton took these and put them in a plastic bag which he turned over to one of the assistant toxicologists.

Slivers of glass were found in the socks and shoes (Defendant’s Exhibits C and D). Tellis Hudson, who was qualified by the trial judge as a forensic “criminalist” testified that the glass from the shattered truck windshield and the slivers from Exhibits C and D had the same density and refractive index. R. 168.

Earlier Hudson had testified on direct examination:

“q. * * * Tell the jury about the differences in glass. Let me ask you this question, I withdraw that. Glass from way up one side, the left top of the windshield, could be different in density and what do you call it?

“A Refractive index.

“Q. Refractive index. Than glass slivers from the lower right hand corner is that correct?

“A. I am saying it possibly could be.

“Q. Possibly could be different is that what you are saying? “A. Yes, sir.

“Q. But did I hear you testify that all of the teaching and materials you have read and the tests you have seen conducted show that when these characteristics are identical then in your opinion they came from the same little area, or the opinion of experts they came from the same area, is that right.

“A. From the-same area or fairly close. No more than I know about the glass industry, I do know that when glass is made or melted there is no way in the world, I mean there is no substance or thing known to be able to stir molted glass. It will melt anything that stirs it. In fact, it even destroys the vat that it is in gradually. So there is no way to stir it, so any place inside the vat is going to be different from another place.

“Q. Any place inside is going to be different from another place in refractive index and density?

“A. It would be highly improbable to pour two sheets of glass with the same density and refractive index.”

There was sufficient evidence, which if credited to the required degree, supports the verdict.

II

The maximum imprisonment for manslaughter in the second degree is one year in the county jail (or at hard labor if the jury so specifies). Code 1940, T. 14, § 322. This, under Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2216, 26 L.Ed.2d 571, precludes further imprisonment of an indigent to work out the fine and costs, under the equal protection clause of the Fourteenth Amendment.

However, although the defendant testified that he had liabilities of $60,000 and assets at the time of sentencing of $15,000 or $16,000, we note that he made a $3,000 bond on taking his appeal. The trial judge did not rule on whether Barton was an indigent.

In the opinions of the Supreme Court of the United States it is clear that a pauper payment of fine and costs cannot carry imprisonment beyond the maximum for the crime, i.e., one year in this case. Equally, that court has treated the civil obligation to pay fine and costs as one for which the contempt power may be used if the convict defaults on reasonable installments.

The critical time for the application of Williams v. Illinois, supra, is when the primary term of incarceration ends. In this case the appellant may treat the judgment as an inchoate one with either civil or criminal aspects, at least until he ends his first year’s servitude in the county jail. At that point, if he still considers himself an indigent, he may proceed by way of habeas corpus. Short, 46 Ala.App. 445, 243 So.2d 529; In Re Jackson, 26 Ohio St.2d 51, 268 N.E.2d 812; Rutledge v. Turner (Okl.Crim.), 495 P.2d 119.

After review under Code 1940, T. 15, § 389, the judgment below is '

Affirmed.

All the Judges concur.

ON REHEARING

CATES, Presiding Judge.

On rehearing appellant claims that the statement that Lassiter once saved Barton’s life was a canard.

We do not think the truth of that assertion [which appears in the statement given by Barton to Pemberton quoted above, see p. 697 of this Ms] was an issue in the trial. That Pemberton wrote it out comes down to the credit to be attached to a peripheral part of his testimony. He claimed that was part of what Barton told him.

Application overruled.

All the Judges concur.

      . See f.n. 5, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2216.

      . Neither brief of appellant complies with Rule A, 49 Ala.App. XXI, or Rule 28(a) (7) ARAP.


author: EMBRY, Justice.

text:
    In re Kenneth Ray BARTON v. STATE. Ex parte Kenneth Ray Barton.
    SC 1629.
    Supreme Court of Alabama.
    Feb. 5, 1976.
    James M. Prestwood, Andalusia, for petitioner.
    Gary R. Maxwell, Asst. Atty. Gen., opposed.
   EMBRY, Justice.

Petition of Kenneth Ray Barton for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Barton v. State, 57 Ala.App. -, 326 So.2d 695.

Writ denied.

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


text:
    Robert ARNOLD v. STATE.
    6 Div. 64.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Robert Armstrong, Alabaster, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Randolph P. Reaves, Asst. Atty. Gen., Birmingham, for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was indicted and tried for burglary in the second degree, found guilty by a jury, and sentenced by the court to imprisonment in the penitentiary for six years.

According to the testimony of Wanda M. Lewandoski, her residence was broken into while she was at work and away from her home. Several items were taken from her home, including an unsigned personalized check. The particular personalized check, with her name and address thereon, was identified by her as a witness in the case as one that had been subsequently negotiated, as though signed by her and made payable to Oscar Short. She testified that the signature was not hers and that she had not “made out a check” to Oscar Short and had not authorized anyone to do so.

According to the testimony of the cashier of the bank who cashed the check, it was presented by a man who looked like defendant, although she testified on cross-examination that she could not positively identify defendant as the man who presented the check. The check bore the endorsement of Oscar Short. She required identification, and he presented a driver’s license which bore the name of Oscar Short. She required the one who presented the check to endorse it again, which he did in the name of Oscar Short. The driver’s license gave an address of 1940 Henrietta Drive.

Oscar Short testified that his name as an endorser on the check was a forgery; that his address was 1940 Henrietta Drive; that a short time before the check was negotiated he was robbed of his billfold, in which he kept his driver’s license. On cross-examination he testified that defendant was not the person who robbed him.

Sergeant K. R. Merchant and Sergeant W. D. Prier, deputy sheriffs of Jefferson County, testified that defendant admitted that he was guilty of the crime charged. Evidence was received as to his confession after a showing of its voluntariness and that he was fully advised of all of his rights. The admissibility of the testimony is not challenged, except in the one particular hereinafter discussed.

Edward Chandler, a witness for defendant, testified that he and defendant were in Atlanta all day January 20, 1975, the day of the burglary and the day the personalized check discussed above was cashed at the bank.

James H. Yarbrough, a deputy sheriff of Jefferson County, was called as a witness by the defense. He testified that on February 10, 1975, he stopped and searched an automobile registered in the name of defendant. Defendant was not in the automobile, in which were three occupants. He found a billfold in the automobile, three driver’s licenses of different people in the billfold and credit cards on two different stores, some social security cards and some selective service cards.

A confession without independent evidence of the corpus delicti is not sufficient to support a conviction. King v. State, 49 Ala.App. Ill, 269 So.2d 130. The State has the burden of proving the corpus delicti independently of defendant’s confession before a conviction can be upheld. Robinson v. State, 45 Ala.App. 74, 224 So.2d 675; Martin v. State, 44 Ala.App. 395, 210 So.2d 704; Connell v. State, 39 Ala.App. 531, 105 So.2d 695, cert. denied 268 Ala. 692, 105 So.2d 700. There was proof of the corpus delicti before any testimony as to defendant’s confession was presented. Other than the necessity for proof of the corpus delicti, there is no requirement that a defendant’s confession be corroborated. King v. State, supra.

Proof of the corpus delicti does not necessarily include evidence connecting defendant with the crime. The term, meaning body of the offense, connotes the actual commission of the crime by someone. Latham v. State, 38 Ala.App. 92, 77 So.2d 499, cert. stricken, 262 Ala. 108, 77 So.2d 502; Malone v. State, 37 Ala.App. 432, 71 So.2d 99, cert. denied, 260 Ala. 699, 71 So. 2d 101.

Evidence showing the corpus de-licti coupled with evidence of the confession of defendant furnished a sufficient basis for the verdict of the jury. In addition, the evidence of the bank cashier stating that the person who cashed the check looked like defendant adds strength to the verdict. Evidence identifying the accused as the perpetrator of a crime does not have to be positive and uncontradicted. Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336.

Appellant challenges the admissibility of the confession for one special reason only. During the voir dire examination of one of the witnesses to the confession, the following occurred:

“Q And what did he say to you at this time?
“A He admitted that he had committed this burglary.
“Q And exactly what did he say to you, if you recall ?
“A We told him that the lady was a federal judge, and he said:
“ ‘Well, I just blew it.’
“He said that he took the checks and carried them to the bank immediately after the burglary and cashed the check.”

In identifying the victim of the burglary, the first witness for the State in the case, she was asked as to where she was employed, and she replied:

“I am an administrative law judge for the Bureau of Hearings and Appeals, for the Social Security Administration.”

Appellant seeks to construe the officers’ statement as a threat, saying:

“Said statements were calculated to produce a result. It could be foreseen that such statement would engender great fear and misgivings, particularly, in view of the fact that the two interrogators were acting in an official capacity. It was not enough that appellant was told that the victim of the crime was a Judge, but even more discerning and alarming, she was a Federal Judge!”

Appellant does not favor us with any authority to support him as to the particular point now considered. We do not view the statement as an implied threat. Certainly it was not an express threat. We look upon it as a mere identification in addition to the name of the victim and as having been made with no coercive intent or result. It is to be noted that on the voir dire examination, on cross-examination by defendant, the officers discussed with the defendant “numerous other burglaries” he had committed. This may shed some further light upon the interjection by the officers of the employment or position of the victim in further identifying this particular burglary. After the voir dire examination, defendant continued to insist on his objection to evidence of the confession, but we find that he did not make the point in the trial court that the confession, proved to be admissible in all other respects, was vitiated by reason of the reference to the position held by the victim. It was not, in our opinion.

We have considered hereinabove all of the contentions made by appellant. In addition, we have searched the record for any error prejudicial to him and have found none.

The judgment appealed from should be affirmed.

The foregoing opinion was prepared by Honorable Leigh M. Clark, Supernumerary Circuit Judge, serving as a judge of this Court under Section 2 of Act No. 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.


author: HARRIS, Judge.

text:
    Undary HAMILTON v. STATE.
    7 Div. 413.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Oliver P. Head, Columbiana, for appellant.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

On March 17, 1975, the grand jury of Shelby County, Alabama, returned the following indictment against appellant:

“The Grand Jury of said County charge that before the finding of this Indictment Undary Hamilton whose true name is to the Grand Jury unknown, otherwise than as stated, did on to wit: May 23, 1974 unlawfully sell, furnish or give away Lysengic Acid Amide, a narcotic drug, contrary to and in violation of the provision of »ct No. 1407 of the 1971 Regular Session of the Alabama Legislature, otherwise known as the Alabama Uniform Control Substances Act and that such sale, furnishing or giving away took place subsequent to September 15, 1971 against the peace and dignity of the State of Alabama.”

On May 5, 1975, the trial court determined that appellant was indigent and counsel was appointed to represent him. On the same day appellant moved to be treated as a youthful offender, and the probation officer was ordered to make an investigation for that purpose. On August 1, 1975, the trial court ordered that appellant be arraigned as a youthful offender.

Upon being arraigned as a youthful offender appellant pleaded not guilty. Evidence was presented to the trial court and appellant was found guilty of being a youthful offender. Punishment was fixed at three years in custody of the Director of the Department of Corrections of the State of Alabama. Appellant gave notice of appeal and the sentence was suspended pending appeal. A free transcript was furnished appellant and trial counsel was appointed to represent him on appeal.

Howard Wayne Lowe, a Deputy Sheriff of Jefferson County, Alabama, was assigned to the United Narcotics Detail Operations. On May 23, 1974, he had a telephone conversation with appellant at his home in Harpersville in Shelby County in which appellant agreed to get Lowe some “Mr. Natural,” or Lysergic Acid Amide commonly known as LSD. Lowe left Birmingham with Deputy Sheriff Ed Mc-Guffie and arrived at appellant’s home around 6:15 that evening. When they arrived, appellant got in the back seat of the car and took out a package of cigarettes. From within the package appellant produced six hits of “Mr. Natural” that was on a little blotter paper between the cellophane and the pack of cigarettes and handed it to Deputy McGuffie who in turn handed it to Lowe. Deputy Lowe asked how much it cost and appellant said fifteen dollars. Deputy Lowe handed him a twenty-dollar bill. Appellant left the car to get the twenty-dollar bill changed and returned and gave Lowe five dollars. The LSD remained in Lowe’s possession until he handed it to Sergeant Jimmy Woodward the next day. Lowe further testified there were several other people standing around when they drove up, but appellant was the only one who entered their car and the only one they dealt with. He stated that appellant was wearing a gold earring in his pierced left ear.

Sergeant Woodward testified that he received six squares of LSD from Deputy Lowe on May 24, 1974, and that it remained in his exclusive custody until he turned it over to Gerald Wayne Burrer at the Toxicologist Department in Birmingham. . '

The testimony of Deputy Ed McGuffie corroborated the testimony of Deputy Lowe in every detail.

Gerald Wayne Burrer testified that he was employed by the Alabama Department of Toxicology, Criminal Division, and assigned to the drug identification division. After stating his education and qualifications he testified that he received an envelope from Sergeant Woodward on May 29, 1974, and ran the accepted and approved tests on the contents of the envelope and these tests disclosed a positive identification of LSD. The analysis showed that there were thirty-five micrograms of LSD per square.

Both Lowe and McGuffie testified they knew appellant well and had bought and smoked marihuana with him on two previous occasions.

Appellant testified that he had never seen Officers Lowe and McGuffie before he was arrested and denied selling them marihuana or LSD at any time. He stated that Deputy Lowe mis-identified two of his brothers as being him the night he was arrested. He admitted wearing an earring in his pierced left ear, and stated that none of his brothers wore earrings, nor had their ears pierced.

On rebuttal Deputy Lowe testified that on the night appellant was arrested, he stayed in the car while Sergeants Bonner and Smith went in the house with a warrant to arrest appellant. These two officers didn’t know appellant as they had not participated in the drug buys. Lowe heard a commotion inside the house and the two sergeants returned to the car and told him to “Go in there and get Undary.” Lowe went inside and saw appellant standing in the doorway between a bedroom and the living room. He walked over to where appellant was standing and arrested him.

The sufficiency of the evidence is not before us for review. There was no motion to exclude the State’s evidence and discharge appellant on the ground the State failed to make out a prima facie case. There was no motion for a new trial. The evidence presented a clear cut case for the decision of the trial judge. He heard and saw the witnesses and was in a better position to judge their credibility than anyone else. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Grant v. State, 46 Ala.App. 232, 239 So.2d 903; Robinson v. State, 44 Ala.App. 206, 205 So.2d 524.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none. Our conclusion is supported by a “no merit” letter by a member of one of the outstanding law firms of Columbiana, Alabama, who represented appellant at trial.

Affirmed.

All the Judges concur.


text:
    Wanda JOINER v. STATE.
    2 Div. 151.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    J. Parke Keith, Selma, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Wanda Joiner, convicted of second degree murder in the killing of her husband and sentenced to forty years imprisonment, brings an appeal.

I

The State’s case is based on the circumstance that Mrs. Joiner was present with her fatally wounded husband under circumstances negativing accident, suicide, or the agency of a third party.

On the night of July 2, 1974, Steve Joiner was in bed with his wife. Someone put Joiner’s shotgun close to his head and pulled the trigger.

The appellant told the Sheriff and police that two negro men came into the bedroom muttering something about showing “Whitey” that he couldn’t object to black neighbors. According to her, after they shot her husband they went out a window.

The State’s proof was negative. No scent of intruders was picked up by tracking dogs. No fingerprints were on the window sills. No footprints were beneath the windows.

A male witness for the prosecution testified that (1) he had earlier showed appellant how to load and fire her husband’s gun, and (2) he had conducted a liaison with her.

Other proof was adduced as to appellant’s financial benefits upon her husband’s death due to natural causes.

She took the stand and denied killing her husband, denied copulating with the male witness and reiterated her statement as to the killing by the two black burglars.

II

Wigmore, Evidence (3d ed.) § 131 says in part: may have done it, but the former is at least within the limited number of persons who could have done it, and thus is fit to become a subject for further investigation.

“When an act is done, and a particular person is alleged to have done it (not through an agent but personally), it is obvious that his physical presence, within a proper range of time and place, forms one step on the way to the belief that he did it. It is true that another person

“Under the evidential canon that to a fair extent the possibility of other hypotheses must be first excluded (ante, § 31), it might be asked whether the mere possibility involved in Opportunity is not too slender, whether something more than mere opportunity — for example, exclusive opportunity — should not first be shown. The answer to this is that, by the very showing of an opportunity, countless hypotheses are negatived; and the person charged, who might otherwise have been one of innumerable other persons at the time, is shown to have been one of the limited number who are in a position to do this particular act. In short, opportunity alone, and not exclusive opportunity, is a sufficient showing for admissibility.”

Here by narrowing the alternative hypotheses, the State made a sufficient case to go to the jury. The admissibility of evidence of the opportunity to do murder was recognized in McMurtrey v. State, 39 Ala.App. 319, 101 So.2d 88. See also Wallace v. State, 41 Ala.App. 65, 124 So.2d 110 and Cauthen v. State, 48 Ala.App. 286, 264 So.2d 208. Of like import are State v. Stallings, 154 Conn. 272, 224 A.2d 718(15) and State v. Welch, 79 Mont. 614, 257 P. 1010(5).

This principle of admissibility does not shift the State’s burden of proof. It is a factor for the defendant to bear in mind in assaying at what point the scale may tip against him, i. e., the differentiation point at which defendant funs the risk of non-persuasion and can then no longer logically rest on the evidentiary presumption of his innocence.

Ill

We have considered the entire record under Code 1940, T. 15, § 389, including the following:

a) The clerk’s certificate; [T. 7, § 767]
b) The court reporter’s certificate;
c) The statement of the organization of the court; (Sup.Ct. R. 52);
d) The indictment (caption, charge, conclusions, and required endorsements); whether the indictment was timely brought, Calvert [v. State], 26 Ala.App. 189, 155 So. 389;
e) Judgment entry (arraignment, presence of counsel, twelve jurors, empanel-ling and swearing of jury, verdict, adjudication of guilt, allocutus, sentence and notice of appeal); and
f) Each ruling of the trial judge adverse to the appellant — Rule A, Ct.Cr.App. — 49 AA XXI and Rule 28(a)(7) ARAP— (including without limitation the written charges refused appellant), T. 7, §§ 273 & 274.

The judgment below is

Affirmed.

All the Judges concur.

      . See Alabama cases collected in Wigmore, Evidence (3d ed.) § 177 f.n. 3. Here the prosecution established the proper predicates as to the dogs and their handler.

      . We quote from appellant’s brief in part:
      “ * * * Steve went to sleep and was snoring. The witness sensed somebody was in the room and heard a voice say something to the effect that Steve had been making slanderous statements about people moving in across the street and that they were going to deal with all the whities that felt that way. The voice sounded like a colored person and then there was a flash and a loud noise. The witness ran out of the room and saw the children and used the telephone in the den. Her recollection about the police officers arriving and going to the hospital was rather vague. Also, she did not remember many of the preparations for Steve’s funeral. She denied killing her husband and also having an affair with * * *. Also, she denied having made statements to the police officers and Sheriff Baker about colored men leaving through the bedroom window. The witness did not know much about shotguns and had only fired one once or' twice. She told about the incident where * * * came over and loaded the gun for her. She could not explain how the blood had gotten on her nightgown. She related that she had taken a trip to Chicago to have a change of scenery but could not recall much about the adventure. Since the incident she had stayed with her mother-in-law, father-in-law and both sisters-in-law and had worked at the Q Yellow Stamp Store in Montgomery. She again denied killing Steve. Under cross-examination she stated that she had raised the windows and the air-conditioner was off on the night of the murder. She could not remember the position of the people standing in the bedroom or exactly where she was when the gun was fired. She did not remember talking to Officer Morgan or Officer Capps. She did not remember making a statement about explaining blood being on the toilet tissue and seemed to have a rather vague recollection about being questioned at police headquarters. She did not remember giving a statement to the police department even though the statement was presented to her. A portion of the statement was read back to her and she did not remember writing or saying she saw two men going out of the window. The witness did not recall making a statement to another person in the house and stated she did not use the wash cloth to wipe blood off her children’s feet.”

      . If arraignment occurs at a court session before trial date, counsel’s presence is mandatory at each session beginning with arraignment unless the cause is continued for attendance of counsel. Perkins v. State, 281 Ala. 139, 199 So.2d 839; Merritt v. State, 50 Ala.App. 635, 282 So.2d 74.


text:
    Norman Leroy McDANELD v. STATE.
    1 Div. 670.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.

      Arthur P. Clarke, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and his punishment fixed at thirty years in the penitentiary. With court-appointed counsel present at arraignment he pleaded not guilty. After sentence was imposed he gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The evidence for the State is undisputed that in the early morning hours of February 23, 1975, the Magic Mart Grocery Store located at 2320 Government Street in Mobile, Alabama, was robbed by a lone gunman armed with a pistol.

Mary Massingill testified that she was employed by the Magic Mart and that her hours of employment were from 11:00 p.m. until 7:00 a.m. She stated that around 3 :45 a white man whom she identified as appellant came in the store and paid for $2.00 worth of gas and a coke and walked over to the book rack and started looking at the books. She said her attention was attracted to this man as he was not looking at the books as a person ordinarily looks at books but kept looking at her. She was trying to run the cash register and trying to keep an eye on the man because of the way he was looking at her. In a few minutes this man walked out of the store. She made a positive in-court identification of appellant as the man who purchased the gasoline and coke and who was looking at the books.

She further testified that between ten and fifteen minutes later another white man came in the store and stuck the pistol on Bruce Fowler who was employed as a night watchman for the U. S. Corps of Engineers which building was located next door. Fowler was in the Magic Mart to get a cup of coffee. The gunman told Fowler he wanted his weapon. ’After relieving Mr. Fowler of his weapon, he ordered him to go to the back of the store and then pointed the pistol at Mrs. Massin-gill and demanded all the money. The man had a cloth sack and she gave him all the money from the cash register in the amount of $470.50 consisting of currency and change.

Mrs. Massingill stated that the place was well lighted both inside and outside the store and she got a good look at both men. She attended a preliminary hearing and identified both men. She said she could not identify the woman who was arrested with the two men as she did not come in the store. She stated as soon as the man walked out with the money, she picked up the telephone and called the Mobile Police Department and reported the robbery.

Mr. Bruce Fowler testified he was employed by the General Services Administration to keep the U. S. Corps of Engineers building under surveillance and that at 3:54 a.m. on February 23, 1975, he went in the Magic Mart to get a cup of coffee. That one minute later a man came in and held up the store. He said the man told the clerk and him that this was a holdup and told Fowler to drop his gun belt. Fowler raised his hands and told the man if he wanted his gun belt, he would have to take it. That the man moved around behind his back and put the pistol to the rear side of his head and unstrapped the safety strap and took Fowler’s revolver and told him to move to the rear of the store. Fowler moved to the rear and positioned himself so he could see what was going on from the rear. He heard a conversation but could not understand what was being said. He heard metal clanging against something and saw a bag. He said he had seen the robber at approximately 3:45 a.m. getting gas in a white square styled Mercury with a luggage rack on top and that the robbery occurred at 3:55 a.m. He stated the robbery took about four minutes and that as soon as the man walked out the clerk called the City police and that he took the telephone from her and put out an all points bulletin and gave a description of the man and the car he was in. He was asked to describe the man and replied :

“The man is approximately five foot, nine, a hundred and forty - hundred and fifty pounds, white male, sandy red hair, fair complexion, and had on a gold tan field jacket and bluejeans.”

Fowler was shown State’s Exhibit IB and was asked if he had ever seen this revolver before and replied that it looked very similar to the one used in the holdup.

Michael Long testified that he was with four other friends on the morning of February 23, 1975. They left Sambo’s Restaurant and were walking up the street toward the Magic Mart.

From the record:

“Q. Now, tell the ladies and gentlemen of the jury what occurred as you went up towards Magic Mart ?
‘A. Walking up the street approximately a block from the store, we saw a car that was slowly beginning to back up. As we walked by as we came closer to the store, we saw two men come running from around the corner of the store. When they got closer, one girl that was with us said, ‘what it is,’ greeting one of the dudes, and the guy raised up his hand like this (indicating) and had a gun in his hand and asked, ‘what’s happening ?’ and kept going.
“Q. Now, describe - well, do you see anybody in the courtroom today that you saw that night?
“A. Yes, sir.
“Q. Point him out for the ladies and gentlemen of the jury?
“A. That man right there, (indicating)
“Q. Let the record reflect that Mr. Lenz identified the defendant in this case, Norman McDaneld.
“Q. Now, what if anything did the defendant have in his hand ?
“A. It was a gun.
“Q. Now, what kind of a gun ?
“A. It was a pistol. It looked to be like a small revolver.”

Lenz further testified that the two men walked within three feet of him and got in a white, four-door, car with a luggage rack on top and the car had tags from the State of Washington on it. Lenz stated there was no doubt whatsoever in his mind that appellant was one of the men he saw that morning running from the Magic Mart with a pistol in his hands and get in the car above described. He said as the men passed within three feet of him, he noticed one of them was wearing a “goldish colored jacket,” and was carrying a bag.

Mr. David Havard testified that he had been employed by the Mobile Police Department for five years and was assigned to the patrol division on the midnight shift. He stated he was familiar with the Magic Mart on Government Street and that the area was well lighted at night. He stated he was having breakfast around 3 :50 a.m. on February 23, 1975, at a restaurant on Highway 90 when he heard a holdup alarm come over the police radio. He explained that when a place is robbed and the victim calls the Police Department the actual conversation between the victim or the person calling and the dispatcher is passed over his radio, and they receive a description and the information at the same time the operator does.

From the record:

“Q. Based on that call, did you take any action?
“A. Yes, sir. The first information they give out on the holdup alarm is the location of the robbery. I rushed out and got in my patrol unit and pulled out of the parking lot there to the edge of the parking lot on Highway 90 where I could observe Highway 90.
“Q. What if anything happened then?
“A. A white old model Mercury, kind of dirty, came by headed west on Highway 90 with a luggage rack on top which fitted the description of the vehicle used in the robbery of the Magic Mart store, basically the same description I had received over the radio was the old model white Mercury with a luggage rack on top of it.
“Q. What if anything did you do then?
“A. I fell in behind the vehicle and advised the operator I had the vehicle in sight and I was following it west on Highway 90. I stopped it at Highway 90 and Pleasant Valley Road.
“Q. About what time was it in the morning?
“A. It was between three forty five and four o’clock. I am not certain of the exact time.
“Q. All right, tell the ladies and gentlemen of the jury what happened then?
“A. I proceeded to follow the vehicle west on Highway 90. I turned the blue lights on just as it was approaching Pleasant Valley Road. The car pulled over to the right hand side of the road. I got out with my shotgun and a white female got out of the driver’s side of the vehicle. At this same moment, the backup vehicle arrived. I ordered all subjects to stay where they were until the backup unit got to the vehicle. We then took the driver, the white. female, Brenda Jean Johnson, and placed her in the rear of my scout car. We went around to the passenger side of the vehicle when we took out the white male, Robert McDaneld, sitting next to the door. Another white male, Norman McDaneld, was sitting in the center of the seat.
“Q. Do you see anyone here in the courtroom that was in that car when you stopped it?
“A. Yes, sir.
“Q. Point him out for the ladies and gentlemen of the jury?
“A. The defendant, Norman McDaneld, sitting next to Mr. Clark.
“Q. Let the record reflect Officer Ha-vard indicated the defendant.
Continue, what if anything happened then?
“A. We took the subjects out of the vehicle. They were placed under arrest and advised of their rights and placed in separate patrol units to keep all of the suspects separated.
“We started the initial search of the vehicle. We removed four revolvers from the front seat, two loaded rifles from the back seat, money bag from the back seat, box of shells.
“Q. Did you find any money in the car?
A. Yes, sir; we found a money bag, a white cloth type money bag in the back seat, that had been dropped over the back seat.
“Q. Now, how much money was found in that?
“A. It was in the neighborhood of four hundred and some odd dollars in the car. Off of the first subject we took out of the car we found a little over two hundred dollars.
“Q. Who was that if you know ?
“A. That was Robert McDaneld.
“Q. Let me show you what has been marked for identification purposes as State’s Exhibit 1B-2B and ask if you have ever seen these before?
“A. Yes, sir.
“Q. Tell the ladies and gentlemen of the jury where you first saw them?
“A. Both of them weapons was loaded and laying under the front seat of the vehicle the suspects were in.
“BY MR. VALESKA: Your honor, we would like to offer this in evidence at this time as State’s Exhibit IB and 2B.
“BY THE COURT: Order them admitted.”

This witness also identified State’s Exhibits 3B and 4B as a twenty-two western style loaded revolver under the front seat of the car and a thirty-eight automatic near the luggage on top of the car and it was unloaded. All of the weapons found in search of the car where the suspects were apprehended were admitted in evidence without objections.

This witness further testified that two rifles were found in the back seat of the car. There was a three o eight Winchester which was loaded and a 30-30 Winchester lever action rifle which was unloaded. He stated that all three suspects were arrested and searched and given the Miranda rights at the scene of the arrest. All three suspects were put in separate patrol cars and carried to the station house where they were again read their rights and asked if they wanted to make a statement. One of the suspects signed a waiver and the two other suspects refused to sign a waiver or make a statement, and said they wanted a lawyer.

When appellant was searched the officers found only pocket change on him. Appellant’s brother had $200.00 in his pocket and the rest of the money was found in the bag on the back seat of the car. They were arrested about four minutes after the robbery.

Appellant’s brother, Robert McDaneld, was first tried and convicted for the robbery of the Magic Mart the day before appellant was put to trial. Appellant did not testify. Robert McDaneld testified and tried to take the entire blame for the robbery.

In sum, he testified that he lived in the State of Washington for over twenty-six years and that because of the snow and cold weather, he and his brother decided to go to Pensacola, Florida, to look for work. They arrived in New Orleans some time in early February and stayed there about one week. They spent most of their time in a local bar drinking. In this bar they met a woman, named Brenda Johnson, whose husband was a seaman stationed in Texas. They became very friendly with Brenda and they persuaded her to go with them. According to his testimony, they were going to spend the night in Biloxi, Mississippi, but went on to Mobile. They got off the freeway in Mobile to get gas and then started back to the freeway to Biloxi. That he discovered he was out of cigarettes and went back to the Magic Mart where they had just purchased gasoline. That he went into the Magic Mart to get some cigarettes and since they were running low on money he decided to rob the place. Later he stated that it was not that they were low on money that he decided to rob the store but he just robbed the Magic Mart on the spur of the moment.

He further testified that, he and his brother had not planned to rob the place and that his brother did not know he was going to rob the place and was not present and took no part in the robbery. He stated that he did not give his brother any of the money that he took in the robbery. He admitted that when the officers stopped them, Brenda was driving the car and his brother (appellant) was seated in the front seat between him and Brenda. He said all of the weapons, loaded and unloaded, belonged to him. That he bought and paid for both rifles and all the pistols. He further admitted that when the officers stopped them, he had $200.00 in his coat pocket and the rest of the money was in a bag on the back seat. He stated that appellant and Brenda stayed in the car when he went in and robbed the store.

On cross-examination he testified that his brother passed out in Biloxi but on further cross-examination when he was asked if his brother went in the store he replied: “I don’t- have the slightest idea whether he did or not.”

On further cross-examination he admitted he gave the officers a signed statement concerning the robbery and in that state- . ment he did not say that his brother passed out in Biloxi.

To the very end he maintained that neither Brenda nor his brother took any part in the robbery but that he was the sole actor in the robbery and could give no reason why he committed the robbery.

We are not confronted with the sufficiency of the evidence in this case. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge. There was a motion for a new trial, but this motion made no claim that the State failed to make out a prima facie case. 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.

Where the testimony of eyewitnesses placed the defendant at the scene of the crime and as an active participant in the robbery in which more than one person participated, it was immaterial which one took the money as they were all guilty as principals. Johnson v. State, 52 Ala.App. 277, 291 So.2d 369; Murphy v. State, 52 Ala.App. 490, 294 So.2d 457.

If there is a reasonable inference to prove the existence of the corpus delicti, the' Court should submit to the jury for consideration the question of the sufficiency and weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296.

Where 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 are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

The only claim of error is the refusal of the trial court to give the jury two written requested charges on lesser included offenses, 'viz., larceny and assault and battery. We hold there was no error in the refusal of these charges. The evidence for the State, as well as the testimony of appellant’s brother, show clearly the crime of robbery was committed and the trial court was not required to charge on the lesser included offenses. Taylor v. State, 48 Ala.App. 443, 265 So.2d 886; Brooks v. State, 36 Ala.App. 310, 55 So.2d 366; Kelly v. State, 235 Ala. 5, 176 So. 807.

The judgment of the Circuit Court is ordered affirmed.

Affirmed.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    William T. PINSON, Jr., Administrator of the Estate of Ruthalene Pinson v. Gary T. HADDOCK and the West Bend Co., Division of Dart industries.
    SC 1293.
    Supreme Court of Alabama.
    Feb. 5, 1976.
    E. Ray Large, Birmingham, for appellant.
    Eugene D. Martenson, Birmingham, for appellees.
   BLOODWORTH, Justice.

William T. Pinson, Jr., as administrator of the estate of his wife, appeals from an adverse jury verdict and judgment in a wrongful death action, and from the order overruling his motion for new trial. We affirm.

The case arose out of an automobile accident which occurred on a public road in Birmingham, Alabama, September 4, 1971. Plaintiff Pinson avers in his complaint that defendant Haddock, while acting within the line and scope of his employment with defendant West Bend, so negligently operated his motor vehicle as to cause it to collide with a vehicle being driven by Pin-son, in which Pinson’s wife was a passenger, and that, as a proximate consequence, Pinson’s wife was killed; and, Pinson claims damages therefor.

The jury returned a verdict in favor of defendants Haddock and West Bend. Judgment was entered thereon. Plaintiff Pinson filed a motion for new trial based on the ground that the verdict was against the preponderance of the evidence. The motion was overruled by the trial court.

Pinson’s appeal is based on the grounds that the great preponderance of the evidence establishes that the injuries sustained ■by Mrs. Pinson in the automobile collision proximately contributed to her subsequent death.

The facts are that on Saturday, the day of the collision, Mrs. Pinson was not aware of' having sustained any injuries. However, on Sunday she began experiencing some pain in her chest, neck, and shoulders, and by Monday had taken to bed. She first visited a physician on Tuesday and made a return visit on Friday. On Saturday, one week from the date of the collision, she was hospitalized and was placed in traction. Shortly after her admission, she developed a cardiac “dysrhyth-mia” [abnormal or irregular rhythm] in her heartbeat. On October 4, after three and a half weeks in the hospital, Mrs. Pin-son died.

The death certificate signed by the attending physician Dr. Patton and dated October 23, 1971, listed the immediate cause of death as “Ischemia heart disease due to arteriosclerosis” [a condition involving a lack of blood supply to the heart].

Plaintiff Pinson’s expert witness, Dr. Casten, concluded that the precipitating cause of the deceased’s death was the whiplash injury she sustained in the automobile collision “[bjecause we have no other precipitating event that’s presented to us.” This witness testified that the deceased’s emotional stress over her hospitalization and necessary separation from her children, along with the physical stress of confinement in traction, resulted in the imposition of additional strain on the deceased’s heart which was already doing extra work because of deceased’s coronary blockage. In view of the fact that the deceased had never experienced back or neck pains prior to the accident, the testimony of plaintiff Pinson’s expert witness is said to have established by a preponderance of the evidence that deceased’s death was the proximate result of the accident.

Plaintiff Pinson further contends that negligence is also established by a preponderance of the evidence. This contention is based on the claim that Pinson’s stationary vehicle was struck in its rear by defendant Haddock’s vehicle. Pinson and Haddock were both in a line of traffic which was stopped at a traffic light. When the light changed to green, the lead vehicle in the line (a wrecker), pulled into the intersection and promptly stalled. The car immediately behind the wrecker stopped. Pinson’s vehicle was next in line; Pinson testified that he did not move his vehicle from its stationary position. Haddock’s testimony is that Pinson’s vehicle had started to move forward. Defendant Haddock, whose vehicle was stopped immediately behind Pinson’s, began moving his vehicle when, Haddock claims, Pinson stopped suddenly, thereby causing a collision with Pinson’s vehicle. Pinson’s vehicle was pushed into the rear of the vehicle stopped in front of it and was damaged both in the front and in the rear. Pinson argues that the mere fact that defendant hit Pinson’s stationary vehicle from the rear is uncontrovertible proof of defendant’s negligence.

The plaintiff’s contention on this appeal is that the trial court erred in not granting a new trial on the ground that the verdict of the jury is contrary to the evidence. He contends that the great preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. He cites Cobb v. Malone et al., 92 Ala. 630, 9 So. 738 (1890), inter alia.

We cannot agree with this contention and must conclude that there is not a preponderance of the evidence in plaintiff’s favor either on the issue of negligence or proximate cause.

Our rules of review are well settled.

Verdicts are presumed correct and no ground of new trial is more carefully-scrutinized than that the verdict is against the weight of the evidence. Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277 (1960).

The correctness of a jury’s verdict is strengthened when the trial judge refuses to grant a new trial. Smith v. Cullen, 270 Ala. 92, 116 So.2d 582 (1959).

On the issue of negligence, defendant Haddock was only required to use that degree of care required by a reasonable and prudent man. The jury could reasonably have found that Haddock did not have sufficient time to stop his vehicle, being confronted with the sudden stopping of Pinson’s vehicle.

On the issue of proximate cause, the evidence reasonably supports the theory that Mrs. Pinson’s health was already poor prior to the accident. There is some evidence in the record to the effect that the advanced case of arteriosclerosis from which Mrs. Pinson suffered was sufficient to have caused her death even without the additional strain caused by the whiplash injury. At any rate, the question of initial negligence as well as the causal relationship between the accident and Mrs. Pin-son’s death, were both matters for determination by the jury. There is not such a preponderance of the evidence against the verdict so as to clearly convince us that it was wrong and unjust.

Affirmed.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.