text:
    LINDY HOMES, INC., a corporation v. EVANS SUPPLY CO., INC., a corporation, Teague Hardware Company, a corporation and Borneo Sumatra Trading Company, Inc.
    Civ. 1297.
    Court of Civil Appeals of Alabama.
    April 19, 1978.

      Alan C. Livingston, Dothan, for Lee & Mclnish, for appellant.
    Jere C. Segrest, of Hardwick, Hause & Segrest, Dothan, for appellee Evans Supply Co., Inc.
    J. Robert Ramsey, of Ramsey & Baxley, Dothan, for appellee, Teague Hardware Co., Inc.
    Grover S. McLeod, Birmingham, for ap-pellee, Borneo Sumatra Trading Co., Inc.
   BRADLEY, Judge.

Lindy Homes, Inc., a corporation, filed an action in the Houston County Circuit Court against Evans Supply Company, Inc., a corporation, alleging that a quantity of nails which Lindy Homes had purchased were not of merchantable quality and were not reasonably fit for the particular purpose for which the nails had been purchased and used. Evans Supply answered by denying the allegations and asserting that Lindy Homes had improperly used the nails. Evans Supply, at the time it filed its answer, also filed a third-party complaint against Teague Hardware Company, a corporation. In its complaint, Evans Supply alleged that if it were found liable then Teague Hardware should be liable to Evans Supply on the ground that the former acted, as its supplier. Teague Hardware filed a general denial to the complaint of Evans Supply and filed a fourth-party complaint against Borneo Sumatra Trading Company, Inc., the original supplier of the allegedly defective nails. Borneo Sumatra then filed a motion to dismiss. This motion was subsequently denied.

The matter was tried before the circuit court sitting without a jury. After the trial, the court entered judgment for “Defendant Evans Supply Company, Inc., . ” and against the plaintiff, Lindy Homes, Inc. Lindy Homes appeals.

On appeal plaintiff argues that the case was tried below on two legal theories: (1) that the nails purchased by Lindy Homes from Evans Supply were not merchantable and therefore the latter breached its implied warranty of merchantability and (2) that the nails were not reasonably fit for the particular purpose for which the nails were purchased. Plaintiff concedes that the evidence clearly does not support the second issue; thus the plaintiff does not contend that the trial court’s judgment was erroneous with regard to this aspect of the case. Consequently, the only question to be decided by this court is whether the trial court erred in not finding that the nails purchased from defendant-Evans Supply by plaintiff violated the implied warranty of merchantability.

The law of implied warranty of merchantability is set out in the Uniform Commercial Code, Title 7, section 2-314(1) and section 2-314(2), Code of Alabama 1975, and it is as follows:

“(1) Unless excluded or modified (section 7-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
“(2) Goods to be merchantable must be at least such as:
“(a) Pass without objection in the trade under the contract description; and
“(b) In the case of fungible goods, are of fair average quality within the description; and
“(c) Are fit for the ordinary purposes for which such goods are used; and
“(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
“(e) Are adequately contained, packaged, and labeled as the agreement may require; and
“(f) Conform to the promises or affirmations of fact made on the container or label if any.”

As provided in the above cited UCC sections, every contract for the sale of goods by a seller who is a merchant of the kind of goods sold impliedly contains a warranty of merchantability unless excluded or modified. In the case at bar there was no dispute that Evans Supply was a merchant of the type of nails purchased and used by Lindy Homes. Furthermore, there was no evidence that the seller had placed any specific restrictions on the use of the nails in question or otherwise excluded its implied warranty of merchantability. Therefore, we come to the question of whether there has been a breach of the implied warranty in the present case..

As stated above, the proceedings were conducted before the court sitting without a jury, and under the ore tenus rule the trial court’s judgment must be affirmed unless it can be shown that said judgment is plainly and palpably erroneous. See 2A Alabama Digest, Appeal & Error, Key No. 1011.1(7).

The evidence shows that the plaintiff manufactures house components at its plant in Dothan, Alabama. Upon completion of the components they are transported to the jobsite for erection. In the instant case plaintiff had been engaged to make components for a warehouse which was to be erected in Gainesville, Florida. The exteri- or wall panels were to consist of cedar plywood paneling constructed in accordance with a design known as reverse board and batten.

In the construction of these wall panels, nails described as sixpenny galvanized casing nails were used. The evidence shows that during the period these panels were being constructed, plaintiff purchased several hundred pounds of sixpenny galvanized casing nails from Evans Supply.

In his deposition, the Gainesville, Florida city building inspector stated that nails used in the exterior panels of the warehouse were number six common bright nails. He further stated that the southern building code which had been adopted by the City of Gainesville required that electroplated or dipped galvanized nails be used on the exterior of buildings. He testified that the nails used in the exterior wall panels had not been galvanized and consequently had rusted.

Mr. Davis, the owner of Lindy Homes, testified that it was his understanding that galvanized nails could be used for any purpose in the building industry. Nonetheless, when he replaced the rusty nails which were the subject of this lawsuit, he replaced them with aluminum nails.

Conversely, the superintendent of Lindy Homes said that he used different kinds of nails for different kinds of siding. Moreover, he admitted that the cedar siding could have had a chemical effect on the nails used. He further testified that he was the one who ordered the nails from Evans Supply on behalf of Lindy Homes. And he continued by stating that when he ordered the nails in question he did not inform Evans Supply about the kind of siding in which the nails were to be used. In addition, the superintendent stated that Lindy Homes had used “hot-dipped” nails on cedar siding before but had subsequently switched to the use of aluminum nails in cedar siding.

Another witness for plaintiff, a former employee of Evans Supply, and the person who filled the nail orders for Lindy Homes, testified that no one at Lindy Homes asked what type nails were to be used in cedar siding. However, he said that when asked such a question his advice to the inquiring party is not to use “electrogalvanized” nails (the type nails used by plaintiff) in cedar siding; instead, he suggests that the party use “double-dipped” galvanized nails. He also stated that the boxes containing nails do not contain instructions for their use. He added that the proper type of nail to be used on a particular job is commonly known in the construction trade.

Yet another witness for plaintiff said that the nails which had rusted were elec-trogalvanized nails, whereas the type nails that should have been used by Lindy Homes for cedar exterior siding were “maze nails.” He then noted that “maze nails” are double hot-dipped galvanized nails.

A witness for defendant, Teague Hardware, testified that when asked by a potential purchaser, he recommends that hot-dipped galvanized nails be used in cedar siding. He also testified that the only rustproof nail he knew of was an aluminum or stainless steel nail.

Defendant, Borneo Sumatra, presented a witness who testified that neither the printing on the nail carton nor the literature inside the carton contained instructions for the use of nails. He said that the particular kind of nail to be used on a specific job is common knowledge in the construction industry. He also stated that it is common knowledge in the trade that galvanized casing nails should not be used in exterior siding because a maze nail or “hot-dipped” galvanized nail is proper in such a condition.

It is obvious to us that the evidence in this case is in dispute as to the particular use for which a galvanized nail is suited in terms of the building industry. Lindy Homes’ owner, Mr. Davis, testified that galvanized nails are not supposed to rust and are therefore suitable for any building industry use. To the contrary, several witnesses with a long history of experience in the building industry stated that hot-dipped galvanized nails should be used in cedar siding instead of electroplated galvanized nails. Furthermore, the Gainesville, Florida building inspector emphatically stated that ungalvanized nails were used in the exterior cedar siding.

The question of when the warranty of merchantability is imposed is premised in large part on the use of an item as recognized in the trade. See Ambassador Steel Co. v. Ewald Steel Co., 33 Mich.App. 495, 190 N.W.2d 275 (1971); Hobson Construction Co. v. Hajoca Corporation, 28 N.C. App. 684, 222 S.E.2d 709 (1976). The evidence in this case tended to indicate that galvanized nails were not the correct nails for use in cedar siding and, thus, the use of galvanized nails in this manner was not the ordinary purpose for which such nails are used in the building trade. See Hobson Construction Co. v. Hajoca Corporation, supra. Accordingly, based on the evidence in the record before us, it can reasonably be said that the plaintiff failed to prove that the nails used by it in the cedar exterior siding which it placed on the warehouse in question were not “fit for the ordinary purposes for which such goods are used.” Consequently, we are not prepared to hold that the trial court’s judgment finding for defendant, Evans Supply, was plainly and palpably erroneous.

The judgment of the trial court is therefore affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Cullen L. BAREFIELD v. Jeraldine C. BAREFIELD.
    Civ. 1353.
    Court of Civil Appeals of Alabama.
    April 19, 1978.

      J. R. Herring, Dothan, for appellant.
    James W. Rane, Abbeville, for appellee.
   WRIGHT, Presiding Judge.

Defendant appeals from the alimony and property division provisions of a divorce decree. The issue is whether the awards of alimony and property are excessive and constitute an abuse of discretion. Our review of the evidence brings us to the conclusion that the judgment of the trial court is supported by legal evidence and is not so unjust as to be an abuse of discretion. Romei v. Romei, 53 Ala.App. 391, 300 So.2d 834 (1974). We affirm.

In order that our affirmation may be better understood we will give a brief factual background: The marriage of the parties had endured for thirty-one years. There was a son born who is now of age. As is the case in many marriages today, as the “golden” years approached, the relationship that had survived the “struggling” years began to deteriorate and incompatibility set in. The wife charged that neglect and rumors of other women caused her to seek satisfaction through divorce.

Plaintiff was trained as a secretary prior to her marriage and had worked to aid defendant through college. At his insistence she did not work after he became able to support the family except for some part-time work in recent years.

The husband is employed by the Agricultural Extension Service. His present salary is $1,450 gross and $1,040 net per month. There is a home valued at $35,000 with an indebtedness of $3,000. The wife works for a church and nets $58 per week. The husband could retire in February 1978 with retirement pay of ten to fifteen percent less than his present salary. The court ordered the home be given in fee to the wife. She is obligated to pay the remaining indebtedness. The husband was directed to pay her $1,500 lump sum and $375 per month periodic alimony until the mortgage on the home is paid and $275 per month thereafter until the wife dies or remarries. The wife was given a 1970 Volkswagen and the husband a 1975 Pontiac. He. was ordered to pay costs and $675 as attorney fees.

Without calculation of percentage, it may readily be seen that the wife has béen given less than one-third of the income of the husband as alimony. Though she has been given the marriage home in entirety, the evidence disclosed that the husband had inherited real estate of approximately equal value. His retirement income is assured while she has no retirement benefits.

There is little precedential value in repeating at length what has been said in many previous cases concerning the discretionary authority of the trial court in the division of property and award of alimony in divorce cases. Novak v. Novak, 339 So.2d 77 (Ala.Civ.App.1976). There is nothing in the judgment of the trial court so unreasonable in light of the evidence as to constitute an abuse of discretion. We must therefore affirm.

The wife having requested that we grant her an attorney’s fee on appeal, it is the judgment of the court that she be awarded the sum of $325.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BOWEN, Judge.

text:
    Damon Shelton NAPIER v. STATE.
    1 Div. 747.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.

      David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., and John David Whetstone, Sp. Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for murder in the first degree by giving heroin to David Archie Owings and sentenced to life imprisonment. He is represented by court appointed counsel both at trial and on appeal.

Four issues are presented on appeal: (1) The sufficiency of the indictment; (2) a claim of double jeopardy; (3) the sufficiency of the evidence which includes (4) an allegation that the appellant was convicted on the uncorroborated testimony of accomplices.

In February of 1976, David Archie Ow-ings, age twenty-one years, of Birmingham, Alabama, contacted his friend Ronald Dale Quarles, age twenty-three, of Mobile, Alabama. Owings had “come into” some money, about fifty thousand dollars, and wanted Quarles to arrange the purchase of a large quantity of marijuana by contacting the appellant, Damon Shelton Napier. Ow-ings knew that the appellant could locate the marijuana. Quarles was also familiar with the appellant. The appellant had previously supplied morphine and heroin to Quarles and his wife.

On Thursday, February 26, 1976, Quarles, his wife Deborah Diane, and the appellant met Owings at the Mobile airport. Owings had come to Mobile so they could all go to Mexico and “set up a dope buy”. The four went to the apartment of the appellant where they picked up the appellant’s wife, Sandy, and another girl, Catherine Cook. From there, the crew of six departed for Nogales, Arizona, which is located on the international boundary between the United States and the Republic of Mexico. They all went in Quarles’ van, the appellant having agreed to pay for the gas and to pay Quarles “some money” for the trip.

The group went to Mexico for the express purpose of merely “setting up” a marijuana buy. They did not intend to make the actual purchase on this trip.

By driving continuously, the group arrived in Nogales around 3:30 on the morning of February 27th. They found a hotel room where they spent the remainder of the night. Later that morning, Owings, Quarles, and the appellant left for Nogales, Mexico, leaving the three women at the hotel. The appellant had a Mexican connection with whom the three met and discussed the purchase of some marijuana. The negotiations were conducted both in Spanish and English between the appellant and the Mexican.

After the negotiations, Quarles returned to the Arizona side of Nogales and got the three women who had been waiting at the hotel. They crossed the border into Mexico and met Owings and the appellant at a bar. Quarles and the appellant then went to the Mexican’s house while Owings and the women went shopping.

Following the appellant’s directions, Quarles drove the two of them to the house of the Mexican connection. At the house, they received one ounce of heroin packaged in a condom. Although Quarles did not hear any of the negotiations or see any money exchanged, he testified that the appellant paid one thousand dollars for the heroin. There was no testimony that Ow-ings gave the appellant the money for this purchase. Both Quarles and the appellant sampled the heroin and found that it was “good”. Four or five hours later they returned to Nogales.

They met Owings and the women in a lounge. At this time, Quarles was obviously heavily under the influence of heroin. This conclusion was based upon the testimony of Quarles’ wife who stated that she had observed her husband under the influence of heroin “countless” times. The evidence is conflicting as to whether Deborah Diane received the heroin from the appellant or her husband. However once she had possession of the heroin, without instruction, she immediately went to the bathroom and inserted the heroin-filled condom into her body. This permitted the party to smuggle the heroin over the border.

When the party was a couple of hours into Arizona, Deborah Diane removed the condom from her body and returned it to the appellant. She was given a sample of the heroin. In spite of the fact that she had been using heroin for six or seven months, she “just about” overdosed and had to be revived.

On the morning of March 1, 1976, the party arrived in Mobile. After taking Catherine Cook home, they went to the appellant’s apartment where the appellant gathered the equipment he would need to “cut” the heroin. This included a bottle of dextrose and a set of scales. Then the appellant, his wife, and their two or three year old child, drove to the Quarleses’ apartment. The Quarleses and Owings reached the same destination in Quarles’ van. At this time there were no narcotics in the Quarleses’ home.

Shortly after arriving, the appellant began the process of cutting the heroin with dextrose. The appellant had purchased “Mexican Brown” heroin of high but unknown purity. In cutting it to produce the twenty-five dollar “bags” for sale on the street, the appellant had, at the same time, to be sure that the “cut” was sufficient to meet the requirements of his customers and yet adulterated- enough to maximize his profits. To solve this problem, the appellant simply asked his “friends” to “test the dope to see what would be a good $25.00 bag to sell”.

The appellant gave heroin to Steve Rhodes, who had been using heroin for a year and who had been living with the Quarles-es; to Deborah Quarles, who had been using the narcotic for six or seven months; to Ronald Quarles, who had been using for about a year; and to David Archie Owings, who had never used heroin before. The appellant gave them samples of the heroin he was cutting because he wanted to know how good it was. For Owings, the Monday before Mardi Gras, March 1, 1976, would be the last day of his life.

Each of these individuals had two injections of heroin about one hour apart. Rhodes and Quarles agreed that the heroin cut by the appellant that day was much stronger than the street heroin he had previously been selling them.

The appellant did not force or coerce Ow-ings to accept the heroin and Owings injected the narcotic into his own body. Owings took his first shot between one and two o’clock P. M. and little effect was noticed. About one hour later he took another shot and immediately went to sleep. He would never fully regain consciousness.

Despite the fact that Owings had never used heroin before, he was no stranger to the drug world. Quarles testified that he had known Owings in Birmingham and that there they had shot up anything they could get their hands on; “THC, MDA, cocaine, barbituates, anything we could find”. Mrs. Quarles testified that Owings had been selling dope in Birmingham.

After the appellant finished cutting the heroin, he left the narcotic at the Quarleses’ home because his apartment was too well known to the police.

During the night, it was noticed that Owings was having difficulty breathing. He could not be awakened. He was placed in a bathtub and cold water was poured over him. Rhodes and Quarles tried to get him to walk. The appellant was called and returned to the Quarleses’ home. He poured water on Owings and placed ice cubes in the bathtub. After Owings seemed to revive a bit the appellant left and Owings was put back to bed.

The next morning Owings was found cold and dead. Rhodes took the heroin to the appellant who hid it. At trial each witness testified that he had no financial interest in either the purchase or sale of the heroin and that it “belonged” to the appellant.

Les Solomon was a friend of the Quarles-es and an acquaintance of the appellant. He did not use heroin and was not involved with narcotics. On March 1, 1976, Solomon and another friend, Jeff Baker, were on their way home to Birmingham after having been to New Orleans for Mardi Gras when they decided to drop in on the Quarleses. They intended to spend the night and catch Mardi Gras in Mobile the next day.

Solomon arrived at the Quarleses’ home at about five o’clock on the afternoon of March 1st. At that time the appellant had finished cutting the heroin but was still in the kitchen where he had been cutting it. Solomon saw the appellant in the kitchen and the scales he had used to cut the heroin. The appellant told him that “they had copped some (Mexican heroin) down there and he had just cut it”. The appellant left the Quarleses’ home thirty or forty minutes after Solomon arrived. It was Les Solomon who found Owings’ body the next morning.

A state toxicologist, after being properly qualified as an expert, testified that on being injected, heroin is quickly converted to morphine. The quantities of morphine in Owings’ body were consistent with death by overdose of heroin. No other drugs were detected. The toxicologist testified that in his opinion death was due to an overdose of narcotics.

Besides attending the autopsy of the deceased and receiving several tissue samples, the toxicologist also examined and tested a packet of suspected heroin that the appellant had cut. The toxicologist testified that the contents of the packet proved to be 36.5% pure heroin. Street heroin is normally only 2 to 6% pure.

Dr. F. T. Boudreau, a County Pathologist in the Mobile County Coroner’s Office, performed an autopsy on the deceased. In his opinion the deceased died of pulmonary complications of acute narcotism or, in other words, of an overdose of heroin. Dr. Boudreau found that there was “generalized organ congestion involving all of the organs which is “the universal finding of this type of death”. He stated that in his opinion, the deceased was not an addict and although he found recent injection marks inside Owings’ elbows, he found no old marks. According to Dr. Boudreau, heroin is an organic poison and a dangerous drug of no therapeutic value.

I

The appellant initially contends that the trial court erred in overruling his demurrer to the indictment because that indictment failed to allege the means of the killing. The appellant specifically denotes that the indictment contains no allegation that the appellant knew of the dangerous nature of the drug in question, knew that the deceased would die, administered the drug or aided in its being administered.

The indictment charged murder in the first degree. It states as follows:

“DAMON SHELTON NAPIER, whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully and with malice aforethought kill David Archie Owings by perpetrating an act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, to-wit: the said Damon Shelton Napier gave the said David Archie Owings heroin, knowing that the said David Archie Owings would inject the heroin and as a result of injecting such heroin, the said David Archie Ow-ings died, against the peace and dignity of the State of Alabama.”

Heroin is a poison. 28 C.J.S. Supp., Drugs & Narcotics § 3, p. 10, citing Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247 (1919). At trial, the coroner’s pathologist testified that heroin was an organic poison.

It has been held that an indictment is sufficient which alleges that the defendant “did unlawfully and with malice aforethought kill (the deceased) by administering to him a quantity of morphine”. Scott v. State, 141 Ala. 1, 37 So. 357 (1904). In Scott, the Alabama Supreme Court noted that

“It was not necessary to aver how the drug was administered, or the particular way in which it affected him, nor that the drug was a poison or the quantity which was administered. The administration of a quantity of morphine is shown by this averment to have been the means employed to kill, and that is all that is required.”

Scott, 141 Ala. 5, 37 So. 358.

Here the indictment alleged in effect that the appellant did unlawfully and with malice aforethought kill the deceased by giving him heroin, knowing that the deceased would inject such heroin. The indictment alleged that Owings did die as a result of injecting the heroin and further alleged that the act of giving heroin was “an act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life”. These allegations would even satisfy the requirement of Langham v. State, 243 Ala. 564, 11 So.2d 131 (1943) requiring that where the drug or substance administered to the deceased is not a matter of judicial knowledge poison, the indictment should aver that the substance was poison or was such as was calculated to destroy human life.

Moreover, it need not be alleged that the accused knew that the substance administered was a deadly poison. See Warren on Homicide, Vol. II, pp. 63-64.

In short, the indictment alleged that the appellant killed Owings by giving him heroin. The indictment was proper in all particulars and adequately alleged the means of the killing. The appellant’s demurrer was due to be overruled.

II

The appellant contends that the trial court also erred in granting the state’s motion to strike his plea of autre fois convict. On March 1, 1977, this court affirmed the conviction of the appellant for giving away heroin to Steven Rhodes, one of the witnesses in this case, in violation of the Alabama Uniform Controlled Substances Act. As the appellant asserts, it does appear that that conviction and his present one arise out of the same general factual situation. Yet the two offenses are not the same in law and in fact. A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea, even if both cases are founded on the same facts. Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973). The corpus delicti of distributing heroin to one person and the first degree murder of another individual by giving him heroin have not one single element in common. The plea of former jeopardy was properly overruled.

Ill

The appellant argues that there was no proof of malice or intent to kill the deceased and therefore his motion to exclude the state’s evidence was due to be granted. This is the major issue presented by this appeal. It may be concisely stated as follows; Does the furnishing of heroin to another person knowing that he will inject the drug, with death resulting, constitute murder in the first degree.

A careful review of the case law in this area reveals no case wherein a heroin dealer or supplier has been convicted of murder in the first degree, under any theory, for the act of selling or giving away heroin to an individual who voluntarily injects the same quantity of heroin into his body and dies as a result thereof. However in no case have facts and circumstances been presented which rival those present in the case at hand.

Murder is the unlawful killing of a human being with malice aforethought. Hornsby v. State, 16 Ala.App. 89, 75 So. 637 (1917). In Alabama, murder in the first degree is divided into four classes according to mental intent. Mitchell v. State, 60 Ala. 26 (1877). Title 14, Section 314, Code of Alabama 1940 lists the four classes of first degree murder: (1) Premeditated intent-to-kill murder; (2) murder in the commission of certain enumerated felonies; (3) murder of an unintended victim where the intent was to kill another; and (4) depraved mind or heart murder sometimes referred to as murder resulting from universal malice.

The appellant was indicted for murder in the first degree under the fourth class. The material portions of Title 14, Section 314, provide that:

“Every homicide, . . . perpetrated by any act greatly dangerous to the lives of others and evincing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree.”

This provision was given its authoritative construction in Mitchell v. State, 60 Ala. 26 (1877).

“The act, to come within this class, must be greatly dangerous to the lives of others; must be of such character as to evidence — prove—that the offender had a depraved heart, regardless of human life; and must be without any preconceived purpose to deprive any particular person of life.”
* * * * * *
“We think the legislature, in this clause, intended to raise to the high grade of murder in the first degree those homicides which are the result of what is called ‘universal malice’. By universal malice, we do not mean a malicious purpose to take the life of all persons. It is that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim. The supreme depravity shown in this so-called universal malice, is considered as the equivalent of the strong adjectives, willful, deliberate, malicious, and premeditated, which characterize the first class of murder in the first degree.” Mitchell at 30-31.

Typical illustrations of the doctrine of universal malice are wilfully riding an unruly horse into a crowd, and throwing a timber from a roof into a crowded street. Moore v. State, 18 Ala. 532 (1851). Other examples are shooting a firearm into a crowd or into a train, dwelling house or automobile containing occupants. Bailey v. State, 133 Ala. 155, 32 So. 57 (1901); Johnson v. State, 203 Ala. 30, 81 So. 820 (1919); Washington v. State, 60 Ala. 10, 31 Am.Rep. 28 (1877); see also Gallant v. State, 167 Ala. 60, 52 So. 739 (1910) (setting off explosion beneath a house); Presley v. State, 59 Ala. 98 (1877) (placing obstacles on railroad track); Langford v. State, Ala.Cr.App. 1977, 354 So.2d 297 (driving an automobile in a grossly wanton manner).

However summarily and ambiguously this type of malice may have been treated by the early writers, the doctrine of universal malice is but a special application of the doctrine of implied malice applicable in those cases where the evidence positively shows the lack of malice toward any particular individual. Universal malice is a logical offshoot of the doctrine of implied malice which comprehends not only a particular ill will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. See: B. Gegan, Criminal Homicide in the Revised New York Penal Law, 12 New York Law Forum 565, 582 (1966); A. Funk, Jr., The Development of the Doctrine of Implied Malice in the Law of Murder, 34 Kentucky Law Journal 160 (1946). The doctrine is intended to embrace those cases where a person has no deliberate intent to kill or injure any particular individual. Longinotti v. People, 46 Colo. 173, 102 P. 165 (1909); nor is it essential that an intent to kill exist. Indeed the existence of such an intent would remove the act from the purview of this class of murder in the first degree. Mitchell.

By statutory definition, a homicide, to come within the purview of first degree depraved heart murder, must (1) be greatly dangerous to lives of others and (2) evince a depraved mind regardless of human life.

A “greatly dangerous act” is one which involves a “very high degree” of risk of serious bodily injury or death.

“Grossly negligent conduct, or reckless conduct, which results in death may serve as the basis for manslaughter liability, but it will not do for murder. For murder the degree of risk of death or serious bodily injury must be more than a mere unreasonable risk, more even than a high degree of risk. Perhaps the required danger may be designated a ‘very high degree’ of risk to distinguish it from those lesser degrees of risk which will suffice for other crimes. Such a designation of conduct at all events is more accurately descriptive than that flowery expression found in the old cases and occasionally incorporated into some modern statutes—i. e., conduct ‘evincing a depraved heart, devoid of social duty, and fatally bent on mischief’. Although ‘very high degree of risk’ means something quite substantial, it is still something less than certainty or substantial certainty. The distinctions between an unreasonable risk and a high degree of risk and a very high degree of risk are, of course, matters of degree, and there is no exact boundary line between each category; they shade gradually like a spectrum from one group to another.” LaFave and A. Scott, Criminal Law 542 (1972).

While the ancient concept of “depravity” must still be satisfied under our statutory definition of universal malice, “depraved” is a “Sunday word with a distinct moral connotation”. R. Moreland, A Re-Examination of the Law of Homicide In 1971: The Model Penal Code, 59 Kentucky Law Journal 789, 796 (1971). The word is a historic survivor of the common law and is outmoded and ambiguous. Moreland at 796. Translated into understandable terms, a depraved mind is one revealing an extreme indifference to the value of human life.' Moreland at 787. Professor Moreland stated that if he correctly interprets the attitude of the common law, one who commits a negligent or depraved murder has the mental attitude, “I don’t give a damn if I do kill somebody by my extremely dangerous act”. He equates this intent as “conduct wantonly disregardful of the lives and safety of others”. Moreland at 797.

Professor Perkins suggests that the phrase “wanton and willful disregard of unreasonable human risk” will adequately describe those acts which, because of their nature and the manner in which they are conducted, may constitute malice aforethought (first degree murder) even if there is no actual intent to kill or injure. Perkins, A Re-Examination of Malice Aforethought, 43 Yale Law Journal 537, 555-557 (1934). Perkins describes wanton conduct as:

“something different from negligence however gross—different not merely in degree but in kind, and evincing a different state of mind, so callously heedless of harmful consequences known to be likely to follow that even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.” Perkins, Criminal- Law 783 (1969).

Thus, from the above, we conclude that the phrase “greatly dangerous to the lives of others, and evidencing a depraved mind” means an act which, as stated, is greatly dangerous and constitutes a very high degree of risk of death or bodily harm to others. The act must evince an extreme indifference to the value of human life and be indicative of the “I don’t give a damn” attitude described by Professor Moreland.

Expert testimony presented by the state proved that heroin is recognized as an “organic poison”. See also: 28 C.J.S. Supp., Drugs and Narcotics § 3, p. 10. Under the Alabama Uniform Controlled Substances Act heroin is listed as a “schedule I” substance. Title 22, Section 258(29)(c)(10). A substance in this schedule has “a high potential for abuse and has no accepted medical use in treatment” or “lacks accepted safety for use in treatment under medical supervision”. Title 22, Section 258(28).

Heroin is also an inherently dangerous drug and its injection into the bloodstream of a human being constitutes a substantial and unjustifiable risk of death.

“From a careful study and analysis of the majority of prevailing legal precedents in the United States as well as the medical studies made and statistical data compiled, one can reasonably conclude that the consumption of heroin in unknown strength is dangerous to human life, and the administering of such a drug is inherently dangerous and does carry a high probability that death will occur. It is not unreasonable to conclude that the injection of heroin into the bloodstream of a human being constitutes a substantial and unjustifiable risk of death.” People v. Gruciani, 70 Misc.2d 528, 334 N.Y.S.2d 515, 523 (1972). Emphasis added.

While heroin is a truly dangerous drug, it is also an accepted fact that the injection of heroin into the body does not generally cause death in the normal heroin transaction. This fact is offset by the additional fact or circumstance that in this particular case there is evidence that Mrs. Quarles almost overdosed and had to be revived on the return trip from Mexico. This was sufficient to give the appellant a knowledge or foreseeability of the danger present in this particular quantity of heroin.

Other factors which indicate that this act was committed with depravity or extreme indifference to human life are: (1) The heroin was of an unknown strength and quality; (2) the appellant was solely responsible for “cutting” the narcotic; (3) the appellant gave everyone two doses of heroin within a one hour period and “administered” the dosage by “shoveling” the heroin off into the spoon of each person; (4) the appellant was in the process of determining the strength of the heroin when the two doses were given to the deceased; (5) the users indicated to the appellant that the heroin was stronger than their normal dosage; (6) the cut and packaged heroin was approximately six to eighteen times the strength of the normal street dosage; (7) the appellant had secured the heroin for profit and not merely to give pleasure to his friends; and (8) the appellant did not seek medical attention for the deceased when he was informed of the overdose.

Thus, viewing the entire circumstances, we have the basic elements of a depraved heart or wanton murder: (1) An act greatly dangerous to the lives of others and (2) performed in a manner strongly indicating that the actor “simply didn’t give a damn”. Admittedly, the giving of heroin to another does not appear initially to fit within that type of action which has traditionally been described as evincing a depraved heart. Admittedly, the mere furnishing of heroin to another does not evidence a depraved mind. However this was not the usual or ordinary heroin transaction. Here we have three circumstances that we cannot ignore: (1) The fact of the prior overdose; (2) the fact that the heroin was of strong but unknown purity and strength; and (3) the fact that the state proved that heroin was an organic poison. Certainly no one could argue with the proposition that the giving of an unknown quality of poison to another in order to determine how strong that poison is constitutes an act evidencing a depraved mind and one in gross disregard of human life. The fact that heroin is generally not considered a poison is of no consequence where, as here, the state proved it is.

We will not belabor this point any further. The particular facts and circumstances preceding and surrounding the act of the appellant were sufficient to permit the jury to infer that the appellant actually knew that his conduct was extremely dangerous to human life.

In reaching this conclusion we have considered the other cases which have dealt with the issue of a depraved heart murder arising from a furnishing of heroin and resulting death. Our conclusion in no way conflicts with the holdings of those two cases. Although each case involved indictments for murder under the depraved heart or universal malice doctrine, the murder was defined by statute as second degree murder.

In People v. Johnson, 68 Misc.2d 937, 329 N.Y.S.2d 265 (1972) the defendant was indicted on a charge of second degree murder by “recklessly engag(ing) in conduct which creates a grave risk of death to another person” under “circumstances evincing a depraved indifference to human life”. N.Y. Penal Law, Section 125.25(2) (McKinney 1967).

The defendant moved to dismiss the murder charge on the grounds that the sale of a dangerous drug, with the resultant death of the user who self-administered the drug, does not constitute homicide, and that even if such conduct does amount to homicide, it should not be considered murder.

The court denied the motion to dismiss for the reason that the indictment raised questions of fact as to whether the circumstances and the conduct of the defendant evinced a depraved indifference to human life and whether there was evidence of reckless conduct or course of action which created a “grave risk of death” to another person which caused death.

“To put it precisely, if proven, what were the ‘natural and probable consequences’ of a sale of heroin to a minor 17 years of age? And, if proven, was the conduct so reckless as to create a grave risk of death and cause the death of that person.” Johnson at 329 N.Y.S.2d 267.

A search of Shepard’s Citations does not disclose the outcome of this case on trial, if, indeed, it was tried.

The other case considering the doctrine of universal malice in connection with a death from a heroin overdose is Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973). There the defendant was found guilty of murder in the second degree. At trial medical testimony was produced that death was caused by an adverse reaction to an injection of heroin. However the medical examiner stated that the amount of narcotic taken by the deceased was consistent with that taken by an addict and death would be unexpected or unforeseeable from such a dose in an addict. In the case under review, each witness that testified that he or she had used heroin for a period of time also testified that he or she was not addicted and was not an addict.

The Pennsylvania Supreme Court noted the general rule of universal malice:

“When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that ‘wickedness of disposition; hardness of heart; cruelty; recklessness of consequences and a mind regardless of social duty’ which proved that there was at that time in him ‘that state or frame of mind termed malice’.” Bowden, 309 A.2d 717-718.

However the court refused to apply depraved heart murder doctrine liability to the conduct of the defendant because there was no reasonable anticipation of death involved.

“Initially, although we recognize heroin is truly a dangerous drug, we also recognize that the injection of heroin into the body does not generally cause death.”

The court pointed out that under the facts of this particular case, the defendant knew that the deceased was an addict, had used heroin with him for a period of time, knew the deceased’s tolerance to heroin, knew the quantity of heroin he injected into the deceased was his normal dosage and knew that this dosage had never adversely affected the deceased before in the times he had used the drug. None of these mitigating factors is present in the case under review.

In both Johnson and Bowden the imposition of homicidal liability was based on the court’s perception of the inherent dangerousness or overdose potential of the administration of heroin. In other words, liability was only imposed where the defendant could have reasonably anticipated that death was likely to occur. Bowden, 309 A.2d 718. That foreseeability was present in this case.

IV

Finally the appellant contends that the trial court erred in denying his motion to exclude on the grounds that he was convicted on the uncorroborated testimony of accomplices.

In Napier v. State, Ala.Cr.App., 344 So.2d 1235 (1977) this court held that:

“The proper way to determine if a witness is an accomplice is, could the witness have been indicted and convicted of the offense charged either as principal or accessory. If he could not, he is not an accomplice.”

There we held that the witness Rhodes was not an accomplice to the appellant under an indictment charging him with the possession of narcotics.

Under the evidence before this court, the testimony of Les Solomon, who arrived only after the heroin had been cut and had “nothing to do with it”, was sufficient to corroborate the testimony of the Quarleses and Steven Rhodes even if they be considered accomplices. We need not pursue this issue further. Not only was the appellant a peddler of decadence but, in this instance, he was a dealer of death. Under' these circumstances the evidence was sufficient to support a conviction for murder in the first degree.

The evidence presented by the state, if believed by the jury, is sufficient to sustain the jury verdict finding the appellant guilty as charged in the indictment. The court did not err in overruling the appellant’s motion to exclude the evidence.'

In concluding, we note that this was the first televised trial to be conducted in the State of Alabama. Such proceedings are authorized by the Plan for News Media Coverage and Other Recordation of Trials and Other Proceedings in the Circuit Court of the Thirteenth Judicial Circuit Under Canon 3A(7) and 3A(7A) Alabama Canons of Judicial Ethics. While all we have to review is a written transcript of the proceedings, we commend the trial judge for his maintenance of the dignity and decorum appropriate to the trial of so serious a charge as murder in the first degree. The record reveals no disruption or distraction which interfered with the administration of justice and the trial of the cause.

We have reviewed the record and found no error prejudicial to the appellant. Therefore the judgment of. the trial court is due to be and is hereby

AFFIRMED.

All Judges concur.

      . THC, Tetrahydrocannabinol is the active ingredient in marijuana.

      . MDA, Methylenedioxy Amphetamine.

      . Generally see: W. Cohen, Heroin Deaths: Homicidal Responsibility of the Seller in New York, 37 Albany Law Review 497 (1973); B. Becker, Prospective Homicidal Responsibility for the Heroin Dealer in Arizona, 97 Arizona State Law Journal 97 (1975); J. Weissman, Imposing Homicide Liability for Death-Producing Drug Law Violations, 12 California Western Law Review 102 (1975); Annotation: Homicide: Criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.


author: SHORES, Justice.

text:
    In re Damon Shelton NAPIER v. STATE. Ex parte Damon Shelton Napier.
    SC 2756.
    Supreme Court of Alabama.
    March 10, 1978.
    Rehearing Denied April 7, 1978.

      David L. Barnett, Mobile, for petitioner.
    William J. Baxley, Atty. Gen., Montgomery, Joseph G. L. Marston, III, Sp. Asst. Atty. Gen., Joseph M. Sarto, Prattville, for respondent.
   SHORES, Justice.

Napier was indicted and convicted of murder in the first degree in the Circuit Court of Mobile County. On appeal, the Court of Criminal Appeals affirmed and we granted certiorari because the case involves a question of first impression. The facts are fully set out in the opinion of the Court of Criminal Appeals. Napier v. State, 357 So.2d 1001 (1977), and do not need to be restated in detail here. Basically, the State charged Napier with first degree murder of David Archie Owings, who died as a result of two self-administered injections of heroin given to him by the petitioner. Napier was convicted under the following provision of Title 14, § 314, Code of Alabama 1940, Recompiled 1958:

“Degrees of murder. — Every homicide . perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree . . . .”

This statutory language, defining the fourth class of murder in the first degree under § 314, is commonly referred to as universal malice, and was defined by this court in Mitchell v. State, 60 Ala. 26, 30 (1877), as follows:

“. . .By universal malice, we do not mean a malicious purpose to take the life of all persons. It is that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim. The supreme depravity shown in this so-called universal malice, is considered as the equivalent of the strong adjectives, willful, deliberate, malicious, and premeditated, which characterize the first class of murder in the first degree.” (Emphasis Supplied)

The State argues that the petitioner’s act of giving to the deceased heroin of unknown strength, knowing that it would be injected by the recipient, evinces a degree of depravity of the heart as defined by the court sufficient to equate malice and, therefore, sufficient to support a conviction of murder in the first degree.

Legislatures, prosecutors and courts throughout the nation, justifiably concerned with the rising numbers of deaths resulting from drug abuse, have attempted, in various ways, to define the criminal dimensions of drug abuse resulting in death. We have not been cited to, nor have we found, any case where a first degree murder conviction has been sustained involving giving or selling drugs to a person who dies as a result of injecting or ingesting the drug. As the Court of Criminal .Appeals noted, there are only two reported cases in which the prosecution was grounded upon the universal malice concept; and, in each of those cases, the murder was defined by statute as second degree. Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973); People v. Johnson, 68 Misc.2d 937, 329 N.Y.S.2d 265 (1972). In Johnson, the defendant was indicted for wanton murder under N.Y. Penal Law, § 125(2) (McKinney 1967), which states:

. . ‘A person is guilty of murder when: * * * 2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.’ . ” (Emphasis Supplied) (329 N.Y.S.2d at 267)

The defendant sold heroin to a minor child who died soon after the drug was self-administered. The court denied the defendant’s motion to dismiss the indictment, holding a fact issue was presented, i. e.:

“. . . if proven, what were the ‘natural and probable consequences’ of a sale of heroin to a minor 17 years of age? And, if proven, was the conduct so reckless as to create a grave risk of death and cause the death of that person? . .” (329 N.Y.S.2d at 267)

In Bowden, the Supreme Court of Pennsylvania reversed a conviction of second degree murder where the death was caused by an overdose of heroin, and refused to apply the universal malice doctrine because there was no reasonable anticipation of death involved.

There are no reported decisions upholding a murder conviction in any degree where the prosecution was based upon the universal malice concept. There are several California cases affirming murder convictions in drug cases, but those prosecutions were based upon the felony murder doctrine. People v. Taylor, 11 Cal.App.3d 57, 89 Cal.Rptr. 697 (1970); People v. Cline, 270 Cal. App.2d 328, 75 Cal.Rptr. 459 (1969); Ureta v. Superior Court of Monterey County, 199 Cal.App.2d 672, 18 Cal.Rptr. 873 (1962).

The rationale of the California cases has been expressly rejected and severely criticized in other jurisdictions as an expropriation of legislative authority. State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974); State v. Dixon, 109 Ariz. 441, 511 P.2d 623 (1973). In New York, drug deaths have been dealt with at length on several occasions, and the courts have affirmed manslaughter convictions. Homicide liability arising from drug law violations has been raised under three different New York statutes: N.Y. Penal Law, § 125.15(1), (McKinney 1967) (referred to as reckless manslaughter); N.Y. Penal Law, § 125.10, (McKinney 1967) (referred to as negligent homicide); and N.Y. Penal Law, § 125.25(2), (McKinney 1967) (referred to as wanton murder). In People v. Pinckney, 65 Misc.2d 265, 317 N.Y.S.2d 416 (1971), the court rejected the application of any form of statutory homicide. It was held that an injection of heroin into the body does not generally in itself cause death. Under such circumstances, a defendant could not be said to have knowledge that death would result. However, in People v. Cruciani, 44 A.D.2d 684, 353 N.Y.S.2d 811 (1974), it was held that the injection of a dangerous drug by the defendant into another constituted a homicidal act and a conviction for reckless manslaughter was affirmed.

In Cruciani, the defendant administered an injection of heroin to the deceased with the knowledge that she was already under the influence of barbituates. The case was distinguished from Pinckney because the risk of death was substantially increased when the central nervous system was already depressed as the result of the consumption of barbituates. The defendant’s knowledge of this fact increased his mental culpability and evidenced a reckless disregard for the risk involved. The decision in Cruciani to affirm a conviction for manslaughter finds support in other jurisdictions where reckless disregard for human life has been statutorily adopted as an element of manslaughter and applied to heroin death cases. People v. Meyer, 46 Mich.App. 357, 208 N.W.2d 230 (1973); State v. Thomas, 118 N.J.Super. 377, 288 A.2d 32 (1972).

In the instant case, however, the jury was charged only on murder in the first degree. It was not charged on lesser included offenses. Therefore, we do not have before us the question of whether a conviction of manslaughter or a lesser degree of murder would be sustained. The only issue before us is whether a first degree murder conviction based upon the universal malice doctrine provided for in Title 14, § 314, Code, can be sustained under the evidence in this case.

As early as 1877, in Mitchell v. State, supra, this court, speaking through Justice Stone, held that there must be a determination on the part of the defendant “to take life” without knowing or caring who the victim may be, to constitute universal malice. As recently as 1977, in Langford v. State, Ala., 354 So.2d 313 (1977), this court reversed a first degree murder conviction based on universal malice where the defendant, an intoxicated driver, drove an automobile at high speed on a busy highway, resulting in death to another. The court relied on Mitchell, supra, in holding:

“The word ‘determines’ presupposes that some mental operation has taken place; the reasoning faculty must be called into play. (Citations Omitted)
“As Langford has correctly pointed out, in the instant case, the defendant determined only to drive upon the highway after drinking. There is no showing that he determined to have a collision; nor is there any evidence that he realized the likelihood of a collision; and the consequent taking of human life, and proceeded in the face of such probabilities.” (At 315)

The textbook examples of universal malice are generally such acts as shooting into an occupied house or driving an automobile into a crowd. State v. Massey, 20 Ala.App. 56, 100 So. 625 (1924). In each instance, the defendant’s act endangers the lives of many with a high and obvious probability that death or, at least, serious injury would result. In each case, the defendant evinces a culpable mind, determined to act no matter what the consequences to others. He must have determined to follow a course of action which he knows, or should know, will, in all probability, lead to harm to another.

Napier’s actions in giving 0wings a quantity of heroin of unknown purity, while evincing a high degree of recklessness, does not exhibit the degree of malice necessary to support a conviction for murder in the first degree. The evidence does not show that he intended any injury to Owings, nor does it show that he made any determination to cause what would probably be injury or harm to any other person. Without such evidence, a conviction of murder in the first degree cannot be affirmed.

Trafficking in drugs is reprehensible and persons who deal in illicit drugs deserve the contempt which society holds for them, and should be held criminally liable for deaths resulting from their ignoble trade. The legislature can clearly enact legislation imposing homicide liability for death producing drug law violations and may have done so in the new Criminal Code, not yet effective. Act No. 607, Acts of Alabama 1977. The old statute, however, under which the State indicted and the jury convicted the petitioner, falls short as a vehicle for prosecution and conviction of murder in the first degree.

The decision of the Court of Criminal Appeals is reversed and remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.

MADDOX and BEATTY, JJ., concur in result.


text:
    Damon Shelton NAPIER v. STATE.
    1 Div. 747.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.
   After Remandment from the Supreme Court of Alabama

BOWEN, Judge.

The judgment of conviction of the appellant is reversed and the cause remanded on authority of the decision of the Alabama Supreme Court in Napier v. State, 357 So.2d 1011 (1978).

REVERSED AND REMANDED.

All Judges concur.


text:
    Charlie G. THOMAS v. STATE.
    2 Div. 215.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.
    William H. Traeger, III, for Lloyd, Dinning & Boggs, Demopolis, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

This is an appeal from an indictment and conviction of assault with intent to ravish. Sentence was fixed by the trial court at twelve yéars’ imprisonment. The appellant is represented by court appointed counsel both at trial and on appeal.

At trial there was no motion to exclude the evidence presented by the state, no motion for a directed verdict or request for an affirmative charge, and no exception to the oral charge of the court. The motion for new trial did not challenge the sufficiency of the evidence. The evidence that the appellant is guilty as charged is undisputed. The record reveals that on December 11, 1976, the appellant attacked the prosecu-trix, rendered her unconscious, pulled her pants and underwear down around her knees, “straddled” her as she lay on the sidewalk and beat her about the face and head. The only witness for the appellant presented testimony on the issue of insanity-

I

Initially the appellant predicates error on the failure of the trial court to employ a jury in determining the issue of the appellant’s competency to stand trial.

Prior to trial defense counsel filed a “petition for inquisition upon alleged insane prisoner”. Pursuant to Title 15, Section 428, Code of Alabama 1940, the trial judge, being “reasonably satisfied” that the appellant was insane, ordered the appellant committed to Bryce State Mental Hospital until “restored to his right mind”. In April of 1977 the Forensic Evaluation Board of Bryce Hospital reported that the appellant was “so restored” and requested that criminal proceedings be resumed.

On the day of trial, defense counsel filed a motion reciting that the appellant was incompetent and unable to aid and assist in his own defense. At that time the trial judge heard evidence on the competency of the appellant to stand trial.

The Honorable Thomas H. Boggs, one of the court appointed attorneys for the appellant, testified that he was convinced that the appellant was incompetent to stand trial, that he could not communicate with his client, that he received no cooperation, and that the appellant was “either unable, or unwilling, to participate in his own defense”.

On cross examination by the state, Mr. Boggs admitted that the appellant had been certified competent by Bryce Hospital, that he could not tell whether the appellant was malingering, and that the appellant probably knew that he was charged with a crime but did not know the reason for it or “anything about the incident”. In response to a question by the court, counsel acknowledged that the trial judge had sent the appellant to Bryce Hospital on two or three occasions and each time the hospital had certified the appellant as sane.

William H. Smith, Sheriff of Marengo County, testified that while the appellant had been in the county jail during the past couple of months, he had been screaming, yelling, beating on the walls and causing general disruption. However the Sheriff stated that the appellant would yell, scream, and beat when he wanted something or did not get exactly what he wanted. The Sheriff stated that “I’ve never been in the jail that he didn’t want something.” “He wants something all the time.” Sheriff Smith also testified to a suicide attempt by the appellant where the appellant tied a sheet around his neck and tied it to the bars. The appellant did not choke because he had also tied the sheet under his arms so that when “hanging” the sheet was tighter under his arms than around his neck.

Dr. Mike Haley, a counseling psychologist for the West Alabama Mental Health Center, was called as a witness by the state. He stated that he knew the appellant well, that he had seen the appellant very frequently in the past two years, and that he had spent probably one hundred hours interviewing and counseling him. Dr. Haley stated that the appellant was a paranoid schizophrenic but that his schizophrenia was under control through medication. Dr. Haley interviewed the appellant the day before the hearing and found it difficult to communicate with him because the appellant “was intentionally making it difficult; that he was malingering”. Malingering, very simply, means faking. In Dr. Haley’s opinion the appellant was competent and not psychotic on the day of the hearing.

The defense then called Dr. Mike Mundy, a clinical psychologist and the executive director of the West Alabama Mental Health Center. Dr. Mundy testified that he observed the appellant the day before the hearing and

“. . .1 know this patient from past experience . . . the man yesterday was definitely demonstrating some psychotic-like behavior; whether or not it was malingering, I’m not sure . (A)nd I do know from personal experience that he does have a very adept quality at feigning or malingering. As far as yesterday’s evaluations, I couldn’t tease out whether or not he was malingering or truly psychotic.”
“I don’t, as of yesterday’s interview, I’m not sure what he would do in terms of his own defense he’s able to demonstrate psychotic qualities when it suits his situation . . . .”

Dr. Mundy concluded that he did not think the appellant could participate in his own defense and understand the charges against him.

On cross examination Dr. Mundy stated that the appellant would be more apt to malinger, or feign, at the time when his trial was coming up than at any other time. He affirmed that he simply could not determine whether the appellant was malingering or truly psychotic in the interview held one day past.

Based on this testimony the trial judge found the appellant competent for trial.

“I’ve sent him to Bryce two or three times and they keep sending him back saying nothing is wrong with him; and based on that, and based on the file and based on the testimony, and based on the testimony I’ve heard today, and based on the past actions of the whole file from Bryce, I find him competent for trial.”

After this finding the jury was brought into the courtroom whereupon the appellant caused some disruption of the proceedings, making statements to the trial judge and referring to him as “Jesus Christ”. The trial judge then instructed the bailiff to take the jury back to the jury room, instructed the deputy sheriff to handcuff the appellant because of his disruptive behavior and warned the appellant that upon further disruption he would be removed from the courtroom.

On appeal the appellant argues that Title 15, Section 426, Code of Alabama 1940, and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) require that the issue of the competency of the accused to stand trial be submitted to a jury.

The pertinent portion of Title 15, Section 426, reads as follows:

“If any person charged with any felony be held in confinement under indictment, and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity, such jury to be impaneled from the regular jurors in attendance for the week or from a special venire, as the court may direct.”

The Supreme Court of Alabama explained the function of this statute in light of the United States Supreme Court decision in Pate v. Robinson.

“In the case of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Supreme Court of the United States enunciated the rule that if a sufficient doubt as to the present competency of the accused is made known to the trial court, then the court must hold a hearing on the issue of competency to stand trial. The defendant is constitutionally entitled to such a hearing. The law in this State until very recently has been that it is in the complete discretion of the trial judge to implement any sanity investigation, whether under § 425, 426, or 428 of Title 15, Code of Alabama, 1940, Recompiled 1958. Numerous cases have- in the past supported this proposition. See Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970); Ex Parte Bush, 247 Ala. 351, 24 So.2d 353 (1945); Burns v. State, 246 Ala. 135, 19 So.2d 450 (1944); Whitfield v. State, 236 Ala. 312, 182 So. 42 (1938); Rohn v. State, 186 Ala. 5, 65 So. 42 (1914); Granberry v. State, 184 Ala. 5, 63 So. 975 (1913).
“However, in Pierce v. State, 292 Ala. 745, 293 So.2d 489 (1974) (writ quashed), the ‘old’ approach was abandoned in favor of one more in keeping with the due process requirements of Pate. Chief Justice Heflin wrote in Pierce :
“ ‘The law is now settled that if sufficient doubt of the defendant’s present mental competency is raised before or during trial, then it is mandatory that there be a judicial hearing to determine his mental competency to stand trial, and that the refusal of the trial court to grant such a hearing is re viewable.’
“To the extent the above cited cases conflicted with this holding, they were overruled.”
Tillis v. State, 292 Ala. 521, 523-524, 296 So.2d 892, 894 (1974).

In Edgerson v. State, 53 Ala.App. 581, 586, 302 So.2d 566 (1974), this court noted that since Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) and Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), cert. quashed, 292 Ala. 745, 293 So.2d 489 (1974), the provisions of Title 15, Section 426, Code, are considered “constitutionally mandatory rather than discretionary, and the refusal of the trial court to submit this issue to the jury is reviewable”. See also Buttrum v. State, 57 Ala.App. 422, 329 So.2d 111 (1975).

However, in this case, the trial judge did not err or abuse his discretion in failing to submit to a jury the issue of the appellant’s competency to stand trial because he determined, in effect, that there was no reasonable ground or bona fide doubt of that competency. Ray v. State, 53 Ala.App. 292, 299 So.2d 337 (1974); Rich v. State, 51 Ala.App. 556, 287 So.2d 873 (1973); Cunningham v. State, 54 Ala.App. 514, 310 So.2d 235 (1975); Persons v. State, Ala.Cr.App., 339 So.2d 1092 (1976); Billups v. State, Ala.Cr.App., 338 So.2d 478 (1976); Barfield v. State, 54 Ala.App. 15, 304 So.2d 257 (1974); Buttrum v. State, 57 Ala.App. 425, 329 So.2d 114, cert. denied, 295 Ala. 394, 329 So.2d 116 (1976).

The procedure followed in this case was essentially that mandated in Buttrum, supra, where the trial court, after a hearing, found no reasonable ground to doubt the defendant’s sanity. This doubt must arise in the mind of the trial judge, and if he has no reasonable doubts on the matter, he need not call a jury (even if one be required where doubts arise, see Moore v. State, 52 Ala.App. 179, 290 So.2d 246 (1974); Hocutt v. State, Ala.Cr.App., 344 So.2d 194 (1977); Holmes v. State, Ala.Cr.App., 342 So.2d 28, cert. denied, Ala., 342 So.2d 36 (1977)). However the trial judge must not be unreasonable or arbitrary in the exercise of this discretion. Minniefield v. State, 47 Ala.App. 699, 260 So.2d 607 (1972); Brinks v. State of Alabama, 465 F.2d 446, cert. denied, 409 U.S. 1130, 93 S.Ct. 940, 35 L.Ed.2d 263 (5th Cir. 1972).

In determining whether a reasonable doubt as to sanity exists, the trial judge may make investigation and hear evidence. He is not required to rely upon the bare suggestion of present incompetency. See Weihofen, Mental Disorder as a Criminal Defense, p. 448.

Considering all the evidence we do not think the trial judge was compelled to conclude that he should have entertained a bona fide or reasonable doubt as to the competency of the appellant to stand trial. Rich, supra. Consequently there was no abuse of his discretion in failing to empanel a separate jury on this question.

II

In rebuttal, the state presented testimony by a deputy sheriff that he overheard the appellant state to other jail inmates on the day of his trial that he was going to go over and “fake the courtroom”. At trial testimony had been presented that the appellant could and had faked or malingered his psychotic symptoms. The record discloses no objection to the question or the answer of the deputy. Therefore nothing is presented for this court to review. 7 Alabama Digest, Criminal Law, @=>1036.1(1).

We have carefully searched the record for error and have found none. Therefore the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Charles LUTTRELL v. STATE.
    2 Div. 216.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.

      Wm. T. Faile of Morris & Fade, Selma, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for possessing or selling heroin, a controlled substance. He was convicted by a jury on a plea of not guilty. The Court fixed the punishment at thirty years imprisonment and a fine of $25,000. Proper judgment was duly entered. The appeal follows.

I

Appellant contends that the trial court committed reversible error in qualifying the jury as follows:

“Q. * * * Is there anyone here who does not believe that law enforcement should use undercover agents in the apprehension,of people who sell controlled substances, drugs?
A. (No response)
Q. Any of you feel like that should not be done by law enforcement officers?
A. (No response)
Q. Do you all understand that such activities are usually clandestine in nature, they are not done openly, that they are done in secret under cover of darkness, that kind of thing?
A. (No response)
Q. All right, are there any of you who, if you were selected as jurors in this case and you saw an undercover agent who didn’t appear to be dressed like a policeman or law enforcement officer, who had altered his appearance so as to use the vernacular, to fit into the drug scene, would you be less inclined to believe him than any other witness in the case? Any other law enforcement officer?”

Defense counsel objected to the last question on the ground that it was prejudicial. We do not think the question under consideration, and to which the defense objected, was prejudicial. The question was asked, at the suggestion of the State, to determine whether any members of the venire were prejudiced against undercover drug agents. Narcotic enforcement agents do become involved in the “drug scene” and use the vernacular of the illicit traffic as an integral part of their job. It is to be noted the question did not mention the appellant, but was directed toward the activities of the undercover agents.

We fail to find any interrogation on the part of the trial court in the instant case which would indicate that the trial judge was trying to influence the prospective jurors, or that they were in fact influenced. The State had a right to find out through the Court’s questioning, if any of the jurors distrusted narcotic agents arising out of their vernacular, dress, and approach in enforcing the narcotics laws. Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218(1); Lang v. State, 279 Ala. 169, 182 So.2d 899(3).

It is to be noted that the trial court, after the objection, supra, asked appellant’s counsel if he had any further questions on voir dire. Counsel then had an opportunity to request clarifying questions be propounded to the jury if he so desired.

II

The trial court allowed the impaneled jurors to separate and go their several ways. Before doing so, the Court properly admonished them not to talk with anyone about the case.

The record does not reflect any objection to this separation, nor was there a motion for a new trial. Mitchell v. State, 244 Ala. 503, 14 So.2d 132, 137(3, 4). There is no ruling of the trial court for appellate review with respect to the separation.

III

Appellant contends that the trial court committed reversible error when, prior to the beginning of the trial, it instructed the jury as follows:

“ * * * He enters this trial clothed with the presumption of innocence which is evidence in the case and remains with him until such time as the State of Alabama has convinced each and every juror beyond a reasonable doubt and to a moral certainty that he’s guilty of one of the offenses embraced within this indictment. Now that’s the sole function of the indictment. It’s an accusation. You’re not to consider it as evidence.”

We note that the jury returned a verdict of guilt without fixing a fine. The Court thereupon imposed a fine of $25,000. Such imposition was without authority of law. See T. 15, § 335, Code of Alabama 1940, now § 15-18-40, Code of Alabama 1975. This section reads:

“In prosecution by indictment, the jury shall fix and determine the amount of the fine, and no judge shall remit or reduce the fine so fixed unless he spreads his reasons for doing so in full on the minutes of the court. * * * ”

See also Osner v. State, 54 Ala.App. 520, 310 So.2d 241(9), cert. den. 293 Ala. 769, 310 So.2d 247, cert. den. 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 101.

The trial court was without authority of law to impose the sentence of thirty years imprisonment for the first offense. The maximum imprisonment for the first offense is fifteen years. § 20-2-70(a), Code of Alabama 1975. However, § 20-2-76(a), Code of Alabama 1975, reads:

“Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized or both.”

We have examined the indictment and have found that no prior narcotic conviction is averred therein. The trial court, in the absence of such averment in the indictment, was without authority to impose an imprisonment sentence in excess of fifteen years imprisonment. Funches v. State, 56 Ala. App. 22, 318 So.2d 762(2), cert. den. 294 Ala. 757, 318 So.2d 768.

We remand for proper sentence within the limit provided by law.

The judgment of guilt is affirmed and the cause is remanded as provided by law.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED; CAUSE REMANDED FOR PROPER SENTENCING.

All the Judges concur.


text:
    Charles LUTTRELL v. STATE.
    2 Div. 211.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.
    William T. Faile of Morris & Fade, Selma, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Dallas County returned an indictment against the appellant, Charles Luttrelll, charging that he did unlawfully sell, furnish, or give away Heroin, a controlled substance. The appellant entered a plea of not guilty. A jury found appellant guilty as charged. The trial court duly sentenced the appellant to 15 years in the penitentiary, and he appeals to this Court.

This appeal was submitted on briefs. At all proceedings in the trial court the appellant was represented by counsel of his choice and is so represented in this Court.

Appellant asserts in his brief three reasons why his conviction should be reversed; first, the court’s refusing appellant’s written charge no. 2; second, granting state’s challenge of a venireman; third, comments made by the trial judge on the evidence in respect to heroin being an addictive drug.

Appellant’s refused written charge no. 2 was substantially and fairly covered by the court’s oral charge. We hold that the trial court did not err in refusing appellant’s written charge no. 2. Code Of Alabama 1975, Title 12-16-13.

We have searched the record and do not find an objection to the action of the trial court in sustaining state’s challenge to venireman, Mr. Ramsey, nor do we find an objection in the record to comments made by the trial judge on the evidence in respect to heroin being an addictive drug. We hold that without an objection to the above ruling and remarks of the trial judge there is nothing presented to this Court for us to review. Knight v. State, 273 Ala. 480, 142 So.2d 899; Welch v. State, 278 Ala. 177, 176 So.2d 872; Hurley v. State, Ala.Cr.App., 341 So.2d 494, certiorari denied, Ala., 341 So.2d 497; Gulley v. State, Ala.Cr.App., 342 So.2d 1362; Hassell v. State, Ala.Cr.App., 342 So.2d 1357.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Sammy BECKLEY, alias Sammy Lee Beckley v. STATE.
    6 Div. 679.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.

      John A. Bivens, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for burglary in the first degree of the home of Mrs. Frances Biederman. In separate counts the indictment charged the appellant with breaking and entering with the intent to rape, rob and murder Mrs. Biederman. The jury returned a general verdict imposing sentence at life imprisonment.

Prior to the instant conviction the appellant was convicted for the rape of Mrs. Biederman. The burglary and the rape grew out of the same factual situation. The evidence reveals that the appellant and a companion broke into Mrs. Biederman’s home on the night of December 3, 1971, raped her and rummaged through and ransacked her belongings. This court recently affirmed the appellant’s conviction for rape. Beckley v. State, Ala.Cr.App., 353 So.2d 542.

I

The appellant alleges that his prosecution for burglary was barred by his previous conviction for rape. In the alternative the appellant argues that the sentences in the two convictions should run concurrently.

A.

Under Alabama law:

“A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and on fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law.” (Citations omitted) Colston v. State, Ala., 350 So.2d 337, at 339 (1977) quoting from Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973).

Here the crimes charged are founded on the same set of facts but the crimes charged are not the same in contemplation of law.

In this state the elements of burglary in the first degree are: (1) A breaking and entering, (2) in the nighttime, (3) of a dwelling house presently occupied, (4) with the intent to steal or to commit a felony. Title 15, Section 85, Code of Alabama 1940, Recompiled 1958; Reeves v. State, 245 Ala. 237, 16 So.2d 699 (1944).

Rape is the unlawful carnal knowledge of a woman, forcibly and without her consent. Dawkins v. State, 58 Ala. 376 (1877); Harris v. State, 2 Ala.App. 116, 56 So. 55 (1911).

Though there has been considerable difficulty in this state as well as others in determining when offenses are identical for purposes of barring a subsequent prosecution, it is clear that under the test enunciated in Colston, burglary, even where the intent be to commit rape, and rape are separate and distinct offenses. The fact that one has been in jeopardy for one act is no bar to a prosecution for a separate and distinct act, though the other act is so closely connected in point of time that it is impossible to separate the evidence relating to either on the first trial. Gunter v. State, 111 Ala. 23, 20 So. 632 (1895). The guaranty of the constitution does not extend to several prosecutions for several offenses, but to repeated prosecutions for the same offense. Gordon v. State, 71 Ala. 315, 317 (1882).

“To define the crimes is to demonstrate that they are two separate and distinct criminal offenses. The prosecution of one is, therefore, not barred by the prosecution of the other. In fact, these two offenses do not arise out of the same criminal act, for the burglary was completed upon the breaking and entering with the required intent, and the rape took place thereafter.” Vincent v. State, Del.Supr., 256 A.2d 268, 271 (1969).
Recently this court held:
“Burglary being an offense against property, and rape being an offense against person, we hold that they are separate and distinct offenses, and are completely unrelated. A conviction of one is no dé-fense to the other. Alola v. State, 39 Ala.App. 215, 96 So.2d 816; State of Alabama v. Standifer et al., 5 Port. 523; Gunter v. State, 111 Ala. 23, 20 So. 632; Brown v. State, 236 Ala. 423, 183 So. 412; Jones v. State, 50 Ala.App. 174, 277 So.2d 920.” Biggs v. State, Ala.Cr.App., 346 So.2d 467, 468, cert. denied, Ala., 346 So.2d 470 (1977).

B.

The appellant also argues that he can receive only one punishment for the conviction of rape and burglary arising out of the same transaction. He cites in brief Yelton v. State, 56 Ala.App. 272, 321 So.2d 234, cert. denied, 294 Ala. 745, 321 So.2d 237 (1975). While Yelton supports the position of the appellant we do not consider it controlling in light of Colston v. State, Ala., 350 So.2d 337 (1977). Because burglary and rape are completely separate and distinct offenses, Title 15, Section 287, Code of Alabama 194Q, Recompiled 1958, does not apply. In this instance a single crime has not been subdivided into two or more offenses, nor has a series of charges been based upon the same act. See Crosswbite v. State, 31 Ala.App. 181, 13 So.2d 693 (1943).

For these reasons each separate sentence for each separate crime must stand.

ii

The appellant alleges that the trial court erred in allowing testimony concerning the rape at his trial for burglary.

Evidence of the rape was admissible (1) as part of the res gestae, Bibb v. State, Ala.Cr.App., 339 So.2d 1108 (1976); (2) to show the intent for the breaking and entering, Woodward v. State, 21 Ala.App. 417, 109 So. 119 (1926); and (3) to prove the accused’s guilt of the burglary and the identity of the criminal, Whitley v. State, 37 Ala.App. 107, 64 So.2d 135 (1953). The trial judge did not err in allowing testimony of the rape which occurred shortly after the appellant broke and entered the victim’s home.

We have searched the record for error and have found none. We have written to each issue raised by the defendant on appeal and considered others. Finding that the appellant received a fair trial, we affirm the judgment of conviction.

AFFIRMED.

All Judges concur.

      . In Delaware, burglary is defined by statute as the breaking and entering in the nighttime into the dwelling house of another with intent to commit murder or rape, whether or not the intent is executed. 11 Del.C. § 392.