author:
PER CURIAM. DeCARLO, Judge PER CURIAM.
      HARRIS, Judge

text:
    Jerre CHATOM v. STATE.
    1 Div. 688.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 26, 1976.

      Joseph 0. Kulakowski, Thomas J. Stein, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   PER CURIAM.

First degree murder; sentence: life imprisonment.

On November 17,1975, three deputy sheriffs were shot down from ambush in a rural Mobile County near Wilmer. Two of the deputies died as a result of the shootings. The appellant was indicted, tried and convicted for the murders of the two deputies, Officers Beck and Stoltz. The record is voluminous and consists of 757 pages.

The State’s case consisted entirely of circumstantial evidence. At the end of the State’s case, the appellant moved to exclude the State’s evidence contending that the State failed to make out a prima facie case. Therefore the sufficiency of the evidence is before us.

Near the end of the trial, the trial court admitted into evidence the results of an “atomic absorption test.” In order to demonstrate the importance of this test, it is necessary to set out what we perceive to be the permissible inferences that could be drawn from the evidence.

On November 17, 1975, the appellant and Mike Wilson were riding down a country road in Mobile County at approximately 70 miles per hour. A deputy sheriff, Officer Kelso, pursued the appellant and Wilson. Police later determined both were on parole and arrest warrants were outstanding for them. A high speed chase ensued during which the appellant fired several .12 gauge shotgun blasts at Kelso’s car. The appellant and Wilson pulled off the main road onto a dirt road which led into a nearly impregnable swamp.

Kelso called in reinforcements. Five law enforcement officers, including Beck and Stoltz came to Kelso’s aid. The vehicle in which the appellant was riding was discovered at the edge of the swamp. In addition, various firearms and drug paraphernalia were recovered. While three of the officers were inspecting the evidence, Officers Beck, Stoltz and Morgan entered the swamp. A fierce gun battle ensued in which fifteen to twenty shots were fired within a matter of seconds.

Officer Kelso and the other two officers ran to the swamp which was approximately one hundred yards away. Upon entering the swamp, they heard what sounded like a person running through the swamp. Shortly thereafter, they discovered Beck and Stoltz, who were dead or dying, and Morgan who was wounded in the arm. Morgan said he could not see where the shots were coming from and did not see anyone.

At this time, between two hundred and three hundred law enforcement officers from Alabama and Mississippi converged on the swamp. A helicopter circled the swamp and bloodhounds were brought in from At-more. When the dogs arrived, the officers entered the swamp and found Wilson’s body approximately sixty feet from where the bodies of the slain officers were found. At about the same time that Wilson’s body was recovered, the appellant was captured in the state of Mississippi, approximately a mile and a half to two miles across the swamp from the scene of the crime.

An investigation revealed that the shots which killed Beck and Stoltz were fired from a .20 gauge shotgun which was the same as found along with a pistol beside Wilson’s body. Appellant was armed with a .12 gauge shotgun and other weapons, which he abandoned in the swamp. Officers found the shotgun where appellant told them he had left it. It was not the same caliber of the murder weapon. Neither the appellant’s nor Wilson’s fingerprints were found on any of the weapons, but neither was there shown an attempt to preserve fingerprints. The only shots which were fired at the officers came from the direction and vicinity of Wilson’s body.

The appellant did not testify at his trial. In statements made to the police, the appellant contends that when he and Wilson entered the swamp, that he told Wilson they should try to go through the swamp. Wilson did not believe they could make it through, and the appellant proceeded without him. The appellant contended to the police that he was at least three-fourths of a mile away when he heard the shooting occur. The shooting took place approximately one hour and twenty minutes after the appellant and Wilson entered the swamp.

The State introduced circumstantial evidence from which it contends that it could be inferred that the appellant’s statement was not true, and that he was in fact at the scene of the crime:

(1) An examination of Wilson’s body indicated that he was shot at extremely close range and that the wound was probably not self-inflicted. The inference sought by the State was that the appellant shot Wilson before the appellant escaped through the swamp. In closing argument, the defense draws an inference that Wilson was shot by one of the law enforcement officers.

(2) It was also the opinion of the investigators that Wilson could not have moved more than a few feet with the type of wound he received. In addition, the direction of the flow of blood from Wilson’s wound indicated that he had not moved after he was shot. The inference sought was that the person running through the swamp after the ambush was the appellant, not Wilson. Inferences which could be drawn under the theory of the defense are that the officers could have heard each other or possibly heard Wilson running before he was shot.

(3) Officers questioning the appellant at the District Attorney’s office said that the appellant stated that he had told the arresting officer that Wilson had killed the two deputies. The inference sought from this evidence was that the appellant had to have been at the scene of the crime in order to know that two officers had been killed. The weakness of such an inference is that even if the appellant had been at the scene, it is unlikely that he could have known how many officers had been killed. The evidence was that there was some sixty feet of heavy vegetation between the officers and the point where the shots were fired, and a total of three officers were hit by the gunfire. Such an inference is likewise disputed by direct testimony of the arresting officer as to what the appellant stated at the time of the arrest:

“I’m not armed. I quit. I quit. I quit. I’ve been running since early this morning and I quit.”

It was not until later at the District Attorney’s office that the appellant allegedly told his interrogators that upon his arrest he had explained that Wilson was the one who had killed the two deputies.

I

The most damaging evidence against the appellant consisted of the results of an “atomic absorption test.” The atomic absorption or gun residue test allegedly will show whether a person has recently fired a gun. The State, by use of the atomic absorption test sought to show that Wilson had not fired a gun on November 17, 1975. If Wilson did not fire a gun on the day in question, then there would be a strong inference that someone else, possibly the appellant, shot Officers Beck and Stoltz.

The State may also have sought to show that Wilson did not commit suicide. Inferences drawn from Wilson’s commission or noncommission of suicide appear to be too oblique to have any real bearing on the appellant’s guilt or innocence.

Dr. John McDuffie testified that he administered the atomic absorption test to swabs taken from Wilson’s body. The test was explained as follows:

“Q. Doctor, who do you work for?
“A. The Alabama Department of Toxicology in Criminal Investigation.
“Q. Where are you located, Doctor.
“A. At Auburn, Alabama.
“Q. How long have you been with the department?
“A. Approximately three years.
“Q. What kind of degrees do you have, please, sir?
“A. I have a B.S. in chemistry from Emory University. I have a Ph.D. from Auburn University.
“Q. Over the past three years have you had an opportunity to work a machine or an examination called atomic absorption?
“A. Yes, I have.
“Q. Explain to the jury what that is, please, sir.
“A. This is a machine that analyzes for certain elements by atomizing the elements due to heat. In other words, what it does is simply vaporize the elements into a light path. Once the elements are in the light path they are picked up by a light path and the machine can analyze as to the amount present or the particular element present based on the particular light beam that you put through it.
“Q. Does this particular test also or will it, along with a number of other things, determine primer residues?
“A. Yes, sir.
* * * 5}! Jj< *
“Q. Do you have an opinion as to whether or not there was any primer residues on these swabs?
“A. Yes, sir.
“Q. What is that opinion?
“A. My tests failed to reveal the presence of certain elements consistent with primer residues.
“Q. Is that consistent with a person not having fired a recently fired weapon?
“A. Yes, sir.”

On cross-examination, Dr. McDuffie testified as follows:

“Q. Is this test infallible?
“A. No, sir.
“Q. Have you ever run such a test on Milo Sennett?
“A. I am not certain as to whether I have or not, sir.
“Q. You know who I’m talking about Mr. Milo Sennett?
“A. Yes, sir.
“Q. What is the accuracy percentage of this machine, of this test, in the last survey that you’ve made?
“A. I’m not certain, sir. On tests that I have run myself where I know a gun has been fired, is that what you’re asking. I would guess, sir, it’s in the neighborhood of 75 to 80 percent of the time.
“Q. That is all? Seventy-five to eighty percent of the time?
“A. Yes, sir.”

The appellant moved to exclude the testimony of Dr. McDuffie, and the trial court reserved its ruling. The appellant then recalled one of the State’s witnesses, a State Toxicologist, Milo Sennett. Mr. Sennett testified as follows:

“Q. . . . have you ever heard of the atomic absorption test for primer residue?
“A. Yes, I have.
“Q. Are you familiar with the test?
“A. I am. I know a little bit about it but I wouldn’t say that I know a lot about it.
“Q. In connection with your work have you ever undergone — in connection with your work in the Department of Toxicology have you ever undergone that test on yourself?
“A. Yes, I have.
“Q. And have you ever undergone that test with a 38 caliber pistol such as that?
“A. I have fired several 38 caliber pistols.
“Q. All right, and what — did you take a swab of some sort and .
“A. Some swabs were taken of my hands.
“Q. All right, and were those in turn examined under the atomic absorption primer residue test?
“A. They were.
“Q. Did it come back affirmative or negative?
“A. On one test that I know about the results came back there was not a significant level of residues on my hand.
“Q. In other words, it was negative?
“A. It was inconclusive.
“Q. Which means did not tell whether you fired a gun. or not?
“A. That’s correct.”

After Mr. Sennett’s testimony, the following occurred:

“THE COURT: The only thing that has not been ruled upon is the question of the admissibility of the test performed by Dr. McDuffie. If you have any cases' you want submit to me at this time you can go ahead.
* sfc sk * # !};
“MR. VALESKA: Your Honor, I can cite to this Court, 50 A.L.R.3d 117, the neutron activation test that was admitted and in that the Court of Appeals for the Second Circuit in New York held that, ‘The Court noted that a strong showing of unreliability must be made in the trial court,’ and we submit that has not been made. We cite — there are numerous cases in here, Judge. This is another new type test they use to find bombs in mail
“MR. ALONZO: Judge, this has nothing to do with putting something on a man’s hand. This neutron activation, I don’t know what that is.
“MR. VALESKA: Well, you didn’t know what the other one was either.
“MR. ALONZO: That’s right, and you haven’t told us .
“(Mr. Alonzo and Mr. Valeska speak at once.)
“MR. VALESKA: We submit it to the Court for the Court’s perusal if you wish. That’s our authority.
“(Cases submitted to the Court.)
“THE COURT: Motion is denied. Gentlemen, you have about 30 minutes.”

The State cites three cases which it contends are authority for the admissibility of the results of the atomic absorption test. United States v. Richardson, 6 Cir., 388 F.2d 842 (1968); United States v. Kenaan, 1 Cir., 496 F.2d 181 (1974); State v. Howell, Mo., 524 S.W.2d 11 (1975). The term “atomic absorption” is not mentioned in those cases. Richardson and Kenaan involved the dusting of certain objects with fluorescein powder which would show up under ultraviolet light on the hand of one who had handled the object. Howell, however, did involve a test used to determine gun residue. The issue in the above cases was not the accuracy of the test, but rather whether the test violated the defendants’ rights under the Fourth Amendment.

The only precedential value of the above cases to the case at hand is contained in Howell. In discussing the issue of exigent circumstances, the Missouri Court made the following statement:

“It is noted that in order for a gun residue test to produce any valid results— positive or negative — it probably must be done promptly as the residue on one’s hand will probably disappear in the normal course of living or by being rubbed off of the hand. We say ‘probably’ because this is a matter about which the court is not certain. . .

In the present case, there was no testimony concerning the exact time that the swabs were taken from Wilson’s body. In addition there was no testimony indicating the lapse of time between the shooting or the taking of the swabs, and the time when Dr. McDuffie tested the swabs for gun residue. Needless to say, we are totally without knowledge as to what effect a delay would have on the accuracy of the test. In addition there is no testimony that the 75% to 80% figure would apply to a shotgun as opposed to a pistol where the muzzle is in close proximity to the hand. Thus, the accuracy of the test was not sufficiently established by the State.

The State’s attorney cited 50 A.L. R.3d 117 to the trial judge as authority for admitting the results of the atomic absorption test. That A.L.R. annotation deals with the admissibility of the “neutron activation analysis” test. The only possible precedential value that such a citation has is to show that new scientific techniques, such as the neutron activation analysis test, are gaining acceptance in some jurisdictions in the United States. The atomic absorption test and the neutron activation analysis test are two completely different tests. The neutron activation analysis test requires much more sophisticated instruments, has a considerably higher sensitivity for most elements and is more precise. The gunshot residue test used in the present case is similar to that using neutron activation analyses, but it lacks the sensitivity of the neutron activation analysis approach. 22 Proof of Facts, Instrumental Analysis, 476; 15 Proof of Facts, Neutron Activation Analysis, 115, and pocket part thereto.

Alabama has in the past been quite strict regarding the admissibility of scientific experiments. Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247, cert. denied 293 Ala. 768, 304 So.2d 248 (1974). Myrick dealt with the admissibility of the results of a chemical breath analysis test. Traditionally such a test had been held inadmissible in Alabama. The “Alabama Chemical Test for Intoxication Act”, No. 699, September 11,1969, § 2, made certain chemical analysis admissible into evidence. Myrick held the validity of such analyses was conditioned on the performance of the test according to certain prescribed methods by a person with a valid permit to perform such a test.

We have not been cited a case where the results of an atomic absorption test have been admitted to prove that a person did not fire a gun. We would, however, most likely admit the results of such a test if the proper predicate was laid and if it was relevant. We will certainly require more information than that contained in Dr. McDuffie’s testimony. The accuracy of the test must be established. All of the variables that effect the accuracy of the test must be accounted for and explained. The competency of the person, who gives the test, to explain the results must be established by more than a mere assertion that he has had an opportunity to operate such a machine.

The qualifying question to Dr. McDuffie was:

“Over the past three years have you had an opportunity to work a machine or an examination called atomic absorption?”

That question and his affirmative answer tell us nothing. During the past three years, how many times did he perform the test or operate the machine? Does he operate the machine correctly? What are the standards for operation of the machine or test? These are questions which the record fails to answer. Likewise, when arid under what conditions were the swabs taken of the deceased’s hand? Had the hands been preserved from the time the deceased died until the swabs were taken?

James L. Small, a State Toxicologist, testified that he took the swabs of the deceased’s hands at the time of the autopsy and also a swab was taken from the shotgun shell and a .38 caliber spent cartridge found at the scene of the shooting. He stated that he placed the swabs in a sealed envelope and mailed it to Dr. John McDuf-fie by certified mail. Dr. McDuffie testified that he received the swabs in a sealed envelope from the mail and ran the atomic absorption test on them. He never distinguished between the swabs taken from the hands of the deceased and swabs taken of the shotgun shell and spent cartridge.

The trial court had before it no criteria for administration of the test, “and consequently was unable to ascertain standards against which the evidence could be measured.” Ex parte Patton v. City of Decatur, Ala., 337 So.2d 321 (1976).

In commenting on another scientific test, the “Breath Alcohol Tests,” the New Jersey Superior Court stated what we think is a correct principle:

“ . . . As a minimum, however, the State should prove (unless such proof is waived) that the operator was qualified, that the machine and its components were in proper condition, and that the test was properly administered. . .” State v. Miller, 64 N.J.Super. 262, 165 A.2d 829 (1960).

Likewise see: People v. Morse, 325 Mich. 270, 38 N.W.2d 322 (1949) and cases cited therein.

Scientific experiments are helpful and often crucial in the investigation of crime. However, the potential for confusion and prejudice in the minds of the jurors in great. This is especially true when the relevance of the experiment to the issues is not clear. The State did not lay the proper predicate for the admission of the atomic absorption test in the present case, and the appellant’s motion to exclude should not have been denied.

II

We are not certain we have listed all of the permissible inferences that the State sought to draw from the evidence. If the appellant is again tried for the murders of Officers Beck and Stoltz, there must be sufficient evidence presented to establish beyond a reasonable doubt that he shot Beck and Stoltz or that he aided or abetted Wilson in shooting them per Title 14, § 14, Code of Alabama 1940.

The leading case in this area is Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950). The broad general statements made in Stokley should be read in the context of the facts present in Stokley. The evidence in Stokley is infinitely stronger than the evidence which we perceive has been presented in the present case. Circumstantial evidence is certainly as good as direct evidence, but the mere presence of a suspect at the scene of a crime without proof that he either participated or encouraged the principal is not sufficient to establish his guilt.

A somewhat analogous situation arises in the case of Sweat v. State, 57 Ala.App. 143, 326 So.2d 671, cert. denied (for failure to comply with Supreme Court rules) 295 Ala. 424, 326 So.2d 674 (1975). There a defendant was seen in a building with a pistol in hand, in the presence of two other burglars. The evidence was held to be insufficient to sustain a guilty verdict of assaulting a police officer with a deadly weapon, where no one witnessed the shooting. There the three burglars were attempting to flee in separate directions when someone fired, but there was no evidence presented as to which one fired the shot.

In the instant case, viewing the evidence most favorably for the State, we find:

(1) Appellant was not seen at the scene of the crime at the time of the shooting. One hour and twenty minutes had elapsed between the flight of the fugitives into the swamp and the actual shooting.

(2) No witness saw the shooting, and consequently, no one saw the appellant fire the fatal shot.

(3) Appellant testified that he was three-quarters of a mile away when he heard the shots.

(4) Appellant was arrested some one and one-half to two miles away, across the swamp in Mississippi.

(5) The murder weapon was testified to be a .20 gauge shotgun.

(6) A .20 gauge shotgun was found by the body of Wilson.

(7) Appellant was armed with a .12 gauge shotgun which he abandoned in the swamp, and which officers found where he told them it was located. It was found at a point between the entrance to the swamp and the location of the officers’ bodies, giving rise to the compelling inference that he had abandoned the shotgun before the shootout occurred.

(8)The fatal shots all came from the direction and vicinity of Wilson’s body.

Thus, viewing the evidence in its most favorable light for the State, the circumstantial evidence here does not point toward the appellant as the person who fired the fatal shots. Instead, it strongly points toward Wilson. Unless circumstantial evidence is sufficiently strong to point toward the appellant as the guilty party, it is insufficient, standing alone, to support a conviction.

The record as we perceive it, minus the results of the atomic absorption test, would not support a conviction for murder. Even if the results of the test were properly presented and admissible, there would be an extremely close question as to whether a prima facie case had been established.

We pretermit other issues raised in light of the result we reach. Hopefully on a new trial, the same questions will not arise.

REVERSED AND REMANDED.

All the Judges concur except DeCARLO, J., dissents.

DeCARLO, Judge

(dissenting):

It has been held in this State that a conspiracy can be formed on the spur of the moment. Further, when a conspiracy is entered to commit an unlawful act, the conspirators are responsible for all that is said and done by the co-conspirators, pursuant to the conspiracy. Martin v. State, 89 Ala. 115, 8 So. 23; Stokley, supra; see also cases cited in Annot. 15 A.L.R. 456 (1921).

The record here indicates that the accused and his companion, Wilson, were driving at a high rate of speed when Officer Kelso started following them. As Kelso attempted to catch up with their speeding vehicle, they increased the car’s speed and moved further away from the police car. At that point, Kelso turned on his blue lights and siren and notified the sheriff’s department that he was chasing the vehicle.

According to Kelso, at times the speeding vehicle approached the speed of one hundred miles per hour. He said that during the chase the appellant, who was the passenger in that car, turned and began firing a shotgun at the police car. The first blast blew out “the rear windshield” of the “Chevrolet Blazer,” the appellant was in, and destroyed half of the windshield of the police car. The officer said a total of three shotgun blasts were fired by the appellant.

Officer Kelso stated that: “ . . . approximately 80 something shots hit the car, and out of that bunch from my bumper straight up my side to my blue lights there was only four or five shots hit the passenger’s side of the car. . . . Everything was to the driver’s side from my bumper up to the blue light, starting from the left front tire.” Further he said that both front head lights were blown out and the shield on the left side of the blue light was “shot through.” According to Kelso, the chrome ring that held the blue shield was “shot up also,” and the hole in the shield appeared to be the size of a “buckshot.”

The car was subsequently abandoned near a swamp and after additional police arrived, the chase was resumed.

Officer Kelso testified that after the volley of shots were fired which killed the two officers, he heard someone running away from the spot where the shooting occurred. Although it was not specifically shown that the appellant or his companion fired the fatal shots, the fact remains they were both attempting to escape apprehension after firing on the police car. When the appellant and his companion stopped their car during the chase, they both left the car and entered the nearby swamp. It was approximately thirty minutes afterwards that the firing began and shortly thereafter the dead officers were found.

It appears from the majority opinion that the appellant and Wilson were in the swamp at the time the officers were shot. Even though the appellant said he had separated from Wilson before the shooting, nevertheless, he was a party to the conspiracy and under the circumstance he was responsible for the acts committed by his co-conspirator in their attempt to escape. Stokley, supra. See: Tolbert v. State, 71 Miss. 179, 14 So. 462, 42 Am.St.Rep. 454.

No one else was seen entering the swamp or near the location where the firing was heard and the appellant was the only one arrested in the vicinity of the swamp. Further, the wounds found on the bodies of the dead deputies were caused by the weapon found near Wilson’s body.

Though it may be true that the appellant left Wilson and did not actively participate in the shooting, this would not be a defense. He was armed and prepared to shoot. In any event, he was a party to the conspiracy from its inception and for ought that appears he was a party at the time of his apprehension.

In my judgment it will be difficult to find a stronger case of circumstantial evidence and one so conclusively showing the appellant or his companion did the shooting. Compare: Harnage v. State, 49 Ala.App. 563, 274 So.2d 333; 290 Ala. 142, 274 So.2d 352; Cronnon v. State, 56 Ala.App. 192, 320 So.2d 697; Hoback v. State, Ala.Cr.App., 338 So.2d 439, 1976; Pendleton v. State, 58 Ala.App. 454, 329 So.2d 145; Stinson v. State, 55 Ala.App. 629, 318 So.2d 325. In the case at bar, there is no fact or circumstance in the evidence tending to cast suspicion upon anyone else as the murderers. On the contrary, all the facts proved are incompatible with the innocence of the appellant, and incapable of explanation upon any hypothesis other than the guilt of him and his companion.

Irrespective of whether the appellant or Wilson actually fired the shots which killed the two officers, and wounded another, there were equally guilty of murder, the reason being that they were jointly engaged in a conspiracy to escape after assaulting a police officer with a deadly weapon during the initial pursuit.

The killing was the foreseeable result of this illegal purpose. Thus, all of the joint participants were equally guilty of murder under the law.

Under the circumstances, Chatom would be equally guilty with Wilson of the murder of the deputies even if he did not personally inflict the fatal wounds. Our law says the acts of Wilson in the matter were the acts of the appellant also.

In view of these circumstances, the introduction of the “atomic absorption test” results, though apparently improperly predicated, would not have been prejudicial to this appellant.

The conspiracy evidence apart from the test results were sufficient to sustain the jury’s verdict.

For these reasons, I respectfully dissent.

ON REHEARING

PER CURIAM.

To clarify this opinion and make the holding of this Court explicit, we make two points:

First, the conviction of appellant was not reversed due to insufficiency of the evidence.

Secondly, reversal was due to the introduction into evidence of the atomic absorption test without a proper predicate.

We can perceive under no stretch of the imagination how admission of the unpredi-cated test could be proper. Our opinion on that point is clear and unequivocal. However, the dissent and the State’s brief on rehearing suggest that the circumstantial evidence was sufficient to go to the jury under the conspiracy theory and thus admission of the test resulted in harmless error (Rule 45, A.R.A.P.) We disagree.

In deciding whether error is prejudicial, we may not merely determine that other evidence presented is sufficient for conviction and then disregard the illegal evidence. If this was the case, prosecutors could fill the record with all types of prejudicial hearsay, irrelevant and unpredicated material, and never suffer a reversal if in addition thereto they made out a prima facie case.

Juries in criminal cases do not function under the “equity rule” where it is assumed that they disregard illegal evidence and base their verdict solely on the legal evidence, as a judge sitting in equity does.

Here, the jury may have been unimpressed with the circumstantial evidence as to the conspiracy theory, but may have seized upon the scientific test results. They may have very well concluded from the test that Wilson did not fire a weapon and that appellant therefore personally murdered the deputies and Wilson. That they may have based their verdict on the test, or given it great weight in arriving at their verdict, cannot be said to be nonprejudicial or immaterial.

Appellate courts must reverse convictions where, over proper objection, evidence of a material and prejudicial nature to an accused is wrongfully admitted.

Section II of the opinion was intended as a helpful comment, directed to the District Attorney, pointing out obvious weaknesses in the remaining circumstantial evidence at the first trial. By those comments, we have not given an advisory opinion as to our holding on a subsequent appeal if a retrial results in conviction. It is entirely possible that, upon a proper presentation of the evidence in a new trial, the prosecution may meet its burden of proof.

We emphasize that reversal results solely from admission of the improperly predicated test. On retrial, the prosecution should pay more careful attention to the established rules of evidence.

OPINION EXTENDED; APPLICATION OVERRULED.

CATES, P. J., and TYSON and BOOK-OUT, JJ., concur.

HARRIS and DeCARLO, JJ., dissent.

HARRIS, J., files dissenting opinion.

HARRIS, Judge

(dissenting):

Upon further consideration of the entire four-volume record in this case I would grant the application for rehearing and affirm the conviction.

In the majority opinion it is stated: “The record as we perceive it, minus the results of the atomic absorption test, would not support a conviction for murder. Even if the results of the test were properly presented and admissible, there would be an extremely close question as to whether a prima facie case had been established.”

The above broad statement, in my judgment, does not find support in the record. I believe that Judge DeCarlo, in his dissenting opinion, succinctly stated the law applicable to this case.

I,therefore, respectfully dissent.


source: Caselaw Access Project

author: PER CURIAM. BEATTY, Justice ALMON, Justice

license: Public Domain

text:
    In re Jerre CHATOM v. STATE of Alabama. Ex Parte State of Alabama ex rel. Attorney General.
    SC 2168.
    Supreme Court of Alabama.
    June 17, 1977.

      William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for petitioner the State.
   PER CURIAM.

We granted certiorari to review the per curiam decision of the Court of Criminal Appeals in 1 Div. 688, Chatom v. State, (1976), 348 So.2d 828.

The issue presented is whether the results of an “atomic absorption test” were properly admitted into evidence.

Chatom was tried and convicted for the first degree murders of deputies David Beck and Robert Stolz. He was sentenced to life imprisonment in the penitentiary. The Court of Criminal Appeals reversed and remanded. The facts of the case are well stated in the opinion of that court and need not be repeated here.

In reversing the trial court, a majority of the Court of Criminal Appeals held:

“The State did not lay the proper predicate for the admission of the atomic absorption test in the present case, and the appellant’s motion to exclude should not have been denied.”

And in its opinion, on rehearing, the majority of that court held:

“ * * * [Rjeversal was due to the introduction into evidence of the atomic absorption test without a proper predicate.”
# * * * * *
“We emphasize that reversal results solely from the admission of the improperly predicated test.”

For a better understanding, we have referred to the record.

Since there is no dispute concerning what occurred when the results of the atomic absorption test were admitted, we examined the original record for a more complete understanding of the opinion of the Court of Criminal Appeals. Cf. Wilbanks v. State, 289 Ala. 171, 266 So.2d 632 (1972). For convenience, we set out the entire predicate offered by the state, and the opinion elicited, without there having been any objection raised by the defendant:

“MR. GRADDICK:
“Q All right, Doctor state your full name to the jury, please, sir.
“A John Rufus McDuffie.
“Q Doctor, who do you work for?
“A The Alabama Department of Toxicology in Criminal Investigation.
“Q Where are you located, Doctor.
“A At Auburn, Alabama.
“Q How long have you been with the department?
“A Approximately three years.
“Q What kind of degrees do you have, please, sir?
“A I have a B.S. in chemistry from Emory University. I have a Ph.D. from Auburn University.
“Q Over the past three years have you had an opportunity to work a machine or an examination called atomic absorption?
“A Yes, I have.
“Q Explain to the jury what that is, please, sir.
“A This is a machine that analyzes for certain elements by atomizing the elements due to heat. In other words, what it does is simply vaporize the elements into a light path. Once the elements are in the light path they are picked up by a light path and the machine can analyze as to the amount present or the particular element present based on the particular light beam that you put through it.
“Q Does this particular test also or will it, along with a number of other things, determine primer residues?
“A Yes, sir.
“Q Did you have sent to you from Jim Small, the toxicologist here, a certified package containing several swabs?
“A Yes, sir, I did.
“Q Was it sealed and . . .?
“A Yes, sir.
“Q . . . unopened when you received it?
“A Yes, sir.
“Q Did you receive it personally?
“A Yes, sir.
“Q Did you obtain the swabs?
“A Yes, sir.
“Q Did you run any swabs on this atomic absorption test?
“A Yes, sir, I did.
“Q Do you have an opinion as to whether or not there was any primer residues on these swabs?
“A Yes, sir.
“Q What is that opinion?
“A My tests failed to reveal the presence of certain elements consistent with primer residues.
“Q Is that consistent with a person not having fired a recently fired weapon?
“A Yes, sir.
MR. GRADDICK: Your witness.”
Defendant’s objection came in the form of a motion to exclude, as follows:
“CROSS-EXAMINATION
“BY MR. ALONZO:
“Q Is this test infallible?
“A No, sir.
“Q Have you ever run such a test on Milo Sennett:
“A I am not certain as to whether I have or not, sir.
“Q You know who I’m talking about Mr. Milo Sennett?
“A Yes, sir.
“Q What is the accuracy percentage of this machine, of this test, in the last survey that you’ve made?
“A I’m not certain sir. On tests that I have run myself where I know a gun has been fired, is that what you’re asking? I would guess, sir, it’s in the neighborhood of 75 to 80 percent of the time.
“Q That is all? Seventy-five to eighty percent of the time?
“A Yes, sir.
“Q The lie detector test is better than that.
“MR. GRADDICK: At this point I am going to ask the Court to excuse the jury, Judge.
“THE COURT: Very shortly, gentlemen.
“(Whereupon, the jury retired from the courtroom, and the following occurred outside the presence of the jury:)
“THE COURT: All right, I know what you’re talking about and the only reason I excused the jury, Mr. Alonzo’s remarks about lie detector tests I am sure is the reason for the jury being dismissed. We will not talk about the lie detector test. I have previously ruled it inadmissible, as has the Supreme Court of the United States. That’s that and I don’t want to hear anymore about it. Bring the jury in.
“(Whereupon, the jury returned to the jury box and the following proceedings were had and done in the presence of the jury:)
“THE COURT: Any other questions?
“MR. ALONZO: No, sir, but we would move to exclude this gentleman’s testimony because a probability of 70 to 75 percent accuracy is certainly mightly low, Judge, and I believe, following the logic of the law that we’ve already submitted to Your Hon- or, that with this low probability this type of testimony has no presence in this trial whatsoever.
“THE COURT: I’ll reserve a ruling on that. Anything further?
“MR. ALONZO: Not from this gentleman, no sir.
“THE COURT: Mr. Graddick?
“MR. GRADDICK: No, sir.
“MR. KULAKOWSKI: Judge, we would like to have a ruling at this time on that.
‡ jf: tk s{c s{c
“(Whereupon, the jury retired from the courtroom and the following occurred outside the presence of the jury:)
“THE COURT: The only thing that has not been ruled upon is the question of the admissibility of the test performed by Dr. McDuffie. If you have any cases you want to submit to me at this time you can go ahead.
“MR. KULAKOWSKI: May it please the Court, from the great State of Colorado comes a case in regards to the admissibility of the paraffin test, which is all but identical, and the Court ruled that it had not gained that standing and scientific recognition or demonstrated that degree of reliability to justify courts in approving its use. The case is Brooke v. People, 139 Colo. 388, 339 P.2d 993. It’s a 1959 case. We would submit, may it please the Court, that based on (inaudible) that unless the probabilities beyond a reasonable doubt and to a moral certainty lead to an inference, that scientific tests in Alabama are not admissible unless that degree of certainty has been displayed to the Court. There is a legal question before the Court concerning the admissibility and we submit that the probabilities of 70 percent are not sufficient to be admissible before the Court and we ask the Court to exclude that evidence and instruct the jury to that effect.
Sfc * * * * *
“THE COURT: Motion is denied.”

It is apparent from the record that Cha-tom’s attorneys objected only to the accuracy of the atomic absorption test, and its admissibility vel non., Chatom’s attorneys made no objection whatsoever to Dr. McDuffie’s qualifications, which they clearly had a right to do. See Tit. 7, § 443, Code. In addition, they could have presented their own expert witness to impeach the state’s toxicologist. The defendant, in fact, presented some evidence relative to the fall-ability of the atomic absorption test. Finally, defense counsel could have requested the trial court to instruct the jury as to the weight, if any, which may be given to the opinion testimony of expert witnesses especially as to the testimony of expert witnesses in regard to the results of scientific tests.

As we understand the argument of Cha-tom’s attorneys, it is based on the fact that the atomic absorption test has not gained sufficient standing in the scientific community to be accepted as reliable in a court of law. In other words, the atomic absorption test, like the lie detector test, is inadmissible, as a matter of law. We refuse to hold that.

The increasing use of technology in criminal investigations, when consistent with the rights of the accused, should not be inhibited. The results of examinations and test, blood-grouping tests, fingerprint comparisons, and ballistics tests, are admissible, provided a proper foundation is laid. Here, the foundation was very limited and had there been a request, the trial court would have been required to allow the defendant to thoroughly question the expert concerning his training and experience, to present other testimony that the test was not scientifically acceptable. In any event, we are unwilling to follow a 1959 Colorado decision which holds that the test is inadmissible, as a matter of law. By holding that the test is admissible we do not mean to be understood as opining that every atomic absorption test is admissible. The question of the competency of the operator and the methods used are questions which address themselves to the discretion of the trial judge, whose decision will not be disturbed. On appeal except for palpable abuse, Tit. 7, § 437, Code. See Maslankowski v. Beam, 288 Ala. 254, 259 So.2d 804 (1972); McCormick, Handbook of the Law of Evidence, § 13 (2d Ed. 1972); Dec. Dig., Evidence, <®=>546.

In Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, 340, cert. denied 294 Ala. 764, 318 So.2d 341 (1975), the Court of Criminal Appeals stated:

“The question of the qualifications of a person to testify as an expert rests largely in the discretion of the trial court and will not be disturbed by the appellate courts in the absence of abuse.”

See Ala.Digest, Criminal Law, Vol. 6, <®=»481.

The record reflects that Dr. McDuf-fie testified to his educational background, his training with the Alabama Department of Toxicology, his experience in performing the atomic absorption test, the purpose of the test, the manner in which he conducted the test oh Wilson, and the results of the test in question, all without objection. Accordingly, we find that the trial court did not abuse its discretion by allowing Dr. McDuffie to testify as an expert in connection with the scientific test results.

The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded.

REVERSED AND REMANDED.

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

BEATTY, J., concurs specially.

ALMON, J., dissents, with whom JONES, SHORES and EMBRY, JJ., concur.

BEATTY, Justice

(concurring specially).

Apparently, the only reason the State called Dr. McDuffie as a witness was to get into evidence the results of the test he conducted. The predicate for admitting that test may have been deficient because there was no showing of scientific reliability, cf. State v. Miller, 64 N.J.Super. 262, 165 A.2d 829 (1960) (foundation for drunkometer reading); People v. Williams, 6 N.Y.2d 18, 187 N.Y.S.2d 750, 159 N.E.2d 549 (1959) (effect of narcotic addiction upon veracity character); Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965); and if counsel had made a timely objection, even a general objection, perhaps we would have a different case before us. Here, however, counsel made no objection of any kind to the introduction of the test results, and thus he waived any objection to its admissibility. A defendant cannot speculate on what a witness will say, and when the answer is responsive but unfavorable move to have that answer excluded. Tanner v. State, 37 Ala. App. 256, 66 So.2d 827; cert. granted, 259 Ala. 306, 66 So.2d 836 (1953); Matson v. State, 27 Ala.App. 396, 173 So. 612; cert. den., 234 Ala. 74, 173 So. 617 (1937); Ala. Dig., Crim. Law, &wkey;696(5). I believe that by his failure to raise the issue of the test’s reliability until after the results were already in evidence without objection, defendant made his own rule of evidence.

ALMON, Justice

(dissenting):

I would quash the writ as improvidently granted. The Court of Criminal Appeals has reached the correct result.

A proper-predicate was not laid for the admission into evidence of the results of the atomic absorption test. Moreover, scientific tests which are only 75% to 80% accurate are so unreliable as to raise serious due process questions.

JONES, SHORES and EMBRY, JJ., concur.

      . The atomic absorption test, commonly referred to as the gunshot residue test, is used by a forensic laboratory to trace analyses of metals, particularly iron and lead in biological specimens. 22 Proof of Facts, Instrumental Analysis (Atomic Absorption), §§ 62-70. One use of atomic absorption in forensic analysis is to determine antimony and barium from paraffin casts from the hands of persons suspected of having recently fired a gun. 22 Proof of Facts, Instrumental Analysis, § 5.5 (Supp.); 15 Proof of Facts, Neutron Activation Analysis, §§ 1-9.


author: PER CURIAM.

text:
    Jerre CHATOM v. STATE.
    1 Div. 688.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
   PER CURIAM.

The Supreme Court reversed our decision on the original appeal wherein we reversed the trial court for failure to exclude the results of an atomic absorption test for lack of a proper predicate. The Supreme Court, in a plurality opinion (with four justices dissenting) held that the trial court did not err in refusing to exclude the test results. Four justices based their opinion on the fact that Chatom’s attorney only objected to the accuracy of the test and not to the operator’s qualifications. Justice Beatty joined in the result with a special concurrence on the ground that the appellant’s motion to exclude was made after the witness had testified to the test results, and that an objection should have been made earlier. The Supreme Court did not pass upon the sufficiency of the evidence because this Court did not pass on that issue in our earlier opinion. On remandment it is necessary that we address ourselves to that question in light of the admissibility of the atomic absorption test results.

In our initial opinion, we pointed out several obvious weaknesses in the State’s evidence, for consideration of the prosecution and trial court in the event of a new trial. Without going again into detail, we simply call attention to our original opinion as to those points.

The State’s brief was based primarily on the theory that, “Appellant acted as co-conspirator during the commission of criminal acts and thus that the two parties would be equally guilty and responsible for the acts of the other.” The conspiracy, according to the State’s brief, was the firing upon the police car at the beginning of the episode, “during an attempt to escape from police authorities.” We take the word “escape” to mean “elude” since neither of the fleeing parties had been in legal custody prior to the chase.

The State’s theory on appeal was grounded upon Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950). Stokley is the landmark ease, cited in most conspiracy cases reaching this Court, although it is more often cited for its dictum than for its application to the peculiar facts of that case. See: Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976). We cannot indulge in the convenience of citing “boiler plate” propositions of law without reviewing fact situations from which the proposition originally arose. By simply citing Stokley the State ignored the question of whether the earlier “conspiracy” had been abandoned when the fleeing companions parted company in the swamp. The appellant’s testimony, that he was alone and fleeing through the swamp when he heard the fatal gunfire in the distance, could not be ignored. Hunter v. State, 295 Ala. 180, at 184, 325 So.2d 921 (1975).

Earlier, we had expressed doubt as to the sufficiency of the evidence without the results of the atomic absorption test. Since that test is admissible by default, a jury question is presented. If the State’s negative proof may be considered, the jury could have determined that since there was no evidence that Wilson fired the murder weapon, then it must have been appellant who fired the fatal shots. Such evidence goes, not toward proof of conspiracy, but toward proof that appellant himself was the trigger man.

We have held on numerous occasions that where there is legal evidence from which the jury can by fair inference find the accused guilty, this Court has no right to disturb the verdict. Bridges v. State, Ala.Cr.App., 340 So.2d 1137 (1976); 7 Alabama Digest, Criminal Law, 1159.2(8).

“It is not our function to satisfy ourselves that the appellant is guilty beyond a reasonable doubt. Our function, where sufficiency of the evidence is properly before us, is to examine the record and determine if the State presented sufficient evidence from which the jury might have found the appellant guilty beyond a reasonable doubt.” Howell, supra; Morton v. State, Ala.Cr.App., 338 So.2d 423, cert. denied, Ala., 338 So.2d 428 (1976).

The jury could properly find the appellant guilty based upon the evidence presented and reasonable inferences drawn therefrom.

AFFIRMED.

All the Judges concur except BOWEN, J., concurs in the result only.


author: BOWEN, Judge.

text:
    Herman DAVIS v. STATE.
    3 Div. 752.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.

      Rick A. Williams, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

In November of 1976, the Grand Jury of Montgomery County returned two indictments against Herman Davis, the appellant. The first indictment charged Davis with the robbery of Santiago Saez and involved $59.00. This charge involved the robbery a “7-11 Store”. A second indictment charged Davis with robbing Melvin Waldrop and involved a sum of $5.00.

Davis was denied treatment under the Youthful Offender Act on both charges, and he pled not guilty and not guilty by reason of insanity to each. Each case was set for trial on a different date.

On January 10, 1976, the date the first indictment was set for trial, Davis withdrew his pleas of not guilty and entered a plea of guilty to the Saez indictment. An “Ireland form” (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602) was executed this same date detailing all the rights enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial court made a factual inquiry to determine if the plea was voluntarily made with an understanding of the nature of the charge and the consequences of the plea. The colloquy between the trial judge and Davis, which appears in this record, adduced a few facts concerning the robbery of a “7-11 Store”. This is the robbery involved in the Saez indictment. The court continued this case until January 31, 1976 for “sentencing and probation determination”.

At arraignment, the second (Waldrop) indictment was set for January 24,1977. Davis executed an “Ireland” form on this date. However, there is no colloquy reported. The only evidence we have as to what transpired at the hearing held on January 24, 1976, is contained in the “minute entry” which recites that:

“. . . before accepting the defendant’s plea of guilt the Court proceeded to ascertain that the plea of guilty was intelligently and voluntarily made and also that the defendant understood (1) the privilege against self incrimination, (2) the right to a trial by jury, (3) the right to be confronted by his accusers, (4) that he fully understood what the plea connoted, including the nature of the charge and acts sufficient to constitute the offense, and (5) the consequences of the plea, including the range of the sentence, and being satisfied that the foregoing was fully and intelligently understood by the defendant and that his plea of guilty was freely and voluntarily made, the Court proceeded with the hearing.”

The trial court continued this case to January 31, 1977, “for sentencing and probation determination”. This is identical to the minute entry for the hearing held on January 10th involving the Saez indictment.

At the sentencing and probation hearing held on January 31,1977, the appellant was denied probation and was sentenced to ten years imprisonment in each case.

I

Initially the appellant contends that “the official record of his appeal fails to show conclusively that the appellant was arraigned”. However the “minute” or “judgment” entry affirmatively shows that the appellant was arraigned on December 3, 1976, on both indictments and entered pleas of not guilty and not guilty by reason of insanity to each.

While the appellant contends that the minute entry is hearsay and merely a clerical function, it is well settled that the recitals in the judgment import absolute verity, unless contradicted by other portions of the record. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974); Jones v. State, 57 Ala.App. 419, 329 So.2d 108 (1976); Keeton v. State, 280 Ala. 140, 190 So.2d 694, cert. denied, 388 U.S. 914, 87 S.Ct. 2123, 18 L.Ed.2d 1354 (1966). In the instant record there is nothing to contradict the judgment.

II

The appellant maintains that there is nothing in the record to indicate that he pled guilty to the Waldrop indictment and seeks a reversal for failure of the record to show a colloquy between the trial judge and the appellant.

The record contains the standard “Ireland” form, executed by the appellant, witnessed by his attorney, and signed by the trial judge and the circuit clerk. In addition there is the minute entry evidencing the appellant’s plea of guilty to the Wal-drop indictment. We have previously referred to and quoted the pertinent portion of this entry.

In a plea of guilty proceeding the judge should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge and the consequences of the plea, and the judge should be satisfied that there is a factual basis for the plea. Before Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974) it was required that the record-affirmatively show the colloquy between the court and the defendant wherein the defendant is shown to have a full understanding of what the plea of guilty connotes and its consequences. Walcott v. State, 288 Ala. 546, 263 So.2d 178 (1972); Cooper v. State, 53 Ala.App. 36, 297 So.2d 169 (1973); Allen v. State, 50 Ala.App. 310, 278 So.2d 758 (1973). However in Twyman, the Alabama Supreme Court held a guilty plea to be intelligently and voluntarily entered where the same type form as executed herein (the Ireland form) is executed and signed by a defendant and acknowledged by the signatures of the defense counsel and circuit judge, provided there is other evidence in the record supporting that fact. In Bland v. State, 56 Ala.App. 547, 323 So.2d 730 (1975) this court held that:

“That showing may be made by a recitation in the judgment entry and in such case, a verbatim colloquy recorded by a court reporter is not required.”

Under the authorities of Twyman and Bland, the appellant is not entitled to a reversal because of the failure of the record to show the colloquy between the trial judge and the defendant before the court reporter where there is other evidence in the record, as here, showing the plea was intelligently and voluntarily entered.

III

The appellant asserts, as his third argument for reversal, that the guilty plea to the Waldrop indictment is void because the trial judge did not determine a factual basis for the plea.

From the record we are apprised of none of the facts surrounding the robbery of Melvin Waldrop. However, the minute entry recites that before accepting the guilty plea the trial judge determined the defendant fully understood:

“What the plea connoted, including the nature of the charge and acts sufficient to constitute the offense, ... .”

Under the authorities previously recited this is sufficient to demonstrate that the trial judge properly determined the existence of a factual basis for the robbery before accepting the guilty plea of the appellant to the Waldrop indictment. Twyman, supra; Bland, supra.

IV

Finally the appellant contends that the guilty pleas to both indictments were not intelligently entered because there is nothing in the record to show that he realized the consequences of his plea.

Both judgment entries indicate that the appellant fully understood the consequences of the pleas, “including the range of sentence”. The Ireland forms informed the appellant of the range of punishment in each case of robbery. The appellant maintains that he did not waive his constitutional rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) because nothing was said about the sentences running concurrently or consecutively-

This issue has been previously considered by this court in Bradley v. State, 53 Ala.App. 483, 301 So.2d 247 (1974). See also White v. State, 54 Ala.App. 27, 304 So.2d 268 (1974). The appellant was adequately apprised of what the minimum and maximum punishments were inasmuch as the Ireland form stated the range of punishment.

Title 45, Section 32, Code of Alabama 1940, provides that when a convict is sentenced to the penitentiary on two or more convictions, such sentences shall be served consecutively unless it is specifically ordered in the judgment entry that such sentences be served concurrently.

Under the authority of Bradley, supra, it is the opinion of this court that the argument of the appellant is without merit in this case.

We have examined the entire record as required and under the authorities cited above that record adequately sustains the guilty pleas as having been intelligently and voluntarily entered by the appellant.

AFFIRMED.

All Judges concur.


author: JONES, Justice.

text:
    Ex parte Herman DAVIS.
    SC 2694.
    Supreme Court of Alabama.
    Aug. 19, 1977.
   JONES, Justice.

WRIT DENIED.

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


author: CLARK, Supernumerary Circuit Judge.

text:
    Jessie HILL v. STATE.
    4 Div. 521.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.
    Larry W. Roney, Phenix City, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

The indictment under which defendant-appellant was tried and convicted charged, inter alia, that he did “unlawfully sell marijuana, a controlled substance, in violation Of Act Number 1407 of the 1971 Regular Session of the Alabama Legislature, otherwise known as the Alabama Uniform Controlled Substances Act.” Code of Ala., 1973 Cum. Supp., Tit. 22, § 258(25) et seq. The court sentenced him to imprisonment in the penitentiary for fifteen years.

There were only two witnesses for the State, one testifying as to the conduct of defendant upon which the State based its case, the other testifying in effect that the “controlled substance” involved was marijuana.

At the conclusion of the State’s case, defendant moved to exclude the evidence. The motion was denied. Thereupon, defendant testified, disclaiming entirely his identity as the person identified by the witness for the State as Jessie Hill, the defendant.

The testimony of the State was brief and is stated concisely in appellant’s Statement of Facts, which appellee in its brief “adopts and incorporates by reference.”

According to the Statement of Facts and the testimony of State Trooper James Edward Jackson, Trooper Jackson went to Phenix City, Alabama, during the month of June 1976 and worked as an undercover agent to detect drug sellers or users in the Phenix City area. On or about June 12, 1976, Mr. Jackson, and a paid informant, Leonard Martin, approached a group of blacks on Tenth Avenue in front of a church. Martin had a conversation with an unidentified black who later called Jessie Hill; then Jessie Hill and Leonard Martin had a conversation. Then, Martin got into the back seat of an automobile which was operated by Mr. Jackson, and Jessie Hill “seated himself in the front seat on the passenger’s side.” Mr. Jackson told Hill that he wanted to buy some “grass.” “Jessie Hill asked Jackson what was in it for him?” At that time, Jessie Hill directed Jackson to drive to Edmonds’ Estates.

When they arrived at Edmonds’ Estates, Jessie Hill got out and went to apartment A-8, knocked on the apartment door and talked with a person identified as Daniel Lee. Hill motioned for Jackson and Martin to join them in the apartment. Jackson and Martin introduced themselves to Daniel Lee and asked if he had any “grass.” They then told him that they wanted to buy a “dime bag.” Daniel Lee went back into another room and got marijuana and Jackson gave him $10.00 for it. In the meantime, Jackson gave Jessie Hill $5.00 for Jessie Hill to purchase a “nickel bag.” Jessie Hill gave the $5.00 to Daniel Lee and Daniel Lee went back into the other room and brought Jessie Hill a “nickel bag” of marijuana. At that point, according to Jackson, Jessie Hill said, “To prove how good the stuff is we’ll smoke one.” Hill went into the kitchen and came back with a rolled “reefer,” which was lit and the “reefer” was passed among Martin, Jackson and Hill who sampled the marijuana.

Daniel Lee lived in apartment A-8, Ed-monds’’ Estates. As defendant, Jackson and Martin were leaving the apartment, Lee said to them, “that if it wasn’t good stuff, that we could bring it back.”

In determining whether there was sufficient evidence to present an issue of fact whether defendant sold marijuana as charged in the indictment, we must resolve the question whether his actions were such as to bring him within the language of Code of Alabama, Recomp. 1958, Tit. 14, § 14, as follows:

“. . . and all 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, as in the case of misdemeanors.”

Pertinent parts of the statute under which defendant was indicted and tried provide:

“Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains, or attempts to obtain by fraud . . . controlled substances enumerated in schedules I, II, III, IV [and] V is guilty of a felony and upon conviction for first offense may be imprisoned not less than 2 nor more than 15 years and, in addition, may be fined not more than $25,000: except any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and upon conviction for the offense shall be imprisoned in the county jail for not more than one (1) year, and in addition, shall be fined not more than $1,000.00; but the penalties for the subsequent offenses relating to possession of marihuana shall be the same as specified in the first sentence of this section 258(47)(a).” Code of Alabama, 1971 Cum.Supp., Tit. 22, § 258(47)(a).

There is no doubt, of course, that a jury issue was presented whether the facts as testified by the State’s witness are true or whether, on the other hand, the testimony of defendant, who denied being with State Trooper Jackson, and Leonard Martin on the occasion narrated by Trooper Jackson, should have been accepted as true. The question now is whether the undisputed testimony of Officer Jackson presents an issue of fact for the jury to determine whether defendant aided or abetted Lee in making the sale. We must accept Officer Jackson’s testimony as true, which the jury in its rightful province did, and as to such action we have no qualm.

Until recent years, legal texts and digests treated most of the problems we have today relative to drugs under the caption of “Poisons.” Most comprehensive texts and digests now consider them under the title of “Drugs and Narcotics.” Numerous authorities are to be found therein relative to the question whether one is guilty of illegally selling drugs or prohibited substances under circumstances where the sale is actually made by another. In 28 C.J.S. Supp., Drugs and Narcotics § 173, it is stated:

“§ 173. Distribution or Sale
“a. In general
“b. Aiders and abettors
“a. In General
“A person may be guilty of selling a controlled substance or drug where he is a go-between, agent for the seller, or agent for the buyer, but not where he is merely the buyer.
“According to some authorities, a person who participates in a forbidden drug transaction is guilty of selling the drug whether he is a go-between, or an agent for the seller, or an agent for the buyer, at least where he has knowledge of the illegality of the substance being transferred.
“Other authorities hold, however, that a person is not guilty of selling drugs where he acts solely as the buyer’s agent. Thus, a person is not guilty of selling drugs where he acted in the transaction only as the agent, servant, or employee of a law enforcement officer and received no benefit for himself, or where he facilitated the sale, but had no financial interest in it and was not employed by the seller. .
“Even where it is the rule that an agent of the buyer is not guilty of a sale, an intermediary who exacts a fee for his services will be guilty of making a sale; and an intermediary who possessed drugs for a short time, and then transferred them and took money is guilty of selling the drugs. Likewise, a person who makes a sale with the aid of an accomplice, or makes a sale jointly with an accomplice or knowing the intent of an accomplice encourages him to make a sale violates the statute which prohibits a sale. A person who acts as agent of the seller may be guilty of the offense of selling a narcotic or controlled substance even though he was acquainted with the buyer and did not share in the proceeds of the sale.
“b. Aiders and Abettors
“A person who actively assists the commission of the offense is guilty as an aider and abettor of possession or sale of a controlled substance or narcotic.
“Statutes which treat aiders and abettors as principals apply to offenders against laws which prohibit sale or distribution of controlled substances or narcotics, so that a person who aids and abets the commission of such an offense is guilty of the offense. So a person may be guilty as an aider and abettor of an unlawful sale where he received payment directly from the buyer, or where he was present encouraging the sale.
“Where, as discussed supra subdivision a of this section, a mere agent or employee of the purchaser is not liable for selling a narcotic, a person who aids only the purchaser is not liable as an aider and abettor of the seller; and a person who merely drove another person to the place where the latter discarded a package containing a drug and was waiting for his companion’s return when arrested was not thereby shown to be an aider and abetter of possession of the drug.”

It can readily be seen from the above quotations, and the many cases footnoted, that, facially at least, the authorities are not in such accord that we can chart our course by them without careful analysis of them. In proceeding to do so we find that we must differentiate as among them and other related cases.

We find that many of the cases in which the question of one’s guilt turns on whether he has aided or abetted another, or become the accomplice of another, in the commission of a crime, the inquiry centers on the nature of his conduct rather than on any relationship between him and the principal offender. For that reason, it seems that often overlooked is the principle that for one to be criminally liable for a crime actually committed by another, the two must to some extent be in league with each other. There must be some community of interest or unlawful intent, even though such community need not be for any great length of time beforehand but may be merely momentary. In Mikell, Clark’s Criminal Law, § 43, p. 108 (3d ed. 1915) it is stated:

“Wherever persons join for the purpose of executing a common criminal purpose, each one is the agent of the other as to all acts in furtherance thereof, and each is criminally liable for such acts of the other. . .

The common purpose need not be formed before convening at the place of the crime. Amos v. State, 83 Ala. 1, 3 So. 749.

Judge Learned Hand, in tracing the development of criminal responsibility of aiders and abettors and the like, even beyond the Statute of Westminster I, Chap. XIV (as commented upon in Coke, Inst. II, p. 182), to the Fourteenth Century, as discussed in Pollock and Maitland, Vol. II, p. 507, stated:

“It will be observed that all these definitions have nothing whatever to do with the probability that the forbidden result would follow upon the accessory’s conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used — even the most colorless, ‘abet’ — carry an implication of purposive attitude towards it.” United States v. Peoni,100 F.2d 401, 402 (2d Cir.1938)

Five years before Judge Learned Hand wrote the opinion in Peoni, Judge Samford had stated:

“. . . But, in order to authorize a conviction as an aider or abettor, there must be by prearrangement, or on the spur of the moment, a common enterprise or adventure and a criminal offense contemplated. In such a case each is a conspirator, and, if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. . ” West v. State, 25 Ala.App. 492, 149 So. 354 (1933).

In West, Judge Samford concluded that, although guilty participation need not be proved by positive testimony and that a jury should determine its existence from the facts in the case,

“. . .An accessory before the fact presupposes a prearrangement to do the act or a present aid or abetting.
“The evidence for the defendant in this case tends to prove that he was not an accessory before the fact, and that he did not aid or abet the crime. . .

In Morei v. United States, 127 F.2d 827 (6th Cir. 1942), the court relying upon both Peoni and West, in holding that a co-defendant, Dr. Platt, could not be legally found guilty of buying or selling narcotics under circumstances stated by the court, said at 831-832:

. . There was no evidence that Dr. Platt planned with the other defendants or conspired directly or indirectly with them, or had any understanding with Morei to buy or sell narcotics. There was no community of scheme between him and the other defendants. They shared in no common intent or plan, nor was there any prearrangement or concert of action. Dr. Platt was paid nothing and it is not claimed that he asked for any remuneration or expected to receive anything from the claimed transaction. Accepting the facts as contended for by the prosecution — which are squarely contradicted by the defendant— the only thing Dr. Platt did was to give Beach the name of Morei as a man from whom he might secure heroin to dose horses in order to stimulate them in racing. This is the purposive association with the venture that, under the evidence in this case, brings Dr. Platt within the compass of the crime of selling or purchasing narcotics, either as principal, aider and abettor, or accessory before the fact.”

Some of the cases upholding convictions for the sale of controlled substances, or the like, including some of the cases cited in the footnotes to 28 C.J.S. Supp., Drugs and Narcotics § 173, were based upon statutes that defined, “sale,” “sell,” and “selling” more comprehensively than those words ordinarily signify. Boone v. State, 291 So.2d 182 (Miss. 1974); Higby v. State, 485 P.2d 380, Wyo. 1971; People v. Shannon, 15 Ill.2d 494, 155 N.E.2d 578 (1959). By reason thereof, the court in Boone concluded:

“We are of the opinion that the definition of ‘sale’ in the statute where ‘delivery’ is made shows a legislative intent that the act of a person making such sale and delivery constitutes a sale even if such person is acting as an agent for either the purchaser or seller.”

In Oregon the particular problem became even more complicated, in that three different statutes were considered, one not defining the word “sale,” another defining it with a broader signification than usual as indicated above, and a third, in which the indictment charged that defendant “fur-, nished” someone else the marijuana, based upon a statute that defines the word “furnishes,” as follows:

“ ‘Furnishes,’ means to sell, barter, exchange, give or dispose to another, or to offer or agree to do the same, and includes each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.”

As to a sale undefined by statute, it was held that where defendant introduced a marihuana purchaser to a seller and gave the seller the “look” which assured the seller that the sale was “safe,” such evidence was insufficient and the judgment was reversed. State v. Buchanan, 8 Or.App. 150, 493 P.2d 184 (1972). As to the second situation, it was held in State v. Koppenhafer, 11 Or.App. 412, 502 P.2d 610 (1972), as to evidence to the effect that defendant took the purchase money from an undercover agent, went into a residence and returned with the drugs, which he then delivered to the undercover agent, that he was not entitled to an acquittal as a matter of law. In the third case, in which an undercover agent had dealings with the defendant as a purported intermediary for three or four days and the court held evidence was sufficient to show “a furnishing” within the meaning of the statute, the court said:

“The crux of the case is the application of the term ‘furnishes’ in ORS 167.202(3). That statute defines the term as follows:
“ ‘Furnishes’ means to sell, barter, exchange, give or dispose to another, or to offer or agree to do the same, and includes each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.’ ” State v. Templeton, 22 Or.App. 322, 538 P.2d 950 (1975)

In State v. Gladstone, 78 Wash.2d 306, 474 P.2d 274 (1970), an undercover agent attempted to buy marijuana from defendant, but defendant said he did not have enough to sell, but gave the agent a map and oral directions to an apartment of a person he thought might be able to supply him. The agent followed the map and purchased marijuana from the person to whom he had been directed. The court held:

“There being no evidence whatever that the defendant ever communicated to Kent the idea that he would in any way aid him in the sale of any marijuana, or said anything to Kent to encourage or induce him or direct him to do so, or counsel Kent in the sale of marijuana, or did anything more than describe Kent to another person as an individual who might sell some marijuana, or would derive any benefit, consideration or reward from such a sale, there was no proof of an aiding and abetting, and the conviction should, therefore, be reversed as a matter of law. . . . ” 78 Wash.2d at 314-315, 474 P.2d at 279.

In United States v. Moses, 220 F.2d 166 (3d Cir. 1955) appellant was convicted as a seller of narcotics under § 2 of Tit. 18, United States Code, which then provided that one who “aids, abets, counsels, commands, induces or procures” the commission of an offense is a principal. Two undercover agents came to defendant’s house and inquired of her, a drug addict, as to where they could purchase some narcotics. She told them the names of two people. One of them arrived at the house before the agents left. She introduced the agents to the prospective seller. He asked her if they were all right and she assured the prospective seller that the purchasers were all right, that she had seen them on other occasions. Thereafter, after they had all left defendant’s house, a sale was made by Cooper to the agents. The court held:

“The undisputed facts show the appellant acting solely at the behest of the prospective buyers and in their interest. At the buyers’ request she did two things to facilitate their purchase. She introduced them to the seller and she vouched for their bona fides, if purchasers of contraband drugs can be so characterized. That is all that was proved. There was nothing to show that she was associated in any way with the enterprise of the seller or that she had any personal or financial interest in bringing trade to him. Although appellant’s conduct was prefatory to the sale, it was not collaborative with the seller. For this reason the conviction cannot be sustained.
“We are satisfied that the absence of any showing of collaboration or association between appellant and Cooper prevents her from being convicted under Section 2 of Title 18 as a guilty participant in Cooper’s sale of narcotics.”

To the same effect is a contemporary of Moses, Adams v. United States, 220 F.2d 297 (5th Cir. 1955).

A distinction between criminal responsibility for “selling” a controlled substance, unaided by statutory amplification of the meaning of “selling,” and other action with reference to controlled substances such as “deliver,” “distribute,” “furnish,” and the like is brought to clear focus in two Massachusetts cases, the one holding that a “sale” was not consummated by action of defendant in assisting a prospective purchaser to obtain the substance, the other holding that somewhat similar action furnished a basis for a finding that there had been “distribution” in violation of a particular statute relating to drugs or controlled substances. Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969) and Commonwealth v. Noons, 308 N.E.2d 915 (Mass.App. 1974). The distinction is compacted in Noons, wherein a conviction for “distributing” was upheld:

“ . . . The case of Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969), relied upon by the defendant, is distinguishable from the case before us in that the conviction there reversed was for selling narcotics, not distributing them. Indeed, the court implied that if the defendant there had been charged with delivery of a narcotic drug, substantially the offense charged here (see G.L. c. 94C, § 1, ‘Distribute’), the conviction would have been sustained. . . . ”

An accentuation of the distinction between a “sale” of a controlled substance and some other statutorily proscribed action with reference to it is to be found also in two relatively recent cases in Oklahoma. Posey v. State, 507 P.2d 576 (Okl.Cr.App.1973) and Tipton v. State, 528 P.2d 1115 (Okl.Cr.App. 1974). There the distinction was between a “sale” and a “distribution.” In each case defendant was acting at the request of an undercover agent in obtaining the controlled substance and relied for a defense upon what some courts have denominated as the “procuring agent” principle, which designation apparently stems from United States v. Sawyer, 210 F.2d 169 (3d Cir. 1954).

In Posey, supra, in following the lead of Massachusetts and “almost all the Federal Circuits,” the court upheld the procuring agent defense to an indictment charging a “sale” and stated at 578:

“In the instant case, there is no proof of ‘any community of scheme,’ collaboration, or association, between defendant and the seller ‘Stu,’ nor did defendant have any personal or financial interest in the transaction. Consequently, there being a total failure to prove the necessary element to constitute a ‘sale,’ as to the defendant, and no proof of conspiracy or pre-arranged plan, we are bound to hold that the verdict of guilty could only have been based upon speculation.”

The court likened the facts to those furnishing the basis for a similar result in Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972), and summarized the facts in Simione as follows:

“ . . .In the Pennsylvania case the evidence showed that one Paul Guy persuaded Simione to arrange a sale of a quantity of hashish through a third party, James Heisey. Paul Guy testified that the alleged transaction took place in the kitchen of his apartment and that the three people were all present. Guy stated that he gave a twenty dollar bill to Simione, who then handed the money to Heisey. Heisey accepted the money and gave the gram of hashish and five dollars in change to Simione, who in turn gave the hashish and change to Guy.”

In Posey v. State, supra, the court cited with approval People v. Turner, 38 Mich. App. 479, 196 N.W.2d 799 (1972), in which it was held that defendant was not guilty of a “sale” by reason of his accepting twenty dollars from an informer for the purchase of heroin, buying the heroin from a third party and giving it to the informer. In Tipton v. State, 528 P.2d 1115 (Okl.Cr.App. 1974), the same court speaking through the same judge, Brett, J., and acting by the same concurring judges, as in Posey, reached a diametrically opposite result as to the question of defendant’s guilt, when indicted under a statute, prohibiting a “distribution” and defining a distribution to mean to deliver, and defining deliver as the “ . . . actual, constructive, or attempted transfer from one person to another of a controlled dangerous substance, whether or not there is an agency relationship.”

The difference in result between cases in which defendant was charged with a “sale” in the ordinary signification of the word and in some action denominated and defined by statute is emphasized in federal cases, particularly in the Fifth Circuit, in a number of cases decided by that court in 1973, soon after passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq., making it unlawful to distribute particular drugs. United States v. Johnson, 481 F.2d 645 (5th Cir. 1973); United States v. Miller, 483 F.2d 61 (5th Cir. 1973); United States v. Rose, 484 F.2d 654 (5th Cir. 1973); United States v. Fletcher, 487 F.2d 22 (5th Cir. 1973). We quote from United States v. Johnson, at 646:

“Johnson’s second contention is that he was nothing more than a procuring agent, a mere conduit through whom the drugs passed. Relying on cases such as Adams v. United States, 220 F.2d 297 (5th Cir. 1955), and United States v. Sawyer, 210 F.2d 169 (3rd Cir. 1954), he argues that the jury should have been instructed that a procuring agent could not be-guilty of the crime charged. This argument has no merit. The rule announced in the cases cited and the other case he relied upon dealt with the prosecutions for the ‘sale’ of narcotics. Johnson was not charged with sale. Rather, he was charged under the provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, which make it unlawful to knowingly and intentionally distribute heroin. . Thus the argument advanced by Johnson, based as it is upon the requirement of the prior law that the government prove the defendant to be a seller, has no application to the prosecution for distribution of heroin sub judice. . . . ”

It seems from the large number of cases on the subject that recent and probably current federal prosecutions for offenses tending to show a connection with illegal drug traffic are predicated upon alleged distribution of the drug, expressly prohibited by § 841(a) and punishable under § 841(b) of the United States Comprehensive Drug Abuse and Control Act, supra. Somewhat similar provisions are to be found in §§ 258(48) and 258(49) of the Alabama Uniform Controlled Substances Act. However, defendant in this case was not charged with a distribution but with a sale of marijuana. The Alabama Act does not purport to enlarge the commonly accepted definition of sell or sale.

In the case before us, under the provision of the statute in which the particular crime is referred to as “sell” and under the indictment itself, which expressly charges that defendant did “unlawfully sell marijuana” and that such “sale took place subsequent to September 16,1971,” we have no authority by statute, by precedent of the appellate courts of Alabama, or by weight of authority or reason elsewhere, to hold that appellant in this case is subject to criminal responsibility for the crime of “selling,” if his conduct, according to the undisputed evidence, does not afford a reasonable inference that he participated with the seller in making the sale.

A summary of cases upholding judgments of guilt of selling illicit drugs or controlled substances by reason of the statutory definition of “sell” or “sale” is found in Annotation, 93 A.L.R.2d 1008 and 92-100 A.L.R.2d Later Case Service 117, the latter under the caption, “Construction and Effect of ‘Sale’ or ‘Sell’ in Uniform Narcotic Drug Act.”

We doubt not that a criminal linkage between a seller and one acting at the behest of a buyer of a controlled substance can be shown by circumstantial evidence. We so held in Baker v. State, 52 Ala.App. 150, 290 So.2d 214, writ denied, 292 Ala. 708, 290 So.2d 217. In Baker, the evidence for the State was that while the undercover agent and his informer discussed the subject of marijuana at defendant’s home, defendant went to “his Cadillac parked outside . . . opened the front door of the parked vehicle . . . appeared to be getting something off the seat of the automobile” and thereafter had “what appeared to be Manila envelopes in his hand, of the same size of the envelopes containing the marijuana sold by another to the agent. Defendant, before returning to his home where the agent and informer were, went down the street and in a few minutes returned to his home without the envelopes and told the agent and the informer . . that a guy down the street had the stuff and we could go down there and get it.” Defendant, the agent and the informer then went in the agent’s automobile in the direction defendant had walked with the Manila envelopes and purchased marijuana from a man by the name of Miller who came to the automobile and joined the other three therein. After buying the marijuana from Miller, the agent asked him if the agent could come back and get a larger quantity. Instead of Miller replying, the defendant said, according to the agent, “Come back any time and get as much as you want.” In his testimony defendant denied that he had possession of any Manila envelopes. The court concluded that irrespective of the question whether defendant had Manila envelopes in his possession, the trial court was not in error in overruling defendant’s motion for a new trial, nor in refusing defendant’s request for a general affirmative charge in his favor. The circumstances in Baker are to be contrasted, rather than compared, with those in instant case.

But for the express desire of defendant that he get something out of his action for the undercover agent and defendant’s acceptance of five dollars with which he purchased some marijuana for himself, we find no circumstances ' substantially different from a multitude of situations that have arisen in connection with illegal sales, whether sales of drugs, intoxicating liquor, or other sales, where people would buy, and assist others in buying, but who steadfastly would not think of selling or being a confederate with a seller thereof. We do not think that defendant’s inquiry of the officer as to what was in it for him and his acceptance of five dollars from the officer after the sale was made linked him with the seller; it more naturally linked him with the buyer.

Distinguishable on its face from this case is State v. Kraemer, 9 Or.App. 220, 495 P.2d 1241 (1972), the only case cited in note 65 of 28 C.J.S. Supp., Drugs and Narcotics § 173a, in support of the proposition that “Even where it is the rule that an agent of the buyer is not guilty of a sale, an intermediary who exacts a fee for his services will be guilty of making a sale . . .”

The facts in Kraemer, as stated by the court, were as follows:

“A Portland police officer, acting as an undercover agent, was introduced to defendant by a woman identified as Susan Bones. The first purchase was made for the officer through Susan. The officer was ‘swindled’ in some fashion, however, and did not receive the purchase.
“On the next occasion the officer approached defendant alone and defendant agreed to procure a tablet of the narcotic for $13. They drove to a particular location and parked. Defendant took the money, walked out of sight and then returned. He handed the officer the tablet, minus one-quarter of it. Defendant stated that he had obtained the drug from one Goldsworthy using the officer’s money and taking a piece of the pill as his commission. Defendant stated this was his usual practice.
“The officer testified as to a third transaction which was substantially identical to the second one. The third transaction formed the basis for the prosecution at bar.” (Emphasis supplied).

The court held:

“We agree with the trial court’s finding that defendant was a seller of the drug and not an agent of the purchaser. . He was acting in his own interests and charged a fee in the form of one-fourth of the narcotic tablet for his services. . . . Furthermore ORS 474.010(10) provides:
‘ “Sale” includes barter, exchange or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.’ ”

We do not hold that the evidence disproves the guilt of the defendant as charged in the indictment. We fully realize that there may be other circumstances, not shown by the evidence herein but consistent therewith, which circumstances would so connect appellant with the seller as to furnish a jury issue as to appellant’s guilt. On the evidence before us, the trial court should have granted defendant’s motion to exclude the evidence.

As the selection of a jury to try the case commenced, counsel for defendant challenged for cause all jurors who served the day before on a case in which Officer Jackson was a witness for the State, in which it appears that the “nature of the charge” was the same as the charge against appellant. The challenge was overruled. Notwithstanding our concern whether by further presentation by defendant of the circumstances of the previous case he could have shown that jurors in the other case may have been subject to challenge in this case, we must hold against appellant as to the point. It is established in Alabama that it is a ground for challenge for cause that a venireman has sat as juror in a previous case involving the same question, as this imports he has formed a fixed opinion. Smith v. State, 55 Ala. 1 (1876). The principle has been applied to a juror who sat on trial of another defendant which involved the same transaction. Crowden v. State, 41 Ala.App. 421, 133 So.2d 678. The principie also applies to a companion case. Dunaway v. State, 291 Ala. 93, 278 So.2d 205 (1973), aff’g 50 Ala.App. 200, 278 So.2d 200, and conforming to Leonard v. United States, 378 U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 1028. That members of a venire have previously served in a similar case is likely to present a problem as to their qualification, but we are not persuaded by reason or authority that such fact alone necessarily disqualifies them. The name of the defendant in the other case of itself precludes the possibility that the other case was a companion case to the one to be tried. We accept the conclusion, supported by a long list of cited cases, reached in Government of Virgin Islands v. Williams, 476 F.2d 771, 773 (3d Cir. 1973):

“The federal courts have uniformly held that, absent some evidence of actual partiality, a juror is not disqualified merely because he previously sat in a similar case arising out of a separate and distinct set of circumstances even though the offenses charged in the cases are similar and some of the same prosecution witnesses testify in each case.”

The only remaining assertion of error cannot be sustained. Objection was made and overruled to the following statement in the closing argument of counsel for the State:

“The defendant offers his own testimony and offers an alibi. He offers not one shred of corroborating evidence to corroborate what he claims.”

It is not contended that the argument violates the rule against unfavorable comment upon the defendant’s failure to testify, as the defendant did testify. It is contended that the argument was a comment upon defendant’s failure to produce witnesses that were equally accessible to the State. We do not so find. In defendant’s testimony, nothing was said by him either on direct or on cross-examination, as to whom he was with at the time the State claims he was committing the offense with which he was charged. We construe the argument as a comment upon the weakness of defendant’s testimony, which is a valid subject of argument.

For the error indicated, the judgment should be reversed and the cause remanded.

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 of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.

      . Judge Hand’s statement was adopted by the Supreme Court in Nye v. Nissen, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949).


author: EMBRY, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2690.
    Supreme Court of Alabama.
    Aug. 19, 1977.
   EMBRY, Justice.

WRIT DENIED.

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