text:
    Brenda Jean JOHNSON v. STATE.
    1 Div. 626.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.

      Calvin Clay, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and her punishment fixed at ten years in the penitentiary. At arraignment with retained counsel present she pleaded not guilty. After sentence was imposed, she gave notice of appeal. The execution of the sentence was suspended pending appeal and an appeal bond was set at $7,500.00. She was determined to be indigent and a free transcript was furnished her and new counsel was appointed to represent her on appeal.

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

Mary Massengill testified that she was employed by the Magic Mart and that her hours of employment were from 11:00 p.m. until 7:00 a.m. She stated that in the early morning hours of that date a man with long sandy hair who appeared to be in his late forties and five feet, eight or nine inches tall pointed a pistol directly in her face and stated he wanted all the money. He told her to set the cash register drawer on the counter and he got all the money out of the drawer. With the pistol still pointed on her he motioned toward the safe and said he wanted the rest of the money saying, “I don’t want to hurt you.” She stated she was terrified about the pistol being pointed directly at her and she gave him the money bag from the safe and that the total amount taken was $470.00 in 20’s, 10’s, 5’s, l’s and some change.

This witness further testified that she had seen this man, along with another man and woman, before the actual robbery took place. She said that a blonde headed man with a moustache came in the store with a girl and the girl bought a bag of potato chips, and she asked the girl if she was going to pay for the gas and she said, “No, he is.” Two dollars worth of gas was bought before the holdup. She observed the automobile at the gas pumps and it was a white Mercury with a luggage rack on top.

On cross-examination Miss Massengill testified she did not pay any attention to the girl and could not identify her. She stated that $470.00 in currency and change was taken and that $465.50 was subsequently recovered.

She further testified that Mr. Bruce Fowler, a federal man with the Corps of Engineers, was in the store when the robber came in with the pistol. He pointed the pistol on Mr. Fowler and told him he wanted his weapon and that Mr. Fowler told him he would have to take it from him.

On re-direct examination Miss Massen-gill said she could positively identify the man who held her up. That as soon as the man walked out of the store she picked up the telephone and called the Police Department and Mr. Fowler took the telephone and talked to the police.

Mr. Bruce Fowler testified that he was employed with the General Services Administration as a federal detective. He said he had been with the Federal Protective Service for three years and that on February 23, 1975, he was keeping the U.S. Corps of Engineers building under surveillance which building was next door to the Magic Mart that was robbed that morning. He stated that he walked into the Magic Mart at 3:53 a.m. to get a cup of coffee and at 3:55 a.m. a man came in and held up the store. He said the man told the clerk and him that this was a holdup and told Fowler to drop his gun belt. Fowler told the man if he wanted his gun, he would have to take it and he raised his hands. He stated the man moved behind him and put a .38 caliber pistol to the rear side of his head and unstrapped the safety strap on his gun belt and took Fowler’s pistol and told him to move to the rear. Fowler moved to the rear of the store and positioned himself where he could see toward the front. He saw Miss Massengill pass the man a bag of money over the counter. He heard a conversation but could not understand what was being said. He heard a metal clanging on the counter and saw a white bag in the hands of the robber.

Mr. Fowler described the robber as being between 45 and 55 years of age and was approximately five feet, nine, and weighed 150 to 160 pounds. He had sandy red hair, freckled face, fair complexion and was wearing a tan-gold field jacket with light brown pants. He was shown State’s Exhibit No. 1 and asked if he had seen it before and stated it appeared to be the same weapon that was held to his head when his pistol was taken.

This witness further testified that he had seen the robber a few minutes earlier get gas in a white square styled Mercury with a luggage rack on top. That after the robbery he saw the man moving toward the door and he put the pistol in his coat pocket as he went out the door. At this point the store clerk got on the telephone and called the City police, and he took the telephone from her and gave an all points bulletin to the police describing the robber, his clothes and the Mercury automobile.

Mr. Fowler further testified that he did not see appellant at the time the store was robbed. He saw her for the first time at the preliminary hearing.

Michael Lyness testified that around three o’clock on the morning of February 23, 1975, he and four other friends were walking up the street toward the Magic Mart when they saw a car parked on the corner. He described the car as being white with a luggage rack on top. He also stated the car had a license plate from the State of Washington on it. He stated that the car was slowly backing up as he and his friends approached the Magic Mart and he saw two men running from around the corner. He said one man was old and the other man had a moustache and long hair and one of the men had a gun and the other man had a bag.

This witness further testified that he saw the two men get in the white Mercury on the passenger side as the car was slowly moving backwards. He stated that neither one of them got in on the driver’s side of the Mercury. He said he went to the Magic Mart and told the police exactly what he had seen and pointed in the direction in which the white car was heading when he last saw it.

Police Officer David Havard testified that he had been with the Mobile Police Department for five years and was assigned to the patrol division on the midnight shift. He stated he was familiar with the Magic Mart on Government Street and that around 3:55 a.m. on February 23, 1975, while he was at Roy Cran-ford’s Barbecue on Highway 90, a holdup alarm came over his radio. He explained that a holdup alarm is the actual conversation between the person that has been robbed and the dispatcher at the police station and that the conversation is transmitted directly over the radios in all police cars and they receive a description and the information at the same time the operator does. The officer stated that when he heard the broadcast, he got in his patrol car and pulled out to Highway 90 and observed an old model white Mercury with a luggage canvass cover over the top with luggage underneath it. It had State of Washington plates on it. The car was headed west on Highway 90 away from the City of Mobile and was occupied by three subjects. He got on the radio and advised the operator that he had the suspect car spotted on Highway 90 and was going to attempt to stop it. He followed the car a short distance and turned on the blue light and stopped the Mercury on Highway 90 near the Pleasant Valley Road.

From the record:

“Q What if anything happened, then ?
“A A white female got out of the car on the driver’s side — driver of the car. She was heading back to the scout car. I asked her to stop where she was. I got my shotgun out and by that time the backup unit had arrived. I asked the white female to approach my vehicle and asked for identification. She presented a driver’s license with a name Brenda Johnson. It was a Texas driver’s license.
“Q Is that person in this courtroom today?
“A Yes, sir.
“Q Point her out for the ladies and gentlemen of the jury?
“A The defendant sitting beside Mr. Stevens.
“Q Let the record show he indicated Miss Brenda Jean Johnson. What if anything happened then, please sir?
“A The backup unit arrived. We took the other two suspects out of the vehicle. All three were placed under arrest for robbery. She was placed in back of my scout car.
“Q And?
“A In the investigation for stolen property on the vehicle we found the money bag in the back seat. One of the suspects was taken out of the passenger side and he had a large quantity of money in his coat pocket. We found revolvers in the front seat accessible to all three suspects. The suspect here had ammunition for a twenty two caliber weapon in her pocketbook. A twenty two caliber pistol was found underneath the seat along with a thirty eight revolver and several other guns found in the back seat.”

The officer then identified State’s Exhibits 1, 2, and 3 as pistols that were taken from the car driven by appellant and also identified State’s Exhibit 4 as a .22 caliber pistol that was taken from beneath the seat of the car driven by appellant. He stated that a number of .22 caliber bullets were found in appellant’s purse.

On cross-examination the officer stated that a description of the car driven by appellant was given in the radio dispatch. He said he did not find the .22 caliber pistol on appellant nor did he have knowledge of whether the gun was registered to her. He further stated that appellant told him the box of ammunition in her purse belonged to her. He further stated that appellant told him the two men in the car with her were her brothers, but he stated the two men denied any such relationship.

At this point the State rested and appellant moved to exclude the State’s evidence on the ground a prima facie case was not made out against appellant. The motion to exclude was overruled.

Appellant was the only witness in her behalf. She testified that she was born in Beaumont, Texas. She stated she was married but was served with divorce papers and actually divorced while she was incarcerated in the jail in Mobile. She left Texas on January 31, 1975, and went to New Orleans. She left New Orleans around P'ebruary 21, 1975, and went to Biloxi, Mississippi, where she found a job as a waitress in a bar in Gulfport, Mississippi. She worked the night of February 22 in Gulfport and left to go to Mobile, Alabama. She stated she went ot Mobile with two other people in a white Mercury with a traveling rack on top.

She further testified that she was around the Magic Mart on Government Street around 3:55 or 4:00 in the morning where they stopped to get gas. She stated that both men got out of the car, but she was not certain whether they actually put gas in the car as she was not paying attention. She said that both of these men entered the store and when she saw them coming out they were not running or wav-ings guns or carrying any bags. She stated she never left the car the entire time and that when the two men got back to the car, the same male that had driven there got behind the steering wheel and took off.

She continued by testifying that she met two men in New Orleans. Their names were Robert L. McDaneld and Norman L. McDaneld. She met them on February 16, 1975, and she left New Orleans with them. She stated when they stopped at the Magic Mart, she did not know or have any knowledge that there was a robbery in process. She further stated that she had not participated in any robbery.

She admitted that she had seen the guns identified during the trial in the car before the robbery but she did not know who the guns belonged to except to say that none of them belonged to her. She specifically said that the .22 caliber pistol did not belong to her.

She repeated that she did not have any knowledge of a robbery. That the robbery was not discussed in her presence either immediately prior to or after they arrived at the Magic Mart. That she did not realize that the robbery had been committed or that anything wrong had happened until she was stopped by the police, and that she did not participate in the robbery in any way.

On cross-examination appellant testified that she told Officer Havard that the ammunition in her purse belonged to her, but said she did not know these bullets were in her own purse. She further stated that after meeting the McDaneld brothers on February 16, 1975, she had seen two pistols and one rifle and that these guns were usually covered up with clothes in the car. She said these two men had all their belongings with them in the car. She stated that the first time she saw a money bag was when the two men got in the car after leaving the Magic Mart and that she just got a glimpse of it as it was pushed underneath the car seat when the men got back in the car. She admitted that one of the men did in fact have a money bag in his hand as he re-entered the car.

Under further cross-examination appellant admitted she was driving the car and was backing it along the street in front of the Magic Mart during the robbery. She stated the reason she was backing the car was that the two men told her when she saw them coming to have the car ready with the motor running as they were going to turn around and go back to Mississippi, She said she checked the men when they came from the Magic Mart because she thought something must have gone wrong as they had been gone for such a long time. She further stated that they stopped the car on a side street a short distance from the Magic Mart before the two men went into the store and the reason for stopping the car was for her to drive when she saw them coming from the store.

Appellant described the car she was in as a white Mercury, 1966 model, with a Washington State tag and a luggage rack on top. She said that when the men re-entered the car, they got in on the passenger side.

On re-direct examination appellant testified that the two men did not mention at any time after they left the store that they had just robbed it.

Appellant testified that her husband was a seaman and was probably in Port Arthur, Texas. That she took up with these two men can hardly be disputed. She admitted spending the night with the younger brother in an apartment in New Orleans before they came to Mississippi and then to Alabama. If they had not been caught after robbing the Magic Mart, she would probably still be with them wherever their destination might be.

The three essential elements of the crime of robbery are: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent, and (3) by that means of taking and carrying away the property of another from his person or in his presence, all of these elements concurring in point of time. Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382; Tarver v. State, 53 Ala.App. 661, 303 So.2d 161; Williams v. State, 48 Ala.App. 737, 267 So.2d 526.

Where several persons participate in a robbery, it is immaterial which one takes the property. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457; Gibson v. State, 49 Ala.App. 18, 268 So.2d 49; Parsons v. State, 33 Ala.App. 309, 33 So.2d 164.

By her own testimony appellant was the driver of the getaway car, and she was found with a box of .22 caliber bullets in her purse which she admitted belonged to her. A .22 caliber pistol was found under the front seat of the automobile she was driving when she was stopped by the police. She was seen at the scene of the robbery backing the car to help the robbers make good their escape.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Price v. State, 53 Ala.App.465, 301 So.2d 230; Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813; Moore v. State, 52 Ala.App. 394, 293 So.2d 309.

A motion for a new trial was filed by new counsel. The main thrust of this motion was that appellant did not have adequate and competent counsel during her trial in chief because her employed counsel was also employed to represent a defendant charged with the same robbery. It is alleged in the motion that appellant’s employed counsel had a conflict of interest in representing two people charged with the same crime. The trial judge heard considerable testimony on the motion for a new trial and also on the motion for a rehearing of the motion for a new trial. Conflicting testimony abounded during this hearing.

At her trial in chief appellant testified that she did not know anything about the robbery of the Magic Mart on Government Street in Mobile, Alabama, on February 23, 1975, and did not participate in the crime in any way. She did admit driving the getaway car because the McDaneld brothers instructed her to do so. Evidently the jury did not believe her testimony as they took only 18 minutes to return a verdict against her.

Appellant testified during the hearing on the motion for a new trial and admitted that she committed perjury during her trial in chief. She further stated she told her lawyer everything in connection with the robbery.

Her attorney testified that appellant repeatedly told him that she did not know anything about the robbery. He contacted the District Attorney and tried to get him to recommend probation for her. The District Attorney told him there was a possibility that she could get probation if she turned State’s evidence and testified against the McDaneld brothers. Her attorney explained to the District Attorney that she could not testify for the State as she denied any knowledge of the robbery. The District Attorney stated the only way he would recommend probation would be in exchange for her testimony against the brothers.

Appellant’s attorney contacted her again and related his conversation with the District Attorney but appellant again refused to' testify against the McDaneld brothers, saying she did not have any knowledge of the robbery.

Appellant employed her attorney in April, 1975, before her trial the following June. Robert McDaneld employed appellant’s attorney five days before her trial and the attorney disclosed this fact to appellant. The attorney had seen a signed statement by Robert McDaneld in which he confessed the robbery and he employed appellant’s attorney to negotiate a plea for him, but when he learned that he was going to get twenty years, he decided to take his chances with a jury. He got thirty years.

It would have been far better if the attorney had not accepted Robert Mc-Daneld’s case even for the purpose of “plea bargaining.” It is dangerous to represent two or more defendants charged with the same offense. In the course of events there is always the possibility that a conflict of interest may arise. Here the attorney could see no conflict of interest as appellant was to go to trial on a plea of not guilty and McDaneld was to initially plead guilty.

In order to successfully show ineffective representation by counsel appellant must show that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice. Boswell v. State, 290 Ala. 349, 276 So.2d 592; Freeland v. State, 43 Ala.App. 406, 191 So.2d 245; Gore v. State, 45 Ala.App. 146, 227 So.2d 432.

In United States v. Wayman, 510 F.2d 1020, the United States Court of Appeals, Fifth Circuit, said:

“The mere fact that an attorney jointly represents co-defendants is not, per se, a denial of effective assistance of counsel.”

See Horowitz v. Henderson, 514 F.2d 740 (Fifth Circuit, 1975).

The trial judge saw and heard the witnesses on two separate occasions on the motion for a new trial. He was in a far better position to judge the credibility of the witnesses than we are and he denied the motion for a new trial.

Granting or refusing a motion for a new trial is a matter resting largely in the discretion of the trial court and the exercise of this discretion carries with it a presumption of correctness. Johnson v. State, 51 Ala.App. 172, 283 So.2d 624; Moore v. State, 52 Ala.App. 179, 290 So.2d 246.

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

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Otis Dean BROOKS v. STATE.
    4 Div. 420.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    P. Richard Hartley, Greenville, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis III, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of an assault with the intent to commit the crime against nature and sentenced to imprisonment in the penitentiary for five years.

The alleged victim was a four-year-old boy. Defendant, twenty or twenty-one years of age at the time of the alleged incident, had been boarding about six months at the home of the boy’s mother. On the day of the incident, he left the home driving a truck to take the boy’s sixteen-year-old sister, who was married, to her home about three miles away. The boy went with them. In about an hour and a half thereafter, having presumably left the sister at her home, he drove the truck back to the boy’s home. Promptly upon arrival, the boy left the truck and, according to the testimony of his mother and another sister, went into the house crying. The mother described him as “jerking all over” and the sister said he was “all nervous.” The sister said he had blood “over his little undershorts,” and the mother testified that he was bloody in “his little old tail.” The boy was examined by a physician soon thereafter, the same afternoon of the alleged incident. The physician testified that the boy “was irritated in his rectum.”

Without much, if anything, being said by defendant when he returned in the truck, he gathered up his clothing and left the boarding house and did not return.

According to the testimony of defendant, he was not guilty of any assault upon the boy. He said that as he returned to the place he boarded, the home of the boy, and as he drove into the yard, the boy fell out of a door of the truck, that he didn’t see “what portion of his body he fell on,” that the boy went in the house and soon thereafter his mother came out and told defendant to get his clothes and leave.

Appellant contends that the trial court committed error in admitting some of the statements made by the boy upon entering the house and that the trial court should have granted defendant’s motion for a mistrial.

Included in the evidence admitted as to complaints made by the boy upon arrival at his home after the truck ride was testimony of the mother as shown by the following:

“Q. Did he tell you where he was hurt?
“BY MR. LIGHTFOOT: Objection.
“By Mr. Bryan:
“A. In his little doo-doo hole.
“BY MR. LIGHTFOOT: Objection.
“BY THE COURT: Overruled.
“BY MR. LIGHTFOOT: That’s one of the details, Your Honor, and I don’t think the witness is qualified to state the details.
“BY THE COURT: Overruled.
“BY MR. LIGHTFOOT: Note our exception.”

After the quoted testimony, the witness testified further, without objection, to substantially the same facts, in somewhat different language, as those shown by the quoted testimony.

Appellant insists that the admission of the testimony constituted a violation of the rule that although complaints by victims of rape and other related crimes are admissible, “the details or particulars of a complaint cannot be shown by the prosecution in the first instance.” McElroy, Law of Evidence in Alabama, (2d ed.) § 178.01. We agree, but as stated by Judge McElroy at the conclusion of the same subsection:

“Irrespective of limitations of the present rule, the full details of the complaint are admissible if the complaint is a Spontaneous Exclamation under Sec. 265.01, below. Daniel [Daniell] v. State, 37 Ala.App. 559, 73 So.2d 370, Syl. 3.”

Just how long after any assault the complaints were made, we have no way of telling, but they were made almost immediately after the boy had left the truck in which he had been riding with defendant and with whom he had been all of the time he had been away from his home. His complaints were made at the first opportunity he had to complain to his mother. They were made while he was still crying and while he was still in pain from whatever injury he had received. Taking into consideration the boy’s age, the nature and place of the injury received by him, the time factors and all of the circumstances, we feel that his complaints come well within the category of spontaneous exclamations. We recently had a case in which we came to a different conclusion by reason of a marked difference in the circumstances. We refer to Langford v. State, 54 Ala.App. 659, 312 So.2d 65. Therein we said:

“. . . There was no effort by the State to show her excitement, which could have been easily shown, if there was any. We are unwilling to state that the natural and normal disposition of such victims under any and all circumstances, including as in this case an absence of objective signs of physical injury while being examined promptly thereafter by a physician, is always sufficient to show an extension 'for any substantial measured length of time of excitement or instinctiveness in a particular individual as distinguished from deliberation.

In this case, as distinguished from Lang-ford, spontaniety is the only conclusion that can be reached from all the circumstances upon taking into consideration Judge McElroy’s delineation of the circumstances to be considered:

“Obviously the trial court in determining whether the statement was made spontaneously, ought to consider the degree of startlingness of the occurrence; how much time passed after the occurrence but before the statement was made; the effect of intervening events; the nearness, vel non, of the place where the statement was made to the place of the occurrence; the condition of the declar-ant; the contents of the statement itself; and all other facts relating to whether the declarant was under the stress of a nervous excitement at the time he made the statement.” McElroy, Law of Evidence of Alabama, (2d ed.) Sec. 265.01 (2).

We fully realize that the complaints made by the boy could conceivably be consistent with defendant’s testimony to the effect that the boy received his injury by falling out of the truck. This, however, though going to the question of the guilt or innocence of defendant, does not affect the question of the admissibility of the particular testimony.

On a pre-arraignment hearing, it was determined that defendant was indigent and an attorney was appointed for him. Prior to arraignment this particular attorney was appointed County Solicitor for Crenshaw County. Upon arraignment he was replaced by the appointment of another counsel who ably represented him on the trial. He is now ably represented by still other counsel appointed by the court. The position is taken by appellant that:

“The defendant was denied a fair trial and due process of law because the attorney originally appointed to represent him was subsequently appointed County Solicitor and, as the record indicates, represented the State in the trial of the case . . .”

We have no doubt as to the soundness of appellant’s position if, indeed, the subsequently appointed county solicitor did represent the State on the trial of the case or took any part whatever in the prosecution of defendant in this case. There is no evidence as to what he did in representing defendant over the period when he was nominally at least his attorney, from October 28, 1974, to June 3, 1975, but we can hardly conceive of a situation where such a relationship existed for such a long period of time that there was not some activity on his part or information coming to him that would have disqualified him from performing any service whatever for the State in the prosecution of appellant. The question that concerns us in this connection is whether the conclusion reached or indicated by appellant that the attorney “represented the State in the trial of the case,” is correct. The only possible indication thereof is to be found in a list of the appearances found twice in the transcript, once at the arraignment and once at the beginning of the trial as follows:

“APPEARANCES
“HONORABLE JESSE O. BRYAN, District Attorney for the Second Judicial Circuit of Alabama, Butler County Courthouse, Greenville, Alabama, appearing for the State of Alabama.
“HONORABLE WILLIAM R. KING, County Solicitor for Crenshaw County, Luverne, Alabama, appearing for Crenshaw County.
“HONORABLE BEN G. LIGHT-FOOT, Attorney at Law, Luverne, Alabama, appearing for the Defendant.”

and immediately thereafter, under the caption of “PROCEEDINGS” in a legend showing the presence of the Judge; the defendant and his attorney; the Circuit Clerk, the District Attorney; the County Solicitor and the Sheriff. In qualifying the jury and interrogating them at length no question was asked as to any relationship with the county solicitor. Not once during the actual trial of the case does his name or title appear. No reference was made to him during the trial of the case. As much as we think that the presence of the county solicitor should have been clarified so as to have removed any suspicion whatever of his participating in any way in the prosecution of the case, if such could have been truthfully done, we are unwilling at this time, without any further information on the subject, to find that there was any actual representation of the attorney of the State in the prosecution of this particular case. If there was, even unwittingly and innocently, we have no hesitancy in saying that we have serious doubt as to the validity of the conviction if and when such fact is proved in an appropriate proceeding. We regret that we are in the dark as to the particular point at the present time. No concession is made by the State. It states:

“The record fails to reflect that Mr. King ever actively counseled or represented the Appellant nor did he assist in the prosecution.”

In the absence of more light on the subject, we cannot conclude otherwise.

No contention is made on appeal, and there was no question raised on the trial, as to the sufficiency of the evidence to support a conviction.

We have considered all contentions made by appellant and have searched the record for any error prejudicial to him. Finding none, we conclude that the judgment appealed from should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.


author: HARRIS,' Judge.

text:
    Clarence Edward COPELAND v STATE.
    6 Div. 7.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Samuel H. Sanders, III, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Asst. Atty. Gen., for the State.
   HARRIS,' Judge.

Appellant was convicted of grand larceny and sentenced to five years imprisonment in the penitentiary. He was found to be indigent prior to arraignment and counsel was appointed to represent him at arraignment and trial. He pleaded not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The facts are not in dispute. Appellant did not testify or offer any evidence in his behalf. He raised the sufficiency of the State’s evidence by a motion to exclude and by a motion for a new trial, both of which were overruled and denied.

The evidence presented by the State tended to show that on October 31, 1974, between two and three o’clock in the afternoon, a black male was seen entering the vestibule of the 19th Street entrance to Loveman’s Department Store in Birmingham, Alabama. A few moments later this same man was observed in the basement area of that department store putting dresses into a shopping bag. One of the store’s security officers who had observed the actions of this man left to get assistance, but returned to see this man exiting the 19th Street door from which he had entered, and he was clutching the shopping bag full of dresses with hangers, price tags and merchandise hanging out of the bag. She pursued him out on the street hoping to attract the attention of a police officer but the man made good his escape.

Upon returning to the store following her unsuccessful pursuit of the thief, the security officer assisted a saleswoman in the basement in conducting an inventory of the dresses in that area. A comparison of the inventory taken at the time with the inventory taken at the opening of business that morning showed a total of nine dresses missing, the total retail value of which was $190.00.

The witness further testified that she had seen this same man in the store before but did not know his name. She made a positive in-court identification of appellant as the man she unsuccessfully chased out of the store and down the street with a bag full of dresses on the afternoon of October 31, 1974. The clothes were in a Pi-zitz shopping bag.

On the following day, November 1, 1974, this same security officer, responding to a call from a salesperson in the basement of Loveman’s, observed the man whom she identified as appellant, and recognized him as the man she had tried to catch the day before. She immediately contacted her superior officer and told him that the man who had taken the dresses the day before was presently in the basement.

Mr. Terry Holder testified that he was employed by Loveman’s Department Store as Director of Security; that Loveman’s was a trade name for City Stores Company, a corporation. He stated that on November 1, 1974, at approximately 5:00 p.m., in response to a call from Mrs. Bishop, the store detective who chased appellant on October 31, 1974, he went to the men’s department in the basement where he proceeded to watch two individuals pointed out to him by Mrs. Bishop. Both were black males and Mrs. Bishop pointed appellant out to him as the thief that made good his escape the day before with a bag full of dresses. After Mrs. Bishop told Mr. Holder appellant was the man in the store the day before and in the presence of appellant Mrs. Bishop said, “This is the man that took the dresses from the ladies department in the basement the day before and outran me.” Mr. Holder arrested appellant. He searched appellant at the time of the arrest and found a Pizitz shopping bag neatly folded underneath his shirt and tucked in his pants. This witness further stated that Loveman’s did not have Pizitz shopping bags in Loveman’s stores. Mr. Holder made an in-court identification of appellant as the man he arrested in the basement of Loveman’s Department Store with a Pizitz shopping bag hid under his clothes.

There was no error in overruling appellant’s motion to exclude the State’s evidence, and there was no error in denying the motion for a new trial.

In Young v. State, 283 Ala. 676, 220 So. 2d 843, the Supreme Court held:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient'to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

The corpus delicti in larceny consists of two elements: (1) that the property was lost by the owner and (2) it was lost by a felonious taking. Pate v. State, 36 Ala.App. 688, 63 So.2d 223.

The loss of property by felonious taking may be proved by facts and circumstances as well as by direct and positive evidence and if the evidence affords an inference that a larceny has been committed, its sufficiency is for the jury and it is their duty to determine whether the corpus delicti has been proven. Melson v. State, 38 Ala.App. 514, 88 So.2d 851; Jones v. State, 51 Ala.App. 570, 287 So.2d 886; Woods v. State, 56 Ala.App.-, 325 So.2d 517.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

Appellant contends the Court erred in its oral charge to the jury. At the conclusion of the oral charge appellant said he had no exceptions thereto.

Numerous cases decided by the appellate courts of this state establish the rule that, in the absence of an exception to the Court’s oral charge, there is nothing presented for review. Cox v. State, 280 Ala. 318, 193 So.2d 759; Richardson v. State, 57 Ala.App. 24, 325 So.2d 540.

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

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ-, concur.


author: HARRIS, Judge.

text:
    James Earl LANDRUM v. STATE.
    1 Div. 618.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    T. Watrous Garrett, Grove Hill, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis III, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to fifteen years in the penitentiary. Prior to arraignment he was found to be indigent and counsel was appointed to represent him. He pleaded not guilty to the indictment. He gave notice of appeal. He is in this Court with a free transcript and new counsel was appointed to represent him on appeal.

The evidence is in sharp conflict. The evidence adduced by the State shows a clear case of robbery. Appellant presented alibi testimony.

Mrs. Catherine O. Gunter testified that on January 2, 1973, she was working in her father’s store in Thomasville, Alabama. Her father and mother, Mr. and Mrs. J. L. Overstreet, were both in the hospital at that time. She stated that around 11:00 a. m. that day three black men came to the store to buy gasoline, but they broke the pump handle, making it impossible to get any gas. She knew one of the men, Henry Mosley, as he had an account with the store. She asked him if he wanted her to let him have one dollar to go somewhere and buy gas and he said yes. She told him to come in the store and she would give him a dollar. Mosley followed her in the store and she reached under the counter and got the deposit bag which had some billfolds and money in it. She gave Mosley a dollar bill and put the money bag back under the counter. She stated that appellant was standing by the cash register when she got the money bag from under the counter and saw her when she put the money bag back under the counter. Appellant bought some donuts and he and Mosley left the store.

Mrs. Gunter further testified that just after 1:00 p. m. on the same day appellant returned to the store at which time he was alone. Appellant asked her to give him directions to Montgomery and she told him how to get to Montgomery from the store. At this point appellant grabbed Mrs. Gun-ter by her right arm with his left hand and he had a pistol in his right hand and told her to get over there and get the money. She told him she didn’t have any money and he said, “I said get over there and get the money.” Appellant told her to get behind the counter and lie down on the floor with her arms behind her.

From the record:

“Q What words did he use when he told you to lie down on the floor ?
“A He said, ‘Get over there and lie down on the floor.’ And I did. I begged him not to hurt me, and he pushed me around, made me get over there and told me to lie down, and he told me to put my hands behind my back and he tied my hands up. Well, I had held my hands where I could get them loose, and by the time he came back — he had gone up to the front of the store and he came back with some string to tie my feet up and he saw that my hands were loose, and he snatched me around and he said, ‘You white bitch, lie down.’ I laid down and I held my hands still and he tied them again, and then he tied my feet.
“Q. He tied your hand and your feet. “A And my feet.
“Q And you were lying on the floor at that time?
“A Face down.
“Q Were your hands in front of you or behind you?
“A Behind me.
“Q Your hands were behind you tied?
“A They were.
“Q And your feet were tied ?
“A They were.
“Q All right, what happened next ?
“A He went to the cash register to get the money, and he kept asking where is the money ? I told him there wasn’t any money, and he kept looking and he looked up under the counter and he got this zipper deposit bag, this bank deposit bag.
“Q Let me ask you this. I ask you whether or not that is the same bag which you had gotten the dollar out of and given it to Henry Mosley in the defendant’s presence earlier that day ?
“A That’s right, it was.
“Q All right, do you have a judgment as to how much money was in that bag?
“A Not exactly, because he got my billfold out of my purse, and my mother’s billfold and my daddy’s billfold, too, so all together it was around six hundred dollars. My parents were in the hospital and I was keeping their money and mine, too.
“Q Now, to whom did the money belong?
“A To me and my parents.
“Q What was your father’s name ?
“A J. L. Overstreet. He is deceased.
“Q Now, what happened after he got the bag?
“A He kept telling me I had better not tell anybody or he would kill me. He told me several times if I told anybody he would kill me. And he asked me where were the keys to the car out front, and I told him the keys were in the car.
“Q Whose car was out front ?
“A Mine.
“Q Were there any other cars parked out front?
“A No.
“Q What happened then ?
“A He left. He got the billfolds and the money and he went out the door, and he left. As soon as I heard the door close I got up and went to the door to call for help, but he was gone by then.
“Q Did you make a complaint to any law enforcement officers as a result of this incident?
“A I did. The Thomasville City Police came out and I told them exactly what happened.
“Q Was that on the same day that this occurred ?
“A It was within a few minutes afterward.
“Q And in your best judgment there was between five and six hundred dollars in the bag ?
“A Yes, sir.
“Q Now, describe how the defendant was dresssed that day and his appearance, please, ma’am.
“A He had on blue jeans and a jacket of that type, dark boots, and I don’t know, that’s all I remember.
“Q Did you notice his face? Did you have an opportunity to observe it ?
“A Yes, I studied his face. I surely did.
“Q Did he have a mask or anything on to conceal his face ?
“A No, He had a bandaid over his nose and a bandaid above his eye, but I knew, I remembered him.
“Q You had an opportunity to observe him at that time ?
“A I did.
“Q And you remember who that was? “A Yes.
“Q Will you point out who that individual was that did that ?
“A He’s sitting over there with the blue and red shirt on unbuttoned in front.”

Mrs. Gunter made a positive in-court identification of appellant as the man who robbed her at gunpoint and threatened to kill her if she told anyone.

Mr. J. C. Butler, a State Trooper Investigator, testified that after he had been given the description of the robber, he went to Mrs. Gunter’s house with three or four photographs of black males for her to see if she could identify the robber. Mrs. Gunter immediately picked out appellant in State’s Exhibit No. 1 as the robber.

Henry Mosley testified that on January 2, 1973, he went to Overstreet’s Store in Thomasville, along with Mathew George Williams and the appellant. He said that Williams stayed in the car while he and appellant went inside the store and that Mrs. Gunter loaned him a dollar to buy gas. He then stated that all three of them left the store and he went home; that Williams and appellant left his house on foot around 11:00 that morning.

The testimony of Mathew George Williams fully corroborated the testimony of Mosley. Williams further testified that when Mosley and appellant returned to the car, appellant made the statement that the lady had a lot of money in the store. This witness further stated that he and appellant left Mosley’s house together and went to appellant’s brother’s house; that about an hour later appellant left and the witness stayed at the brother’s house and helped the brother load furniture to move.

The State then rested and appellant moved to exclude all the State’s evidence and give a directed verdict for appellant without specifying any grounds. This motion was overruled and denied.

Appellant put on several members of his family in support of his alibi that he was helping his brother move and was at different places at the time Mrs. Gunter testified that he robbed the store where she was working. These alibi witnesses were not together in their testimony as to the exact times they saw appellant. Some testified they thought he was at his brother’s house at 11:30 a. m. and others said he was there between 2:00 and 2:30 p. m. One alibi witness testified that appellant came to her house around dinner time and stayed until late that afternoon.

Appellant testified that he had nothing to do with the robbery.

On cross-examination he admitted that after his arrest he was given the Miranda rights and warnings and signed a waiver of rights form which was admitted in evidence. He stated he signed the waiver voluntarily.

The pre-Miranda predicate was laid and appellant admitted making a voluntary statement to Chief of Police R. A. Irons of the Thomasville Police Department on March 15, 1973, in Pensacola, Florida. The statement is as follows:

“S. O. Pensa. Fla.
Statement of James Earl Landrum
C/M
“Me and Mathew George Williams were together when we robbed the store. Mathew had a toy pistol and held it under a handkerchief. Mathew George tie Mrs. Gunter up with a pair of shoe strings that I had. Mathew George drove the car. We got about $600. from Mrs. Gunter and the store, when we left we split the money and both of us took a little over $300. while we were in the car. I threw the billfold jn^the bushes near the dump. MathevÁ. Gejbrge went on in the car and I caught a white dude back to Thomasville and went on to Mobile that night.
/s/ James E. Landrum
WITNESSED BY CHIEF IRONS”

Appellant’s counsel waived closing argument to the jury after the Assistant District Attorney had addressed the jury and then objected to the District Attorney making a closing argument. This objection was overruled.

In Sheppard v. State, 172 Ala. 363, 55 So. 514, the Supreme Court held:

“The matter of allowing the attorney assisting the solicitor to close the argument, notwithstanding the defendant’s attorney declined to make an argument, was within the discretion of the court, and is not reversible error.”

Conflicting evidence presents a question for the jury. The tendencies of the evidence justified the jury in their verdict. Glover v. State, 20 Ala.App. 547, 104 So. 48; Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Miller v. State, 39 Ala.App. 584, 105 So.2d 711.

The conflict in the alibi testimony presented by appellant and identification testimony presented by the robbery victim was peculiarly within the province of the jury to resolve. Smith v. State, 53 Ala.App. 27, 296 So.2d 925; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613.

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

AFFIRMED.

All the Judges concur.


text:
    STATE of Louisiana v. Edwin LEWIS.
    No. 57749.
    Supreme Court of Louisiana.
    March 30, 1976.
   In re: Edwin Lewis applying for Writs of Certiorari, Prohibition, Mandamus and for Stay Order.

Writ granted: The trial court is ordered to rule on the applicant’s motion for preliminary examination immediately. La.C. Cr.P. art. 292.

DIXON, J., is of the opinion the preliminary hearing should be ordered by this Court immediately.

DENNIS, J., is of the opinion the preliminary examination should be granted forthwith.


author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. Willie J. SPAIN, Appellant.
    No. 56957.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Concurring Opinion March 31, 1976.

      Vincent Wilkins, Jr., Director, Lake Charles, Roland T. Huson, Appellate Counsel, Office of Public Defender, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., James E. Boren, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant pleaded guilty to attempted simple burglary, La.R.S. 14:27, 62, and was sentenced to four years at hard labor.

He appeals. His assignment of error admits that no objections were made at the time the plea was taken, but asks for appellate review of the conviction and sentence. The record further indicates that no appealable ruling is presented for review, such as the denial of a motion to withdraw a guilty plea, see La.C.Cr.P. art. 559.

Under these circumstances, the appeal presents nothing for review except “patent” errors, i. e., those discoverable by an inspection of the pleadings and proceedings and without inspection of the evidence. La.C.Cr.P. arts. 841, 920. In reviewing appeals from pleas of guilty, our jurisprudence holds that the review is limited to jurisdictional defects which appear on the face of the pleadings and proceedings. State v. Knighten, 320 So.2d 184 (La.1975); State v. Coats, 260 La. 64, 255 So.2d 75 (1971).

The defendant argues that this statutory and jurisprudential limit upon appellate review violates Article 1, Section 19, of the new Louisiana Constitution of 1974. This constitutional provision provides: “No person shall be subjected to imprisonment . without the right of judicial review based upon a complete record of all the evidence upon which the judgment is based. This right may be intelligently waived.”

Our Code of Criminal Procedure assures every accused in a criminal proceeding of “the right’’ of judicial review based upon a complete record of all the evidence “upon which the judgment is based.” In felony cases, a complete record is made of all the proceedings, with similar recording being made in misdemeanor cases upon request of the accused. La.C.Cr.P. art. 843 (1974).

Nevertheless, the accused’s right to have review of particular trial actions or evidentiary rulings may be waived by the failure of his counsel to object to them at the time made. La.C.Cr.P. art. 841. His right to have appellate review of other potential contentions may likewise be waived by the failure to file trial motions raising the issue (such as a motion to suppress evidence seized in alleged violation of constitutional right, La.C.Cr.P. art. 703; or such as a motion for directed verdict, La.C.Cr. P. art. 778, or for a new trial, La.C.Cr.P. art. 851, questioning the total lack of evidence to prove the essential elements of a trial; or such as a motion to quash the indictment or prosecution for many procedural defects, La.C.Cr.P. art. 535 D).

We hold that, within the intention of the constitutional article, the failure of an accused’s counsel to make such objections or to file such motions will ordinarily constitute an intelligent waiver of the right to appellate review of such types of errors and the evidence upon which they are based. Likewise, a defendant’s plea of guilty constitutes an intelligent waiver of appellate review of the merits of the prosecution’s case against him.

Accordingly, we find no merit in the defendant’s complaint that Article 1, Section 19 of the Louisiana Constitution is offended by the code articles and jurisprudential holdings which limit appellate review, under present circumstances, to jurisdictional defects which appear on the face of the pleadings and proceedings. We are thus unable to accede to the defendant’s plea that we review the entire record and all of the evidence in it.

Accordingly, we affirm the conviction and sentence.

Affirmed.

SUMMERS, J., concurs and assigns reasons.

SUMMERS, Justice

(concurring).

The impression may be gained from a reading of this opinion and the reference to Article 843 of the Code of Criminal Procedure that “the right” to judicial review entitles the appellant to a complete transcribed record of the proceedings in every felony appeal. This is not my understanding of Article 843. The Article provides that the entire proceedings be recorded, but it does not require that the entire proceedings be transcribed for review on appeal in every case.

When the Constitution prescribes that “No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.”, it does not mean that those portions of the evidence which are not relevant to the contentions made at the trial must be furnished for review. For instance, only those portions of the record relevant to assignments of error need be transcribed and furnished to the appellate court. Pleadings and proceeding, as distinguished from evidence, however, from which error is discoverable by a mere inspection, are properly part of the record furnished to the appellate court in every appeal. La.Code Crim.Pro. art. 920.

The labor, time and expense involved in transcribing the evidence are principal deterrents to speedy criminal appeals. Needless transcriptions should be avoided unless specifically required by law. I view the restrictive language of the Constitution to be designed to accomplish this result.

I respectfully concur.

      . If we were permitted to review the record, it affirmatively shows that the defendant pleaded guilty to the offense, freely and voluntarily and with the assistance of counsel, only after the trial court fully explained to him the rights he was waiving by pleading guilty and only after the trial court had ascertained from him the factual basis for his plea (in this case, his admitted guilt) and only after the trial court fully informed him of the penitentiary sentence to which his plea subjected him.

      . La.Code Crim.Pro. art. 843:
      “In felony cases, and on motion of the court, the state, or the defendant in misdemeanor cases tried in a district, parish, or city court, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.”


text:
    John McRay MOLLISH v. Doris Ann MOLLISH.
    No. 57632.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: John McRay Mollish applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 328 So.2d 189.

Writ denied. The judgment of the court of appeal is correct.

DENNIS, J., is of the opinion the writ should be granted.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. George J. ALEXANDER, Appellant.
    No. 57213.
    Supreme Court of Louisiana.
    March 29, 1976.
    Philip E. O’Neill, Orleans Indigent Defender Program, Kenner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of simple burglary, La.R.S. 14:62, and sentenced to four years at hard labor. He appeals.

No assignments of error were made in the trial court. In the absence of an assignment of error filed in the trial court within the time specified or continued by the trial judge, La.C.Cr.P. arts. 844 (1974), 916 (1974), this court’s review is limited to error discoverable by inspection of the pleadings and proceedings and without reference to the evidence. La.C.Cr.P. art. 920 (1974); State v. Shillow, 310 So.2d 102 (La. 1975). Our examination of the record discloses no such patent error.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.

      . By brief, we are informed that no objections were made during the trial. Furthermore, as the minutes show, written motions to suppress evidence, confession, and identification were withdrawn when the State informed the court that it had no physical evidence, statements, or identification testimony. An assignment of error must be based on an objection made at the time of occurrence or upon the trial court’s ruling on a written motion. See La.C.Cr.P. art. 841 (1974).


author: SUMMERS, Justice. PER CURIAM.

text:
    STATE of Louisiana v. Walter BRUMFIELD.
    No. 56876.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Rehearing Denied March 30, 1976.

      Alex W. Wall, Baton Rouge, for defendant-appellant.
    William J. Gu^te, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Anthony J. Graphia, James E. Boren, Asst. Dist. Attys., for plaintiff-appellee.
   SUMMERS, Justice.

Appellant Walter Brumfield was charged on July 23, 1974 by the grand jury of the Parish of East Baton Rouge with the June 9, 1974 second degree murder of-Eddie C. Robinson, Jr., contrary to Article 30.1 of the Criminal Code. He was convicted and sentenced to a term of life imprisonment without benefit of parole, probation or suspension of sentence for twenty years. Appellant relies upon eleven assignments of error for reversal of the conviction and sentence.

In the early morning hours of Sunday, June 9, 1974, Odette Louis was awakened by a knock on her door. Someone dressed in a dark brown shirt asked if this was the residence of Eddie Robinson. She aroused her brother-in-law, Eddie Robinson, who walked toward the front door. When he was four or five feet from the door several shots rang out. Robinson had been shot twice. He wandered around the house for several moments with blood spurting from his neck. The police were called, but Robinson was dead upon arrival at the hospital.

The victim was a guard at the Schuylkill plant in Baton Rouge. A rather lengthy strike was in progress involving employees of Schuylkill. Brumfield was an employee who was on strike. Ellison Shepherd, another striking employee, participated in the incident which resulted in the death of Robinson. A non-employee, Larry Butler, was also a participant.

There is a conflict in the testimony as to who fired the shots and as to the general involvement of each in the incident. Shepherd and Brumfield said Butler did the shooting, while Butler denied this. In any event, the testimony shows a knowing participation by the three.

Assignment No. 1

Prior to trial appellant filed a motion to produce all physical evidence in order that it could be “properly inspected and examined by an expert” on his behalf “to insure proper defense and a fair trial.” The motion also alleged that the State would use expert testimony to prove the elements of the crime and that defendant would be prejudiced by the State’s use of expert testimony if he were denied that same right.

The motion sought production of the following listed objects in the possession of the State:

“1. The .22 caliber automatic pistol allegedly used in the crime.
2. The .22 caliber casing and spent cartridges, including slugs which were found in the body of and home of Eddie C. Robinson, Jr.
3. Other spent cartridges or slugs retrieved in connection with this offense.
4. Other weapons retrieved from the defendants which may be connected to this offense.
5. One or more doors taken from the home where the alleged offense occurred.
6. Photographs or other evidence indicating results of fingerprint tests made on the alleged murder weapon.”

The motion was argued and denied. Error with regard to the refusal to order production of items 5 and 6 (the door and photographs) is not urged in appellant’s brief, and the assignment of error with regard to these two items is considered abandoned. State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972). Defense counsel relies upon the decision in Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975), to support his contention that the gun and cartridges should be produced.

We have held that

“As a general proposition the State is not required to produce the physical evidence it intends to use at the trial. Exceptions to this rule have recognized the right of a defendant to view and copy his written confession in the possession of the prosecutor, State v. Dorsey, 207 La. 928, 22 So.2d 273 (1945); to obtain production of a taped confession, State v. Hall, 253 La. 425, 218 So.2d 320 (1969); or some of the confiscated narcotic evidence in a narcotic prosecution, State v. Migliore, 261 La. 722, 260 So.2d 682 (1970). When proper allegations support a finding that the defendant acted in self-defense and specifies that the weapon sought was used by the alleged victim against the defendant, supporting a claim of self-defense, we have required production of the weapon by the State. State v. Woodruff, 281 So.2d 95 (La. 1973).” State v. Collins, 308 So.2d 263 (La.1975).

None of the exceptions to the general rule are relevant here. Recently in State v. White, 321 So.2d 491 (La.1975), we pointed out that the decision in Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975), was not authoritative and denied extension of pre-trial discovery in a fact situation very similar to the case at bar.

Careful analysis of the facts in this case makes clear that the controverted question was not whether the gun and cartridges were used in killing the victim; the real question was which of three persons did the shooting. It is noted, moreover, that defense counsel made no effort to have an expert examine the gun and cartridges during the trial or any recess thereof. Examination of spent cartridges is a relatively simple procedure with the aid of a dual microscope. Little time is required to perform the analysis.

An extension of pre-trial discovery is not warranted here.

This assignment is without merit.

Assignment No. 2

Defendant applied for and obtained the issuance of a subpoena duces tecum to compel the Office of the District Attorney and the Division of State Police, Department of Public Safety, to produce the “rap sheet” of Larry Butler, a principal State witness. The State moved to quash the subpoena duces tecum, and the motion was granted by the trial judge.

The defendant argues that to deny production of the “rap sheets” in the possession of the State denies him the opportunity to be informed of the witness Butler’s criminal record for use to impeach Butler’s testimony.

The contention is without merit. At the trial Butler’s prior criminal record was brought to the jury’s attention by the State. On cross-examination, defense counsel questioned Butler in detail concerning his prior convictions, which he readily admitted. Defense counsel also produced detailed information concerning Butler’s nine prior convictions. Somehow, the record does not disclose how, defense counsel was able to obtain the needed information.

Aside from the fact that defense counsel had no right to information in the district attorney’s files until it was produced in court, La.R.S. 44:3, and the fact that the State did not suppress any exculpating evidence which would be helpful to the defense, the defense was well-informed of Butler’s prior convictions.

™ . . , . This assignment has no merit.

Assignment No. 3

This assignment was neither briefed nor argued, and is therefore deemed abandoned. State v. Edwards, supra.

Assignment No. 4

During examination of the State’s witness, Esther Robinson, the victim’s widow, the State’s attorney questioned her about a mail box slot adjacent to the front door of the victim’s residence. The State’s theory of the case was that the mail slot was used by the defendant and his partners in this venture to sight Robinson as he came to the front door and permit them to discharge their gun into the door so that the shot would strike the victim.

While she was being examined, Esther Robinson viewed photographs of the front door and pointed out the mail slot, later identifying it again on another photograph. Thereafter, the State introduced a photograph of the front porch of the residence showing the mail slot. Another photograph was then introduced in evidence showing that the mail slot had been removed. Previously, the State’s first witness, Odette Louis, testified that there was a mail slot by the front door of the Robinson house. All of this evidence came into the record without objection by the defense.

The defense objected, however, when Esther Robinson testified that the mail slot was removed “[Bjecause you could see through”. The objection is based upon the contention that the testimony was irrelevant, for no evidence had been introduced at that time linking the mail slot to the crime, nor was evidence subsequently admitted establishing the relevancy of the testimony objected to. Defense counsel argues, moreover, that the testimony was prejudicial, for it suggested to the jury that the perpetrators of the crime “could use the mail slot to more effectively punish the victim.”

Because the defense allowed evidence concerning the mail slot to be admitted without objection, and due to the fact that the objected-to evidence was relevant to the inference the State sought to establish in support of its theory of the case, there was no error in the ruling of the trial judge. According to the State, an inference could be drawn from the fact that a person could see through the mail slot that the perpetrators of the crime did view the victim through the aperture as he approached the door from within the house. In doing so they were enabled to discharge the gun accurately, mortally wounding the victim.

“Relevant evidence is that tending to show the commission of the offense and the intent, or tending, to negative the commission of the offense and the intent.
“Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.” La.R.S. 15:441.

This bill has no merit.

Assignment Nos. 5 and 7

The State called as a witness Julius Bombet, chief investigator and photographer for the District Attorney’s office. He testified that he made photographs on July 2, 1974, following the June 9, 1974 offense for which defendant was being tried. The photographs pertinent to these assignments depicted the front of the residence in which the victim, Eddie Robinson was slain. After Bombet testified to the time and place of making the photographs, the State offered them in evidence. The defense objected that the photographs were irrelevant, at which time the State’s attorney announced that further testimony would be elicited in connection with the photographs. Whereupon, the Court sustained the objection “at the present time/’

The State then proceeded to qualify Bombet as an expert photographer and to establish by his testimony that he reconstructed the scene as it existed on the night of the slaying with the help of the victim’s wife. This was accomplished by reinserting the mail slot, which had been removed in the meantime, into the position it originally occupied. He then testified that he took photographs through the mail slot. The trial judge finally ruled that the photographs were inadmissible.

After this ruling Bombet was asked whether he had an opportunity to look through the mail slot after it was replaced. When he answered in the affirmative, defense counsel moved for a mistrial. The motion was denied and error was assigned.

As the defense contention is understood, the photographs referred to were irrelevant and it was error to dwell upon them as the State did in connection with Bom-bet’s testimony. Again the argument is made that the State was improperly attempting to support its theory of the case that the participants in the killing used the mail slot to aim at the victim.

For the reasons set forth under assignment number four, the photographs were relevant. Moreover, the State’s attempt to reconstruct the scene of the crime and establish that fact, by Bombet’s testimony and the photographs, would ordinarily be permissible. The probative value of such an experiment or reconstructed evidence depends in large measure upon the extent to which the reconstructed scene was identical with or similar to that which existed at the time of the happening. McCormick, Evidence, 485 (Cleary ed. 1972). Thus, such evidence is not invariably inadmissible. It’s admissibility should depend upon the accuracy of the reconstruction established as a predicate.

Under the circumstances outlined, there is no merit to these assignments.

Assignment No. 6

Testimony disclosed that the weapon fired at Robinson was a .22 caliber automatic owned by Irvin Heatley and that the gun at one time was in Brumfield’s possession. Heatley also testified that the gun had not been returned to him. When Heat-ley was asked whether, on the evening before the crime, he asked defendant if he had the gun, defense counsel objected after Heatley replied that he did.

The objection is grounded on the fact that the State responded, in answer to a motion for bill of particulars, that defendant “did not give a statement or confession, either oral or written or taped, regarding the alleged crime.” The argument is that Heatley’s testimony that he asked defendant whether he still had the gun the evening before the slaying was an attempt to elicit an inculpatory statement made by the defendant. On this basis, it is argued, the State failed to disclose an inculpatory statement prior to trial in its bill of particulars or as required by Article 768 of the Code of Criminal Procedure.

Reference to Article 768 discloses that confessions and inculpatory statements are treated together. For all practical purposes the rules applicable to confessions are applicable to inculpatory statements. State v. Robinson, 215 La. 974, 41 So.2d 848 (1949). The distinction is that a confession admits commission of the crime, whereas the inculpatory statement admits a fact, circumstances or involvement which tends to establish guilt or from which guilt may be inferred.

“As used in Article 768, the term in-culpatory statement refers to the out-of-court admission of incriminating facts made by a defendant after the crime has been committed. It relates to past events. . ” State v. Fink, 255 La. 385, 231 So.2d 360 (1970). See also State v. McKinnon, 317 So.2d 184 (La.1975).

Defendant’s objection is therefore without merit, for the statement elicited by the interrogation was made prior to the commission of the crime and it is not governed by the rules relating to inculpatory statements. Here the State’s question sought to elicit testimony establishing facts which tended to prove commission of the offense charged.

Assignment No. 8

James Joseph, a witness for the State, saw three of the participants shortly after the slaying. Joseph was permitted to testify to what Ellison Shepherd told him. The question posed by the State was, “What did Shepherd tell you ?”

Defense counsel objected that the question called for hearsay testimony and further complained that the State had failed to disclose the facts which the testimony would reveal in its bill of particulars. Joseph then testified that Shepherd said they had shot at Robinson’s house and they thought they might have hit somebody.

In briefing the hearsay issue defense counsel relies upon Section 434 of Title 15 of the Revised Statutes, declaring hearsay evidence inadmissible, and the case of State v. Jacobs, 281 So.2d 713 (La.1973). The Jacobs case states the hearsay rule and holds that the hearsay testimony in that case did not fall within certain exceptions to the rule.

If .it be conceded that the evidence is hearsay, the matter is not such that it warrants reversal. La.Code Crim.Pro. art. 921. The evidence objected to is in reality not disputed. Brumfield took the stand on his own behalf. His defense was that this incident was part of an activity related to the strike in which he participated, an activity designed to scare the “management people”, the matter having been discussed the preceding day in the picket line. On the night of the incident resulting in Robinson’s death, he joined Larry Butler in Butler’s car, knowing that the .22 caliber automatic and a nine millimeter gun were there. They drove to Shepherd’s house and picked him up. Shepherd then directed them to Robinson’s house on Grebe Street. They parked nearby on Kingfisher Street and Butler instructed Shepherd to stay in the car and keep the motor running. According to Brumfield, he took the nine millimeter gun and Butler took the .22 caliber automatic. They got out of the car and walked to the Robinson residence.

Butler then went onto the front porch, knocked on the front door and asked if Robinson lived there. At that time a brown Pinto automobile turned off Scenic Highway heading in their direction, prompting Brumfield to cry out to Butler to come off the porch. As he did so, shots rang out in rapid succession. Brumfield ran, followed by Butler. Brumfield denied that he fired any shots, maintaining that only Butler discharged a gun at the time.

Joseph’s testimony that Shepherd told him that they had shot at Robinson’s house and they thought they might have hit someone was therefore a statement fully in keeping with the version Brumfield was to give later in his testimony. At no time did Brumfield deny that shots were fired as a result of the joint venture in which he, Butler and Shepherd participated, his defense being that he did not personally fire the shots and he joined the project without any intent to kill. Therefore, any objection to the hearsay character of Joseph’s testimony was cured by Brumfield’s later recitations. State v. Luden, 323 So.2d 784 (La.1975); State v. Brown, 288 So.2d 339 (La. 1974); State v. Maiden, 258 La. 417, 246 So.2d 810 (1971).

A mere error committed during the progress of a prosecution does not warrant the setting aside of a verdict unless it is of such grave import as to give rise to the belief that if it had not been for such error, the verdict would have been different. State v. Bryant, 209 La. 918, 25 So.2d 814 (1946). The error must be substantial. State v. Lane, 292 So.2d 711 (La.1974); State v. Paciera, 290 So.2d 681 (La.1974); State v. Michel, 225 La. 1040, 74 So.2d 207 (1954); State v. Scott, 221 La. 643, 60 So. 2d 71 (1952).

In view of Brumfield’s testimony, the ruling of the trial judge permitting Joseph to testify to what Shepherd told him caused no prejudice to Brumfield, for he later testified to the same effect.

This bill has no merit.

Assignment No. 9

Prejudicial error is claimed by the defense to have occurred when the State’s attorney in closing argument stated :

“. . . however, 444 of our Code states that if a statute has made it a crime to do a particular act, no further proof of intent is required than that the accused voluntarily did the act . . . .”

The full context of the foregoing statement, relied upon by the defendant, follows a definition of second degree murder in the argument in these words:

“. . . the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm. That is the charge. Included in that charge, by way, or rather, before we get to that, the intent that has been talked about is a specific intent and the law provides for proof of intent in statutory crimes; however, 444 of our Code states that if a statute has made it a crime to do a particular act, no further proof of intent is required than that the accused voluntarily did the act, and any evidence that he did not know such act to be forbidden by law is inadmissible.”

At this time defense counsel objected that that portion of the prosecution’s statement first quoted, upon which he claims error, was not a proper statement of the law as it relates to the facts of the case on trial. Whereupon, the trial judge admonished the jury

. . . that during the final argument the attorneys are permitted not only to argue the facts to you, they are free to argue to you their interpretation of the law in regard to this case. Keep in mind that it is the sole prerogative of the jury to determine the facts and the law but the jury is duty bound to follow the law as given to it by the Court at the conclusion of the argument.”

The remainder of the State’s argument has not been transcribed, and we are unable to say what effect the complete argument may have had upon the statement objected to. Nevertheless, it is worthwhile to mention that a number of offenses are pertinent to this prosecution, offenses which do not require specific intent. For instance, manslaughter is a responsive verdict to the charge of second degree murder. Manslaughter is a homicide which may be committed without any intent to cause death or great bodily harm, when the offender is engaged in the perpetration of any felony not enumerated in Articles 30 or 30.1, or of any intentional misdemeanor directly affecting the person. La.R.S. 14:31(2)(a). Some of the nonenumerated felonies and misdemeanors affecting the person which constitute elements of such a manslaughter conviction are aggravated criminal damage to property, La.R.S. 14:55; illegal use of weapons, La.R.S. 14:94; aggravated assault, La.R.S. 14:36; and aggravated battery, La.R.S. 14:34. These crimes, which may have the effect of reducing a charge of second degree murder to manslaughter, do not require specific intent; they are committed upon proof that the accused voluntarily did the act. With these authorities in mind it cannot be said that Section 444 of Title IS of the Revised Statutes is entirely irrelevant to the case at bar. The article is indeed relevant to whether a verdict of guilty as charged or the responsive verdict of manslaughter was to be rendered.

While the prosecutor’s statement taken alone may arguably present an issue if the permissible responsive verdict is not considered, this alone does not amount to reversible error. It should be remembered that in quoting Section 444 in the context of this case the prosecutor was merely stating his professional opinion of the applicable law, a permissible argument under trial procedure. La.Code Crim.Pro. art. 774. Prosecutors cannot always be expected to state the law with the precision of a judge. State v. Viator, 246 La. 809, 167 So.2d 374 (1964); State v. Stickney, 167 La. 1050, 120 So. 853 (1929); State v. Farris, 146 La. 523, 83 So. 791 (1920); State v. Bacon, 138 La. 654, 70 So. 572 (1916); State v. Chevis, 48 La.Ann. 575, 19 So. 557 (1896).

Counsel also argues that the State unfairly prejudiced the defendant with this statement in closing argument to the jury: “We’re doing our job. And we’re going to continue to do our job. And we’re going to stop this kind of stuff. We’re going to make sure of that . . . .”

As early as 1922 this Court declared in State v. Sisemore, 151 La. 675, 92 So. 274, that it was proper for an Assistant District Attorney to argue that the jury should inflict extreme penalties to halt a rampant crime wave. This precedent was followed in State v. Brown, 288 So.2d 339 (La. 1974), and in State v. Peters, 302 So.2d 888 (La.1974), where this Court again held that it was proper argument to refer to the seriousness of drug addiction and the need to suppress the evil in the community. The statement complained of in the case at bar is within the contemplation of these holdings and no error is attributable to its pronouncement.

This assignment is without merit.

Assignment No. 10

After charging the jury as to the nature of its function generally, as required by law, the trial judge then charged:

“Article 23 of the Louisiana Criminal Code reads as follows:
The parties to crimes are classified as follows:
(1) Principals; and
(2) Accessories after the fact.
In this case, we are concerned only with ‘principals,’ which is defined in Article 24 of the Criminal Code:
All persons concerned in the commission of a crime whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.
“The accused in this case is charged with the crime of second degree murder; however, it is necessary that I quote for you the General Article on homicide so that you will have a complete and proper understanding of the crime charged. Article 29 of the Criminal Code treats of homicide, as follows:
Homicide is the killing of a human being by the act, procurement or culpable omission of another. Criminal homicide is of four grades:
(1) First degree murder
(2) Second degree murder
(3) Manslaughter
(4) Negligent homicide
Article 30.1 of our Criminal Code reads:
Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or inflict great bodily harm; or (2) When the offender is engaged in the perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated rape, armed robbery, or simple robbery, even though he has no intent to kill.

“We are concerned in this case with the first part of this Article, ‘When the offender has a specific intent to kill or to inflict great bodily harm.’ You will note that under second degree murder, it speaks of ‘intent’ as being one of the elements of the crime. Our law, under Article 10 of the Criminal Code, defines ‘intent.’ It says: ‘Criminal intent may be specific or general.’ And remember that in regard to the charge of second degree murder we are concerned only with specific criminal intent, ‘ . when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.’

“Title 15, Section 445, says that, ‘. . . though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.’ Since in this case the State is relying upon the specific intent to kill provision of Article 30.1, I will at this time instruct you as to the law with reference to specific intent to kill or specific intent to inflict great bodily harm, as follows:

In order to show intent, evidence is admissible of similar acts independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.
“The law knows no specific time within which an intent to kill or an intent to inflict great bodily harm must be formed so as to make a homicide murder. If the will of the person accompanies the act a moment before the act which causes the death, it will be as completely sufficient to make the offense murder as if it were a day or any other time. It is sufficient if there was a design or determination to inflict great bodily harm formed in the mind of the slayer at the moment before or at the same time of the fatal blow or shot.
“If an assault is made upon a person, not with the intent of killing him but with the specific intent of inflicting great bodily harm upon him and death is caused by such assault, then the crime is second degree murder.”

The defense asserts that the trial judge committed serious error because, although he defined specific intent, the definition was so separated from his other references to second degree murder that confusion in the minds of the jury was the consequence. Aside from the quoted charge, during his instructions to the jury, the trial judge made other efforts, as the result of defense objections, to impress upon the jury the need to find specific intent in order to convict for second degree murder.

A reading of the entire charge, without isolating specific statements as defense counsel urges, satisfies the Court that the charge was valid, appropriate and correct.

There is no merit in this bill.

Assignment of error number ten is based upon the failure of the trial judge to assign reasons for his denial of the defense motion for a new trial. In addition to reasserting the contentions in the assignments of error already considered in this opinion, the motion alleges that the testimony and evidence fail to prove the crime of second degree murder because there is no evidence of specific intent. In addition to the facts already mentioned in the opinion, study of the entire record satisfies the Court that there was some evidence of specific intent which could support the jury verdict.

For the reasons assigned, the conviction and sentence are affirmed.

DIXON and CALOGERO, JJ., concur.

ON APPLICATION FOR REHEARING

PER CURIAM.

In his application for a rehearing defendant contends that our original opinion failed to give adequate reasons for finding no merit in Assignment of Error No. 8. He is correct. Instead of finding that the admission of the hearsay statement was harmless error we should have held that it was properly admitted as a declaration of a co-conspirator made prior to the termination of the conspiracy. La.R.S. 15:455 reads as follows:

“Each coconspirator is deemed to assent to or to commend whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this effect a prima facie case of conspiracy must have been established.”

With regard to the requirement that the statement be made “in furtherance of the common enterprise,” it is generally held that declarations which are so intimately related in time and occasion to the commission of the crime as to constitute a part of one occurrence, are admissible as part of the res gestae of the crime charged. Annotation of Cases, 4 A.L.R.3d 671, 737; McCormick on Evidence, § 267 (2d Ed.1972); Cf. State v. Hodgeson, 305 So.2d 421 (La. 1975); State v. McKee, 193 La. 39, 190 So. 325 (1939).

A prima facie case of conspiracy between the defendant Brumfield, Larry Butler, and Ellison Shepard was established by the State’s evidence. In the early morning hours of June 9, 1974, these three individuals first visited the picket line at the Schuylkill plant, then drove to the victim’s house where the shooting occurred. After the commission of the crime they immediately returned to the Schuylkill plant, which was located in the same general vicinity, and talked with James Joseph. At this time, in defendant’s presence, Shepard stated that they had just come from shooting up the victim’s house, and Joseph noticed a gun he described as an “automatic” lying on the seat of their car.

James Joseph was a friend of the defendant and both were participants in the strike at the Schuylkill plant. There was evidence that the shooting arose out of activities relating to the strike. Considering the fact that Shepard’s remarks were made to him immediately after the accomplishment of the crime while the three coconspirators were still together in the automobile used in the crime, we hold that his statement was properly admitted into evidence against the defendant.

Accordingly, the result reached in our original opinion is correct, and the defendant’s application for rehearing is denied.

      . La.R.S. 15:444 provides:
      “If a statute has made it a crime to do a particular act, no further proof of intent is required than that accused voluntarily did the act; and any evidence that he did not know such act to be forbidden by law is inadmissible.”


text:
    STATE of Louisiana v. Joseph Clayton SEPULVADO.
    No. 57832.
    Supreme Court of Louisiana.
    April 9, 1976.
   In re: Joseph Clayton Sepulvado applying for Writs of Certiorari, Mandamus, Prohibition and Review.

Writ denied: In view of our understanding, based upon the trial judge’s response to the application filed in this court, that he has ordered all subpoenas requested by the defense counsel, and of our further understanding that a hearing on the motion to suppress will be held prior to trial, we consider this assignment of error is moot. The other assigned errors are reviewable in appeal in the event of conviction.

SUMMERS, J., is of the opinion the ap- . plication makes no showing to warrant this Court’s review and setting aside of the trial judge’s ruling. It should be denied without qualification.