author: TYSON, Judge.

text:
    Holly GOLDEN, alias v. STATE.
    3 Div. 839.
    Court of Criminal Appeals of Alabama.
    May 30, 1978.
    As Corrected On Denial of Rehearing June 30, 1978.
    Martin K. Leppo and Anthony M. Traini, Boston, Mass., for appellant.
    William J. Baxley, Atty. Gen. and Samuel J. Clenney, III, and J. Bernard Brannan, Jr., Asst. Attys. Gen., Montgomery, for ap-pellee.
   TYSON, Judge.

The indictment charged Holly Golden, alias Holly Goeden, with the possession of heroin. The case was tried before a judge, without a jury, and he found the appellant guilty as charged and set punishment at fifteen years imprisonment.

David Green of the Montgomery Police Department testified that on May 17, 1977, he received a telephone call from a confidential informant who told him that a black male was dealing in heroin at the Travel-odge Motel on Federal Drive in Montgomery, Alabama. On May 18, 1977, Detective Green received another telephone call from the same confidential informer. He told Detective Green that the black male’s name was Wayne and that he had personally seen a quantity of heroin in Wayne’s possession. Also, the informer told him that Wayne was driving a silver Thunderbird .with a Georgia license plate, LCC-744. Detective Green related that the informer also told him that there was a white female, named Anna, staying with Wayne at the motel. The informer also brought Detective Green some heroin which he had purchased from Wayne the previous day (May 17, 1977). Detective Green stated that he conducted one test on the substance which the informer brought him and found it to contain heroin. Detective Green testified that around 10:00 a. m., on May 18, 1977, Captain Hudson came to his office and told him that he also had received information from a confidential informer which matched the information which he (Green) had received. According to Detective Green, Captain Hudson told him that he was also told by his informer that most of the heroin was still in the motel room with a white female (R. pp. 30-31). Detective Green then called the Travelodge Motel and spoke with one Mr. Weldon Doe, who identified himself as the motel manager. Mr. Doe confirmed that he had an Anna Conte (white female) and a Wayne Blaine (black male) registered at the motel; that Anna Conte had listed the tag number of her vehicle on the registration card as LCC-744; and that the tag registered was displayed on a silver Thunderbird. Detective Green stated that he then assisted Detective Nichols in placing a transmitter on Detective Farrior. Then he and Detective Nichols drove out to the Tra-velodge Motel with a receiver so they could monitor Detective Farrior’s activities. He testified that he and Detective Nichols •parked their unmarked car on the northern side of the motel where they could observe persons entering or leaving room 105, which was the room number he had received from Mr. Doe as Anna Conte’s room. He stated that Detective Farrior then drove up in his private unmarked car and parked in front of room 105. Detective Farrior then got out of his car and knocked on the door of room 105. According to Detective Green, the transmitter on Detective Farrior was apparently not functioning very well and therefore the transmission being received in his car was somewhat broken. He stated that he observed Detective Farrior conversing with someone in the room. Detective Farrior then went back to his car where he was joined by a white female some thirty seconds later.

Detectives Green and Nichols, in an effort to pick up the radio transmission from Farrior, then moved their car around to the other side of the motel. Upon relocating their car, Detective Green testified, he was able to pick up part of the conversation between Detective Farrior and the white female. The conversation, Green stated, was mostly the white female asking Detective Farrior how he knew Wayne. While he and Detective Nichols were monitoring the conversation, according to Green, a white female in her late thirties came through the breezeway and walked directly in front of their car. The white female then looked directly at the two detectives, turned around, held a brief conversation with a maid, and proceeded to walk back in the direction from which she came. Although Detectives Green and Nichols were in an unmarked car, they both felt that the white female knew they were policemen, since their car had a police radio antenna mounted on the back, blue lights and a siren horn mounted behind the front grill, and the receiver antenna mounted by a magnet on the top of the car with a wire running from it through the driver’s window. Detective Green identified the appellant as the white female who walked in front of their car. During this time, Detective Farrior was still conversing with another white female in his private car.

Detectives Green and Nichols then drove their car around the corner of the motel where Detective Green got out of the car and followed the appellant back to room 105. Detective Green testified that the appellant knocked on the room door and was let in, after which the door was slammed shut. Detective Green stated he knocked on the door several times and announced that he was a police officer. After hearing water running and a toilet flush in room 105, Detectives Green and Nichols attempted to knock down the door, but were unable to do so. Both stated that they noticed the room window was slightly open, so they raised it and crawled into the motel room. Detective Green entered the bathroom area of the room and found the appellant, along with another white female, later identified as Anna Consalvo. The two females were emptying bags of heroin in the toilet and the bathtub. Both were then placed under arrest (R. pp. 45-47).

On cross-examination, Detective Green testified that his confidential informer had never given him any information in the past that had lead to any arrests prior to May 18,1977. Also, according to Green, the informer never stated to him that he had been in; or seen heroin in, any motel room.

Montgomery Police Officer James E. Nichols’ testimony was substantially the same as that of Detective Green’s with a few additions. Detective Nichols stated that he heard part of the conversation between Detective Farrior (who was wired with a transmitter) and the first white female while they were in Farrior’s car. According to Detective Nichols, Farrior told the white female that he had two hundred dollars with him and that he wanted to buy some heroin. The white female told Farri- or that all she had were samples which she was giving away (R. p. 118).

Weldon Doe, Manager of the Travelodge Motel, testified that on May 18, 1977, he had a telephone conversation with Detective Green concerning whether or not he had anyone registered under the names of Wayne and/or Anna. Mr. Doe informed Detective Green that there was an Anna Corite (white female) in room 105, and a Wayne Blaine (black male) in room 306. He also told Detective Green that Anna Conte registered a Thunderbird, license number LCC-744, on her card and had paid him for rooms 105, 108, 204, and 306.

Montgomery Police Officer Michael M. Farrior’s testimony was substantially the same as that of Detectives Green and Nichols. Detective Farrior stated that, while he was talking with the first white female in his car, the defendant came out of room 105, walked around the corner, came back, and went back into the room. Detective Farrior stated that Detective Green followed her back to room 105 and gained entry through the partially open window after unsuccessfully trying to get in through the door.

Alan Adair, criminologist with the Department of Toxicology, testified that on May 18, 1977, he went to room 105 of the Travelodge Motel in Montgomery, Alabama. Therein he found a white powdery substance, later determined to contain heroin (valued between $175,000 and $250,000), located in a white plastic trash can, next to the toilet on the floor, in the toilet bowl, in the drain pipe underneath the toilet bowl, on the bathtub faucet, in the crevices between the ceramic tile, and some particles floating in the air.

I

The sole issue presented by the record of this appeal is whether or not the seizure of the heroin in question was the product of an unlawful search inasmuch as there was no search warrant.

In Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973), Mr. Justice Bloodworth enumerates the exceptions to the Fourth Amendment’s warrant requirement in this language:

“(1) In ‘plain view,’ see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
“(2) With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
“(3) As ‘incident to a lawful arrest,’ see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
“(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
“(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and,
“(6) In ‘stop and frisk’ situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).”

The search in this case falls within the fifth exception to the warrant requirement outlined above for the reasons as set out below.

PROBABLE CAUSE

The unnamed informer, on May 18, 1977, told Detective Green that a black male by the name of Wayne and a white female by the name of Anna were staying at the Travelodge Motel on Federal Drive in Montgomery, Alabama; that they were driving a silver Thunderbird, license plate No. LCC-744; that he had seen heroin on the person of Wayne, and that he had purchased some of the heroin from him. The informer turned the heroin over to Detective Green, who ran several tests on the substance and found it to contain heroin. Detective Holland stated that he had obtained the same information from another informer and that this informer also told him that there was a lot more heroin which the white female, Anna, had in her motel room.

On May 18, 1977, while seated in his unmarked car at the motel, Detective Farri- or discussed a heroin purchase with a white female, named Anna Conte, who was occupying room 105 at the motel and which was paid for by her. Ms. Conte informed Detective Farrior that all she had at the time were samples of heroin which she was giving away. While discussing the transaction with Ms. Conte, Detective Farrior observed the appellant leave room 105 and walk toward the vicinity of Detectives Nichols’ and Green’s automobile. Detective Nichols heard the conversation between Farrior and Ms. Conte concerning the heroin transaction and also saw the appellant leave the vicinity of room 105, approach the officers’ vehicle and walk back to this room where she gained entry after knocking several times.

Detective Green testified that, after he followed the appellant back to room 105, he heard a toilet flushing and water running in the room while he, Green, was standing on the walkway outside room 105.

Detective Green stated he had learned from experience that many drug dealers dispose of narcotics by flushing them down the toilet and emptying them in the lavatory. After Detective Green failed to gain entrance to the room by knocking, he entered through a partially open window. Once inside the room, Detective Green found the appellant and one other white female emptying a white powdery substance in the toilet and bathtub.

In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), the Supreme Court of the United States said that:

“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
“ ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ McCarthy v. De Armit, 99 Pa. 63, 69, quoted with approval in the Carroll opinion. [Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790] 267 U.S. at page 161, 45 S.Ct. at page 288, 69 L.Ed. 543, 39 A.L.R. 790. And this ‘means less than evidence which would justify condemnation’ or conviction . . ..”

Clearly, the officers in this case had probable cause to believe that heroin was in room 105 of the Travelodge Motel, Montgomery, on the date in question, based upon the facts within their knowledge, as outlined above. Nor can it be said that the informer in this case did not meet the often referred to veracity and basis of knowledge test as laid out by the Supreme Court of the United States in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The informer’s veracity was established by his declaration against interest (purchasing the heroin and turning the substance over to the police). As to the basis of the informer’s knowledge, the above facts demonstrated that the informer drew his conclusion of criminality in a reliable manner. Also, the Alabama courts have found that, even where less detailed information from a reliable source has been received, it may also be used as grounds for affirming probable cause where the key elements of the tip are verified or corroborated. Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971); State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970). In the instant case, Detective Green had the information he had obtained from the informer verified by Mr. Doe, the manager of the Travelodge Motel, and later by Detective Nichols, who personally overheard the negotiation of a Heroin transaction between Detective Far-rior and Ms. Conte just before the search.”

EXIGENT CIRCUMSTANCES

The officer in the present case was confronted with an emergency situation. The delay necessary to obtain a search warrant threatened the destruction of evidence. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Therefore, probable cause, coupled with exigent circumstances (the destruction of evidence), justified the warrantless search of appellant’s motel room under the fifth exception to warrantless searches listed in Daniels, supra.

We have carefully examined this record and find no error. The judgment is

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Holly GOLDEN, a/k/a Holly Goeden.
    77-754.
    Supreme Court of Alabama.
    Sept. 15, 1978.
   FAULKNER, Justice.

Writ denied.

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


author: BOWEN, Judge.

text:
    James Allen O’BERRY v. STATE.
    1 Div. 911.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.

      Theodore L. Hall, Mobile, for appellant.
    William J. Baxley¡ Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from a conviction of assault with intent to ravish for which the appellant was sentenced to twelve years’ imprisonment.

The appellant urges this court to reverse his conviction for two reasons: (1) Because the trial court refused to declare a mistrial after discovering that the docket sheet and court file, which were not in evidence, had been with the jury during its deliberations and (2) because of the admission into evidence of a subsequent criminal offense committed by the appellant.

I

There is no dispute over the fact that the docket sheet and the court file were in the jury room during the deliberation of the jury. The- court file contained various documents relating to the case including pretrial motions, a copy of a newspaper account of the crime, and a report of pre-sentence investigation. The appellant does not claim that the material was taken to the jury room through any improper act on the part of the representatives of the state. There is no evidence to indicate that either party was responsible for or had any knowledge of this matter before it was disclosed to the trial judge.

It is also undisputed that no juror inspected or read any of this material until after the jury had reached its last unanimous verdict and the voting had been concluded. The record contains evidence to support the statement of appellant’s counsel during oral argument before this court that the court file was examined only while the jury was waiting to be brought into the courtroom to announce its verdict.

From the record it appears that the trial judge first learned of the presence of the extrajudicial material before the jury when defense counsel requested a mistrial “on the grounds that the court file was taken in the jury room for deliberation”. The judge promptly determined which jurors had examined the court file and when they had so done. The record fully and fairly supports the finding made by the trial judge that “the jury had already voted him guilty in this matter; that the jury was not influenced by anything in here including the docket sheet”. Under Title 14, Section 38, Code of Alabama 1940, now Section 13-1-46, Code, 1975, defining assaults or attempted felonies, the jury’s function only extends to determining guilt or innocence for the offense of assault with intent to ravish. Punishment is fixed and imposed by the trial judge. Ex parte Morrissette, 200 Ala. 488, 76 So. 430 (1917); Ex parte Richardson, 42 Ala.App. 626, 174 So.2d 693 (1964).

Generally in a criminal case the jury should not consider evidence outside that produced at trial, or take out and consult records, documents, or other material not submitted as evidence on the trial and which may influence their verdict. Leith v. State, 206 Ala. 439, 90 So. 687 (1921). Each case of alleged improper conduct of jurors during trial and deliberation must be judged by its peculiar facts. Bell v. State, 227 Ala. 254, 149 So. 687 (1953). The test is not whether the conduct did influence the jury but whether it might have. Allred v. State, 55 Ala.App. 74, 313 So.2d 195, cert. denied, 294 Ala. 751, 313 So.2d 203, cert. denied, 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86 (1975); Gilliland v. State, 266 Ala. 24, 93 So.2d 745 (1957).

The appellant argues that since the extrajudicial documents might have influenced the jury the trial court should have granted his request for mistrial. He contends that a juror could have changed his vote had it not been for the allegedly prejudicial documents which had the effect of cementing the juror’s position. Under the facts of this case such argument rises to a level of impermissible speculation and conjecture. The undisputed facts are that the deliberations had been completed and a unanimous verdict reached before any juror examined the documents. This is not the case where a juror testifies that extrajudicial evidence examined during deliberation and before a verdict was reached did not influence that verdict. Though the influence was improper the jurors were not aware of its existence until after all voting had been completed, a unanimous verdict reached, and they were waiting to return to the courtroom to announce their decision. Under these circumstances the denial of the request for mistrial was proper.

II

It is also asserted that the trial court erred to a reversal by allowing the admission of testimony concerning an unrelated subsequent offense committed by the appellant.

The evidence presented by the state in its case in chief revealed that on the night of November 12, 1977, Mrs. Rachael Rhodes Kulakowski was returning home on Highway 1-65 in Mobile County, Alabama, when the appellant pulled up beside her, flashed a police badge, and motioned for her to stop. The appellant identified himself as a police cadet, told Mrs. Kulakowski that her automobile was on fire and flames were shooting out of it and offered to take her to a telephone. After she was in the appellant’s vehicle, the appellant told her that he first had to meet another police officer and check in with him. The appellant then drove to an old asphalt plant, stopped his car and announced that he was a rapist. He told Mrs. Kulakowski to take off her clothes and he would not hurt her. In feigned compliance with his request, Mrs. Kulakowski bent down in the seat like she was going to take off her shoes and retrieved a .32 caliber Browning automatic pistol from her purse. A struggle ensued when the appellant attempted to take the pistol away from her. The weapon discharged sending a bullet through the front windshield.

During the struggle, Mrs. Kulakowski told the appellant that if he touched her, her father and her fiance would come and “get” him. However the appellant kept telling her that “it wouldn’t hurt (her) that it wouldn’t do any damage to (her)”. Finally the appellant released his grip on the pistol and returned Mrs. Kulakowski to her automobile begging her not to say anything about the matter to anyone.

The appellant’s defense was that he was guilty of no wrongdoing and never drove Mrs. Kulakowski anywhere. He maintained that she waved him down and requested that he drive her to a telephone because she was having car trouble. When he told her that it was dangerous for a woman to get into a stranger’s car at night, she apparently mistook his intentions and pulled a pistol on him. They struggled and a round was fired. Mrs. Kulakowski then got out of the appellant’s car and drove off.

In rebuttal and for the limited purpose of establishing intent the state called Mrs. Pema Hamilton. Mrs. Hamilton testified that on March 10,1977, a man she identified as the appellant stopped her while she was driving on 1-65 in Mobile County. He told her that her car was smoking and fire was coming from it, that he was a policeman and that he would take her home. The appellant drove Mrs. Hamilton to a secluded spot where he told her to take off her clothes because he wanted to have sex with her. When she refused the appellant insisted upon his demands and threatened to kill her. After Mrs. Hamilton continued her resistance, the appellant demanded her money and took three dollars. The appellant was not indicted for any assault against Mrs. Hamilton.

On three separate occasions, including his oral charge, the trial judge instructed the jury that Mrs. Hamilton’s testimony was admitted for the sole and limited purpose of showing whether or not there was an intent on the part of the appellant to commit the offense of assault with intent to rape Mrs. Kulakowski.

The appellant contends that the admission of Mrs. Hamilton’s testimony of a similar criminal act committed four months after the charged offense was highly prejudicial and shed no light whatsoever on the supposed intent of the appellant in actions toward Mrs. Kulakowski.

The legal principles that control and govern this case are set forth in McKenzie v. State, 250 Ala. 178, 33 So.2d 488 (1947), holding that in a prosecution for assault with intent to ravish, the testimony of a woman other than the prosecutrix as to the defendant’s alleged attempt to rape her approximately two months after the offense with which he was charged was properly admitted as relevant to the inquiry as to. the defendant’s intent in assaulting the prosecutrix. McKenzie is strikingly similar to the instant ease in that in McKenzie both the prosecutrix and the subsequent victim voluntarily accepted a ride in the defendant’s automobile, were carried to a by-road several miles outside the city under false pretenses and were then subjected to improper advances from the defendant who threatened each woman with bodily harm unless they acceded to his demands to have sexual intercourse. After dissuasion on the part of each victim, the defendant abandoned his asserted aim and carried each woman back to the city.

The Alabama Supreme Court noted that the evidence of an alleged attempt to rape the subsequent victim was admissible “as tending toward the criminal intent and negativing the innocent intent (or any other, such as a simple assault) as regards the act committed on” the prosecutrix.

“The single act perpetrated on (the prose-cutrix) might have been plausibly claimed to have been done free of intent to ravish, and it was so claimed by the defendant, yet evidence of the recent other alleged attempt to ravish (the second subsequent victim), executed in similar fashion and following a like pattern, tended to eliminate the probability (‘chance’ as Wigmore says) that the act on the prose-cutrix was innocent of such intent and therefore was relevant evidence on this issue.” McKenzie, at 250 Ala. 180, 33 So.2d 490.

See also Wilkins v. State, 29 Ala.App. 349, 197 So. 75, cert. denied, 240 Ala. 52, 197 So. 81 (1940).

The position taken by the appellant on this appeal, that the subsequent occurrence between the appellant and Mrs. Hamilton sheds no light on the conduct of the appellant towards Mrs. Kulakowski, was advanced by Mr. Justice Brown in his dissent in McKenzie, at 250 Ala. 180, 33 So.2d 488. His argument was not accepted then and we respectfully reject it now. The trial court committed no error in allowing evidence of the subsequent criminal transaction. We decline further comment in view of the similarity of the facts of this case to those of McKenzie and the most comprehensive manner in which the respected Mr. Justice Simpson set forth the controlling principles in that decision.

Having searched the record for error and finding none, we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte James Allen O’BERRY.
    77-710.
    Supreme Court of Alabama.
    Sept. 15, 1978.
   TORBERT, Chief Justice.

WRIT DENIED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Ellis SMITH, Jr. v. STATE.
    6 Div. 759.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.
    Arthur Parker, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery and James L. O’Kelley, Asst. Atty. Gen., Birmingham, for appellee.
   HARRIS, Presiding Judge.

This is an extradition case. Appellant, in custody pursuant to an extradition warrant issued by the Governor of this State ordering his return to the State of California, sought his release by habeas corpus. After a hearing he was remanded to custody for extradition.

The rendition warrant recites:

“Whereas, His Excellency, Mervyn M. Dymally, Acting Governor of the State of California, by requisition dated the 24th of October, 1977, has demanded of Me, as Governor of the State of Alabama, the surrender of Ellis Smith, Jr. who, it appears, is charged by Information, Bench Warrant, Affidavits, Certification, Exemplification, in the County of Los Angeles in said State, with the crime of Attempted Robbery & Assault with a Deadly Weapon (a duly certified copy of which Information, Bench Warrant, Affidavits, Certification, Exemplification, accompanies said requisition) and it appearing that said Ellis Smith, Jr. has fled from justice in said State and taken refuge in the State of Alabama.”

The requisition, the rendition warrant and the supporting papers were introduced into evidence by the State.

The requisition from the Acting Governor of the State of California reads, in pertinent part, as follows:

“To His Excellency the Governor of the State of Alabama:
“Whereas, it appears by the annexed application for requisition and copies of Information and supporting papers which I certify are authentic and duly authenticated in accordance with the laws of the State of California, that under the laws of this State Ellis Smith, Jr. stands charged with the crime of attempted robbery and assault with a deadly weapon, committed in the County of Los Angeles, in this State, and it has been represented and is satisfactorily shown to me that the accused was present in this State at the time of the commission of said crime and thereafter fled from the justice of this State, and has taken refuge and is now to be found in the State of Alabama;
“Now, therefore, pursuant to the provisions of the Constitution and laws of the United States, and the laws of the State of Alabama and the laws of the State of California (pursuant to the Uniform Criminal Extradition Act) in such case made and provided, I do hereby respectfully demand that the said Ellis Smith, Jr. fugitive from justice, be arrested and secured and delivered to Wiley Newman and Carlos Bowers who is hereby authorized to receive, convey and transport him to this State, here to be dealt with according to law.”

The requisition is signed by Honorable Mervyn M. Dymally, Acting Governor of the State of California, attested by the Secretary of State, and the Great Seal of that State is affixed thereto.

Upon an examination of the allied papers attached to the requisition, all duly authenticated by the Acting Governor as being in accordance with the laws of the State of California, we find the following documents:

1. An Executive Agreement duly signed by the Acting Governor of California and the Governor of Alabama under the Great Seals of California and Alabama and attested by the Secretary of State of California and the Secretary of State of Alabama.
2. A Certification of the Secretary of State of the State of California, under the Great Seal of that State, that John J. Corcoran, whose name has been subscribed to the Certificate among the papers annexed to this requisition, is and was at the time of such subscription the duly elected, qualified and acting County Clerk of the California County of Los Angeles and ex officio Clerk of the Superior Court of the State of California, in and for said County;
That Paul G. Breckenridge, Jr., whose name has likewise been subscribed to said Certificate, is and was at the time of such subscription a duly elected, qualified and Acting Judge of said Superior Court.
3. An Application for Requisition duly signed by S. Mayerson, Deputy District Attorney of the County of Los Angeles, State of California, and sworn to before Barbara J. Moore, Deputy County Clerk, to which Requisition was attached copies of the Penal Code of the State of California for the crimes charged against the fugitive, and a photograph of the fugitive.
4. Affidavit of Carol L. Willis, Deputy Sheriff of the County of Los Angeles, California, sworn to before Judge Callis-ter, one of the judges of the Superior Court of the County of Los Angeles, California, under the official seal of that Court.
5. Affidavit of C. J. O’Connell, a Detective for the Police Department of the City of Inglewood of the County of Los Angeles, California, setting forth the charges pending against the fugitive, sworn to before Paul G. Breckenridge, Jr., Judge of the Superior Court of the State of California for the County of Los Angeles, under the official Seal of that Court.
6. Copy of an Information filed in the Superior Court of California for the County of Los Angeles charging as follows:
“Count I: The said Ronnell Deshon Luck-ey and Ellis Smith, Jr. are accused by the District Attorney of and for the County of Los Angeles, State of California, by this information, of the crime of attempted robbery in violation of Section 664/211, Penal Code of California, a felony, committed as follows: that the said Ronnell Deshon Luckey and Ellis Smith, Jr. on or about the 12th day of August, 1974, at and in the County of Los Ange-les, State of California, did willfully, unlawfully, feloniously and by means of force and fear attempt to take personal property from the person, possession and immediate presence of Dan Tilford. That at the time of the commission of the above offense said defendants, Ronnell Deshon Luckey and Ellis Smith, Jr. used a firearm.”
“Count II: For a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charge set forth in Count I hereof, the said Ronnell Deshon Luckey and Ellis Smith, Jr. are accused by the District Attorney of and for the County of Los Angeles, State of California, by this information, of the crime of Assault with a Deadly Weapon, in violation of Section 245(a), Penal Code of California, a felony, committed as follows: That the said Ron-nell Deshon Luckey and Ellis Smith, Jr. on or about the 12th day of August, 1974, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously commit an assault with a deadly weapon upon Dan Tilford, a human being.
“That at the time of the commission of the offense described herein, the defendant Ronnell Deshon Luckey used a firearm.
“That at the time of the commission of the offense described herein, said defendant Ellis Smith, Jr. used a firearm.”

The above document is printed, in part, and the name Joseph P. Busch, District Attorney for the County of Los Angeles, State of California, is printed thereon, and it purports to be signed by James E. Zeig-ler, Deputy. The words “James E.” appear in handwriting and below the line appears the typewritten name of “James E. Zeig-ler,” followed by the printed word, “Deputy.”

In the lower left side appears the following: “The document to which this certificate is attached is a full true and correct copy of the original on file and of record in my office. Attest 9/14/1977.” Then there appears the stamped name of “John J. Cor-coran, County Clerk and Clerk of the Superior Court of the State of California in and by the County of Los Angeles, by Connie S. Guerrero. Deputy.”

8.A printed document was issued from the Superior Court of California, County of Los Angeles, with the following recitation, “Bench warrant ordered issued. Bail set at $50,000.00.” At the bottom of this document appears the following certificate:
‘The document to which certificate is attached is a full, true and correct copy of the original on file and of record in my office.
Attest 9/14/1977
John J. Corcoran, County Clerk and Clerk of the Superior Court of the State of California in and for the County of Los Angeles
By Connie S. Guerrero, Deputy,” and the Seal of the Clerk’s Office is affixed thereto.’
9. The next document is a “Bench Warrant” issued by the Superior Court of California for the County of Los Angeles, under the seal of that Court, for the arrest of Ellis Smith, Jr. charging him with violating Sections 664/211 and 245 A [245(a)], and for failing to appear for arraignment and plea. Bail was set at $50,000.00 and it is dated September 5, 1974, and signed by Judge Newell Barrett. There is a notation on the side of this document which states, ‘This is an escape from Inglewood Mun. Count.’ There is a certification as follows: ‘The document to which this certificate is attached is a full, true and correct copy of the original on file and of record in my office.
Attest 9/14/1977”, and bears the stamped name of John J. Corcoran, County Clerk and Clerk of the Superior Court of the State of California.
By Connie S. Guerrero, Deputy.
10. We finally have the following certification:
“CERTIFICATION — SUPERIOR COURT
“STATE OF CALIFORNIA ) ss
COUNTY OF LOS ANGELES )
“I, Paul G. Breckenridge. Jr., the duly qualified and acting Judge of the Superior Court of the State of California for the County of Los Angeles, do hereby certify that the annexed and foregoing copy of the Information is a full, true, and correct copy of the original Information duly and regularly filed in the said Superior Court on the 4th day of February. 1977; I further certify that the annexed and foregoing copy of the Bench Warrant is a full, true, and correct copy of the original Bench Warrant duly and regularly issued out of the said Superior Court on the 5th day of September 1974; that the said Information/Judgement/Certificate of Magistrate and Bench Warrant are now on file in the said Superior Court.
“IN WITNESS WHEREOF, I have hereunto set my hand at Los Angeles. County of Los Angeles, State of California, this 22nd day of September 1977.
/s/ Paul G. Breckenridge. Jr.
Judge of the Superior Court of the State of California for the County of Los Angeles
“STATE OF CALIFORNIA ) ss
COUNTY OF LOS ANGELES )
“I, John J. Corcoran, County Clerk of the County of Los Angeles, State of California, and ex officio clerk of the Superior Court of said County and State, do hereby certify that John K. Van De Kamp is the District Attorney of the aforementioned County and State; that S. Maverson and James E. Zeigler are the Deputy District Attorney/s of the said County and State; that Barbara J. Moore & Connie S. Guerrero are the Deputy County Clerk/s of the said County and State; that Paul G. Breckenridge. Jr. and E. Talbot Callister are the Judges of the Superior Court of the said County and State (which is a court of record having a seal), and full faith and credit are due to his/their official acts as such; that each of the above named officers was, at the time of signing the annexed instruments, which I have examined, such officer, duly elected or appointed, qualified and acting, and duly authorized by law to execute the same. And I further certify that I am well acquainted with the handwriting of each of the above named officers, and do verily believe the signatures affixed to said instruments are genuine.
“IN WITNESS WHEREOF, I have hereunto set my hand at Los Angeles. County of Los Angeles, State of California, this 22nd day of September 1977.
/s/ John J. Corcoran
John J. Corcoran Clerk of the County of Los Angeles, State of California and ex officio Clerk of the Superior Court of said County and State.
“STATE OF CALIFORNIA ) ss
COUNTY OF LOS ANGELES )
“I, Paul G. Breckenridge. Jr.. Judge of the Superior Court of the State of California for the County of Los Angeles, do hereby certify that John J. Corcoran, is the County Clerk of the County of Los Angeles, State of California and ex officio Clerk of the Superior Court of said County and State (which is a court of record having a seal) and that the signature to the foregoing certificate and attestation is the genuine signature of said John J. Corcoran as such officer; that the seal annexed is the seal of the said Superior Court; that said John J. Corcoran as such Clerk is the proper officer to execute said certificate and attestation, and that such attestation is in due form according to the laws of the State of Califorina.
/s/ Paul G. Breckenridge. Jr.
Judge of the Superior Court of the State of California for the County of Los Angeles”
Section 15-9-31, Code of 1975, provides: “No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing and accompanied by a copy of an indictment found, or by an information supported by affidavit, in the state having jurisdiction of the crime or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state, and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.”

Among the supporting papers are two affidavits made before two different magistrates in compliance with the above section. They are the affidavits of Carol L. Willis and C. J. O’Connell and are as follows:

“IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA
“The People of the State of California Plaintiff,
v. AFFIDAVIT OF
“ELLIS SMITH, JR. aka DAVID EARL CAROL L. WILLIS
JOHNSON
Defendant.
“STATE OF CALIFORNIA, ) ss
COUNTY OF LOS ANGELES ) .'
“Personally appeared before me, this 21st day of September, 1977 Carol L. Willis, of the County of Los Angeles, State of California, who being first duly sworn, on oath, deposes and says:
“That she is over the age of twenty-one years; that she resides in the County of Los Angeles, said State; that by occupations he is a Deputy Sheriff of the Sheriff’s Department of the County of Los Angeles, State of California, assigned to the Fugitive Detail of said Department;
"That on the 4th day of September, 1974 the District Attorney of the County of Los Angeles, said State, filed his Information in the Superior Court of the State of California for the County of Los Angeles accusing the said defendant of the crimes of Attempted Robbery, in violation of § 664/211, Penal Code and Assault With a Deadly Weapon, in violation of § 245(a), Penal Code, felonies; that arraignment and plea for the said defendant was set for the 5th day of September, 1974;
“That on the 5th day of September, 1974 when the case for the said defendant was called in said court, the said defendant failed to make his appearance; that the Judge of the said Court ordered a Bench Warrant be issued; that said Bench Warrant was placed in the hands of the Sheriff of the County of Los Angeles, said State, for service;
“That immediate and diligent search was made for the said defendant throughout the County of Los Angeles and the State of California but that he could not be found therein; that the said Sheriff sent or received communications which are the basis for affiant’s belief that the said defendant is in custody in the State of Alabama;
“That the said Information, Bench Warrant, Minute order of Superior Court and communications are reproduced by photostatic copy or otherwise and said copies are attached to and made a part of these papers; that said Sheriff also holds an outstanding Warrant of Arrest charging the said defendant with the crime of Escape, in violation of § 4532b [4532(b)], Penal Code, a felony.
“WHEREFORE, affiant does state and charges the truth to be that the defendant, ELLIS SMITH, JR. aka DAVID EARL JOHNSON, is a fugitive from the justice of the State of California in that he still stands accused of the crimes for which he was to be arraigned and is still amenable to the law under which such arraignment was to be had; that the said defendant has not been in jeopardy on said charges; that the said defendant has not served any sentence or portion of any sentence prescribed by law for the commission of said crimes; that the said defendant is now incarcerated and awaiting extradition in the City of Birmingham, in the State of Alabama.
/s/ Carol L. Willis
“Subscribed and sworn to before me, this 21st day of September, 1977
“By_/s/ Callister_
JUDGE OF THE ABOVE ENTITLED COURT”
“IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
“The People of the State of California,
Plaintiff,
AFFIDAVIT OF
v. C. J. O’CONNELL
“ELLIS SMITH, JR. aka DAVID EARL JOHNSON Defendant.
“STATE OF CALIFORNIA, ) ss.
County of Los Angeles )
“Personally appeared before me, this 22nd day of September, 1977 C. J. O’Connell, of the County of Los Angeles, State of California, who being first duly sworn, on oath, deposes and says:
“That he is over the age of twenty-one years; that he resides in the County of Los Angeles, said State, that by occupation he is a detective for the Police Department of the City of Inglewood, said County and State; that affiant was an investigating officer in the herein criminal matter against the said defendant;
“That on the 14th day of August, 1974 a Complaint was sworn to before the Judge of the Municipal Court of Inglewood Judicial District, said County and State, charging:
“That on or about the 12th day of August, 1974, at and in the County of Los Angeles, State of California, the crime of Attempted/Robbery, in violation of § 664/211, Penal Code, a felony was committed by DAVID EARL JOHNSON T/N Ellis Smith, Jr. who, at the time and place last aforesaid, did willfully, unlawfully and feloniously and by means of force and fear attempt to take personal property from the person, possession and immediate presence of Dan Tilford; that at the time of the commission of the above offense said defendant, DAVID EARL JOHNSON T/N Ellis Smith, Jr. was armed with a firearm; that further on same date, at and in the said County and state the defendant committed the crime of Assault With A Deadly Weapon, in violation of § 245, Penal Code, a felony who, at the time and place last aforesaid, did willfully, unlawfully and feloniously commit an assault with a deadly weapon upon Dan Tilford, a human being; that at the time of the commission of the above offense said defendant, DAVID EARL JOHNSON T/N Ellis Smith, Jr. was armed with a firearm. ■
“That on the 22nd day of August, 1974 the said defendant had a Preliminary Hearing in the said Municipal Court at which time he was held to answer to the Superior Court of the State of California for the County of Los Angeles on the above mentioned charges.
“That the photograph attached to these papers is a good likeness and the true photograph of the defendant, DAVID EARL JOHNSON T/N Ellis Smith, Jr., whom affiant identifies as the defendant mentioned in the herein affidavit.
/s/ C. .1. O’Connell
“Subscribed and sworn to before me, this 22nd day of September, 1977
Bv Paul C. Breckenridge. Jr._
JUDGE OF THE ABOVE ENTITLED COURT”

All of the above and foregoing allied papers were duly authenticated by Honorable Mervyn M. Dynally, Acting Governor of the State of California, in accordance with the laws of that State.

In Krenwinkel v. State, 45 Ala.App. 474, 232 So.2d 346, this Court held:

“Without clear and convincing proof to the contrary, we presume that the Governor of Alabama has bona fide verified that the person acting as executive of a sister state is not an imposter or usurper of office.”

Faced with this mountainous evidence showing that appellant was in the State of California at the time he was charged with two felonies against the laws of that State, we feel that the judgment of the Circuit Court of Jefferson County in denying appellant’s petition for writ of habeas corpus was correct and the judgment in this cause is due to be and the same is hereby affirmed. Harris v. State, 257 Ala. 3, 60 So.2d 266; Martin v. State, 50 Ala.App. 1, 276 So.2d 149.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Ellis SMITH, Jr.
    77-715.
    Supreme Court of Alabama.
    Sept. 15, 1978.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    James MARTIN v. STATE of Alabama.
    3 Div. 816.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.

      Frank L. Thiemonge, III, Montgomery, for appellant.
    William‘J. Baxley, Atty. Gen. and Samuel J. Clenney, III, Asst. Atty. Gen., for the State, appellee.
   Conviction for first-degree burglary AFFIRMED without opinion. ■


author: PER CURIAM.

text:
    In re James MARTIN, alias v. STATE of Alabama. Ex parte James Martin, alias.
    77-705.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    Frank L. Thiemonge, III, Montgomery, for petitioner.
   PER CURIAM.

Petitioner seeks to have this Court review by writ of certiorari a “No Opinion” affirmance of his conviction of the offense of first degree burglary. Petitioner does not invoke Rule 39(k), ARAP. Additionally, the “conflict” ground sought to be asserted does not cite any case alleged to be in conflict with the instant holding by the Court of Criminal Appeals, 361 So.2d 1142, nor does it specify wherein the alleged conflict exists. See Form 22, Appendix I, ARAP.

Thus, the petition for the writ is denied.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


text:
    Jesse BELLAMY v. STATE of Alabama.
    6 Div. 365.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.
    Robert Bryan, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State, appellee.
   Conviction for murder in the second degree AFFIRMED without opinion.


text:
    In re Jessie BELLAMY v. STATE of Alabama. Ex parte Jessie Bellamy.
    77-693.
    Supreme Court of Alabama.
    Aug. 25, 1978.
    Roger C. Appell and Robert Bryan of Bryan, Wiggins, Quinn & Appell, Birmingham, for petitioner.

      No briefs for the State.
   PER CURIAM.

The Petition for Writ of Certiorari requests this Court to review a “No Opinion” affirmance by the Court of Criminal Appeals, 361 So.2d 1143 with the judgment of conviction and sentence ordered by the trial Court. Petitioner does not invoke Rule 39(k), ARAP. Thus, the writ is denied.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Robert E. MAUND v. STATE.
    4 Div. 593.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.

      George E. Trawick, Ariton, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen. for the State, appellee.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

On August 31, 1976, Nell Maund was the victim of a homicide. The homicide was effected by the use of a .20 gauge shotgun fired in the home of the deceased in the Chalkhead Community of Dale County. The deceased was the wife of appellant.

Appellant spent the morning of the homicide working on his farm. He drank two cans of beer that morning, and about noon he went into Ozark, Alabama, where he bought two pints of wine. On his way home, he stopped to help Junior Watson work on Watson’s car. Watson needed a part for the car so appellant offered to drive Watson to pick up the part. On the way, appellant experienced chest pains and had to stop and let Watson drive. Watson drove appellant home. Appellant had consumed most of the wine while working on Watson’s car and during the ride. Appellant’s daughter, Mrs. Joiner, and her small child were at appellant’s home along with appellant’s wife when Watson and appellant arrived. Mrs. Joiner insisted that appellant go to bed, and he did. Mrs. Joiner and her child then left to take Watson to get his automobile part. Mrs. Joiner was gone just long enough to drive two and one-half miles, drop Watson off, and return.

Appellant testified that he dropped off to sleep and was awakened by his wife pulling him off the bed by the left foot. He hit the floor flat of his back, partially paralyzing him. He said his wife started kicking and stomping him and told him to get out and leave. He made it through the next door to the bathroom, tried to get up, fell back, looked around, and saw his wife standing on a trunk with a shotgun in her hand with the stock pointing toward him. He said she jabbed him in the stomach with the gun, that his mind then went blank, and he remembered nothing else. Appellant testified additionally that he never harmed his wife, and that it had to be an accident if she was shot.

Mrs. Joiner testified that when she arrived back at the house, appellant was sitting on the porch in his underwear and stated to her, “I just killed your mother.” She testified that appellant followed her into the house and made the additional statements: “Well, she started in on me and I couldn’t take anymore,” and “Yes, I shot her.” Appellant did not recall making those statements.

On rebuttal Mrs. Joiner testified that within six months of the death of her mother, appellant had stated to the deceased that? “he was going to shoot her down just like a dog,” “he was going to shoot her down like a rabbit,” “he was going to bust her brains out,” and that “he’d twist her arm back and he would hit her.”

Michael Maund, eighteen-year-old son of appellant, testified on rebuttal that appellant told deceased, “I’m going to beat you down like a rabbit, I’m going to kill you like a dog” within six months of the death of his mother. He also testified that within one year of the death of his mother, “seems like he twisted her arms. Lots of times I’ve — it was every two week thing, I mean. About every so often he’d be (sic) come in and hurt her somehow, twisted her arms — .”

Appellant denied ever making any threats to deceased. He did admit to twisting his wife’s arms when they had domestic difficulties.

I

A.

Appellant argues that the judgment should be reversed because the trial judge refused to give certain requested written charges on self-defense and failed to orally charge the jury on the law of self-defense.

Appellant’s requested written charges marked “e” and “f” are not endorsed “given” or “refused” by the trial judge, nor signed by the trial judge, as required by Title 7, § 273, Code of Ala.1940 [now § 12 — 16—13, Code of Ala.1975]. Numerous other requested written charges of appellant are in compliance with Title 7, § 273.

Counsel for appellant does not argue in brief that the trial judge refused to endorse or sign the requested charges, nor was an exception taken. Because of failure to comply with Title 7, § 273, this court may not consider the charges on appeal even though the charges appear in the record. Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied, 291 Ala. 801, 277 So.2d 389 (1973); Hill v. State, 48 Ala.App. 240, 263 So.2d 696 (1972); Barnwell v. Murrell, 108 Ala. 366, 18 So. 831 (1895).

Exceptions to the oral instruction of the court must be taken in the presence of the jury and before the jury retires so that the trial judge will have an opportunity to make any corrections. Thomas v. State, Ala.Cr.App., 352 So.2d 25; Owens v. State, 53 Ala.App. 553, 302 So.2d 240, cert. denied, 293 Ala. 769, 302 So.2d 243 (1974); Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967). At the conclusion of the court’s oral charge, defense counsel took no exception to the court’s failure to charge on the law of self-defense. Except for an exception to an unrelated point of law, defense counsel announced that he was satisfied with the court’s oral charge, therefore, there is nothing presented for this court to review in this regard. Cox, supra.

B.

Appellant submits the trial court was in error to refuse the following requested written charge in support of self-defense.

“39. The jury may look to any evidence in the case tending to show that the deceased used abusive and threatening language or conduct toward defendant at or about the time of the alleged offense, and if the jury believes such words or acts were used, the jury may consider the same in justification, mitigation or extenuation of the offense.”

Requested Charge No. 39 may have been refused by the trial court without error for any number of reasons. Predicating the charge partly upon the abusive language of the deceased in justification, mitigation or extenuation of murder is a misstatement of the law rendering the charge improper. In 1872 in Taylor v. State, 48 Ala. 180, our Supreme Court held that no words, however insulting, will excuse a homicide. Evidence of opprobrious words or abusive language may be considered in extenuation or justification on a charge of assault, assault and battery, or affray pursuant to Title 14, § 37, Code of Alabama 1940 [§ 13 — 1—51, Code of Ala.1975], but evidence of abusive language may not be considered an extenuation or justification of an offense of a higher grade. Taylor, supra; Metcalf v. State, 40 Ala.App. 25, 108 So.2d 435 (1958), cert. denied, 268 Ala. 533, 108 So.2d 446.

II

The appellant contends that it was error for the trial court to refuse the defendant the opportunity to testify as to whether he consented to the release of his interest in his estate to his children.

The appellant testified that he never threatened or harmed his wife. On rebuttal the State offered testimony of two of the appellant’s children of similar threats they heard their father make against their mother and of his physical abuse of her within six months or a year of her death. On cross-examination the defense counsel elicited from the two rebuttal witnesses that Robert Steve Maund, another son of the appellant, obtained their father’s power of attorney after his imprisonment and had exercised control over certain assets of their father, allegedly for the benefit of appellant’s younger son, a minor at the time.

The defense counsel then sought to examine the appellant himself about these financial matters. The State objected on the ground that the defense was not seeking to offset or answer any evidence originally brought out by the State on rebuttal. The trial court sustained the objection on the ground that the financial matters were collateral issues brought out on cross-examination of the two State’s witnesses, and the reason for allowing it on cross-examination was for the purpose of showing bias as far as the two witnesses were concerned.

As stated in Battles v. State, 44 Ala.App. 635, 218 So.2d 695 (1968), cert. denied, 283 Ala. 711, 218 So.2d 697 (1969):

“It is the law, of course, that the pecuniary interest a witness may have in the outcome of a trial is a proper subject of inquiry for the purpose of questioning the credibility of a witness. However, there must be a limit to which such questioning extends and that limitation is placed within the sound discretion of the trial court and rulings on such limitations will not be revised by this court unless there has been a clear abuse of discretion. Smith v. State, 30 Ala.App. 346, 5 So.2d 648; Broadway v. State, 35 Ala.App. 86, 45 So.2d 480.”

We find no abuse of discretion here.

Ill

Appellant contends the State’s expert witness, the coroner, testified that deceased was lying on the floor when shot, and that the trial judge erred by refusing the defense on cross-examination to contradict the State’s evidence by showing the deceased could have been shot while wrestling over the gun.

The record bears out the State’s contention that the coroner never testified that the deceased was lying on the floor when shot. On direct examination the prosecution asked the coroner if the deceased was lying on the “ground” when shot. The defense counsel objected, and the trial judge sustained and instructed the jury to disregard the question. The coroner never answered the question. On cross-examination the defense counsel was also limited in asserting the probable position of deceased when shot.

The prosecution was prevented from eliciting testimony from the coroner for purposes of establishing probable position of the deceased at the time she was shot. By statute the right to a thorough and sifting cross-examination belongs to every party as to witnesses called against him. Title 7, § 443, Code of Ala.1940 [now § 12-21-136, Code of Ala.1975]. But the extent of cross-examination is a matter addressed to the sound discretion of the trial court and is not subject to review except in case of abuse. Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968). In our opinion, the trial court did not abuse its discretion with respect to cross-examining the coroner and imposing the same evidentiary restriction on the defense as was placed upon the State at the insistence of the defense.

IY

Appellant contends that it was reversible error for the appellant not to be present at the pre-trial hearing on a motion to disclose the State’s evidence. Pre-trial motions hearings are not viewed as a critical stage of trial, and the defendant does not have a right to be present. Wade v. State, Ala.Cr.App., 349 So.2d 141 (1977); Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678, cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976).

V

The appellant argues that it was error for the jury venire to be organized, qualified, and identified in open court in the presence of appellant’s attorney, but out of the presence of the appellant. The appellant was present when the trial judge and defense counsel specially qualified the jury venire for the appellant’s case. The jury was selected and impaneled for the appellant’s case in the presence of appellant.

Objections to the jury venire must be made prior to the impaneling and swearing in of the jury. No objection was made concerning the absence of appellant from the initial organization, qualification, and identification of the jury venire, therefore, there is nothing for this court to review. Andrews v. State, Ala.Cr.App., 359 So.2d 1172 [1978].

AFFIRMED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Kenneth E. HENLEY v. STATE.
    4 Div. 642.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.

      J. Allen Cook of Cook & Cook, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

This is an appeal from a conviction of grand larceny and a sentence of imprisonment for a term of five years.

By the undisputed testimony of Ned Brannon, the corpus delicti of the alleged crime was established. He testified that when he opened Brannon’s Curb Market in Opp, Alabama, on a day in August, 1977, after he had closed it the night before, he discovered that a piece of metal was ripped off a metal enclosure of the back of the building and that there was a hole in it. Upon making this discovery, he went inside and found that the sum of thirty-four dollars and ninety cents was missing from the cash register subsequent to the time he “checked up the night before.” He was the owner and operator of the market and had given no one permission “to go in there and take that” and it had not been returned to him.

The only testimony connecting appellant-defendant with the burglary or larceny was his own subsequent handwritten statement as follows:

“August 26, 1977
“I Kenneth E. Henley at about 12:00 o’clock Sunday night went in the side of Ned Bannon [sic] business. I Kenneth Henley took approximately $15 in coins and 1 beer which was in the cooler in the lounge and then I left about 12:10 and went home.”

The statement was signed “Kenneth E. Henley.”

There was abundant evidence that defendant, seventeen years of age at the time of the alleged crime, who had voluntarily and understandingly waived his right to juvenile offender treatment after being advised thereof by the court, was fully advised as to his Constitutional rights before the above quoted incriminating statement was obtained from him. He signed the statement deliberately after all Miranda requirements were met.

Neither constitutionally permissible proof of defendant’s voluntary confession nor proof of the corpus delicti, standing alone, is sufficient to sustain a conviction, but the evidence is sufficient if it contains proof of such a confession and proof of the corpus delicti by evidence not furnished by defendant. Mose v. State, 36 Ala. 211 (1860); White v. State, 49 Ala. 344 (1873); Hicks v. State, 247 Ala. 439, 25 So.2d 139 (1946); Gaddis v. State, 39 Ala.App. 630, 106 So.2d 268 (1958); Arnold v. State, 57 Ala.App. 172, 326 So.2d 700 (1976); Tanner v. State, 57 Ala.App. 254, 327 So.2d 749 (1976); Coleman v. State, 57 Ala.App. 392, 328 So.2d 642 (1976).

Defendant took the stand on the trial and denied guilt and repudiated the confession he had made. In explanation, he testified that the officer to whom he gave the confession had stated to defendant that he had a witness who would testify as to defendant’s guilt. The officer testified that defendant’s younger brother had told the officer that defendant had stolen the money. The younger brother testified for defendant to the effect that he had not told the officer that defendant stole the money.

No effort was made by the State to explain the discrepancy between the amount of money taken from the cash register and the amount referred to in defendant’s statement.

Notwithstanding our appreciation of appellant’s insistence as to the weakness of the State’s case, we conclude that a jury question was presented. The overruling of defendant’s motion for a new trial was well within the province of the trial court. As was aptly and adequately stated by our now Presiding Judge Harris in Binon v. State, 57 Ala.App. 234, 327 So.2d 729, 732, cert. denied 295 Ala. 391, 327 So.2d 732 (1975):

“Appellant’s motion for a new trial was overruled and denied. In reviewing the refusal of a motion for a new trial, this court will indulge every presumption in favor of the correctness of the ruling of the trial court and the decision thereon rests largely within the discretion of the trial judge. Espey v. State, 270 Ala. 669, 120 So.2d 904; Owens v. State, 40 Ala.App. 36, 109 So.2d 141; Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Jones v. State, supra. [54 Ala.App. 251, 307 So.2d 59]”

Before the evidence commenced and while counsel for the prosecution was stating its case to the jury, the following occurred:

“MR. McGILL: Now, this offense arose out of a burglary accompanied by a felonious taking of Ned Brannon’s Curb Market which is on Highway 331, south going out of Opp. If you are acquainted with Opp, it’s fairly close to the Dairy Queen there. .
“MR. COOK: Wait just a moment. We want to put in an objection to anything about burglary. We didn’t hear him read any burglary count in the indictment.
“THE COURT: Overruled.
“MR. COOK: We except.”

It is true that there was no count in the indictment charging burglary. Even so, according to the evidence, whatever larceny occurred took place following a burglary, and evidence as to the burglary was relevant to the question of the felonious intent that is an element of the crime of grand larceny. The statement of counsel for the State was an appropriate part of the summary of what he expected the evidence to show. The court correctly overruled defendant’s objection to the statement. No contention was made on the trial, and no contention is made here, that the evidence relative to a burglary was not admissible. A statement based on facts admissible in evidence is proper. Higdon v. State, 25 Ala.App. 209, 143 So. 213 (1932). The statement was no more harmful to defendant than was the evidence that was properly admitted as to the burglary and cannot be made the basis of reversible error.

Trial counsel should be allowed ample latitude in presenting to the jury in his opening statement what he expects the evidence to show. The trial judge is given wide discretion in determining what statements are proper. Rogers v. State, 49 Ala.App. 78, 268 So.2d 859 (1972); Ballard v. State, 51 Ala.App. 393, 286 So.2d 68 (1973).

Appellant complained that the trial court erroneously allowed the State to cross-examine appellant’s younger brother as to statements he had made to police officers in the past. He had been interrogated by defendant’s counsel as a witness for defendant and had testified that he did not tell the officer to whom defendant gave an incriminating statement that defendant stole the money. In such interrogation, he was asked whether he “ever” gave “any such information to any police officer anywhere” and he replied that he did not. The particular action of the trial court made the basis of the complaint now considered is shown at the beginning of the cross-examination of defendant’s brother as follows:

“Q Talking about statements, how many statements have you given police in the past?
“MR. COOK: Now, we object to that unless it relates to this case.
“THE COURT: Overruled.
“MR. COOK: We except.
“Q How many have you given?
“A Statements?
“Q Uh hum.
“A On this charge?
“Q No, on, Oh, six or eight charges on you?
“A That are on me?
“Q Yes.
“A Oh, several.
“Q Several. You are up there about every weekend, aren’t you, giving them statements about something?
“MR. COOK: Now, if the Court please, we object .
“THE COURT: Yes, sustained.
“Q The fact is, you are under two indictments right now, aren’t you?
“MR. COOK: We object to . . .
“THE COURT: Yes, I sustain.
“MR. McGILL: That’s all.
“MR. COOK: That’s everything.
“THE COURT: Come down.”

It may well be that State’s counsel went further than he should in this case to show the possible previous criminal conduct of defendant’s brother, but the court sustained objections to all questions asked the witness on cross-examination except the first question as to how many statements he had given police in the past. At that time, it seemed to be a legitimate inquiry in an effort to test the recollection or credibility of the witness on the issue whether he had made the statement attributed to him that defendant was guilty of the larceny involved in this case. As soon as an objection was made by defendant to an extension of the cross-examination to matters that went beyond testing of the witness’ credibility or recollection, the court by its ruling brought the cross-examination to an end. The court was not in error in any of its rulings made the basis of the claim of error now particularly considered.

We have searched the record for any error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Kenneth E. HENLEY.
    77-756.
    Supreme Court of Alabama.
    Sept. 15, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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


text:
    Joseph Carl JACKSON v. STATE.
    6 Div. 321.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.

      Lewis Fred Pickard, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

Robbery; sentence: ten years.

The appellant was indicted for the robbery of Michael Crumpton in the amount of $793.00. The trial jury found the appellant-guilty as charged and fixed punishment at ten years imprisonment. The trial Court then entered judgment, setting sentence in accordance with the verdict. Notice of a working appeal was immediately given.

The evidence presented by the State tended to show that in late November of 1975, the appellant and two other black males entered A. A. Bond’s Furniture Store in Birmingham, Alabama, a few minutes before closing. Once inside, the appellant pulled a pistol from under his shirt and threatened the store manager, Michael Crumpton. The appellant then forced Judy Crumpton, Michael’s wife, to open the cash drawer and the safe, which was not locked. While the appellant and the others took the money and left, they made Mr. and Mrs. Crumpton lay on the floor with a coat over their heads. The complete robbery took about five minutes.

Immediately after the robbery, the Crumptons gave a description of the robbers to the police. Thereafter they made separate, positive identifications of the appellant from both a photographic display and a line-up. Following his arrest, the appellant made a signed statement to the Birmingham police in which he admitted participation in the robbery, although only as a “lookout”.

Although the admissibility and validity of both the identification and confession were considered in a pretrial hearing, the record contains no motion to suppress, no motion to exclude, no motion to strike, or objection to the in-court identification or the pretrial identification procedures. A verbal motion to exclude was interposed to the admissibility of the confession at the close of the preliminary hearing.

I

The first alleged error complained of by the appellant is that of the trial court when it did not exclude the in-court identification of the appellant by Mr. and Mrs. Crumpton. The appellant asserts that the pretrial lineup and picture showing were so impermissi-bly suggestive as to have tainted the in-court identification of the accused.

At the pretrial hearing both of the Crumptons testified that they were separately given a stack of ten to fifteen color pictures by a police officer about a week or a week and a half after the robbery. The photographs were all of black males of similar height and weight, although the appellant was the only person depicted with a scar on his left cheek. No suggestive comment was made by the police officer before or during the viewing of the photographs to indicate that any particular individual in the group was one of the robbers. When the Crumptons viewed the photographs they were looking for any of the three robbers. Mrs. Crumpton did testify that the police sergeant told her before she saw the photographs that, based, on her description, he “had some idea” who robbed her “or had someone in mind”. The Crumptons had described the robbers to the police on the day of the robbery. The sergeant simply indicated that he had a suspect in the group of pictures. Both Mr. and Mrs. Crumpton positively identified the appellant. They asked and were told that the man they had identified was Joseph Carl Jackson, the appellant.

Mr. Crumpton testified that he observed the appellant at close range during the course of the robbery for at least two minutes. Mrs. Crumpton stated that she viewed the appellant at close range and observed him for five minutes during the robbery.

Before being shown the pictures, the Crumptons discussed the description of the robbers between themselves and their descriptions were “approximately the same”.

Mr. Crumpton, after identifying the appellant, told the police that if they arrested someone who might possibly be a suspect, he would like to see them in a line-up. About two weeks later the Crumptons did view a line-up. Mr. Crumpton testified that when he was called to view the line-up, he knew an arrest had probably been made but had no idea which one of the three robbers had been arrested. Again, both Mr. and Mrs. Crumpton separately viewed a group of individuals with similar physical characteristics. Both, without hesitation, positively identified the appellant as one of the robbers. No one suggested that anyone in the line-up was a suspect. After Mrs. Crumpton identified the appellant as one of the robbers, a police officer said, “Well, that is the man we are looking for”.

On the day of the trial, Mr. Crumpton saw the appellant in handcuffs in the courtroom.

The appellant submits that the totality of the circumstances dictates that both the pretrial photographic display and the lineup were impermissively suggestive and that these defects tainted the in-court identification of the appellant. The appellant argues seven circumstances which tainted the in-court identification: (1) Before Mrs. Crumpton viewed the photographic display, she was told by-a police officer that he had a suspect in the group of pictures she was about to view and that he had some idea of who had robbed her according to the descriptions she had given the police; (2) the appellant was the only one in the photograph and the line-up with a scar on his left cheek; (3) the appellant was identified to the Crumptons by name after they had selected his picture; (4) the police advised Mr. Crumpton that if they arrested anybody that could possibly be a suspect in the case, he and his wife would probably be called for a line-up; (5) no one else in the photographic spread or in the line-up fit the description of the appellant; (6) after identifying the appellant in the line-up, a police officer said to Mrs. Crumpton, “Well, that is the man we are looking for”; and (7) prior to the in-court identification, Mr. Crumpton saw the appellant in handcuffs in the courtroom.

An in-court identification is inadmissible if it is so tainted by previous, imper-missibly suggestive photographic or line-up identification that the origin or source of the in-court identification was not independent of the line-up. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Fletcher v. State, Ala.Cr.App., 337 So.2d 58, and cases cited therein at 337 So.2d 60. In determining whether the in-court identification is admissible the “totality of the circumstances” must be considered to determine first, whether the police procedures used in obtaining the identification were impermissively suggestive and then, whether, being so they created “a substantial risk of misidentification”. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; United States v. Kimbrough (CA 5), 481 F.2d 421, cert. denied, 414 U.S. 1114, 94 S.Ct. 845, 38 L.Ed.2d 741 (1973); United States v. Henderson, 489 F.2d 802 (5th Cir. 1973); Childers v. State, Ala.Cr.App., 339 So.2d 597.

Here the police officer merely told one of the identifying witnesses that based on the description she had previously given the police, he had a suspect in the group of photographs he handed her to view. He did not indicate in any manner which individual he suspected. We find that the police officer was merely stating the obvious. The very purpose of a photographic display is to assist in the apprehension of offenders. Simmons, supra. It would be a useless law enforcement procedure if a police officer showed a victim or a witness a spread of photographs where, based on a description previously furnished him, he suspected none of. the individuals depicted. Despite some of the appellant’s contentions, the testimony shows that all of the photographs were fairly representative of the appellant except for the scar. The statement of the police officer was not impermissibly suggestive.

The fact that the appellant was the only person depicted with a scar does not impress this court. There was testimony that the scar was only faintly visible on the photograph. Also, it appears that the scar was not the sole basis on which the appellant was identified. Moreover, as a practical factor in matters such as this where the accused has a distinctive physical characteristic, it would often be impossible for the police to obtain a perfectly balanced photo spread.

After the Crumptons identified the appellant as one of the robbers, they asked for and were given his name. Under the circumstances of this particular case, this point is insignificant. From the record it does not appear that the appellant’s name had anything to do with any identification of him by the Crumptons at any time. Knowing the appellant’s name did not taint the line-up identification because when called to view the line-up, the Crumptons did not know which one of the three robbers had been apprehended.

Here the Crumptons were looking for three individuals and not just for the appellant. Both victims viewed the pictures separately and individually and positively identified the appellant. Both victims had ample opportunity to view the victim at close range during the commission of the robbery. Following the crime, both victims gave descriptions of the three robbers, including the appellant, to the police. There is no evidence that these descriptions were ever changed or altered. Under these circumstances, the photographic identification procedures employed here were not imper-missively suggestive nor did they present any basic unfairness to the appellant.

II

Approximately three weeks after the robbery, Mr. and Mrs. Crumpton separately and positively identified the appellant in a line-up. Objection is had to the line-up procedure (1) because the police told Mr. Crumpton that “if they had arrested anybody that could possibly be a suspect in the case they would probably call (him) in for a line-up”, and (2) because after Mrs. Crumpton had identified the appellant in the line-up, a police officer stated, “Well, that is the man we are looking for”.

This court addressed itself to the first objection in Fletcher v. State, Ala.Cr.App., 337 So.2d 58, wherein Judge Clark stated:

“A lineup is not a test run, a fire drill, or an academic proceeding. The victim of a crime has the right to assume when asked to come to a lineup that he is not being toyed with, that there is more than an infinitesimal chance of a member of the lineup being the criminal, which would be true of a lineup in which no one who arranged it suspected or had any reason to suspect that the criminal had been apprehended. It is perfectly natural for persons called to view a lineup to understand that a suspect is in the lineup. That they are told that he is, by someone connected with the lineup, although generally inadvisable, does not contaminate the proceeding. Furthermore, in a dialogue relative to a lineup, it is readily understandable that the passive one of the two would interpret the language of the other to the effect that a suspect, or that even the guilty person, would be in the lineup, even though such other person had not so expressed himself.”

The fact that a police officer stated, “Well, that is the man we are looking for” after Mrs. Crumpton identified the appellant in the line-up is without consequence here. Taken in itself, the phrase apparently indicates nothing more than the fact that Mrs. Crumpton had made a positive identification of someone in the line-up. This court has recently held that an officer’s statement to a witness after a line-up that “that’s the suspect we had” was not unduly suggestive. Swicegood v. State, Ala.Cr.App., 34 So.2d 806, 1977. Certainly the statement there was more suggestive than the one found here.

Considering the totality of the circumstances presented here, we find that the identification processes employed were not impermissively suggestive and did not present a substantial likelihood of misiden-tification. Cross-examination by defense counsel did not shake the identification testimony of the Crumptons. Neil v. Biggers, supra, sets out the factors which must be considered when evaluating the likelihood of misidentification. Childers, supra. These factors include the opportunity of witnesses to view the criminal at the time of the crime, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description of the criminal, the level of certainty demonstrated by the witnesses at the confrontation, and the length of time between the confrontation and the crime. These and other factors we have examined in evaluating the likelihood of impermissible suggestiveness and misidentification preponderate heavily in favor of the trustworthiness of the testimony as to identify. It is the likelihood of misidentification which violates a defendant’s right to due process. We find that such likelihood is not present in this case. The trial Judge was correct in permitting the in-court identification.

III

The second alleged error complained of by the appellant is that the trial Judge made certain remarks to the jury which were prejudicial and prevented him from receiving a fair trial.

After the jury was struck, the court made the following remarks to that jury:

“THE COURT: Ladies and gentlemen, this is Wednesday afternoon. And I hate to be the bearer of bad tidings to you. On Monday everybody seems to want on a jury. Toward the end of the week, they kind of not want to get on a jury. But this case is important as any case we have on the docket.
“I mean, they are all important. It is a serious case, robbery. The minimum sentence is ten years. It is a serious offense. And this case will not be a long ease, I’m sure of that. But throughout the course of this trial, this jury will be sequestered.”

Any declaration of the court prejudicing the defendant in the minds of the jury is error which would of necessity effect a reversal. Jarmon v. State, Ala.Cr.App., 333 So.2d 897. Here the remarks of the trial Judge were in no way prejudicial to the appellant’s case. The statement read in the context in which it is quoted is self-explanatory. Having reviewed the entire transcript, we find that the trial Judge used the greatest care to avoid prejudicing the cause of the accused or of the State by his language or conduct.

We have searched the entire record for any and all error prejudicial to the appellant and have found none. Therefore, it is the opinion of this court that this case is due to be and is hereby

AFFIRMED.

All Judges concur.

      . See Drewry v. Commonwealth, 213 Va. 186, 191 S.E.2d 178 (officer told witness that assailant was among those pictured); Commonwealth v. Bumpus (Mass.), 290 N.E.2d 167, vacated on other grounds, 411 U.S. 945, 93 S.Ct. 1941, 36 L.Ed.2d 407, (officer told witness that the defendant was in the photograph of a line-up shown to the witness); even where the other photographs did not exactly look like that of the accused. State v. Davis, 25 N.C.App. 256, 212 S.E.2d 680 (police officer mentioned that he had possible suspect among photographs shown to witness).

      . See also U. S. v. Person, 155 U.S.App.D.C. 455, 478 F.2d 659 (detective’s remark to witness that she had done well in making her identification was better left unsaid, but was not action that materially affected witness' certainty as to identification); State v. Cameron, 216 Kan. 644, 533 P.2d 1255, (no prejudice resulted where detective observed two robbery victims after line-up identification that they had identified the two subjects who had been arrested); U. S. v. Sanders (D.C.Pa.) 322 F.Supp. 947, aff'd (CA3) 459 F.2d 86 (where officer told witness prior to line-up that person witness had identified through photographs had been apprehended. Line-up not thereby rendered unfairly suggestive).


text:
    Daniel Timothy WILLIAMS v. STATE of Alabama.
    77-551.
    Supreme Court of Alabama.
    Sept. 15, 1978.
    Cecil M. Tipton, Jr., Opelika, for appel- ' lant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen. for the State.
   FAULKNER, Justice.

Danny Williams, a juvenile, was charged with rape, robbery, and burglary I. Pursuant to § 12-15-34, Code of Ala.1975, the juvenile court of Lee County ordered Williams transferred to circuit court for criminal prosecution as an adult. This order was appealed to the circuit court which, after a trial de novo, issued an order denying the appeal and transferring Williams for criminal prosecution. We affirm.

On August 25, 1977, Martha Sue Garrett reported she had been raped in her trailer at knifepoint. She described her assailant to police as a black male, 6'2" tall, wearing boxer-type shorts, a tank-top t-shirt, baseball cap, and high-top Converse tennis shoes. Her assailant carried a silver flashlight with a red rim and took her key case with him. Police originally arrested Williams’ brother, Obediah Smith, and obtained warrants to search Smith’s home, a trailer near Ms. Garrett’s. A search of the room in which Williams was sleeping yielded a pair of Converse tennis shoes, a blue baseball cap, an orange tank-top t-shirt, a pair of gym shorts, a pair of men’s underwear stained with semen, a black-handled flashlight with red rim, and a blue jean jacket with Ms. Garrett’s key ease in the pocket. Williams, who is 5'8", claimed to have found the key case on the ground outside. Williams was then arrested and charged with the rape.

At the time of the alleged rape Williams was 14 years and 1 month old. The juvenile court conducted the hearing required by § 12-15-34 and entered an order transferring Williams for criminal prosecution. On appeal the circuit court conducted a trial de novo and entered an order affirming the transfer. Under Brown v. State, 353 So.2d 1384, 1386 (Ala.1977), we need only to consider the circuit court’s hearing and order in our review.

The circuit court conducted an extensive hearing in which it received evidence tending to establish probable cause that Williams committed the rape. A report as required by § 12-15-34(e) was delivered to the court. Following this hearing the circuit court entered its order which basically recites § 12-15-34. As noted in Brown, where the order simply restates the language of the statute this Court will review the record to assure that the transfer is supported by the evidence. This Court will not interfere with the lower court’s order unless it is “clearly erroneous.” 353 So.2d 1384, 1388. Here it is apparent that the circuit court placed particular emphasis on the heinous nature of the crime, finding that it was “in the best interest of the public to proceed with the disposition of the cause as a criminal prosecution.” After a thorough review of the record we are not able to say that the transfer was clearly erroneous. Consequently, the order of the circuit court must be affirmed.

AFFIRMED.

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