author: HARRIS, Judge.

text:
    Johnny Lee CRONNON v. STATE.
    7 Div. 340.
    Court of Criminal Appeals of Alabama.
    June 30, 1975.
    Rehearing Denied July 29, 1975.
    Certiorari Denied Jan. 19, 1976.
    Sec 96 S.Ct. 864.

      Myron K. Allenstein, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, and Frank L. Thiemonge, III, Asst. Attys. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary. At arraignment and throughout the trial, he was represented by counsel. He pleaded not guilty. After conviction he was furnished a free transcript and trial counsel represented him on appeal.

On the night of April 11, 1974, Jeanne Marie Aiello, a fifteen-year-old girl residing at 104 Oakleigh Drive, Gadsden, Alabama, was stabbed to death about ten miles north of Gadsden. Her nude body was found early the next morning lying along side Interstate 59. An autopsy was performed by Mr. Vann Pruitt, Assistant State Toxicologist in charge of the Huntsville Division. The autopsy revealed that she had been raped as spermatozoa was found in her vagina. There were fourteen (14) stab wounds mostly in the area of her breasts, and she had been struck on the head with a blunt-type instrument; According to Mr. Pruitt’s opinion, the blow to her head was probably an hour prior to the stab wounds, reasoning, “in order for the degree of swelling and hemorrhage to develop underneath the scalp with the heart beating as opposed to being postmortem.” He further described his autopsy findings:

“The body was that of a Caucasian female which measured in length 5 feet 7;4 inches. I estimated the weight as being approximately 175 to 185 pounds. The eyes were hazel. The hair was light brown, and it was a young person consistent with the identified 15 years of age. There were no outstanding identifying scars, tattoos or amputations of any of the extremities. The body was unclothed with the exception of a white canvas shoe which was present on the left foot, and about the neck was a gold St. Christopher’s medal on a chain. The body was heavily soiled with bloodstains and debris. I made note of the following injuries to the body, and the order in which I describe these injuries does not infer that was the order that they were sustained but merely the order in which I made notes of them: injury number one consisted of a stab wound measuring one inch in its length which was located in the right shoulder two inches above the armpit. Number two was a penetrating stab type wound measuring one inch was located in the right shoulder 1(4 inches on the axilla, or armpit. Number three was a stab type penetrating wound measuring 1(4 inches in length located in the right chest 4 inches over the common horizontal line of the nipples and 5 inches to the right of the midline of the body. Number 4 was a stab type penetrating wound measuring oí an inch in its length located in the right upper chest 4(4 inches over the common horizontal line of the nipples and 3 inches to the right of the midline. Number 5 was a penetrating stab type wound measuring 1 inch in length located in the left chest 3 inches to the left of, the midline and 5 inches above the common horizontal line of the nipples. Number 6 was a penetrating stab type wound located in the left upper chest 4 inches to the left of the midline of the body and 3(4 inches above the common horizontal line of the nipples.
“Q. Excuse me for interrupting, Dr. Pruitt, what is — you keep saying a penetrating stab type wound, could you give us the amount or degree of penetration we are referring to when you say these are penetrating stab type wounds? How deep, in other words, in centimeters or inches?
“A. There was some degree of variation at approximately 4 inches penetration depth being the maximum, some were more superficial than others.
“Q. You would say then that these stab type wounds you have been referring to as 4 inches would be the maximum depth ?
“A. Yes, sir.
“Q. Approximately ?
“A. 4 inches.
“Q. Thank you. Go ahead, I’m sorry.
“A. Wound number 7 was a penetrating stab type wound in the left chest 2 inches above the common horizontal line of the nipples and 3 inches to the left of the midline of the body. Number 8 was a superficial laceration, or cut, on the outer left forearm at the wrist. Number 9 was a laceration, or cut, on the ulnar surface of the left hand. That would be the surface on the base of the little finger, being the ulnar surface. Number 10 was a laceration, or cut, measuring Y\ of an inch to the pad of the left thumb. Number 11 was a penetrating stab type wound on the outer surface of the right upper arm 5 inches below the peak of the shoulder. Number 12 was a penetrating stab type wound i/i> inches in length on the back of the right upper arm 214 inches below the arm pit. Wound number 13 was a penetrating stab type wound measuring 1 inch located in the right back 1}4 inches to the right of the mid-line of the body and 1 inch above the common horizontal line of the axilla, or armpit. Number 14 was a 1}4 inch stab wound in the right back located 4 inches to the right of the midline and on the line of the armpit. Number IS was a tear in the top crown of the head which measured 1|4 inches. There were two other superficial tears in the right side of the head, one being at the temple and the other one being in the forehead at the hairline. There were abrasions generally about the torso and extremities. These would conclude the wounds that I made note of as being present from the examination of the body externally.
“Q. Now, could you be a little bit more —amplify more specifically the cranial portion of the body? I am sure you examined it.
“A, Yes, sir. The laceration to the top of the head which I have described as being a. U/2 inch tear in the top crown of the head and two superficial tears, one being in the temple and the other being at the forehead hairline on the right side, had somewhat irregular edges with the hair follicles somewhat protruded which would( tend to indicate blows sustained to the head as opposed to an injury from a bladed type instrument such as a cutting instrument. It would be of a blunt force type of trauma. It did not fracture the skull, and examination of the brain failed to show evidence of any apparent injury there. It was a blunt force trauma or blow sustained to the head.”
* * * * * *
“The numerous stab wounds which I have described which caused injury to several major areas of the body. One, a complete severing of the subclavian artery, penetration of the right lobe, penetration of the left lobe, and penetration of the pulmonary artery of the heart, penetration of the right atrial of the heart, these would be the primary injuries resulting in extensive hemorrhage which would in my judgment would have caused death.”

Mr. Pruitt did not view the body until 12:45 P.M. on April 12. Estimated time of death was 12 hours before that time — give or take a couple of hours either way.

There were no eye witnesses to this crime and the state had to rely on circum-’ stantial evidence. Appellant offered alibi evidence.

Around 8:55 P.M. on April 12, 1974, the stepfather of the deceased sent her to the C-Mart Grocery Store to buy a loaf of bread, some butter, and some ice cream for her and the smaller children. The C-Mart was several blocks from her home. The victim had a small black dog with a white chest and this dog went with her to the store. Across the street from the C-Mart was the Zippy-Mart. Both grocery stores were located on the Centre Highway.

At 9:15 P.M. that same night the stepfather heard a commotion outside his house and went out to investigate. He found the victim’s dog chasing a neighbor’s cat. He realized something was wrong as the dog had returned home alone. He got in his pick-up truck and made several trips to and from the C-Mart in search of the girl. Failing to find her, he reported her missing to the authorities.

At 9:00 P.M. that night Mr. Donovan Hawthorne drove his wife to the Zippy-Mart to do some shopping. He stayed in the car while his wife went in the store. He was asked what he observed while parked in front of the store, and he testified as follows:

“A. And we pulled up to the Zippy Mart and my wife got out and went inside. And there was this — no more than got there than this girl come walking by on the left side of us, and this little dog was following her. So, she had no more than got out — I guess got back beside of me — I quit looking at her when she got to the right side of me and I noticed the dog. And she no more than got out of sight, I imagine she had time, maybe, to get across the highway, or maybe on this side of the highway, one, and so she walked — must have went across the road or something —then about this time this car come pulling up, this white ’66 Impala, two door Super Sport, with a loud muffler, and I noticed the guy got out, and he walked up in — in front of me — or across, nearly in front of me and went in the door and he had a tattoo of a naked woman on the left inside of his arm, and he was walking swinging his arms is the reason I noticed the tattoo. He was blonde headed, and his hair come down nearly almost to his shoulders. Well, he walked in — went in the front— went down in front and went over to the bookstand and turned around and looked out the window, walked back across and down in front of the counter and around toward the back and turned around and come back around to the peanut stand and picked up a bag of peanuts and bought them and come out. Well, he come out, and I thought he was going to his car. I had the kids out there so I was just turned around and paying attention to them, and I didn’t hear him crank up or nothing in a little bit, and I looked and he wasn’t over there. So, in the meantime, this girl and dog had came back across the road and walked down through there, and I turned my head again, and started playing with the kids. Well, in a little bit I heard his car crank up and I looked back over there and he pulled off down beside the Zippy Mart, down that little road. In the meantime, my wife had bought the stuff and she was coming back out to the car, and we started to leave, and the car came back out at a pretty high rate of speed and almost run into us. I had to mash the accelerator to get out of the way. And the car went toward — come toward Gadsden.
“Q. Now, this man that you saw on that occasion, is he present in the courtroom?
“A. Yes, sir.
“Q. Would you point him out to the Court and Jury?
“A. (Thereupon, Mr. Hawthorne indicated that Mr. Cronnon was the man.)
“Q. Let the record show that he point to the man that’s in the brownish rust shirt — sports shirt. Is that him?
“A. Yes, sir.
“Q. Now, let me understand it. First, the girl, you saw her with a dog— came by on the side of the Zippy Mart, is that correct?
“A. Come — well, out from me a little piece.
“Q. And you noticed her with a dog. Did she have anything in her arms?
“A. No, sir, not when she was going. She did when she came back across the road, she had a sack in her arms.
“Q. Sack in her arms. Came back across the road and then you observed this Defendant, you say, Johnny Cron-non, come out of the store, the Zippy Mart?
“A. Yes, sir, after she had — well, he had pulled up when she was going across the road, I suppose, I didn’t see her until she got beside of me.
“Q. But she had a sack in her arms, she went back to the back.
“A. Coming back.
“Q. Coming back, she walked beside the Zippy Mart going down the dirt road beside the Zippy Mart, is that correct?
“A. Yes, sir, between the Zippy Mart and the dirt road, somewhere in there.
“Q. Then you observed the accused, Johnny Cronnon, come out of the Zippy Mart?
“A. No, sir, he came out before she came back across the road.
“Q. All right. When he came out, where did he go?
“A. He went toward his car, that’s when I didn’t look at him no more.
And I looked over there in a minute and he wasn’t in the car.
“Q. But he had been in the Zippy Mart ?
“A. Yes, sir.
“Q. Came out of the Zippy Mart, towards his car, and then the girl crossed the road again, came back, going back home down the road?
“A. Yes.
“Q. And then what did you observe the Defendant do?
“A. Well, I heard his car crank up, and looked over there, and he was in it driving down that road.
“Q. You mean the same direction she had gone?
“A. Yes, sir.
“Q. How much longer after she had gone down that dirt road beside the store was it that the Defendant went down there in his car following her down there?
“A. About two minutes — a minute or two minutes.
“Q. All right. Now, let me ask you, Mr. Hawthorne, did this Defendant ever follow on foot the Defendant, or was he in the car going down the dirt road that he followed her? (sic)
“A. I couldn’t tell from where I was sitting. He come back, or he got in his car, and drove down there and then he came back.
“Q. All right, sir. He came back but he came back from having been on the side with her, is that right, the same direction ?
“A. About the same direction right there, but he might have been on the dirt road.
“Q. What I’m saying, was he ever on foot following her down the dirt road there ?
“A. I don’t know, I couldn’t see.
“Q. I see. But you did observe him in the car follow her down there, is that correct?
“A. I don’t know whether he followed her down there in the car or not, but he went down there and turned around and came back in just a little bit.
“Q. About two minutes, you say?
“A. About a minute.
“Q. And he was going at a very high rate of speed when he came back and headed towards Gadsden?
“A. Pretty good, pretty fast.
“Q. Now, how well was this lighted up in front of the Zippy Mart? Well lit, poorly—
“A. Fair, fairly well lit up.
“Q. The lights out in front of it, sir?
“A. Yes, sir.
“Q. And I believe you said you observed a tattoo on the forearm of a naked woman ?
“A. Yes, sir.
“Q. Of this Defendant?
“A. Yes, sir.
“Q. Because he was swinging his arms ?
“A. Yes, sir.
“Q. And when did you observe that tattoo, sir?
“A. Right before he went in the door.
“Q. To go in the Zippy Mart, sir?
“A. Yes, sir.
“MR. RAYBURN: Mark this as State’s Exhibit Number 11..
“(Whereupon, State’s Exhibit Number 11 was marked for identification.)
“Q. I’d like for you to look at State’s Exhibit Number 11, sir. Is that the car you have been testifying about, sir ?
“A. Yes, sir, looks just like it.
“Q. Fair and accurate picture of the car you have been testifying about?
“A. Yes, sir.”

On cross-examination this witness testified that he did not call the Gadsden Police Department until he heard about the missing girl on the radio the next morning. He said if the radio report had not mentioned a girl with a dog he would not have thought anything about what he had observed the night before. He talked to some sergeant who asked him to come to the department and he went by that afternoon and signed a written statement about what he saw the night before. He described the man he saw that night as having long blonde hair with dark streaks running through it, very thin sideburns, and a light mustache. His hair was considerably lower than his collar.

Hawthorne further testified that the police brought two sets of photographs to his home and he was unable to identify the man he saw at the Zippy-Mart on April 11, 1974. Two months later while Hawthorne was in summer camp at. Camp Shelby, Mississippi, the officers brought him another set of photographs or mug shots and he identified appellant without hesitation. As above quoted, Hawthorne made a positive in-court identification of appellant.

Mr. Roy McDowell, an investigator for the Sheriff’s Department, testified that he went to the scene of the crime shortly after the body of the victim was discovered and before the body was removed. According to his testimony the killing occurred at a point on a high bluff — 75 to 100 feet above the southbound lane of Interstate Highway 59. There was a flat space on the,, bluff about 30 by 20 yards wide. He found the weeds mashed down and two pools of blood and the victim’s clothing. He described the clothing as follows:

“A white, brassiere with blood on it, there was a blue windbreaker, and one pair of blue slacks with a white leather belt, and a pair of panties and one red blouse.”

He further testified that the windbreaker and slacks had blood on them. The clothing had not been mutilated or cut indicating that she was not clothed at the time she was stabbed.

Mrs. Rosemary Freeman testified for the state. She said appellant was her husband’s first cousin and had been living in their house two or three weeks prior to April 11, 1974. They lived at 410 Carolyn Lane in the Oakleigh Estates in North Gadsden. Appellant was not employed during the time he lived with them but at times rode with her husband who was an exterminator. She did not see appellant during the day of April 11th, but heard him come in the house around 10:00 P.M. He slept on the couch in the living-room and she heard him turn on the television set. Her husband and her sister had gone to a movie and got home between 11:30 and 12:00 P.M. When they came in, she got out of bed and all of them went in the kitchen including appellant. She noticed a ten-pound bag of potatoes and a bag of pistachio nuts. She asked appellant where he got the potatoes and he told her he bought them from a peddler who was selling fruits and vegetables. She asked him about the pistachio nuts and said, “I didn’t know you liked pistachio nuts,” and he said, “Yeah, I like them.” She said he said he got them at the store and she assumed that is where he bought them.

She further testified that appellant had a green shirt and tan pants and she noticed a superficial scratch on one of his arms. She left 'for work a little after six o’clock the next morning. She walked through the livingroom and saw appellant asleep on the couch without- a shirt on and she noticed long scratches on both of his arms and a tattoo of a nude lady on his left arm. She further stated that appellant did not have scratches on his arms prior to the night of April 11th.

She described appellant as having long hair, long bangs — fluffy brassy color or reddish blonde; that he had an old Chevrolet that was an off-colored white with a Tennessee tag. The Chevrolet automobile did not have a muffler and made a loud noise. She said that appellant did not live with them after April 12, 1974; that he left their home on that date and went to Tennessee to get his income tax refund check and the next time she saw his car, it had an Etowah County tag on it. A few days later he traded his car for a Chrysler automobile.

This witness said she saw appellant a few days after he left their home and he had shaved off his mustache and had colored his hair a light brown.

Mr. Wesley Freeman, appellant’s first cousin, testified for the state and corroborated the testimony of his wife in every respect.. In addition to this, he testified that about two weeks before the girl was killed, appellant borrowed a knife from him; that the blade of the knife was about 4i4 inches long and he had not seen the knife since he loaned it to appellant. He further testified that the muffler on appellant’s car had a hole in it and it made a loud noise.

Mr. L. P. Payne, an investigator for the district attorney’s office, testified that he drove his automobile from the Zippy-Mart to the place where the girl’s body was found and that it took him 19 minutes to go and 18 minutes to return; that he stopped for all red lights and drove faster when he got on Interstate 59.

Mrs. Edwin Cochran testified that on the day of the girl’s funeral, a man answering appellant’s description stopped at the Arco Service Station operated by her, her husband, and son and asked her for directions to the Collier-Butler Funeral Home.- She asked him if he had a relative there and he said that he did not, that it was a friend. She further testified that, “He said it was the girl who was murdered and he just wanted to pay his last respects.” She said the man had long hair and it was a bleached color and he was driving an old dirty white Chevrolet. She identified appellant at his trial as being the man that stopped at the service station on the day of the funeral.

Appellant was arrested on June 17, 1974. He was given the Miranda ■ rights and warnings. He refused to sign a waiver of rights form but he did give the officers a written statement which was exculpatory in nature.

This statement was not admitted in evidence until the state took the testimony of two rebuttal witnesses. However, in order to better understand the theory of the prosecution, we think it wise to set out this statement at this time. The statement is as follows:

“STATE’S EXHIBIT NUMBER 23
“VOLUNTARY STATEMENT (Under Arrest)
“DATE 6-17-74 TIME 4:30 P.M. PLACE Etowah Co. Sfheriff’s (sic) Office
“I, Johnny Lee Cronnon, am 33 years of age and my address is Route #1, Chickamauga, Georgia. I have been duly warned by Roy McDowell, who has identified himself as County Investigator, that I do not have to make any statement at all, and that any statement I make may be used in evidence against me on the trial for the offense concerning which this statement is herein made. Without promise of hope or reward, without fear or threat of physical harm, I freely volunteer the following statement to the aforesaid person:
“I have been living with my father Clarence Cronnon, Route #1, Chickamauga, Georgia about one and a half or two months. On the night of April 11, 1974, the night the Aiello gir (sic) was murdered I went to Ferns, (sic) a friend of mine that is kin to the Regans about 6 :30 or 7:00 P.M. I did not stay long. A little after 7:00 P.M. I came to Irene Thompson’s trailer off Alabama Street and 12th. I stayed about one and a half hours then I went to Mason’s. I bought a chest set (sic) and 10 Lbs of Irish potatoes from a pedler (sic) out front while I was at Mason’s. About 8:45 P.M. I left Mason’s and went home. I went by the Zippy Mart on the Centre Hwy. and got home about 9:00 P.M. Rose Mary and the kids were there. Wesly came home about 11:30 or 12 :00 P.M. and we went up to where the Rescue Squad was at the Zippy Mart. I was lying on the couch when Wesly came in. Me and Wesley went to the Zippy Mart, we talked to the boys on the rescue squad and the Highway Patrole. (sic) We were in Wesley’s car. I did not stop when I went home from Mason’s.
“I have read the J_ pages of this statement and the facts contained therein are true and correct.
“WITNESS: /s/ Roy McDowell /s/ Johnny L. Cronnon
Signed by the arrested Party.
“WITNESS: /s/ Sgt C. Ray Beaird PageJ of 1 pages.”

Appellant testified in his behalf, and also offered the testimony of his mother, his step-mother, and his girlfriend.

His mother, Mrs. Gracie Wilkes, testified that on April 11, 1974, she lived at 2506 Norris Avenue, Alabama City, and that her son came to her house on that date at 6:30 P.M. and left at 20 minutes before 9:00 P.M. She could not remember how he was dressed but said he had long hair that came down to his shirt collar and bangs down to his eyebrows and he also had a mustache. She could not recall him having sideburns. She said a friend of hers, Mrs. Edith Dyer, was there that night also. When appellant left, he told her he was going to Wesley Freeman’s.

On cross-examination, she was asked if her son mentioned to her that he was going to Fern’s, a friend of his that was kin to the Reagans and she said that he did not; he said he was going to Wesley Freeman’s. She said she knew Fern and knew he was kin to the Reagans. She was asked if he told her he had gone over to Irene Thompson’s trailer off Alabama and 12th Street a little after 7:00 P.M. and stayed there for I14 hours and she replied, “No, he was at my house.” She did admit she observed the tattoo of a naked woman on one of his arms.

Mrs. Bertha Cronnon, appellant’s stepmother, testified that on April 11, 1974, she was living in Chickamuaga, Georgia; that appellant came to her house on Saturday night before Easter Sunday, which was on April 14, 1974. He had long orange-colored hair and she asked him to let her dye it for him. She and her daughter dyed his hair a light brown. She talked to him about getting his hair cut and gave him the money to pay for the hair cut. She said he had a light brown mustache but his sideburns were not very long.

On cross-examination she testified appellant was driving a 1966 Chevrolet and he had a Tennessee tag on the car; that he stayed there a day or two and then returned on April 18, 1974, and stayed with them until the officers picked him up. She said when he came back on April the 18th, he had a Chrysler automobile and he had shaved off his mustache.

Brenda Waddell, appellant’s girlfriend, testified that she worked at the Village Inn, in Alabama City; that she had known appellant about six months and that on April 12, 1974, he came in the Village Inn. She described him as having blondish-red hair down to his neck and he had. sideburns. She said he had a light brown mustache. She said he had scratches on his arms before April 12th. She knew about the tattoo of a naked woman on his arm.

On cross-examination she said she had been going with appellant about six months before the girl was killed; that when she was going with him he was driving a 1965 or 1966 Chevrolet car with a Tennessee tag on it. She said that within a week after the girl was murdered, appellant had dyed his hair brown and shaved off his mustache. She further testified that she learned of the girl’s death on April 12th when appellant came in the Village Inn, and he was the person who told her about it.

Appellant testified that he was 33 years of age, 5 feet 7 inches tall and weighed about 135 pounds. On direct examination he freely admitted previous difficulties with the law, including two convictions of interstate transportation of stolen automobiles, petty larceny, armed robbery, burglary and grand larceny. He had been on parole a few months before the girl was killed, but at the time of the trial, his parole was revoked.

He further testified that he was presently married but was separated from his wife on April 11, 1974. He said he had a daughter by a previous marriage. He was asked about his activities on April 11, 1974, and said he had worked late at the Home Pest Control and then went to his mother’s home. He said he left there at 8:35 or 8:40 P.M. and he stated:

“I left there at 8:35 or 40 and went to Meighan Boulevard and drove to Mason’s Shopping Center by the river. It was — rit was dark, I had went in and bought a chess set and checked on some Lewis Lamour westerns and I went back out front. There was a peddler in a pickup truck with fruits and things out there — I bought 10 pounds of bananas— or 10 pounds of potatoes, and 2 pounds of bananas for Wesley Freeman’s children. And I drove — the carburetor on my car — the automatic choke was hanging up, and my car flooded out — which I had been setting it on fire and putting it out with a rag in order to crank it, but I didn’t have nothing to put the fire out with that night, so I sat there about IS or 20 minutes. And I drove from there to Wesley Freeman’s house. Went in and put the things on the table and laid down on the couch and turned the TV on low and I dozed off to sleep and then Wesley Freeman and his wife come in and woke me up — or disturbed me and I woke up.”

He further testified that he got a call from his parole officer and when he went to his office several police detectives came in the office and told him he was under arrest. He said the officers kept him in a room and proceeded to read him his rights and asked him if he would give them a statement. They told him at that time what he was charged with and he gave them a signed statement. He admitted that he lied to the officers about going to Fern’s and to Irene Thompson’s trailer on the night of April 11th.

He further denied knowing the deceased and that he had not raped and killed her. He also denied that he went to the Zippy-Mart the night that the girl was reported missing.

He did admit that on the night of April 11, 1974, he was driving a 1966 Impala Chevrolet which was cream-colored and had a loud muffler. He also admitted having a tattoo of a nude woman on his arm and that he had dyed his hair a light brown and shaved off his mustache after April 12th. He further admitted that his Chevrolet had a Tennessee tag and that he bought an Etowah County tag two days before he traded his car for a 1966 Chrysler automobile.

On cross-examination he admitted that he was 33 years of age and had received felony sentences totaling 241/2 years in the State and Federal prison systems. He further admitted borrowing a knife from his first cousin in March of 1974 but claimed he put it on the floorboard of his cousin’s car. He claimed that he was doing some work on a house for Buddy Butler and that was how he got the scratches on his arms. He said the scratches went around his arms as opposed to going downward and the witnesses who so testified were just confused. He also denied that he went to Glencoe and had a conversation with Mrs. Cochran concerning the funeral of the girl that had been killed and told her the girl was a friend of his and that he just wanted to pay his last respects. He did admit that he went to the Village Inn on April 12th and told his girlfriend about the death of the girl.

The state called two rebuttal witnesses, viz., Willie Fern Wall and Roy McDowell, an investigator for the Sheriff’s Department. Wall testified that he was presently living in Rome, Georgia, and had formerly lived in Walnut Park in Alabama City near Gadsden; that he had known appellant all of his life; that he recalled the occasion when the girl was missing from a point near the Zippy-Mart in north Gadsden and that it was on April 11th. He further testified that appellant did not come to his house the night the girl was missing, the night before, nor the night afterwards.

Mr. Roy McDowell testified that he advised appellant of his rights the night he was arrested by reading to him a card containing the Miranda rights, and that he asked appellant if he wanted to make a statement and he said he would make a statement and he did make a statement quoted above on page 704; that he told appellant that he would not have to make a statement and that any statement he made could be used against him in court. He also told appellant he had a right to an atorney and to consult with an attorney before making any statement and have such attorney present while he was making his statement. He stated appellant never did ask for an attorney. The pre-Miranda predicate was laid and the court determined that the signed statement of appellant was voluntary and it was admitted into evidence over appellant’s objections that appellant had already testified that he made some mistakes in that statement and that it would be repetitious to offer the statement. The court overruled the objection and the statement was received into evidence.

Appellant filed a motion for a new trial and a hearing was held. At the conclusion of the hearing, the motion for a new trial was overruled and denied.

As we said in the beginning of this opinion, the state was forced to rely on circumstantial evidence to prove appellant’s guilt.

Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer the crime has been committed, the question must be submitted to the jury, and other evidence tending to implicate the defendant is thereby rendered admissible. Johnson v. State, 247 Ala. 271, 24 So.2d 17; Phillips v. State, 248 Ala. 510, 28 So.2d 542; DeSilvey v. State, 245 Ala. 163, 16 So.2d 183; McKee v. State, 33 Ala.App. 171, 31 So.2d 656; Harnage v. State, 49 Ala.App. 563, 274 So.2d 333.

We recognize the rule that one should not be convicted on mere suspicion, or for fear he might have committed the act, The theory that he did so must be supported by legal evidence.

There are, however, a number of incriminating circumstances reasonably calculated to connect the appellant as the guilty agent in the death of Jeanne Marie Aiel-lo. He was the last person known to have been near her at 9:00 P.M. on the night of her disappearance. He said he was working with his cousin on April 11th but his cousin testified that he was not. He told his cousin’s wife that he bought the pistachio nuts at the store and he was seen by Mr. Hawthorne buying nuts at the Zippy-Mart at 9:00 P.M. on the night of April 11 as the deceased was walking across the street from the O-Mart toward the Zippy-Mart with a sack in her hand followed by her little dog. When he went in the Zippy-Mart, Mr. Hawthorne saw the tattoo of a nude woman on the inside of his left arm. It is not disputed that he had such a tattoo. He drove to the Zippy-Mart in a Chevrolet Impala and the muffler had a hole in it and made a loud noise. He was seen driving in the direction the deceased was walking and returned in a minute or two driving at a high rate of speed going toward north Gadsden, and he did not live in that direction. He was seen with long scratches on both arms early the next morning and he did not have any scratches on his arms prior to April 11th. Two days later he purchased an Etowah County tag to replace a Tennessee tag on his Chevrolet and the very next day he traded the Chevrolet for a Chrysler automobile. On the night of April 11th he had reddish blonde hair, sideburns and a mustache. A few days later his hair was dyed a light brown shade and he had shaved off his mustache. He gave the officers a written statement, signed by him, as to his whereabouts on the night of April 11th and he admitted on the witness stand that he had given them a false statement. Then there is the matter of the knife he borrowed two weeks before the killing. This knife was never returned to his cousin though the scabbard that came with the knife was turned over to the authorities by his cousin and introduced in evidence.

Any one of the above circumstances, when viewed isolationally, would be insufficient upon which to hinge a conviction,, but the totality of these incriminating circumstances, coupled with the testimony of his own mother, Willie Fern Wall and himself, which exploded his alibi, required the submission of the case to the jury. Harnage v. State, supra; Clark v. State, 54 Ala.App. 217, 307 So.2d 28.

Alibi evidence in a criminal prosecution is always a jury question. Price v. State, 53 Ala.App. 465, 301 So.2d 230.

In Haggler v. State, 49 Ala.App. 259, 270 So.2d 690, this court said:

“(But) 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 is for the jury. Bolton v. State, 21 Ala.App. 373, 108 So. 631.”

See Howard v. State, 108 Ala. 571, 18 So. 813, 815, wherein the court said:

“ * * * It is enough to say there was not that want of criminating evidence,— such want of evidence of every fact material to a conviction, — as required that the court should withdraw it from the consideration of the jury. The facts and circumstances in evidence, if dissevered and disconnected, may be weak and inconclusive; but their probative force, when combined, as it was the province of the jury to combine them, under proper instructions from the court, may have satisfied them of the guilt of the defendant. * * *”

Appellant objected to the introduction in evidence of photographs of the nude body of the deceased showing numerous stab wounds on the ground they would tend to inflame the minds of the jury.

In Harnage v. State, supra, we said:

“Gruesomeness is not ground for excluding evidence consisting of photographs and clothing if it has a reasonable tendency to prove or disprove some material fact in issue, or which at the time appeared to be probably in dispute or material, and if it illuminates the issues in any way, and is relevant, it is admissible even though possessing a tendency to inflame the minds of the jury. McKee v. State, 33 Ala.App. 171, 31 So.2d 656; Grissett v. State, 241 Ala. 343, 2 So.2d 399; Wilson v. State, 31 Ala.App. 21, 11 So.2d 563.”

See also McKee v. State, 253 Ala. 235, 44 So.2d 781, and Butler v. State, 54 Ala.App. 468, 309 So.2d 505.

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 judge and the decision thereon rests largely within the sound discretion of the trial court. Clark v. State, supra, and cases therein cited.

There was no error in overruling the motion for a new trial.

Appellant bitterly complains about the closing arguments of the prosecuting attorneys though he made no objections thereto. He gambled and speculated on the verdict of the jury and then raised the issue in his motion for a new trial.

The arguments of the prosecutors as well as the argument of appellant’s counsel are reported in full in the record. It cannot be gainsaid that the prosecuting attorneys made strong appeals to the jury for a conviction. Appellant’s counsel made just as strong an appeal to the jury for an acquittal of his client.

Counsel for the state and defendant are allowed a rather wide latitude in drawing their deductions from the evidence. Lindsey v. State, 17 Ala.App. 670, 88 So. 189; Cross v. State, 68 Ala. 476; Hobbs v. State, 74 Ala. 39, 41.

We think what the Supreme Court said in Arant v. State, 232 Ala. 275, 167 So. 540, is a complete answer to appellant’s bitter complaint concerning the arguments of the prosecuting attorneys. There the court said:

“Indeed, defendant insists that the matter of argument and method of examination of witnesses by the solicitor, in large part hereinabove related, was improper and reprehensible, and highly prejudicial to such an extent as to call for a new trial. Much stress is laid upon the case of Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. But we find no parallel between that case and this. We are in full accord with the holding that a prosecuting officer should be fair and take no undue advantage of the accused. But the argument here advanced would require more, and would leave out of consideration the solicitor’s conviction that he was discharging a duty to society by his prosecution of the accused whom he honestly believed guilty, and it would leave out of consideration the human element that in the heat of debate some harsh expression, though justified by the proof, fell from his lips. The proprieties must not be overreached. But, after all, we must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair. The solicitor is yet under duty to prosecute with earnestness and vigor — to strike hard blows, but not foul ones. Berger v. United States, supra.
“So viewed, we find nothing in the conduct of the solicitor throughout the trial which could be said to be reprehensible in the least. The crime was most revolting. All parties concerned were people of more or less prominence in the community. The trial appears from this record to have been fairly conducted, and with due decorum.”

We find no reversible error. Accordingly the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    In re Johnny Lee CRONNON v. STATE. Ex parte Johnny Lee Cronnon.
    SC 1398.
    Supreme Court of Alabama.
    Sept. 25, 1975.
    Myron K. Allenstein, Gadsden, for petitioner.
    No appearance for respondent.
   MADDOX, Justice.

Petition of Johnny Lee Cronnon for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cronnon v. State, 56 Ala.App. 192, 320 So.2d 697.

Writ denied.

HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.


author: BOOKOUT, Judge.

text:
    Kimleigh M. BUSEY v. STATE.
    6 Div. 950.
    Court of Criminal Appeals of Alabama.
    June 30, 1975.
    Rehearing Denied July 29, 1975.

      Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Appeal from denial of Petition for Writ of Habeas Corpus.

The appellant was indicted for felonious fraud on September 24, 1974, by the grand jury of Bernallillo County, New Mexico. A bench warrant was issued by the judge of the district court of said county on September 27, 1974, for his arrest. On October 7, 1974, an application for the extradition of appellant was made by the Governor of New Mexico. On October 24, 1974, the Governor of Alabama signed the rendition warrant releasing appellant to the State of New Mexico. On February 28, 1975, evidence was taken as to the habeas corpus petition, and the circuit court denied appellant relief.

The appellant, Kimleigh Michael Busey, was called .as a witness and testified that he lived in Birmingham, Alabama, and knew Ms. Carol Ann Cox of Albuquerque, New Mexico. Appellant’s testimony further stated that he became engaged to be married to Ms. Cox. He admitted that on the evening of December 8, 1973, when they became engaged, he told Ms. Cox that he and a friend were thinking of going into business together and that if they did, they would not have much to live on. After this, Ms. Cox told the appellant that she had some money of her own. On December 10, 1973, Ms. Cox wrote a letter to her stockbroker in New York directing him to sell all her stock commencing January 2, 1974. Appellant was present when Ms. Cox typed the letter and after she signed it, appellant mailed it himself.

On January 7, 1974, Ms. Cox received a check from her stockbroker for a sum just over $11,000.00. Appellant was present that evening when she opened her mail, and the next morning, he went with Ms. Cox to her bank to have a bank draft made out in his name. Appellant further stated that the money was deposited in a bank account in appellant’s name in the amount of $10,700.00. He also admitted that the money was to be used for the business he planned with his friend, partly as a down payment on a mobile home for appellant and Ms. Cox, and the rest for an undetermined use. There was no written contract or promissory note relative to this money.

Appellant testified that Ms. Cox’s brother-in-law threatened him, and on January 18, 1974, he left New Mexico and came to Alabama. Appellant stated further that Ms. Cox told him that “she was going to take care of that problem,” but the next morning he let New Mexico taking all of Ms. Cox’s money with him. Appellant was arrested on a warrant in September 1974 by three officers from the Birmingham Police Department accompanied by a Pinkerton agent and the brother-in-law.

Appellant claimed to have talked to Ms. Cox subsequent to the arrest at which time she supposedly told the appellant that the only thing she wanted was her money back, that she didn’t want to make any trouble, but that she had to have her money back. After talking to Ms. Cox, the appellant stated that he never saw her again. Appellant spent all of the money that he acquired from Ms. Cox.

I

It was appellant’s contention that the extradition proceedings by the State of New Mexico, directly or indirectly, sought to aid in the collection of a debt, demand or claim, and are prohibited by Title IS, § 68, Code of Alabama 1940, which reads as follows :

“Nothing in this chapter shall be construed as authorizing the extradition of any person in this state to any other state where the extradition proceedings, directly or indirectly, seek to aid in the collection of any debt, demand or claim against the party sought to be extradited.”

Appellant insists that the subsequent conduct of the complainant and her brother-in-law in telephone and personal conversation with appellant have shown satisfaction of a debt, demand or claim to be the intention of the complainant.

We are not convinced that the evidence of the instant case establishes that these extradition proceedings were instituted for the purpose or purposes denounced by the provisions of Title 15, § 68, supra.

The three cases cited by the appellant in support of his position very amply illustrates the law in Alabama in regard to the refusal of extradition when the evidence is such that the proceeding is a method of collection of a debt, demand or claim. However, it is this Court’s opinion that these cases can be distinguished from the instant case. In the first case cited by the appellant, Scott v. State, 33 Ala.App. 328, 33 So.2d 390 (1948), Presiding Judge Bricken stated:

“Where the governor’s warrant recited that accused was charged in Georgia with ‘the crime of Misdemeanor (bad check),’ and the undisputed evidence disclosed that check was returned with the notation ‘Drawn against uncollectible funds,’ and that payee has instituted civil or equitable proceedings, which are pending, and has threatened accused with arrest and extradition if money was not promptly paid, and that extradition proceedings were instituted, directly or indirectly, to aid in the collection of such a check, extradition could not be had. ...”

In the instant case, there is no evidence that civil litigation is pending against the appellant, nor that anyone threatened the appellant that if he did not pay, criminal action and extradition would ensue. It is difficult to envision that the alleged statement of the complainant could be construed as an agreement to drop criminal charges if the appellant were to repay the money.

The second case cited, Bishop v. State, 38 Ala.App. 667, 92 So.2d 323 (1957), is easily distinguishable since the trial court in Bishop, supra, refused to admit evidence tending to show that the alleged warrant was for the purpose of collecting a debt in a foreign state. In Bishop, supra, Presiding Judge Harwood stated:

“By its rulings the court below precluded this appellant from attempting a showing which, if established to the required degree, would have entitled him to his discharge. His efforts along this line may, or may not, have been meritorious. He at least however was entitled to an attempt to show that the extradition proceedings were in aid of collecting a debt.”

The trial court in the instant case did allow the appellant to testify as to proof of his “collection of a debt or claim theory.”

The third case cited by the appellant, Chatham v. State, 46 Ala.App. 729, 248 So.2d 768 (1971), can also be distinguished from the instant case. In that case Chath-am was charged with embezzlement by his former employers. This Court reversed that case and discharged the appellant, stating:

“But upon the whole of the evidence we are compelled to the conclusion that this extradition was sought either directly or indirectly to aid in the collection of a debt demand or claim against the party sought to be extradited and falls within the inhibitition (sic) of Sec. 68, supra.”

That case differs from the instant case in that there was testimony from the employers, as complainants, which tended to show that if Chatham were to repay his employers the money he owed them, they in return would not pursue criminal charges and extradition. The testimony appears as follows:

“A. And we asked him if he could give us some money or rather give us the seventeen hundred, whatever that check was, if he could repay us that because our books should show that we had spent some fifteen or sixteen hundred dollars of our money repairing the house.
“A. We had sort of agreed, he had agreed that he would come back over and straighten out these several jobs that we had and bring us the contracts that he had taken from the office to tell us exactly how much we had to do on the house, whether we had to paint the outside and the inside and what rooms we had to repair and so forth.
“Q. Well, what conversation did you have with him about this warrant for his arrest ?
“A. I just I think he was aware of the fact that a warrant had been issued and he asked about it and I - - - and we told him yes.
“Q. And that, you say that’s the extent of the conversation P
“A. That’s all I can recall, let me say that.
“Q. Did you say anything about what was going to happen to that warrant if he did cooperate with you and come back and straighten these things out ?
“A. I don’t recall whether we said that or not, no sir.
“Q. You could have but you don’t remember, is that it ?
“A. I would say off-hand, that if we discussed this, we discussed - - - we ■talked for several, oh, I’d say 20-30 minutes, that we certainly don’t want to see criminal action brought against Mr. Chatham. We don’t have any bad feelings between us like that. We, of course, wanted to get the money that was due us and we certainly needed it to find out where we were in several jobs.”

In Chatham, supra, this Court had substantially stronger testimony than we now have, tending to show that extradition was for the purpose of collecting a debt. The trial judge, hearing the testimony ore tenus from the appellant, was in a position to observe the demeanor of the witness and to consider his testimony in light of the fact that the witness had an interest in the outcome of the case. The trial judge was in a better position than we are to determine the credibility to be given the appellant’s testimony, and we will not overturn his decision unless it is clearly and palpably erroneous. Blackwell v. State, 38 Ala.App. 562, 89 So.2d 228 (1956).

In the case of Morrison v. State, 258 Ala. 410, 63 So.2d 346 (1953), the Supreme Court of Alabama found the evidence insufficient to support the claim that the extradition proceeding was instituted for the purpose of aiding in collection of a debt, demand or claim citing the case of Tingley v. State, 34 Ala.App. 379, 41 So.2d 276, cert. denied 252 Ala. 520, 41 So.2d 280 (1949).

In Morrison, supra, Justice Simpson, speaking for the Court, stated:

“The second insistence, that the purpose of the extradition proceeding was to aid in the collection of a claim against him, is equally untenable. While he did testify that one of the officers who interviewed him with reference to the extradition papers before he was arrested told him in substance that the only thing that was going to keep him out of Georgia would be for him to raise $1,800 he owed on the personal property he was charged with having fraudulently disposed of in violation of the laws of Georgia, this does not suffice within the rule of our cases to show that the party who preferred the charge had done so in order to enforce the collection of the ■ claim against him. . . . ”

In Tingley, supra, Judge Carr, on the same subject quoted from In re Faler et al., 144 Kan. 348, 58 P.2d 1119, 1120, as follows:

. . It is said that a writ of ha-beas corpus should be granted whenever there is no testimony to show that the party arrested is probably guilty of the crime charged. But here there was testimony. There were the recitals of the criminal - complaint’, positively sworn to before the justice of the peace. The verified complaint served the purpose of showing that a crime had been committed and that the accused were probably the guilty parties.’ ”

In the instant case, the appellant contends his alleged conversation with Ms. Cox was sufficient to prove her purpose or motive for the extradition proceeding was to aid in the collection of the money he owed her. While it may be true,that Ms. Cox may have wanted a return of her money, which would be human, there is no evidence that the prosecution or extradition would be abandoned if payment was made. We doubt that she would have had control over a dismissal of the fraud indictment in New Mexico and withdrawal of the Governor’s rendition warrant in any event.

The mere expression of a desire on the part of a defrauded person for a return of their money will not be used by this Court as a vehicle of escape for an indictee to evade facing trial. As we review the record, the extradition proceedings for return of the appellant to New Mexico to answer an indictment for fraud are regular and conform to the mandate of Alabama law.

Affirmed.

TYSON, HARRIS’ DeCARLO, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: HEFLIN, Chief Justice.

text:
    In re Kimleigh M. BUSEY v. STATE. Ex parte Kimleigh M. Busey.
    SC 1412.
    Supreme Court of Alabama.
    Sept. 25, 1975.
    Arthur Parker, Birmingham, for petitioner.
    No appearance for respondent.
   HEFLIN, Chief Justice.

Petition of Kimleigh M. Busey for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Busey v. State, 56 Ala.App. 205, 320 So.2d 709.

Writ denied.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


author: TYSON, Judge.

text:
    Theodore Benjamin NELSON v. STATE.
    1 Div. 574.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Floyd Minor, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The two-count indictment charged the appellant with the second degree burglary of the dwelling house of Pauline Cooley, and buying, receiving, concealing, or aiding in concealing, a deep freeze and a television set of the aggregate value of $800.00, the personal property of Pauline Cooley, knowing that said property was stolen, or having reasonable grounds for believing that it was stolen and not having the intent to restore it to the owner. The jury’s verdict found the appellant “guilty of receiving and concealing stolen property as charged in Count Two of the indictment,” and the trial court then adjudged the appellant guilty, setting sentence at eight years imprisonment in the penitentiary.

Pauline Cooley testified that she lived at 1007 Tennessee Street in Mobile; that she left home on the night of September 7, 1974. She stated that when she returned, she discovered that her front door had been broken into and her brown deep freeze, her television, and a radio were all missing. Ms. Cooley further testified that she did not know the appellant, Theodore Nelson, and that she had not given him permission to go into her home; that she had locked all of the doors and windows before leaving the house. She stated that around 2:30 a. m. she accompanied the police to Creóla Bumpers’ sister’s house where she saw her deep freeze and pointed it out to the officers. She found her television set about a week later at her sister-in-law’s house.

Creóla Bumpers testified that she lived at 1601 Robert E. Lee Street, but that on the night of September 7, 1974, at around 10:00 or 11:00 o’clock, she was at her sister’s house, located at 1353 Antwerp Street. She stated that “Bodine” and three other black men brought a deep freeze to her sister’s house; that “Bodine” had called her earlier and asked if he could leave it at her house until he had a chance to move it to his mother’s house. She told him that she had no room for it at her house, 'but that he could bring it over to her sister’s house. Ms. Bumpers testified that she told a policeman, who was parked in front of her sister’s house, that the men were moving the freezer for their mother. On cross-examination, she testified that the appellant, Theodore Nelson, was not one of the four men who helped carry the freezer into her sister’s house. On re-direct, Ms. Bumpers admitted that there were other men who remained in the car while the freezer was being carried inside, and that she did not get a good look at them.

Charles Dixon, a police patrolman with the city of Mobile, testified that he observed the appellant on the night of September 7, 1974, with two other men in an Oldsmobile around midnight at the intersection of Melrose and Ann Streets. Officer Dixon stated that the trunk lid of the car in which appellant was riding was up and there was a freezer in the trunk which appeared to be cold as there was a “smoke of frost” coming from the trunk. He followed the automobile to 1353 Antwerp where it stopped, and a lady came out in the yard. She told him that the men in the Oldsmobile were moving the freezer for their mother. Dixon testified that he saw the appellant, Theodore Nelson, get out of the right front passenger side of the automobile. He stated that he was also present two or three hours later when Officers Pinkney and Taylor arrested the appellant at his apartment on Lott Street, at which time he observed the same Oldsmobile that he had seen earlier at 1353 Antwerp. Dixon testified that he found a brown paint on the edges of the trunk area and a piece of rope tied to the trunk lid. He said that he had noticed the same rope, tied to the trunk in the same fashion, earlier in the evening.

Detective Sergeant James Taylor of the Mobile Police Department testified that he arrested the appellant at his residence at 504 Lott Street around 4:00 a. m. on September 8, 1974. At the time of the arrest, he noticed a maroon Oldsmobile with a black top in appellant’s driveway and discovered brown paint scrapings in the area of the trunk lid. Taylor’s testimony concluded the State’s case, and appellant’s motion to exclude the State’s evidence was denied by the trial court.

The defense produced four witnesses, each of whom testified that he or she was at the appellant’s home playing cards on the night of September 7, 1974, that the game lasted from 9:00 p. m. until 1:00 a. m., during which time no one, including the appellant, who was also present, left the house.

John Evans testified that his nickname was “Bodine” and that he was arrested on September 7, 1974, in connection with a stolen deep freeze and television, the property of Pauline Cooley. Evans stated that he first came into contact with the freezer and television when one Arthur Martin asked him to help move them on the night of September 7, 1974. He said that after talking to Martin, he went to appellant’s apartment around 10:00 p. m. and borrowed his car in order to move the freezer and television, but that the appellant did not accompany him. Next, he called Creóla Bumpers, told her that he and his “old lady” had had an argument, asked her if he could keep their freezer at her house until he could move it to his mother’s house. He said Creóla told him that there was no room at her house, but that he could bring the freezer to her sister’s house. Evans testified that he and Martin picked up two other men who helped them move the freezer to Creóla Bumpers’ sister’s house. When they arrived at the sister’s house, Creóla came out in the front yard and told a policeman that had been following them that they were moving the freezer for their mother. Evans said that after the policeman drove away and they had taken the freezer inside, he dropped the other three men off and returned the car to the appellant’s apartment.

On cross-examination, Evans admitted that he had been convicted in this case. He also stated that he had known the appellant, Theodore Nelson, for ten or eleven years.

Appellant’s request for the affirmative charge was denied.

I

In view of the appellant’s motion to exclude at the close of the State’s case and request in writing for the affirmative charge, the weight and sufficiency of the evidence is now before us for review.

A judgment of conviction for buying, receiving, or concealing stolen property will be reversed absent proof of the value of the property. Curtis v. State, 44 Ala.App. 335, 208 So.2d 245; Padgett v. State, 44 Ala.App. 548, 216 So.2d 187.

One convicted of buying, receiving, or concealing stolen property is punished as if he had stolen it. Title 14, Section 338, Code of Alabama 1940. Therefore, the value of the property must be proven in order to determine whether a convicted defendant should be punished for grand or petit larceny.

As stated by Chief Justice Tyson for the Supreme Court of Alabama in Booker v. State, 151 Ala. 97, 44 So. 56 (1907) :

“There was no proof of the value of the property. Under the statute the offender must be punished as if he had stolen it. Proof of value was, therefore, necessary to a conviction, in order to determine whether the punishment should be that prescribed for petit larceny or grand larceny.”

In the instant case we have carefully searched the record, but have found no testimony whatsoever as to the value of the freezer or television set. Therefore, for the reasons stated, the judgment of conviction is due to be reversed and the cause is hereby remanded.

Reversed and remanded.

All the Judges concur.


author: WRIGHT, Judge.

text:
    Johnny Daniel BEECHER v. STATE of Alabama.
    8 Div. 426.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied. Oct. 29, 1974.

      U. W. Clemon, Birmingham, Elaine R. Jones, New York City, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   WRIGHT, Judge.

Appellant appeals from a conviction of murder in the first degree with a sentence of life in the penitentiary. The conviction was the third for this offense. The first two convictions were reversed by the Supreme Court of the United States for admission into evidence of confessions determined to be involuntary. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); Beecher v. Alabama, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972). Neither of the confessions involved in the other trials was attempted to be introduced in the trial below.

Defendant Beecher, a black man, was charged with the murder of a young white woman in Jackson County, Alabama on June 15, 1964. On that date, Beecher was an inmate in the prison system of Alabama. He was assigned to a State highway road camp near Scottsboro, Alabama.

The evidence tended to show that on the morning of June IS, 1964, Beecher, with other convicts, was carried by truck to a site on a State highway for work. At about 8:30 A.M. he was missed by the guard in charge and determined to have escaped. The place of escape was some eight-tenths of a mile from the home of the deceased.

Within a few minutes of learning of the escape, the guard proceeded along the road notifying residents that a convict had escaped. He received no response in knocking on the door of the deceased, though she was at home when her husband left for work earlier that morning.

At about 10:00 A.M. the husband of the deceased was contacted to learn of her whereabouts. He came home to investigate and found the house disarranged. At about 1:30 P.M. on the 15th tracking dogs belonging to the prison system were brought to the place where Beecher was last seen. There was a track in the sand where he had been. The track was identified as that of Beecher by a mark on the heel or sole of the prison issue shoe known by the guard. From that track, the dogs followed a trail to the rear of deceased’s home. After searching in the vicinity of the home for several minutes, the dogs picked up a scent and followed it toward a mountain for a mile or two. They came to bay in an abandoned shack and were followed to the shack by their handlers. There was found in the shack an undershirt identified as prison issue. Leaving the shack, the dogs again followed a scent to an old strip mining area. There they came upon a crowd of people numbering 75 to 100. The scent they had been following was lost for a time.

Later the same evening the dogs picked up a trail and followed it to the Tennessee River. Efforts to pick up the trail on the opposite bank were not fruitful. A sighting of a man near the railroad in South Pittsburg, Tennessee, was reported and the dogs and their handler were brought to the scene. There, in a dry creek bed, the same shoe mark was observed as had been seen at the place of escape and at the home of the deceased. The trail from that point was subsequently lost when the dogs followed it onto the railroad. On June 17, Beecher was seen walking along the railroad tracks at South Pittsburg, Tennessee by the Chief of Police. The Chief chased Beecher into a wheat field where he was halted by a shot in the leg. He was wearing prison clothing and a “light looking” undershirt.

At about 10:00 A.M. on the morning of June 16, searchers found the body of deceased in the strip mining area. The body was tied hand and foot and was gagged. Around the neck was a web belt by which she had apparently been strangled to death. The cloth ties, and the belt were identified as prison issue and one of the strips of cloth had the prison stamp upon it. The cause of death was determined to be manual strangulation and the time of death established as at or near 5:25 P.M., June 15, 1964. Examination by the State Toxicologist disclosed non-viable male spermatozoa present in the vagina of the deceased, though no injury to the genital area was found. The last known sexual intercourse was with her husband early on the night of June 14. The smear containing spermatozoa was taken by the toxicologist at about 1:30 P.M. on June 16. Spermatozoa is generally not detectable after 18 hours from intercourse, but may be found after longer periods in the vagina of a living woman.

The first trial of appellant was held in Jackson County, Alabama. The second trial in Cherokee County, Alabama. Upon motion for change of venue, the third trial was moved some 100 miles away and almost across the state to Lawrence County. Arraignment occurred in Lawrence County on April 6, 1973. Appellant entered a plea of “Not Guilty.” Motions for change of venue charging inflammatory and prejudicial publicity through news media in Lawrence County were heard and denied. Motion to quash the jury venire for invidious discrimination against negroes in selecting jurors was heard and denied. Motion to suppress any and all statements alleged to have been made by Beecher to officers outside the presence of counsel was heard and denied. Trial was commenced on June 18, 1973.

After presentation of the State’s case, motion for directed verdict of acquittal was denied. Arguments of counsel were presented, the court charged the jury and a verdict of guilty with a sentence of life imprisonment was returned on June 21, 1973. Motion to set aside and for new trial was denied. This appeal followed.

Appellant first contends error in denial of his motion to strike the jury venire for alleged invidious discrimination by the Jury Commission of Lawrence County in the selection of jurors.

In support of the motion to strike, appellant took lenghty testimony relative to the racial make up of the population of the county, and the methods used by the Jury Commission in selecting names of citizens placed on the jury roll and subsequently placed in the jury box for selection of a particular venire. Negro citizens of the county were examined as to their knowledge of the number of negroes in the county.

The evidence presented by appellant tended to show that in 1970, there were 12,934 whites over the age of 21 years and 2,355 negroes over 21 years of age residing in the county.

Thus, the ratio of negro to white presumed qualified for selection as jurors was 15.4% in 1970. The statutory qualifications for inclusion on the jury roll are set by Title 30, Sec. 21 of the Alabama Code.

Examination of the Jury Commission disclosed there were an estimated 3,000 names on the jury roll.at .the time of drawing the venire for the trial of appellant. There was no designation nor indication in the records of the Commission nor on the roll of the race of jurors. Testimony of a Commissioner was that he believed there to be some 20% negro representation on the roll. Appellant presented several negro witnesses who examined the jury roll in an effort to recognize the names of negroes. Each witness identified various names including his own. Though contending a wide acquaintance among negro citizens, each witness admitted there were many unknown to him. From the roll, the witnesses identified a collective total of .155-ne-groes by name. If all were identified, the ratio of negroes on the roll was 5.2%.

Two Jury Commissioners were examined along with the clerk. Their terms had begun in 1971. The long-time chairman and third Commissioner had - died - two weeks prior to the trial. Names for the jury roll were stated to come from examination of voting lists, tax records, telephone directories, recommendation of the Circuit Judge and other officials and individuals, key men in the various beats and from the personal knowledge of the Commissioners. The Clerk stated she visited the beats in the county, attended political rallies and community action meetings. Names of persons obtained in such manner were presented for consideration to the Commissioners. Neither of the Commissioners nor the Clerk knew more than 100 negroes in the county. Most of the negro citizens lived in a few beats, with some beats having no negroes in residence. None of the lists used identified persons by race. There was no indication either on the jury roll or the jury cards placed in the box of the race of the person listed. Thirteen ve-nires of the 15 or 16 drawn and used in trials during the year 1972 were introduced. From these venires containing some 1,000 names, appellant’s negro witnesses were able to identify 49 as being black. Each venire contained some persons recognized as negro. The Presiding Judge of the Circuit stated that his observation of the venires, as they actually reported in court, disclosed an average of 8 to 10 blacks out of the total of 75 to 80 on each venire. Of the 75 jurors drawn for trial of appellant in April, 1973, there were 5 blacks. The second venire drawn in June, 1973, contained 4 blacks. Of 58 jurors reporting on trial day, 3 were black.

Appellant submits that the statistical disparity between the number of blacks presumed to be eligible for duty as jurors and the number shown to be actually included on the jury roll, as well as the disparity in the percentage of blacks in relation to the percentage of whites contained on the roll establishes a prima facie case of invidious discrimination against blacks in violation of the United States Constitution.

It has long been established by federal statutory law, 18 Stat. 336 (1875), 18 U.S.C. Sec. 243 and the constitutional law established by the Supreme Court of the United States and applied to the states through the Equal Protection Clause of the Fourteenth Amendment, that a conviction of a negro by a jury from which negroes have been systematically excluded by reason of their race cannot stand. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Swain v. State, 275 Ala. 508, 156 So.2d 368. Systematic exclusion means a purposeful non-inclusion based solely on race. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. The burden of proving discrimination by systematic exclusion is on the defendant, Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; and “purposeful” discrimination may not be assumed or merely asserted, it must be proved. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed. 2d 759. However, once a prima facie case has been established the burden is upon the state to refute it. Swain v. State, supra. The question of proof necessary to establish discrimination is a matter of federal law. Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074.

Appellant contends that a showing of “statistically significant disparities between the percentage of blacks eligible to serve on juries and the actual percentage on jury rolls establishes a prima facie case of racial discrimination.” This is a broad statement with which we do not agree, and which we do not find supported by decisions cited of the United States Supreme Court. It was stated in Alexander v. Louisiana, supra, as follows:

“This court has never announced mathematical standards for the demonstration of ‘systematic’ exclusion of blacks but has, rather, emphasized that factual inquiry is necessary in each case that takes into account all possible explanatory factors.”

In the case of Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) though commenting on the “substantial disparity” between the percentages of negro residents in the county and of negroes on the jury list, it was further stated that it was shown that such disparity, at best, in part, originated from the subjective action and decisions of the Jury Commissioners. The combination of mathematical disparity with proved improper exercise of the selection process established the prima facie case of discrimination.

In the case before us there is no proof of use of improper subjective judgments by the Jury Commissioners which caused or contributed to mathematical disparity between blacks presumed eligible and those selected. There may be drawn the conclusion from the statements of the Commissioners that they had not well performed their statutory duties of compiling the jury roll, but such ill performance applied equally to both white and black. Of the 12,934 whites presumed eligible for inclusion on the jury roll, less than 25% were included. The evidence disclosed no purposeful design by the Commissioners not to include qualified blacks on the roll, except as may be concluded from mathematical statistics presented.

Of those negro witnesses appearing to testify, each, with his wife, was found to be present on the roll. Every venire drawn for the previous year of 1972 included blacks. None of the witnesses, being educators and presumed leaders in the black communities, had ever offered names of blacks to the Jury Commission for placing on the roll and none indicated refusal of or failure to include blacks qualified for jury service by the Commission. It has not been shown that the blacks (on the jury roll and the prior venires drawn) known to and identified by the witnesses were all the blacks contained thereon. Thus, the accuracy of the mathematical percentage presented by appellant is not conclusive.

The percentage of up to 8.3% blacks on venires chosen in 1972, the admitted percentage of over 5% on the entire jury roll for 1973 together with over 5% on the ve-nire drawn to try appellant, cannot be said to be only token inclusion when the total blacks presumed qualified is only 15%. Swain v. Alabama, supra. There was no evidence to demonstrate the proportion of negroes actually qualified as jurors under the statute. 'We conclude as did the court in Swain v. Alabama, supra, that “we cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%.”

We do not consider the evidence in this case to make out a prima facie case of invidious discrimination under the Fourteenth Amendment. However, in view of the presence of reasonable basis for the question of discrimination being presented in this case, we strongly recommend to the Jury Commission of Lawrence County that every effort be promptly made to fill the jury roll with the names of all citizens of the county found to be qualified under Title 30, Sec. 21, Code of Alabama so that no colorable foundation for challenge upon grounds of discrimination may ever again be available. Such is the duty imposed by the law of the state upon the Jury Commission in every county.

Appellant next charges error in the denial of his motion for change of venue because of prejudicial pre-trial publicity.

Evidence in support of the motion was presented by appellant. It was shown that two newspapers were primarily circulated and subscribed to by the citizens of the county. One was The Decatur Daily and the other a weekly, The Moulton Advertiser. It was shown that articles had appeared in each of these papers over the nearly 10 years since the commission of the crime and the apprehension of appellant. Some of the reports were headlined on the front page. There had been several articles in each paper since the transfer of the case for trial to Lawrence County, together with a picture of appellant on the courthouse steps. Many of the articles were introduced in support of the motion. Appellant submits that the articles were so extensive, pervasive and inflammatory as to prejudice the jury and prevent a fair trial by an impartial jury as guaranteed by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. Appellant cites for support the case of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

An examination of the articles discloses them to be nothing more than usual objective reporting. The crime with which appellant is charged occurred more than 100 miles away from Lawrence County. Though the crime was heinous, the articles do not comment more than generally upon the alleged facts of it. The articles largely were picked up by the newspapers from wire service reports which were available to subscribing newspapers throughout the state. It was only after the third trial of the case was transferred to Lawrence County that local reporting occurred. The immediate pre-trial publicity was merely reporting of the transfer, arraignment, setting of the trial with limited information of the charge. The facts of prior trials, convictions and reversals thereof by the Supreme Court of the United States were reported without comment.

Appellant was allowed extensive voir dire examination of the jury venire. Less than half the venire acknowledged reading or hearing anything about the case. Some faintly remembered reading about the case when it first was reported in 1964. One or two jurors expressed inability to fairly judge the case because of prior information. The others denied any prejudice against the appellant.

This court does not find in the pretrial publicity any highly pervasive or prejudicial matter. We further find nothing even remotely close to the type or amount of publicity present in the Sheppard case. It is the law in this state that on a motion for change of venue in a criminal case, the defendant has the burden of showing that a fair and impartial trial cannot be had. Boutwell v. State, 279 Ala. 176, 183 So.2d 774, Mathis v. State, 292 Ala. 732, 296 So.2d 764. This view is supported by Irvin v. Dodd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, and Hale v. United States, 435 F.2d 737 (5th Cir. 1970). The voir dire of the venire by counsel fails to support the necessary requirement of showing jury prejudice in this case.

Appellant charges prejudicial error in the overruling of a motion to suppress and the admission into evidence of an alleged statement made by appellant to a deputy sheriff at the time of the second trial.

As disclosed by the two reversals of prior convictions, Beecher v. Alabama, supra, appellant had made two alleged confessions while under interrogation during the several days following his arrest. Such confessions were found to be involuntary and his conviction was reversed because of their admission illegally into evidence. Evidence taken on the motion to suppress tended to show that in February 1969, while the jury was deliberating in the second trial held in Cherokee County, appellant was in a witness room of the courthouse under guard of Deputy Sheriff Ken Phillips. The Deputy stated that without interrogation or even discussion of the case, appellant stated in substance, “I’m scared of that electric chair, but I don’t deserve to walk the streets because I’m a guilty man.” This remark was reported by the Deputy several days later to his superi- or, the sheriff of Cherokee County. The sheriff at some later time reported it to the prosecutor. In the meantime, appellant was convicted and again given the death sentence.

Appellant denied making the statement as related by the Deputy.

Appellant contends the statement was admitted in violation of his Fifth and Sixth Amendment rights because the statement was not preceded by Miranda warnings and were made while he was in custody and without advice of counsel.

At the time of the making of the alleged statement, appellant had been in custody for some seven years. He had been through two trials for murder. He had appointed counsel since prior to his first trial. There is no indication that he had been under interrogation since his arrest and the taking of the confessions which had been declared involuntary by two appeals to the Supreme Court of the United States. The deputy to whom the statement now in issue was made, was not an arresting or investigating officer and had never been involved in the case. He was not a deputy in the county where the crime was committed. At the time of the statement he was serving as a bailiff for the court during the trial. Appellant had just been tried by a jury which was then deliberating his guilt or innocence. Within an hour after the statement he was found guilty and sentenced. At the time of the statement, the deputy had no reason to be interrogating appellant as to his guilt.

There has probably been no case of the Supreme Court of the United States more widely discussed, analyzed, criticized and .applauded than Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; however, in that decision it was made very clear that only confessions made involuntarily were inadmissible. The court stated the following:

“[63-65] In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without benefit of warnings and counsel, but whether he can be interrogated. There is no requiremént that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

The trial court was at liberty to believe the deputy as to the making of the statement and the circumstances under which it was made. The court having formed such belief, the finding of a spontaneous, voluntary confession of guilt was proper. An unsolicited remark, not in response to any interrogation does not fall within the rule of Miranda v. Arizona, supra; United States v. Powers, 444 F.2d 260 (5th Cir. 1971); United States v. Trosper, 450 F.2d 319 (5th Cir. 1971); Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408; Veith v. State, 48 Ala.App. 688, 267 So.2d 480.

Appellant charges error in the admission of evidence, over objection, by the toxicologist of the presence of male spermatozoa in the vagina of the deceased. The contention of appellant is that this evidence was unrelated to the crime of murder, had no probative value, and served only to influence the minds of the jury. We do not agree.

The evidence tended to show that the deceased was taken from her home early on the morning of June 15. The time of her death was shown to be in the late afternoon of the same day. She was found bound hand and foot, gagged and strangled to death by a belt. Evidence of what occurred to her during the continuous events leading up to her death, together with the physical condition of her body when found, is collectively a part of the res gestae and is admissible to shed light on the acts, nature, motive and intent of the defendant. It matters not that such evidence includes matters showing or tending to show other crimes for which the defendant is not on trial or with which he has not been charged. Jackson v. State, 229 Ala. 48, 155 So. 581; Smarr v. State, 260 Ala. 30, 68 So.2d 6.

Appellant last charges error in failure to grant a new trial because of a comment made by the District Attorney in his argument to the jury.

It has long been the law of this state that any comment to the jury by the prosecutor concerning a criminal defendant’s failure to testify requires the granting of a new trial.

The record before us in this case shows that in his closing argument to the jury the prosecutor made the following statement:

“No one took the stand to deny it.”

The reporter did not take the argument of counsel in this instance. No request was made that he do so. The record therefore does not show the context in which the statement of the prosecutor was made. The record made of the discussion between counsel and the court in relation to the objection made is before us. The court made observation of what it perceived the state and federal law to be when counsel comments that testimony is uncontradicted or not denied. The court then stated that the objection was overruled because “The court finds that this was not a reference to the failure of the defendant to take the stand.” There was then a statement by one of counsel for appellant that for the record, “Mr. Black, when making that statement was referring to the testimony of Ken Phillips.” It may be remembered that Ken Phillips was the deputy who testified as to defendant’s admission of guilt in his presence.

The statute of this state forbidding comment upon the failure of a criminal defendant to testify was in effect long before the cases of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, and Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, were decided. Decisions of the Supreme Court of this state have pronounced the general rule interpreting our statute to be that statements by the prosecutor that the state’s evidence is undenied or uncontro-verted are merely in direct reference to the defendant’s failure to testify and do not violate the statute. Sellers v. State, 48 Ala.App. 178, 263 So.2d 156, and cases cited therein. It is only in cases where such remarks are in reference to testimony which only the defendant is capable of denying or contradicting that our appellate courts have held the statute violated. Street v. State, 266 Ala. 289, 96 So.2d 686.

In this instance, from the record, we are unable to make a finding as to the context in which the complained of remark was made by the prosecutor. The trial judge was familiar with the law of this state regarding such remarks and it was his finding that the remark was not a reference to the failure of the defendant to take the stand. We have only the remark of counsel for defendant as to what testimony the argument was directed. Under such circumstances we must follow the presumption that the ruling of the trial court was correct. Bryant v. State, 49 Ala.App. 359, 272 So.2d 286, cert. den. 289 Ala. 740, 272 So.2d 297, cert. den. 412 U.S. 922, 93 S.Ct. 2744, 37 L.Ed.2d 149.

Certainly, there is not presented in this case the statutory approval of commenting on the failure of the defendant to take the stand by the prosecutor and the court as was the case in both Griffin v. California and Chapman v. California, supra. Neither are there present the numerous and repetitive direct comments of the prosecutor as in Chapman.

Having searched the record as required by law we find no error prejudicial to appellant. We therefore affirm the trial court.

Affirmed.

BRADLEY and HOLMES, JJ. (Ct.Civ. App.) and TYSON and HARRIS, JJ., concur.

      . July 3, 1974, pursuant to § 6.10 of the Judicial Article, Amendment No. 328 of the Constitution, the Chief Justice assigned to this Court the judges of the Court of Civil Appeals for temporary service.

      . Title 30, § 21, Code of Alabama Qualifications of persons on jury roll; excusing certain persons from service. — “The jury commission shall place on the jury roll and in the jury box the names of all citizens of the county who are generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment; but no person must be selected who is under twenty-one or who is an habitual drunkard, or who being afflicted with a permanent disease or physical weakness is unfit to discharge the duties of a juror; or cannot read English or who has ever been convicted of any offense involving moral turpitude. If a person cannot read English and has all the other qualifications prescribed herein and is a freeholder or householder his name may be placed on the jury roll and in the jury box. No person over the age of sixty-five years'shall be required to serve on a jury or to remain on the panel of jurors unless willing to do so. When any female shall have been summoned for jury duty she shall have the right to appear before the trial judge, and such judge, for good.cause shown, shall have the judicial discretion to excuse said person from jury duty. The foregoing provision shall apply in either regular or special venire.” (1939, p. 86; 1943, p. 309, appvd. July 1, 1943; 1966, Ex.Sess., p. 429, § 4, appvd. Sept. 12, 1966.)

      . Title 15, § 305. The defendant in criminal cases a competent witness for himself. — On the trial of all indictments, complaints, or other criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness; and his failure to make such a request shall not create any presumption against him, nor be the subject of comment by counsel. If the solicitor or other prosecuting attorney makes any comment concerning the defendant’s failure' to testify, a new trial must be granted on motion filed within thirty days from entry of the judgment. (1949, p. 150, appvd. June 23, 1949.)


author: McCALL, Justice. MADDOX, Justice

text:
    In re Johnny Daniel BEECHER v. STATE. Ex parte Johnny Daniel Beecher.
    SC 1054.
    Supreme Court of Alabama.
    Jan. 16, 1975.
    U. W. Clemon, Birmingham, and Elaine R. Jones and Jack Greenberg, New York City, for petitioner.
    No brief for the State.
   McCALL, Justice.

Writ denied.

MERRILL, COLEMAN, HARWOOD, BLOODWORTH and FAULKNER, JJ., concur.

HEFLIN, C. J., and MADDOX and JONES, JJ., dissent.

MADDOX, Justice

(dissenting).

I would grant the writ merely to review the question concerning the comment made by the District Attorney in closing argument: “No one took the stand to deny it.” My vote to grant the writ does not necessarily mean that I think the Court of Criminal Appeals erred, however.


text:
    In re Johnny Daniel BEECHER v. STATE of Alabama. Ex parte Johnny Daniel Beecher.
    SC 1054.
    Supreme Court of Alabama.
    March 4, 1975.
   It is ordered that the application for rehearing filed in this cause on January 31, 1975, be, and the same is hereby, granted.

Now, therefore, it is ordered that the Writ issue to the Court of Criminal Appeals, 55 Ala.App. 212, 320 So.2d 716, and that this cause stand ready for submission on briefs or oral argument, if so desired, in accordance with Amended Supreme Court Rule 39.

HEFLIN, C. J., and MADDOX, FAULKNER, JOHN and SHORES, JJ., concur.

MERRILL, BLOODWORTH and EM-BRY, JJ., dissent.

ALMON, J., recuses himself.