author: DeCARLO, Judge.

text:
    James SKELTON v. CITY OF BIRMINGHAM.
    6 Div. 988.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.
    Winston B. McCall, Jr., Birmingham, for appellant.
    Charles T. Bradshaw and William C. Walker, Asst. City Atty., Birmingham, for appellee.
   DeCARLO, Judge.

Insulting a peace officer; fine, one hundred dollars.

On March 18, 1975, the City of Birmingham through its prosecuting attorney, filed a complaint in Jefferson County Circuit Court, charging appellant: . did make an insulting remark to W. P. Curry, a law enforcement officer of the City of Birmingham, while said officer was engaged in the active discharge of his lawful duties in this: the said James Skelton referred to the officer as a ‘Big Shit’ . .

To this complaint, the appellant filed a demurrer alleging the statute upon which the complaint was based was vague, indefinite, overbroad, and a violation of his constitutional rights under the First and Fourteenth Amendments.

The demurrer was overruled and on the consent of the parties, trial was had before the judge without the benefit of a jury.

This appeal brings into focus the facial constitutionality of § 36-56 of the General Code of Birmingham of 1964, as it adopts the words and language of § 374(18) of T. 14, Code of Alabama 1940, Recompiled 1958, 1973 Cum.Supp. to Vol. 5.

Section 374(18) of T. 14, supra provides: “Whenever any peace officer or other law-enforcement officer of this state or any political subdivision of this state shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to make any insulting remark, either to or about such officer or to make any motion, or gesture calculated to insult or humiliate such officer because of his performing such duty or duties, or to threaten harm or injury to such officer in performance of his duty or duties, and any person committing any act made unlawful hereunder shall be guilty of a misdemeanor . . . ”

Appellant’s conviction thereunder, resulted from the following facts:

On November 3,1974, officers William P. Curry and Thomas W. Cater were employed by the City of Birmingham Police Department and working the 11 P.M. to 7 A.M. shift. These officers were riding in a marked police cruiser, equipped with police insignia and blue light on top.

Approximately 6:45 A.M., Officer Curry drove the police car into an alley facing west. The alley extended east and west and crossed a sidewalk paralleling Birmingham’s 20th Street which ran north and south. At that point where the car entered the alley, the sidewalk crossed the alley and the car was stopped in the path of the sidewalk. Curry left the car and walked to a news stand in front of “Tutwiler Drug”, which is in a building adjacent to the alley. After purchasing a newspaper, he started back to the car. At this time, the appellant who was standing on the north side of the alley, made the following statement:

“ ‘Are you big shits going to move your car, or are you going to make me walk around?’ ”

Curry stated that the remarks were made in his direction. After the statement was made, Curry walked around to the rear of the car and arrested the appellant.

Officer Cater stated that on the above date, he was working as Officer Curry’s partner and testified to the same facts, with the exception that he could not tell to whom the remark was directed. Cater said it was his impression, the statement was something to the effect:

“Are you big shits going to move or am I going to have to go around.”

The appellant did not testify or produce any evidence in his behalf and the case went to the trier of the fact on the testimony of the officers alone.

Appellant cites several United States Supreme Court decisions in support of his argument that the statute in question is so vague and broad it violates the freedom of speech guaranteed by the First Amendment. Among the cases cited to us, the prominent ones are: Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214; and Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408. However, we find the answer to this contention in the case of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031.

In Chaplinsky, supra, the United States Supreme Court upheld the following ordinance against the charge of vagueness:

“ ‘No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.’ ”

The provocative remarks used by Chaplin-sky were addressed to a town marshal and were as follows:

“ ‘You are a God damned racketeer’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists’ . .

In affirming Chaplinsky’s conviction by the state court, the United States Supreme Court recognized that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional questions. They include the lewd, obscene, profane, the libelous, and the insulting and, or fighting words.

As was stated in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213:

“Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.”

The United States Supreme Court concluded that the ordinance as construed by the state court in Chaplinsky, supra, was limited to verbal acts uttered under such circumstances as were likely to cause the breach of peace. The court held that the words used by Chaplinsky were:

“. . . epithets likely to provoke the average person to retaliation, and thereby cause a breach of peace.”

The appellant relies heavily on the case of Gooding v. Wilson, supra, where a Georgia statute was struck down because it was overbroad in its application and susceptible of First Amendment violations. The Georgia statute struck down in Gooding v. Wilson, reads as follows:

“ ‘Any person who shall, without provocation, use to, or of one another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor.’ ”

In Gooding v. Wilson, supra, the Supreme Court of the United States, said that the state courts have failed to narrow the application of the statutes to fighting words, which by their very utterance will tend to incite an immediate breach of the peace and, therefore, the statute was facially overbroad, vague and unconstitutional under the' First and Fourteenth Amendments.

To emphasize this particular point, the court used the following language:

“Because earlier appellate decisions applied § 26-6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt ‘measured by common understanding and practice’ does not limit the application of § 26-6303 to ‘fighting’ words defined by Chaplinsky. Rather, that broad standard effectively ‘licenses the jury to create its own standard in each case.’ Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ct. 732, 741, 81 L.Ed. 1066, (1937). Accordingly, we agree with the conclusion of the District Court, ‘[t]he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application.’ ”

The standard for applying the Georgia statute was stated in Fish v. State, 124 Ga. 416, 52 S.E. 737 (1905), there the Georgia Supreme Court held that a jury question was presented by the language: “ ‘You swore a lie.’ ” In Fish v. State, the standard set for the jury by the state court under the statute was as following:

“On the trial of one indicted for using opprobrious words and abusive language, it is for the jury to determine whether under all the facts and circumstances the words used were of such character as that the use of them was calculated to cause a breach of the peace, as well as to determine whether there was provocation sufficient to excuse their use.”

Another Georgia case cited in Gooding v. Wilson, supra, stated:

“Plainly, although ‘conveying disgrace’ or ‘harsh insulting language,’ these were not words by ‘which by their very utterance . . . tend to incite an immediate breach of the peace.’ ”

In Gooding v. Wilson, supra, officers were attempting to restore public access to a building when they were met by physical restraint and loud personal abuse: “ ‘White son of a bitch, I’ll kill you’ and “You son of a bitch, I’ll choke you to death’ ”, and “ ‘You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces,’

The Supreme Court concluded in Gooding v. Wilson, supra, that the statute swept beyond the bounds of the fighting words limitations of Chaplinsky v. New Hampshire, supra.

The next case cited to us by appellant in support of his contention is, Lewis v. City of New Orleans, supra, wherein an appellant and her husband were stopped by a police officer. The officer testified that while he was waiting for the appellant’s husband to produce his driver’s license, appellant came out of their truck “ ‘and started yelling and screaming that I had her son or did something to her son and she wanted to know where he was . . . ’” The officer said, “ ‘lady, I don’t have your son and I am not talking to you. I am talking to this man and you can go sit in the truck.’ ” The appellant said, “ ‘you god damn m. f. police — I am going to Giarrusso [the police superintendent] to see about this.’ ”

The appellant was arrested and charged with reviling the police officer under the Louisiana statute which reads:

“It shall be unlawful for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.”

The Supreme Court of the United States remanded the case, to the Louisiana court for reconsideration in light of Gooding v. Wilson, supra. The Louisiana Supreme Court on remandment, stated that the statute was narrowed to “fighting words” uttered to specific persons at a specific time. The Supreme Court of the United States observed that the Louisiana Supreme Court did not refine or narrow the words as were used but took them as they stood.

In speaking of the Louisiana statute, the Supreme Court sáid:

“. . . § 49-7 plainly has a broader sweep than the constitutional definition of ‘fighting words’ announced in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), and reaffirmed in Gooding v. Wilson, supra, 405 U.S., at 522, 92 S.Ct. at 1106, namely, ‘those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ”

The Supreme Court went on to say that the Louisiana Supreme Court undoubtedly contemplated a broader reach of the ordinance because it emphasized the city’s justification for regulating the conduct of any person toward members of the police department while they were engaged in the performance of their duty.

Further, the Supreme Court observed that the dictionary definitions of the term opprobrious “embraced words ‘conveying or intended to convey disgrace’ ” and therefore the term was not limited to words which by their utterance inflict injury or tend to incite an immediate breach of the peace.

The statute before us has never been construed by this court. It is proclaimed to be an area in which the State may only regulate with narrow specificity.

As we construe § 374(18) of T. 14, supra, the insulting remarks are those narrowed to fighting words only; they are those words which have a likelihood of causing a violent response by the person to whom they are addressed. They are words that by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace. As Kipling so aptly wrote:

“You may call a man a thief and risk nothing. You may even call him a coward without finding more than a boot whiz past your ear, but you must not call a man a bastard unless you are prepared to prove it on his front teeth.”

The test of whether the insulting remarks are fighting words is not to be determined by the addressee. The test we adopt today is that laid down in Chaplinsky v. New Hampshire, supra. There the court said:

“The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.”

The statute we presently have under consideration is more limited and restrictive in scope than any of the ordinances or statutes in the authorities cited above. The statute prohibits verbal assaults as well as physical or bodily assaults on a police officer in the performance of his duties.

We construe the verbal acts prohibited, as strictly limited to words having a direct tendency to cause the violent reaction by the particular officer-addressee. In short, the statute requires that the words be calculated to cause an immediate breach of the peace. It is not enough it they merely arouse anger or resentment.

Implicit in the statute is the purpose to offer the officer a legal alternative to violence. It offers the police officer redress through the judicial process, rather than to rely on more immediate and more primitive means of obtaining satisfaction.

In light of the result reached, we do not have occasion to decide the question of whether words attributed to this defendant constitute fighting words or come within some specific classification which may be protected by the Constitution of the United States.

For the above reason, we are of the opinion that the judgment and the sentence, appealed from, must be reversed and the same is hereby reversed and remanded with instructions that any future trial will be conducted with an eye to the construction that we place on the statute today.

REVERSED AND REMANDED.

TYSON, HARRIS and BOOKOUT, JJ., concur.

      . R. Kipling, The Drums of the Fore and Aft, in Under the Deodars the Phantom ‘Rickshaw Wee Willie Winkie (New rev’d ed. 1899, Mac-Millan & Co., Ltd.)


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    In re James SKELTON v. CITY OF BIRMINGHAM. Ex parte James Skelton.
    SC 2097.
    Supreme Court of Alabama.
    Oct. 29, 1976.

      Winston B. McCall, Jr., Birmingham, for petitioner.
    No brief for City of Birmingham, respondent.
   BLOODWORTH, Justice.

Petition of James Skelton for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Skelton v. City of Birmingham, Ala.Cr.App., 342 So.2d 933 [1976].

Upon a consideration of the facts set out in the Court of Criminal Appeals’ decision, we are of the opinion that the judgment of that court should be corrected to read “REVERSED AND RENDERED” instead of “REVERSED AND REMANDED.”

This case was fully briefed in the Court of Criminal Appeals. No purpose would be served by requiring the parties to submit briefs again. Thus, the provisions of all applicable rules, specifically Rule 39(f) and (g), ARAP (permitting briefs to be filed and oral argument to be had' after petitions for writs of certiorari are granted), are suspended under the provisions of Rule 2(b), ARAP. Pendleton v. State, 295 Ala. 327, 329 So.2d 144 (1976).

The petition for the writ of certiorari is granted and this cause remanded to the Court of Criminal Appeals so that it may conform its judgment to this opinion. In re Gentry (Ex parte Charles Herbert Gentry), Ala., 333 So.2d 157 (1976); Pendleton v. State, supra.

WRIT GRANTED.

RULES SUSPENDED.

CAUSE REMANDED TO COURT OF CRIMINAL APPEALS TO CORRECT JUDGMENT.

HEFLIN, C. J., and JONES, ALMON and EMBRY, JJ., concur.


text:
    James SKELTON v. CITY OF BIRMINGHAM.
    6 Div. 988.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.
   AFTER REMAND FROM THE SUPREME COURT OF ALABAMA:

REVERSED AND RENDERED on authority of Supreme Court, 1976, 342 So.2d 937.


author: TYSON, Judge.

text:
    Joseph BALDWIN v. STATE.
    3 Div. 648.
    Court of Criminal Appeals of Alabama.
    Nov. 16, 1976.
    Crenshaw & Minor, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for assault with intent to murder, found guilty by a jury, and judgment set sentence at ten years imprisonment in the penitentiary on November 20,1975. The appellant was represented at trial by retained counsel.

Thereafter some confusion arose, and the record affirmatively reflects that notice of appeal was given and the appellant was determined to be an indigent and other counsel appointed to perfect an appeal to the Court of Criminal Appeals of Alabama. Because no transcript of the original trial was filed in this Court within the time provided by law, this Court dismissed the appeal on March 29, 1976.

The appellant filed a petition for writ of error coram nobis in the Circuit Court of Montgomery County, Alabama, contending, among other things, that as an indigent he was prevented from taking an appeal and was not adequately represented at trial by counsel.

Because the record before this Court fails to reveal the verdict and judgment of the trial court, and also fails to show when notice of appeal was given in the trial court, as well as when the appointment of counsel to perfect the appeal took place, we remand this cause for a hearing in the Circuit Court of Montgomery County, Alabama. Following a hearing with counsel present to represent the appellant, Joseph Baldwin, the trial court shall determine when notice of appeal was given from the original verdict and judgment and when the appointment of counsel to perfect the appeal took place. The trial court shall also determine if Appellant’s counsel was notified of this appointment and why the appeal was not timely perfected in this Court.

If the trial court, following the hearing in question, should determine that, through no fault of the appellant or his attorney that he was prevented from timely perfecting the appeal, then the Circuit Court is authorized and directed to order a complete transcript of the original trial proceedings and have same timely filed in this Court in accordance with the Alabama Rules of Appellate Procedure, adopted June 17,1975, by the Supreme Court of Alabama. See also In re Pope, Ms. July 16, 1976, opinion extended September 10, 1976, Ala.; and also Swanson v. State, 1976, 7 Div. 430, October 19,1976, Ala.App.

Counsel for the appellant and counsel for the State, in the event such transcript is filed with this Court, shall then be allowed appropriate opportunity to file their respective briefs on the merits. See Alabama Rules of Appellate Procedure, supra.

This cause is hereby remanded with directions.

REMANDED WITH DIRECTIONS.

All the Judges concur.


author: TYSON, Presiding Judge.

text:
    Joseph BALDWIN, alias v. STATE.
    3 Div. 648.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Crenshaw & Minor, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The Circuit Court of Montgomery County has, pursuant to our order of remand, conducted a full hearing into the question as to why the appellant did not obtain a complete review of his conviction by way of original appeal. Following the hearing the Circuit Court entered an order directing the complete original transcript of the trial be made up and sent this Court as a part of its return. We are of the opinion that this is correct.

The trial took place on November 19, 1975, at which time Alfred McGhee and Alton Abrams described a difficulty with the appellant, which took place on May 26, 1975. These two witnesses related that they were at the Alabama State University Campus on the afternoon in question and were attempting to back up their automobile when they bumped the fender of the automobile in which the appellant, Joseph Baldwin, was a passenger. Words were exchanged, and then McGhee and Abrams left the campus. Later they were at the Lanier Court Apartments when Alfred McGhee was approached by the appellant, who had a pistol in his hand. McGhee related that as he was attempting to stand, the appellant shot him in the fleshy part of his thigh, which occasioned his being taken to St. Margaret’s Hospital, where he remained for one week. McGhee related that he had been playing football at Alabama State, and had been given a try-out with the Dallas Cowboys.

Alton Abrams corroborated the evidence described by Alfred McGhee. He stated that the third party in their automobile was one Robert Griffin. Abrams stated that they did not curse the appellant, that the appellant and his companion had cursed them at the Alabama State University Campus.

L. 0. Perdue testified that he was employed by the Montgomery Police Department and investigated a shooting which took place at the Lanier Court Apartments on May 26, 1975. Upon arrival he found that Alfred McGhee had been shot in the thigh with a pistol, and that McGhee had been taken to St. Margaret’s Hospital. He stated that he subsequently talked with McGhee about a week later at the hospital, that McGhee identified the appellant, Joseph Baldwin, as the party who shot him, and that McGhee subsequently came by police headquarters and signed a warrant.

Lt. Perdue stated that he, after giving the appellant a full Miranda warning, and without any threats, intimidation, coercion, or inducement, talked with the appellant at police headquarters following his arrest. He advised the appellant that he was charged with assault with intent to murder, and the appellant admitted that he had shot McGhee in the thigh. He said the appellant could give no reason for doing so, and stated that he had left the Lanier Court Apartments on the afternoon in question and had thrown the 380 automatic pistol away. Mr. Perdue stated that he attempted to recover the pistol, but had been unable to do so.

The appellant made a motion to exclude the State’s evidence and also asked for the affirmative charge, both of which were denied.

Joseph Baldwin testified that he was working in the construction business for his uncle on May 26, 1975. He stated that he and two companions were sitting in an automobile on the Alabama State Campus when the car in which Alfred McGhee, Alton Abrams, and Robert Griffin were riding backed into their car. He stated that the men began cursing them and talking aggressively to them. He stated that they were larger than he, and that they threatened him.

Baldwin testified that later that afternoon he and his two companions, Edward Graham and James Lawrence, were at the Lanier Court Apartments. He stated that he saw Alfred McGhee sitting on the sidewalk talking with someone. He stated that he approached Alfred McGhee, that he, Baldwin, was carrying a pistol because McGhee and his companions had threatened him earlier that day. He stated that as he approached McGhee, he attempted to get up, that he bumped the pistol, which went off, and that was the only shot fired. He stated that he then fled, and was not sure that McGhee had been injured until several days later when someone told him that McGhee had been taken to the hospital.

I

The appellant contends that his motion to exclude should have been granted as the State did not present a prima facie case.

Intent to take life may be shown by inference, via the character of the assault, the use of a deadly weapon, and other attendant circumstances. Tolliver v. State, 50 Ala.App. 654, 282 So.2d 92; Roberts v. State, 49 Ala.App. 729, 275 So.2d 709.

The appellant does not dispute the fact that he shot McGhee, but contends that due to the nature of the attendant circumstances there was no assault with a deadly weapon.

The jury may give to this evidence, as with all evidence, such emphasis and weight as they alone think proper in arriving at their verdict. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Braswell v. State, 51 Ala.App. 179, 283 So.2d 630.

After considering all of the factors herein set forth, we conclude that the verdict of the jury was not patently against the weight of the evidence, thus, there was no error in denying appellant’s motion to exclude, or his request for the affirmative charge. Johnson v. State, 51 Ala.App. 172, 283 So.2d 624; Gilmore v. State, Ala.Cr.App., 339 So.2d 116, cert. denied, Ala., 339 So.2d 121.

II

The trial court gave an extensive oral charge, to which there was no exception, and in addition gave seven of the appellant’s written requested charges. The remaining charges were either affirmative in nature, argumentative, or attempting to emphasize unduly certain aspects of the evidence, hence, such were properly refused. Title 7, Section 273, Code of Alabama 1940.

III

We are of the opinion that due to the fact that appointed counsel did not get notice that he was to handle the appeal from appellant’s original trial and conviction, as retained counsel had represented appellant at trial, the trial court here correctly determined that the original transcript should be sent this Court and considered now. The trial court determined that the appellant was an indigent and required the assistance of counsel on appeal. Ellison v. State, 55 Ala.App. 50, 312 So.2d 632, and authorities cited therein.

We have carefully reviewed the entire transcript, including the original trial proceedings, and find this record to be free from error. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge. CATES, Judge,

text:
    William Leonard RADNEY v. STATE.
    6 Div. 139.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Feb. 1, 1977.

      Parker & Garrett, Birmingham, for appellant.

      William J. Baxley, Atty. Gen. and Randolph P. Reaves, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

The appellant was indicted on a charge of violating the Alabama Uniform Controlled Substances Act, and after a jury trial, he was found guilty and sentenced to three years in the penitentiary.

James Chambliss, a police officer with the City of Birmingham, was working as an undercover agent with the United Narcotic Detail Operation. He testified that on November 30, 1973, he went to the appellant’s residence in Birmingham, Alabama. After being admitted by a female named Pat, he walked to the kitchen and told the appellant that he wanted to buy “a pound.” Appellant told him to go back to the den. He went to the den and subsequently Pat handed him a brown paper bag containing a greenish brick-shaped object wrapped with pink plastic. Chambliss told her to call appellant because he only had one hundred and fifty-six dollars, and did not think that would be enough. When appellant complained about the amount, Chambliss reminded him that he had been shorted when he had bought “a pound” earlier. At that point the appellant told Chambliss to go on and give him “what he had.” However, when he handed the money to the appellant, he refused and Chambliss handed the money to the female.

Chambliss left the appellant’s residence and delivered the package to Sgt. James Earl Smith, the supervisor of the United Narcotics Detail Operation. Smith in turn carried the package containing the brick-shaped object to the toxicologist’s office on the following Monday, December 3, 1973.

In June of 1974, the appellant was indicted on a charge of selling marijuana and the trial was commenced on December 2, 1975.

I

During the trial, Charles Wesley Smith, a criminalist with the Alabama Department of Toxicology, testified that he had analyzed and examined the contents of the brown paper bag delivered to him by Sgt. Smith. Over defense counsel’s objections, Charles Smith stated that it was his conclusion that the substance was marijuana.

Appellant now contends that the trial court abused its discretion in allowing Charles Smith to testify as to contents of the bag and argues that during the period that the analysis was made, Smith was a trainee. Counsel suggests that to allow this witness to testify as an expert concerning tests he had made during this period violates the due process requirement of the Fourteenth Amendment to the United States Constitution.

Counsel for appellant points out that the department of toxicology has established its own procedure requiring employees of limited experience to perform their duties under the supervision of another. He maintains that to allow a trainee to testify about the results of a test conducted without supervision is a violation of the Department of Toxicology’s own procedure.

An individual may qualify as an expert witness by study, practice, experience or observation. The determination of whether he is sufficiently qualified to testify as an expert is a discretionary responsibility of the trial judge and his decision will only be disturbed upon a showing of abuse. White v. State, 294 Ala. 265, 314 So.2d 857; Thomas v. State, 249 Ala. 358, 31 So.2d 71.

The State’s expert witness, Charles Wesley Smith, testified that for about a year preceding his graduation from Auburn University he worked part time for the Department of Toxicology in Auburn. In June of 1973, when he received his degree in chemistry, he came to work in Birmingham as a “Tech II.” Smith explained that a “Tech II” was “. . . someone who still works under the direction of someone else but handles their own work.” Following his graduation, he worked under the direction of the State Toxicologist, Dr. Rehling, then under the direction of Robert Johnson, the director of the Birmingham laboratory and afterwards, Dr. Richard Roper, the director of the Montgomery laboratory. He stated that he tested evidence for marijuana on several hundred occasions.

Smith’s expertise was a preliminary question for the trial judge and his determination that Smith was an expert was not an abuse of discretion. The witness disclosed special training and familiarity with the subject matter which sufficiently qualified him to speak as an expert.

The fact that Smith worked under the supervision of the laboratory director and was regarded as a “Tech II” at the time that he made the marijuana identification did not prejudice the rights of appellant. Smith’s testimony as an expert was for the jury’s evaluation.

II

The appellant claims that, in as much as the State indicted him for selling or giving away “marijuana,” the State failed to prove the corpus delicti when it failed to establish the presence of the chemical substance tetrahydrocannabinol or THC.

This court recognized that in the 1971 statute two terms were used, “marihuana” and tetrahydrocannabinol and that tetrahy-drocannabinol embraced chemically that which was covered by the dictionary word, “marijuana.” Haynes v. State, 54 Ala.App. 714, 312 So.2d 406.

In Haynes, supra, the court stated that the use of the old or more general term “marijuana” in an indictment would apprise a defendant that “. . .he was accused of possessing a substance containing the incriminating ingredient of THC — tetrahy-drocannabinol.”

The United States District Court for the western district of Wisconsin in December of 1974, declared “All species of genus Cannabis contain tetrahydrocannabinol, which is a psycho-active or intoxicating.” U. S. v. Lewallen, 16 Crim.L. 2404. Additionally, we found these statements in Marihuana and Health, Second Annual Report to Congress from the Secretary of Health, Education and Welfare (DHEW Publication No. (HSM) 72-9113 Printed 1972):

“There seems to be general agreement that the material called marihuana in North America comes from a single species Cannabis sativa L. . Marihuana consists of a dried mixture of crushed leaves and flowering tops (with or without the inclusion of stems and seeds) of the Indian hemp plant. “Contrary to previous beliefs, all the parts of the plant, including the leaves, contain psychoactive principles (cannabi-noids). There is now convincing evidence that these cannabinoids are present in male as well as female plants (39, 15).” [Footnotes omitted and emphasis added].

See also: United States v. Walton, 168 U.S. App.D.C. 305, 514 F.2d 201 (1975).

In view of the foregoing, it is our judgment that once Smith, the toxicologist, employing his testing procedures, concluded that the questioned substance was marijuana, no proof of the tetrahydrocannabinol content was necessary. It was a question for the jury to weigh his testimony and find with him if they so desired.

Although it is contended that the microscopic and the Duquenois-Levine test were not sufficiently specific to identify marijuana, the fact remains that the testimony of the expert is subject to the jury’s approval once he has been denominated as an expert by the trial judge.

Viewing the totality of the evidence, we find that the jury could well have found the appellant guilty as charged.

We also hold today that whether the illegal substance possessed is spelled “marihuana” or “marijuana,” the offense is no less the same. Hill v. State, 56 Ala.App. 369, 321 So.2d 708.

Ill

It is insisted that the State failed to authenticate the enlarged photograph of a fingerprint allegedly belonging to the defendant. During the trial, fingerprints found on the cellophane around the marijuana were identified and authenticated by the State’s expert witness, Betty Butler. She used the enlarged photograph in question in presenting her testimony concerning the process of comparing the appellant’s known prints with those found on the cellophane wrapper. Mrs. Butler testified this was an enlargement of the fingerprints taken from an exhibit that she identified during the trial.

In our judgment, the photograph in question was not improperly admitted. The record clearly shows that it was an enlargement of a fingerprint already identified and authenticated by the witness.

IV

The appellant maintains that the trial court erred in failing to grant a new trial when it was shown that a prospective juror had remained silent during voir dire and his past association with the Jefferson County police went undisclosed.

Willie R. Glass stated during the motion for a new trial that the members of the venire were asked the question: “Have any of you been a police officer?” Glass admitted that he did not respond to this question. He explained that prior to the time of his service on the jury in question, he had been employed by the Jefferson County Highway Department, and on occasion, one of his duties was to guard prisoners. He said these were Jefferson County Jail prisoners who were part of work gangs from Camp Ketona in Jefferson County.

Glass stated that his verdict was not in “anywise” influenced by his experience as a convict guard and that his participation in the case as a juror was not biased for or against the defendant as a result of this service.

This court has said that the failure of a juror to make a proper response to a question regarding his qualifications to serve as a juror, regardless of the situation or circumstances, does not automatically entitle one to a new trial. The proper inquiry in such cases is whether the defendant’s rights were prejudiced by such failure to respond properly. Sheperd v. State, 57 Ala.App. 35, 325 So.2d 551.

In the present case, Glass, during the hearing on the motion for a new trial, testified that his previous employment with the Jefferson County Highway Department as an occasional convict guard, did not prejudice his verdict in the trial of the appellant’s case. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330. From the facts recited during the hearing on the motion for a new trial, we believe that the remoteness of the employment and the ambiguity of the question asked, were factors contributing to the juror’s non-disclosure. We therefore hold there was no abuse of discretion by the trial court in denying appellant’s motion for a new trial on the basis of the failure to answer on the part of the juror. Smithson v. State, 50 Ala.App. 318, 278 So.2d 766.

We have read and examined this record and have not found any error.

AFFIRMED.

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

CATES, J., concurring specially.

CATES, Judge,

concurring specially:

The Uniform Act uses the term “marihuana” saying it means “all parts of the plant Cannabis sativa L. * * * [except] the mature stalks, fiber * * § 258(25)(o), T. 22, Michie’s Code.

But, the prosecutor rather than laying the offense in the terms of the Act, chose the following for the Grand Jury:

“The grand jury of said county charge that, before the finding of this indictment, WILLIAM LEONARD RADNEY, whose name is otherwise unknown to the Grand Jury, did on to-wit: November 30, 1973, while at or near 3532 66th Street North, Birmingham, Jefferson County, Alabama, unlawfully sell, furnish or give away 401.2 grams of marijuana, cannabis Americana or cannabis Indica, or a compound or mixture containing marijuana, cannabis Americana or cannabis Indica, to James Chambliss, contrary to and in violation of the provisions of Act No. 1407 of the 1971 Regular Session of the Alabama Legislature, otherwise known as the Alabama Uniform Controlled Substances Act and that such sale, furnishing or giving away took place subsequent to September 15, 1971, against the peace and dignity of the State of Alabama.”

In Haynes, 54 Ala.App. 714, 312 So.2d 406 and in McKenzie v. State, 57 Ala.App. 69, 326 So.2d 135, we said:

“The 1971 Act narrowed ‘marihuana’ to cannabis sativa Linnaeus.” — McKenzie.

Now we are asked to say by way of at least cogent dictum:

“We also hold * * * whether the [substance] is spelled ‘marihuana’ or ‘marijuana’, the offense is no less the same.” (Italics added).

To which I think must be added that under Haynes, supra, and McKenzie, supra, if [as we do not have here] the indictment charges possession or sale of marihuana, then the prosecutor must adduce proof of the presence of cannabis sativa Linnaeus or of THC.

Smith, the prosecution’s expert chemist, testified among other things:

“I determined that it was cannabis sati-va L. Cannabis Americana is a variety of cannabis sativa.”
“ * * * this is the generic name and classification for what is commonly known as marijuana.
“This is what the two tests, microscopic and Duquenois Levine, are specific for.”

Again, the Legislature should be apprised of the semantic and legalistic morass, a veritable Serbonian Bog, which it has thrown in the path of the criminal justice system by its imprimatur on the Uniform Controlled Substance Act — an excrescence of legislative draftsmanship devoid of elemental English.


author: MADDOX, Justice.

text:
    Ex parte William Leonard RADNEY.
    SC 2371.
    Supreme Court of Alabama.
    March 11, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: CATES, Judge.

text:
    Paul KILGORE v. STATE.
    2 Div. 175.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.

      Von G. Memory, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   On Rehearing after Oral Argument

CATES, Judge.

August 26, 1976, we affirmed the judgment below without opinion. See Code 1940, T. 13, § 66.

The trial judge had on March 18, 1976, denied coram nobis to review a conviction on February 18, 1974, based on a plea of guilt to statutory rape, i. e., carnal knowledge of a girl under twelve years of age. The sentence was for twenty years. Code 1940, T. 14, § 398. No appeal was taken. Coram nobis was filed November 3, 1975.

Kilgore now complains that his plea of guilt was null and void because:

(1) the now deceased Sheriff of Dallas County had promised Kilgore to get him paroled at an early date;
(2) the trial judge made no enquiry as to the “factual basis for the plea”; and
(3) failure to follow Cooper [v. State], 53 Ala.App. 36, 297 So.2d 169, or Twyman [v. State], 293 Ala. 75, 300 So.2d 124.

Also, there was no colloquy as to the lesser offense of attempt. See Code 1940, T. 14, § 42.

In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108, it was held (7-2) that a provident plea of guilty must be based on a record showing, inter alia, that either defense counsel or the trial court has explained the elements of the charged offense and the factual possibility of there being only guilt of a less aggravated kindred crime, e. g., manslaughter rather than murder. Accordingly, the dictum in Hawkins v. State, 49 Ala.App. 26, 268 So.2d 492 (a direct appeal) and in Caraway v. State, 53 Ala.App. 237, 298 So.2d 659 (coram nobis appeal) must be now disregarded because of Henderson v. Morgan, supra, as to the need for not explaining elements and embraced lesser crimes. The ratio decided in Caraway, supra, is still law.

However, regardless of what we might have decided here on direct appeal, we clearly consider that the writ of error coram nobis does not embrace this factual situation. See Mayton v. State, 52 Ala.App. 626, 296 So. 249; Caraway v. State, 53 Ala.App. 237, 298 So.2d 659; and Lewis v. State, 55 Ala.App. 397, 316 So.2d 228.

Even though a plurality of the court in Henderson v. Morgan, supra, abstained from retrospectivity, we consider that the Alabama courts on collateral attack have no jurisdiction to review pleas of guilty after the time for direct appeal has gone. See fn. 3 appended to Hawkins, supra. Here there was no state court remedy six months after the original judgment. See Rudolph v. State, Ala.Cr.App., 339 So.2d 144 (ms. 3 Div. 355, October 26, 1976) and cases there cited.

The affirmance will stand; the application for rehearing is overruled.

OPINION DELIVERED; APPLICATION OVERRULED.

All the Judges concur.

      . Rule 4(a)(1) ARAP now gives 42 days; this requirement may not be suspended. Rule 2(b), ibid.


text:
    Ex parte Paul KILGORE, alias.
    SC 2319.
    Supreme Court of Alabama.
    March 11, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


text:
    Thad KNUCKLES, alias v. STATE.
    3 Div. 532.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.
    J. Richard Piel, Piel, Lynn & Thiemonge, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for the State, ap-pellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment.

According to the undisputed evidence of the State, on the morning of December 27, 1975, Mrs. Katie McAuley, 69 years of age, was found lying on the ground on her back on the north side of Mildred Street, Montgomery. She had been killed by a bullet passing at an angle from the left side of her nose and completely transecting the brain. Soon after the arrival of her body at the funeral home, the bullet was removed from within the cranium.

The Montgomery Police Department commenced a prompt and careful investigation. Their investigation soon centered largely upon 527-B Clayton Court, an apartment rented to Willie Ballard and Kenneth Cole, with whom defendant had been living about two or three weeks prior to December 27, 1975. According to the testimony of Ballard, he owned a 38 caliber pistol, which he left loaded in a drawer in his room on the morning of December 26. He did not return to his home until the night of December 27. At that time the pistol was in the drawer in his room, but it was empty. Defendant was on the premises about five minutes when the witness returned to his room and found the pistol empty.

Charles Wesley Smith, employed as a criminalist by the Alabama Department of Toxicology and Criminal Investigation, testified that he examined the particular pistol and the bullet that had been removed from the deceased. He said that the pistol and the bullet were of the same caliber, that he test-fired the pistol and found some similar markings on the bullets he test-fired and the bullet in the head of Mrs. McAuley, but that the fatal bullet was so mutilated he could not definitely identify it as a bullet from the particular pistol.

Defendant was located by the police three or four days after the homicide. He was placed in jail and soon thereafter was interrogated by the police. When asked about the crime, he at first exculpated himself but stated that he heard some other men talking about committing a robbery where the homicide in this case took place. He identified the men, and the police officers checked them out and returned to defendant for further interrogation. He thereafter said that he was on Mildred Street, saw a lady with a purse on her arm and that he waited for her behind a cement wall and that, as she came along, he with a pistol in his hand told her to give him her purse. He said she started swinging at him; that “he had the pistol” and “that the pistol went off and the woman fell.” He then took her purse, ran from the scene, turned through a yard, mounted and jumped off a brick wall into a parking lot and there removed a wallet from the purse and left the purse. He took money out of the wallet and dropped the wallet. He thereafter meandered to where he was living on Clayton Street and placed the pistol he had used “back in the drawer,” after removing four bullets from it and an empty hull. He afterwards retraced his steps with one of the officers and found one of the cartridges where he said he had thrown them, one by one.

The sufficiency of the evidence to support the verdict of murder in the first degree is challenged on appeal. Appellant argues that the statements of defendant admitted in evidence wherein he confessed that he had robbed Mrs. McAuley show that he did not kill her intentionally, that the pistol in his possession was discharged accidentally. The obvious answer is that a “homicide . committed in the perpetration of, or the attempt to perpetrate, any . . . robbery ... is murder in the first degree. . . . ” Code of Alabama, T. 14, § 314. In addition,

“Such parts of a confession as are favorable to the accused are substantive evidence in his favor, although, of course, the law does not require the jury to give the same credit to all parts of his statement. Eiland v. State, 52 Ala. 322; Parke v. State, 48 Ala. 266; Chambers v. State, 26 Ala. 59; Forrester v. State, 93 Tex.Cr.Rep. 415, 248 S.W. 40, 26 A.L.R. 537. See also Wilson v. Calvert, 8 Ala. 757.” McElroy, Law of Evidence in Alabama, § 200.17.

The confession by defendant is to be found in intermittent statements made by him over a period of three or four days. As to each statement, there was ample evidence on in camera interrogation, and testimony before the jury, that it was voluntary and that he had been given a plenary explanation of his constitutional rights to an attorney and to remain silent and that he had freely and understandingly chosen not to do so. Appellant makes a pointed attack against the action of the court in admitting the confession in evidence by charging it was made “after the Defendant stated that he did not want to answer any more questions.” Appellant’s paraphrased version of what occurred needs amplification. At one point in the testimony of one of the officers, which is relied upon by appellant to support his contention, the witness said that during a colloquy between him and defendant, defendant said that “he did not want to talk or be questioned any more about it.” The witness also said that he immediately ceased conversing with defendant, that defendant was returned to his place in jail, but that thereafter defendant sent for the witness and voluntarily resumed the conversation. Furthermore, the witness said that each time he questioned defendant, defendant was fully advised of his constitutional rights. We find that the officers understandingly respected defendants express desire as to when he would not talk with them, as well as when he would talk with them. There was testimony presented by defendant in camera to the effect that the officers mistreated him, but this testimony was in conflict with strong testimony of the officers.

The point is also made by appellant that one of the officers participating in the interrogation of defendant made a promise to defendant that induced defendant to make his incriminatory statements. The particular officer testified that he knew defendant since he was born and that at the time defendant first talked with him and implicated others as the persons responsible for the homicide, and exculpated himself, the witness said, “I will help you if I can. But just be truthful with me. If you want to change it, now is the time to change it.”, that “I told him I would help him in any way I could. If he was telling me the truth I was going to clear him. And he was telling me that he saw so and so do it.” The witness said that he thereafter made a check on defendant’s statements of innocence and found that they could not be supported. He apparently did what he said he would do, that is, attempt to help defendant on the basis of what he had told the witness. After checking on defendant’s statements and finding no support for them, the witness talked with the defendant again without telling him or indicating to him in any way that he would endeavor to help him. It is clear that the offer to help by the officers was made on the premise of defendant’s then previous statement that he was innocent and that others had committed the crime. There was no promise, or implication of a promise, after the statements of defendant had been investigated and found to be untrue. There is no logical basis for the contention that defendant was influenced to make the incriminating statement by reason of any promise that was clearly limited to the perfectly natural statement the officer made under the circumstances, that on the assumption defendant’s statement that he had previously given was true, the officer would do what any good officer should attempt to do, that is, attempt to locate the guilty party or parties and thereby help one who was innocent.

The trial court was not in error in admitting in evidence the incriminating statements of defendant.

Appellant advances the proposition that his conviction should be reversed by reason of the failure of the indictment to aver the date of the alleged crime and the Code Section violated. He does not support such contention by a citation of any authorities. No demurrer was interposed to the indictment. The indictment is in Code form. Code of Alabama, T. 15, § 259, Form 79. An indictment charging murder in the first degree in compliance with the Form is sufficient. Boulden v. State, 278 Ala. 437, 179 So.2d 20; Sanders v. State, 278 Ala. 453, 179 So.2d 35; Boutwell v. State, 279 Ala. 176, 183 So.2d 774.

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

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

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Thad KNUCKLES, alias.
    SC 2363.
    Supreme Court of Alabama.
    March 11, 1977.
   SHORES, Justice.

WRIT DENIED.

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


author: L. S. MOORE, Retired Circuit Judge.

text:
    Larry Paul ROLLINS v. STATE.
    4 Div. 461.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.
    Samuel L. Adams, of Adams & Bates, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for the State, ap-pellee.
   L. S. MOORE, Retired Circuit Judge.

The appellant was convicted for possessing marijuana and sentenced to five years in the penitentiary. He now appeals.

James Stanley was a policeman with the City of Dothan on December 27, 1975. His testimony showed that about 5:00 P.M. that day he saw fresh car tracks going into a field under cultivation and followed the tracks to where a ear was parked. Stanley saw appellant and two other men standing at the rear of the car. As he approached, the appellant came from the rear of the car to the passenger-side, leaned into the car and came out with a plastic bag in his hand. Appellant then came back to the rear of the car and threw the bag about ten feet into a fence row. Stanley saw where it went and after telling them all to stand where they were, he went over and picked up the plastic bag. According to Stanley, he never lost sight of the plastic bag from the time he saw it in the appellant’s hand until he picked it up. Stanley then arrested the appellant for possessing marijuana. He looked into the car and saw some brown vegetable substance lying on the front seat. Stanley looked at the contents of the bag and it was greenish-brown vegetable substance which looked like the same stuff that he had seen on the car seat and was about the same color. Stanley kept the bag in his hand until he got to the police department. There he marked and tagged it as evidence and along with Officer Wendell White, sealed it in a manila envelope. He put his initials over the seal and Officer White put his initials on the envelope. They then wrote on the envelope the suspect’s name, the time and the date and that Stanley turned the envelope over to Officer White. After testifying to his experience and training in identifying drugs, which fully qualified him, Stanley stated that in his opinion the substance in the bag was marijuana and that the substance he saw on the car seat was also marijuana.

Wendell White, a Dothan policeman, testified that on December 27, 1975, he saw the plastic bag with marijuana. He received it from Jim Stanley and it was identified to him as pertaining to the case of the appellant. White examined it and put it in a brown manila envelope which he put his initials on, taped over the seals and initialed again. According to White, Officer Stanley also initialed it. The envelope was name tagged on the front with what was in it. White took the envelope to the narcotics division and locked it in a fire-proof file cabinet. He turned it over to Sgt. McCord on January 13,1976, at which time it was in the same condition as when he received it and locked it up.

On January 13, 1976, James R. McCord was a Dothan policeman and worked in the narcotics department. He testified that on that date he received an envelope from Wendell White, identified to him as pertaining to the case involving the appellant. It was a brown manila envelope with “W. W. and J. C. S.” initialed on it and had a package inside. McCord took the envelope to Enterprise and turned it over to Miss Hazel Killett, a laboratory secretary. McCord stated he did not open the envelope, and that it was in the same condition when he gave it to her as when he got it from White.

Malinda Long was employed by the State of Alabama, Department of Toxicology and Criminal Investigation at Enterprise, Ala-bamá. She testified that she analyzed drugs (and the appellant thereupon stipulated that she was an expert in that field). On January 13, 1976, she received a brown manila envelope, described to her as coming from the Dothan Police. It was “. sealed with plastic tape with the initials and a seal and initials again J. C. S. and W. W.” The package’s seal was intact. She opened the package by cutting it across the top without breaking the seal. Her analysis of the vegetable matter contained therein showed it was marijuana. She said the package contained 13.14 grams of vegetable material.

Lydia Johnson testified that she was an employee of the Houston County Circuit Clerk and as such was custodian of the circuit court records and the county court records in criminal cases which were kept in that office. According to Johnson, the State’s exhibit no. 1, was a certified copy of the judgment entry in the case of the State of Alabama v. Larry Paul Rollins, in the Houston County Court, and shows a conviction on December 18, 1975 of defendant, Larry Paul Rollins, for possession of marijuana. State’s exhibit no. 1 was admitted in evidence over appellant’s objection.

State’s exhibit no. 1, is as follows: “# 60466 The State 1 vs r PM Larry Paul Rollins J
“December 18, 1975 — Defendant pleads guilty. He is guilty as charged and the court hereby awards the following punishment: that the defendant be fined $250.00 and costs, and sentenced to hard labor for twelve months which sentence is suspended until June 17, 1976 at 9:00 a. m., upon payment of fine and costs.”
The exhibit was certified to as follows:
“I, Julia L. Trant, Clerk of the Houston County Court, hereby certify that this is a true and correct copy of Minute entry of Judgment filed in this Court on Dec. 18, 1975. This the 13 day of April, 1976.
“Julia L. Trant “Clerk of Court.”

The indictment or information or affidavit presenting the charge against the appellant in that case was not offered in evidence.

When the State rested its case the defendant moved to exclude the State’s evidence on the ground that a prima facie case had not been made. The motion was denied and overruled.

The testimony of the witnesses for the appellant was to the effect that he threw away a beer can or bottle. They said he did not throw away a plastic bag and did not have any marijuana in his possession. Appellant’s witnesses denied seeing any marijuana on the car seat and stated that the officer came to the car and talked to them. They said the officer then walked over to the bushes and came back with a plastic bag.

The appellant testified in his own behalf very much along the same line as his other witnesses. He denied getting a plastic bag out of the car and throwing it away. Appellant said he threw a beer bottle down and went to the car to get another. He denied having the plastic bag in his hand or possessing any marijuana.

During the district attorney’s cross-examination of the appellant, the record discloses the following:

“By Mr. Gruenewald:
“Q All right. Mr. Rollins, back on December 18, 1975, were you convicted in Houston County Court for possession of marijuana for your own personal use and fined?
“MR. ADAMS: And I object to that, if The Court please.
“THE COURT: Let him finish his question.
“By Mr. Gruenewald:
“Q And fined $250.00 and cost and given a twelve month jail sentence which was suspended?
“MR. ADAMS: I object to that may it please the Court. It is not a crime involving moral turpitude.
“THE COURT: This is an element of this offense and I overrule you. You can answer.
“THE WITNESS: Yes, sir. I had loaned by car out and I had been stopped — •
“THE COURT: No.
“MR. GURENEWALD: We move to strike that.
“THE COURT: Sustained. Sustained.”

The record thus discloses the defendant admitted a prior conviction for possession of marijuana. He did not admit he had an attorney or waived one. The court would not permit him to make any explanations.

The evidence on behalf of the State shows the appellant had the plastic bag containing marijuana in his hand and that he made an effort to conceal it by throwing it into the fence row as the officer approached, which is evidence of guilty knowledge. There was substantial evidence of every element of the offense. The motion to exclude the evidence was properly overruled. Stephens v. Town of Blountsville, 37 Ala.App. 219, 66 So.2d 196; Barnett v. State, Ala.Cr.App., 339 So.2d 1082 (1976).

The chain of the possession of the marijuana from the time it came into the possession of Officer James Stanley until it was delivered to an employee of the laboratory at Enterprise, Alabama, was clearly shown by the evidence. The only question that could arise is its transfer from that employee to Malinda Long, the person at the laboratory who analyzed it. Long’s testimony as set out in this opinion leaves no room for doubt that it was the same manila envelope delivered to the employee of the laboratory and that it and the contents were in the “same condition” they were in when the employee got it. The envelope had not been opened and the contents had not been disturbed in any way. The evidence makes it clear that the marijuana analyzed by Long was the marijuana that Officer Stanley saw in the hand of the appellant. There is no error in the court’s ruling in this respect. The testimony of Long that it was marijuana was correctly admitted by the court.

The appellant contends that the trial court committed error in the admission into evidence of State’s exhibit no. 1, the prior conviction judgment. While that judgment does not show what he was convicted for, the jury was not mislead thereby, as the witness stated it was for a conviction for possessing marijuana. However, there was no showing that he was represented by counsel at the time he entered a plea of guilty in that case or that he waived counsel in that case.

In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, the court said:

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

It would clearly follow that presuming the defendant was represented by counsel from a silent record would also be impermissible.

Historically the law in Alabama has, for at least a great many years, required counsel to be appointed for indigent defendants in capital cases. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, held that counsel had to be appointed for indigent defendants in felony cases. Judge Cates, writing in Irvin v. State, 44 Ala.App. 101, 203 So.2d 283, extended the duty to appoint such counsel in serious misdemean- or cases. The duty to appoint such counsel, unless legally waived, was spoken to by the Supreme Court of the United States in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, which further extended the duty to appoint counsel for an indigent defendant charged with a misdemeanor case. The court in Argersinger v. Hamlin, had this to say:

“[1,2] Petitioner, an indigent, was charged in Florida with carrying a concealed weapon, an offense punishable by imprisonment up to six months, a $1,000 fine, or both. The trial was to a judge, and petitioner was unrepresented by counsel. He was sentenced to serve 90 days in jail, and brought this habeas corpus action in the Florida Supreme Court, alleging that, being deprived of his right to counsel, he was unable as an indigent layman properly to raise and present to the trial court good and sufficient defenses to the charge for which he stands convicted.

“The Sixth Amendment, which in enumerated situations had been made applicable to the States by reason of the Fourteenth Amendment (see Duncan v. Louisiana, [391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491] supra; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019; Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, [93 A.L.R.2d 733]; and In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682), provides specified standards for ‘all criminal prosecutions.’

“ ‘[It] appears that in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes . . . Powell v. Alabama, 287 U.S. 45, 60, 64-65, 53 S.Ct. 55, 61, 77 L.Ed. 158, [166, 168] [84 A.L.R 527],

“The Sixth Amendment thus extended the right to counsel beyond its common-law dimensions. But there is nothing in the language of the Amendment, its history, or in the decisions of this Court, to indicate that it was intended to embody a retraction of the right in petty offenses wherein the common law previously did require that counsel be provided. See James v. Headley, [5 Cir.], 410 F.2d 325, 331-332, n.9.

“We reject, therefore, the premise that since prosecutions for crimes punishable by imprisonment for less than six months may be tried without a jury, they may also be tried without a lawyer.

“The assistance of counsel is often a requisite to the very existence of a fair trial. The Court in Powell v. Alabama, supra, 287 U.S., at 68-69, 53 S.Ct. at 64 [77 L.Ed. at 170] — a capital case — said:

“ ‘The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand on counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.”

“In Gideon v. Wainwright, supra (overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595), we dealt with a felony trial. But we did not so limit the need of the accused for a lawyer. We said: ‘[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal' quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.’ 372 U.S., at 344, 83 S.Ct. at 796 [9 L.Ed.2d at 805, 93 A.L.R.2d 733],

“Both Powell and Gideon involved felonies. But their rationale has relevance to any criminal trial, where an accused is deprived of his liberty. Powell and Gideon suggest that there are certain fundamental rights applicable to all such criminal prosecutions, even those, such as In re Oliver, supra, where the penalty is 60 days’ imprisonment: “ ‘A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence; and these rights include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.’ [emphasis supplied].

“The requirement of counsel may well be necessary for a fair trial even in a petty-offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more. See, e. g., Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254; Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, [80 A.L.R.2d 1355]; Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176.

“The trial of vagrancy cases is illustrative. While only brief sentences of imprisonment may be imposed, the cases often bristle with thorny constitutional questions. See Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110.

“In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, dealt with juvenile delinquency and an offense which, if committed by an adult, would have carried a fine of $5 to $50 or imprisonment in jail for not more than two months (id., at 29, 87 S.Ct. at 1444, 18 L.Ed.2d at 547), but which when committed by a juvenile might lead to his detention in a state institution until he reached the age of 21. Id., at 36-37, 87 S.Ct., at 1448-1449 [18 L.Ed.2d at 551]. We said (id., at 36, 87 S.Ct., at 1448, 18 L.Ed.2d at 551), that ‘[t]he juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he had a defense and to prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him,’ citing Powell v. Alabama, 287 U.S. at 69, 53 S.Ct., at 64 [77 L.Ed. at 170]. The premise of Gault is that even in prosecutions for offenses less serious than felonies, a fair trial may require the presence of a lawyer.

“Beyond the problem of trials and appeals is that of the guilty plea, a problem which looms large in misdemeanor as well as in felony cases. Counsel is needed so that the accused may not know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution.

“In addition, the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result. The Report by the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 128 (1967), states: ‘For example, until legislation last year increased the number of judges, the District of Columbia Court of General Sessions had four judges to process the preliminary stages of more than 1,500 felony cases, 7,500 serious misdemeanor cases, and 38,000 petty offenses and an equal number of traffic offenses per year. An inevitable consequence of volume that large is the almost total preoccupation in such a court with the movement of cases. The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudication. Inadequate attention tends to be given to the individual defendant, whether in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction. The frequent result is futility and failure. As Dean Edward Barrett recently observed:

“ ‘Wherever the visitor looks at the system, he finds great numbers of defendants being processed by harassed and overworked officials. Police have more cases than they can investigate. Prosecutors walk into courtrooms to try simple cases as they take their initial looks at the files. Defense lawyers appear having had no more than time for hasty conversations with their clients. Judges face long calendars with the certain knowledge that their calendars tomorrow and the next day will be, if anything longer, and so there is no choice but to dispose of the cases.

“ ‘Suddenly it becomes clear that for most defendants in the criminal process, there is scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way. The gap between the theory and the reality is enormous.

“ ‘Very little such observation of the administration of criminal justice in operation is required to reach the conclusion that it suffers from basic ills.’ ”

“That picture is seen in almost every report. ‘The misdemeanor trial is characterized by insufficient and frequently irresponsible preparation on the part of the defense, the prosecution, and the court. Everything is rush, rush.’ Hellerstein, The Importance of the Misdemeanor Case on Trial and Appeal, 28, The Legal Aid Brief Case 151, 152 (1970).

“There is evidence of the prejudice which results to misdemeanor defendants from this ‘assembly-line justice.’ One study concluded that ‘[misdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel.’ American Civil Liberties Union, Legal Counsel for Misdemeanants, Preliminary Report 1 (1970).

“[3] We must conclude, therefore, that the problems associated with misdemeanor and petty offenses often require the presence of counsel to insure the accused a fair trial. Mr. Justice POWELL suggests that these problems are raised even in situations where there is no prospect of imprisonment. Post, [407 U.S. at 48, 92 S.Ct.] at 2018 [32 L.Ed.2d at 544]. We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail. And, as we said in Baldwin v. New York, 399 U.S. [66] at 73, 90 S.Ct., at 1890, [26 L.Ed.2d 437 at 442], ‘the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter and may well result in quite serious repercussions affecting his career and his reputation.’

“[4] We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” [Footnotes omitted.]

We now come to a consideration of the admissibility of the minute judgment entry in the prior case of the appellant for the purpose of enhancing the punishment in the case before us. In Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874, the rule is stated:

“Appellant asserts that the trial court incorrectly admitted evidence over objection and motion of the prior conviction of grand larceny due to the fact that he was not represented by counsel when he plead guilty on April 10,1950, to grand larceny. In admitting this record, the trial court committed reversible error. The Supreme Court of the United States determined in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, that a state may not use the record of a prior conviction to enhance the punishment in a given case without first affirmatively establishing that the accused was represented by counsel or waived counsel at the time of such prior offense.”

The said judgment entry was not admissible without proof that the appellant had an attorney or legally waived one., at the time of said conviction. No such proof appears in the record. In admitting this record the trial court committed reversible error.

Furthermore, the judgment entry does not show what the conviction was for. It merely says “as charged.” The testimony of the employee of the circuit clerk could well be hear-say as to what offense he was convicted. The charge against him, that is, the affidavit, information, or indictment in that case was not offered in evidence.

For the error noted it is ordered and adjudged by this court that the judgment of the trial c'ourt be and same is reversed and the cause is remanded to the trial court for further proceedings.

The foregoing opinion was prepared by the Honorable L. S. MOORE, a retired circuit judge, serving as a judge of this Court, under the provisions of § 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2364.
    Supreme Court of Alabama.
    March 11, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Sollie Lee LIPTROTH v. STATE.
    6 Div. 910.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.

      Samuel H. Sanders, III, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., Montgomery, for the State.
   BOOKOUT, Judge.

Rape; sentence: life imprisonment.

There is a companion case to the present case. Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied Ala., 335 So.2d 688 (1976). This Court in that case affirmed the appellant’s conviction for the rape of a teenage girl on June 22, 1974. The appellant now appeals from the conviction of the rape of another teenage girl on the same night, in the same house, and at approximately the same time. The facts surrounding the two alleged rapes, except for the identity of the victim, are essentially the same. Suffice it to state that the evidence presented by the State was overwhelming. The appellant presents four arguments on appeal. We pretermit lengthy discussion of the first three arguments as they were discussed in detail in Liptroth, supra (hereafter referred to as Liptroth I).

I

The appellant contends Volume 14, '§ 714, Appendix, Code of Alabama 1940, Recompiled 1958, violates the Fourteenth Amendment to the Constitution of the United States by denying to defendants in Jefferson County due process and equal protection, because it provides a one-for-one . striking of the jury venire. The trial court •incorporated the evidence presented in Lip-troth I on this issue into the present case. This Court held in Liptroth I that Volume 14, § 714, did not violate the United States Constitution. We arrive at no different conclusion here.

II

The appellant contends the alleged use of peremptory challenges to exclude blacks from juries violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Again the evidence presented in Liptroth I on this issue was incorporated into the present case by the trial court. We held in Liptroth I that the appellant had not presented a prima facie case of violation of the Equal Protection Clause. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Based on the same authority, we again hold that the appellant did not present a prima facie case of violation of the Equal Protection Clause.

III

The appellant contends that the trial court erred in admitting into evidence the appellant’s cap and shirt. The clothing was obtained when the appellant’s wife consented to a search of the appellant’s home. The evidence regarding consent was, in pertinent part, the same as that presented in Liptroth I. This Court held that the consent was voluntary in that case. We again hold that nothing contained in the present record indicates that the trial court’s determination that the consent was voluntary was erroneous.

IV

The appellant’s final contention was not raised in Liptroth I. The appellant apparently questions the admissibility of the in-court identifications by the three eyewitnesses to the rapes. After the rapes, the witnesses separately produced, with the help of a police technician, a composite likeness of the assailant. They then collectively chose the best composite of the three. The police then separately showed each witness eight photographs. All three witnesses individually picked the appellant as the assailant. They all noted, however, that another man’s picture resembled the assailant.

The appellant appears to contend that the photographic display produced a substantial likelihood of misidentification which irreparably tainted the witnesses’ in-court identifications. We recently discussed in some detail the various issues which relate to identification procedures. Childers v. State (1976), Ala.Cr.App., 339 So.2d 597, cert. denied Ala., 339 So.2d 601. There we set forth certain factors which must be considered when evaluating the likelihood of misidentification, whether in-court or out-of-court. All of the factors set forth in Childers weigh extremely heavy against misidentification in this case. The factors are as follows:

A. The witnesses had ample opportunity to view the assailant at the time of the rapes. The assailant was in the house for approximately forty-five minutes during which time he wore no mask or disguise. Part of the time he was in a well lighted room.

B. The witnesses’ attention during this period was devoted solely to the assailant.

C. The witnesses’ initial description of the assailant accurately depicted the appellant.

D. The witnesses were certain of their identifications, both in-court and out-of-court.

E. Six days elapsed between the night of the rapes and the out-of-court identification. The in-court identifications took place approximately five months after the rapes.

The preceding factors illustrate that there was no likelihood of misidentification in this case. The appellant, in brief, points to some very minor discrepancies in the witnesses’ testimony. He also points out that only two of the men featured in the photographic display wore tank top shirts like that described as having been worn by the assailant on the night in question. However, taken as a whole, the appellant appears to contend that the witnesses lied and not that they were mistaken. Of course, this is an argument which should be addressed to the jury and not to this Court. We find no likelihood of misidentification in the out-of-court or the in-court identifications. Therefore, we hold the trial court did not err in allowing the witnesses to make an in-court identification of the appellant.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Sollie Lee LIPTROTH.
    SC 2376.
    Supreme Court of Alabama.
    March 11, 1977.
   SHORES, Justice.

WRIT DENIED.

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