text:
    In re Jerry David MANESS v. STATE. Ex parte Jerry David Maness.
    SC 1722.
    Supreme Court of Alabama.
    April 2, 1976.
    J. Allen Lee, Scottsboro, for petitioner.
    No appearance for the State.
   BLOODWORTH, Justice.

Petition of Jerry David Maness for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Maness v. State, 57 Ala.App.-, 329 So.2d 120.

WRIT DENIED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Robert HILL v. STATE.
    4 Div. 347.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      Bryant F. Williams, Jr., Ozark, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

By a petition for writ of error coram nobis, petitioner, now the appellant from a denial of the petition, sought to nullify his conviction of murder in the first degree which has been affirmed on appeal and reported as Hill v. State, 53 Ala.App. 23, 296 So.2d 921. The proceeding was instituted by petitioner pro se, but he has had the benefit of diligent appointed counsel, both on the hearing below and on appeal.

The gravamen is that he was denied due process of law and equal protection of the laws, guaranteed to him by the Fourteenth Amendment to the Constitution of the United States. In the original petition drafted by him, he complains that he was indicted by an all-white grand jury and tried by an all-white petit jury. The petition was broadened by his attorneys by amendment, wherein it was charged that “the jury roll at the time of petitioner’s trial was arbitrarily composed such that it offered no adequate representation of a cross-section of the community,” and that it contained “an insufficient percentage of Blacks, denying petitioner due process of law ... by systematically excluding Blacks and by failing to be adequately representative of the community.”

A lengthy hearing was conducted, in which several witnesses testified and voluminous documents were offered in evidence, including “the jury roll itself” at the time of the hearing on the petition.

The murder trial was in June 1972. The coram nobis petition was filed in September 1974. In its brief the State challenges, and in response to the petition in the court below it challenged, the right of petitioner to maintain a proceeding for post-conviction relief on the ground of discrimination in the process for obtaining the grand jury and petit jury that indicted and convicted defendant, urging that defendant’s failure to bring the matter to the attention of the court before or during trial constituted a waiver of his ground of complaint. It was so held in Morris v. Sullivan, 497 F.2d 544 (5th Cir. 1974). In so holding the court followed the Alabama decisional law on the subject. Ex parte Seals, 271 Ala. 622, 126 So.2d 474 (1961); Hamilton v. State, 283 Ala. 540, 219 So.2d 369; Washington v. State, 269 Ala. 146, 112 So.2d 179. The court also held that its decision was in accord with, and that an opposite decision would be contrary to, Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 and Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357.

There is a general allegation in the amended coram nobis petition, unsupported by any evidence, that the facts alleged in the petition “were not known to petitioner or to the Court at the time of trial.” The petition gives no reason for the petitioner’s not knowing such facts. Furthermore, the record indicates, if it does not conclusively show, that on the trial of the murder case, petitioner and his attorney knew as much about the composition of and the method of constituting the jury roll and the jury box, as they did at the time of the filing of the coram nobis petition.

Appellant’s failure to protest, at the most appropriate time, against an alleged invasion of his constitutional right to a representative jury, that is, a jury or a jury roll in which his particular race would be constitutionally represented, was not a mere waiver of his right. With knowledge at the time of trial of the facts forming a basis for an objection to trial, it constitutes a specie of estoppel for one to forego an objection and proceed with the trial in the hope, often a lively hope, of a verdict in his favor. After such a venture that has failed, he should not be permitted to obtain another trial by the assertion of a claim he could have made before his trial.

Notwithstanding our conclusions herein-above expressed, we will proceed to consider the other issues on this appeal.

A large part of the testimony was more in the nature of evidence taken in a discovery proceeding than in a hearing on the issues presented by the petition and answer of the State. No criticism is directed at anyone in this respect, .but witnesses were called upon at times to give their opinion or judgment or estimate without any assurance that the same would be accurate. As a result, there are conflicts and confusion in the record as to the number, race, and percentage of specific races in the jury box and in the jury roll at particular times. However, there seems to be no basis for a dispute as to 1970 census figures showing that there were 29,559 persons 21 years of age or over in Dale County, that 25,839 were white and 3,276 were black, or approximately eighty-nine percent white and eleven percent black. The jury roll introduced in evidence by petitioner, and used largely as a basis for the charge of discrimination, contained 2,881 names at the time of the hearing on the coram nobis petition. Of these names, 334, between eleven and twelve percent, were black.

In the original pro se petition, filed soon after petitioner started serving his sentence, petitioner seemed to be basing it chiefly upon Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), to which reference was repeatedly made in the petition. Peters v. Kiff stands preeminently for the proposition, not theretofore decided by the Supreme Court, that a white person has standing to assert a claim of unconstitutional discrimination against the Negro race in the preliminary process to obtain a jury for the trial of his case. Though he focused his attention upon that case, we find no further reference to it, and we do not understand that he claims that his case is like Peters v. Kiff in the particular respect noted, but whether so or not, it would make no difference according to the case, and we are bound by it.

The basic contentions of appellant are (1) that the jury roll at the time of the drawing of jurors for his trial in 1972 did not contain enough names of qualified jurors to assure a fair trial by an impartial jury and (2) that the composition of the grand jury that indicted petitioner and the petit jury venire from which the jury was selected that tried him was so weighted against the Negro race as to “establish a prima facie case of discrimination unre-butted by the state.” In addition, appellant urges that the trial court erred in sustaining the State’s objections to certain questions asked by petitioner’s counsel relative to a difference in the composition of the jury roll at the time of trial and at the time of the coram nobis hearing, more than two years after the trial.

There was no memorial of the number of jurors on the jury roll at the time of the trial, but from rather unsatisfactory and inconclusive statements by some of the witnesses, it seems that about 2,500 or 3,000 were on the jury roll at that time. The evidence is so unsatisfactory as to the particular point that we do not find that appellant in his brief attempts to state his view as to the number. We should note also that in contending that there were not enough jurors in the jury box to represent a cross section of the county, appellant in his brief refers at times to the jury roll at the time of the coram nobis hearing rather than to the jury roll at the time of the trial. He says that there is testimony “to the effect that in 1972 only 1,500 to 2,000 names were on the jury roll.” What the particular witness said was that there were approximately 4,000 names on the jury roll at the time of his testimony and that 1,500 to 2,000 had been added since June 1972. This would make, it seems, 2,000 to 2,500 on the jury roll in 1972, if it is assumed that all of the names on the roll in June 1972 remained thereon until the coram nobis hearing, which certainly cannot be assumed.

Even though the record supports the contention that no more than about eight or ten percent of persons 21 years of age or over in Dale County were enrolled for jury service at the time of defendant’s trial, there is no evidence in the record that such number did not represent a cross section of the county. Although a much larger percentage would have made the roll more like Caesar’s wife should have been, the percentage is not so small as to furnish a presumption of purposeful discrimination so as to place the burden upon the State to disprove the charge.

In support of his apparent thesis that the number of persons on the jury roll at the time of defendant’s indictment and trial was so small that it did not furnish a cross section of the county, appellant cites State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970) ; Bokulich v. Jury Commission, 298 F.Supp. 181 (N.D.Ala.1968); Mitchell v. Johnson, 250 F.Supp. 117 (M. D.Ala.1966); White v. Crook, 251 F.Supp. 401 (M.D.Ala. 1966); Turner v. Spencer, 261 F.Supp. 542 (S.D.Ala.1966). None of the cases supports the proposition advanced. State ex rel. Gregg v. Maples stands preeminently for the principle that a list of voters could not be validly prescribed and used as the list from which the names of prospective jurors are to be obtained. In Bokulich, the court looked at both the procedure and the result the result being a much smaller (about one-half) percentage of Negroes than whites from the jury roll in Greene County, in which the percentage of Negro residents was about twice that of whites. In Mitchell v. Johnson, the system that produced the result of about one-half the number of Negroes as white on the jury roll in the county (Macon), composed of four times as many Negroes as whites, was declared unconstitutional. In White v. Crook, the result of the system employed was that in a county (Lowndes) wherein Negroes composed 80.7 percent of the total population of 15,417, the number on the jury roll was nominal. In Turner v. Spencer, the court said as to the counties of Hale, Wilcox, and Perry:

“The existence of a pattern and practice of exclusion of Negroes from jury service in the counties is virtually uncontro-verted.”

We search the record in vain for evidence that the jury roll extant at the time of defendant’s indictment and conviction was not composed of a cross section of Dale County, whether we take cross section to mean “fair sample,” as stated in United States v. Dennis, 183 F.2d 201, 224 (2nd Cir. 1950) aff’d Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, or as more generally defined, “A composite representation typifying the constituents of a thing in their relations.” Webster’s International Dictionary (2nd Ed.).

After appellant had obtained, by order of court, a copy of the jury roll at the time of the coram nobis hearing and had discovered that there was no disparity between the percentage of Negroes thereon and the percentage of Negroes in Dale County, had introduced the list into the evidence on the coram nobis hearing and had questioned witnesses extensively about it, he asked on redirect examination of one pi-• the jury commissioners he had called as a witness, “. . . how many blacks have been added since 1972?” Of another jury commissioner he had called as a witness, he asked “Now, Mr. Johnson, how many names have you submitted at the last chance that you had to submit names ?” The court sustained the State’s objection to each of the questions. Appellant assigns as error the action of the court in this respect. This indirect approach, this setting up the 1974 jury roll as a straw man, knocking it down and attempting therefrom to raise up a case of discrimination in the 1972 jury roll, would not have produced any definite favorable result to petitioner, we are convinced by the record. The procedure was not accompanied by any indication of such a result. Furthermore, the record conclusively shows that neither witness could have answered the question to which an objection was sustained. The first witness mentioned had been asked by petitioner’s counsel, “Is there any way to tell whose name was added since 1972?” and his answer was, “No, because we don’t put a date on it.” He had previously been asked by petitioner’s counsel “How — taking a guess at how many — well, state how many names have been added since June, 1972?” to which he answered, “I’d say a couple of thousand.” He had also testified on interrogation by petitioner’s counsel that in 1972 about 15 percent of the total number on the roll were blacks. The other witness, who was responsible for a beat in the county that included Ozark and who went on the commission in 1971, was allowed, without objection, to answer questions on redirect examination by petitioner’s counsel as to additions to the jury roll proposed by him during “the period 1971 until now.” He said that he had added more blacks than whites. He was then asked, “How many have you done?” He replied, “Like I say, I had a record at home, but it’s been misplaced and I wouldn’t say how many.”

- — No error injurious to petitioner is to be found in the court’s sustaining objections to the questions under consideration. The guesswork called for by this particular post-conviction, post-affirmance of conviction, proceeding emphasizes the soundness of the principle that the asserted constitutional question should have been presented at or before the trial of defendant.

In support of his contention that' a “substantial disparity in the representation of appellant’s race on the grand and petit jury venires when compared to the racial make-up of the county population” establishes a prima facie case of discrimination unrebutted by the State, petitioner relies largely upon Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) and Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967). Both of the cited cases are grounded on some factors not found in the instant case, particularly “the disparity between the percentage of Negroes on the tax digest and those on the venires.” Whitus, supra, 385 U.S. at 552, 87 S.Ct. at 647, 17 L.Ed.2d at 605 and Jones, supra, 389 U.S. at 25, 88 S.Ct. at 5-6, 19 L.Ed.2d at 27. Even without that factor, the disparity between the percentage on the venires and the percentage in the population in those cases is far removed from the disparity in this case, in Whitus, the percentage relative to population was more than four times the percentage on the grand jury venire and more than five times the percentage on the petit jury venire; in Jones, the percentage as to population was more than six times the percentage on the petit jury venire and on the grand jury that indicted Jones.

The most that appellant can claim for himself as to disparity shown by the percentage of Negroes on the grand and petit jury venires is that there were fifty-five persons on such venire and three of them, or 5.4 percent, were black; that twenty-eight persons were drawn from the grand jury and that only one, or 3.6 percent, was black. It is also to be observed that of the twenty-eight persons drawn from the grand jury, only twenty-three appeared, the absence of the others being accounted for by various reasons such as hospitalization, death and "not found.” When “compared to the racial make-up of the county population” in each of the three counties, the disparity is less than one-half the disparity found in either Whitus or Jones, supra.

We must follow Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L. Ed.2d 759, 766, (1965) in which it was said:

“Venires drawn from the jury box made up in this manner unquestionably contained a smaller proportion of the Negro community than of the white community. But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. Virginia v. Rives, 100 U.S. 313, 322-323, 25 L.Ed. 667, 670-671; Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Thomas v. Texas, 212 U.S. 278, 282, 29 S.Ct. 393, 394, 53 L.Ed. 512, 513; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. ‘Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.’ Cassell v. Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 631, 94 L.Ed. 839, 847 (opinion of Mr. Justice Reed, announcing judgment). 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%. See Thomas v. Texas, 212 U.S. 278, 283, 29 S.Ct. 393, 394, 53 L.Ed. 512, 514; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L. Ed. 839. Here the commissioners denied that racial considerations entered into their selections of either their contacts in the community or the names of prospective jurors. There is no evidence that the commissioners applied different standards of qualifications to the Negro community than they did to the white community. Nor was there any meaningful attempt to demonstrate that the same proportion of Negroes qualified under the standards being administered by the commissioners. It is not clear from the record that the commissioners even knew how many Negroes were in their respective areas, or on the jury roll or on the venires drawn from the jury box. The overall percentage disparity has been small, and reflects no studied attempt to include or exclude a specified number of Negroes. Undoubtedly the selection of prospective jurors was somewhat haphazard and little effort was made to ensure that all groups in the community were fully represented. But an imperfect system is not equivalent to purposeful discrimination based on race. We do not think that the burden of proof was carried by petitioner in this case.”

Assuming a desideratum of representation of Negroes on a petit jury venire of a percentage equal to their percentage of the total population that could conceivably be used for jury service, the percentage in the instant case more nearly reached that goal than did the percentage in Swain. It was approximately 100 percent greater than the percentage in Swain. Assuming a similar desideratum as to the grand jury, the percentage of Negroes in the instant case fell short of the percentage of Swain by about 25-35 percent, but if only one more Negro had been on the grand jury in this case the percentage of that race in relation to its percentage of total population would have exceeded the percentage in Swain. On, the whole, as to the grand jury and petit jury considered together, the percentage of Negroes when compared to their percentage in population was greater in the instant case than in Swain, which met the approval of the Supreme Court.

Swain v. Alabama, supra, has also put to rest any contention by appellant that peremptory challenges by the State, or striking without making known the cause, to the extent of “the striking of Negroes in a particular case is a denial of equal protection of the laws.” 380 U.S. at 221, 85 S.Ct. at 836, 13 L.Ed.2d at 773.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

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

CATES, P. J., concurs in the result.

      . There is some evidence of the presence of four blacks on the petit jury venire.

      . In Swam, there were 8 blacks on a petit jury venire of 100. Swain v. State, 275 Ala. 508 at 513, 156 So.2d 368 at 373. Four or five Negroes were on the grand jury venire of about 33.


author: BLOODWORTH, Justice.

text:
    In re Robert HILL v. STATE. Ex parte Robert Hill.
    SC 1738.
    Supreme Court of Alabama.
    April 2, 1976.
    Bryant F. Williams, Jr., Ozark, for petitioner.
    No appearance for the State.
   BLOODWORTH, Justice.

Petition of Robert Hill for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hill v. State, 57 Ala.App. -, 329 So.2d 126.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    David Michael ISBELL v. STATE.
    6 Div. 986.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.
    Charles C. King, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Buying, receiving, concealing, or aiding in. concealing stolen property; sentence: three years imprisonment.

The appellant in this case was charged with burglary in the second degree in Count I, grand larceny in Count II, and buying, receiving, concealing, or aiding in concealing stolen property in Count III. The jury returned a verdict of guilty of Count III as charged in the indictment.

Phillip Taylor, the State’s first witness, testified that he had gone hunting on November 19, 1974, and that his wife had gone to Huntsville to visit someone. When he returned home on the 21st, he noticed a hole in the back door and found the following items missing from his gun case: a Remington .12 gauge shotgun, Serial No. 5197701; an extra barrel for that gun; an H and R muzzle loader; a .45 caliber gun, Serial No. AL208721; a .22 caliber single shot rifle; a Winchester Buffalo Bill, 30-30 rifle, Serial No. 114567; a Bear Kodiac, Serial No. KT495591; a 52-inch Shakespeare arrow bow; a Universal scope; and a quiver of arrows that was attached to the bow. He estimated the value at $650.00 to $700.00. All of the items belonged to Phillip Taylor except the .22 caliber single shot which belonged to his father.

Taylor stated that he had been knowing the appellant approximately fifteen years, and the appellant had been a guest in his home from time to time. The • appellant had been in his home approximately one month before he left on his hunting trip, and he believed that he asked the appellant to go with him.

On cross examination by the defense, Taylor said that he saw the appellant near the Star Cleaners in Arab the day after he discovered the theft. He testified that he knew the appellant was majoring in law enforcement in college. The appellant said that he “might know something” about the break in and said “Well, I have some friends, let me. ask some questions.” Taylor then asked appellant to let him know if he found out anything about his guns. Taylor testified that he got the guns back, receiving them at the police station in Arab on the morning of November 27, 1974.

When Roy Michael Whisenant was called to the stand, counsel for appellant informed the trial court as follows:

“Your Honor, I have interviewed this witness and his testimony may tend to incriminate him, and I think that he should be advised of his fifth amendment rights before he testifies in this case. . . .”

The above statement was not made as an objection, and the court proceeded with the case. Whereupon, Whisenant testified that he was with the appellant on November 26, 1974, at about 7:00 P.M. when he picked up the appellant at his home. Whisenant had already gone by Ricky Harper’s house and picked him up at 6:30 P.M. After leaving the appellant’s house, they drove to a dirt road near Thompson Falls. They stopped, and the appellant and Harper got out of the car. Whisenant said he had been awake three days studying for exams and was sleepy and may have dozed off. However, he remembers the appellant and Harper getting back into the car. He stated that he did not see them put anything into the car. After he heard the door shut, he looked in the back and saw a large black plastic bag.

The trio drove back by the appellant’s house for him to get his coat. The appellant went into his house, and Ricky Harper stayed in the car with Whisenant. While the appellant was in his house, Whisenant looked in the bag and testified that it contained guns. Ricky Harper did not testify in the trial.

Whisenant said he suggested carrying the guns to show them to his cousin in Morgan City, as his cousin was an avid hunter. Whisenant stated that neither the appellant nor Harper ever mentioned anything about selling the guns. He said the appellant suggested taking the guns to Phillip Taylor’s house.

The police stopped Whisenant, on the way to his cousin’s house, and arrested him for reckless driving. All three were taken to jail. While in jail, Whisenant signed a sworn statement.

During Whisenant’s direct examination, the trial judge stopped the testimony and excused the jury from the courtroom. The trial judge then stated inter alia:

“But, there is a possibility at this point that you could be guilty if you had knowledge or reason to have knowledge or reason to believe that these were stolen guns, or that they were not the property of the two boys that were with you —either one of them. That at this point after you met the police, if you at that point, it is possible that you could have become possibly guilty of aiding or rather concealing or aiding in the concealing of stolen property. So, I feel it only fair to tell you that and advise you at this point there is a possibility that you could incriminate yourself if you testify further with regard to this case, and that, as such, you have a right to remain silent. You don’t have to testify where it comes to incriminating yourself. And, of course, that be the case then, any further questions that the State might ask you, you have a right to refuse to answer them on the grounds that it might tend to incriminate me.”

The prosecuting attorney then stated to the court that the witness had been given immunity, because he had appeared before the grand jury and testified. He stated to the court that the witness had no charges pending against him, and that no charges would be placed against him. The trial judge returned the jury to the courtroom and then recessed the trial for lunch.

After lunch, Whisenant continued his testimony, but when asked how the guns got in the automobile, Whisenant stated that he put them there himself. The prosecution claimed surprise and brought out the fact that Whisenant had just had lunch with the appellant. The prosecution then read the statement which the witness had given to the police chief while in jail. The statement was read over the objection of the defense, purportedly for the purpose of refreshing the recollection of the witness. The statement was as follows:

“ T, Roy Whisenant, went to Ricky Harper’s house. Ricky and myself went to Mike Isbell’s house in Arab. We picked Mike up and drove down to Thompson Falls. Mike and Ricky said they had some guns they needed to sell. Ricky said they had one 30-30 lever action. I told them I had a cousin at Morgan City that would buy it. Ricky Harper and Mike Isbell got out of my car at Thompson Falls and got four guns, another barrel and scope. We left there and come back to Arab. The police stopped us on 10th Street, N.W. We had the guns in the back seat. I did not know the guns in my car were stolen.’ ”

After reading the statement, the District Attorney asked the witness if that statement was true. Whisenant stated that the statement was false. He said that he signed it, however, it was false. On cross examination, he explained that he had been awake for approximately three days, studying for college mid-term examinations, when he was arrested. He said that he had taken some “no-doze” and some prescription pills to stay awake and that he signed the statement so the police would let him out of jail and he could go take his examinations the next morning. Whisen-ant said that he did not make a statement to the police that the appellant and Ricky Harper said that they had some guns to sell. He further testified that he stopped the car near Thompson Falls, that Harper and the appellant got out to relieve themselves and got back into the car. He did not see them put the guns in his car. Whise-nant said that after the appellant saw the guns in the back of his car, the appellant suggested going to Phillip Taylor’s house. Whisenant again stated that he put the guns in the car himself.

Chief Jack Banister, of the Arab Police Department, testified that on November 26, 1974, between 8:30 and 8:45 P. M., he saw Mike Whisenant, Robert Harper and the appellant when they were brought to the police station by Officers Bradford and Maze. He stated that he was called out to a car containing some guns which had been driven to the station by Officer Bradford.

Vernon Bradford, a policeman for the City of Arab, was one of the arresting officers. He arrested Whisenant for reckless driving and arrested Harper and the appellant for disorderly conduct. Officer Bradford said that he saw the stolen items in plain view inside Whisenant’s car at the time of the arrest. Larry Waldrop, a deputy sheriff of Cullman County, and James Maze, a deputy sheriff of Marshall County, both testified to the description of the stolen items and accounted for the chain of custody.

At the end of the State’s testimony, the defense moved to exclude the State’s evidence on the grounds of failure to prove a prima facie case and the insufficiency of the evidence, which among other grounds, were stated in detail to the trial court. The motion was overruled. The defendant requested the affirmative charge and the affirmative charge with hypothesis, which were refused. Counsel for appellant likewise filed a motion for a new trial, challenging the sufficiency of the evidence and setting forth numerous other grounds. The trial court overruled the motion for a new trial, and counsel for appellant then filed in the record on appeal, thrity-nine assignments of error. Although assignments of error are no longer necessary in a criminal appeal per Title 15, § 389, Code of Alabama 1940, counsel for appellant, out of an abundance of caution, has endeavored to preserve any and all errors possible for review by this Court. By appellant’s motion to exclude the State’s evidence, his request for the affirmative charge and by his motion for a new trial, the weight and sufficiency of the evidence is indeed before this Court for review.

Both the motion to exclude the State’s evidence and the request for the affirmative charge are sufficient to raise the issue of the use of uncorroborated testimony of an accomplice as a basis for conviction. Alexander v. State, 281 Ala. 457, 204 So.2d 488 (1967); Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966); Peoples v. State, 56 Ala.App. 290, 321 So.2d 257 (1975).

I

The issue presented by the appellant is whether Whisenant’s statement was corroborated by other evidence. This becomes an issue only if Whisenant’s prior written statement was admissible and if it may be considered substantive evidence of the crime charged.

The only statement incriminating to the appellant, made by Whisenant in the course of the trial, did not come from the witness stand, but was a statement purportedly given to Chief Banister after his arrest, and read into evidence by the District Attorney.

Whisenant’s verbal testimony in the trial was not incriminating to the appellant. It was only when the prosecution claimed surprise that the incriminating statement came into evidence in any form. The prosecution was undoubtedly surprised by testimony favorable to the defendant coming from the State’s chief witness who supposedly was to testify against the defendant.

Cases in this jurisdiction indicate that although one may not generally impeach his own witness, there is an exception. When put to a disadvantage by unexpected answers, a party may, for the purpose of showing surprise or for refreshing the witness’ recollection, ask his witness if he had not made prior statements contrary to his instant testimony. This is permissible, after proper predicate, even though its incidental effect is to impeach the witness’ testimony. Edwards v. State, 51 Ala.App. 433, 286 So.2d 308, cert. denied, 291 Ala. 777, 286 So.2d 313 (1973), is directly in point. Also see: Marcum v. State, 39 Ala.App. 616, 107 So.2d 899 (1958); Woods v. State, 37 Ala.App. 668, 74 So.2d 535 (1954); McElroy, Law of Evidence in Alabama (2nd ed.), § 165.01(7) (a), p. 387.

In Jarrell v. State, 35 Ala.App. 256, 50 So.2d 767 (1949-50), after remandment by the Alabama Supreme Court, this Court held at p. 263, that the prosecuting attorney should have been allowed to clarify inconsistent statements of a State’s witness. In that case, the witness gave evidence which was contradictory in some aspects with previously given testimony. The prosecution asked the witness several questions with reference to his former testimony, directing his attention to certain specific replies to questions, and asked whether or not those answers were given. Thus, the substance of the prior conflicting statement was properly put before the jury in allowing the prosecutor to ask the witness if he had made such statements.

It, therefore, appears that under the theory of surprise, the prosecution may elicit from a witness that he in fact made prior contradictory statements, and may elicit from the witness the contents of prior statements through questioning. However, the prosecution would not be allowed to bring in other parties to prove the contents of the prior contradictory statements.

In the instant case, the contradictory matter was elicited by questioning the witness. Chief Banister was not used by the prosecution to prove the contents of the statement in any manner. After being surprised by the testimony of Whisenant, the District Attorney engaged him in the following questions:

“Q. And I will show you this piece of paper and ask you if you signed that piece of paper there at 9:15 or about that time, p. m., at the police station of Arab in the presence of Officer Jack Banister and Howard Martis? Is that your signature?
“A. That is my signature on the paper. “Q. Did you sign it at that time ?
“A. Yes, sir, I did.
“Q. And to refresh your recollection — ”

After several objections and voir dire examination by defense counsel, the appellant stated:

“I never said that they had any guns to sell.”
The District Attorney then stated, in pertinent part:
“ . . . I will ask you if you made this statement, now and I will read it to you from the statement on 11-26-74, about 7:15?”

Another defense objection was overruled whereupon the District Attorney read the statement and concluded by asking if it were true. Whisenant stated, “That statement is false. I signed it, but it is false.”

Assuming, from the foregoing authorities, that it was proper for the prosecution to question its witness in the above manner, was the statement read by the District Attorney substantive evidence of the crime charged ?

In Federal cases, we find that although one’s own witness may be impeached, that impeachment is for the purpose of removing the adverse effect of surprise testimony, and cannot be used for any other purpose. United States v. Dobbs, 448 F.2d 1262 (1971) (5th Cir.). In point with the principle at issue in the instant case is the proposition of law set out in Eisenberg v. United States, 273 F.2d 127 (5 Cir.1959). The Fifth Circuit Court of Appeals there stated the view that, when caught by surprise, a prior inconsistent statement of a party’s own witness is admissible for impeachment purposes, but such statement cannot be used as substantive evidence of the facts stated. That Court went on to quote the rule that, “ . . . ‘if the only evidence of some essential fact is such a previous statement, the party’s case falls’

Eisenberg, cites Southern Railway v. Gray, 241 U.S. 333, 36 S.Ct. 558, 60 L.Ed. 1030 (1915), wherein the United States Supreme Court held that:

“ . . . the contradictory statements can have no legal tendency to establish the truth of their subject-matter. Donaldson v. New York, N.H. & H. R. Co., 188 Mass. 484, 486, 74 N.E. 915; McDonald v. New York C. & H. R. R. Co., 186 Mass. 474, 72 N.E. 55; Com. v. Starkweather, 10 Cush. 59; Sloan v. New York C. R. Co., 45 N.Y. 125; Purdy v. People, 140 Ill. 46, 29 N.E. 700.”

Alabama, as early as 1888, adopted the rule that while a witness may be impeached by the use of prior contradictory statements, that such statement, “ . should not be treated as original evidence of the facts of the case, nor be received for any other purpose than that of contradicting or impeaching the witness — Jones v. Pelham, 84 Ala. 208, 4 So. 22. . ” Kennedy v. State, 85 Ala. 326, 5 So. 300. The Courts of this state have consistently held that the use of prior inconsistent statements, as used in the instant case, may not be considered as substantive evidence to prove the crime. Lewis v. State, 44 Ala.App. 319, 208 So.2d 228 (1968) ; Lynn v. State, 37 Ala.App. 400, 69 So.2d 485 (1954); Skinner v. State, 36 Ala.App. 434, 60 So.2d 363, cert. denied, 258 Ala. 713, 60 So.2d 367 (1952); Brown v. State, 31 Ala.App. 233, 14 So.2d 596 (1943), cert. denied, 244 Ala. 597, 14 So.2d 598; Manning v. State, 217 Ala. 357, 116 So. 360 (1928).

The latest expression on this point of law by the Supreme Court of Alabama comes in the civil case of Cloud v. Moon, 290 Ala. 33, 273 So.2d 196 (1973). Justice Merrill, citing Lewis and Eisenberg, supra, held that the prior inconsistent written statement of a hostile witness called by the plaintiff could not be used as substantive evidence to establish the defendant’s liability.

The Kennedy case, supra, indicates that the proper method of limiting the effect of the impeaching statement would normally be by proper instruction given to the jury. However, where the only evidence incriminating to the defendant is the impeaching statement, a limiting instruction would not be appropriate, since the insufficiency of the evidence would not justify the case being submitted to the jury, unless it be submitted on the affirmative charge requested by the defendant.

Thus, Whisenant’s prior written statement, not being substantive evidence, will not support the conviction.

II

The next issue is whether there was other evidence, from which the jury could draw an inference of guilt, to warrant submission of the case to the jury.

In the instant case, the appellant was an occupant in Whisenant’s automobile several days after the theft was discovered. There is no evidence whatsoever to connect the appellant with the break in or the theft. There is only evidence that he was riding in an automobile, owned and operated by another person in which the stolen guns were found.

In White v. State, 48 Ala.App. 111, 262 So.2d 313 (1972), the fact that the appellant, when arrested, was in the automobile of another, which contained the proceeds of a recent robbery, was sufficient corroboration of the testimony of an accomplice, when coupled with evidence of flight after the crime. Likewise, in Phiffer v. State, 44 Ala.App. 611, 217 So.2d 823 (1969), this Court held to be sufficient corroboration, “The uncontroverted fact that the appellant was arrested along with two alleged accomplices while riding in the vehicle which contained the stolen property in question.” However, both cases differ considerably from the instant case in several aspects.

In Phiffer, there was testimony by three State’s witnesses who saw the crime in progress. They saw, “ ‘a white Buick about a ’62 or ’63, and had an Eat More Beef tag on it . . . ,’ ” and saw “ ‘two colored fellows behind the car with the trunk up.’ . . . ” one man later walking down the street with a television set in each hand, and one State’s witness immediately called the police. A police sergeant testified that he received a radio dispatch describing the automobile and shortly thereafter, saw a car fitting that description and stopped it. He saw two television sets and a stand on the back floorboard and then placed the defendant and others under arrest for burglary and grand larceny. Thus, in Phiffer, we had three eye witnesses observing the crime in progress, seeing three men in the process of placing television sets in the automobile. There, we also had an apprehension of the suspects almost immediately after the crime.

In White, there was likewise an apprehension immediately following the robbery, after an automobile chase by the police. The defendants were in the automobile, having been described by make and were identified as being at the place of the robbery immediately prior to the robbery being discovered.

It is important to note that in both Phiffer and White, supra, the evidence of the appellant’s presence in a car containing recently stolen goods, was not adjudged sufficient to support the conviction, standing alone. The presence of those defendants in the vehicle in question was only held to be sufficient to corroborate the testimony of an accomplice. It is well settled that evidence corroborating the testimony of an accomplice need not be sufficiently strong of itself to support a conviction; it is sufficient if it legitimately tends to connect the accused with the offense. Cunningham v. State, 54 Ala.App. 656, 312 So. 2d 62 (1975); Kelsoe v. State, 54 Ala.App. 179, 306 So.2d 47, cert. denied, 293 Ala. 764, 306 So.2d 50 (1954); White, supra.

The appellant contends that although he was in the automobile in which the stolen items were found, that the automobile belonged to Whisenant and thus the stolen guns were in Whisenant’s constructive possession. He contends that his mere presence in the car does not make him a party to the crime, citing English v. State, 38 Ala.App. 377, 84 So.2d 673 (1956). There, English’s conviction was affirmed on the basis of finding stolen goods in his automobile on the morning following the theft. This Court held English to be in “constructive possession” of the recently stolen goods which was there again sufficient to corroborate the testimony of an accomplice.

In Lawson v. State, 38 Ala.App. 322, 82 So.2d 812 (1955), this Court stated that the unexplained possession of recently stolen goods raises an inference from which the jury may infer guilt. Although that case concerned larceny rather than buying, receiving, etc., it was cited in English, supra, for the following proposition:

“Possession is not limited to actual manual control upon or about the person. If under one’s power and dominion the thing is possessed. That the appellant had knowledge of the presence of the stolen groceries can reasonably be inferred from his possession and control of the truck. . . . ”

In Booker v. State, 151 Ala. 97, 44 So. 56 (1907), Chief Justice Tyson stated:

“It is undoubtedly true that, in order to sustain a conviction for receiving stolen property, the defendant must be shown to have had a control over the property. ...”

See also: McConnell v. State, 48 Ala.App. 523, 266 So.2d 328, cert. denied, 289 Ala. 746, 266 So.2d 334 (1972); Milam v. State, 240 Ala. 314, 198 So. 863 (1940).

In the recent case of Crowden and Askew v. State, 55 Ala.App. 325, 315 So.2d 122, cert. denied, 294 Ala. 756, 315 So.2d 128 (1975), this Court held that a co-defendant’s mere presence in an automobile with the defendant recently after a burglary would not be sufficient evidence from which the jury could infer that the co-defendant committed or participated in the crime of burglary, grand larceny or receiving and concealing stolen property.

In the instant case, the appellant was a passenger in Whisenant’s automobile at the time of the arrest. He was not a passenger immediately following discovery of the break in or larceny, neither was he fleeing from the police. Pursuant to the above authorities, his mere presence in the automobile would not constitute constructive possession of the stolen items, since he neither owned or operated the vehicle.

In the absence of a showing that he knew the guns to be in the car, knew them to be stolen and exercised some control over them, his presence in the car, standing alone, would not be sufficient for a conviction. While such circumstances may possibly tend to corroborate the statement which Whisenant gave the police, it is totally insufficient to support a conviction in and of itself. The appellant’s motion to exclude the State’s evidence should have been granted.

Reversed and remanded.

All the Judges concur.


author: FAULKNER, Justice.

text:
    In re David Michael ISBELL v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1760.
    Supreme Court of Alabama.
    April 2, 1976.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State petitioner.
    No appearance for respondent.
   FAULKNER, Justice.

Petition of the State by its Atty. Gen. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Isbell v. State, 57 Ala.App. -, 329 So.2d 133.

WRIT DENIED.

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


author: HARRIS, Judge. PER CURIAM. TYSON, Judge CATES, Presiding Judge BOOKOUT, Judge

text:
    Eugene Bizell PENDLETON, Jr. v. STATE.
    6 Div. 881.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.

      J. Louis Wilkinson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   HARRIS, Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charges that, before the finding of this indictment, EUGENE BIZELL PENDLE-TON, JR., whose name is otherwise unknown to the Grand Jury, and unlawfully, and with malice aforethought, killed Bobby Alvin Duke, Jr., against the peace and dignity of the State of Alabama.” (Emphasis added.)

Under the view we take of this case it is not necessary to review the evidence and the rulings of the Court. This indictment fails to set forth the quo modo of the homicide.

The conviction in this case cannot stand as it offends the first requirement of due process. The failure to charge an offense and the obvious harm to the defendant resulting therefrom, is the kind of defect involved in due process of law and it cannot be waived. Nelson v. State, 50 Ala.App. 285, 278 So.2d 734.

This case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

PER CURIAM.

Application for Rehearing Overruled.

All the Judges concur except BOOK-OUT, J., who dissents.

TYSON, Judge

(concurring).

The precise point here at issue, namely, the failure of the indictment to show the quo modo of the offense in question in a murder case, was decided by this Court in Nelson v. State, 50 Ala.App. 285, 278 So. 2d 734.

Moreover, on rehearing, we held that after submission it was too late to allow a petition for certiorari to correct the record. See Nelson, supra, and authorities therein cited.

Recently, this Court has adopted the same position with reference the failure of the indictment to have been endorsed “a true bill.” Strickland v. State, 51 Ala.App. 328, 285 So.2d 492, mandamus denied, 292 Ala. 751, 292 So.2d 450; and in Goulden v. State, 53 Ala.App. 278, 299 So.2d 323, cert. denied 292 Ala. 704, 299 So.2d 325.

The rationale behind the disallowance of tardy petitions to correct the record is well explained in the authoritites cited in the foregoing opinions.

CATES, Presiding Judge

(concurring).

I consider that, even if the indictment were merely voidable, nevertheless the evidence would not support the conviction. The state did not present a prima facie case of appellant’s participation in the killing and hence appellant was due the affirmative charge.

BOOKOUT, Judge

(dissenting).

I adhere to the dissent of Almon, J., in Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973). The state has shown that the indictment did in fact set forth the means by which the offense was committed.

This court still retains jurisdiction over the appeal pending determination on the application for rehearing. It is still within the power of this court to set aside our opinion. I do not agree with the conclusion reached by this court in Nelson, supra. The appellant should not receive a new trial where the quo modo was inadvertently omitted from the record on appeal by a clerical error, and where the true indictment is shown to us to be correct on application for rehearing.


author: SHORES, Justice.

text:
    In re Eugene Bizell PENDLETON, Jr. v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1547.
    Supreme Court of Alabama.
    Jan. 9, 1976.

      J. Louis Wilkinson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   SHORES, Justice.

The Court of Criminal Appeals reversed the murder conviction of Eugene Bizell Pendleton, Jr. because the indictment as shown by the record failed to set forth the quomodo of the homicide, 57 Ala.App.-, 329 So.2d 140. The court held that the conviction could not stand, relying exclusively on Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973).

The attorney general submits that only through a typographical error in the circuit clerk’s office was the means of the crime accidentally omitted from the record which was submitted to the Court of Criminal Appeals.

Under Rule 2(b) of our new Rules of Appellate Procedure, “In the interest of expediting decision, or for other good cause shown, an appellate court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction . . .” Rule 49 provides that Rule 2(b) shall be effective as of August 1, 1975, and apply to appellate rules then in effect and also to the new rules. Since this appellate proceeding was initiated after that date, we have the authority to suspend old Rule 18 which required a petition for certiorari to correct the record to be filed before submission.

Rule 10(f), ARAP, provides in part:

“. . . If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. . . .”

We suspend old Rule 18 and, under Rule 10(f), ARAP, direct the trial court to certify to this court a supplemental record in this case to reflect a true copy of the indictment returned by the grand jury and submitted to the petit jury in the trial of this case.

The state’s petition for certiorari to correct the record is granted.

WRIT GRANTED.

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


text:
    In re Eugene Bizell PENDLETON, Jr. v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1547.
    Supreme Court of Alabama.
    Jan. 29, 1976.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Birmingham, Asst. Atty. Gen., for the State, petitioner.
    J. Louis Wilkinson, Birmingham, for respondent.
   SHORES, Justice.

The record in this case has been supplemented pursuant to a petition for writ of certiorari granted by this court and directed to the Circuit Court of Jefferson County; and, it now being made to appear that the words omitted in the transcript as filed in the Court of Criminal Appeals do appear in the original indictment, the record as supplemented is therefore returned to the Court of Criminal Appeals.

The case was fully briefed and argued in the Court of Criminal' Appeals upon original submission. Therefore, as provided by Rule 2(b), ARAP, the provisions of Rule 39(f) and (g), ARAP, permitting the filing of briefs and requests- for oral argument after certiorari is granted by this court are suspended, and the petition for writ of certiorari to the Court of Criminal Appeals is hereby granted and the cause remanded to that court for review of the merits of the appeal based upon briefs filed on original submission and the entire record as supplemented.

WRIT GRANTED.

RULES SUSPENDED.

CAUSE REMANDED TO COURT OF CRIMINAL APPEALS.

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

      . See: S.C. 1547 — Ex parte State of Alabama ex rel. Attorney General (In re: Eugene Bizell Pendleton, Jr. v. State, (Ms.), January 9, 1976, 295 Ala. -, 329 So.2d 142.


author: HARRIS, Judge.

text:
    Eugene Bizell PENDLETON, Jr. v. STATE.
    6 Div. 881.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    J. Louis Wilkinson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree in the shotgun slaying of Bobby Alvin Duke, Jr. At arraignment he was represented by court-appointed counsel and pleaded not guilty. He was found guilty of murder in the second degree and the jury fixed his punishment at twenty years in the penitentiary. At the time sentence was imposed he gave notice of appeal but did not request that the sentence be suspended pending appeal. He was furnished a free transcript and trial counsel was appointed to represent him on this appeal.

The evidence in this case is without conflict. Appellant did not testify nor did he offer any testimony in his behalf.

One Hayes Joseph Tooson, alias, was convicted of murder in the first degree in this same case and was sentenced to life imprisonment. Tooson’s case was affirmed by this Court on October 1, 1975. 56 Ala.App. 613, 324 So.2d 327, certiorari denied. 295 Ala. —, 324 So.2d 333.

The evidence from the State tended to show that the deceased left the home of his parents at 328 Killough Drive in the Huffam section of Birmingham at about 3:00 p. m. on July 29, 1974. He was driving a 1973, black over black, Monte Carlo automobile owned by his father but used primarily by his younger brother Tim. Tim testified that he last saw Bobby at their home around 3:00 p. m. on July 29, 1974, and that he was leaving to go to Huffman High School and was driving the Monte Carlo Chevrolet automobile. That Bobby was dressed in red gym shorts, a red tee shirt, black and white football shoes and a red and white visor. He also had a gold chain around his neck and had three rings, and he also had a key ring with several keys on it in addition to the car keys. Tim made the key ring out of leather. All of these items were identified by Tim and introduced in evidence. Tim further testified there were a double barrel shotgun and some shells in the car.

Bobby was seen leaving Huffman High School shortly after 3:00 p. m. He was later seen about 3:40 p. m. at the intersection of the Tarrant-Pinson Highway and Lawson Road at a point not too far from Huffman High School. He was driving the Monte Carlo car at this time.

Bobby was never seen alive again. The Monte Carlo was located in Selma, Alabama, on August 2, 1974. His body was found near Five Mile Creek in a wooded area in the vicinity of Lawson Road in Jefferson County on the afternoon of August 3, 1974. The body was badly decomposed, but the surgeon who performed the autopsy expressed the opinion that death was caused by shots fired from a shotgun at close range which would have caused death immediately. A shotgun wadding was found in the liver and there were many perforations of the large and small intestines. X-rays of the entire body revealed a total of 491 gunshot pellets and 126 pellets were removed from the body.

The State then put on a succession of coroners, doctors, dentists, and law enforcement officers to effectively establish the corpus delicti and to establish the identity of the deceased.

Mr. Benny Haggins testified that on July 29, 1974, he had been with appellant, Hayes Joe Tooson, Willie Albert, and Mark Spruce. He stated he saw Mark Spruce give appellant a pistol and did not see appellant give him back the pistol. He further stated that he let appellant and Tooson out of his car at Jim Skinner Ford on the afternoon of July 29, 1974, and they said they were going to get a car and rob somebody. That after appellant and Tooson got out of his car he did not see them the rest of the day. He said he then let Mark Spruce and Willie Albert out of his car at the WACO filling station located on the Tarrant-Huffman Highway and went home.

Mr. Tilford Brown testified that on the night of July 29, 1974, appellant told him that Tooson had shot a boy at the Five Mile Creek and the shotgun in the boy’s car was burned, and that the body was left near the creek.

The State then put on one Chauncy Worthy who testified that on the night of August 4, 1974, appellant told him that Tooson had done the shooting and that he did not know that Tooson was going to kill this person until it happened. Worthy further testified that appellant told him they had been hitch-hiking before the shooting and, “He said that if he had known Tooson was going to do it, he would have tried to stop him.”

After the case was submitted to the jury, they later returned to the courtroom and requested that they be allowed to hear Worthy’s testimony again. With all parties present the trial judge had his Court Reporter read to the jury Worthy’s testimony. There was no objection to this procedure. We think it well to quote this testimony.

“EXAMINATION BY MR. RUSSELL:

"Q. State your name, please.

“A. Chauncy Worthy.

“Q. Where do you live, Chauncy ?

“A. 6209-60th Avenue, North.

“Q. What section of town is that located in?

“A. Airport.

“Q. Do you know the defendant in this case, Eugene Pendleton?

“A. Yes, I do.

“Q. Do you know a man by the name of Hayes Joseph Tooson?

“A. Yes, I do.

“Q. Do you know a man by the name of Tilford Brown?

“A. Yes, sir.

“Q. Benny Haggins?

“A. Yes, sir.

“Q. Willie Albert Latham ?

“A. Yes, I do.

“Q. Mark Spruce ?

“A. Yes.

“Q. I direct your attention, Chauncy, to Sunday August 4, 1974—

“A. Yes, sir.

“MR. RUSSELL: Excuse me just a minute.

(Thereupon, ensued an off-the-record discussion, following which the following proceedings were had and done:

“Q. Chauncy, on that Sunday, did you have an occasion to see Eugene Pendleton ?

“A. Yes, I did.

“Q. Where were you at the time you saw him?

“A. Down to his cousin’s house.

“Q. Talking about Eugene Pendleton’s cousin ?

“A. Yes.

“Q. What is his name? Do you know? “A. No. I call him Bud.

“Q. You call him Bud?

“A. Yes.

“Q. Anyone else present at the time?

“A. No.

“Q. Just the three of you?

“A. Just the two of us.

“Q. Bud wasn’t there ?

“A. No.

“Q. Did Eugene Pendleton tell you at that time — What, if anything, did he tell you at that time ?

“A. We were looking at the paper, so—

“Q. Will you speak up a little bit?

“A. We were looking at the paper, and we were talking about it.

“Q. You were looking at the paper?

“A. Reading the paper.

“Q. What paper?

“A. Sunday’s paper, I guess it was.

“Q. What story were you reading in the Sunday paper?

“A. About the killing, the Duke.

“Q. The Duke killing?

“A. Yes, sir.

“Q. What did Pendleton say at this time?

“A. He told me that he didn’t do it. He told me, you know, that he didn’t kill this person. He said Tooson did it.

“Q. He said Tooson did the shooting?

“A. Yes. He said he didn’t know — he didn’t know that Tooson was going to kill the person.

“Q. Did he say anything about this person, where they had met this person, or anything like that?

“A. He told me they were hitchhiking. “Q. Speak up.

“A. That they were thumbing a ride.

“Q. Where were they thumbing a ride?

“A. He didn’t say where they were coming from.

“Q. What else did he say at that time?

“A. He told me he didn’t do it. He said' — • he just kept telling me he didn’t do it.

He said that if he had known Tooson was going to do it he would have tried to stop him.

“Q. Did he tell you what Tooson had done?

“A. He told me that he had killed this boy.

“Q. Did he tell you how he did it?

“A. He told me he shot him.

“Q. What did he say he shot him with?

“A. A shotgun.

“Q. Did he say where he got the shotgun from?

“MR. WILKINSON: Now, we are going to object to him leading and suggesting to the witness, may it please the Court.

If he wants to ask him what the statement was—

“THE COURT: Overrule. He can ask him if- — I overrule.

“MR. WILKINSON: We except.

“THE COURT: You can answer.

“MR. RUSSELL: You can answer the question.

“THE WITNESS: Repeat the question.

“Q. Did Eugene Pendleton say where Tooson had got the gun from ?

“A. He told me it belongs to the boy.

“Q. Belongs to the boy ?

“A. Yes, sir.

“Q. Did he tell you what happened to the gun at that time ?

“A. No, sir.

“Q. Let me ask you this:

Was there any conversation about an automobile, about an automobile at that time?

“A. Did we have a conversation about it ?

“Q. You and Eugene Pendleton.

“A. I don’t understand the question.

“THE COURT: He is asking you if he said anything about an automobile.

The word ‘conversation’ to some people means one thing and to some, another.

“Q. While you were talking to Eugene Pendleton, did he mention a car, as well as gun?

“A. Yes, sir. He said, ‘the boy’s car.’

“Q. The ‘boy’s car?’

“A. Yes.

“Q. Okay. What, if anything, did Pend-leton say happened to the car?

“A. He didn’t say what happened to the car.

“Q. Did he say who had the car?

“A. He said Tooson left with the car. “Q. That Tooson went off with the car? “A. Right.”

Thereupon the jury retired to the jury room at 2:50 p. m. and at 4:40 p. m. they returned to the courtroom and announced they had reached a verdict. After the verdict was read, the jury was polled and each juror said it was his or her verdict.

The trial judge charged the jury on the law of murder in the first degree, murder in the second degree, and manslaughter in the first degree. The jury was also charged on the law of conspiracy and a very detailed charge on circumstantial evidence. No exceptions were reserved to the oral charge.

The law on aiding or abetting is best expressed in Stokley v. State, 254 Ala. 534, 49 So.2d 284, where the Supreme Court said:

“It is well established that when, by prearrangement or on the spur of the moment, two or more persons entered upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act. Such community of purpose of conspiracy need not be proved by positive testimony. It rarely is so proved. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Morris v. State, 146 Ala. 66, 41 So. 274, and cases cited; Jones v. State, 174 Ala. 53, 57 So. 31; Teague v. State, 245 Ala. 339, 16 So.2d 877.
“When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not. Jones v. State, supra; Jolly v. State, supra [94 Ala. 19, 10 So. 606]; Tanner v. State, 92 Ala. 1, 9 So. 613.”

The State’s evidence clearly put appellant and Tooson together on the afternoon Bobby Duke, Jr. disappeared. The statement appellant made to Worthy shows beyond peradventure that he was present when the deceased was shot in a wooded area near Five Mile Creek where the body was found on August 3, 1974.

We hold the State’s case was strong enough to submit the issue of guilt to the jury for its determination. 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 for the Court, its weight and probative value are for the jury. Bolton v. State, 21 Ala.App. 373, 108 So. 631; Haggler v. State, 49 Ala.App. 259, 270 So. 2d 690; Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813.

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

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Marvin Alphonso ARMSTEAD v. STATE.
    6 Div. 30.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Lawrence B. Sheffield, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the first degree murder of Jerry Nathan “by shooting him with a pistol.” At trial, the jury found the appellant guilty of murder in the second degree and fixed punishment at thirty years imprisonment. The trial court then pronounced judgment, setting sentence in accordance with this verdict.

The appellant here admits shooting the deceased, but contends that he did no wrong as he was acting in self-defense. We however believe such a defense to be weak at best.

On the evening of February 18, 1975, both the deceased, Jerry Nathan, and the appellant, Marvin Armstead, were present at a common acquaintance’s house in the section of Bessemer, Alabama, known as Jonesboro. The two principals began arguing and were asked to go outside if they could not control themselves. Once outside, they began to fight in earnest. Shortly, Alfred Hunter broke up the fight by holding appellant, giving Nathan an opportunity to flee the premises, which he took advantage of. Once free, appellant elected to “chase after” the fleeing Nathan. Appellant had not gone far, however, when he was picked up by Willie Hunter who had followed him from the house in his, appellant’s, car. Hunter moved over and appellant slid behind the wheel. Appellant’s intentions at this point are unclear (that is, whether he was actually headed home as he asserts or was in fact “cruising” around the neighborhood trying to locate Nathan). In any event, appellant and Hunter had not driven very far when the appellant, spotting Nathan on a street corner, grabbed a .38 caliber derringer from under the front seat and fired two shots in Nathan’s direction. One shot struck the deceased’s heart, resulting in extensive internal hemorrhaging and death. There is no evidence in the record that the deceased possessed any sort of weapon, either on the night of the shooting or on any other occasion. The appellant testified that he fired because, as he drove through the intersection, he saw Nathan make a sudden movement with his hand. After seeing the deceased fall, appellant stopped his car, picked up the deceased, placed him in the back seat, and after dropping the pistol off at Willie Hunter’s house, drove the deceased to Carraway Hospital in Bessemer.

Appellant’s motion for a new trial was overruled.

I

Appellant first contends that the jury was allowed to separate without his agreement. A careful review of the record indicates that no objection was raised at trial to the alleged separation, nor was there a motion for a mistrial made, nor is such separation alleged in the motion for a new trial as filed in this cause. In brief, no ruling in this respect was ever invoked in the trial court. It is clear that such alleged separation may not be raised for the first time on appeal as is the case at bar. Turner v. State, 54 Ala.App. 467, 309 So.2d 503.

II

Appellant next asserts that the record does not disclose that the alternate juror was duly sworn and empaneled as required by Title 30, Section 58, Code of Alabama 1940. The minute entry in this cause is as follows:

“On this 22 day of May, 1975 trial resumed, having been recessed to this date. Thereupon in open Court on this day in the presence of the Deputy District Attorney, defendant’s attorney and the defendant came a jury of good and lawful men and women, to-wit: James G. Anderson, Foreman and eleven others, who having been duly empaneled and sworn according to law, and who having heard the evidence and the charge of the Court, upon their oaths, in open Court on this day in the presence of the Deputy District Attorney, the defendant and his attorney do say:
‘WE, THE JURY, FIND THE DEFENDANT GUILTY OF MURDER IN THE SECOND DEGREE AS CHARGED IN THE INDICTMENT AND FIX PUNISHMENT AT 30 YEARS IN THE PENITENTIARY. JAMES G. ANDERSON, FOREMAN’.
“And on this 22 day of May, 1975 in open Court came the State of Alabama by its Deputy District Attorney and the defendant in his own proper person and with his attorney and the defendant being asked by the Court if he had anything to say why the judgment and sentence of the law should not be passed upon him replied ‘Nothing’,
“It is therefore considered and adjudged by the Court that the defendant is guilty of Murder in the Second Degree and that the defendant be imprisoned in the penitentiary for a term of thirty years.”

We have carefully examined this record and nowhere therein do we find any assertion in the trial court that the alternate was in fact not duly sworn and empaneled at the same time the regular jurors were also sworn and empaneled. In short, there was no ruling as to this matter ever invoked in the trial court, or on motion for new trial.' While the failure to properly empanel the jury as required by law may be raised by motion for new trial, Fowler v. State, 261 Ala. 262, 74 So.2d 512, unless there is such challenge made and ruling invoked in the trial court, then the minute entry in this respect will be deemed to be correct. Gardner v. State, 48 Ala. 263; Vaughn v. State, 236 Ala. 442, 183 So. 428.

Ill

Finally, the appellant asserts that the trial court committed error during the testimony of the appellant when the objection of the District Attorney was sustained to the following questions:

“A Then as I crossed the intersection and I saw who it was I saw him make a turn like so, raising his hand like he was, like he had something in his hand, a gun or something.”
And again:
“A Yes, I was. At the time, see, I was firing when I ducked down I thought he was coming up—
“MR REYNOLDS : We object what he thought.
“THE COURT: Sustained.”

A witness, on direct examination, may testify as to his intention, motive or other physically unexpressed mental state, provided that the testimony is material to the issues in the case. Starr v. Starr, 293 Ala. 204, 301 So.2d 78.

In the case at bar however, we are dealing not with the appellant’s intention but with that of the deceased based upon the appellant’s observations of him. In effect, the appellant was attempting to testify as to what he thought the deceased was going to do, i. e., as the deceased abruptly turned.

It is clear that the trial court’s ruling is correct as a witness cannot testify as to what another person saw, or what another person seemed to be doing, as such is a mere conclusion, and not a statement of fact. Williams v. State, 51 Ala.App. 1, 282 So.2d 349, cert. denied, 291 Ala. 803, 282 So.2d 355; Montgomery-Moore Manufacturing Company v. Leeth, 2 Ala.App. 324, 56 So. 770.

We have carefully examined this record and find same to be free from error. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.


text:
    Clarence BONNER, III v. STATE.
    8 Div. 748.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.

      David J. Evans, Jr., Albertville, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for burglary in the second degree and grand larceny. With employed counsel present at arraignment appellant pleaded not guilty. At the close of the State’s case appellant moved to dismiss the burglary count in the indictment and the Court granted the motion. The case was submitted to the jury on the grand larceny count. The jury returned a verdict against appellant for petit larceny but declined to assess a fine. Thereupon, the Court sentenced appellant to imprisonment in the county jail of Marshall County for a term of nine (9) months. Appellant gave notice of appeal. He was found to be indigent and a free transcript was furnished him. New counsel was appointed to represent him on appeal.

The count of the indictment submitted to the jury reads as follows:

COUNT II
“The Grand Jury of said County charge that before the finding of this indictment Clarence Edward Bonner III whose name to the Grand Jury is otherwise unknown, feloniously took and carried away the following, to-wit: One (1) 3 blade Volvo 270 Out Drive Propella, (sic) a further description of same being otherwise unknown to the Grand Jury, of the value of, to wit: $60.00, the property of Chrysler Marine Center Inc., A Corporation, against the peace and dignity of the State of Alabama.”

Mr. Royal Carl Kist testified that on May 23, 1975, he lived in Guntersville, Alabama, and was engaged in the retail sale of marine merchandise and a repair shop. He said the name of his business was “Chrysler Marine Center, Incorporated,” and that it was located at or near the intersection of Highway 79 and 431 near the Guntersville Hospital, behind the Quick-Shop. He further testified that his business was enclosed with a six-foot chain link fence and had three strands of barbed wire on top which made the fence seven and a half feet high. He stated that he locked both gates leading into his place of business about six-thirty or seven o’clock the night of May 23, 1975. He said he received a call that night and went to his place of business and he saw a jack handle which belonged to him stuck in the prop cone of a Volvo outdrive motor on a boat inside the fence. He was shown State’s Exhibit 1 and identified it as a three-bladed Volvo 270 outdrive propeller which was lying up against the back of the building that morning to be repaired, and that in its unrepaired condition it was worth $60.00.

On cross-examination he testified that this type propeller would fit any boat with a 270 outdrive but was designed for a twenty foot or above such as a Cabin Cruiser. He stated that he knew appellant and that he did not have a Cabin Cruiser, that actually a propeller of this kind would be useless to him. He said he had never sold appellant a propeller. He stated that the propeller introduced in evidence was the property of Chrysler Marine Center, Incorporated.

Officer R. B. Webb of the Guntersville Police Department testified that on the night of May 23, 1975, he got a radio dispatch to go to the Chrysler Marine Center and he arrived at approximately 10:40 p. m. He saw appellant and one James Michael Denny inside the fence surrounding the Marine Center. He stated that Denny was at the rear of a boat in the process of taking a propeller off a motor and he saw appellant inside the boat. At the officer’s request both men jumped over the fence and he placed them under arrest. The officer found a propeller on the outside of the fence directly across from where both men had been while inside the fence.

Appellant testified that he and Denny were looking at boats that night. They had been drinking all day and they went over the fence at the Chrysler Marine Center just to look at the boats and not with the intent to steal anything. Appellant denied that he or Denny threw the propeller over the fence that night.

On rebuttal Officer Webb was recalled to the stand and testified that both appellant and Denny were also charged with public drunkenness that night and that appellant had been arrested several times on alcohol related charges.

Appellant filed a motion for a new trial which was overruled and denied.

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

In Johnson v. State, 41 Ala.App. 351, 132 So.2d 485, this Court said:

“The corpus delicti may be proven by circumstantial evidence as well as by direct proof. Coates v. State, 36 Ala.App.371, 56 So.2d 383; Wright v. State, 17 Ala.App. 621, 88 So. 185.
“To meet the burden of proving that the property was stolen, it is necessary only that the state offer sufficient legal evidence to show a severance of the possession of the owner and an actual possession of the wrongdoer. It is immaterial how short the distance moved, or the length of time he exercised dominion over it. It may constitute larceny if there was a severance of the possession of the owner and an actual possession and removal by the wrongdoer. Phelps v. State, 6 Ala.App. 58, 60 So. 537; Motion v. State, 105 Ala. 18, 16 So. 795; Blakeney v. State, 244 Ala. 262, 13 So.2d 430; Arthur v. State, 38 Ala.App. 490, 93 So.2d 793.”

The testimony of the owner of the propeller clearly showed that it was lying against the wall of the building the day he locked the gates to the fence and the evidence clearly showed that the officer found the propeller outside the fence just opposite from the position of appellant and his companion when the officer found them inside the fence.

Conflicting evidence always presents a question for the jury unless the evidence palpably fails to make out a pri-ma facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

In reviewing the refusal of a motion for a new trial, this Court will indulge every presumption in favor of the correctness of the ruling of the trial court and the decision thereon rests largely within the discretion of the trial court. Espey v. State, 270 Ala. 669, 120 So.2d 904; Moore , v. State, 52 Ala.App. 179, 290 So.2d 246.

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


text:
    Johnnie Ray WASHINGTON, alias v. STATE.
    4 Div. 410.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Earl V. Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with the felonious assault upon an officer while in the performance of his duties, contrary to law. The jury found the appellant “guilty as charged” and the trial court set sentence at fifteen years imprisonment in the penitentiary.

Deputy Sheriff John D. Shakespear testified that on July 3, 1975, he was a deputy sheriff of Covington County and received a telephone call around 6:00 or 6:15 that evening while he was on duty at the courthouse. He stated that the call was to proceed to the home of a Mr. Washington, the father of the appellant. He testified that he was on duty, in full uniform with the patches on his shirt indicating that he was a full-fledged deputy sheriff. He stated that Deputy Stallings told him about another paper that needed to be served in Florala, Alabama for an attorney and he stated that he would go to Florala and serve it and would stop by the Washington home in response to the telephone call. As he was attempting to leave the courthouse, another telephone call came in from the Washington home and that he told the father that he would be there as quickly as he could. He also stated that he advised the elder Washington that he should sign a warrant and that the call was about a check which his son was supposed to have taken from the family mailbox. He stated that he told Mr. Washington, Sr., he would be out in a few minutes. He testified that upon arrival at the home that he went inside and Mr. Washington, Sr., his wife, daughter and two grandchildren were seated at the supper table. He asked them where Johnnie Washington, Jr., was and they said that he was back in his bedroom and about that time Mrs. Washington spoke up and said, “the sheriff was here to talk to you.”

She also said that her son had a loaded rifle as he had been out shooting snakes. She stated that someone called to the son and he came down the hall with a rifle in his hand and pointed it right in his face and said to “get your g. d. a. out of here.”

The officer stated that he said, “what is wrong with you,” that, “I came out here to talk to you about the check,” and the appellant again told him to get out of there and started toward him with the rifle. The officer then stated that he walked out on the porch and walked toward his car and got in and began backing up. He stated that as he started forward he heard the gun fire and something like “a ton of bricks hit the top of the car.” He said that he saw the appellant raise up with the gun again and that he drove on down the road where he called to Deputy Stallings and Deputy Harrell to assist him. He stated that later Trooper Fowler and Trooper Brown and also Trooper Anderson drove up. He testified that they went back to the house and placed the appellant under arrest and brought the rifle back to the Sheriff’s Office at the courthouse.

On cross-examination Deputy Shake-spear was asked did he go down there to talk to Johnnie Washington, Jr., as a personal favor to Johnnie Washington, Sr., to which the officer replied, “No, sir. Not as a favor but as a complaint.” R.P. IS.

At the close of Deputy Shakespear’s testimony the appellant moved for a directed verdict on the ground the State failed to prove a prima facie case that the officer was “in active discharge of his lawful duty.”

Johnnie Washington, Sr., testified that Deputy Sheriff Shakespear was a good friend of his family and in fact had often come by his home and on occasion had even spent the night there. He testified that on July 3, 1975, he had telephoned Deputy Shakespear about a check that his son had taken which his daughter had received in the mail. He stated that on the phone Deputy Shakespear said that he would need to sign a warrant but he told him he would come down to talk with them. He testified that they were eating supper when the officer arrived. He stated that his son had been out working on a fence and had taken his 30-30 Winchester rifle with him that afternoon. He stated his son used this to shoot snakes. He stated that they called to his son who came into the room with the rifle but that he did not point it at Deputy Shakespear. He said that his son did curse but he saw Deputy Shakespear walk off the porch and get in his car, and that his son sort of. stumbled and he heard an explosion and his son said his foot slipped. He said the cussing was that his son told the deputy to “get the hell out.” He said that they thought his son had cashed his daughter’s check but found out he didn’t.

On cross-examination he testified that his son sort of stumbled as he stepped off the porch and that is when the rifle went off.

Charles Woodham a neighbor testified that he saw Johnnie Washington, Jr., carrying a rifle on the afternoon of July 3, 1975, as he was working on a fence.

Johnnie Washington, Jr., testified that he had been working on a fence on his daddy’s land on July 3, 1975. He testified that he carried a 30-30 rifle with him which he used to shoot snakes. He testified that he saw Deputy Shakespear at his parents’ home some time after 6 o’clock that evening while they were at dinner. He said he went back to his room and that someone called him to come out and that he came with the gun in his hand as he was going back out to the field to see about putting up some wire. He testified that he did not aim the rifle at Deputy Shakespear. He testified that he had the gun in his hand as he went to step off the porch and that he sort of stumbled and that it went off as he jumped. He denied making any threatening gestures at the deputy with the rifle.

In rebuttal the State called Deputy Sheriff Don Harrell and Trooper Connie Fowler, each of whom testifed that they met Deputy Shakespear on the evening of July 3, 1975 after a call from him for help. Each testified they went back to the home of Johnnie Washington, Sr., and that when they called to him, he was standing in the door with a rifle in his hand and that they told him to halt and to come out and that he did so and brought the rifle with him.

I.

Appellant first contends that his motion for a directed verdict should have been granted inasmuch as the State failed to prove that the officer was actively engaged in his official duties as required by Title 14, Section 374(20), Code of Alabama, as amended 1967. It is clear from the testimony of the parties that Deputy Shakespear went to the Washington home in response from two telephone calls complaining about Johnnie Washington, Jr. There is no question but that he was in uniform and had made an official trip to Florala enroute to the Washington home. He stated in response to questioning that he went to the Washington home “not as a fa,vor but answering a complaint.” We are of the opinion that the trial court here properly overruled the motion in question. Wright v. State, 49 Ala.App. 539, 274 So. 2d 95 and cases therein cited.

II.

On the cross-examination of Mr. Washington, Sr., the following occurred:

“Q. Right. Now, when you called and talked to John D. Shakespear, where was Johnnie Ray at that time ?
“A. He was there at the house.
“Q. Didn’t you tell him he was down at the jukejoint and you thought he was drinking up that beer? You just testified to that a minute ago, didn’t you?
“A. Well, yeah. Well I did but, he had his own money.
“Q. But, at the time you thought he had cashed your daughter’s check ?
“A. Yeah, I did. I did, but he didn’t.
“Q. Has your son had any experience with other checks like this ?
“MR. JOHNSON: We object, Your Honor.
“THE COURT: Yes, sustained.
“MR. JOHNSON: And Your Honor, we’re going to move for a mistrial. That interjects prejudice into this case that can’t be erased.
“THE COURT: Deny the motion for a mistrial. The jury is instructed to disregard the District Attorney’s question.”

The rule covering this has been stated by our Supreme Court in Shadle v. State, 280 Ala. 379, 194 So.2d 538:

“. . . [I]t is well recognized that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury’s ability to decide the defendant’s fate fairly and justly. And we will not interfere with the trial judge unless there had been a clear abuse of discretion. ...”

In light of the prompt action of the trial judge who instructed the jury to disregard the District Attorney’s question, which, in fact, had not been answered, we are of the opinion that any possible prejudicial affect was removed and the trial court’s ruling in this respect was correct. Poellnitz v. State, 48 Ala.App. 144, 262 So.2d 631, and authorities there cited.

We have carefully examined this record and find no error therein. The judgment of the trial court is due to be and same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.

      . Title 14, Section 374(20) Code of Alabama 3940, as amended 1967.


text:
    Johnny SMITH, alias v. STATE.
    3 Div. 448.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Joseph T. Carpenter, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent here with appointed counsel, was indicted for murder in the first degree, convicted by a jury of this degree, and punishment fixed at life imprisonment. The indictment was in statutory form. Title 15, § 259(79), Code 1940.

The alleged homicide occurred at night, near 1:00 A.M., Saturday morning, May 17, 1975, in the city of Montgomery, Alabama, at a night spot, during the progress of a robbery. The victitn was Henry Norman, Jr.

The evidence plainly shows that two men entered the tavern, where alcoholic beverages were sold, armed with pistols and after going to a restroom, returned to the assembly room with pistols drawn and ordered the few customers to lie down. They pistol whipped one reluctant customer, who, while drunk, treated the holdup as a prank. The robbers also threatened to kill them if they failed to lie down as ordered.

During the progress of this robbery, dramatic and conducted in western style, three shots were fired and a victim, Henry Norman, Jr., was discovered shot in the back with a .380 or 9 millimeter bullet in his back, less than a half block away. One of the customers heard him hollering, but Norman was found dead. The evidence indicates that one of the three bullets fired from the pistols during the robbery caused Norman’s death.

One of the witnesses for the State, Jimmy Harmon, testified that he recognized appellant-defendant as one of the trio who entered the building with the two who entered the restroom and came out with pistols brandished and did the robbing. He did not know his name at the time, but remembered having gone to grammar school with him about fifteen years earlier. He remembered a scar on defendant’s face. He identified defendant from “mug” shots in a book at the police department and there learned his name.

Aside from this lone identification of defendant, there was ample evidence of defendant’s association earlier in the night, a short time before the robbery, with the two robbers and two others, and that defendant had a pistol. This association was social at the time. Defendant and the others went off, redressed in dark suits, and armed, themselves with pistols. This was just a short time before 1:00 A.M., just prior to the robbery.

We note here that defendant did not take the stand, nor did he offer any evidence before the jury that disputed his identification as one of the trio, or more, engaged in the robbery. Neither did he offer any evidence denying the association of the three, and two others, just prior to the robbery and their possession of pistols.

While it does not appear from the evidence as to which one of the trio fired the pistols during the robbery, we think the evidence was such that the jury could and did draw an inference that appellant was an accessory to the robbery and, therefore, guilty as a principal. Title 14, § 14, Recompiled Code, 1958; Brown v. State, 41 Ala.App. 641, 148 So.2d 255. Furthermore, every homicide committed in the perpetration of, or in an attempt to perpetrate, robbery (also naming other felonies) is murder in the first degree. Title 14, § 314, Recompiled Code, 1958. Where the homicide is not perpetrated under any of the particular circumstances and conditions enumerated in the statute (as in robbery), the taking of life must have been willful, deliberate, malicious and premeditated in order to constitute “murder in the first degree.” Coats v. State, 253 Ala. 290, 45 So.2d 35.

We think and so hold that the evidence presented a jury question as to defendant’s guilt of murder in the first degree. We decline to hold that the court’s refusal to grant defendant’s motion to exclude the evidence was error. The ruling was not error.

A second issue that appellant asserts is that the trial court in allowing a witness “to testify as to a conversation with a third party, and the conversation was not held in the presence or hearing of the defendant,” was error.

Appellant refers to a verbal contact that Detective M. R. Holt had with Oscar Curry, one of the alleged robbers in the robbery here involved. None of the conversation was admitted or offered in evidence. It does not appear what the conversation was about, but the witness, after defendant’s objection was overruled, testified in response to the State’s question, that he arrested appellant. Appellant contends that the effect of the evidence was indirectly to allow Curry to testify that defendant was involved in the crime without subjecting Curry to cross-examination or impeachment.

We do not concur in this contention. For aught appearing, the officer could have been seeking the whereabouts of defendant in order to arrest him. Certainly it is not clear from the evidence as to what was the subject of that conversation, and properly, the court was careful not to admit into evidence the details of the conversation. We are unwilling to reverse on a speculative assumption, as defendant here asserts, that Curry accused defendant of being an accomplice and that the State intended so to impress the jury.

It is our opinion from our review of the record, which we have read in its entirety, and ■ also from defendant’s limited assertions of error, supra, that the defendant received a fair trial free of error.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.