author: CATES, Presiding Judge. TYSON, Judge BOOKOUT, Judge CATES, Presiding Judge.

text:
    Charles L. SHULER v. STATE.
    8 Div. 610.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.

      Cook & Palmour, Summerville, Ga., and Jack Livingston, Ronald A. Drummond, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

This is an appeal from a conviction of voluntary manslaughter with a concomitant jury fixed sentence of eight years. Code 1940, T. 14, §§ 320 & 322.

I

Appellant Shuler, a resident of Ross-ville, Georgia, and his wife on Saturday, February 16, 1974, accepted the invitation of her niece, Mrs. Leon Pendergrass, to spend the weekend with the Pendergrasses at their home in Scottsboro. That evening the Pendergrasses and Shulers went to the Moose Lodge.

At the Lodge there was dancing among other diversions. Around midnight as the evening’s entertainment drew to a close Mrs. Pendergrass invited Mr. and Mrs. Billy Dawson to drop by her home. The Dawsons accepted, arriving at the Pender-grasses ahead of the Shulers and Pender-grasses.

Some animosity seemed to develop between Messrs. Shuler and Dawson, the latter at one point challenged Shuler to Indian wrestling. In the course of this encounter Shuler was plunged against a louvered glass window; next they moved outdoors and got into a scuffle with the result that Dawson threw Shuler to the ground. The host got the parties back into a semblance of quiet and proceeded to walk with the Dawsons to their car which was parked across the road from the Pendergrass house. We quote from appellant’s brief:

“ * * * Mr. Pendergrass walked to the car with Mrs. Dawson and said: ‘Everthing will be all right’. Mrs. Dawson said they needed to go and something was said about the driving. (Tr. p. 81). While he was talking to Mrs. Dawson, he heard a gunshot. At first, he did not recognize it as a gunshot until he heard another shot. (Tr. p. 82). He turned and saw Mr. Dawson falling, his knees were on the ground. He did not see Mr. Shuler. He and Mrs. Dawson went straight to Mr. Dawson’s body. He stayed there until an ambulance arrived.”

Shuler took the stand in his own behalf and testified that he was outdoors and saw Dawson coming toward him fast and that Dawson had something in his hand. There was testimony that Dawson had a pen knife. Shuler fired one shot and it hit the ground. Dawson kept on running. Shuler fired another shot and Dawson fell.

Shuler testified that he was afraid of Dawson and that he fired the two shots because Dawson had had him down on the ground twice. Shuler also testified that he had early in life sustained an injury to his skull with the result that part of the bone in the cranium was missing. Inferably, this made him quite apprehensive of a head injury.

II

The appellant, in brief, has very carefully outlined the adverse rulings of the trial court in accordance with Rule A, 49 Ala. App. XXI. See also, ARAP Rule 28(a) (7) and Form 23.

The first question presented arose out of the question on cross-examination of Leon Pendergrass on which he was asked whether or not he, Pendergrass, was afraid of Dawson. The State’s objection to this question was sustained.

Appellant complains that Shuler was trying to establish that Dawson was a dangerous and violent man who inspired fear. This is an inquiry which would have been valid had it been shown that violence and peril were directed toward the defendant, but in this case it went toward a third party without proof of its being directed to Shuler. See McElroy, Law of Evidence (2d ed.) § 63.01.

Had any hostile acts by Dawson been directed toward Pendergrass in the course of the incident (i. e., the res gestae) within the presence or hearing of Shuler, testimony thereof would have been admissible on the issue of who was the aggressor. Wigmore, Evidence (3d ed.) § 248, cited with approval in Hoomes v. State, 34 Ala.App. 121, 37 So.2d 686. The kinship between Pendergrass and Shuler would, in Judge McElroy’s view, supra, have been a pertinent factor in determining whether menaces to one were a threat to the other. See McCormick v. State, 159 Miss. 610, 132 So. 757.

Ill

Appellant argues that it was error for the trial court to rule out the exhibition of Shuler’s head injury to the jury.

The jury had already heard extensive testimony from Shuler relating to his head injury and it is our view that exhibition of the old injury would have merely been cumulative and in the nature of a bolstering of testimony which the State did .not dispute. This view of relevance finds support in Bryant v. State, 49 Ala.App. 359, 272 So.2d 286. Accordingly, we see no reversible error in this ruling.

IV

One of the defense witnesses was Glenn Pendergrass, the son of Leon Pen-dergrass. He had previously given a signed statement to the police. As a defense witness the prosecution began cross-examining him with the apparent purpose of predicating a later contradiction from the officer who took the statement.

Thereafter, the State put this officer on the stand as a rebuttal witness. He testified as to the statement elicited from and signed by Glenn Pendergrass. This partially contradicted what the latter testified to as a defense witness.

Defense counsel sought on cross-examination to bring out whether or not the young man had told the officer that at one point it looked as though his father, Leon Pendergrass, was going “to get into it” with Dawson also. The State’s only ground of objection was that the question was not confined to rebuttal. The motion was sustained. This was erroneous under Madden v. State, 40 Ala.App. 271, 112 So.2d 796(5); Coward v. McKinney, 277 Ala. 513, 172 So.2d 538.

In this instance, however, the witness answered the question before the trial judge ruled on the objection and the State made no motion to strike the answer, or to exclude it from the jury’s consideration. Nevertheless, the ruling may have cut off further cross-examination.

V

At the close of the evidence defense counsel moved (a) that the court reporter be instructed to take shorthand notes of the arguments of counsel or (b) that defendant be allowed to bring in another stenographer for this purpose. The trial judge denied both aspects, seemingly on the belief that Code 1940, T. 13, § 262 prohibited the taking of notes by the reporter of argument.

We conceive this to be a misconception certainly where the defendant offers to use an outside reporter or an electronic recording device. In Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372, the emphasis was not how a court proceeding is recorded, but its truthfulness.

In Alabama, except as limited to cases for rape and assault to rape, court must be held in public. Const.1901, § 169 says:

“In all prosecutions for rape and assault with intent to ravish, the court may, in its direction, exclude from the court room all persons, except such as may be necessary in the conduct of the trial.”

This provision goes with § 6 which guarantees a right to a speedy public trial in all criminal prosecutions.

Since what the lawyers were to argue to the jury was in the publjc domain it follows that anyone who took notes could have them tendered for settlement as a bystander’s bill of exceptions or under Code 1958, T. 7, §§ 827(1)-827(5). Hence, we view the ruling below as an abuse of discretion. Moreover, without such a transcript or substitute therefor we are unable to say the error was harmless.

The judgment below is reversed and the cause remanded for new trial.

Reversed and remanded.

All the Judges concur.

TYSON, Judge

(concurring).

I concur in the opinion in this cause prepared by our distinguished Presiding Judge.

To me, appellant’s counsel’s request that he be allowed to bring in, and indeed use, another stenographer, who was in fact present in court for the purpose of transcribing the closing argument, raises the question of a denial of due process of law within the meaning of the Fourteenth Amendment to the United States Constitution.

Without question, Title 13, Section 262, Code of Alabama 1940, does not require the court reporter to take down stenographic notes of the complete closing argument of counsel. Walker v. State, 291 Ala. 766, 287 So.2d 923; Lyons v. State, 53 Ala.App. 111, 298 So.2d 42.

It is only when there is an objection by counsel to such argument, and the essence of this argument specifically stated and brought to the attention of the trial court by proper objection, and such overruled, that the court reporter should transcribe same and include in the record on appeal. McClary v. State, 291 Ala. 481, 282 So.2d 384; Browder v. State, 54 Ala. App. 369, 308 So.2d 729, cert. denied 293 Ala. 746, 308 So.2d 735.

The issue here presented, however, transcends these matters. This constitutes a refusal on the part of the trial court to permit a record to be made by a qualified reporter. There is no contention here, or showing, that such would have interfered with the orderly process of trial, or, indeed, in any way infringe upon the court’s right to maintain order within the courtroom. See Renfroe v. State, 49 Ala.App. 713, 275 So.2d 692, and authorities therein cited.

Here, counsel was merely seeking to have, in an orderly manner, a complete record of the argument made in order to have a basis for asserting his contentions in the trial court. Such refusal, in my judgment, constitutes a denial of the appellant’s right to be heard effectively through counsel of his choice. As such, this was a denial of the appellant’s day in court within the meaning of the due process clause of the Fourteenth Amendment to the United States Constitution,

I, therefore, join in the reversal and re-mandment of this cause.

CATES, P. J., and HARRIS, De-CARLO and BOOKOUT, JJ., concur in the above opinion.

BOOKOUT, Judge

(concurring specially)-

In addition to the reasons set out by Judges Cates and Tyson, I concur on the ground that denial of the use of a court reporter, hired by the appellant, denies to appellant and his counsel the use of legal tools deemed necessary to effectively try his case and, if necessary, to perfect an appeal.

While Title 13, Section 262 of the Code does not require the official court reporter to transcribe closing argument, the statute does not prohibit such. Neither is there a statutory prohibition against counsel hiring another court reporter to take stenographic notes of any portion of a trial for the benefit and use of either counsel in the trial of the case.

The procedure in Alabama for objecting to and accurately setting out in the record improper argument and rulings thereon is cumbersome and archaic to say the least. This is a procedure adopted by statute, understood and used in our courts, and this opinion does not change that awkward procedure.

However, our opinion will not allow Section 262, supra, to be applied in such a manner as to prohibit counsel the use of a court reporter to aid him in being able to read accurately into the official record the portions of the opposing argument he deems improper. This would give appellate courts a more accurate record to consider than we usually review where error • is claimed on rulings relating to improper oral argument.

By denying an attorney the right to hire an independent court reporter to assist him in the trial, the trial court prevents him from representing his client as effectively as he could with such assistance. This in turn denies the appellant the right to effective counsel. It would have, what federal courts oft refer to, a “chilling effect” upon his right to appeal.

While the independent court reporter’s transcript would not be a part of the record on appeal, defense counsel could use it effectively in setting out his objections during trial, and in drafting a motion for a new trial, and could indeed attach a copy as an exhibit to such a motion.

Our opinion should not be taken as holding that a trial court does not have a right to exclude persons from the court room who would be disruptive to the proceedings.

All the Judges concur.

ON REHEARING

CATES, Presiding Judge.

The State in its application says, in part:

“Appellee respectfully submits that this Honorable Court erred in its opinion of October 1, 1975 in which it held that the trial judge absolutely prohibited the taking of notes by the unofficial qualified court reporter. At page 291 of the transcript the trial judge said:
‘MR. LIVINGSTON: Does the motion also include the request that we be permitted to have a qualified reporter take it, outside the Official Court Reporter?
‘THE COURT: If you want to do that, I have no objection to it; but if there is any attempt made to include it in the official transcript, then there would be objections.’
“A re-reading of this portion of the record clearly shows that there was no abuse of discretion by the trial judge in the instant case.”

The above colloquy between Mr. Livingston and the court is correct as far as it goes. However, immediately after that we find (R„ 291) :

“MR. LIVINGSTON: Then Your Hon- or would not consider it?
“THE COURT: I would not allow it to become a part of the proper transcript, because it’s not authorized by law.
“MR. LIVINGSTON: Then there would be no need in doing it. We respectfully except to Your Honor’s ruling.”

If the trial judge in advance announces that he would exclude (as he has power to do under Michie’s Code, T. 7, § 827(la) in the settlement of the trial transcript) then to have brought in an unofficial stenographer would have been futile. Therefore, we consider that the defendant was effectively denied the services of a private reporter, certainly for the purposes of preserving a record on appeal.

Opinion extended.

Application overruled.

All the Judges concur.

      . Compare Hale v. United States, 435 F.2d 737 at 749, f. n. 18; Federal Rules of Evidence 611(b), scope of cross-examination.

      . We specifically forewent deciding the question presented in Lyons v. State, 53 Ala.App. 111, 298 So.2d 42.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    In re Charles L. SHULER v. STATE. Ex parte STATE of Alabama.
    SC 1560.
    Supreme Court of Alabama.
    Nov. 26, 1975.
    Rehearing Denied Jan. 9, 1976.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
    No appearance for respondent.
   FAULKNER, Justice.

Petition of the State of Alabama for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Shuler v. State, 56 Ala.App. 599, 324 So.2d 313.

Writ denied.

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


author: HARRIS, Judge.

text:
    James Edward SHEFFIELD v. STATE.
    8 Div. 632.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.

      Edward Cunningham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Kermit M. Downs, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Sheffield was convicted of burglary in the second degree and sentenced to six years imprisonment in the penitentiary. Employed counsel represented him at arraignment and trial. He pleaded not guilty. After he was sentenced, he gave notice of appeal but elected not to have his sentence suspended. He was found to be indigent, and a full transcript was furnished him. This court appointed counsel to represent him on this appeal.

In the early morning hours of July 22, 1974, the Pizza Hut located on Woodward Avenue in Muscle Shoals, Alabama, was burglarized. At approximately 6:30 a. m., on that date, Detective Wayne Vickery of the Muscle Shoals Police Department arrested Betty Sheffield, the wife of appellant, at the back door of the Pizza Hut and the back door was open. Detective Vickery testified that when Mrs. Sheffield saw him, she ran to her car and tried to escape but he finally stopped her. He further stated that just prior to seeing Mrs. Sheffield drive behind the Pizza Hut he saw appellant walking south on Woodward Avenue about two and a half blocks from the Pizza Hut. After stopping Mrs. Sheffield he discovered that the building had been burglarized. He saw the drawer to the cash register had been broken and was lying in the aisle along with a pair of pliers. Mr. Vickery arrested Mrs. Sheffield and put her in his patrol car and radioed a police unit to pick up appellant and bring him to the Pizza Hut. In just a few minutes appellant was brought to Mr. Vickery where he was told that he was under arrest for burglary and he was given the Miranda rights and warnings. The detective searched appellant and found $11,11 and a key in his right front pocket. He also found three one dollar bills in appellant’s left front pocket. The key fitted the lock on one of the three doors to the Pizza Hut.

Roger Aycock testified that he was employed at the Pizza Hut and that part of his duties was to clean up the place after it closed for business and to see that all three doors were locked. He stated that he got through cleaning and mopping about 2:30 a. m., locked all doors and put the key under a mop bucket in the rear of the building.

Jerry Wayne Hargett testified that he was manager of the Pizza Hut and that he took inventory the morning after the burglary and found $11.11 missing. Hargett further testified that the $11.11 was made up of quarters, dimes, nickels and pennies. He stated that no dollar bills were left in the cash register.

The $11.11 and the key taken from the right front pocket of appellant’s pants were introduced in evidence over the objections of appellant that he was illegally arrested without a warrant and that he was searched without a search warrant.

The state’s case was entirely circumstantial. Appellant offered no evidence in his behalf.

The strongest circumstances against appellant were the key to one of the doors to the Pizza Hut and a statement he made to Detective Vickery at the jail. Appellant told the detective that the three one dollar bills was his money and asked him to buy him a package of cigarettes with one of the bills. The detective bought appellant the’ cigarettes and gave him the change and the other two one dollar bills. Appellant made no claim to any part of the $11.11 in change. This, to say the least, constituted an admission against appellant’s interest and could be construed as an implied admission that the $11.11 belonged to someone else.

An officer may arrest any person for a felony, although not committed in his presence, if he has reasonable cause to believe that the person arrested committed the offense. Title IS, Section 154, Code of Alabama 1940; Reed v. State, 48 Ala.App. 120, 262 So.2d 321.

Where an arrest is valid the fruits of the search of appellant’s person incident to the arrest are admissible against him. Sellers v. State, 48 Ala.App. 178, 263 So.2d 156; Moon v. State, 48 Ala.App. 127, 262 So.2d 615.

On cross-examination of appellant during a voir dire hearing on a motion to suppress the state’s evidence, he admitted that he had been convicted of five cases of burglary and one case of buying, receiving or concealing stolen property.

Detective Vickery knew appellant and had known him a long time. He also knew appellant’s wife. When Detective Vickery saw Mrs. Sheffield with her hand on the open door to the Pizza Hut and saw the drawer to the cash register on the floor of the aisle in the building, he had probable cause to believe that a burglary had been committed. Having seen appellant fifteen minutes earlier walking away from the Pizza Hut the detective had reasonable cause to believe appellant had broken into this place of business.

Circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided it points to the guilt of the accused. In cases where the state relies to a great extent on circumstantial evidence for a conviction, very wide latitude is allowed in making proof. Cline v. State, 25 Ala.App. 433, 148 So. 172; Creel v. State, 53 Ala.App. 504, 301 So.2d 267.

If there is a reasonable inference to prove existence of the corpus delicti, the court should submit to the jury for its consideration the question of the sufficiency and weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

Appellant made a motion to exclude the state’s evidence which motion was overruled. He requested the affirmative charge which was refused. He filed a motion for a new trial which was denied.

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

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

We have carefully examined the record for reversible errors and have found none. It is our opinion that the judgment of the trial court should be, and is, affirmed.

Affirmed.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    John Thomas KEARLEY v. STATE.
    1 Div. 634.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Robbery; sentence: twenty-five years imprisonment.

The appellant was arraigned on a two-count indictment. Count One charged that he robbed one James Black of $15,428.00, and Count Two charged a robbery of the same sum, alleging it to be the property of Peoples Exchange Bank, and taken from the person of James Black, an employee of that bank. The two counts, though not set out in this opinion in technical language, are set out in the record in language in conformity with Title 15, § 259, Form No. 95, Code of Alabama 1940.

On arraignment, the appellant and his attorney, are shown by minute entry in the record to have been advised by the trial court of all rights enumerated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There likewise appears in the record, “COURT’S EXHIBIT A,” again enumerating all of the appellant’s Boykin rights, and attested by the signatures of the appellant, his attorney and the circuit judge. In addition, there is a full and complete colloquy, recorded by the court reporter and included in the record, wherein the trial judge apprised the appellant of all his rights mandated by Boykin, supra. We find that the trial court properly accepted the guilty plea.

The appellant contends that the court committed error by not specifying in the judgment entry which one of the two counts to which the finding of guilt referred.

The general rule is that a general verdict of guilty on a two-count indictment is valid where the evidence would sustain a verdict of guilty under each count, and the sentence imposed is no greater than could have been imposed on any one of the counts. Knight v. State, 50 Ala.App. 457, 280 So.2d 163 (1973). Here, the indictment charges the same robbery in two counts. One count sets forth the name of the individual robbed, and the other count sets forth the name of that individual and his relationship as employee of the corporation having ownership of the money taken. A guilty plea supplies both evidence and verdict, ending all controversy. Woodard v. State, 42 Ala.App. 552, 171 So.2d 462 (1965); Albright v. State, 50 Ala.App. 480, 280 So.2d 186 (1973). A valid general plea of guilty to a two-count indictment has the same effect as a general verdict of guilty under a two-count indictment. Thus, we find that the guilty plea would sustain a judgment of guilt under each count of the instant indictment, and the sentence imposed was no greater than could have been imposed on any one of the counts. The trial court, therefore, committed no error in its manner of imposing judgment.

Affirmed.

All the Judges concur.


text:
    Lorenzo SMITH v. STATE.
    4 Div. 333.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.

      Rufus R. Smith, Jr., Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Second degree manslaughter; sentence: six months hard labor for Houston County and a fine of $500.00.

The State’s evidence was that on November 1, 1974, at approximately 7:30 P. M,, on State Highway 123 in Houston County, Alabama, the automobile driven by the appellant, Lorenzo Smith, collided with the automobile driven by Roy Lee Sorrells, resulting in the death of James Radford Sorrells, a passenger in the latter car. No direct testimony was given by any State witness as to how the accident occurred, however, the three passengers in the Sor-rells car each testified that they saw no headlights of any kind before the accident.

Roy Lee Sorrells testified that just prior to the accident, he was driving on the right side of the road; he did not swerve to the left side at all; he was not driving at an excessive speed; and he had not been drinking. It was dark and as he drove, he was watching the road ahead of him, and did not see another car, nor did he see any headlights. The next thing he remembered was awaking in the hospital. Both Pauline Sorrells and Vera Sorrells testified to substantially the same facts.

Trooper Johnny Norton, of the Alabama Department of Public Safety, testified for the State. His testimony was that he had investigated the accident. He described the location and condition of the automobiles and the position of the persons riding in each automobile. Trooper Norton properly identified four photographs marked as Exhibits 1-4. When the State offered the four photographs into evidence, the defense made the following objection which was overruled:

“We object to two of these pictures. We don’t see the relevancy of these two right here, unless the State is willing to show exactly how they are to prove its case. We understand the question of impact here, but we don’t see the relevance of those two pictures.”

On voir dire, Trooper Norton testified that he had talked to the appellant at Southeast General Hospital, after the accident. When Trooper Norton stated that the appellant was intoxicated, the defense stated that any evidence concerning intoxication of the appellant at that time should be inadmissible unless the State could show that he was observed from the time of the accident until his arrest. The prosecutor answered that the State was not going to offer evidence as to intoxication, but was going to offer a statement made by the appellant. Trooper Norton, on voir dire, testified that after he had advised the appellant of his Miranda rights, the appellant stated to him that he was driving the car involved in the accident and that he had been drinking. The defense objected, but the objection was overruled. When the jury returned, Trooper Norton again testified on direct examination as to the volun-tariness of the statement made by the appellant, and as to giving the appellant his Miranda rights. Another objection was made, which was overruled, and the appellant’s statement was related to the jury.

The last witness for the State, Frankie Ingram, testified that he was Coroner of Houston County and that upon arrival at the scene of the accident, he examined the body of James Radford Sorrells. Mr. Ingram testified that Sorrells died “due to cause from severe blows to the head, severe chest injuries and internal bleeding.”

The State rested at this point, and the defense made a motion to exclude the State’s evidence for failure to prove a pri-ma facie case of gross negligence. The motion was overruled, and the defense called the appellant as its first witness.

The appellant testified that he remembered, on the evening of the accident, stopping in front of the driveway to the 123 Club, to turn in and that he was in the right lane. He testified on direct examination that he had consumed only two cans of beer around 4:30 P.M. or 5 :00 P.M. on that date.

On cross examination, the appellant testified that he had actually consumed three cans of beer between 5:00 P.M. and 5:30 P.M., remembering that his brother-in-law had given him one at his house. On redirect, he stated that he was unconscious at the scene of the accident and that he did not regain his consciousness until later at the hospital. The appellant testified that he had consumed no alcoholic beverages from the time of the accident until the time of his arrest. He further stated that he had not started to turn into the 123 Club when the accident occurred.

Johnny Smith, appellant’s brother, testified that he was a passenger in his brother’s car when the accident occurred. He stated that at the time of the accident, the appellant had not crossed the center line of the highway. He further stated that the appellant had consumed no alcoholic beverages from the time he entered appellant’s car until the time of the accident.

I

Appellant contends that the trial court should have granted his motion to exclude the State’s evidence for failure to prove a prima facie case.

Manslaughter in the second degree has been defined in Jones v. State, 21 Ala.App. 234, 109 So. 189 (1926), as follows:

“ ‘Manslaughter in the second degree is defined as the unlawful killing of another human being, without malice and without intent to kill or to inflict the injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemeanor, or accidentally committed by the accused while he was doing a lawful act, but in a grossly negligent or improper manner.’ ”

That definition has been used in: Wilson v. State, 32 Ala.App. 591, 28 So.2d 646 (1947); Garner v. State, 34 Ala.App. 551, 41 So.2d 634 (1949); Massengale v. State, 36 Ala.App. 195, 54 So.2d 85 (1951); Gill v. State, 37 Ala.App. 210, 65 So.2d 821 (1953); White v. State, 37 Ala.App. 424, 69 So.2d 874 (1954), and Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972).

In a case very similar to the instant case, Roberts v. State, 32 Ala.App. 20, 21 So.2d 289 (1945), Presiding Judge Bricken stated:

“The collision referred to happened, as shown by all the testimony, at about six or six-thirty o’clock on the day in question, and the testimony of several witnesses tended to show that at and from four o’clock that afternoon and up until the time of the collision, the appellant (defendant) was intoxicated and drunk. Further, that the defendant was driving his car without lights and on the wrong side of the highway. The defendant testified to the contrary. This conflict in the testimony, as stated, made a jury question and no error prevailed in the action of the court in submitting the case to the jury. . . . ” ■

The evidence appearing in the record presents three possible inferences, any one of which the jury could have determined was sufficient to warrant a conviction of manslaughter in the second degree. The first being that three State’s witnesses testified that they saw no lights from the appellant’s car. Here, the inference being that the 'appellant was driving without lights at night, amounting to an unlawful and grossly negligent act. Additionally, an inference may be drawn from the evidence that the appellant turned left in front of Sorrells’ oncoming car without giving a proper signal or yielding right-of-way. Thirdly, from the statement of Trooper Norton and the testimony of the appellant, it appears that he had been drinking some one and a half to two hours prior to the accident and had consumed three beers within a thirty minute period of time. The jury was the sole judge as to the weight to be given this evidence. The trial judge in his oral charge correctly stated the law as concerning intoxication and the making of an illegal turn.

The question of driving on a public highway while intoxicated or under the influence of alcohol was discussed by Judge Samford in Broxton v. State, 27 Ala.App. 298, 171 So. 390 (1936), wherein he stated:

“The taking of one or more drinks of intoxicating liquor would not of itself be sufficient to establish the fact of intoxication. The evidence must go further and show facts indicating a mental condition not normal and produced or brought about by the intoxicating liquor. When, therefore, an accident occurs on a public road in which a person is killed by being run over by an automobile, and it is shown that the driver has been drinking, it becomes a question for the jury to say, from all the facts and circumstances surrounding the homicide, whether or not the driver at the time of the accident was under the influence of liquor, and, if so, was that condition the proximate cause of the homicide. If these facts be proven to the satisfaction of the jury beyond a reasonable doubt, the crime of manslaughter in the second degree would be complete.”

It is, therefore, this Court’s opinion that there was. no error committed by the trial court in denying appellant’s motion to exclude the State’s evidence. The statement of the appellant to Trooper Norton admitting that he had been drinking, the photograph depicting two beer cans in the appellant’s car, and the appellant’s own testimony as to drinking three beers prior to the accident, is sufficient evidence from which the jury could reasonably infer that the appellant was committing an unlawful or grossly negligent act which resulted in the death of the deceased. Coupled with the probability of an illegal turn and the absence of headlights on the appellant’s car, the jury had sufficient evidence upon which to base their verdict of guilty. Evans v. State, 36 Ala.App. 145, 53 So.2d 764 (1951); Barnett v. State, 27 Ala.App. 277, 171 So. 293 (1936); Holt v. State, 26 Ala.App. 223, 157 So. 449 (1934); Curlette v. State, 25 Ala.App. 179, 142 So. 775 (1932); Ayers v. State, supra.

II

The appellant contends that the trial judge was in error for admitting two of the photographs into evidence.

The four photographs in question were used by Trooper Norton during his testimony. He properly identified the photographs, authenticated them, and used them to illustrate parts of his testimony. No objection was made until they were offered into evidence. The objection, herein-above set out, is based upon the ground that two of the photographs were irrelevant. Appellant failed to state which exhibit numbers he considered to be irrelevant. Appellant’s objection to “two of these pictures,” does not apprise this Court of which two pictures he finds objectionable. Such an objection is insufficient to put the trial court in error. Properly authenticated photographs are admissible if they tend to shed light on, strengthen, or illustrate other testimony given. Layne v. State, 54 Ala.App. 529, 310 So.2d 249 (1975); McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950).

Affirmed.

All the Judges concur.


text:
    Hayes Joseph TOOSON, alias v. STATE.
    6 Div. 882.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.

      J. Louis Wilkinson, and Charles M. Purvis, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   BOOKOUT, Judge.

Appellant, Hayes Tooson, was indicted by a grand jury of Jefferson County for the first degree murder of Bobby Alvin Duke, Jr. Upon his trial, a petit jury found him guilty and fixed his punishment at imprisonment in the penitentiary for life. Judgment and sentence were in accord with the verdict of the jury. Tooson appealed to this Court. There was no motion for a new trial.

Tooson was represented by counsel throughout the proceedings in the trial court, at arraignment, during the trial and at the time sentence was pronounced and judgment entered. He is represented here by court appointed counsel who is the same attorney who represented him below.

At the conclusion of the State’s evidence, the appellant moved “to exclude the State’s testimony.” The motion was overruled.

In considering the question as to whether the trial court correctly overruled the motion to exclude, we can only consider the evidence which was before the trial court at the time the motion to exclude was made. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731. And we are required to consider the evidence in its most favorable light for the prosecution. Womack v. State, 34 Ala.App. 487, 41 So.2d 429.

The evidence for the State tends to show that Bobby Duke left the house of his parents at 328 Killough Drive in the Huffman section of Birmingham at about 3:00 P. M., July 29, 1974. He was driving a 1973 Chevrolet owned by his father, but used primarily by his younger brother Tim. He was dressed in track clothes and was wearing a red and white visor with the word Alabama on it. He wore a gold chain around his neck and had three rings with him. In the 1973 Chevrolet was a stereo tape player and some 8 track stereo tapes. A shotgun and shells therefor were also in the car. The car keys along with a key to the family home were on a key ring which Tim had made of leather.

Bobby was seen leaving the 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, a point which is not far distant from Huffman High School. He was driving the Chevrolet in which he had left home.

Bobby Duke was never seen alive again. The automobile he was driving when last seen was located in Selma, Alabama, on the afternoon of August 2, 1974. It was in the possession of the appellant Hayes Too-son, who abandoned the car while being pursued by police officers and'effectuated his escape. At the time the automobile was recovered, it had a Dallas County license tag on it rather than the Jefferson County tag which had been originally issued for it.

The State’s evidence further tends to show that on July 29, 1974, the defendant Tooson and his companion, one Pendleton, said that they intended to rob someone and steal a car on that day.

The body of Bobby Duke was found in a wooded area in the vicinity of Lawson Road in Jefferson County on the afternoon of August 3, 1974. It was badly decomposed, but was in such a state that experts who performed an autopsy and experts who worked in connection therewith could express the opinion that death was caused by shots fired from a shotgun. A shotgun wadding was found in the liver and there were many perforations in the small and large intestines. X-Rays of the entire body revealed a total of 490 shotgun pellets, 126 of which were removed from the body. The wound was consistent with the type of wound caused by the firing of a shotgun at a relatively close range, less than 10 feet, but not while in contact with the body.

In view of the facts delineated above, we entertain the view that the trial court correctly overruled the motion to exclude the State’s evidence made by appellant’s counsel at the conclusion of the State’s evidence. McDowell v. State, 238 Ala. 101, 189 So. 183. Sheppard v. State, 49 Ala.App. 398, 272 So.2d 605. See: Braggs v. State, 283 Ala. 570, 219 So.2d 396; Rikard v. State, 15 Ala.App. 497, 73 So. 992.

At the conclusion of all the evidence, defendant did not request the general affirmative charge and as we have heretofore indicated, there was no motion for a new trial, hence, we need not burden this opinion with a detailed account of the evidence offered by the defendant which, in essence, was designed to establish an alibi and to account for his possession of the Duke automobile.

I

Nine unnumbered written charges requested by the appellant and refused by the trial court are included in the record. We will refer to them in the order in which they are set out.

The first, fourth, fifth and ninth charges, even if they state correct principles of law, were refused without error in that the principles sought to be enunciated therein were fairly and substantially covered in the oral charge of the court. Green v. State, 263 Ala. 324, 82 So.2d 418; Jackson v. State, 264 Ala. 528, 88 So.2d 206; Alexander v. State, 37 Ala.App. 533, 71 So.2d 520; Code of Alabama 1940, Title 7, § 273. In regard to the fifth charge, we have not overlooked the holding in Ware v. State, 21 Ala.App. 407, 108 So. 645, but entertain the view that the holding in Ware is not controlling here in view of the trial court’s oral charge which is unlike that of the trial court in the Ware case. See Hawkins v. State, 53 Ala.App. 89, 207 So.2d 813.

The second and sixth charges were refused without error in, that they conclude to an acquittal upon an hypothesis which justified that result without the jury’s due consideration of all the evidence, but only that offered by the State. Gautney v. State, 284 Ala. 82, 222 So.2d 175; Lee v. State, 265 Ala. 623, 93 So.2d 757.

The third charge is a “single juror” charge and was refused without error in that the trial court in its oral charge informed the jury that its verdict must be unanimous. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. denied 288 Ala. 735, 265 So.2d 202; Fuller v. State, 43 Ala.App. 632, 198 So.2d 625.

The seventh charge was correctly refused. If not otherwise bad, it would tend to mislead the jury to disregard the interest of the defendant in weighing and considering the evidence. Hughes v. State, 213 Ala. 555, 105 So. 664.

The eighth charge was refused without error. It singles out the defendant’s testimony, gives undue prominence to it, and is decidedly misleading in the wording used, and incorrect as a statement of law. Horn v. State, 102 Ala. 144, 15 So. 278; Sanford v. State, 2 Ala.App. 81, 57 So. 134.

II

Witness Bennie Haggins testified as to the transactions occurring between the witness, the appellant and three others on the date of the disappearance of the deceased. He testified as to driving the appellant and the others around Birmingham and letting the appellant out of his auto near the scene where the deceased was last seen alive. The witness stated that he could not remember the conversation the appellant had with him at that time nor could he remember a statement the appellant made to him on getting out of the car. The state claimed surprise and asked to cross-examine Haggins from a prior statement given under oath.

The state established that Haggins had given a sworn statement in the grand jury room on August 12, 1974, about two weeks after the disappearance of Bobby Duke. The statement was given in the presence of Birmingham Police Sergeant E. M. Cousins, District Attorney Earl Morgan, Deputy District Attorney Donald R. Russell, and the District Attorney’s investigator Brad Morris. It was transcribed by Court Reporter Bobbie C. Norman. After reading the transcript, the witness still could not remember the substance of the statement the appellant made to him on that occasion, which he had related to officers in his August 12th statement. Although the witness did not have a present recollection of his past statement, he did state that he was under oath at the time he made the statement and that he had testified truthfully.

Mrs. Bobbie Norman was then called as a witness and testified that she was the court reporter that transcribed the testimony of Haggins in the grand jury room on August 12. She verified the transcript as being a true and correct statement of the testimony given under oath by Haggins at that time.

After objection and considerable argument by defense counsel, the trial court reviewed the transcript and allowed the prosecutor to read it into the record, in pertinent part. The transcript shows that the August 12th testimony greatly differed from the witness’s present recollection during the trial on November 12 and 13, 1974. On August 12th, Haggins had stated that the appellant and one Eugene Pendleton were in appellant’s automobile on July 29, with three other companions. Further, appellant and Pendleton were trying to locate a car to steal and Haggins was driving them around the eastern section of Birmingham for that purpose. They were unable to steal a car at each location at which they stopped and finally the appellant and Pendleton got out of Haggins’ car at Jim Skinner Ford Company in Roebuck. The appellant then told Haggins that he and Pendleton were going to attempt to steal a car at Jim Skinner Ford but if they were unable tor they were going to the adjoining shopping center and rob someone and take their car. This was in the area where Bobby Duke was last seen alive and just shortly before his disappearance.

The appellant argues that allowing the prior transcribed statement of the witness to be read into evidence was an improper application of the evidentiary rule concerning the use of a past recollection recorded.

The Supreme Court of Alabama in Acklen’s Executor v. Hickman, 63 Ala. 494, 35 Am.Rep. 54 (1879) set out on page 498, the proper procedure to be followed in admitting such memoranda. The court stated that there were two conditions under which a witness may consult memoranda in aid of his recollection:

“First, when, after examining a memorandum made by himself, or known and recognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as matter of independent recollection, to facts pertinent to the issue. ... In cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to the jury, unless opposing counsel call out the same on cross-examination.”
* * * * * *
“In the second class are embraced cases in which the witness, after examining the memorandum, can not testify to an existing knowledge of the fact, independent of the memorandum ... If, however, the witness go further, and testify that, at or about the time the memorandum was made, he knew its conterits, and knew them to be true, this legalizes and lets in both the testimony of the witness and the memorandum. . . . ” (Emphasis supplied.)

In Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948) the Alabama Supreme Court cited Acklen’s Executor as authority for admitting a memorandum into evidence as a past recollection recorded, stating:

“. . . It is admissible when after consulting it, she still does not remember the facts, but that she wrote the memorandum at the time of the occurrence, and knew it was correct when she wrote it. . . .”

Byars v. James, 208 Ala. 390, 94 So. 536 (1922), held that:

“. . . where a witness has no independent recollection after his reference to the memorandum, but testifies merely from his knowledge of the accuracy of the paper or entry when it was made, in such event the memorandum or paper may be read in evidence as auxiliary to the witness’ testimony, or as a statement of fact adopted by him and testified as being true and correct when made.

The Alabama Supreme Court, in Sovereign Camp, W.O.W. v. Screws, 218 Ala. 599, 119 So. 644 (1928) reaffirmed the rule enunciated in the Acklen case. The Alabama Court of Appeals, in Franklin v. State, 38 Ala.App. 274, 82 So.2d 316 (1955) stated in part:

“The witnesses, having looked at the memorandums and still having no independent recollection of the facts contained therein, testified that the lists were true and correct at the time they were made. The memorandums were therefore admissible in evidence. ...”

In 1892, in Thompson v. State, 99 Ala. 173, 13 So. 753, the Alabama Supreme Court approved the use of a witness’s testimony before the grand jury to refresh his recollection during the course of his testimony in the trial, stating:

“And a party may, for the purpose of refreshing the memory of his own witness, when put to a disadvantage by an unexpected answer, or when the witness fails to answer as was expected of him, ask him if he had not, at a certain time and place, made certain statements, even if they are inconsistent with his testimony just given . . . There was no error in allowing the witness to be refreshed in his memory in the manner obj ected to. . . . ”

The Thompson case cited Acklen as authority. Although that case approved the use of grand jury testimony to refresh the witness’s memory, it is clear to us pursuant to the second category set out in Acklen, supra, the grand jury testimony of the witness could be read in evidence if the witness testified that he had no present recollection thereof but that such testimony represented a truthful statement at the time given. Likewise, the above-quoted portion of Thompson clearly approves the use of such memoranda on direct examination of a party’s own witness, and does not limit its use to cross-examination.

The appellant contends that memo-randa of a past recollection recorded must be limited to memoranda or records personally made by the witness. In a majority of the cases reported, the memoranda used, as a matter of fact, were personally made or written by the witness. However, the cases do not limit the use of such mem-oranda to only that personally written by the witness. Indeed, the emphasized portion of the Acklen case, hereinabove quoted, is to the effect that the witness need not himself be the writer. The assertion of the witness testifying to the correctness is generally all that is needed and it is immaterial whether or not the witness was the person who actually wrote the memorandum or record. 3 Wigmore, Evidence, Section 748 (See Alabama cases footnoted thereunder.)

In the instant case, where the state was, “put to a disadvantage by an unexpected answer,” from its witness Haggins; and, where Haggins testified that he had given the statement under oath; and, where the court reporter verified Haggins’ statement given under oath; and, where Haggins, after reading his statement, stated that he had no present recollection of the facts in such statement but that he told the truth at the time he gave the statement, it is our opinion that the trial court was not in error for allowing to be read into the record those portions thereof concerning statements made to him by the defendant which he failed to recollect during his testimony in the trial.

Finally, we consider appellant’s contentions concerning the closing argument of the prosecutor. The appellant argues in his brief the gist of five objections made to the state’s closing argument. Four of those objections, argued in brief, were properly sustained by the trial court. Such rulings, not being adverse to the appellant, present nothing for our review. The appellant’s remaining argument goes to the following:

“Mr. Johnson: They hear all of our testimony, and then they testify.
“Mr. Wilkinson: We object to the context of this, same charge.
“The Court: Overrule.
“Mr. Wilkinson: Except.”

The defense made no motion to exclude, neither did it request that the judge instruct the jury to disregard the statement. It is only when the District Attorney’s argument goes to a substantive outside fact, stated as a fact, and which manifestly bears on a material inquiry before the jury, that a trial court should interfere and arrest such argument. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974).

In Bullard v. State, 40 Ala.App. 641, 120 So.2d 580, (1960), the Court of Appeals stated:

“Of necessity a wide discretion must be allowed the trial judge in regulating the argument of counsel. Trials are adversary in nature. Vigorous prosecution and defense is to be expected. Neither defense counsel nor the prosecutor should be too closely hampered by niceties of speech if he is to be effective, but should be permitted to say his say in his own style. This of course does not mean that unfair and prejudicial argument is to be condoned for one instant. All argument of counsel is to be measured in the background and atmosphere of courtrooms.”

We are of the opinion that the statement in question would have no prejudicial effect upon the jury. The Alabama Supreme Court said in Arant v. State, 232 Ala. 275, 167 So. 540 (1936): “Such statements are usually valued by the jury at their true worth . . . and not expected to become factors in the formulation of their verdict.” We find no prejudicial error in the rulings of the trial judge on those portions of the state’s closing argument to which the defense made objection. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960).

Affirmed.

All the Judges concur.


author: ALMON, Justice.

text:
    In re Hayes Joseph TOOSON v. STATE. Ex parte Hayes Joseph Tooson.
    SC 1538.
    Supreme Court of Alabama.
    Dec. 18, 1975.
    J. Louis Wilkinson and Charles M, Purvis, Birmingham, for petitioner.
    None for the State, respondent.
   ALMON, Justice.

Petition of Hayes Joseph Tooson for writ of certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Tooson v. State, 1975, 56 Ala.App. —, 324 So.2d 327, is denied.

In denying the petition for writ of cer-tiorari in this case, this Court does not wish to be understood as approving or disapproving all of the language used or the statements of law made in the opinion of this case in the Court of Criminal Appeals. In re Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

Writ denied.

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


text:
    Hayes Joseph TOOSON v. STATE.
    6 Div. 918.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.

      J. Louis Wilkinson and Charles M. Purvis, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Birmingham, Asst. Atty. Gen., for the State, appel-lee.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years in the penitentiary. The court imposed sentence in accordance with the verdict of the jury. Prior to arraignment, appellant was found to be indigent and counsel was appointed to represent him. He pleaded not guilty. After sentence he gave notice of appeal but elected not to have the sentence suspended pending appeal. He sought and obtained a. free transcript and trial counsel was appointed to represent him on this appeal.

The facts in this case are not complicated. On November 22, 1972, at approximately 3:30 p. m., the San Ann Service Station at 2600 24th Street North, Birmingham, Jefferson County, Alabama was robbed. Mr. Lofton Baker testified that at the time of the robbery, he was operating the station and a Negro man who was about six feet two inches tall and weighed over 200 pounds came in the station and asked for a package of Kool cigarettes; that when he turned to get the cigarettes, the robber showed him and he saw a pistol in his hand. The robber said he wanted all the money and took about $150.00 from his person and ran out of the station. Mr. Baker further testified that he got his pistol and ran outside the station to try to apprehend the man who had just robbed him. He saw him get in a Vega automobile parked in an alley near the station. He stated he observed the man get back out of the Vega and flee down the alley. The police department was called and immediately responded and Mr. Baker gave the officers a description of the robber.

Subsequent testimony revealed that Birmingham Police Sergeant Kenneth R. Holler came to the robbery scene and verified that this Vega automobile was indeed in the alley and also verified that during his investigation of the robbery, Mr. Baker told him that appellant had gotten in and out of this automobile during his escape.

Police Officer Randy Taylor testified that he personally lifted fingerprints off the Vega automobile and that two of the prints, numbered 1625 and 1632, were identifiable.

Police Sergeant W. L. Jones testified that he had personally taken appellant’s fingerprints at the Birmingham City Jail.

Sandra Triplett who was employed as a fingerprint expert by the Birmingham Police Department, and whose qualifications were admitted by defense counsel, testified that the two identifiable prints taken from the Vega automobile were the prints of the second and third fingers on the right hand of appellant, Hayes Joe Tooson. She further testified that these were identical with the prints of appellant taken at the Birmingham jail.

Sylvester Crumb testified as to seeing the Vega automobile in the alley and also confirmed that a man resembling appellant had come out the San Ann Service Station and run down the alley.

Mr. Baker stated that on January 7, 1973, Police Detective Richard Watkins had shown Him several photographs of different suspects and that he had picked out one of the photographs as definitely being the man who had robbed him. He also made a positive in-court identification of appellant as the person who had robbed him, and it was conceded that the picture Mr. Baker had picked out was a picture of appellant. Mr. Baker further testified that no suggestive statements of any kind were made to him by the police before he picked out appellant’s mug shot from seven which were shown to him.

Detective Richard Watkins testified that on January 7, 1973, he showed seven photographs to Mr. Baker and that without hesitation he picked out a photograph which later turned out to be a photograph of appellant.

Appellant -did not testify in his behalf, but offered alibi testimony. Shirley Holmes, appellant’s sister, testified that on the day of the crime her brother had attended a family reunion and she had been with him most of the day. On cross-examination, however, Shirley Holmes conceded that she could not say for sure that her brother was at the reunion at the time of the robbery.

Charlene Browning testified for the defense in substantially the same manner as Shirley Holmes. On cross-examination she admitted that she did not remember seeing appellant at the family reunion at the time of the robbery. She stated she remembered seeing appellant about 4:30 or 5 :00 or possibly as late as 6:00 that night.

Thelma Surels on rebuttal testified that at the time of the robbery she owned the Vega automobile in question and that her daughter had been using this car. She further testified that at the time of the robbery appellant and her daughter had been going together.

There was no motion to exclude the state’s evidence; there was no motion for a new trial; there was no request for the affirmative charge; there were no exceptions to the oral charge to the jury, and there were no adverse rulings on the admission of evidence which contained any merit. In this state of the record nothing is presented to this court to review the sufficiency of the evidence. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Grant v. State, 46 Ala.App. 232, 239 So.2d 903; Robinson v. State, 46 Ala.App. 684, 248 So.2d 583; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613.

The only alleged error complained of on this appeal is the argument of the District Attorney inviting the jury to look at appellant and judge his weight. We do not construe this action on the part of the prosecuting attorney to be prejudicial to appellant in any way. There was ample testimony that appellant weighed over 200 pounds and was over six feet tall. The prosecuting attorney was merely drawing an inference from the testimony already in evidence. It took two days to try this case and the jury had the opportunity to observe the appellant, his height, weight and general appearance. We think the argument was within proper limits. Smith v State, 197 Ala. 193, 72 So. 316; Davis v. State, 213 Ala. 541, 105 So. 677; Wade v. State, 24 Ala.App. 176, 132 So. 71; Brothers v. State, 236 Ala. 448, 183 So. 433.

Alibi testimony like all other conflicting testimony was clearly a jury question. Price v. State, 53 Ala.App. 465, 301 So.2d 230; Prince v. State, 50 Ala.App. 368, 279 So.2d 539.

The trial court appointed Honorable J. Louis Wilkinson and Charles M. Purvis, two of Alabama’s most outstanding trial lawyers, to represent appellant. These lawyers protected appellant’s constitutional rights at every stage of the proceedings. The fact that the jury fixed the punishment at only ten years imprisonment must be due to the resourcefulness, ingenuity, and power of persuasion of these astute lawyers.

The record is free of error and the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


author: TYSON, Judge.

text:
    Harvey Lee BOBO, alias v. STATE.
    6 Div. 2.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Jeff B. deGfaffenried, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State,
   TYSON, Judge.

The appellant was indicted for the robbery of $850.00, the property of Steven Weller, in the possession of Steve Swindle. The jury found the appellant guilty as charged, and fixed punishment at ten years imprisonment. The trial court then entered judgment in accordance with this verdict, and subsequently overruled the appellant’s motion for a new trial.

Steve Swindle testified that he was a student at the University of Alabama, and a parttime employee of David and Company, located at 1300 University Boulevard, Tuscaloosa, Alabama. He testified that on the night of October 23-24, 1974, he was working the shift from midnight until 8:00 a. m., alone in the store. He testified that about 2:45 a. m., three black males entered the store, and that the first of these, one David Crawford, spoke to him. He testified that Crawford walked to the rear of the store, that the appellant then came in with the other black male, and that Crawford grabbed him by the collar and pushed him. He stated that Crawford then took a piece of plastic pipe and threatened him with it, stating that he was going to strike him. At this time the appellant and his companion pointed a sawed-off shotgun at him and proceeded to take the proceeds from the cash register. He testified that he subsequently identified the appellant, Harvey Lee Bobo, and David Crawford at a line-up on January 15, 1975,-at the County Jail. He stated that a little over $1000.-00 had been removed from the cash register that evening by the appellant and his two companions.

Mike Everrett testified that he was an investigator with the Tuscaloosa Police Department and that he- was present when a line-up was conducted with both David Crawford and the appellant, Harvey Lee Bobo, at the County Jail, on January 15, 1975. He testified that the appellant was taken into custody on January 14, 1975. From the record:

“Q. If you would explain to the jury the manner in which the line-up was conducted and who was present at the line-up on the following day of January 15th?
“A. Would you repeat the question?
“Q. Yes. Explain to the jury how you went about conducting the line-up and who all was in the line-up and who viewed the line-up.
“A. At 4:30 P.M. on the 15th of January, 1975, myself and Investigator Palmer conducted a physical line-up at the County Jail. There were six persons in the line-up to be viewed. The persons were David Crawford, a John N. Jones, Billy Hurst, the defendant Harvey Bobo, Zebbie Moulton and Ezekiel Phillips. The two suspects were put in the line-up with other persons already in jail, persons that were not suspects in the case. We tried to get persons that were of the same height and weight. All of these subjects were black males. We separated the two defendants, David Crawford being #1 out of the six, Mr. Bobo being #4 out of the six.
“Q. Is #1 you referred to as a person viewed the line-up ?
“A. From left to right, David Crawford #1, Jones 2, Hurst 3, Bobo 4, Moulton 5 and Ezeliel Phillips #6.
“Q. And do you have a line-up room there ?
“A. Yes, sir. It is viewed through a one-way glass with the suspects not able to see the witnesses under well lighted conditions where the victim is able to get as close to the suspect as he likes,
“Q. Now, who all was present in the line-up room ?
“A. In the line-up room was attorney George Nichols and Mr. Callahan.
“Q. And were you present, Mike ?
“A. Yes, sir.
“Q. And did Steve Swindle come in and view that line-up?
“A. Yes, sir. Along with fifteen others.
“Q. Now I will ask you to state whether or not Mr. Swindle made an identification.
“A. Yes, sir. He did.”

The appellant then presented the testimony of several character witnesses. Each of them testified that he was in his Senior year at Druid High School, and that his general reputation was good.

The appellant, Harvey Lee Bobo, testified that he lived with his mother at McKenzie Courts in Tuscaloosa, Alabama, that his parents were separated, and that his mother was his principal support. He testified that he was a Senior at Druid High School. He testified that he was in the company of one David Crawford and another by the name of John Childress when they entered the store known as David and Company in the early morning of October 24, 1974. He testified that David Crawford’s younger brother, William, had come over to his house, and that with William he had gone next door to the Crawford home. He testified that William Crawford’s older brother, David, and another by the name of John Childress were over there drinking wine. He stated that they said they wanted to go out to buy some cigarettes, that he just rode in the car with them, and that John Childress was driving. He stated that he was seated on the rear seat, and that David Crawford was on the front seat with Childress. He stated that they stopped by two or three places, that they were closed, that they then pulled over to David and Company when they noticed that the store was open. He said that Crawford went in, that he walked in shortly after, with Childress, and as they were going in, Childress pulled a shotgun out. He testified that Crawford had hit the man on duty, that Childress had made him get out of the car and go in with him, that Childress had a shotgun and also a .357 Magnum pistol with him. He stated that Childress took the proceeds from the cash register and kept the money. He stated that the two men dropped him off near his home, and that he had not seen John Childress since that night. He stated that the other men, David Crawford and John Childress, were older than he was and were larger.

On cross-examination, and over objection, exception, and motion for a mistrial, the district attorney was permitted to ask the appellant if he, in the company of David Crawford, did not rob two students behind Palmer or Sommerville Hall' on the University of Alabama Campus about 8:30 p. m. on the same evening as the robbery of David and Company. The two students were identified as Larry Henley and Crosby Latham. This purportedly took place as the students were getting out of their automobile in a parking lot. The appellant denied being anywhere around the University that night, or threatening or robbing the two men.

In rebuttal, the State of Alabama was permitted to call Crosby Latham, who testified that he was a student at the University of Alabama, and on the night of October 23, 1974, about 8:30 p. m., he was accompanied by a friend, named Larry Henley, that they had been out at McFarland Mall shopping, that they had pulled up in the back of Sommerville or Palmer Hall, looked at an antique car, and as they were getting out of the automobile, over objection, exception, and motion for a mistrial, that he was accosted by the appellant, Harvey Lee Bobo, and his friend, David Crawford. He stated that the two of them pointed a pistol at him, then took his checkbook and his wallet, and also took that of his companion. He testified that he subsequently identified the two men in a police line up on February 4, 1975, as being the appellant and David Crawford.

The appellant’s able counsel asserts as error the rulings of the trial court in permitting the appellant to be cross-examined pertaining to this purported incident involving the two University students approximately six hours prior to the robbery of David and Company.

Also, on the same grounds the appellant asserts as error the rulings of the trial court permitting the State to allow Crosby Latham to testify as a rebuttal witness over objection, exception, and motion for mistrial, as to this incident.

The trial court, in its ruling, stated to the jury that this testimony was admitted solely on the question of intent, and in its instructions, the trial judge further so instructed the jury in its oral charge.

Judge Harris, speaking for a unanimous court in Lambert v. State, 48 Ala.App. 600, 266 So.2d 812, noted the following:

“Evidence of other distinct criminal acts is admissible when relevant to the crime charged, as bearing on scienter, intent, motive, res gestae, identity of the ac-oused and as bearing on the issue of insanity when that defense is asserted. See ‘The Law of Evidence in Alabama’ by Judge J. Russell McElroy, Vol. 1, 2nd Ed. pp. 166-169, 6 Ala.Dig.Crim.Law @=>365.”

In a thorough opinion, dealing with the same issue as here presented, Judge Harris, in Murphy v. State, 52 Ala.App. 490, 294 So.2d 457, cert. denied 292 Ala. 743, 294 So.2d 462, stated:

“These recognized exceptions to the general rule have developed into general categories and are listed in Wharton’s Criminal Evidence, Section 31, as follows:
“ ‘These exceptions fall under the following general divisions: (1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one hand, and, on the other hand, to protect the accused and secure to him the rights guaranteed to him by the Constitution and the laws.’
“From Wilkins v. State, 29 Ala.App. 349, 197 So. 75, we take the following as ex-positive of the very issue, and only issue, presented on this appeal:
* * It is a well-established common-law rule that in a criminal prosecution proof which shows or tends to show that the accused is guilty of the commission of other crimes or offenses at other times, even though of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged unless the other offenses are connected with the offense for which he is on trial. In other words, proof of such collateral offenses cannot be used as substantive evidence to establish the guilt of the accused as to the crime charged. 20 Am.Jur., Section 309, pp. 287, 288. Wharton’s Criminal Evidence, 10th Ed., V0olume 1, Section 30, p. 59. This well-established principle of criminal evidence, however, is subject to • several equally well-established exceptions, which include cases where intent or identity is involved. As found in 22 R.C.L., Section 39, p. 1204: “But this general rule is not to be followed blindly and evidence rejected on the sole ground that it does show the commission of another crime. If evidence is relevant and competent it should be admitted regardless of its incidental effect. Accordingly it is held that evidence of another crime is admissible where it tends to identify the accused.”
“ ‘And we also add that such evidence should also be admitted where it tends to show the intent with which the act was done. Or as stated in Underhill’s Criminal Evidence, 4th Ed., Section 181, p. 318: “To this general rule there are several distinct exceptions which have been permitted from absolute necessity, to aid in the detection and punishment of crime. These exceptions ought to be carefully limited and guarded by the courts and their number should not be increased. But it must be admitted that the modern tendency on the part of the courts is to be liberal in the admission of evidence of collateral crimes. The exceptions to the general rule arise either from the necessity of the case or the nature of the offense, as for example, * * * when the intent or motive is to be proved from the circumstances, or where the identity of the accused is expressly in issue.” ’ (emphasis added)
“These exceptions to the general rule have become so embedded in the judicial fabric of the jurisprudence of this State that further citation of authorities would seem to be unnecessary. But for a collection of these authorities, see Weatherspoon v. State, 36 Ala.App. 392, 56 So.2d 793.
“Where several persons participate in a robbery, it is immaterial which one takes the property. Gibson v. State, 49 Ala.App. 18, 268 So.2d 49; Parsons v. State, 33 Ala.App. 309, 33 So.2d 164.”

In the case at bar, the appellant, in his testimony on direct examination, contended that he had simply .gone along in the automobile while D.avid Crawford and John Childress were looking for cigarettes, that the two men- were older and larger than he was, and it was on the direction of Child-ress that he got out' of the car and walked into David and Company where the men accosted Steve Swindle.

In light of this testimony, we are of" the opinion that the appellant’s intent on the occasion in question became a relevant and material point in the case. It was therefore proper for the trial court to permit the appellant to be cross-examined as to his purported involvement in the robbery of the two University students, some six hours prior to the David and Company robbery. This, too, also in the company of David Crawford. Since the appellant denied any participation or knowledge of this alleged robbery, it was proper for the State to establish this in rebuttal. The trial court so instructed the jury in the admission of this testimony, and also in its closing oral charge, that such was limited solely to appellant’s intent.

We are of the opinion, upon careful examination of the record, that these rulings are correct, and the judgment appealed from, being without error, is due to be and the same is hereby

Affirmed.

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

CATES, P. J., dissents on authority of Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 ALR2d 847.


author: CATES, Presiding Judge.

text:
    William Daniel JOHNSON v. STATE.
    8 Div. 421.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Donald R. Harrison, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Johnson, in a single trial, was found guilty of second degree murder under two counts. Pursuant to the verdicts the trial judge sentenced Johnson to thirty-five years and ten years, respectively, with the latter sentence to run concurrently with the first.

I

This double murder was a Tobacco Road episode accompanied by adultery, alcohol, amphetamines and automobiles. The testimony was substantially the same as shown on the appeal of Johnson’s brother. See Johnson v. State, 55 Ala.App. 581, 317 So.2d 548.

Witnesses other than those in that trial were:

(1) Anderson Ayers, Russellville’s chief of police, who witnessed a written exculpatory statement given and signed by the appellant on appellant’s being interrogated by the district attorney;

(2) Jennifer Hacker, appellant’s sister, testified that he was analphabetic not having got past the fourth grade; and

(3) Boddy McCullar, bailiff of the circuit court, testified as to having gone to Spruce Pine School with appellant and the scantiness of his schooling.

James Hickman, William O’Neal, V. J. Hacker, Beth Robinson and appellant did not testify. The photographs introduced in Charles Leon Johnson’s trial were also exhibits in the instant record. What was said in Part IV the opinion, 317 So.2d at 555, applies here.

II

The only refused charges considered by us are those numbered 16, 17, 18, 19 and 20. The others listed by the circuit clerk as refused bear no endorsement by the trial judge. Without an endorsement a written charge is not properly before us. Hill v. State, 48 Ala.App. 240, 263 So.2d 696.

Charges 16-20 ip referring to the decedents used the,expression “either decedent” or “any offender” in an effort to describe the justifiable killing in defense of a wife. Such ambiguity had a tendency to confuse the jury. Hence, the trial judge did not err in refusing them.

III

Counsel appointed by the trial court failed to submit a brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, does not condone such neglect of an indigent client. Moreover, if wilful, it — in appeals taken after December 1, 1975 — furnishes a ground for a contempt citation by this Court under ARAP Rule 48. In this case the matter is with the trial judge.

Under § 318(4), T. 15, of Michie’s Code, writer appointed Hon. Donald R. Harrison to supplant counsel appointed by the trial court. Mr. Harrison has promptly filed an excellent brief raising all arguable points arising from the record.

A minute entry of November 27, 1972, eleven days after judgment (and long before the record came here), reads :

“On this November 27, 1972, Defendant with attorney appeared and notified the court that he wanted to dismiss his appeal. Appeal dismissed.”

This dismissal, not being in writing signed by the defendant or his counsel, was ineffectual under Code 1940, T. 15, § 381.

IV

Appellant filed on October 11, 1972, a pretrial motion to suppress “any and all statements” made by him to police, sheriff’s “Department” or the District Attorney. Grounds assigned were (1) custodial interrogation without defense counsel, (2) no Miranda warnings, and (3) alternatively, no understanding waiver of rights conferred by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The judgment entry under date of November 7, 1972, shows an appearance by appellant with counsel, testimony taken on the motion to suppress and an order entered overruling it. No transcript of that testimony has been sent up. Hence, we have nothing to review. Under Brown v. State, 277 Ala. 108, 167 So.2d 291, a pretrial motion to suppress is not mandatory.

Such a motion was born of the rule of exclusion ex necessitate. Green v. State, 38 Ala.App. 189, 79 So.2d 555. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, nurtured it to the stature of the infant Hercules. However, such pretrial suppression is not the sole remedy for excluding illegal evidence. Brown v. State, supra.

On the main trial objection was made to the reception of the statement. However, the State established prima facie the Miranda and pre Miranda predicates. No motion was made to withdraw the jury. Hence, the duty was not on the court ex mero motu to withdraw the jury. State v. Wilbanks, 289 Ala. 166, 266 So.2d 619. Vincent v. State, 284 Ala. 242, 224 So.2d 601; McBee v. State, 50 Ala.App. 622, 282 So.2d 62; Anno. 1 A.L.R.3d 1251, § 4.

We have examined the whole record and consider, under § 389, T. 15, Code 1940, that the judgment below should be

Affirmed.

All the Judges concur.


text:
    Theodore SCOTT v. STATE.
    6 Div. 740.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    No brief for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for appellee, the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

On a trial on an indictment for murder in the first degree, the jury found defendant guilty of murder in the second degree and fixed his punishment at imprisonment in the penitentiary for fifteen years, and he was sentenced accordingly.

There were some conflicts, or conflicting tendencies, in the evidence, but as a whole, including testimony of defendant himself, the record shows that on Sunday morning October 11, 1970, a short time after 11:00 A.M., the victim, Clifford Watkins, was killed by at least two shots from a pistol fired by defendant, while the two men and Queenie Ross Parker were visiting at the home of Myrtle Whatley. .Also at the home of Myrtle Whatley at the time was Marion Carpenter, her adult son. Defendant was the last to arrive, and upon his arrival he . kissed Queenie, which action seemed to irritate Clifford Watkins, the deceased. He rose from his chair and started toward defendant; defendant pulled the pistol, which according to defendant he had won in a gambling game that morning, and had placed it underneath his waist band and covered it with the fold of a sweater. He said that Clifford insulted him and came toward him with a knife; that they tussled and he shot several times. One of the bullets grazed the hand of Queenie Ross Parker. She testified that one of the shots fired by defendant was after Clifford reeled and “Then Theodore shot him again in the back.” She said that she did not see a knife in the hand of Clifford during the argument or fight but that “Clifford was fast with a knife” and that a knife was found in the chair after the death of Clifford. There was evidence that defendant and deceased had been drinking.

The evidence was ample to support the verdict of murder in the second degree, the unlawful intentional killing of a human being with malice, but without deliberation or premeditation.

The most insistent invocation made on the trial by defendant’s counsel was as to a motion for a mistrial during the process of the selection of the jury to try the case.

After all jurors drawn for the trial of the particular case had been brought to the court room for the trial and had been qualified, identified, and interrogated by counsel for both sides, the following occurred:

“THE COURT: Are you gentlemen ready to commence or do you want to take a few minutes ?
“MR. WAITES: We will take the jury in the box.
“MR. WILKINSON: We take exception to Mr. Waites’ remarks and make a motion for a mistrial.
“THE COURT: Overruled. Ladies and gentlemen, that goes for everybody. Please disregard Mr. Waites’ remarks about taking the jury in the box.
“MR. WILKINSON: In addition we move for a mistrial based upon that remark.
“THE COURT: Overruled.
“MR. WILKINSON: We except.”

Thereafter, out of the presence and hearing of any of the venire, defendant’s counsel renewed his motion for a mistrial and qualified the same by a request that the twelve jurors “in the box” be sent back to the jury room and that the jury for the trial be selected from the remaining twenty-four jurors and twelve other jurors to replace the twelve in the box. This motion was overruled. Thereafter the jury was selected by striking and sworn. Promptly thereafter, out of the presence and hearing of the jury, defendant’s counsel again renewed his motion for a mistrial and noted that of the twelve jurors selected for the trial, seven had been seated “in the box” at the time counsel for the State had stated that he was satisfied with the jury in the box. The motion was overruled.

As the record shows, in instructing the jury to disregard the statement of State’s counsel, the trial court readily recognized that the statement was out of place. In civil cases in Alabama, a jury demand does not necessarily mean a struck jury, that is, a jury selected by the process of striking. Either party may demand a struck jury and then the jury is selected by “the parties or their attorneys alternately striking one from the list until twelve are stricken off, the party demanding the jury commencing.” Code of Alabama, 1973, Cumulative Pocket Part, Title 30, Section 54. With little change, such has been the process of selecting a jury in civil cases for many years. In civil cases, there can arise at times an occasion for plaintiff to make it clear whether he wants a struck jury, and, if he does not, an occasion for defendant to make it clear whether he wants a struck jury. The option is to take the jury in the box. On the other hand, in criminal cases, the practice for many years, as prescribed by statute, has been for the jury to be selected by striking, the state always striking first. Code of Alabama 1940, Title 30, Sections 60, 64. The same is true as to legislation applicable to Jefferson County, Acts 1955, 2nd Ex.Sess., p. 170, § 15. The remark of State’s counsel was not consonant with established practice in criminal cases. If made understandingly, it could well be construed as an effort to put defendant’s counsel on the spot or as a ploy to curry favor with the twelve jurors in the box at the expense, or to the discomfort, of defendant or defendant’s counsel. If so, we do not look upon it as a mere peccadillo. We understand the grievance of defendant’s counsel. However, we are confident that the action did not justify the declaration of a mistrial or a discharge, or release, of the twelve jurors in the box. The trial judge, who was in a better position than we, to assay the purpose in making the statement and the probable effect, if any, that it had upon potential and actual jurors, was well within his province in overruling the motion as originally made, and as qualified, by defendant’s counsel. Many rulings were invoked by each of the parties, but almost all of them were adverse to the State. We have examined all adverse to defendant as well as the entire record, pursuant to the provisions of Title 15, Section 389, Code of Alabama 1940. We find no error prejudicial to appellant therein.

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.

All the Judges concur.


text:
    Horace Wade HAMM v. STATE.
    8 Div. 657.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.

      W. Mark Anderson, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Eight years in the penitentiary for assault with intent to murder W. O. Foster. Trial below and here in forma pauperis with appointed counsel.

The alleged victim, W. O. Foster, was at home with his family and Deputy Sheriff L. W. Wagnon, when about 9:00 p. m., March 25, 1974, the occupants heard shots or explosions outside which indicated some gunshots were being directed toward the residence.

Wagnon went outside to the carport to investigate and turned the porch light on. Not seeing anyone, he turned the lights off and went in another direction. He saw an automobile at the end of the driveway and a man standing on either side of the car. The two men were shooting at the house.

Wagnon was wounded and returned the fire with his pistol. W. O. Foster came out of the house and handed a shotgun to Wagnon, who fired the shotgun at one of the men by the car and wounded him. The two men left and were later arrested. Foster was wounded by a gunshot from one of the guns in the hands of the two assailants.

As we view the evidence, the identity of appellant as one of the men firing in the house at Wagnon and Foster was fully established at appellant’s nisi prius trial. It is unnecessary to detail the evidence adduced to establish this fact.

A killing and sudden passion, excited by provocation, without malice, is “manslaughter,” since malice and heat of passion cannot co-exist, and is not murder. Smith v. State, 31 Ala.App. 12, 11 So.2d 466, cert. denied, 243 Ala. 627, 11 So.2d 473. To authorize a conviction for assault with intent to murder, evidence must show an assault with intent to take life, under circumstances which, if death had resulted, would have constituted murder. Thompson v. State, 37 Ala.App. 446, 70 So.2d 282.

Absent the necessary element of malice that is essential to an indictment for assault with intent to murder, the offending crime would be reduced to a misdemeanor embraced in the indictment.

Defendant sought to introduce evidence about a provocation between him and W. O. Foster earlier in the day. The trial court heard the evidence in camera and declined to admit the evidence before the jury. Defendant contended the evidence was admissible to show the existence of passion generated and resulting in the shooting at the W. O. Foster home.

The existence of such passion depended on its dissipation due to the intervention of “cooling time,” which is a question of law for the court to decide, and not a fact for the jury.

The Supreme Court in a civil case, Keiser v. Smith, 71 Ala. 481, observed:

“The only proper test, at least in cases where the provocation and assault do not form parts of one continued transaction is, whether ‘the blood had time to cool.’ The criterion is not alone how many days or even hours had elapsed since the provocation was given, although this consideration is of vast significancy in ascertaining the main inquiry. — Dolan v. Fagan, 63 Barb. (N.Y.) 73; 1 Water, Tresp. § 268; 1 Hilliard on Torts (4th Ed.) 197, note (b).
“What constitutes a sufficiency of cooling time, or of provocation, is necessarily a question of law, and not of fact, the court being required to decide it preliminary to the admission or exclusion of the evidence offered in mitigation, analogous to the rule governing in cases of homicide. — 2 Bish. on Cr.Law, § 713; Felix v. State, 18 Ala. 720.
“It is manifest that no absolute rule for all possible cases can be declared. The time in which a man of ordinary prudence would cool, under a similar state of circumstances, is usually designated as a reasonable time for such purpose. The law cannot preserve its own integrity, and at the same time admit the proposition, sometimes sanctioned by a sentiment originating in too tender regard for human fraility, that calm reflection on legal wrongs may justly increase one’s rage in proportion to the length óf time spent in their contemplation. The recognition of such a principle would speedily undermine, and ultimately destroy that peace of society, which is absolutely essential to the very existence of good government.
“It has been said by high and ancient authority, ‘If two men fall out in the morning, and meet and fight in the afternoon, and one of them is slain, this is murder, for there was time to allay the heat, and their after-meeting is of malice.’ — Rex v. Legg, J.Kel. 27; 2 Bish. on Cr.Law, § 712; 1 Hawk.P.C. 190, § 22. One hour has been adjudged, in one case, to be a sufficient cooling time, and three hours in another. — 2 Bish. on Cr. Law, § 712; Johnson’s Case, 30 Tex. 748. ‘The act must be imputable to human infirmity only, and not to deliberate judgment and malignity of heart. Any diversion of the mind to other thoughts, or to business, or any circumstances showing deliberation or reflection, as well as the mere lapse of time, repeal the idea of passion.’ — Clark’s Man.Cr.Law, p. 69, § 436, and cases cited.”

The Supreme Court in Ragland v. State, a criminal case, 125 Ala. 12, 27 So. 983(7), quoted with approval some of the excerpts of Keiser, supra.

We find in Sheppard v. State, 243 Ala. 498, 10 So.2d 822(6), Justice Bouldin, speaking for the court, observed:

“Cooling time is a question of law. Keiser v. Smith, 71 Ala. 481, 46 Am.Rep. 342; Ragland v. State, 125 Ala. 12, 27 So. 983, and authorities there cited. See also Brunson v. State, 212 Ala. 571, 103 So. 664; Logan v. State, 155 Ala. 85, 46 So. 480; Crowder v. State, 18 Ala.App. 632, 93 So. 338.”

We hold that the trial judge in the instant case did not err in excluding the testimony of a prior difficulty. He saw and heard the witness with regard to the difficulty and determined therefrom that as a matter of law the evidence of a' prior difficulty was not admissible.

The rulings of the court, so far as we find, are free of error.

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

The judgment is

Affirmed.

All the Judges concur.