author: BOWEN, Judge. DeCARLO, Judge,

text:
    Jimmy D. ROBINSON v. STATE.
    8 Div. 961.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.

      John F. Proctor, Thomas & Proctor, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and charged with burglary in the second degree and grand larceny. A jury found him guilty as charged and the trial court sentenced the appellant to ten years imprisonment.

The home of Mrs. William W. Donahue of Bryant, Alabama, was burglarized on the evening of January 18, 1977, sometime between the hours of four and nine o’clock. A number of expensive and valuable items including a large number of hand tools were taken, their total value amounting to $2,300.00.

Neil Avans, a thirteen year old boy, testified that on January 18, 1977, he was living with his mother and the appellant in Trenton, Georgia. On the day of the robbery he, his seventeen year old brother, and the appellant went riding around “to look for houses to get into.” Avans stated that they all went into Mrs. Donahue’s house, removed items, and placed them in the trunk of the appellant’s car. It was between 8:00 and 9:00 o’clock when they entered the house. He and his brother removed items from the house, carried them to the end of the lot and waited for the appellant who was driving back and forth in front of the house. The appellant also carried some items from the house which were too heavy for Neil and his brother to carry. All three individuals wore gloves.

Dwight Wade lived about a quarter of a mile from Mrs. Donahue and managed the Mountain Top Grocery Store. Between the hours of 8:00 and 9:00 on the evening of the robbery he saw a Chrysler automobile driving up and down the road on which Mrs. Donahue lives. About twenty minutes after eight o’clock the appellant, driving this same automobile, came into his store and purchased some cigarettes. On cross examination of Mr. Wade the fact was brought out that the appellant had a sister who lived in that general area and it was not unusual for the appellant to be seen often in the store.

Freddie Wooten also lives near Mrs. Donahue’s house and testified that he saw the appellant riding by her house five or six times on the night of the burglary between 8:30 and 9:00 or 9:30.

Deputy Freddie Adams of the Jackson County Sheriff’s Department arrested the appellant on January 20th for having a stolen tag on his automobile. In the automobile, Deputy Adams noticed a craftsman screwdriver which matched the one listed in a stolen property report. This same screwdriver was positively identified by Mrs. Donahue as one of the items taken in the burglary. Deputy Adams also observed three pairs of gloves on the dash of the automobile. Avans identified one pair as being the pair he wore during the burglary.

The only defense witness was Sue Robinson, wife of the appellant and the mother of Neil Avans. She testified that she had had a lot of trouble with her son and that she had taken him to the Jackson County Mental Health Center for psychiatric treatment when he was in the first or second grade. She testified that both her sons and the appellant were home on the evening of January 18th between the hours of 9:00 and 10:00 P.M. Around 10:00 o’clock the appellant and the two boys left the house but returned within thirty minutes.

I

The appellant’s first contention is that a remark made in final argument by the District Attorney was an impermissible comment on the defendant’s failure to testify.

During the trial the state put on two witnesses who testified that they saw the appellant driving back and forth on the road which ran in front of the house that was burglarized.

During closing argument by the District Attorney, general objection was made by defense counsel and the jury was then removed from the courtroom. Defense counsel then stated:

“At this time, the defendant would like to move for a mistrial on the grounds that, during the closing argument by the District Attorney, the statement was made that there was evidence presented that the defendant was driving up and down the road. I think the evidence would also show that it was testified to as his being alone; and the District Attorney made the statement no evidence was presented as to why he was driving up and down the road, thereby giving direct inference on the failure of the defendant to take the stand; that was the import made to the jury.
“THE COURT: That is what you said; that is dangerously close.
“MR. ARMSTRONG: That is not what I had in mind.
“MR. CAMPBELL: There is no way we can decide what you had in mind, Mr. Armstrong.
“MR. DUKE: Our position is we would be in a position to offer authority on it, that this is way over the line.
“THE COURT: They reversed Beecher the last time on about the same identical thing. We have been this far through it. Gentlemen, I’m going to overrule it and grant you an objection.
“MR. ARMSTRONG: The statement that I said is not in the record.”

The general rule is that while the state may not call attention to a defendant’s failure to testify, it may point out the failure to produce other evidence which might be helpful to a defendant. There must be virtually direct identification of a defendant alone as the individual who has not become a witness before the state’s comment will be interpreted to be an unfair comment upon the defendant’s failure to testify. King v. State, 45 Ala.App. 348, 230 So.2d 538 (1970); Gissendaner v. State, Ala. Cr.App., 338 So.2d 1025, 1027, cert. denied, Ala., 338 So.2d 1028 (1976). For collection of cases and remarks see: Everage v. State, 33 Ala.App. 291, 33 So.2d 23 (1947); Harris v. State, 33 Ala.App. 623, 36 So.2d 254 (1948) quoting from Everage.

However where the prosecuting attorney remarks that evidence offered by the prosecution is uncontradicted, and where the defendant is the only person who could or would have contradicted the evidence, it is generally held that the comment refers to defendant’s failure to testify and is thus improper. Street v. State, 266 Ala. 289, 96 So.2d 686 (1957); Broadway v. State, 257 Ala. 414, 60 So.2d 701 (1952); Padgett v. State, 45 Ala.App. 56, 223 So.2d 597 (1969); Etheridge v. State, 42 Ala.App. 77, 152 So.2d 689 (1963); Annotation : Accused’s failure to testify — comment, 14 A.L. R.3d 723.

The general rule is that statements by the prosecutor to the effect that the state’s evidence is undenied or uncontro-verted are merely indirect references to the defendant’s failure to testify and thus do not violate the statute prohibiting comment upon the failure of the defendant to testify. Title 15, § 305, Code of Alabama 1940, Recompiled 1958; Sellers v. State, 48 Ala. App. 178, 263 So.2d 156 (1972). However

“(t)he trial court may allow remarks of this tenor so long as the defendant is not the only witness capable of contradicting the State’s proof. If the prosecutor’s remarks can be interpreted as referring to the failure of the defense to produce as witnesses existing persons other than the defendant who should be in a position to testify in his favor, and who are known to him, then the general rule stated above applies and there is no violation of the statute. See Street v. State, 266 Ala. 289, 96 So.2d 686; Broadway, supra; Gore, supra [45 Ala.App. 131, 226 So.2d 674]; Padgett v. State, 45 Ala.App. 56, 223 So.2d 597; Williams, supra [43 Ala.App. 343, 190 So.2d 556]; Littlefield v. State, 36 Ala.App. 507, 63 So.2d 565; cf. King v. State, 45 Ala.App. 348, 230 So.2d 538.” Sellers, supra, 48 Ala.App. 187, 263 So.2d 165.

In Singleton v. State, 93 Tex.Cr.R. 109, 245 S.W. 922 (1922), a burglary prosecution, an automobile containing two men was seen going to and returning from the scene of the crime, and witnesses identified the defendant as an occupant. In closing argument the prosecuting attorney stated:

“This defendant was in that car that night himself, driving up and down that prairie in the dead hours of midnight; he was driving that car, gentlemen of the jury, and it is undisputed that he was doing it; no, nobody denies that he was doing it.”

The Texas court noted:

“Was the language complained of in the instant case referable to the failure of appellant to call any witness disclosed by the record to have been in a position to have denied appellant’s presence in the car? We have carefully examined the statement of facts and have been unable to discover any witness to whom state’s attorney could have had reference. The state had shown by numerous witnesses that appellant and Beagle were the only occupants of the car. Beagle was under indictment and a fugitive from justice. It is not disclosed by this record that there was any one who could have denied that appellant was driving up and down the road in the car save appellant himself. This forces us to the conclusion that the argument falls clearly within the rule heretofore quoted from the Boone Case. It of necessity referred to the failure of appellant himself to take the witness stand and the jury could have drawn no other inference therefrom.” Singleton, supra, 245 S.W. 923.

Here the appellant, the only individual in the automobile, was the only one who could have testified that he was not driving up and down the road. The trial court itself noted that the District Attorney’s remark was “dangerously close”. No instructions were given or requested in an effort to purge this statement from the mind of the jury. No instructions were given or requested on the effect of the failure of the accused to testify in the court’s oral charge to the jury. Thus, in this case, there is no prima facie presumption against error because the trial judge did not immediately charge the jury to disregard the remarks. Williams v. State, 43 Ala.App. 343, 190 So.2d 556 (1966).

We must stress the warning given in Padgett, supra, 45 Ala.App. at 61, 223 So.2d at 602.

“The prosecutor has the right to make fair comment on the evidence and to argue to the jury the significance of the testimony presented, but when he begins to discuss the significance of what testimony was not presented and if it does not clearly appear that persons other than defendant could have been called, there is a danger that he may reflect upon a defendant’s Fifth Amendment right to remain silent. . . . Every time a prosecutor stresses a failure to present testimony, the facts and circumstances must be closely examined to see whether the defendant’s right to remain silent has been violated.”

Adhering to the principles expressed in this opinion and mindful of the language of Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975), this case is due to be reversed and remanded.

REVERSED AND REMANDED.

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

DeCARLO, J., dissents.

DeCARLO, Judge,

dissents.

The language condemned in the instant case is not a reference to the appellant’s failure to testify. At the outset it is well to note that the statement by the district attorney was not recorded and what the majority of the court has considered is the defense counsel’s recollection of what that statement was.

The comment recited by defense counsel that appellant complains of as being impermissible reads:

“No evidence was presented as to why he was driving up and down the road.”

Counsel argues that this was a direct reference to the defendant’s failure to take the stand.

These remarks, reputed to have been made by the prosecutor, can be interpreted as referring to the failure of the defense to produce witnesses who were in a position to testify in his favor. Sellers v. State, supra.

From the record we have the testimony of Mr. Wade, who stated on cross-examination, that the appellant’s sister lived in the general area and it was not unusual for the appellant to be seen in his store which was located a quarter of a mile from the house burglarized. The record also includes the testimony of an alibi witness, Sue Robinson, wife of the appellant. She testified that the appellant and her two sons, thirteen-year-old Neil Avans and his seventeen-year-old brother, left their house around ten o’clock on the night of the burglary. At the trial Neil Avans testified on behalf of the State. From the evidence presented can be inferred that the seventeen-year-old was either present during the burglary or with the appellant. Surely he could have been called to explain the appellant’s whereabouts.

The appellant’s sister and the seventeen-year-old boy were both accessible to him to testify. They could have been called in his behalf. Sellers v. State, supra.

In my judgment, the effect of the prosecutor’s comment was that the State’s evidence was undenied or uncontroverted and not a reference to the defendant’s failure to testify. This argument falls clearly within the permissible range. The trial court’s decision in overruling the objection was correct. Had these remarks been tainted with impropriety as the defense counsel suggested, surely his first duty was to request that the statement be purged from the minds of the jury.

In view of the foregoing, I respectfully dissent.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    No. 77-125.
    Supreme Court of Alabama.
    Dec. 2, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Earl CORNELIUS v. STATE.
    8 Div. 965.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Nov. 15, 1977.

      Terry T. Bush, Rainsville, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, a non-indigent, was indicted under Count I for grand larceny, and under Count II for buying and receiving the same stolen property.

The jury convicted as charged in Count I; sentence, three years. The conviction under Count I was an acquittal of defendant under Count II. Adkinson v. State, 21 Ala. App. 264, 107 So. 323(1); Glover v. State, 21 Ala.App. 423, 109 So. 125(1); Landers v. State, 26 Ala.App. 506, 162 So. 550(1).

The subject of the larcenous acts was some farm implements, owned and kept for sale by Forney Lowery in Marshall County where the theft took place.

It appears from the record, and from the facts as reported in the briefs of the State and appellant, that the acts of larceny occurred approximately a week apart. In other words, some óf the items listed in the indictment were stolen from the storage lot at one time, and about a week later other items listed in the indictment were stolen. The evidence clearly established that the defendant was the guilty party each time.

The indictment lists the stolen items in the larceny count with no alternative aver-ments. The indictment alleges the theft took place before the finding of the indictment. For aught appearing in the indictment there was only one act of larceny of all the items listed in the indictment. The defendant was not otherwise informed until the evidence was concluded and both sides rested, at which time defendant requested the court in writing to give the jury his affirmative charge with hypothesis. The court refused to give this charge. Appellant here asserts this refusal as error to reverse and remand.

We think appellant’s contention has merit. Preswood v. State, 22 Ala.App. 628, 118 So. 768(3); Thomas v. State, 111 Ala. 51, 20 So. 617(1); Mitchell v. State, 2 Ala.App. 147, 56 So. 56.

We quote from Preswood, supra, as follows:

“The foregoing being the law and under the facts in this case, it follows that two separate larcenies were committed, and, both being joined in the same count of the indictment, a conviction cannot be permitted to stand. Under the statute (Code, § 4546), offenses of the same character, and subject to the same punishment, may be joined in the same count in the alternative, but, when an indictment contains but a single count, charging a single offense, and the evidence in support of it shows the commission of two separate and distinct offenses, there is a fatal variance between the probata and the allagata which precludes a conviction. The indictment is perfect in its charge, and is not subject to demurrer, nor does it present a case for an election. The reasons are fully discussed in the case of Thomas v. State, 111 Ala. 51, 20 So. 617. Upon this theory defendant was entitled to the affirmative charge.”

In Thomas, in the indictment charged in the conjunctive that the defendant killed an ox and a cow. The evidence showed that each was killed at a separate time. Justice Brickell, speaking for the court, held that each killing was a separate offense and the refusal of the first, second and fourth written instructions was error. These refused instructions read:

“ * * * (1) ‘The court charges the jury that if the state has failed to prove that the cow and ox were injured or shot at the same time, or so near to each other as to constitute the same offense, then the defendant is not guilty as charged in the indictment.’ (2) ‘If the jury believe from the evidence in this case that the cow was shot on Thursday and the ox was shot on Tuesday of the next week, they should acquit the defendant.’ (4) ‘If the jury believe from the evidence that the cow was shot on Thursday, and the ox was shot on Tuesday of the following week, then the defendant is not guilty as charged in the indictment.’ ”

The judgment, the subject of this appeal, is reversed and the cause remanded. The defendant will remain in custody until discharged by due course of law.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-183.
    Supreme Court of Alabama.
    Jan. 27, 1978.
   JONES, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    John Douglas COLE v. STATE.
    8 Div. 982.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.

      E. Dwight Fay, Jr., for Lutz, Fay & Foley, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted for burglary in the second degree and grand larceny. A jury found him guilty as charged in the indictment and the trial judge sentenced the appellant to eight years imprisonment. The appellant is represented by court appointed counsel both at trial and on appeal.

During the night of February 12, 1976, Mister Hamburger at 3316 Bob Wallace Avenue in Huntsville, Alabama, was burglarized. Without detailing the specific facts, the state proved through the testimony of the owner-manager and his wife that the building was broken into, entered, and that certain articles were taken.

At approximately 4:30 on the morning of the 13th of February, the car in which the appellant was riding was stopped by officers of the Huntsville Police Department for driving without lights. At that time the officers noticed items in the automobile which they later learned had been taken in the burglary.

At trial the appellant presented no evidence in his defense.

I

The appellant contends that the trial court erred in not allowing defense counsel’s oral motion to strike the entire jury venire as a result of a remark made by a member of that jury venire in the presence of other members. During voir dire of the venire and in response to defense counsel’s questions, one venireman stated that he could not reach a fair and impartial verdict as a result of his knowledge of the defendant. The individual venireman did not indicate whether his prejudice was for or against the appellant. He was challenged for cause and properly excused.

The trial judge acted properly in overruling the motion to strike the entire jury venire. A challenge to the array or a motion to quash or strike the venire will not be sustained unless it is alleged and proved that the whole venire is tainted with prejudice. Nickerson v. State, 283 Ala. 387, 217 So.2d 536 (1969); Junior v. State, 47 Ala. App. 518, 257 So.2d 844, cert. denied, 288 Ala. 744, 257 So.2d 852, cert. denied, 407 U.S. 923, 92 S.Ct. 2473, 32 L.Ed.2d 810 (1971); Lane v. State, 40 Ala.App. 174, 109 So.2d 758 (1959); Burton v. State, 194 Ala. 2, 69 So. 913 (1915). The objection goes to the individual juryman and not to the whole venire or panel.

II

The appellant contends that the trial court erred in admitting evidence of items allegedly stolen but not listed in the indictment.

On an indictment for larceny where the state of the proof presents the material question of the identity of the accused, evidence is admissible to show that other property had been stolen at the same time as the property described in the indictment, and that the property so stolen was in the possession of the accused at the same time he was in possession of property charged to have been stolen in the indictment. Yar-borough v. State, 41 Ala. 405 (1868); Grant v. State, 55 Ala. 201 (1876); Beckley v. State, Ala.Cr.App., 335 So.2d 244 (1976).

Furthermore, testimony that in addition to the articles listed in the indictment there had also been taken certain other articles is admissible as part of the res gestae. McFarling v. State, 35 Ala.App. 191, 45 So.2d 322, cert. denied, 253 Ala. 501, 45 So.2d 324 (1950); Taylor v. State, 19 Ala.App. 600, 99 So. 733, cert. dismissed, Ex parte Taylor, 211 Ala. 282, 100 So. 331 (1924); Bibb v. State, Ala.Cr.App., 339 So.2d 1108 (1976); Mitchell v. State, 57 Ala. App. 601, 329 So.2d 658, cert. denied, 295 Ala. 412, 329 So.2d 663 (1976).

III

The appellant further contends that the state did not carry its burden in proving the voluntariness of the confession. This contention is without factual support in the record.

Although the appellant was questioned before he admitted his guilt, it affirmatively appears that after being left alone for a short time, the appellant requested to talk to a detective and then made his confession. Before any questioning was initiated or statement made, the appellant was given his Miranda warnings. The appellant did not testify or present evidence on the hearing to determine the admissibility of the confession. The evidence concerning the circumstances of the giving of the confession is not conflicting or contradictory.

Reviewing the totality of the circumstances we are of the opinion that the circumstances affirmatively disclose the vol-untariness and volunteeredness of the confession. Thompson v. State, Ala.Cr.App., 347 So.2d 1371, cert. denied, Ala., 347 So.2d 1377 (1977); Elliott v. State, Ala.Cr.App., 337 So.2d 158 (1976).

IV

In its oral charge to the jury the trial judge made the statement that:

“This indictment, as I say, charges the Defendant with the offenses of burglary and grand larceny.
“It charges burglary in the second degree and burglary in the second degree as charged in this indictment is the breaking into and entering of a building of the type set forth and described in this indictment, with the intent to steal.”

The appellant submits that this was an improper comment upon the evidence.

The court does not invade the province of the jury in a criminal prosecution by stating that there is or is not evidence of particular facts when such is the case. Breedwell v. State, 38 Ala.App. 620, 90 So.2d 845 (1957). It is the duty of the trial judge to state the law of the case to the jury. Title 7, § 270, Code of Alabama 1940, Recompiled 1958. In noting that the building described in the indictment was of the type subject to second degree burglary, the trial judge was simply noting as a matter of fact what the law of the case charged. The judge’s instructions were certainly not an improper comment upon the evidence but rather constitute a description of the charge against the accused.

Although we have considered this issue on its merits, we note that there was no objection to the quoted remark of the trial judge and the appellant should not now be heard to complain.

V

Finally the appellant alleges error in the failure of the trial court to charge the jury that the state has the burden of proving the corpus delicti of the charged crime independently of any confession.

It is well recognized that there must be independent proof of the corpus delicti in a criminal case before any confession or inculpatory statement may be admitted in evidence against the accused. Gamble, McElroy’s Alabama Evidence, 3rd Ed., § 200.13, p. 443; 6 Alabama Digest, Criminal Law, Key Number 535. A confession without independent evidence of the corpus delicti is not sufficient to support a conviction. Arnold v. State, 57 Ala.App. 172, 326 So.2d 700 (1976). Upon proper motion (either a motion to exclude the state’s evidence or a motion for a directed verdict) the existence of the proof of the corpus delicti is a question of law for the trial judge. While a defendant’s confession in a criminal case cannot properly be received as evidence until some independent proof of the corpus delicti has been adduced, the prima facie sufficiency of such preliminary proof is a question for the court. Floyd v. State, 82 Ala. 16, 2 So. 683 (1886). It is for the judge to determine whether there is testimony sufficient to make it appear prima facie that a crime has been committed, but its ultimate determination on conflicting and contradictory evidence is for the jury. Patterson v. State, 202 Ala. 65, 79 So. 459 (1918). Questions as to the admissibility of a confession address themselves to the trial judge while the credibility and weight to be given a confession are matters exclusively for the jury. Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976).

The trial court was correct in refusing to charge the jury that the state has the burden of proving the corpus delicti independently of any confession. Under the above principles this was a matter for determination by the trial judge.

We have carefully searched the record for error and finding none, it is our judgment that this case is due to be and is hereby

AFFIRMED.

All Judges concur.


text:
    Ex parte John Douglas COLE.
    No. 77-118.
    Supreme Court of Alabama.
    Dec. 2, 1977.
   JONES, Justice.

WRIT DENIED.

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


text:
    Doyle W. CHAMBERS v. STATE
    1 Div. 652.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.

      Richard G. Alexander, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Winston D. Durant, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Mobile County returned an indictment against the appellant, Doyle W. Chambers, charging him with embezzlement of public funds. Appellant entered a plea of not guilty. A jury found the appellant guilty as charged, and he was duly sentenced by the court to ten years in the state penitentiary. He appeals to this Court.

Appellant was at all proceedings in the trial court represented by counsel of his own choice, and is here represented by different counsel appointed by this Court. This appeal was submitted to this Court on briefs and on merits.

Appellant requested a continuance of his trial for the purpose of employing an expert in accounting to review the records of business from which the appellant is accused of embezzling funds; and to have time to analyze and examine a large number of documents which the court had ordered the prosecution to produce for the inspection of the appellant. This request for a continuance was denied by the trial court. The record before us shows that on the 8th day of May, 1975 the Grand Jury of Mobile County returned an indictment against the appellant, and on the same day appellant was arrested and made bond. The record further shows that on May 15, 1975 appellant appeared with his attorney in open court and was duly arraigned and entered a plea of not guilty to the charge contained in the indictment against him, and the cause was set for trial July 28, 1975, the case was again continued and set for trial Monday, October 20, 1975. It further appears from the record that appellant sought no assistance of the court until 4:03 P.M. Friday, October 10, 1975, in securing access to the books, records and audits of the clerk’s office he had occupied, at which time he filed a motion in court to have the District Attorney produce certain papers and documents in the possession of the District Attorney. The court on October 10, 1975 granted appellant’s motion and the District Attorney complied with the order by producing such documents as he had in his possession. On Monday, October 20, 1975 when the case was called for trial appellant requested a continuance. It appears from the record before us that the trial court promptly granted the appellant all assistance requested by the appellant in preparing his defense. From May 8, 1975 to October 10, 1975 Appellant sought no aid from the court in preparing for his defense, this was five months. There was no evidence taken in support of appellant’s motion for a continuance, only argument of counsel. We hold that under the facts in the record in this case the trial court did not abuse its discretion in overruling appellant’s motions for a continuance. Fletcher v. State, 291 Ala. 67, 277 So.2d 882; Seibold v. State, 287 Ala. 549, 253 So.2d 302; Butler v. State, 285 Ala. 387, 232 So.2d 631, certiorari dismissed, 406 U.S. 939, 92 S.Ct. 1807, 32 L.Ed.2d 140; Davis v. State, Ala.Cr.App., 346 So.2d 523.

State’s evidence tended to prove that the appellant was duly and legally appointed, qualified, and entered upon the duties of the clerk of the Court of General Sessions of Mobile County, Alabama; that it was the duty of the appellant as such clerk to collect, receipt, safe-keep, transfer or disburse money belonging to or under the control of the Court of General Sessions of Mobile County, Alabama. State’s evidence further tended to prove that appellant was short $35,314.20 in his account as clerk of the Court of General Sessions, and that upon demand by the Examiner of Public Accounts of the State of Alabama the appellant failed to pay the charges. State’s evidence further tended to prove that the money collected by the employees in appellant’s office was checked daily by them, balanced, and placed in a cash box and turned over to the appellant. There was further evidence tending to prove that the appellant removed money from the cash box in various amounts and on many occasions, and converted it to his personal use. State’s evidence further tended to prove that appellant was in strained financial condition. The State further submitted evidence about the gambling habits of the appellant.

The appellant offered evidence on his behalf of good character, and denied that he took money belonging to the court in amounts larger than he was able to repay and converted it to his own use or to the use of others; that sums of money in various amounts were missing from the cash box on many occasions; that appellant had no idea who was taking the money. Appellant further offered evidence of his financial condition, of his habits of betting at the dog tracks. Upon cross-examination appellant further testified that on several occasions he placed his own personal checks in the cash box in order to keep up with the amount of its shortage in cash, that he took them all up except one left in the cash box when he resigned.

We have reviewed all the evidence offered by the State and hold that it was sufficient to sustain the jury verdict of guilty. The trial court did not commit error to reverse in overruling appellant’s motion to exclude the State’s evidence when the State rested its case. Enzor v. State, 27 Ala.App. 60, 167 So. 336; certiorari denied, 232 Ala. 257, 167 So. 340.

Appellant complains in his brief that the trial court erred in allowing into evidence a copy of a report of an examination of the records and accounts of the appellant’s office made by the Department of Examiners of Accounts of the State of Alabama covering the period, July 23, 1973 through April 17, 1975. The appellant was the clerk of the Court of General Sessions of Mobile County, Alabama at all times covered by the audit. Appellant’s complaint is that when it is shown that an original document is in possession of the party offering a copy of the original the copy should not be allowed. The cases cited by appellant do not deal with copies of reports of audits of public accounts by the Department of Examiners of Accounts of the State of Alabama. The report introduced into evidence was sworn to and subscribed before a notary public as being true and correct by H. W. Howell, an Examiner of Public Accounts for the State of Alabama, who was a witness for the State and identified the report in court as being a correct copy of his report. Code of Alabama of 1940, Title # 55, Sec. 170(18).

“Examiners to make sworn reports of audits. — The examiners shall make a sworn report of their findings within a reasonable time after an audit is completed. The chief examiner shall certify one copy of each report to the circuit judge of the county in which the office examined is located; the judge shall refer to the report in his next oral charge to the grand jury; and the report shall be entered in full upon the minutes of the court. Such reports shall be public records and prima facie evidence of what they charge. One copy of each report shall be certified to the governor. (1947, p. 235, Sec. 18, effective Oct. 1, 1947.)” (Emphasis supplied)

We hold that the court did not err in allowing the State to introduce the copy of the report of an audit made by the Examiners of Public Accounts of the State of Alabama. Hurst et a 1. v. Kirby, 213 Ala. 640, 105 So. 872; Code of Alabama of 1940, Title 55, Sec. 170(18).

Appellant complains in his brief of certain remarks made by the trial judge to the jury at the end of the first and second day of the trial while instructing the jury about being sequestered. The remarks complained of by appellant are as follows: On the first day,

“And, it is for his protection that you don’t hear from other parties or other sources about this case. I know that this is an extreme inconvenience to you,” and on the second day,
“Remember my instructions to you, this case is a most serious one. I want you to keep that uppermost in your mind at all times.”

We have searched the record and do not find any objection or exception to the above remarks of the trial court. We hold that without an objection or a ruling on the matter by the trial court there is nothing presented to this Court by the record before us for review. Knight v. State of Alabama, 273 Ala. 480, 142 So.2d 899; Weeks v. State, 49 Ala.App. 618, 274 So.2d 646; Scroggins v. State, Ala.Cr.App., 341 So.2d 967; Segers v. State, 283 Ala. 682, 220 So.2d 848.

Counsel for appellant in brief filed on his behalf contends that remarks made in the presence of the jury by the trial court on several occasions had a tendency to disparage the defense counsel or tended to bring the defense attorney into contempt before the jury, were prejudicial to appellant and were reversible error. We have examined the transcript contained in the record before us and find no objections or exceptions by appellant to any of the alleged disparaging remarks made by the trial court in the presence of the jury. We do find in the record several occasions where the court denied appellant’s request for voir dire of State’s witnesses to ascertain if the witnesses were testifying from their own knowledge or from what they had been told. Appellant excepted to the court’s rulings. On some of these occasions the trial court after denying voir dire instructed the witnesses to answer from their own personal knowledge; on others the question propounded called for an answer based on personal knowledge; and on others it was clearly established on cross-examination that the answer was based on personal knowledge. On several occasions counsel for appellant requested the trial court to exclude the jury from the courtroom for the purpose of allowing appellant’s counsel to argue to the court as to its rulings on evidence. These requests were denied. Appellant excepted to these rulings. The record before us indicates that appellant was allowed extensive cross-examination of all State witnesses. There are no objections or exceptions in the record to the remarks by the trial court consequently nothing is presented to this Court for a ruling. Knight v. State, supra; Weeks v. State, supra; Scroggins v. State, supra.

The granting of voir dire to ascertain if a witness is testifying from his personal knowledge; and granting a motion to exclude the jury from the courtroom for the purpose of allowing arguments by counsel to the court with reference to the court’s ruling on admission of evidence are matters within the sound discretion of the trial court. Hines v. State, 260 Ala. 668, 72 So.2d 296; Wiggs v. State, 24 Ala.App. 22, 129 So. 706; Birmingham Nat. Bank v. Bradley, 108 Ala. 205, 19 So. 791. We have reviewed the trial court’s rulings on appellant’s motions for voir dire, and to exclude the jury for the purpose of allowing appellant’s counsel to argue with reference to the court’s rulings on evidence. All considered, the trial appears to have been conducted with due regards to appellant’s rights, and we find nothing in the rulings of the trial court to indicate to this Court that the trial court abused its sound discretion by its rulings.

Appellant contends in his brief that the trial court committed reversible error in admitting extensive evidence about the gambling habits of the appellant who was on trial for embezzlement. At his trial appellant did not object to State’s evidence of his gambling habits, therefore the record before us does not present a ruling of the trial court for our review. Walker v. State, 265 Ala. 233, 90 So.2d 221; Cooper v. State, Ala.Cr.App., 340 So.2d 871; Crowe v. State, Ala.Cr.App., 333 So.2d 902; Patterson v. State, 51 Ala.App. 659, 288 So.2d 446.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Doyle W. CHAMBERS.
    No. 77-129.
    Supreme Court of Alabama.
    Dec. 2, 1977.
   JONES, Justice.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Samuel Grady THOMAS, Jr. v. STATE.
    3 Div. 668.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.

      Von G. Memory, for Riggs & Memory, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. At arraignment, in the presence of his counsel, appellant pleaded not guilty and not guilty by reason of insanity. After sentence was imposed, appellant gave notice of appeal. He was found to be indigent and was furnished a free transcript and trial counsel was appointed to represent him on appeal.

When the State rested appellant moved the Court to exclude the State’s evidence on the grounds that the evidence was insufficient, as a matter law, to take the case to the jury on the charge laid in the indictment or on any lesser included offenses. This motion was overruled.

On the night of February 24, 1976, the deceased met his death in the Krystal Restaurant on the Atlanta Highway in the City and County of Montgomery, Alabama, as a result of knife wounds inflicted upon his body by appellant. There were many eyewitnesses to this killing and their versions of the killing were, in the main, similar.

For a better understanding of the background of the parties involved and the events that led up to and culminated in the death of the deceased we think it well to first set forth appellant’s contentions that provoked his actions on the night of February 26, 1976.

The wife of appellant testified that about three weeks prior to the night that the deceased was stabbed to death by her husband she was employed as a counter girl at Ron’s Krispy Fried Chicken place on South Decatur Street. She had irregular hours of employment and during her breaks the deceased, Cecil Perdue, would come in and sit in the same booth with her without being invited to do so. She said that Perdue would follow her around the restaurant and he tried to get her to go out with him. She further testified that Perdue made improper advances to her and suggested that she make love with him and her husband would never know about it. She rejected all of the proposals made to her by the deceased and was greatly annoyed and upset by his persistence to the point that she talked to her employer about the conduct of the deceased. Her employer advised her to tell her husband what the deceased was trying to persuade her to do with him.

Mrs. Thomas further stated that on another occasion the deceased came to her apartment and attempted to place his hands behind her head and kiss her. She resisted these attempts and finally got him to leave her apartment. She said on the day that Perdue was killed he walked into her apartment without knocking or ringing the doorbell. Her landlady was present on this occasion and Mrs. Thomas talked to Perdue and got him to leave the apartment.

She further related that her husband picked her up from work on February 26, 1976, and she told him about Perdue’s seductive attempts and that he would not leave her alone. According to her testimony her husband became very upset when she told him about Perdue’s conduct toward her. She stated that she asked her husband to get the deceased to stop bothering her.

Appellant testified that he picked his wife up at her place of employment on the night of the homicide around nine-thirty and, while on their way to pick up their baby at the home of a babysitter in the Cloverland area, his wife told him about Perdue’s actions and conduct toward her. He turned around and went back to Ron’s place on Decatur Street and asked the manager if he knew where Perdue lived and the manager told him he did not know Perdue’s address. Appellant then drove to the babysitter and got their child and from there he went to his mother’s store on Ann Street near the intersection of Highland Avenue. From there he drove to the Trackside Service Station on the Southern Bypass. After getting gasoline he drove on the Eastern Bypass to the Atlanta Highway and turned and went to the Krystal Restaurant where his wife told him the deceased might be. He stated that he drove several miles, and about an hour in time, looking for Perdue after his wife first told him about Perdue’s actions and conduct toward her.

Appellant parked at the Krystal and left his wife and child in the car. He started to enter the restaurant and saw a man sitting in a booth. He returned to the car and asked his wife if that man was Perdue and she told him yes. After obtaining confirmation from his wife as to the identity and presence of Perdue, he walked into the restaurant and requested Perdue to go outside with him as he did not want to start anything on the inside. Perdue did not accept his invitation to leave the restaurant and appellant slapped him. Appellant stated that after he slapped Perdue the deceased threw a cup of coffee in his face. After this occurred appellant could not remember any of the facts or circumstances surrounding the fight or the stabbing of the deceased. He stated the next thing he recalled was an officer pointing a gun at him, placing him under arrest and carrying him to Police Headquarters.

At 11:15 p. m. on the night of the homicide appellant was given the Miranda rights and warnings and he said he understood his rights. He made and signed a statement in which he admitted that after his wife told him about Perdue’s conduct he went riding around from place to place looking for him, saying, “I just wanted to beat him up and let him know I did not want him hanging around my wife anymore.” He further stated, “I did not intend on cutting him. All I wanted to do was to whip on him and make him leave my wife alone.” In the signed statement appellant said he did not know he had cut and stabbed the deceased until a policeman stopped him outside the restaurant and took the knife out of his pocket.

Dr. Richard A. Roper, Assistant State Toxicologist, testified to his education, qualifications and experience. He stated that he performed an autopsy on the body of the deceased and found eight clean cut wounds varying from one-half inch to four inches in length and that these wounds were slashing-type wounds. He said three of the wounds were penetrating wounds and that one penetrated into the base of the neck and cut the carotid artery which was a major artery supplying blood to the head and brain. He testified that another wound penetrated the chest cavity and entered the left side of the heart. The third penetrating wound entered the abdominal cavity and wounded the liver. Dr. Roper concluded his testimony by saying:

“Based on the results of my examination I concluded that death resulted from acute internal hemorrhage, in other words, massive internal bleeding associated with multiple stab wounds to the body.”

Mr. Louis N. Surles, an employee of the State Health Department, testified that, at approximately 10:30 o’clock on the night of February 26, 1976, he was in the Krystal Restaurant on the Atlanta Highway; that when he entered he saw a man seated in a booth reading a book. He gave his order, got a number, and sat in a booth waiting for his number to be called. He then observed another man standing at the booth where the man was reading a book. He identified the man who was standing as the defendant. He heard an argument and looked around and heard the defendant tell the other man, “I’ll kill you, _______ _, I’ll kill you,” and he saw the defendant slap the man who was seated. He learned that the man who was slapped was Mr. Perdue. He then saw Mr. Perdue get out of the booth and start swinging and kicking at the defendant. He noticed the defendant pushing the deceased toward one end of the restaurant and then he heard the deceased say, “He stabbed me, he stabbed me.” He immediately saw blood on the shirt of the deceased. At this point Mr. Surles saw the defendant drop his hand and appear to be closing a knife with blood on his hand. The defendant turned around and started out the door and Mr. Surles followed him out the door to see if he could get a tag number. At this time a detective grabbed the defendant and stopped him from leaving.

Mrs. Emily Bodine testified that she was in the Krystal Restaurant on the night of the homicide and she saw the deceased sitting in a booth reading a book. A short time later she saw the defendant standing immediately adjacent to this same booth. She heard someone say, “Go on outside,” and a fight ensued between the deceased and the defendant. At the conclusion of the fight she noticed a knife-like object which the defendant put in his pocket and he started walking out the restaurant. She further stated that she did not see coffee thrown by either the deceased or the defendant.

Jeffery Wayne Potts was at this restaurant with Emily Bodine. He first saw the defendant in the men’s rest room and observed him put his hand in his pocket and walk out the door. When Potts left the rest room he noticed the defendant and Mr. Perdue arguing and then they began to fight. After the fight was over he saw the defendant leave the restaurant with a knife in his hand.

Irene Brown Moulton testified that she was employed at the restaurant where the homicide occurred. She stated that the defendant came in the restaurant and did not stop at the counter but went straight to where Mr. Perdue was sitting and started fighting Perdue. When the fight was over she saw the defendant putting a knife-like object in his pocket and heard Perdue calling for help. She said that Mr. Perdue came behind the counter and blood was gushing out of him.

John Jeffcoat testified that he was employed as a security guard at the Salvation Army building on Bell Street. He said that he and a friend were witnesses to the killing and he noticed the defendant go straight to Mr. Perdue. He did not hear any words spoken when the defendant reached the booth where Mr. Perdue was sitting but the defendant started beating bn Mr. Perdue and stated, “I’ll kill you,_ _, I’ll kill you.” He said the defendant struck Mr. Perdue three times and Mr. Perdue stood up. The defendant kept hitting the deceased and kept stating, “I’ll kill you,_, I’ll kill you.” He heard someone holler, “blood”, and he saw blood all over the floor. When the deceased was being wheeled out on a stretcher he observed a big hole on Mr. Perdue’s chest. He further stated that he did not see any coffee stains on the defendant’s shirt. ■

Eugene Hanes was in the Air Force at the time of Cecil Perdue’s death and was an eyewitness to the killing. He testified that the defendant came into the restaurant and walked across the entire seating area to Mr. Perdue’s booth; that Mr. Perdue stood up and sat down again at which time the defendant slapped Perdue. Perdue stood up again and he and the defendant started fighting. He said the defendant kept hitting Perdue in the chest and backed him up against a window directly behind him; that Mr. Perdue was trying to defend himself by kicking the defendant. After Perdue stopped kicking he grabbed his chest and Mr. Hanes observed a tremendous amount of blood on the shirt of the deceased. When the fight ended Mr. Hanes saw the defendant put a brown object in his pocket and walk out of the restaurant at which time he was arrested by a police officer.

There was other testimony relating to the fight and stabbing of the deceased by appellant. No one claimed that the deceased was armed with any type of weapon and all witnesses testified that appellant was the aggressor.

Appellant adduced some testimony by police officers that they observed stains on appellant’s shirt that could have been coffee stains. The shirt worn by appellant was taken from him when he was committed to jail but it could not be located.

Appellant introduced evidence as to his good character and his reputation for being a peaceful man in the community.

Photographs of the body of the deceased were introduced into evidence over appellant’s objection that they were calculated to prejudice and inflame the jury. Several photographs of the murder scene were offered into evidence. Some of these were objected to by appellant and some were introduced into evidence without objection. The knife used by appellant to kill the deceased was introduced into evidence without objection.

Although appellant interposed a special plea of not guilty by reason of insanity there is not a thread of testimony even tending to show that he was insane at the time he stabbed Cecil Perdue to death.

Photographs of the deceased and the locus in quo are admissible in murder prosecutions when they shed light upon the character and location of the wounds on the victim’s body and when the proper predicate has been laid. Snow v. State, 50 Ala. App. 381, 279 So.2d 552; Boulden v. State, 278 Ala. 437, 179 So.2d 20; Smarr v. State, 260 Ala. 30, 68 So.2d 6.

Gruesomeness is not ground for excluding evidence consisting of photographs if it has a reasonable tendency to prove or disprove some material fact in issue, and if it illuminates the issues in any way, and is relevant, it is admissible even though possessing a tendency to inflame the minds of the jury. McKee v. State, 33 Ala.App. 171, 31 So.2d 656; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

Appellant contends that the oral charge of the court was erroneous in many respects. We do not agree.

The trial court gave a very comprehensive charge on murder in the first degree, murder in the second degree, and manslaughter in the first degree. He charged the jury fully on the law of self-defense even though under the evidence in this case appellant was the aggressor and was not free from fault in bringing on the difficulty. The Court also charged the jury on the law dealing with a killing done in the heat of passion. Under the facts as developed in this case we think the oral charge was most favorable to appellant.

The evidence discloses that, after appellant was told by his wife that the deceased had, made improper advances to her, he drove for miles looking for the deceased and the time lag was more than an hour before he found the deceased. That he was mad and sought to avenge his feelings can be fairly inferred from his own statements and actions.

It is settled law in Alabama that exceptions to the Court’s oral charge must be made in the presence of the jury and before they retire to deliberate on their verdict. Owens v. State, 53 Ala.App. 553, 302 So.2d 240; Evans v. State, Ala.Crim. App., 338 So.2d 1033. The record clearly shows that appellant did not comply with the law in the foregoing cases.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Freddie WHITE v. STATE.
    3 Div. 770.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.

      Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Susan B. Bevill, Asst. Atty., Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of robbery of Joe Johnson and sentenced to fifteen years imprisonment.

Joe Johnson and Barney Morrison testified that on the morning of October 15, 1976, while they were at a boat landing warming some stew and cleaning a painter’s truck owned by Morrison, by whom Johnson was employed as a painter, two black men “jumped down” and one of them beat Johnson with a stick. Johnson said that nineteen dollars and fifty-five cents was taken out of his pocket, four or five ribs fractured, some of his teeth knocked out and he went to a hospital for treatment. Morrison testified that the two men beat Morrison and Johnson with hickory sticks, went through Morrison’s pocket, took his watch, his knife and his billfold with fifteen dollars. Neither Johnson nor Morrison could identify defendant as one of the robbers.

Donald Stokes testified as a witness for the State. He said he was in the United States Army stationed at Ft. Lee, Virginia. He had known appellant and one Leonard Earl Johnson about three years and about six years respectively. He said he was with them on the morning of October 15,1976, in an automobile driven by defendant. He said, “We were trying to find someone to rob.” The automobile was stopped down close to the river landing. Freddie and Leonard said, “we are going to get them.” They picked up a stick and a pipe. At that time, the witness said:

“A I told them I was fixing to go.
“Q What?
“A I told them I was fixing to leave.
“Q And where if anyplace did you go, please?
“A I went down the tracks toward my home.
“Q Okay. Did you get home?
“A Yes.”

According to the witness, he saw the two about 7:30 or 8:00 o’clock that night, at which time they “got a little high” on marijuana, which he admitted he frequently smoked, and had sold. He was eighteen years of age. He said he had not seen the metal pipe until he saw them get out with the pipe at which time he got out and started home.' He said that in talking with Freddie that night Freddie said, “We got them.”

Detective Ricky Mobley testified that on February 11,1977, he interviewed appellant at the Montgomery County Jail. He advised him of his constitutional rights by using the Standard Rights Form, which appellant signed. The form contained a plenary statement of rights, including his right to an attorney at public expense. He did not ask for an attorney and stated that he understood his rights, and after signing the form, appellant without pressure of any kind exerted upon him stated that he and Leonard Johnson had robbed two painters at the river boat landing; they were cooking at the time. He said Leonard did the beating and he held one down. He was thereafter on the same occasion asked if he would give a written statement, and he stated he would, but, according to Detective Mobley, after appellant had written approximately one paragraph, he said, “I am not going to give you anything in writing until I see my attorney.” Appellant then threw the paper away. At that point the interview was terminated.

Appellant testified that he was thirty-four years of age, had been married six years and had five children, but that he and his wife had been separated about five years. He said he was living with his mother-in-law in Montgomery, but that in October 1976 he was working in Cleveland, Ohio. He denied taking any part in the robbery. He further denied admitting the robbery as related by Detective Mobley. His version of the interview with Detective Mobley was to the effect that he was not mistreated in any way, he was given the rights form and signed it, but that he told Detective Mobley that he didn’t want to make a written statement but “would wait until my lawyer was present.” He said that after he stated that he “wanted a lawyer,” Detective Mob-ley stopped talking with him.

In the Waiver of Rights form, which defendant signed, it was stated:

“I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

The position is taken by appellant that Donald Stokes was an accomplice to any robbery that was committed and that there was no corroborative evidence connecting defendant with the commission of the offense, except the testimony of Detective Mobley as to appellant’s admission, which appellant argued should not have been admitted in evidence. The State takes the position that Stokes was not an accomplice and that the admission or confession of appellant was properly admitted in evidence.

The test in determining whether a witness is an accomplice is whether the witness could have been indicted and convicted of the particular offense, either as a principal or an accessory. Allen v. State, 290 Ala. 339, 276 So.2d 583 (1973); Dykes v. State, 30 Ala.App. 129, 1 So.2d 754 (1941).

There may be justification for strong suspicion that Stokes aided or abetted the robbery, but, in the absence of other evidence, a judgment of conviction of Stokes could not be upheld. It may be difficult to reconcile his statement that they were looking for someone to rob and his other testimony to the effect that immediately upon his observance of the action by the other two he left the scene. There is no evidence that he said or did anything in the way of encouragement or assistance. There is a basis for a surmise that Stokes may have been covering for appellant and Leonard Johnson, but the undisputed evidence is to the contrary, and Stokes’ explanation is as consistent with innocence as it is with guilt of the robbery, either as a principal or an accessory.

In reliance upon Williams v. State, 52 Ala.App. 406, 293 So.2d 324 (1974); Cameron v. State, 49 Ala.App. 482, 273 So.2d 242, cert. denied 290 Ala. 363, 273 So.2d 248 (1972); Floks v. State, 49 Ala.App. 101, 268 So.2d 881 (1972); Knowles v. State, 44 Ala. App. 545, 215 So.2d 727 (1968); Harris v. State, 32 Ala.App. 519, 27 So.2d 794, cert. denied 248 Ala. 389, 27 So.2d 797 (1946); Biddle v. State, 20 Ala.App. 49, 100 So. 572 (1924), it is stated:

“It has been held that non-accomplice evidence of an admission or confession by the accused is sufficient corroboration of an accomplice’s testimony to sustain a conviction of the accused.” Gamble, McElroy’s Alabama Evidence, § 300.01(9) (1977).

There is a dispute between appellant and Detective Mobley as to whether appellant confessed, but the evidence is undisputed that at the time Detective Mobley said appellant confessed, he had been fully apprised of his rights, had voluntarily and intelligently waived them and that whatever statement he made was voluntary. Detective Mobley’s testimony as to what he said was properly admitted in evidence.

On the trial, defendant objected to the question asked Joe Johnson as to how long after the robbery he was in the hospital, but the objection was not made until after the witness had answered, “One week.” The particular question was asked in connection with other questions relative to the extent of the injuries inflicted upon the victim in the course of the robbery, to which there was no objection. For reasons in addition to the untimeliness of the objection, the trial court properly overruled it.

The phrasal averment of the indictment, “by violence to his [the victim’s] person” or its equivalent, expressed alternatively in the indictment, is a material averment thereof. The extent of a victim’s injuries is some evidence of the extent of the violence, a matter which the trier of facts should consider on the issue of defendant’s guilt or innocence. The trial court was not in error in overruling defendant’s objection. Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Brown v. State, 120 Ala. 342, 25 So. 182 (1899). In Brown, it is stated:

“Robbery is an offense against the person as well as against the property of the party robbed, — against the person by violence, and against the property by manu-caption with felonious intent of taking the property. James v. State, 53 Ala. 380, 381; Thomas v. State, 91 Ala. 34, 9 So. 81. There was no error, therefore, in allowing the prosecutor, Hicks, to show the nature and extent of the violence to his person, employed by the robber.” 120 Ala. at 348, 25 So. at 184.

Our review of the record convinces us that it shows no error prejudicial to appellant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Junior EASTERLING v. STATE.
    3 Div. 781.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    B. F. Lovelace, Public Defender, Brew-ton, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Unlawful possession of controlled substance Pentazacine (Talwin); three years.

On April 22, 1977, Junior Easterling appeared with appointed counsel in the circuit court of Escambia County and pleaded guilty to the charge of unlawful possession of controlled substance.

A colloquy between the judge and the appellant occurred and during this exchange, all the appellant’s rights as per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, were explained to him with the exception of his right to confront his accusers.

In view of the trial court’s failure to admonish the appellant on this right, we are compelled to reverse this case on authority of Boykin, supra.

REVERSED AND REMANDED.

All the Judges concur.


text:
    James R. STEMPLE v. STATE.
    4 Div. 552.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.

      John E. Byrd, of Byrd, Carter & Smith, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the grand larceny of a tractor and hay bale loader. In accordance with the verdict of the jury the trial judge sentenced the appellant to eight years’ imprisonment.

Officer Gerald Monday of the Houston County Sheriff’s Department testified that while patrolling in Houston County during the early morning hours of February 5, 1977, he heard a conversation between two men on his C.B. radio. Officer Monday identified one voice as that of the appellant and stated that the appellant was talking to a man whom he called “Doug”. The conversation regarded a trailer-tractor rig being unable to turn around on a dirt road. By monitoring the C.B. radio transmission of the appellant and “Doug”, Officer Monday was able to locate and follow the trailer-tractor rig after it had entered Highway 231 South. Loaded on the trailer-tractor rig were a farm tractor and hay bale loader.

Emmett Ammons, a policeman for the City of Dothan, answered Officer Monday’s call for assistance. Monday then stopped the pickup truck which Douglas Odom was driving and aided Officer Ammons in stopping the trailer-tractor rig driven by the appellant.

After being stopped, the appellant told Officer Monday that he was from Biloxi, Mississippi, where he was a “hauler for Clark Howling Hauling Company” and that he had been hired to haul this farm tractor.

In jail, the appellant told Lieutenant Joe Pitts of the Houston County Sheriff’s Department that he had been contacted at a lounge in DeFuniak Springs, Florida, by Bill Morrison who hired him for $250.00 to drive his (the appellant’s) semi-tractor trailer to Dothan, Alabama, and move a farm tractor approximately ten miles. Lieutenant Pitts testified that the appellant stated that he loaded the farm tractor onto the flat bed of his truck.

Floyd Owens testified that he was the owner of the farm tractor and hay bale loader found on the truck driven by the appellant. Owens left the tractor in a hay field on February 4th after finishing work. The evidence revealed that the fence around this field had been torn down in two separate places in the process of loading the tractor.

The appellant did not testify and called no witnesses in his behalf.

I

The appellant argues that the trial judge committed reversible error in denying his motion to quash the indictment which was based upon the failure of the court to grant the appellant a preliminary hearing as requested.

On February 22, 1977, the appellant was arraigned and pled not guilty. On February 25, a motion to quash the indictment was filed. While the failure to accord the accused a preliminary hearing can be taken advantage of by a motion to quash the indictment stating that ground, Wade v. State, 49 Ala.App. 601, 274 So.2d 626 (1973), the motion must be made before entering a plea to the same indictment. By pleading first to the" merits of the indictment, the appellant waived his right to move to quash. Oakley v. State, 135 Ala. 15, 33 So. 23 (1902); Whittle v. State, 205 Ala. 639, 89 So. 43 (1921); Johnson v. State, 134 Ala. 54, 32 So. 724 (1902); Wimbush v. State, 237 Ala. 153, 186 So. 145 (1939). There was no request to withdraw the plea of not guilty. Therefore the motion to quash the indictment was properly denied.

II

At trial, Officer Monday testified that he knew the appellant had heard him talk, and could identify one of the voices he heard over his C.B. radio as that of the appellant. On appeal the appellant contends that such voice identification was erroneously admitted because of the lack of a proper predicate, i. e., because there was no testimony that Officer Monday had heard the voice of the appellant prior to February 5, 1977, the night of the crime.

The only objection interposed at trial was made after Officer Monday identified the appellant’s voice and only on the ground that the question was leading. Matters not objected to in the trial court cannot be considered on the first time on appeal since review on appeal applies only to rulings invoked at nisi prius. Scroggins v. State, Ala.Cr.App., 341 So.2d 967, 971 (1976); Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958). It is not error to allow a witness to relate facts, over objection, which have already been related without objection. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975). Specified grounds of objection waive all grounds not specified and the trial court will not be put in error on grounds not assigned. Whiddon v. State, 53 Ala.App. 280, 299 So.2d 326 (1973). A trial court is required to pass upon grounds of objections which are announced and those omitted are deemed waived. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974).

Moreover this evidence was properly admitted notwithstanding the fact that Officer Monday never heard the accused’s voice before the commission of the crime.

“The general rule that a witness may not identify an accused by recognition of his voice, unless he has some basis for comparison of the accused’s voice with the voice he identifies as the accused’s, is satisfied if the witness acquires his knowledge of the accused’s voice after the event testified to by the witness, as well as before that time.” See 70 A.L. R.2d 995, 1002, citing McGraw v. State, 34 Ala.App. 43, 36 So.2d 559 (1948).

Ill

The appellant alleges that the trial judge committed error by failing to give defendant’s requested jury charge number 6. The written charge although contained in the record is not endorsed by the trial judge and gives no indication of whether it was given or refused. Without an endorsement a written charge is not properly before this court. Johnson v. State, 56 Ala. App. 627, 324 So.2d 341 (1975). Refused requested written charges are not subject to review when record does not show that judge marked them “refused” and signed his name on them. Strickland v. State, 269 Ala. 573, 114 So.2d 407 (1959); Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied, 291 Ala. 801, 277 So.2d 389 (1973).

IV

Defense counsel filed a motion for a new trial based upon the “newly discovered evidence” that the appellant’s life had been threatened. Allegedly this was the reason no case was presented by the defense at trial.

At a hearing on the motion the appellant testified that he “withheld everything” from his attorney because his life had been threatened. The appellant stated that Bill Meeks, the man who loaded the farm tractor on his trailer, threatened him after the tractor had been loaded. Meeks allegedly told the appellant “that I (the appellant) was in Houston County, and as long as I was there, to keep my mouth shut about anything that had gone on, or I would be — would probably not get back to Mississippi again”. The appellant further testified that he “found out that Lieutenant Pitts might be involved too”. Under questioning by the trial judge, the appellant admitted that at some point before his arrest he “knew” or “figured” the tractor to be stolen.

James Douglas Odom, a co-defendant who had already been convicted for the theft of the farm tractor, testified that the appellant had no prior knowledge that the tractor was stolen but was merely hired and sent by Cliff Clark to haul three tractors to North Carolina. The appellant contended that he was merely an employee of Cliff Clark carrying out a job he was paid to do which was arranged between Douglas and Clark.

The requirements essential to the granting of a motion for a new trial on the basis of newly discovered evidence are that the newly discovered evidence (1) has been discovered since the trial, (2) could not have been discovered before trial by the exercise of due diligence, (3) is material, (4) is not merely cumulative or impeaching, and (5) will probably change the result if a new trial is granted. Hodge v. State, 32 Ala.App. 283, 26 So.2d 274 (1946); Taylor v. State, 266 Ala. 618, 97 So.2d 802 (1957). It is undisputed that the evidence was not “newly discovered” but was within the knowledge of the appellant at the time of his trial. It is fundamental that the accused cannot withhold evidence at trial, and upon conviction seek a second chance before another jury by then producing that evidence. Evidence is not newly discovered where the accused knew of it but did not mention it to his counsel. Mealer v. State, 242 Ala. 682, 8 So.2d 178 (1942); Cox v. State, 19 Ala.App. 557, 98 So. 915 (1924).

We have carefully reviewed the evidence presented on the motion for new trial and find that the trial judge was correct in denying that motion. The evidence does not reveal that the appellant was in such real, apparent, or imminent danger at the time of his trial as to explain or justify his failure to present any defense at all. The evidence presented by the appellant is highly suspect inasmuch as appellate courts look with disfavor on a motion for new trial for newly discovered evidence. Hodge v. State, 32 Ala.App. 283, 26 So.2d 274, cert. denied, 248 Ala. 73, 26 So.2d 278 (1946); Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, cert. denied, 295 Ala. 430, 325 So.2d 539 (1975). This new evidence, even if presented at trial, would probably not change the verdict in this case. Finally justice and fairness do not dictate that a new trial be granted.

We have searched the entire record and found no errors substantially affecting the rights of the appellant. Therefore the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Joey THOMPSON v. STATE.
    4 Div. 567.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.

      Timothy B. Loggins, Opp, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent below and here, was indicted by the grand jury for carnally knowing Phillip T. Davis. The plea was not guilty. The verdict was guilty. Sentence: eight years imprisonment.

The alleged offense was committed in the county jail in Covington County where the alleged victim, Davis, and the defendant, Thompson, were prisoners along with several other inmates. The time of the incident was the night of August 10, 1976.

The details of the offense were sordid in character and repulsive in tone. Ronnie Madison witnessed the pederasty that was forced on Davis according to the evidence of the State. Defendant and other prisoners forced him to first take a bath, and then to submit. Kenny Williams applied grease to himself and penetrated Davis while other men watched. Afterwards, defendant forced Davis to perform an act of fellatio on him by threatening to “bust his head” with a pipe. Davis testified at length against defendant.

Defendant testified and denied that he committed the offense charged. He admitted that he cooperated in forcing defendant to take a bath and cleanse a foul body odor that was very unpleasant and obnoxious.

The evidence for the State and for defendant was in sharp conflict. Three inmates testified that Davis had offered them sexual favors if they would give him enough money to return to California. The jury resolved the issues in favor of the State. The Court correctly denied defendant’s motion to exclude the evidence.

I

Pertaining to defendant’s motion for a mistrial, we quote from the record to a conversation between deputy sheriffs Don Harrell and Jim Stallings. The questions were propounded to Davis by the District Attorney. We quote:

“Q. You talked to Don Harrell and Jim Stallings this morning?
“A. It is possible, I imagine so, they brought me over here.
“Q. Didn’t you talk to them right back there in that hallway?
“A. Yeah, I talked to them.
“Q. What did you tell them?
MR. SIKES: We are going to object to this, now.
THE COURT: Yes, I sustain the objection.
“A. I’m not going to answer it to start with.
“Q. As a matter of fact, you told them that you would come in here and plead guilty .
MR. SIKES: We object to this, and move for a Mistrial.
THE COURT: I sustain the objection and deny the Motion for a Mistrial, and I will instruct the Jury to disregard that last question. It was not answered, it would be very improper for you to consider that in your deliberations in this case, and I will instruct you at this time to not consider that at all in your deliberations. And I will admonish the District Attorney not to bring that subject up again.
“MR. SIKES: We are going to renew our Motion for a Mistrial. That is so flagrant, I don’t think the Jury can take it out of their mind.
“THE COURT: Deny the Motion.”

We think the Court’s prompt and vigorous instructions to the jury were sufficient to remove injurious effects that the unanswered question might have had on the jury. The motion for a mistrial interposed by defendant was properly overruled.

II

We now advert to a second motion for a mistrial arising as follows:

“MR. McGILL: It takes a pretty good stomach for a person to get up here and testify against a man that he may be in Atmore with next week in the same cell block and you know what happens down there.
“MR. SIKES: We object to this line of argument as highly inflammatory talking about you know what happens down at Atmore.
“THE COURT: Yes, sustain the objection.
“MR. SIKES: And move for a Mistrial.
“THE COURT: Deny the Motion for a Mistrial.
(After which Mr. McGill continued with his closing remarks to the Jury in behalf of the Plaintiff.)”

We think the District Attorney was trying to impress the jury that the victim, Davis, was serious in his testimony and was telling the truth, although he might incur some danger at Atmore prison if sent there.

The Court sustained defendant’s objection and correctly overruled his motion for a new trial.

III

Appellant contends that the following argument of the District Attorney was improper. We quote:

“MR. McGILL: Think about that happening to you or your son.
“MR. SIKES: We object to that.
“THE COURT: Yes, sustained.”

The Court, we note, properly sustained the objection which was sufficient to obviate prejudice.

IV

The final insistence of error is predicated on the following argument of the District Attorney, Mr. McGill. We quote:

“MR. McGILL: Why didn’t the Defendant have those other eighteen over there . . . as a matter of fact, why didn’t he have one of those four. He has got them back here in this room, but you didn’t hear them.
“MR. SIKES: We object to that, now, they are as available to him now as they are to us and he knows why they are not here to testify. He has got them in custody over there.
“MR. McGILL: That is not why they are not testifying, Your Honor, he has them subpoenaed.
“THE COURT ^Overruled.”

The above colloquy does not inform the Court clearly who “those other eighteen” were or what relation they had to the case, what they knew, or if they knew anything that would be helpful to either side. Their availability to either or both sides is not clear from the record. In view of this state of the record we are unwilling to say that the Court’s ruling prejudiced the defendant.

We have carefully read the entire record along with the excellent briefs filed by appellant’s counsel and the assistant attorney general. Both of them devoted considerable effort to present their contentions and to be helpful to this Court. But, we conclude that the trial was free of rulings that were prejudicial to defendant.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Roosevelt HALL v. STATE.
    8 Div. 957.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    Earl D. McNeal, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and his punishment was fixed at thirteen years’ imprisonment in the penitentiary. At arraignment, in the presence of his counsel, appellant pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The evidence is conflicting and this fact makes and presents a jury question. The evidence adduced by the State is not disputed that, on the night of December 31, 1976, the victim was robbed of approximately $2,000.00. The conflict arises by virtue of the fact that appellant’s defense was an alibi.

The victim of this robbery, Mrs. Inez Hallman, testified that she lived at 2506 Hicks Avenue in Huntsville, Alabama, which was approximately one block from the Tom Thumb Beverage Store where she was robbed around 8:00 p.m. on December 31, 1976. She stated her husband had just returned from this store and had forgotten to get her some cigarettes. She got in the car and drove to the store and purchased four packages of cigarettes and a double Coca Cola. She parked almost in front of the store which was well lighted. When she returned to her car, she noticed several black males around the car and one was in the back seat. Another black male was attempting to get in her car and she screamed at him to, “Get out of my car.” This man who was subsequently identified as appellant said, “What was that you said, what was that you said?” Appellant had a cut-off stick in his hand and approached Mrs. Hallman and tried to hit her on the head with the stick. He then grabbed her and knocked her to the pavement, put his knee on her stomach, and snatched her purse from her hands. During this struggle she and appellant had moved toward the front of the store and she got a good look at his face in the light from the store. When she was knocked to the pavement, she sustained injuries to-her knees. She dropped the bottle she was carrying and it broke, cutting her on the arm.

After appellant got possession of her purse he started running and Mrs. Hallman went in pursuit of him, but she could not catch him. During the struggle to keep her purse another woman drove up and saw the black male take the purse from Mrs. Hall-man and she, too, chased the man, but when he went behind a building she returned to the store and waited for the officers to arrive.

Mrs. Hallman gave the police a description of her assailant and the clothing he was wearing, including a “boggan” on his head with bright stripes. A few days later Mrs. Hallman was taken to the police station where she viewed several mug shots but she did not identify appellant as his picture was not in this group. Several days later she viewed twelve to fourteen photographs and identified appellant as the man who knocked her down and snatched her purse.

Appellant was arrested and taken to the station house. He was given the Miranda rights and warnings and said he understood his rights. He also signed a waiver of rights form. A police officer informed him that the victim of the robbery had identified his photograph as the robber. Appellant protested that she had picked out the wrong photograph and insisted that the officers bring the victim to the station house for a face to face confrontation. The officers got the victim and brought her to headquarters and put her in a room separate and apart from appellant. The officer told appellant the victim was present but told him he could change his mind about a face to face meeting with the victim. Appellant again insisted that she be brought into the room to see if she could identify him. The officer then brought Mrs. Hall-man into the room and, as she stepped into the room, she immediately pointed her finger at appellant and said, “That is him.” Appellant started crying and shaking, and Mrs. Hallman left the room. At trial she made a positive in-court identification of appellant as the man who robbed her.

Appellant was then further questioned about the robbery and admitted he was in on the robbery but that he was not going to take the blame alone. He then named two blacks who were in on the robbery. He told the officers that his part of the proceeds of the robbery was about one hundred dollars.

The officers picked up the two men named by appellant as participants of the robbery and brought them to police headquarters. When these two men were taken to the same room where appellant was seated, appellant recanted his previous statement that he was in on the robbery and denied any knowledge of the robbery and also denied the other two men named by him as participants were present at the time of the robbery. The other two men were released and appellant was placed in jail.

The victim’s husband verified the testimony of his wife that she had over two thousand dollars in her purse the night of the robbery. He stated that he had just sold an automobile for $1,875.00 cash which he gave his wife together with his paycheck in excess of $150.00.

Officer Thomas A. Miller of the Huntsville Police Department testified that he investigated the robbery. He further testified that on January 2, 1977, he was dispatched to 121 D Mason Court where he talked to a Mrs. Betty Rodgers. Mrs. Rodgers turned over to him a change purse containing Mrs. Hallman’s driver’s license and some other identification papers and picture which had been found scattered along a railroad track behind Mason Court. He stated these were located about one mile and a half from the scene of the alleged robbery.

Police Officer Daniel Della-Calce testified that he arrested appellant on Sunday morning, January 9, 1977, and on the way to the Police Department he gave him the Miranda rights and warnings. He said that, around 8:30 on that Sunday morning, he got a telephone call and the call was from Roosevelt Hall; that he met him on Bell Avenue and picked him up in his personal car. He further testified that, on January 5, 1977, he got a call from the hospital that •someone was hurt and he went to the hospital and ascertained that the injured person was Roosevelt Hall. He stated that he had a conversation with Hall at that time and that he was not under arrest, nor was he a suspect in the robbery of Mrs. Hallman. He further testified that appellant voluntarily told him that he personally had been robbed and that $1,900.00 had been taken from him.

On cross-examination of appellant he was asked if he made the statement to Officer Della-Calce that he had been robbed of $1,900.00 and he denied making any such statement.

On rebuttal the State recalled Officer Della-Calce and the proper predicate was laid for impeachment purposes. The officer was asked if appellant made the statement to him on January 5, that he had been robbed of $1,900.00 and he answered, “Yes, he did.”

As above indicated appellant set up the defense of alibi and he called three witnesses to support his alibi saying that they were together most of that day and that appellant never got out of the sight of one or more of his alibi witnesses and specifically that they were together at a club around 8:00 p.m. when the alleged robbery occurred. There were some inconsistencies of the testimonies of these alibi witnesses in that some said they had been drinking beer, wine, gin, and bourbon during the entire day, while others said that they had not had anything to drink at all.

When the State rested its case in chief, appellant made a motion to exclude the State’s evidence on the ground that a prima facie case had not been made out. This motion was overruled.

Appellant assigns as one of his errors, seeking a reversal of this case, that the trial judge erred in overruling his motion for a new trial. We have carefully searched the record for such motion and ruling. Nowhere in the record does there appear a motion for a new trial and of course no ruling thereon.

Appellant claims that the in-court identification of appellant was tainted by the photographic display made to her by the police officers and he was denied due process of law. We do not agree.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Court said:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. * * *”

We hold that the photographic identification procedure followed in this case was not so impermissibly suggestive as to have led to the likelihood of irreparable misidentifi-cation.

Moreover, at appellant’s own insistance, there was a face to face confrontation between appellant and the robbery victim in which she unequivocally identified appellant as the robber. Following this identification appellant confessed to his involvement in the robbery and implicated two others. The fact that he subsequently recanted his confessory statement did not in any way lessen the positive initial identification.

Alibi evidence presents a jury issue and the jury resolved that issue against appellant. Price v. State, 53 Ala.App. 465, 301 So.2d 230; Smith v. State, 55 Ala.App. 26, 312 So.2d 598.

Appellant contends that the trial court erred in allowing the State to recall Officer Della-Calce to impeach appellant’s denial that he told the officer that he had been robbed of $1,900.00 a few days prior to his arrest on the charge of robbing Mrs. Hallman. We answer this insistence of error by merely stating that the admission or rejection of rebuttal evidence is within the sound discretion of the trial court. Green v. State, 51 Ala.App. 654, 288 So.2d 191; Burt v. State, 54 Ala.App. 1, 304 So.2d 243; Logan v. State, 291 Ala. 497, 282 So.2d 898.

In his confessory statement appellant told one of the investigating officers that his part of the fruits of the robbery was $100.00. He told Officer Della-Calce that he had been robbed of $1,900.00. Mrs. Hall-man testified that she was robbed of approximately $2,000.00. We hold the trial court did not abuse his discretion in permitting the impeaching testimony on rebuttal.

Finally, appellant claims that the trial court erred in overruling his objection to the prosecuting attorney’s closing argument. The argument is not set out and we do not know precisely what the prosecuting attorney said. The record reveals the objection and the ruling thereon as follows:

“We object to the Prosecutor stating if she hadn’t seen him she may not be here to tell us. If she hadn’t seen him in the car she may not be able to tell us what happened. The inference being she might have been killed. We object to that as prejudicing the jury.”
“The Court: Overruled.”

Assuming the above was the argument of counsel for the State we do not think it constituted reversible error. We think it was more like the argument in Elston v. State, 56 Ala.App. 299, 321 So.2d 264, wherein the prosecutor said:

“. . I submit to you ladies and gentlemen of the Court (sic) that we were lucky no one was hurt in the robbery, and the next time that might not be true.”

In Elston, supra, this Court said:

“This argument was reasonably calculated to call the jury’s attention to the serious aspect of robbery and to appeal for law enforcement. It was within the realm of a legitimate appeal to the jury.”

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

AFFIRMED.

All the Judges concur.


author: ENGLAND, Justice.

text:
    JOHN CAVES LAND DEVELOPMENT COMPANY et al., Petitioners, v. Kenneth SUGGS et al., Respondents.
    No. 50081.
    Supreme Court of Florida.
    May 5, 1977.
    Rehearing Denied Dec. 14, 1977.
    Harry D. Robinson and Edna L. Caruso, Montgomery, Lytal, Reiter, Denney & Sear-cy, West Palm Beach, for petitioners.
    Carl M. Mathison, Jr., Palm Beach, for respondents.
   ENGLAND, Justice.

This case is before us on a petition for a writ of certiorari to the Industrial Relations Commission. Kenneth Suggs died in a 1973 industrial accident for which his parents claimed dependency benefits of $80.00 weekly. The Judge of Industrial Claims denied the claim, but the Commission reversed. We have jurisdiction to review that decision under Article V, Section 3(b)(3) of the Florida Constitution and Section 440.27, Florida Statutes (1975).

The only legal issue properly before us is whether a Judge of Industrial Claims must expressly state in his order that the testimony of a particular witness is not credible in cases where he reaches that conclusion. We find no such requirement in the law.

As we recently explained in Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976), each Judge of Industrial Claims must reduce to writing only his findings of “ultimate facts”. The specificity required in his findings is dependent upon the complexity of the factual dispute, but the Commission may remand any case for greater explication when, in its judgment, additional findings are required for its review. An order of remand will not be disturbed by this Court unless the Commission’s remand can be shown to be arbitrary.

In this case the Commission expressed doubt as to the basis of the Judge’s decision not to award dependency benefits. It noted that the only legally sufficient basis for denial was a rejection of the testimony of Kenneth Suggs’ parents, but it declined to assume such a rejection:

“The Order obviously implies some doubts but for this Commission to interpret the Judge’s language into a finding that the testimony was not believable would, in our judgment, be far more speculation than we are permitted or that good appellate review requires.”

The Commission chose to assume that the Judge had believed the testimony, and it found his order denying benefits without support in the record. We hold this was error under the circumstances of this case.

Questions regarding credibility of witnesses are solely within the province of the Judge of Industrial Claims and his resolution of those questions will not be reversed unless clearly arbitrary and unreasonable. Grillo v. Big “B” Ranch, 328 So.2d 429 (Fla.1976). The Commission recognized that the order of the Judge in this case “implies some doubts” and it determined on its own evaluation that the Suggs’ testimony “was not of the highest order”. Nonetheless, the Commission reversed the decision of the Judge, apparently because the Suggs’ testimony was not controverted. This feature of the Commission’s decision was error. As we explained in Tatum v. Leon Moss Dairy, 339 So.2d 639 (Fla.1976) (another decision rendered after the Commission’s ruling in this case), a fact finder is not required to accept uncontroverted testimony which he does not believe.

Under the circumstances of this case, the Commission could have remanded the case and asked the Judge of Industrial Claims to clarify the basis of his order, or it could have accepted as an ultimate fact the obvious doubt of the trier of fact as to the credibility of the Suggs’ testimony. It could not, however, determine the credibility of witnesses from a cold record on the sole ground that the Judge did not expressly state that he disbelieved the testimony of particular witnesses.

The writ of certiorari is granted, the order of the Commission is quashed, and this case is remanded for further proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and SUNDBERG and KARL, JJ., concur.

ADKINS, BOYD and HATCHETT, JJ., dissent.

      . In their briefs the parties have principally argued the sufficiency of the evidence and, tangentially, the credibility of the witnesses. We do not view these questions to be properly before us. The Commission applied the legal standards set forth by this Court in MacDon Lumber Co. v. Stevenson, 117 So.2d 487 (Fla. 1960), and no one suggests that the MacDon case should be reconsidered. Whether the evidence was sufficient to meet the applicable legal standard is a question primarily for the Commission to decide on the basis of the findings of the Judge of Industrial Claims. Chicken 'N' Things v. Murray, 329 So.2d 302 (Fla. 1976). This Court will not resolve sufficiency of the evidence issues unless intertwined with, and incidental to, important issues of law requiring resolution by this Court. See, for example, Sherrill v. Fuchs Baking Co., 327 So.2d 222 (Fla.1976); Mahler v. Lauderdale Lakes Nat’l Bank, 322 So.2d 507 (Fla.1975).

      . § 440.25(3)(c), Fla.Stat. (1975). The Commission did not have the benefit of our Vargas decision when it acted in this case.

      . We note that the Commission remanded for further fact finding as to the level of financial dependency. It would have been appropriate under these circumstances to combine instructions to the Judge of Industrial Claims on remand and direct the financial fact finding only if the error perceived on review was clarified in favor of the claimants; that is, if the Judge did believe the Suggs’ to some extent so that dependency was in fact proved.