author: BOOKOUT, Judge.

text:
    Six LEWIS, alias v. STATE.
    6 Div. 104.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Rehearing Denied Aug. 24, 1976.
    Fite, Davis & Fite, Hamilton, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Manslaughter, first degree; sentence: five years imprisonment.

The appellant was indicted for first degree murder, the State alleging that he unlawfully with malice aforethought killed one Mary Lou Ritch, by shooting her with a gun or rifle. This was the second trial of this case. The jury in the first trial was not able to reach a verdict and a mistrial was declared. Appellant plead not guilty, asserting self-defense.

Prior to trial, the parties stipulated that the gun to be introduced in evidence was the gun of the appellant, and that the appellant fired the gun that killed Mary Lou Ritch. The parties further stipulated that James Roland Ritch, the son of deceased who was not present at the second trial, but who was in the automobile with his mother when she was killed, if present at the trial, would testify that he, his uncle, his mother, and either three or four young children had lived in the home of appellant for several months prior to the shooting. The stipulation was also that they lived in the home of the appellant with the knowledge of the Department of Pensions and Security, and that there was absolutely nothing romantic between appellant and his mother. The parties further stipulated that if James Ritch were present, he would testify that prior to the date of the shooting, there had never been any hard feelings or any harsh words between him and the appellant, or between his deceased mother and appellant.

Roy Thomas, State Investigator, testified as to his investigation of the homicide. He testified that he found three 30-30 fired rifle shells at the scene. A 30-30 Winchester Rifle along with the spent cartridges were introduced into evidence.

The appellant testified that he had recently had a stroke and an operation, was 61 years old and weighed 125 pounds. After working the regular shift at the cotton mill where he was employed, he returned to his home and found it ransacked and several items stolen. He stated that he had left James Roland Ritch at his home and that when he returned, James was gone. He stated that he went then to Winfield to Mr. Harris’ store to buy some shells so he could go hunting. After leaving the store, he saw Mary Lou Ritch on her porch so he stopped and told her that her son had stolen some dynamite from him the night before and that he was going to have to turn him in, to which she asked him not to turn her son in, that if he did, it would ruin her.

The appellant said he then drove back to his home, got his gun and drove to Mack Crews’ home to go hunting. He stated that when he parked in Crews’ yard, an automobile drove up in which four men with long hair and Mary Lou Ritch were riding. He did not recognize any of the men, but he recognized the car and motioned for them to move on. When the automobile stopped, he told the men not to get out, that he did not want any trouble with them. He said that one of them started getting out the back door of the car, that at the time he had his gun down, thought it was pointing high, that he was looking at the man getting out of the back and meant to shoot over the top of the automobile to run them off. He stated that he did not know whether any of the men in the automobile knew that his house had been torn up the night before. After the shot was fired, the car drove off. He stated that at the time he shot, he did not know he had hit anybody. The stock of the gun was under his arm, and he thought he had shot above the car. He said he did not have any desire to shoot Mary Lou Ritch and that he would not hurt anybody unless he thought they were going to hurt him. When the appellant drove home, the sheriff was waiting for him and charged him with murder.

The only issue raised on appeal is that the trial court erred in allowing into evidence, over objection, “a gruesome picture [State’s Exhibit 9] of the head of the deceased, enlarged and in color, taken in the hospital several hours after the death of the deceased, the picture showing clotted blood, brains, scissors, a support for the head and other inflamatory objects.” Appellant submits that the photograph contained nothing which bore on any issue at the trial, the appellant having admitted previously that he had shot and killed the deceased.

Appellant states that he is fully aware that appellate courts of this state have been liberal in allowing the State to introduce gruesome photographs but that “these decisions were not intended to give the State blanket authority to use gruesome pictures for the single purpose of prejudicing a jury, whenever the picture bears on no issue in the case, and not taken at the scene of the event.”

The Supreme Court of Alabama, with this Court following suit, has again and again held gruesome photographs, properly identified and authenticated, to be admissible if they: (1) tend to shed light on; (2) strengthen, or; (3) illustrate the truth of other testimony. They are likewise admissible if they have a reasonable tendency to prove or disprove some material fact or issue in the case. Photographs of dead bodies have been admitted in evidence in various cases for the purpose of illustrating the location, nature or extent of the wounds; identifying the deceased, or; to show the location or position of the body. 6 Ala. Digest, Criminal Law <®=»438; 23 C.J.S. Criminal Law § 852(l)c. More specifically see the rules set out in this regard in: Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950); Grissett v. State, 241 Ala. 343, 2 So.2d 399 (1941); Maness v. State, 57 Ala.App. 431, 329 So.2d 120 (1976); Hurst v. State, 54 Ala.App. 254, 307 So.2d 62, cert. denied 293 Ala. 548, 307 So.2d 73 (1974); McHugh v. State, 53 Ala.App. 473, 301 So.2d 238 (1974).

In Baldwin v. State, 282 Ala. 653, 213 So.2d 819 (1968), Justice Merrill, after setting forth the above rules, held a photograph to be admissible which showed the face of the deceased victim showing the location of the wounds. However, he went on to say:

“The pictures depicted death but were not particularly offensive. The photograph of the whole body showed a few blood stains on decedent’s left cheek or jaw, and the other was a photograph of her bust with a probe inserted in the path of the bullet along the side of her cheek and jaw, and a bullet hole in the side of her chest.”

Unlike the photograph in Baldwin, the one in the instant case is particularly offensive, ghastly and gruesome.

In Alabama, where the jury sets the punishment in homicide eases, we have been extremely liberal in allowing photographs portraying the mutilated bodies of victims. This for the purpose inter alia of shedding light upon the viciousness of the crime, the depravity of the killer, the ferocity of the attack, and like circumstances which the jury may take into consideration in fixing punishment. We have not allowed a depraved and vicious killer to mitigate his horrible or animalistic acts by merely stipulating that the victim is dead and the cause of death. Such reasoning does not always apply in every killing, however.

In the instant case, the facts indicate no ferocious and premeditated assault upon the victim, and there was a stipulation as to the cause of death. The jury found appellant guilty of manslaughter in the first degree. Had the objectionable photograph been excluded from evidence, it is possible that the verdict may have been a lesser degree or even an acquittal. In any event, the reasoning and theory which has resulted in such a liberal policy in this state in the admission of photographs does not seem to fully apply in the instant case. Yet, in applying the rules set forth by our Supreme Court, we must condone admission of the photograph if it meets any of the standards hereinabove enumerated.

The State contends the photograph was introduced in connection with the testimony of State Investigator Roy Thomas, and was illustrative of his testimony to show the nature and position of the wound inflicted and the relative position of the parties.

Alabama has not adopted the test for admissibility prevalent in California, i.e. whether the probative value of the photograph is outweighed by its probable prejudicial effect on the jury. 23 C.J.S. Criminal Law § 852(l)c, footnote 82.65-82.70.

While we find very little probative value in the instant photograph, the purpose for its introduction meets the most bare minimum standards for admissibility pursuant to our Supreme Court cases. If ever the Court should decide to review the ultra liberal rule in this state on admission of gruesome photographs, this case would furnish it ample opportunity to do so.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    In re Six LEWIS, alias v. STATE of Alabama. Ex parte Six Lewis, alias.
    SC 2031.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    James R. Davis, Hamilton, for petitioner.
    None for respondent, the State.
   FAULKNER, Justice.

Petition of Six Lewis, alias for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Lewis, alias v. State of Ala., 339 So.2d 1035.

WRIT DENIED.

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


text:
    Eddy ORFORDA, alias v. STATE.
    6 Div. 134.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Rehearing Denied Aug. 24, 1976.

      Williams, Williams & Williams, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Unlawful possession of marijuana for personal use; sentence: nine months imprisonment in the Tuscaloosa County Jail and a fine of $750.00.

The above charge arose out of an incident which occurred at the Memorial Coliseum on the campus of the University of Alabama on October 1, 1972. Appellant was a member of a rock music group performing at the University. The case was tried by the trial judge without a jury, by agreement.

Kathy Plowman, a witness for the State, testified that she and three female companions, while walking near the east side of Memorial Coliseum, observed the appellant sitting on the ground eating grapes and playing a guitar. The appellant spoke to the girls, showed them a small pouch and asked if they would like some marijuana or hashish.

Kathy Plowman stated that they had previously seen narcotics agents, which they recognized, circling the coliseum in an automobile. At the time the appellant offered them the marijuana, the witness saw the narcotics "agents drive around the corner of the building. The girls then began running away. The officers then stopped the girls, put them in their car and questioned them as to why they were running. Kathy Plowman stated that the officers took their purses and dumped them on the ground and searched them. The girls had no narcotics in their possession.

The officers’ attention was directed toward the appellant, who was still sitting on the ground a short distance from the group. One of the officers noticed a white bag or pouch on the ground a few feet from where the appellant was sitting. Officer Adams showed the pouch to Kathy Plowman, and she pointed to the appellant and said, “that belongs to him.” The evidence showed the pouch contained marijuana.

The appellant was placed in the police car and was advised of his constitutional rights at that time. Bryan Lane, manager of the rock group, then came to the police car and asked the appellant, in the presence of the officers, if the appellant had thrown the marijuana into the bushes, and he answered that he had. Officer James Adams testified as to the inculpatory statement made by the appellant at that time and also stated that the appellant replied to Lane, “I’m sorry, Bryan, I never meant to do anything to get the group in trouble.”

Officer Adams further testified:

“Bryan was upset, he was — visibly upset about the whole ordeal; and he told Eddy, he said, T warned ya’ll about using dope — ’ either in the country or the state, I just don’t remember what term he used. ‘Because it can get you in trouble.’ Well, Eddy again said that he was sorry, but he didn’t mean to get the group in trouble. And he repeated that statement or the gist to that statement several times, more than once and more than two or three times, while we were at the jail.”

Beverly Jean Watkins, testified for the appellant, stating that she had seen him in New Orleans the day before his arrest in Tuscaloosa. She said appellant had eaten dinner with two people named Sunshine Bear and Song Bear who told her that they had placed a large amount of a drug called “P.C.P.” in his food and that they had injected him with a large dose of L.S.D. after he had passed out. The trial judge reserved ruling on the admissibility of such testimony after the State objected to its hearsay nature.

Depositions from two British psychiatrists, Doctors Higginson and Sergeant, were admitted in evidence. They stated that appellant suffered from an “L.S.D. psychosis” upon his return to the United Kingdom on October 8, 1972. The depositions stated that appellant’s condition fluctuated from rational to psychotic. In the medical opinions of the psychiatrists, appellant was suffering from such psychosis on October 1. Also, counsel for appellant read selected portions of the depositions to the trial court in support of his contention that appellant was unable to form a specific intent to commit the offense. The prosecution likewise read portions of the deposition to the court to rebut the appellant’s contention in that regard.

I

Appellant argues that the testimony of Kathy Plowman was inconsistent and unclear; that she had poor recollection and was evasive; and that her prior record substantially impeached her as a witness. Those are jury-type arguments in their nature, more appropriate for consideration of the trial judge than for an appellate court. Inconsistencies in testimony go to the believability of that testimony. A prior conviction, likewise, has a bearing on the believability of the witness, but does not mean that her total testimony must be disregarded. The trial judge, sitting without a jury, was able to weigh those factors. He could have disregarded Kathy Plowman’s total testimony, or any part thereof. His decision, like that of a jury, will not be overturned where there is an inference which could be drawn from the evidence upon which he could base his finding of guilt.

Title 15, § 322, Code of Alabama 1940, establishes the scope of review on appeal from a non-jury, criminal case. In Stephens v. State, 50 Ala.App. 244, 278 So.2d 245 (1973), we stated:

“The appellate courts by authority of this section have the right to review the findings of a trial court sitting without a jury. However, where the evidence is heard orally by the trial judge, his findings have the weight of a jury verdict and will not be disturbed on appeal unless palpably wrong, unjust or contrary to the great weight of the evidence. Kelly v. State, 273 Ala. 240, 139 So.2d 326; Cooper v. State, 33 Ala.App. 407, 34 So.2d 188. In Norille v. State (1901), 131 Ala. 35, 31 So. 19, the Supreme Court of Alabama held that where a criminal case is tried by a court without a jury and there is no agreed statement of facts or any special finding of the facts by the judge, and no request for such finding, the conclusions of the judge upon the facts stand as a verdict of the jury and will not be revised on appeal.
“The court becomes the trier and finder of the facts from the evidence. He then becomes the sole and exclusive judge of the evidence, of its weight and sufficiency and he is the sole and exclusive judge of the credibility of the witnesses. It is he — not us — who had the opportunity to see the appearance and demeanor of the witnesses.”

Likewise see Gordon v. State, 54 Ala.App. 537, 310 So.2d 257 (1975).

Kathy Plowman’s accusation against the appellant, coupled with his statement of an inculpatory nature to Bryan Lane, if believed by the trier of the facts was sufficient to support the finding that the appellant was in possession of marijuana.

II

Appellant contends that Kathy Plowman’s accusation against him should have been inadmissible because it was made prior to her being advised of her right to remain silent. He further contends that, “no effort was made to inform Bryan Lane, who questioned Orforda in the presence of Officers Adams and Tucker that Orforda had the right to remain silent, and that any responses to questions posed by Lane could be used against Eddy Orforda at his trial.” Neither of these contentions bear any weight.

The rights enunciated in Miranda, v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), deal with the protection against self-incrimination accorded an accused, “while in custody at the station or otherwise deprived of his freedom of action in any significant way.” The Miranda warning does not apply to a witness making accusations against another party. The statement by Kathy Plowman was not self-incriminating; it incriminated another party, Eddy Orforda.

Likewise, the appellant’s statement to his manager, Bryan Lane, was not the result of interrogation by law enforcement officers. The appellant was in custody at the time and had been given the Miranda warning prior to his conversation with Lane. Beecher v. State, 288 Ala. 1, 256 So.2d 154 (1971); Truex v. State, 282 Ala. 191, 210 So.2d 424 (1968).

There is no requirement in the Miranda decision that police officers inform friends of an accused that the accused has a right to remain silent, before the friend is permitted to have a conversation with the accused. Here, the appellant had been apprised of his right to remain silent, and it is immaterial whether Bryan Lane knew that the appellant had been given such warning prior to Lane’s conversation with him.

III

In Carr v. State, 43 Ala.App. 642, 198 So.2d 791, cert. denied 281 Ala. 716, 198 So.2d 798 (1967), this Court stated:

“The question of insanity at the time of the commission of a crime is a matter to be determined by the jury from a consideration of all the evidence. The defendant in this case is presumed to be sane, and the burden of establishing his insanity to the reasonable satisfaction of the jury rests upon him. Title 15, Sec. 422, Code of Alabama 1940. See Boyle v. State, 229 Ala. 212, 154 So. 575; Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. den. 260 Ala. 699, 71 So.2d 107. In the Pickett case, supra, the cohrt said: “ ‘Even undisputed expert medical evidence is not conclusive upon the jury, but must be weighed like other evidence, and may be rejected by the jury. Hockenberry v. State, 246 Ala. 369, 20 So.2d 533; Fitzhugh v. State, 35 Ala.App. 18, 43 So.2d 831, certiorari denied 253 Ala. 246, 43 So.2d 839, certiorari denied 339 U.S. 986, 70 S.Ct. 1007, 94 L.Ed. 1388.’ ”

The testimony bearing upon the possible insanity of the appellant came from the hearsay testimony of Beverly Jean Watkins, that two people named Sunshine Bear and Song Bear told her that they had injected appellant with a large dose of L.S.D. shortly before his trip to Tuscaloosa. The trial judge had every right to disregard such rank hearsay.

The other evidence concerning the appellant’s sanity appears in the depositions of Doctors Higginson and Sergeant. The trial judge, sitting as a trier of the facts, had a right to consider that the examination of the appellant by the psychiatrists took place in the United Kingdom several days after the date on which the crime was allegedly committed.

The expert testimony was that the appellant’s condition fluctuated from rational to irrational. The trial judge had every right to believe that at the time of the commission of the offense, the appellant was rational, after reviewing the surrounding circumstances, i. e. his apology to Bryan Lane.

Likewise, in the deposition of Doctor Hig-ginson, he was asked if the appellant’s apology to Bryan Lane (that he did not mean to do anything to get the group in trouble) would indicate any degree of awareness on the part of the appellant. Doctor Higgin-son stated that such sounded like a rational statement.

The appellant in the instant case did not establish his insanity at the time of the crime to the reasonable satisfaction of the trial judge. The judge was under a duty to weigh the expert medical evidence as he would any other evidence in the case which might have a bearing on the sanity of the appellant. Considering all the testimony as well as the depositions, we are of the opinion that the trial judge did not commit reversible error in deciding this issue adversely to the appellant. Breen v. State, 53 Ala.App. 588, 302 So.2d 562 (1974). A verdict of guilty concludes the issue of insanity at the time of the commission of the offense unless a preponderance of the evidence indicates palpable error. Such was not the case in this instance. Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, cert. quashed 292 Ala. 745, 293 So.2d 489 (1973).

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


text:
    In re Eddy ORFORDA, alias v. STATE of Alabama. Ex parte Eddy Orforda.
    SC 2040.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Roger C. Williams, Tuscaloosa, for petitioner.
    None for the State.
   FAULKNER, Justice.

Petition of Eddy Orforda for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Orforda, alias v. State, 339 So.2d 1038.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Willie James JONES v. STATE.
    6 Div. 45.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Rehearing Denied Aug. 24, 1976.

      Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State.
   HARRIS, Judge.

Appellant was convicted of violating the Alabama Uniform Controlled Substances Act and sentenced to five years in the penitentiary. He was represented by retained counsel and upon being arraigned he pleaded not guilty. After sentence was imposed, he gave notice of appeal and his sentence was suspended pending appeal.

Officer James Chambliss was employed by the Birmingham Police Department and assigned as an undercover agent with the United Narcotics Detail Operations. He testified that on September 26, 1973, he went to the home of appellant at 1228 — 47 Street, North, in Birmingham, Alabama, and bought 25 capsules from appellant at $1.00 per capsule. He stated that he walked upon the porch and before he could knock, appellant saw him and invited him in the house. He told appellant he wanted to buy some “reds” and appellant told him he did not have any “reds,” but he had some “yellow jackets” that he would sell him. Appellant went into another room and returned with 25 yellow capsules and counted them for him. He gave the officer a piece of aluminum foil and the officer put the capsules in the aluminum foil and carried the capsules to the U.N.D.O. Office where he turned them over to Sgt. J. E. Smith. Sgt. Smith opened the aluminum foil and examined the capsules in the presence of Officer Chambliss. Smith put the capsules in a brown evidence envelope and sealed it. Chambliss initialed the seal with “J.C.” and Smith put his initials “J.S.” on the seal. Chambliss positively identified appellant in court as the man he bought the capsules from on September 26, 1973.

Chambliss further testified that while he was in the appellant’s house, he observed appellant at the kitchen table and he had some green grassy stuff that he was placing in bags. He was asked if he ever had occasion to see marihuana prior to this date and he answered that he had seen marihuana many times. He was allowed to testify over appellant’s objection that this substance appeared to be marihuana.

On cross-examination appellant’s counsel went into the grassy substance referred to as marihuana. He proved that Chambliss did not try to buy marihuana and did not arrest appellant for possession of marihuana. Further, that the witness did not testify before the grand jury that appellant was in possession of marihuana at the time he purchased the capsules.

Mr. Charles Wesley Smith testified that he was a Criminalist with the State Department of Toxicology and Criminal Investigation and was so employed in September of 1973, and at that time he had been with the Department about 18 months. He stated he had a degree in chemistry from Auburn University. He further testified that on November 27,1973, he received an envelope from Mr. Craig Bailey which contained 25 yellow capsules marked with the “Abbott” symbol and that these capsules were wrapped in aluminum foil. He stated that he had been trained in chemical analysis of narcotics and other substances and had been doing so for about 18 months. That he performed certain chemical tests on the capsules in the envelope. At this point the defense objected to the witness stating the results of the tests he made on these capsules on the ground that he was not qualified to testify as he was still in a training program and that it had not been shown that he was qualified to testify as an expert. The Court overruled the objection and Mr. Smith was permitted to testify as to the findings of his analysis of the capsules. He stated that he did several tests and determined that each capsule contained 100 milligrams of phenobarbital. He said phenobarbital is classified as a barbiturate and that phenobarbital is a controlled substance, and it is listed in the Alabama Uniform Controlled Substances Act.

On cross-examination Mr. Smith testified that while he was in a training program in 1973, he was qualified as a crime laboratory technician at the time these tests were run — that he was pretty much on his own. That he was a trainee in theory, a crime laboratory technician working under the supervision of another. He then went on to describe the type of tests he performed on the capsules.

From the record:

“A. Right. A color test, a Dili-Coppaniy color test, which is a preliminary test that indicates a barbiturate, not a specific barbiturate but a barbiturate is present; then an ultra-violet spectrophotometry examination which further reinforces that a barbiturate is present; the infrared spectrophotometry examination which is conclusive evidence that a barbiturate is present; in fact, phenobarbital.
“Q. Is that all it determined, that a barbiturate was present?
“A. No, the infra-red is specific for pen-tobarbital. The others are for a barbiturate only but the infra-red did easily differentiate between the types of barbiturates.”

The trial court then interrogated the witness and we take the following from the record:

“THE COURT: I have got one I just want to ask him. Is barbiturate the same as barbital?
“A. Generally, barbiturate refers to a salt of barbital.
“THE COURT: Well, I’m looking at Section 258. It lists barbital — 258 Subsection 35, under Schedule 4.
“A. I don’t know if I have that in this— yes, sir, that can be considered as meaning barbiturate, right. They are all different forms of the same base product. “THE COURT: I see. Now I want you to do this. You spoke of a visual test then you spoke of a color test and I wasn’t sure how you work or do the color test to ascertain whether this is barbital or a barbiturate, whatever you call it. “A. It is called the Dili-Coppaniy test. “THE COURT: What does it mean? I mean tell me about the test.
“A. It is the man that did it really; but what you use is a few drops of a solution made of Vioth of one percent cobalt acetate in methanol with 2/ioths of a milliliter of glacial acetic acid. This is in one of the solutions. You have another solution made of five percent isopropylidene in methanol. You put a little of both of these into a little depression well spot plate, scrape a little bit of the tablet or, in this case, squeeze a little bit of the capsule in there and a blue to bluish purple color is an indication that a barbiturate is present.
“THE COURT: All right. Then you spoke of an ultra-violet test. What is that?
“A. This involves taking a capsule and doing an acidic extraction to remove the barbiturate from these other filler materials if they are present. Then it is extracted into a solution put into this machine, an ultra-violet spectrophotometer. Ultra-violet light is beamed through and according to how much light is absorbed on different wave lengths that comes out on a spectrum like this — see here we’ve got 300 manometers and we’ve got peak absorbance of 254 and so on. That’s an indication a barbiturate is present. Then by making the solution basic and running it again, we get a peak shift which is a more conclusive indication that a barbiturate is present but it does not differentiate between types of barbiturates. So in a P.D.R. color test and a U.V. or ultra-violet there are indications that barbiturates are present. Then the last test is the infra-red spectrophotometry examination which involves taking the powder, extracting it and putting it in chloroform, evaporating the chloroform then you have a pentobarbital powder. Then you make this into a pellet and this solid, which looks like a tablet or something, except it’s almost clear is put in front of a beam of infra-red light and again, according to how much absorbance you get over different wave lengths of light, you get the spectrum. Then the spectrum is calibrated about a specific thing and then it is compared with known spectra in the literature for pentobarbital and a determination is made and it is specific for the particular barbiturate and is one of the most specific tests' known, the infra-red is.”

The evidence as to the custody and possession of the capsules unequivocally shows there is no missing link in the chain of identification. Identification and continuity of possession were sufficiently established, affording ample assurance of the authenticity of the capsule and the analyses conducted in the laboratory of the Toxicologist. Powell v. State, 47 Ala.App. 582, 258 So.2d 923; Dennison v. State, 259 Ala. 424, 66 So.2d 552; Green v. State, 42 Ala.App. 439, 167 So.2d 694.

Appellant contends that the person who conducted the laboratory analyses on the capsules was not qualified to render an opinion as to the contents thereof. We do not agree.

The criterion for the admission of expert testimony is that the witness, by study, practice, experience or observation as to the particular subject, should have acquired a knowledge beyond that of ordinary witnesses. Whether a witness is shown to possess the requisite qualifications is a preliminary question largely within the discretion of the Court. Kitchens v. State, 31 Ala.App. 239, 14 So.2d 739; Grant v. State, 46 Ala.App. 232, 239 So.2d 903; Woods v. State, 54 Ala.App. 591, 310 So.2d 891; Rupert v. State, 54 Ala.App. 578, 310 So.2d 501.

There was no error in allowing the undercover agent to state that the green grassy material he observed on the table in front of appellant “appeared to be marihuana.” Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538.

There was no error in the action of the trial court in excusing juror Jacobs over the objection of appellant. Mrs. Jacobs stated she had three small children at home and no one to care for them. As soon as this juror was excused another name was drawn from the jury box to take Mrs. Jacobs’ place and appellant was afforded the proper number of strikes. In Williams v. State, 51 Ala.App. 1, 282 So.2d 349, this Court held that the trial court has broad discretion in relation to excusing jurors for any reasonable or proper cause. We further held in Williams, supra, that a defendant has no constitutional right to a trial by any particular jury or jurors, but only a right to a trial by a competent and impartial jury. We hold the trial court did not abuse his discretion in excusing juror Jacobs.

Appellant testified in his own behalf and denied the testimony of the undercover agent that he sold the agent any capsules. This conflict in the testimony presented a question for the jury as to the guilt of the defendant. The jury resolved this conflict against appellant. Jones v. State, 54 Ala. App. 251, 307 So.2d 59.

During cross-examination of appellant the following occurred:

“Q. And isn’t it true you were pushing a lot of dope out there?
“A. No, sir.
“MR. PARKER: I move to exclude it.
“THE COURT: Overruled.
“MR. PARKER: I move for a mistrial.
“THE COURT: Overruled. Ladies and gentlemen, when I overrule, did I overrule? Or sustain? In any event, strike it from your minds, it is not material to this case.”

The question asked by the prosecutor was improper, but appellant answered the question negatively. A negative answer to an improper question does not constitute reversible error. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Stephens v. State, 250 Ala. 123, 33 So.2d 245; Leonard v. State, 36 Ala.App. 397, 58 So.2d 138.

At any rate the trial judge instructed the jury to disregard the prosecutor’s question.

Further, on cross-examination the prosecutor asked appellant if he had ever been convicted of a felony and before any objections could be interposed appellant answered, “Yes, sir.” Under Barnett v. State, 52 Ala.App. 260, 291 So.2d 353, this Court held that an objection after an answer is made comes too late.

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

We have repeatedly held that in reviewing the refusal of a motion for a new trial this Court will indulge every presumption in favor of the correctness of the decision of the trial court. Clark v. State, 54 Ala.App. 217, 307 So.2d 28; Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624.

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

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

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

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


author: MADDOX, Justice.

text:
    In re Willie James JONES v. STATE of Alabama. Ex parte Willie James Jones.
    SC 2032.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Arthur Parker, Birmingham, for petitioner.
    None for the State, respondent.
   MADDOX, Justice.

Petition of Willie James Jones for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jones v. State of Ala., 339 So.2d 1042.

WRIT DENIED.

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


text:
    George JAMES, Sr. v. STATE.
    1 Div. 677.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.

      J. D. Quinlivan, Jr., and Warren L. Finch, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Manslaughter, first degree; sentence: three years.

The appellant was indicted and tried for the murder of his wife, Lillie B. James. The sole question which need be decided on this appeal is whether the State proved the cause of the deceased’s death.

The evidence presented by the State on cause of death was sparse. Annie Mae Harris, the daughter of the deceased, testified that during the afternoon of October 6, .1974, the appellant and the deceased left together in an automobile. They had been arguing earlier, but appellant was acting normal when they left. Her mother went to the kitchen, got a knife and took it with her, however. When they returned, the appellant and his son brought the deceased into her house. The witness stated that her mother’s face was swollen and her mouth was bleeding. She said the appellant had blood on his clothes at that time. She said the appellant stated in her presence that the deceased had fallen out of the car, that he did not know what was wrong with her, that someone must have “doped her up.”

The witness said the appellant took her mother to the hospital from the house and that the next time she saw her mother was, “at the wake. It was on a Friday.” After further questions, she said she saw her mother in Hodges Funeral Home in a casket, that her mother’s eyes were closed and, “she was different.” She further said that she saw her mother buried in Sweetwater.

There is no evidence in the record relating to the death of the deceased other than the above statements given by her daughter. No one testified as to the date of death, and the daughter did not testify as to the date when she saw her mother in the casket or when she was buried.

At the end of the State’s case in chief, the defense moved to exclude the State’s evidence. From the record, the following occurred, in pertinent part:

“MR. FINCH: Judge, we would move to exclude the evidence on two grounds. One ground, they haven’t proved that Lillie B. James was killed, number one. Number two, that she was killed by George James. Number three, they haven’t proved a prima facie case in that they haven’t proved that unlawfully and they haven’t proved it was done premedi-tatively and with malice aforethought, and they have not proved that George James committed any act which was sufficient to cause death of this Lillie B. James, and further, the second motion is that this Lillie B. James is the Lillie B. James in the indictment.
“THE COURT: All right. The only thing that gives me any concern at all is that I don’t believe you have proven the cause of death. I don’t believe you have proven that she died as a result of that beating. I believe that’s the only thing you need to address yourself to.
“MR. HALE: Okay. Judge, as to the blows itself, with a fist and hand that that can be proven by circumstantial evidence. It can be proven obviously by someone who did not see her at the time this was going on.
“THE COURT: I apparently did ftot make myself clear. You haven’t proven that those blows caused the death.
“MR. HALE: Well, Judge, I don’t believe that the State has to negate everything. I think that we have to show that she was struck in the face and, for example, Judge, it can be a person who has an eggshell skull and — .
“THE COURT: All right. You’d better find a case to back you up because I’m about to take this away from the Jury. Because you haven’t proven that the blows that she received from the Defendant caused her death.
“MR. HALE: Well, Judge, Sergeant Taylor told you that this woman died due to, it could have been her face, by blows to the head.
“THE COURT: I don’t think you have proven that he hit her, or that he beat her up. And you have proven that she was buried, and we presume that she is dead. But you haven’t proven that those blows caused the death. Now that’s what I want you to show me some authority on.
‘MR. HALE: Well, Judge, I think you can infer from his statement that he knocked her unconscious. The fact that she was slobbering and blood was coming off of her — .
“THE COURT: Why is it that every other District Attorney brings a medical expert down here to testify to the cause of death?
“MR. HALE: Judge, we have not done that in this case and in this case right here, McDonald versus State, it was not done, Judge.
“THE COURT: If this is the case you are relying on, I am going to read it and I am going to rule on it. .
“THE COURT: I am probably wrong, but I am denying the motions.”

After the State had rested and the appellant’s motion to exclude had been denied, the defense then called the appellant to testify in his own behalf.

In considering the question as to whether the trial court correctly overruled the motion to exclude, we may only consider the evidence which was before the trial court at the time the motion was made. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968); Tooson v. State, 56 Ala.App. 613, 324 So.2d 327 (1975), cert. denied 295 Ala. 426, 324 So.2d 333. We are required to consider such evidence in its most favorable light for the prosecution. Womack v. State, 34 Ala.App. 487, 41 So.2d 429 (1949).

The District Attorney argued, above, that, “Sergeant Taylor told you that this woman died due to, it could have been her face, by blows to the head.” The record discloses that Sergeant Taylor was not allowed by the trial court to give an opinion as to the cause of death. He was asked, from his experience in observing people who had been beaten, if he had an opinion as to what caused the damage to the victim’s face. The defendant’s first objection was sustained. Sergeant Taylor was next asked if he had seen people who had been beaten about the face with hands and fists, and he replied in the affirmative. He was then asked, based upon his experience and in the light of such observations, if he had an opinion as to what could have caused the damage to the victim’s face. Over objection by the defense, he testified, “It could have been fists, it looked like heavy blows of some type.”

Sergeant Taylor testified that he was a detective sergeant with the Mobile Police Department. On cross-examination he stated that he was not a medical doctor. He stated that he did not know what caused the injury and that he could not tell the jury what caused it. On redirect examination, he was asked, “Sergeant Taylor, after you had an opportunity to examine the condition of Mrs. James’ head, did you form any opinion based upon her, upon your past experience with the Police Department, as to what could have caused the damage to her face?” The defendant’s objection was sustained and properly so.

Needless to say, a police officer is not qualified to testify as to the cause of death, absent some special qualification. See Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973) in which this Court, through Tyson, J., set out at length which lay witnesses have been held by Alabama decisions to be qualified to testify as to cause of death.

At the time the motion to exclude was made, the only testimony which in any way connected the appellant with the injury to the deceased was brought out through Police Sergeant Ralph Jordan reading a statement made by the appellant. In such statement, appellant stated that he and his wife had an argument in their automobile, that when he stopped, she jumped out of the car and they started “tussling,” that she pushed him down into some bushes and he thought she had stabbed him. He further stated that, “. . .1 stood up and hit Lillie B. four licks with my fist. I hit her on the side of the face and in the mouth and then I started slapping her in the mouth.”

In that statement, appellant related his conversation with a doctor at the hospital where he had taken his wife for treatment. Appellant said that he had signed some papers for the doctor to operate on his wife’s head. The doctor asked if she had ever been hit in the head before, and the appellant stated, “I told him, yes sir, that a lady hit her in the back of the head with a .38,1 told him that this was last year that she got hit with a .38. He told me he was going to have to operate and remove the blood clot from her brain, that this was the only way that he could save her life.”

Counsel for appellant argues that the only evidence connecting the appellant with the facial wounds to the deceased is the statement read into evidence by Officer Jordan. He contends that since the corpus delicti had not been proved at that time, it was improper to admit the purported confession, citing Reynolds v. State, 30 Ala.App. 256, 4 So.2d 201 (1941), and Arnold v. State, 30 Ala.App. 115, 2 So.2d 316 (1941), cert. denied 241 Ala. 245, 2 So.2d 319.

To prove the corpus delicti, it is not necessary that the State prove the death of the victim was occasioned by the criminal agency of the appellant. It is a well-settled legal principle that it is only necessary that the State show that the death was occasioned by the criminal agency of another in order to establish the corpus delicti. If the State had proved the death of the deceased, and that it was caused by the criminal agency of another, than the inculpatory statement of the appellant would be admissible.

Here, the testimony shows the appellant leaving with the deceased in an automobile and later returning her in a somewhat battered condition. His explanation was that she had fallen out of the car. Whether this is sufficient ground for the trial judge to determine that her death was by the criminal agency of someone is not necessary for us to determine at this time.

The State charged the appellant with second degree murder, alleging a specific quo modo, i. e. that he, “killed Lillie B. James, by beating her with his fists and hands.” To sustain a conviction, the State must prove that Lillie B. James is dead and that the cause of her death was by the appellant beating her with his fists and hands.

The State’s evidence shows: (1) On October 6, 1974, the deceased left her home in a car with the appellant and on returning some time later that date, deceased was observed to have suffered some serious injury to her face; (2) The appellant took the deceased to a hospital where she was apparently treated for her condition; (3) The daughter of the deceased saw her in a casket and saw her buried at some later unknown date; (4) The appellant made an inculpatory statement that he had hit the deceased four times in the face and slapped her in the mouth on October 6, 1974.

The State’s evidence fails to show any of the following: (1) When the deceased died; (2) What the cause of her death was; (3) Whether her facial injuries, apparently inflicted by the appellant, had anything whatsoever to do with her death.

There is a total absence of any testimony from either a physician or any other person qualified to express an opinion as to the cause of death. From aught that appears in the record, the deceased, between the time of the alleged beating and the time when her daughter saw her buried, could have been struck by lightning. The State contends that the corpus delicti may be inferred from its circumstantial evidence, thus enabling the inculpatory statement of the appellant to be admitted. Arguendo, assuming such to be the case, we are still left with only the fact that the deceased was beaten on October 6, 1974, and apparently died and was buried some time prior to the date on which her daughter testified, December 15, 1975.

Certainly, where a body has not been found, the courts have allowed the corpus delicti to be proved by circumstantial evidence. Likewise, where the cause of death cannot be medically determined due to the state of decomposition and putrefaction of the body, the courts have allowed cases to go to juries on circumstantial evidence. In most of those cases, the indictments have alleged that the cause of death or means of death was unknown to the grand jury. In those type situations, a specific quo modo is generally not alleged in the indictment.

The State’s brief cites three cases for the proposition that the cause of death may be inferred. Desilvey v. State, 245 Ala. 163, 16 So.2d 183 (1944); Cook v. State, 43 Ala.App. 304, 189 So.2d 595 (1966); Dawson v. State, 48 Ala.App. 594, 266 So.2d 806, cert. denied 289 Ala. 741, 266 So.2d 812 (1972). Cook is clearly inapplicable as there the cause of death was proved by testimony of a coroner. The dispute was over what caused the injury that caused the death.

Desilvey and Dawson, supra, are also inapplicable on their facts. In both cases, it was impossible to prove the cause of death directly as the bodies were too badly decomposed. The decompositions resulted because the bodies were hidden by the respective defendants.

The first step in a homicide case is to prove that the deceased died because she was killed. The causal connection between the deceased’s injuries and her death must be proved beyond a reasonable doubt and not by mere conjecture and speculation. Welch v. State, 45 Ala.App. 657, 235 So.2d 906 (1970). The proper method of proving cause of death is for the coroner or an attending physician to testify as to his opinion on the matter. Such an opinion should be based on an observation of the injury at the time of death. Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, cert. denied 294 Ala. 763, 317 So.2d 372 (1975).

The evidence regarding cause of death in Daniel v. State, 31 Ala.App. 376, 17 So.2d 542 (1944) was much more persuasive than that in the present case. There, an undertaker testified that it was her opinion that the death was caused by knife wounds observed on the deceased’s body. This Court held that an undertaker was not qualified as an expert on the question of the cause of death. Therefore, in the instant case, even if Officer Taylor had offered an opinion as to cause of death, such an opinion would have been inadmissible.

Although the State’s brief did not bring it to our attention, the transcript reveals that the prosecution used, as persuasive authority on the trial judge, the case of McDonald v. State, 56 Ala.App. 147, 320 So.2d 80 (1975).

It is necessary that we clearly distinguish the facts and decision in McDonald from the instant case. In McDonald, there was testimony from a companion of the deceased, that as they were walking down the street, a car drove up behind them. He heard someone yell his companion’s name and as he turned, he saw a gun in the driver’s window of the car, but could not see who was holding it or driving. He began to run and heard gun shots, the number of which he thought was three. He looked back up the street and saw a crowd had gathered and upon returning to the scene, he saw his companion lying face down. His companion had a hole in the back of his head, and there was a small amount of blood coming from the wound. He identified two persons he recognized in the car. After the shooting, he stated that he saw his companion’s body in the funeral home.

One of the occupants identified in the car also testified. He saw the appellant holding a pistol, leaning across the driver. He heard someone call out the deceased’s name, and he personally saw the appellant fire the pistol. He saw the deceased and his companion start running, at which time appellant fired two more shots.

Thus, in McDonald, we had two witnesses testifying as to the firing of a deadly weapon at the deceased and immediately thereafter, the deceased lying face down with a hole in his head. In comparison to the instant case, we believe a much stronger inference as to the cause of death can be drawn in McDonald from the use of the deadly weapon and the. immediate observation of the deceased. The cause of death was much more obvious from the testimony there than in the instant case.

Admittedly, McDonald, supra, allowed the issue of cause of death to go to the jury on inferences which could be drawn from circumstantial evidence. By the McDonald case, we did not and do not intend that it be used by prosecutors as a convenient shortcut in establishing the necessary elements in homicide cases. We wish to make it clear at this time that McDonald is the far outer limit to which this Court may be expected to go in this regard. The decision in McDonald is the holding in that case only, based upon the facts and circumstances of that case only and should not be construed by prosecutors or trial judges as a statement by this Court that the State no longer has to produce medical testimony to prove the cause of death in a homicide case.

There is not one iota of evidence in this case that the injuries inflicted by the appellant caused the deceased’s death. There is no showing of why an attending physician or the coroner was not called to testify. Such a showing is incumbent on the State before it is allowed to prove the cause of death by inference. See: Lowery, supra.

Conjecture and supposition are not sufficient to prove cause of death. The appellant’s motion to exclude the State’s evidence should have been granted. Appellant is, therefore, due a new trial.

REVERSED AND REMANDED.

TYSON and HARRIS, JJ., concur.

DeCARLO, J., concurs in the result.

CATES, P. J., not sitting.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2103.
    Supreme Court of Alabama.
    Dec. 10, 1976.
   FAULKNER, Justice.

WRIT DENIED, Ala.Cr.App., 339 So.2d 1047.

All the Justices concur.


author: DeCARLO, Judge.

text:
    Grover McCORVEY v. STATE.
    3 Div. 341.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.
    George W. Harris, Birmingham, for appellant.

      William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

This is another case growing out of the January 18, 1974 prison riot at the Atmore Prison in Escambia County. As a result of the assaults, and the killing of a correction officer, Luell Barrow, other inmates who participated in the so-called “revolution,” have been tried and convicted.

Among the cases reviewed by this court, involving other inmates are: Harris v. State, Ala.Cr.App. [Jan. 20, 1976]; Johnson v. State, 335 So.2d 663; and Heard v. State, 335 So.2d 679 (hereinafter referred to as Harris, Johnson and Heard.) Although the facts concerning this appellant’s complicity in the stabbing death of the correction officer differ slightly from those in Harris and Johnson, they are almost the same. Only the pertinent facts will be outlined in an effort not to duplicate the facts already recited in Harris and Johnson. However, in order to maintain a coherent recapitulation, some facts must be repeated.

The scene of the murder was the prison segregation unit, which refers to that section of the prison compound set aside for inmates who break rules set down by the prison authorities.

It was during the riot that correction officer Luell Barrow was being held hostage by some rioting prisoners. Appellant was among that group.

Marion Harding, the warden at the At-more State Prison, was the first State witness. On the day of the disturbance, Harding received a communication that two inmates and two guards had been taken hostage. He went to the segregation unit where the hostages were held and spoke with inmate Dobbins. The conversation took place in the lobby of the unit, through a secured opening in a door leading into the area containing the cells.

Dobbins told the warden that: “ ‘ . the revolution is on.’ ”, and: “ ‘We are ready and willing to die but we are going to kill some of you pigs to start with.’ ” All of the inmates, the warden saw, were armed and inmates, Johnson, Moore and Dobbins beat on the window with knives. Johnson told the warden: “ ‘ . . we have already killed two people. We have killed some niggers and snitches, some house niggers and snitches and we are going to kill some of the mother f_pigs before this is over with.’ ” At that point, Dobbins ordered they be brought up so the warden could see that they meant business. Two inmates were dragged in front of the opening on a blanket. Both were bloody and appeared to be dead. Subsequently, Officer Dreadin was brought to the front, his hands were tied behind his back and he was held at the collar by the appellant, Grover McCorvey. Officer Dreadin was asked by the inmates, if he believed they would kill him and he replied: “ ‘Yes, I do.’ ” Then Officer Dreadin was taken back to the cell block by appellant and Johnson.

When cardboard was placed over the window, the warden moved to another window where he saw Officer Dreadin sitting on a food cart surrounded by appellant, Heard and Dobbins, who had knives in their hands. An inmate called to Warden Harding: “ ‘Come on in. We are ready to die. We are going to kill some you mother f_ too.’ ” When Harding tried to talk, Dobbins ordered that, “ ‘. . . one of those mother f_ pigs . . . ’” be brought to the front so the warden could see they meant business. It was at this time the warden heard some scuffling and Officer Dreadin call out: “ ‘Come on in and get us, they have killed one of us and they are killing me now.’ ” At that point, Officer Dreadin appeared at the door and Johnson, Heard and Moore stabbed him. Guards were ordered into the unit and the riot was quelled.

Jewell Thomas, an inmate, testified that during the riot, Dobbins came into his cell and asked him whether he was with them or not. After Thomas asked, in what?, Dobbins said: “ ‘kill these two bitches’ ” referring to Officers Dreadin and Barrow. When Thomas replied, “no way,” Dobbins stepped from the cell into the hall and called: “ ‘Give me five good brothers.’ ” Beasley, Wilson, Harris, Johnson and the appellant appeared and entered Thomas’ cell. All were armed with knives and Dobbins ordered Thomas to get on his knees. When Thomas refused, Dobbins stabbed him in the arm and then the others began stabbing him. When Thomas fell to the floor, the group left the cell. Thomas stated that during the period the inmates were out of his cell, he saw appellant and Johnson pass his cell, carrying bloody knives. When they returned they rolled Thomas in a blanket and dragged him to the front, along with another inmate, on another blanket. When they reached the entrance, Dobbins told the warden: “ ‘here is two of your snitches.’ ”

When the disturbance was over, Thomas was taken to a hospital where he was told he had been stabbed twenty-two times.

Arthur Dreadin, the correction officer held hostage, along with Officer Barrow, testified that just prior to the disturbance, he and Officer Barrow had completed the feeding of side two of the unit when Harris brought some trays into the unit and bumped Officer Barrow. When Dreadin turned, Johnson appeared and placed a knife at his throat while Harris held a pick at Officer Barrow’s back. The cell keys, along with the officer’s belongings, were taken. All the cells were unlocked in the unit.

After being bound, the officers were taken to the lobby and placed on a food cart. The inmates told thq officers they were going to cut their heads off and roll them down the hall, to show they meant business.

Dreadin stated that along with Harris and Johnson, Moore, Heard and the appellant were involved in taking them hostage.

When the officers were taken to the window where the warden was standing, appellant placed a knife at Officer Dreadin’s throat and held him up to the window by his collar. Afterwards, the officers were taken into cell one, which contained inmates Heard and Dobbins. Subsequently, Johnson, Harris and the appellant came to the cell. Officer Dreadin was standing immediately in front of Officer Barrow when he heard him groan and saw him slump to the floor. At that point, Dreadin shouted: “come and get us ‘They done killed Mr. Barrow and they [are] stabbing me.’ ” Dreadin ran from the cell to the front lobby. It was at this time that the warden led the guards into the hall.

After the riot, Dreadin was taken to a hospital where he remained for seven days. He had sustained twenty-six stab wounds, one of which collapsed his lung.

After a motion to exclude the State’s evidence was overruled, the appellant called Claude Harris, an inmate confined in the segregation unit at the time of the disturbance. On the day in question, after being released from his cell, Harris walked to the lobby and heard Dobbins making a request for certain people to be brought to the prison. He then walked to the back of the segregation unit where he saw the defendant for the first time that day. When Harris started to return to the lobby, he heard the guards entering the unit.

Larry Shepherd, another inmate in the segregation unit, was the next witness called. On the day of the riot he saw the defendant in the back hallway standing on a wooden crate, looking out a window. Shepherd was in the back of the unit about five or ten minutes before the guards came into the segregation unit. He admitted dragging Jewell Thomas to the front lobby but stated he did not see the appellant. Shepherd saw inmates with clubs, spikes and knives, but did not see the appellant with any weapon.

James D. White, a correctional counselor, saw appellant just before the riot ended. White was at the back door of the segregation unit when he saw the defendant stick his head around a corner in response to his announcement for inmates to come to the back lobby if they wished to surrender.

Appellant testified that on the day of the disturbance, he was confined in the segregation unit and had been there for almost a year after refusing to work, due to the fact he was under a doctor’s care. McCorvey was asleep when the riot started but the noise woke him. After standing in front of his cell for about five minutes, he went to the lobby where he saw Dobbins talking to the warden. Approximately five minutes later, he went to the back of the segregation unit where he climbed on a crate to be near a window in the event tear gas was thrown.

Appellant maintained he remained by the window during most of the disturbance. He denied holding Officer Barrow up to the window where the warden could see him, and denied going into the cell where Officer Barrow was stabbed. McCorvey said he did not stab Jewell Thomas and maintained he did not have a knife during the disturbance. He stated it was his intention to surrender, when he heard the guards come in with shotguns, and decided against it.

McCorvey also complained he was beaten and shot in the face during the disturbance.

Appellant contends the facts presented by the State were not sufficient to convict him under the theory he was an aider and abettor in Officer Barrow’s murder. After a close review of the testimony outlined above, we find the evidence was sufficient to present the question of appellant’s complicity to the jury.

Many other instances of error were raised in the brief by appellant, but all, with the exception of the sufficiency of the evidence question and four other issues, were addressed by this court in Harris, Johnson and Heard.

The four other issues peculiar to this case are:

I

First, the appellant maintains the withholding of statefnehts by White and Shepherd, violated hi§ fight to discovery and the court was in error in not granting a mistrial.

In our review of the record, we found the trial judge had prior to the trial, read all the statements taken by the investigators. Some seventy or eighty statements were made available to the trial court for examination. Nowhere is it argued that the statements of Officer White and inmate Shepherd were not among them.

Appellant argues the statements by White and inmate Shepherd were of an exculpatory nature, yet, this precise question was before the trial judge when he determined what statements would be turned over to the defense.

This court in Thigpen v. State, 49 Ala. App. 233, 270 So.2d 666, stated:

“ ‘. . . it is within the discretion of the trial court as to whether a prosecuting officer will be compelled to turn over to the defense written notes made by officers during the investigation of a crime.’ ”

This rationale covers the point of contention here. From what appears in the record, the exculpatory natures of White’s and Shepherd’s statements were considered by the court and the judge determined they were not of that persuasion. See also: Daniels v. State, 49 Ala.App. 654, 275 So.2d 169.

Without some showing of abuse in the court’s determination that they were not in fact exculpatory, we fail to see that error existed.

II

Appellant also insists his statement taken by a State investigator should have been turned over to him and the failure to produce it was a violation of his due process right to fundamental fairness.

It does not appear, from what we can glean from the record, to be a statement as such, adopted or signed by appellant. The so-called statement seems to be the product of an investigator’s interview with appellant. A substantial portion of it was denied by the appellant and the rest was said to be the answers of the investigator, not those of the appellant.

From our examination of the transcript, this seems to be a part of the investigator’s product in the investigation and not a subject of discovery under Thigpen v. State, supra.

III

Appellant complains his challenge for cause to a prospective juror should have been sustained. Counsel argues the intended juror knew Officer Dreadin, the only witness for the State, who placed the defendant at the scene of the crime.

To disqualify a prospective juror, he must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. Such opinion must be so fixed as that it would bias the verdict a juror would be required to render. Hammil v. State, 90 Ala. 577, 8 So. 380.

The grounds for challenge by either party to prospective jurors in civil or criminal matters are enumerated in T. 30, § 55, Code of Alabama 1940, Recompiled 1958. Under this section only that portion concerned with bias or prejudice would cover appellant’s intended challenge.

In the present case, the bias necessary to disqualify was only intimated. See: Hammil v. State, supra. It was not shown that the juror would, because of having known the witness, or due to this relationship with him, have been biased against this appellant.

The court made the necessary inquiry of the juror regarding this relationship and was told the fact that she knew Officer Dreadin, would not affect her judgment.

Under the foregoing we do not find error in the court’s ruling.

IV

Finally, it is asserted that the trial court erred when it denied the appellant adequate medical treatment and a hearing on his competence to stand trial. Counsel argues that appellant’s medical condition was such that without the medical care requested and a sufficient time before trial for recovery, his constitutional rights to due process and equal protection were violated.

About three months before the trial, the court received a motion from defense counsel requesting a medical examination and treatment for the appellant. Counsel alleged this was necessary to enable the appellant to be able to assist in his defense.

In support of this motion, counsel had a letter from appellant which stated in substance: That during the riot he had sustained numerous blows to the ribs and head and due to either the blows or a gunshot wound, he had suffered a fractured skull. Further, the medical treatment he had received had been inadequate and consisted of an x-ray, one visit from the doctor and some pills which appellant said were aspirin. Appellant insists that due to these injuries, he has poor eye-sight and suffers “Black-out spells” which causes his mind to go blank for days.

After receiving this motion, the judge made an inquiry concerning the appellant’s allegations of mistreatment to the Commissioner of Prisons.

In response to this inquiry, he received a letter from Dr. James B. Thomas, physician in charge of administering medical care for the Fountain Correctional Center and Holman Prisons. From the record we find that the court acted after receiving an affidavit from Dr. Thomas, who examined and treated the appellant. He stated that the appellant had not suffered a fractured skull and that he could not find any indication of a gunshot wound. Appellant was x-rayed and treated at the local prison hospital and after appellant’s release, either Dr. Thomas or a member of his qualified medical staff, saw him regularly. The doctor stated, in his opinion, appellant’s allegations were all in error and that the injuries received by the appellant would not cause “passing-out spells.” Also with this affidavit, were x-rays and an x-ray report which stated no fractures or abnormalities were visible.

It was on the basis of the affidavit and the x-ray report that the judge denied the motion and in our judgment, he was correct.

No error appears in the record.

AFFIRMED.

TYSON, HARRIS and BOOKOUT, JJ., concur.


text:
    In re Grover McCORVEY v. STATE of Alabama. Ex parte Grover McCorvey.
    SC 2095.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    William M. Dawson, Jr., Birmingham, for petitioner.
    None for the State, respondent.
   FAULKNER, Justice.

Petition of Grover McCorvey for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in McCorvey v. State of Ala., 339 So.2d 1053.

WRIT DENIED.

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


text:
    Johnnie Frank LLOYD, alias v. STATE.
    5 Div. 317.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.

      Robert J. Hooton, Roanoke, for appellant.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is the third appeal in this case. The first was from a conviction of murder in the first degree, which was reversed by reason of the insufficiency of the evidence. Lloyd v. State, 50 Ala.App. 646, 282 So.2d 85. The second was from a conviction of murder in the second degree, in which it was held that by reason of evidence on the second trial which was not presented on the first trial, a jury issue was presented as to the guilt of defendant, but undue restriction upon defendant in the cross-examination of a witness necessitated a reversal. Lloyd v. State, 53 Ala.App. 730, 304 So.2d 232, cert. denied 293 Ala. 410, 304 So.2d 235. The present appeal is from a conviction of murder in the second degree and a thirty-year sentence.

As the evidence on the third trial substantially embraces the evidence on the first trial and includes the additional evidence admitted on the second trial, and there is nothing in the evidence on the third trial to justify a different conclusion from that reached on the second appeal, we hold as we did then that the evidence was ample to support the verdict. Although not necessary to the determination just expressed, we observe also some evidence on the last trial that apparently was not presented on either of the former trials. It was established on the third trial that Robert Brooks, who testified on the three trials, bought a pistol from defendant a week before Luther Ledlow (victim named in the indictment) was killed. He paid defendant thirty dollars for it. The pistol was picked up by an officer the day after Mr. Ledlow’s death. It was a .38 caliber, the caliber of the bullets found in Mr. Ledlow’s body. An expert in ballistics testified that a firearm comparison test revealed that the weapon did not fire the bullets. According to defendant, he had brought the gun from Detroit. This standing alone did not tend to implicate defendant, but the jury could have well found that it did, when considered with defendant’s testimony, as narrated in the opinion on the first appeal. Therein he attempted to explain his possession of money, including a roll of bills, by saying that he had approximately sixty-five dollars when he left Detroit, he paid thirty-four dollars for a bus ticket, his brother paid him some money' for cutting cord wood, he spent a few dollars for small items such as a little liquor, a ride in a truck to Lafayette and taxi fare to West Point, but he said nothing about the relatively sizeable sum of thirty dollars he obtained for the pistol. There was also evidence on the last trial that the suitcase he had with him as he left the vicinity of the crime, which is referred to in the opinion on the first appeal, was left by him, empty at the time, with the persons who took him in the truck to Lafayette. Also worthy of note was testimony on the last trial to the effect that no fingerprints were discoverable anywhere in the residence-store in which Mr. Ledlow was killed. This suggests a sophisticated, rather than a naive, murderer. It was for the jury to say whether defendant possessed either characteristic.

We will consider appellant’s assertions of error in the order presented in appellant’s brief.

The court refused defendant’s requested written charge as follows:

“5. I charge you, Ladies and Gentlemen of the Jury, that if the evidence in this case presents no more than a strong suspicion of the Defendant’s guilt as charged in the indictment, then the evidence is only conjectural and you must find the Defendant not guilty.”

In some respects, the charge tracks language of the opinion in the first appeal of this case:

“Suffice it to say, the evidence here presents no more than a strong suspicion of appellant’s guilt as charged in the indictment. The guilt of the appellant under the evidence is conjectural.”

There is a noticeable difference however. What is meant by one’s guilt being conjectural is clear. What is meant by the conjec-turableness of evidence is far from clear. The conjecturableness of the guilt of appellant on the first trial was not by reason of any conjecturableness of the evidence. We are not saying that even if the charge requested had been as clear as the language quoted from the opinion on the first appeal, there would have been error in the court’s refusal of the charge. When the evidence in a case presents no more than a strong suspicion of defendant’s guilt, when the guilt of the appellant under the evidence is conjectural, the requested general affirmative charge in favor of the defendant should be given. The court fully charged the jury on the matter of the burden of proof, the presumption of innocence, the necessity for proof by the evidence of guilt beyond a reasonable doubt and to a moral certainty, and in a given charge stated:

“2. I charge you Ladies and Gentlemen of the Jury that you cannot resort to speculation and conjecture in determining the guilt of the Defendant in this cause.”

There was neither error nor injury to defendant in the court’s refusal to give Charge 5.

Coroner A. C. Farrington, who had been coroner of Chambers County for twenty years, personally examined Mr. Ledlow the afternoon of his death and was allowed to testify, over the objection of defendant, that in Mr. Farrington’s opinion the death of Mr. Ledlow was caused by “internal hemorrhaging and shock as a result of gunshot wounds to the lefthand side of his body.” The cause of death can often become a troublesome medical question. A coroner of twenty years experience would not necessarily be qualified to testify as to the cause of the death of every person, but unquestionably the witness was qualified to testify as to the cause of death under the circumstances of this case. Hicks v. State, 247 Ala. 439, 25 So.2d 139; Smith v. State, 282 Ala. 268, 210 So.2d 826; Williams v. State, 255 Ala. 229, 51 So.2d 250; Cobb v. State, 50 Ala.App. 707, 282 So.2d 327.

The witness Robert Brooks lived about a half of a mile from Mr. Ledlow’s home and store. He testified that defendant came to his home about 9:00 A.M., that he left defendant’s home about 9:30 A.M., that about thirty minutes thereafter he saw defendant again close to the witness’ home. It appears that probably it was the State’s contention that it was during that thirty-minute period that Mr. Ledlow was murdered and defendant was endeavoring to show that it was not likely that defendant could have walked from the home of Brooks to the home of Ledlow and back and robbed and murdered Mr. Ledlow between the two times he was seen by Brooks. On cross-examination of Brooks, he was asked if it wouldn’t take “about twenty, twenty-five minutes to walk” from the witness’ house to Mr. Ledlow’s store. He was asked whether on a prior trial he had testified that it would take approximately “twenty, twenty-five minutes” to go from his house to Mr. Ledlow’s store, and he said, “I believe I could walk from there and back in twenty-five minutes.” Thereafter, Sheriff Morgan was called by the State as a witness. During his testimony he was asked whether he had walked the Ledlow-Brooks distance at a normal walk and how long it had taken him. To the question there was an objection on the ground that “This is a test run by a person not involved in the situation at a much later date.” The objection was overruled, and the witness’ answer was that it took him nineteen minutes to walk “from the home of Robert Brooks to the home and store of Luther Ledlow and back.” In our view, it is so well established, as a matter of common knowledge, that it wouldn’t take the average young man twenty or twenty-five minutes to walk one-half of a mile that it wasn’t necessary to show that the Sheriff in a normal walk walked twice that distance in nineteen minutes, which approximates one-half the rate of speed of a military march. The evidence was not subject to the objection assigned. There was nothing unfair or harmful about the experiment. There were probably some faster walkers on the jury.

“Out of court experiments are admissible where there is a substantial similarity between the essential conditions of the experiment and of the occurrence, and much is left to the discretion of the trial court in determining these similarities. Neelley v. State, 261 Ala. 290, 74 So.2d 436.” Madden v. State, 40 Ala.App. 271, 112 So.2d 796, cert. denied 269 Ala. 697, 112 So.2d 800.

Appellant complains that the witness Johnnie Walker, called by the State, was allowed to testify, over objection of defendant, that an incriminating statement was voluntary and spontaneous. The ruling was not made in the presence of the jury. The testimony referred to was during the voir dire interrogation of the witness out of the presence of the jury, in order for the court to determine the circumstances of the incriminating statement. It was a very lengthy interrogation. At one time during the direct examination, the court did, over an objection by defendant, allow the witness to say that the statement was voluntary. On cross-examination, also out of the presence of the jury, the witness testified in answer to a question by defendant that the statement was spontaneous. After the voir dire examination and after a ruling by the court adverse to defendant on the question of whether the State could proceed to show by the witness the statement of defendant and the jury had returned to the courtroom and the witness had been asked some questions by the State, the following occurred:

“Q State whether or not a spontaneous and voluntary statement at that time?
“MR. HOOTON: I object to that, if the Court please.
“THE COURT: What is the ground of your objection?
“MR. HOOTON: Well, if the Court please, for one thing it requires a conclusion of this witness and—
“THE COURT: —all right. Sustain the objection. Take a new question.”

In the voir dire of the State on the hearing out of the presence of the jury, the prosecution was endeavoring to show that the statement made by defendant was volunteered by him, that is, that he was not being interrogated at the time. It seems that it was in that context only that the word “voluntary” was used. At any rate, the evidence complained of was not for the jury. The ruling of the court on the volun-tariness of the incriminating statement was clearly influenced by the rest of the evidence on the hearing out of the presence of the jury and not on the choice of the word “voluntary” in the question to the witness or any conclusion of the witness in his answer. No error prejudicial to defendant occurred in connection with the admission in evidence of the incriminating statement.

Appellant also seeks a reversal on an asserted ground similar to the one made the basis for a reversal on the second appeal, i. e., an undue restriction upon defendant’s right of cross-examination of the witness Walker. On the last trial, however, the questions asked the witness on cross-examination were with reference to what someone else had told him that defendant had said and whether the witness had heard someone say something about Robert Brooks. These questions were objectionable as calling for hearsay testimony.

Finding no error in the record prejudicial to defendant and, as hereinabove indicated, that the evidence was sufficient to sustain the verdict of the jury, we conclude that the judgment should be affirmed.

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

AFFIRMED.

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

      . “I done killed me one white son-of-a- . and I’m going to get me some more.”, substantially the same as quoted in the opinion on the second appeal.


author: SHORES, Justice.

text:
    In re Johnnie Frank LLOYD, alias v. STATE of Alabama. Ex parte Johnnie Frank Lloyd.
    SC 2109.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Robert J. Hooten, Roanoke, for petitioner.
    None for the State.
   SHORES, Justice.

Petition of Johnnie Frank Lloyd for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Lloyd, alias v. State of Ala., 339 So.2d 1058.

WRIT DENIED.

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