text:
    Warren Curtis BOYKIN v. STATE.
    1 Div. 948.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.

      Lee B. Williams, Grove Hill, for appellant.
    William J. Baxley, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

On June 7, 1977, appellant was arrested for the murder of Leartis Dubose, Jr. Subsequently, on the same day appellant appeared before the District Judge in Washington County, at which time he signed an instrument waiving a preliminary hearing and was bound over to await action by the Grand Jury. Appellant was admitted to bail in the amount of $7,500.00 during the course of this preliminary examination and was released from custody on June 11,1977, having made bond.

Appellant was indicted by the Grand Jury of Washington County, October 6, 1977, for the first degree murder of Leartis Dubose. Appearing in the Circuit Court on October 25, 1977, with retained counsel, appellant was arraigned. At that time he entered pleas of not guilty and not guilty by reason of insanity to the charge against him.

On December 6, 1977, in the presence of his retained counsel, appellant entered a plea of guilty to murder in the second degree, following an extensive Boykin colloquy with the trial judge, all of which was reported by the Court Reporter. Sentencing was deferred until January 3, 1978, when appellant’s punishment was to be set at eighteen years imprisonment in the penitentiary, pursuant to a settlement offer from the District Attorney of Washington County.

On the day of sentencing, appellant filed a motion requesting permission to withdraw his guilty plea of December 6, 1977, and reinstate his original pleas. That motion is set out, in pertinent part, below.

“3. That Defendant’s case was set for trial Monday, December 5, 1977, and on said date and prior to said case being called for trial, Defendant had an epileptic seizure in the Courtroom and was removed by ambulance to Jackson Municipal Hospital, Jackson, Alabama, and was admitted to said hospital; that as a result of said seizure, Defendant’s shoulder was separated; that Defendant was treated by Dr. Charles E. May, a practicing physician at said hospital; that Defendant was given medication by Dr. May, including anesthesia in connection with resetting his shoulder; that Defendant was released from said hospital Tuesday, December 6, 1977, after receiving medication for pain and was told to return to Court; that there were negotiations between Defendant’s attorney and the State prosecuting attorneys resulting in an agreement for a plea of guilty with a sentence of eighteen (18) years in the penitentiary; that due to the epileptic seizure and shoulder dislocation, Defendant was in pain and in a highly nervous and emotional condition and his agreement to change his plea to guilty was not his free and voluntary act in that his mental and emotional conditions were not such that he could make a calm, deliberate and rational decision regarding a plea of guilty.”
“4. That Defendant received a severe head injury prior to the homicide with which he is charged and since said injury has been affected with periodic seizures and has been dependent upon his parents for counseling and advice; that he has attempted suicide subsequent to said injury and prior to the homicide.”
* * * * * *
“6. That the Defendant was on December 6, 1977, in such mental and emotional condition because of his illness and because of the medication for pain which had been administered to him that he could not rationally enter a plea of guilty with a full and complete understanding of the consequences thereof.”

Sentencing of appellant was then deferred, pending a hearing on the aforementioned motion, which was held on January-30, 1978. After hearing evidence on the questions raised by appellant, the trial court denied the motion and imposed a sentence of eighteen years imprisonment in the penitentiary. On February 27, 1978, appellant filed a motion for new trial, alleging, inter alia, that the trial court erred in denying appellant permission to withdraw his plea of guilty. The trial court denied this motion on March 21, 1978.

Subsequently, it having been determined that appellant was indigent, trial counsel was appointed to represent him on appeal, notice of which was timely given; and a free transcript was provided him.

A trial judge may permit a defendant to withdraw a plea of guilty to enter one of not guilty up to thirty days after judgment on the plea of guilty. Woodard v. State, 42 Ala.App. 552, 171 So.2d 462. However, it is within the sound discretion of the trial judge to allow withdrawal of a guilty plea, and his refusal to allow such a request will not be disturbed except where an abuse of discretion is shown. Dawson v. State, 44 Ala.App. 525, 215 So.2d 459, cert. denied, 283 Ala. 714, 215 So.2d 463; Malone v. State, 41 Ala.App. 230, 132 So.2d 749, cert. denied, 272 Ala. 706, 132 So.2d 752. Of course, if a defendant has not freely and voluntarily entered a guilty plea, the trial court has abused its discretion if it has denied the defendant permission to withdraw the faulty plea. Shellnut v. State, 43 Ala.App. 298, 189 So.2d 587, cert. denied, 280 Ala. 28, 189 So.2d 590.

To aid in a determination of the voluntar-iness vel non of appellant’s guilty plea, the evidence, where it is pertinent to his mental state at the time of his plea, adduced at the hearing on his request to withdraw the plea, is set out below.

Mattie Boykin testified that she was the mother of appellant, who was twenty-seven years of age and lived at home. On December 5, 1977, she was in court with her son waiting for his case to come to trial. At that time, appellant became ill and was admitted to Jackson Municipal Hospital for treatment by Dr. Charles E. May. Dr. May set appellant’s shoulder which was dislocated during the seizure appellant had at the courthouse. Appellant remained in the hospital overnight and was released to appear in court on December 6,1977. While at the hospital, Mrs. Boykin testified, appellant was given medication for pain. Appellant also took medication three times a day to prevent seizures. These seizures had begun about a year ago after appellant sustained a head injury from a fall out of a tree. After having a seizure, Mrs. Boykin testified, appellant “. . . don’t be normal. He just don’t be right is all I know how to tell you, anyway it bes a difference for several hours before he comes around like he’s supposed to.”

Mrs. Boykin further testified that she was present during plea negotiations on December 6, 1977. Appellant appeared to be more nervous than usual. Appellant’s father told appellant that he should take the settlement offer in order to “go on and get it over with.” Appellant, Mrs. Boykin testified, did not reply to these exhortations. Mrs. Boykin did not recall whether appellant ever agreed to plead guilty.

Appellant also testified that he had sustained head injuries about a year ago and that he had had seizures periodically ever since then. After having a seizure, appellant testified, he felt weak and depressed, it taking him “practically all day to get normal and back to myself.”

Appellant recalled having a seizure on December 5, 1977, and subsequently being in the hospital. Appellant remembered being on “high medication,” but did not know what time he was admitted or subsequently discharged. Nor did he remember what time he appeared in court the next day. Appellant testified that during the plea negotiations, his shoulder and head ached; he was “ready to go home . . ., and I wanted to leave.” At the time he entered the guilty plea, appellant testified, he was in pain and wanted to “get it over with." Appellant further testified that he was influenced by his father’s opinion that he should accept the settlement offer.

During cross-examination of appellant by the District Attorney, the following occurred:

“Q. Now, did he later come back in there and tell you that he had talked further with the State prosecutors and they would not accept a plea of guilty and an eighteen year sentence? Did you understand that?
“A. I think he and my father had a conversation. I wasn’t in it.
“Q. I understand you say he was talking to your daddy, but did you hear him talking?
“A. I heard him, yes, sir.
“Q. All right, and did you understand it?
“A. Yes, sir.
“Q. Do you understand based on what he was telling you that if you plead guilty that you would go to the penitentiary for eighteen years?
“A. Yes, sir.
“Q. Did you agree to that?
“A. Yes, sir.
“Q. You told Mr. Williams that you would agree to that?
“A. Yes, sir.
“Q. After you done that did you come out into the court room and stand up before Judge Kimbrough?
“A. Yes, sir.
“Q. Do you remember him asking you questions and explaining to you what you were charged with?
“A. Yes, sir.
“Q. All right, and you do remember him asking you questions?
“A. Yes, sir.
“Q. And do you remember him explaining to you what you were charged with?
“A. Yes, sir.
“Q. Now, when you answered Judge Kimbrough’s questions did you understand those questions?
“A. Yes, sir. Based about my knowledge I did, yes, sir.
“Q. When you answered the questions did you understand what you answered?
“A. Yes, sir.
“Q. In other words, if you said, ‘No, sir’, you knew that you were saying no, sir to that question, didn’t you?
“A. Yes, sir.
“Q. And if you said, ‘Yes, sir’, you knew you were saying yes, sir, to that question?
“A. Yes, sir.
“Q. Let me ask you if you remember this question that Judge Kimbrough asked you. ‘Do you understand that you are entitled to a trial by jury?’?
“A. Yes, sir.
“Q. Do you remember Judge Kimb-rough asking you that question?
“A. Yes, sir.
“Q. And that your answer was, ‘Yes, sir.’?
“A. Yes, sir.
“Q. Do you remember him asking you this question: ‘Do you understand that you have a right to confront your accusers in this case.’ That is the folks that were charging you with this crime? Do you remember him asking you that question?
“A. Yes, sir, but I don’t understand it.
“Q. ‘Do you understand that you have a right to confront the witnesses that are accusing you?’ Do you remember him asking you that question?
“A. Yes, sir.
“Q. And you answered, ‘Yes, sir.’?
“A. Yes, sir.
“Q. Do you remember him asking you this question, ‘Do you understand that you are not required to give any testimony against yourself?’? That means testify against yourself.
“A. Yes, sir.
“Q. And do you remember answering, ‘Yes, sir’ to that question?
“A. Yes, sir.
“Q. Let me ask you this question. Do you remember this question, ‘Do you understand that any plea you make in this case must strictly be voluntary?’?
“A. I don’t quite understand it.
“Q. Do you remember Judge Kimb-rough asking you, ‘Do you understand that any plea you make in this case must strictly be voluntary?’
“A. Yes, sir.
“Q. And do you remember you answered, ‘Yes, sir.’?
“A. Yes, sir.
“Q. Did you understand the questions that Judge Kimbrough asked you?
“A. Based upon my knowledge, I did.
“Q. All right, and did you understand the answers you gave him when you said, ‘Yes, sir.’?
“A. Yes, sir.
“Q. Now then, the next question Judge Kimbrough asked you was this, ‘To a charge of murder in the second degree, as based in the indictment, how do you plead, guilty or not guilty?’ Do you remember that question?
“A. Yes, sir.
“Q. Do you remember answering, ‘Guilty’?
“A. Yes, sir.
“Q. Did you understand that question?
“A. I didn’t quite, I was — I was mixed up.
“Q. Do you know what murder means?
“A. Yes, sir.
“Q. It means the unlawful killing or illegal killing of another human being, do you understand that?
“A. I understand it.
“Q. And that’s what Judge Kimbrough asked you about whether you was guilty or not guilty of killing somebody unlawfully?
“A. Yes, sir.
“Q. And you said you were guilty?
“A. Yes, sir.
“Q. All right, and did you understand that question?
“A. I understood it.
“Q. And did you understand your answer?
“A. Yes, sir.”

Dr. Charles E. May, whose qualifications were admitted by defense counsel, testified that he saw appellant as a patient on December 5 and 6,1977. At Jackson Hospital, Dr. May set appellant’s dislocated shoulder which resulted from a fall during a “Jacksonian” epileptic seizure. Dr. May also testified that he spoke with appellant on December 6, 1977, before he was discharged from treatment. Appellant spoke with Dr. May coherently and was oriented as to time and place. Dr. May testified that it was his opinion that as of the morning of December 6,1977, appellant understood what was “going on around him”; understood the difference between right and wrong; understood the difference between guilty and not guilty; understood the term “eighteen years in the penitentiary”; and if explained to him, would understand the meaning of murder. Dr. May further testified that any medication given to appellant would have no effect on appellant after twenty-four hours.

Appellant’s hospital records, admitted into evidence, show that he was admitted to the hospital on December 5, 1977, at 2:20 p. m., and discharged December 6, 1977, at 11:10 a. m. Those records further reflect that appellant was given no medication after 7:40 p. m. on December 5, 1977. That substance was Demerol, the effect of which, Dr. May testified, dissipated within four hours.

The testimony of Dr. May was sufficient for the judge to find that medication received by appellant at the hospital did not impede a rational choice on his part to enter a plea of guilty. U. S. v. Goodman (5th Cir., 1970) 432 F.2d 75. In Goodman, supra, the defendant had received an injection of morphine at 9:30 a. m. and entered a guilty plea at 2:30 p. m. The attending physician testified that the effects of the medication would have dissipated by 1:00 p. m.

Similarly, in Hanes v. State, 56 Ala.App. 711, 325 So.2d 219, cert. denied 295 Ala. 404, 325 So.2d 221, this Court held that the trial judge did not err in accepting the defendant’s guilty plea where it was undisputed that defendant knew right from wrong, and that he was able to communicate with his counsel and other witnesses.

From the evidence adduced at the hearing it does not appear that the trial court abused its discretion by denying appellant permission to withdraw his plea of guilty.

Since the guilty plea is valid, and was properly accepted by the trial court, the record is purged of any other error. Butts v. State, Ala.Cr.App., 346 So.2d 497, cert. denied, Ex Parte Butts, Ala., 346 So.2d 500. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Allen C. HURT, alias v. STATE.
    3 Div. 845.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
    L. Wayne Collier, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The forty-year old appellant was indicted and convicted for child molestation by fondling the penis of a male child under sixteen years of age. Section 13-1-113, Code of Alabama 1975. The trial judge sentenced the appellant to three years’ imprisonment.

Two questions are presented for review on appeal. Both stem from the improper comments of the Deputy District Attorney.

At the time of the crime Jerry was thirteen years old. On July 6, 1977, Jerry, his mother, his sister and her husband were spending the night at the home of his other sister in Woodmere, a residential section of Montgomery, Alabama. The appellant was a friend of the family and also spent the night because he had been drinking and did not want to drive. Terry Castleberry, a friend of Jerry’s mother and the appellant, was present during the evening but did not spend the night. Under the state’s evidence he was not present when Jerry was assaulted.

Jerry went to bed around ten o’clock that night but the adults stayed up until some time after midnight. They had been in bed only a few minutes when they heard Jerry crying for his mother. Running into his room they found Jerry sitting up in bed and the appellant in the room. Jerry testified that he was awakened by the appellant who had gotten in his bed and begun playing with his penis. The appellant had unbuttoned and unzipped Jerry’s trousers while Jerry was asleep. Jerry stated that when the appellant attempted to perform fellatio on him he tried to get up and the appellant slapped him. Jerry then cried out for his mother.

The appellant denied any improprieties with Jerry. He testified that he slapped Jerry because Jerry was going into his mother’s bedroom and make her stop sleeping with Terry Castleberry. Castleberry was allegedly in the penitentiary and did not testify.

On July 15, 1977, Detective Steve A. Ei-land, investigating a complaint of child neglect against Jerry’s mother, interviewed Jerry and those members of his family who were present on July 6th. However no one mentioned the homosexual assault. Only when Detective Eiland returned on July 21st were the details of the crime reported to him.

In rebuttal, Jerry testified that in June of 1977 he had gone to Florida with the appellant and been awakened during the night when the appellant was performing fellatio on him.

The jury found the appellant guilty as charged in count one of the three count indictment and requested that “the court intervene in this family situation to do what may be done in proper placement of the child in a suitable home environment.”

I

The appellant alleges that his motion for a mistrial was due to be granted because the Deputy District Attorney commented on the failure of the appellant to make a statement to the police following his arrest.

Under cross examination by the Deputy District Attorney, the appellant testified that he, together with his attorney and his father, voluntarily surrendered and turned himself in at the police station. Error is predicated on the following exchange.

“Q. Did you relate to the police at that time that you weren’t guilty?
“A. I signed no statement and answered no questions if that answers your questions — on the advice of my attorney.
“Q. You refused to answer any questions and refused to sign a statement—
“MR. COLLIER (Defense Counsel): Objection, Judge.
“THE COURT: Just a moment. Sustain the objection. Mr. Pool, you are out of bounds. The jury will disregard the question and any answer thereto.
“MR. COLLIER: Judge, at this time we move for a mistrial on the grounds that the silence of the Defendant when he has a right to remain silent is a guaranteed constitutional right and the fact that the District Attorney bringing it up is a matter that is so prejudicial that it cannot be erased from the minds of the jury.
“THE COURT: Motion denied.”

This court has recently held that the use of post arrest, post-Miranda warnings silence of the accused as evidence of guilt violates the due process clause of both the Federal and State Constitutions. Houston v. State, 354 So.2d 825 (Ala.Cr.App.), cert. denied, 354 So.2d 829 (Ala.1977). We specifically noted that:

“Counsel for the prosecution must scrupulously avoid all reference to or use of an accused’s assertion of his right to remain silent.” Houston, 354 So.2d at 828.

However a comment on or evidence of the post arrest silence of the defendant or his refusal to give a statement may not be ineradicable and may be cured by prompt corrective action by the trial judge. Houston, 354 So.2d 828. This is not “a bell once rung which cannot be unrung”, though this is the position advocated by a specially concurring opinion (Jones, J.) with regard to the prosecutor’s comment on the failure of the accused to testify at trial. Beecher v. State, 294 Ala. 674, 684, 320 So.2d 727 (1975).

Here, defense counsel’s objection was sustained and the prosecutor was reprimanded for asking the question. The jury was instructed to disregard the question and any answer. All of this corrective action was taken by the trial judge before any objection was made by defense counsel. The appellant had already responded to one objectionable question before the question finally objected to by defense counsel was interrupted by the trial judge. Ordinarily a belated objection to a question fails to protect a point for appellate review. Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966); Duff v. State, 40 Ala.App. 80, 111 So.2d 621, cert. denied, 269 Ala. 696, 111 So.2d 627 (1959).

The substance of" the response sought by the prosecutor in the objected to quéstion was already before the jury when objection was made. Generally a defendant cannot complain of the admission of improper evidence where he testifies to the same facts. Moss v. State, 146 Ala. 686, 40 So. 340 (1906); Myers v. State, 40 Ala.App. 617, 119 So.2d 102 (1960).

The granting of a mistrial is authorized only when “there is a manifest necessity for the discharge (of the jury) or when the ends of justice would otherwise be defeated”. Section 12-16-233, Code of Alabama 1975. It is within the discretion of the judge to determine whether or not these reasons, as fixed by law, really exist. Andrews v. State, 174 Ala. 11, 56 So. 998 (1911); Brewer v. State, 24 Ala.App. 410, 137 So. 454 (1931). On appeal that discretion will not be disturbed unless it has been clearly abused. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Harnage v. State, 49 Ala.App. 751, 274 So.2d 356, cert. denied, 290 Ala. 367, 274 So.2d 356 (1972).

In this case there was no abuse of discretion. The actions of the trial judge were immediate, responsive, conscientious, and deserving of emulation. This matter was not so prejudicial that it could not be erased from the mind of the jury. Therefore the denial of the motion for mistrial was without error.

II

The appellant also alleges that the trial court committed error to reverse in overruling defense counsel’s objection to the prosecutor’s accusation in closing argument that defense counsel “dreamed up” the appellant’s defense. From the record:

“MR. POOL (Deputy District Attorney): Lo and behold, after Wayne Collier talks for 15 minutes he comes up with a brand new defense—Allen Hurt was too drunk to form the intent to molest this child. If you believe he went in the bedroom and you believe he unbuttoned the boy’s pants and he unzipped them and reached down between his legs, if you believe that then you have got to believe he was too drunk to know what he was doing. Allen Hurt says he was washing dishes and cooking chicken that night. That’s what Allen Hurt says and his lawyer dreams up if he can form the intent to he can play with that child’s genitals.
“MR. COLLIER: Mr. Pool, will you let me make an objection, please.
“THE COURT: Make your objection.
“MR. COLLIER: I was trying to. I would try to move to exclude what he said about me making up a defense. It’s improper argument and alleging I would do something improper and unethical in defending this Defendant and I object to it.
“THE COURT: Sustain. The jury will disregard any statement about that.
“MR. COLLIER: I would also again move at this time for a mistrial in that that type of argument is so prejudicial and inflammatory and denies the Defendant the right for a fair trial.
“THE COURT: Motion denied.”

Of all the accusations of dishonesty which may be leveled at opposing counsel during the course of a trial, the most serious is that he has suborned perjury or fabricated a defense for his client. Annotation: 99 A.L.R.2d 508, 577 (1965). The state’s counsel should at all times maintain a proper attitude toward the court, the witnesses, the jury and opposing counsel and should abstain from abusive, insinuating or insulting remarks.

“Prosecuting attorneys, in their zeal to vindicate the law, should not allow the excitement of the occasion, nor the exhilaration incident to success in any case, to lead them, in their arguments to the jury, beyond the domain of legitimate, or permissible, forensic effort.” Canty v. State, 238 Ala. 384, 390, 191 So. 260, 265 (1939).

However an attack on opposing counsel should be distinguished from a verbal assault on the accused.

“The range of a prosecutor’s remarks has an important bearing on the extent of their impropriety. When he confines himself to an attack on opposing counsel personally, his remarks may be censurable but they will not usually be held prejudicial to the accused’s right to a fair trial.”

In Crook v. State, 276 Ala. 268, 160 So.2d 896 (1963), the solicitor’s argument that “ ‘You don’t listen to some new fangled, disgusting theory that springs out from the minds of the imaginative lawyers’ ”, was held not to constitute reversible error.

“One of the most prevalent arguments to a jury is that the position and argument of the adversary is unwarranted, silly, fanciful or illogical.” Crook, 276 Ala. 270, 160 So.2d 897.

Of similar import was the prosecutor’s remark that the defense was trying “to muddy the water and confuse things”. This court held that this remark was not an insinuation that defense counsel was guilty of any moral wrong but merely referred to a recognized technique of cross examination and therefore was not prejudicial error. Jackson v. State, 56 Ala.App. 597, 324 So.2d 311 (1975). The prosecutor’s argument that the defendant’s attorney misrepresented the facts and he could prove it was not prejudicial error in Turner v. State, 39 Ala.App. 295, 98 So.2d 69 (1957).

A prejudicial atmosphere requiring reversal was created by the cumulative effect of the prosecutor’s statements, one of which was that defense counsel knowingly misled the jury which was what he was paid to do. Weaver v. State, 56 Ala.App. 29, 318 So.2d 768, cert. denied, 294 Ala. 773, 318 So.2d 772 (1975). Also requiring a reversal was the prosecutor’s remark that “counsel for the defendant are trying to make monkeys out of this jury, and they are laughing up their sleeves at you”. The court found this statement wholly unwarranted as not being based upon any fact, incident, or testimony in the case' and necessarily harmful and prejudicial. Burch v. State, 32 Ala.App. 529, 29 So.2d 422, petition for cert. stricken, 249 Ala. 72, 29 So.2d 425 (1947). Likewise, it is prejudicial error for the prosecutor, in redirect examination of a witness, to create the impression by insinuation and innuendo, that defense counsel had done an improper and reprehensible act in interviewing a police officer in the course of preparing the defense. Golson v. State, 34 Ala.App. 396, 40 So.2d 725, cert. denied, 252 Ala. 310, 40 So.2d 731 (1949).

There is no legal standard by which the prejudicial qualities of the improper remarks of a prosecutor in the trial of a case can be gauged. Each case must be determined on its own merits and attendant circumstances. Anderson v. State, 209 Ala. 36, 95 So. 171 (1923); Arant v. State, 232 Ala. 275, 167 So. 540 (1936).

There is no doubt that the prejudicial effect of an attack upon opposing counsel may often be cured by an action on the part of the trial judge. Here the trial judge sustained the objection of defense counsel and instructed the jury to disregard the statement. We think this corrective action was sufficient to remove any prejudice present in the objected to remarks. The remarks were not so devastating or improper as to warrant the extreme measure of a mistrial. See case collected at 99 A.L.R.2d 561 et seq.; 6A Alabama Digest, Criminal Law, &wkey;730.

We have reviewed the record on appeal and found the trial to have been fair and the record to be without error. Therefore the conviction is

AFFIRMED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Timmy Gerald WILSON, alias v. STATE.
    4 Div. 650.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
    W. Bartlett Taylor, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was put to trial upon a two-count indictment charging, (1) grand larceny, and (2) buying, receiving, concealing or aiding in concealing, etc., stolen property. Prior to arraignment appellant was found to be indigent and the Court appointed counsel to represent him. At arraignment he pleaded not guilty. The jury returned a verdict finding the appellant guilty under count two of the indictment. The Court sentenced him to ten years imprisonment in the penitentiary. After sentence was imposed appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The evidence presented by the State tended to show that the Barbecue Ranch located on Highway 331 south of Opp in Covington County was broken into on the night of November 26, 1977, and one RCA color television set of the value of $325.00 was stolen. The owner of the premises, Mr. Charlie Stewart, testified that when he closed his business on the night of November 26, 1977, the television set was in the building. The next morning he found the glass in the front door was broken and the door open. He checked and found the television set was missing, along with five cartons of cigarettes and a metal box containing his business records. He stated that he later identified the television set at the Opp Police Department and recovered it. He had not seen his metal box or his business records since the break-in, nor did he ever recover the five cartons of cigarettes.

Mr. Johnny Joe Wesley testified that he did not know appellant personally but knew him by sight. He identified him in the courtroom. He further testified that in late 1977 he purchased an RCA color television set from one Bobby Edgar. He first saw the set on a bookcase in Edgar’s home. He carried the set to a man by the name of Q. P. Taylor and sold it to him and had not seen it since. He stated that an officer from the Opp Police Department along with a Covington County Deputy Sheriff contacted him with reference to this television set.

Opp Police Officer Bill Norris testified on voir dire out of the presence and hearing of the jury. According to Norris he investigated the burglary and larceny at the Barbecue Ranch. In the course of his investigation he interviewed appellant at his mother’s house on December 4, 1977. Before asking him any questions he read him his constitutional rights from a Miranda card and appellant responded by saying he understood his rights and signed a waiver of rights form. Appellant then gave an oral statement to the officer and he was carried to the station house. The next morning the officer got appellant from the jail cell and again read him the Miranda rights and warnings. Appellant told the officer that he understood his rights and was ready to make a statement.

Officer Norris further testified that no one in his presence or hearing threatened appellant, nor was he offered any reward, promise or other inducements to get him to make a statement. The officer wrote appellant’s statement consisting of two pages and he signed his name to each page.

On cross-examination his counsel asked him why he made the statement and he replied, “I did not have anything to hide.”

Back before the jury the State laid the pre-Miranda predicate and appellant’s counsel said he had no objections to either the waiver of rights form or the statement signed by appellant. Thereupon the Court permitted appellant’s signed statement to be read to the jury. The statement is as follows:

“Statement of Timmy Wilson, Age twenty-one, 12-5-77; I left the house before dark on Saturday afternoon, November twenty-sixth. Went down to Winston’s Place. I sat down there and drank beer. Roy and Charles Smith was already there. We left there and went to the King’s Den. We watched T.V. with Sonny Bozeman for awhile. I don’t remember leaving the King’s Den. I do remember leaving and going to the Four Sons, me and Roy and Charles. I sat and talked to Jimmy Doyle, my brother. Roy left us at the Four Sons and went and got his car. Then I left and went home. I don’t remember going riding around after I left.
“I woke up about 8:30 a. m. the next morning. I went outside to where my car was. I was going to change tires on my car. I opened my trunk and there sat the T.V. I didn’t know where it came from, and I didn’t know what to do. So, I took it around to Bobby’s house. . I wanted to see if he knew anything about it. He didn’t. So, I went back home. Then Roy Smith eame to my house. I told him about the T.V. We tried to think who put it in my trunk. Me and him decided to ride down to Winston’s so we could see Todd Sasser, and see if he knew anything about it. He was gone. So, we didn’t see him. We went back to my house. Roy then left, then I took the T.V. back to Bobby’s house. I asked him if he wanted it. He asked me if it was hot. I told him I didn’t know. I didn’t even know where it came from. He asked me how much I wanted for it. I told him he could just have it. I didn’t want to have nothing to do with it. So, he just gave me fifteen dollars ($15.00), and I left and went back home.”

At the conclusion of the State’s case appellant moved for a directed verdict on the ground the State had failed to prove every aspect and essential element of the crime charged against him. This motion was overruled.

Charles Smith testified in behalf of the defendant. He stated that he first saw the defendant at Winston’s Grocery around 4:30 p. m. on November 26, 1977, and they remained there about an hour and thirty minutes; that his brother Roy Smith was with him at the time. The trio left and went to King’s Den in Opp and stayed there until about 10:00 p. m. and left and he did not see the appellant any more that night.

On cross-examination he testified they all started drinking beer at the Grocery and they continued to drink beer at the King’s Den. They had been drinking for more than foiir hours but appellant did not get drunk. He stated they did not go to the Barbecue Ranch that night and there was no discussion about a television set.

Roy Smith testified substantially to the same facts as his brother except that when they left the King’s Den appellant left his car there and rode with him to the Four Sons where they continued to drink beer. Around 12:30 that night he drove appellant back to the King’s Den to get his car and then he went home.

On cross-examination he testified that he, his brother and appellant started drinking beer at 2:30 p. m. on November 26, 1977, but that appellant did not get drunk. He further testified that the last time he saw appellant he was driving around the I.G.A. Store in the direction of the Barbecue Ranch on Highway 331.

Sonny Bozeman testified that he owned the King’s Den and saw appellant and the Smith twins there around ten o’clock on the night of November 26, 1977. He stated appellant tried to borrow five dollars from him.

Appellant’s mother and wife testified that he got home around 12:30 or 1:00 a. m. and went to bed; that he did not leave home again the rest of the night.

Appellant did not testify before the jury.

Appellant presents a rather novel defense concerning his acquisition and disposition of the stolen television set. According to his signed statement he opened the trunk of his car the morning after a drinking spree the afternoon and night before and found a television set. Instead of contacting officers of the law he sold the set to Bobby Edgar for $15.00. The undisputed testimony was the set was worth $325.00. It is also undisputed that the television set was stolen during a burglary some time during the night that appellant was drinking beer in one tavern after another.

In Character v. State, 51 Ala.App. 589, 287 So.2d 916, this Court held:

“It is the law of this state that the unexplained possession of property does not raise the presumption that the property was stolen. There must be other evidence of the’ corpus delicti. When this has been shown, and the stolen property, soon after the offense, is found in possession of a person, who is unable to give a satisfactory explanation of his possession, then the jury is authorized to infer his guilt. Orr v. State, 107 Ala. 35, 18 So. 142; Buckles v. State, 291 Ala. 352, 280 So.2d 814 (1972).
“The requisite scienter for the crime of receiving stolen property may be inferred from the recent possession of stolen goods. Stanley v. State, 46 Ala.App. 542, 245 So.2d 827.
“In Buckles, supra, our Supreme Court cited with approval the following quotation from the case of Aron v. United States, 8 Cir., 382 F.2d 965, 970:
‘The doctrine that possession of recently stolen property gives a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession, is a factually sound and a necessary evidentiary rule. Without this evidentiary rule in criminal cases it would be almost impossible to consider for conviction any of the possessors or fences of stolen property unless they admitted that they knew the property to be stolen, which is an admission not likely to be forthcoming.’ ”

Scienter is an element of proof necessary to sustain a conviction of receiving stolen property, but scienter may be inferred by the jury from the facts and circumstances of the entire transaction. Bills v. State, 49 Ala.App. 726, 275 So.2d 706; Paul v. State, 48 Ala.App. 396, 265 So.2d 180.

The corpus delicti may be proven by circumstantial evidence as well as by direct proof. Johnson v. State, 41 Ala.App. 351, 132 So.2d 485; Matthews v. State, 42 Ala. App. 406, 166 So.2d 883.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Vines v. State, 57 Ala.App. 117, 326 So.2d 307.

The possession of property recently stolen does not raise a presumption or inference, as a matter of law, of the guilt of the possessor, but the presumption arising from such possession is a matter of fact to be passed on by the jury. Vines v. State, supra.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Eddie Lee BRAXTON v. STATE.
    6 Div. 596.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.

      John Edmond Mays, Mobile, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State.
   BOOKOUT, Judge.

Murder in the first degree; sentence: life imprisonment.

Frank Walton, the deceased, and appellant Braxton, long time acquaintances, were neighbors in adjoining duplex apartments in Birmingham, Alabama. Their relationship through the years was shown to have been rather stormy, with appellant having cut the deceased across the face in a dispute in 1967.

Testimony revealed that on January 8, 1977, the day of the murder, the deceased and appellant had become involved in a brief exchange of words at the apartment after an old car of appellant’s accidentally struck a truck which deceased had on loan from his employer. The two men separated, but later in the afternoon, as the deceased was sitting in a chair asleep on his side of the bannister-divided duplex front porch, appellant came out onto his side of the porch with a single shot sawed-off shotgun and shot Walton to death. Henry Lee Pratt, age 13, and his brother Charlie, age 11, who viewed the shooting testified in substance that Walton came out onto his porch, seated himself, and dozed off to sleep. Thereafter appellant came out, told Walton, who still appeared to be asleep, he did not “like them smart words,” and then shot Walton with a sawed-off shotgun. They stated appellant was in the process of reloading to shoot again when Bessie Mae Hubbard, the woman with whom appellant lived, came out and pulled appellant back into the apartment. Both children testified the deceased had no weapon. Henry Pratt also stated he saw appellant leave through the back door of his apartment immediately after the shooting. Jessie James Pratt, another brother, saw appellant leave from the back door carrying a shotgun under his coat.

Mrs. Louise Walton, wife of the deceased, testified she was in her kitchen on the afternoon of January 8, 1977, when she heard a gun shot. She went to the front porch where she found her husband, who had been shot, lying on the front porch. Mrs. Walton stated she too had heard the men exchange words over the small collision earlier in the afternoon. She also testified that her husband was unarmed.

Deputy Coroner Charles C. Robey examined the deceased and determined a shotgun wound on the right side of his lower chest was the cause of his death.

Officer Michael David Acton of the Birmingham Police Department, responding to a radio call, investigated the shooting at the Walton residence. He stated that when he arrived, the deceased was surrounded by medical personnel and was lying on the front porch. He saw no weapon of any kind around the deceased’s body.

The appellant took the stand in his own behalf. He testified the deceased had threatened to kill him on numerous occasions, including the day of the murder. He stated the deceased was armed with a pistol while seated on the porch and that he fired the shotgun when the deceased reached to pull the pistol from his pocket.

Annie Hubbard, mother of the woman with whom appellant lived, testified she heard the argument over the collision and heard the deceased threaten to kill appellant later on while he was on the porch. She further stated she saw a pistol in the deceased’s hand that afternoon when he came out onto the porch, but she did not tell appellant about it.

Bessie Mae Hubbard testified she had seen a bulge in the deceased’s pocket the afternoon of the murder which appeared to her to be a pistol. She also heard the deceased threaten appellant.

I

Appellant argues the trial court erred in allowing the prosecutor to elicit evidence from appellant that the deceased had once saved appellant’s life during a fire in appellant’s apartment. The record reflects the following exchange:

“Q Now, Eddie, you testified on direct examination about numerous threats that Frank Walton made against you between 1967 and the date that you shot him, is that correct?
“A Yes, sir.
“Q I’ll ask you if it’s not a fact that two years ago Frank Walton kicked the door down on a house that was burning up where you were asleep and pulled you out, saving your life?
“A He did.
“MR. MAYS: I’d like to go on record as objecting as to the relevancy.
“THE COURT: Overruled.”

Appellant’s counsel’s objection did not come until after the question was answered by the witness. “After a question is asked, and a responsive answer given, an objection comes too late, and the trial court will not be put in error absent a motion to exclude and an adverse ruling thereon.” Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 240 (1976). There having been no motion to exclude, there is nothing before this court to review.

II

Appellant argues the admission of a color photograph, depicting the death wound, was erroneously admitted, highly prejudicial, and without probative value in light of his stipulation as to the truth and accuracy of the physical evidence depicted by the photograph. This contention is without merit.

Gruesome photographs, when properly identified and authenticated, have been repeatedly held admissible if they (1) tend to shed light on; (2) strengthen, or; (3) illustrate the truth of other testimony. Although not pleasant to view, this photograph is far from extreme in relation to gruesome photographs which the appellate courts of Alabama have approved in the past. Lewis v. State, Ala.Cr.App., 339 So.2d 1035, cert. denied Ala., 339 So.2d 1038 (1976). The purpose for the introduction of this photograph meets the standards adopted by Alabama appellate courts. There is no error.

The grounds relied upon by appellant for reversal have been considered in light of the record and briefs, and we find no prejudicial error which would mandate a retrial of the case.

AFFIRMED.

All the Judges concur.


text:
    James ROBINSON v. STATE.
    6 Div. 741.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.

      Benjamin Daniel, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, James L. O’Kelley, Asst. Atty. Gen., Birmingham, for appellee.
   HARRIS, Presiding Judge.

This appeal is from a judgment denying a petition for writ of error coram nobis after a hearing in the Circuit Court of Jefferson County.

Petitioner was originally convicted of robbery and sentenced to the penitentiary for a term of twenty years. He was represented by counsel of his own choosing or that of members of his family. His conviction was affirmed by this Court in December, 1977, without a formal opinion. New counsel was appointed to represent him on that appeal.

Subsequently, he filed his petition for writ of error coram nobis alleging only one ground: that he was represented by ineffective counsel. This allegation is fast becoming commonplace in post conviction petitions. When a convicted felon cannot conceive of anything else that might give him a new trial he charges that he was represented by inadequate counsel and litigation continues.

We have carefully read the petition filed in this case and there is no allegation that petitioner was innocent of the crime charged or that he had a valid defense. A copy of the original transcript of the evidence of the robbery conviction was introduced into evidence on the hearing of this petition and it shows that appellant did not tes.tify. Under a long line of cases of this Court and the Supreme Court the failure to assert a valid defense and innocence of the crime is fatal in such proceedings. Mack v. State, 51 Ala.App. 611, 288 So.2d 150; Ex parte Taylor, 249 Ala. 667, 32 So.2d 659; Ex parte Fewell, 261 Ala. 246, 73 So.2d 558; Rickard v. State, 44 Ala.App. 281, 207 So.2d 422; Upshaw v. State, 50 Ala.App. 172, 277 So.2d 917.

In Trammell v. State, 276 Ala. 689, 166 So.2d 417, the Supreme Court held:

“Trial counsel must make many decisions of an almost infinite variety in the course of a criminal trial: whether to seek a change of venue; whether to advise a plea to a lesser offense; whether to object; whether to offer a witness of probable doubtful credibility or with a criminal record; whether to advise the defendant to take the stand and subject himself to cross examination; how to argue the case to the jury; whether the jury be polled. All these and more are practical questions and very real ones. Bad judgment or even good but erroneous judgment, may result in adverse effects. They are simple facts of trial; they are not justiciable issues in a proceeding of this kind.
“We have previously indicated that Trammell’s counsel was of his own choosing or that of members of his family. Under such circumstances it has been stated that only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceeding a farce or a mockery of jus-, tice, shocking to the conscience of the court, can a charge of inadequate legal representation prevail. O’Malley v. United States, 6 Cir., 285 F.2d 733, and cases cited.”

In order to successfully show ineffective representation by counsel appellant must show that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice. Johnson v. State, 57 Ala.App. 470, 329 So.2d 160; Boswell v. State, 290 Ala. 349, 276 So.2d 592; Gore v. State, 45 Ala.App. 146, 227 So.2d 432; Lark v. State, Ala.Cr.App., 348 So.2d 539; Hillyer v. State, Ala.Cr.App., 351 So.2d 646.

The conviction of a client does not prove lack of skill or zeal on the part of counsel. Echols v. State, 276 Ala. 489, 164 So.2d 486; Boswell v. State, supra.

At appellant’s original trial he presented an alibi defense by his mother and a 14 year old brother. They testified that appellant was arrested on December 18, 1976, for an affray and his case was set for trial in the Recorder’s Court at 1:30 p. m. on December 22, 1976, and that he did not return home until 3:00 p. m. on that date.

The evidence presented by the State tended to show that on December 22, 1976, appellant and two other men robbed the Pizza Hut on Greensprings Avenue near Homewood, Alabama, in Jefferson County. Each man was armed with a sawed-off shotgun. Two eyewitnesses, a waitress and a customer, positively identified appellant as one of the participants in this robbery. Besides the money taken from the cash registers, purses and wallets were taken from the employees and customers. The testimony of an investigating officer revealed that appellant’s two brothers were being sought in connection with this same robbery. Appellant’s 14 year old brother testified that one of his other brothers came home later that afternoon with some pocketbooks and a sawed-off shotgun.

The copy of the transcript reveals that trial counsel vigorously advanced appellant’s claimed alibi defense and vigorously cross-examined the State’s witnesses on the question of their identification of appellant as one of the bandits. So effective was his cross-examination that the jury, after some deliberation, returned to the courtroom and requested that the testimony of one of the identifying witnesses be read to them by the Court Reporter. The trial court granted this request. After this testimony was read to the jury they returned a verdict of guilty within nine minutes.

Trial counsel testified at length during the coram nobis hearing. He stated that he spent at least fifteen hours in pre-trial preparation and also conducted a preliminary hearing at which appellant was bound over to the grand jury. He and his law clerk spent about an hour and a half searching the records at the Recorder’s Office. He did not talk to the Recorder because he thought it would prove fruitless. He discussed with the members of his firm the probable effect of issuing a subpoena to the Recorder for the trial of the robbery case but it was decided that this should not be done because in all likelihood the Recorder would have no independent recollection of having appellant before him on an affray charge where a guilty plea was entered and a $25.00 fine and $10.00 costs were imposed. No doubt the Recorder would have been forced to look at the records of the court to even learn the name of the offender who pleaded guilty. The records of the Recorder’s Court were introduced into evidence together with the arrest report and a black and white photograph of appellant. These documents only reflected that appellant’s ease was set at 1:30 p. m. on December 22, 1976. It did not show the time that appellant entered a guilty plea to the affray charge.

Even though it can be definitely shown that trial counsel has made a mistake unfavorable to his client, that alone is not sufficient to demonstrate inadequate representation. Lee v. State, Ala.Cr.App., 349 So.2d 134 (1977). Matters of trial strategy should be left to the judgment of trial counsel in absence of a clear showing of inadequate representation. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974).

No ineffective representation results where trial counsel fails to call witnesses whose testimony would only be cumulative to evidence already in the record. Sherill v. Wyrick, 524 F.2d 186 (8th Cir. 1975); U. S. v. Sangemino, 401 F.Supp. 903 (S.D.N.Y., 1975). As a general rule, where a new trial is sought on the grounds of newly discovered evidence, relief is properly denied where that new evidence is cumulative. Evans v. State, 264 Ala. 289, 87 So.2d 437. The same rule is applicable where a writ of error coram nobis is sought. Divine v. State, 285 Ala. 488, 234 So.2d 28 (1970).

The evidence here, the omission of which appellant complains of, was cumulative at best. It should be noted, however, that appellant’s appointed counsel did not support his petition by either affidavit or testimony of the City Prosecutor, the Recorder’s Court Judge, or the Clerk of the Recorder’s Court. Nor has he entered into evidence any record of treatment by the hospital, which he considered relevant to his defense. A coram nobis petitioner has the burden of proving the allegations of his petition. Hopkins v. State, 57 Ala.App. 78, 326 So.2d 144 (1975); Clements v. State, 52 Ala.App. 294, 291 So.2d 748 (1973). There is no indication in the record of the hearing on the petition, that any of these persons would have remembered appellant or testified favorably for him. An application for error coram nobis should make a full disclosure of the facts relied upon, not mere conclusions as to the nature and effect of facts. Thomas v. State, 274 Ala. 531, 150 So.2d 387 (1963).

Appellant testified at the coram nobis hearing and denied that he participated in the robbery. He admitted that his brothers robbed the Pizza Hut. He also stated that he wanted to testify in his robbery trial but his lawyer advised against it.

On cross-examination he admitted that he was convicted of rape in 1962 and received a ten-year sentence. He also admitted to previous convictions for burglary, assault with intent to rape, grand larceny, and escape from the penitentiary. With such a string of felony convictions his attorney used good judgment in advising him not to take the witness stand in his robbery trial.

Coram nobis proceedings are civil in nature and the burden of proof is on appellant to show that he was entitled to relief. On the record before us we hold that appellant failed to carry the burden cast by law upon him.

The judgment of the court below in denying the writ is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Willie E. CAREY v. STATE.
    6 Div. 742.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
    James M. Jolly, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen. for the State, appellee.
   BOWEN, Judge.

The appellant was convicted for first degree murder and sentenced to life imprisonment. At trial the defense was one of insanity.

On appeal it is argued that the evidence is insufficient to support the conviction of first degree murder because there was no evidence to show that the killing was deliberate or premeditated. It is also argued that the evidence of insanity was conclusive.

The state proved a prima facie case of murder in the first degree committed by the appellant. Through the testimony of the brother of the deceased, the state proved that sixty-four year old Leon Neg-ron was killed by a shotgun blast fired through the open front doorway of a house he and his brother, Damon, were repairing. Damon stated that he heard the blast, turned and saw his brother fall. He saw the appellant standing in the door holding a shotgun. The appellant did not say anything but stood there a short time and then “broke” and ran off. He was arrested in the company of a male companion approximately three blocks from the scene of the murder and shortly after its commission. When the appellant noticed the arresting officer he discarded the shotgun, which he had been carrying in a partially concealed fashion by his side.

As a defense witness, Alvannah Carey, the mother of the appellant, testified that in the early seventies she began to notice unusual conduct of her son. He would leave work early, burn the lights in his room all night long and cover up his head. He stayed by himself and heard voices. He complained that the back of his head and neck hurt and slept a lot. He was treated at the Smolian Clinic and at the University Hospital in Birmingham, Alabama. Mrs. Carey testified that whenever the appellant had any money he would drink but that he did not drink until he became drunk or intoxicated.

The appellant’s brother, Flemón Robert Carey, testified that the appellant “used to go through a lot of, you know, emotional change when he would get under the influence of alcohol and drugs .... and be a Dr. Jekyl and Dr. Hyde sort of thing”; that he was under a lot of emotional pressure and unable to cope with life and was mentally unstable. Robert stated that his brother was taking drugs and would “drink most anything and take most anything”.

Arthur Parker, a Birmingham attorney, testified that he had represented the appellant and had filed motions to have the appellant’s mental condition evaluated based on the difficulty he had in communicating with his client and the mental difficulties the appellant was experiencing.

The appellant testified in his own behalf and denied any knowledge of the murder, the victim, or the shotgun. During the day he and a companion, Andrew Welch, purchased and consumed three bottles (fifths) of wine prior to meeting another friend and consuming two more “fifths” of wine.

Dr. James L. Thomas, a physician with the University of Alabama of Birmingham Medical Center, Department of Psychiatry, testified as to the appellant’s mental history and first saw him on May 22, 1974, at the Smolian Clinic. He diagnosed the appellant as an acute schizophrenic, “acute” meaning that the illness “came on quickly and was a short duration”. Dr. Thomas testified that although schizophrenia is “treatable” it cannot be “cured”; treatment may result in remission of the illness or the disease may progress.to be “a chronic condition that never goes away”. Dr. Thomas did not have an opinion as to whether the appellant was insane on May 8, 1975, the date of the murder. He stated that when he last saw the appellant on June 27, 1974, “it was an acute episode that responded to treatment in a positive fashion, and, when he left the hospital, most of the symptoms of schizophrenia were no longer present”. However Dr. Thomas “would expect that there would be additional similar occurrences of the same illness in the future”.

Three months after the murder, in August of 1975, the appellant was examined by Dr. Brantley E. Blankenship who practiced psychiatric medicine and who was on the staff of the Department of Psychiatry of the University of Alabama Medical Center in Birmingham. At that time Dr. Blankenship found the appellant well-oriented and without evidence of psychosis and noted that his mental status at the time of the crime was unknown. Later, in December of 1975, after a second request for a determination of competence, the appellant was determined to be “within the psychotic range” and committed, by court order, to a state hospital “until restored to his right mind”. Dr. Blankenship was not asked and did not express any opinion on the sanity of the appellant at the time of the crime.

. I

The concurrence and coexistence of willfulness, deliberation, malice and premeditation essential to constitute murder in the first degree are a matter of inference from all the facts and circumstances of the particular case. Their concurrence and coexistence are not facts to which a witness or any number of witnesses can testify. Coats v. State, 253 Ala. 290 at 294, 45 So.2d 35 (1950). It is well settled in this state that unless the circumstances surrounding a killing indicate otherwise, malice is presumed from the use of a deadly weapon. For numerous cases on this point see 11 Alabama Digest, Homicide, &wkey;146. While the motive for a killing is always a proper subject of proof, it is not necessary nor indispensable to a conviction in a homicide case nor is it an element of the burden of proof resting on the prosecution. Rice v. State, 250 Ala. 638, 35 So.2d 617 (1948); Tate v. State, 337 So.2d 13 (Ala.Cr.App. 1976). Additionally, in every murder prosecution, it is not necessary to prove that the defendant knew the person whom he killed. Hargett v. United States, 183 F.2d 859 (5th Cir. 1950).

The burden is on the accused to establish his insanity at the time of the killing by a preponderance of the evidence, Martin v. State, 119 Ala. 1, 25 So. 255 (1898), and to the reasonable satisfaction of the jury. Wingard v. State, 247 Ala. 488, 25 So.2d 170 (1946). “A jury has no right to infer the existence of insanity from the existence of a cause which may have some tendency to produce it, unless there is some evidence before them that insanity actually followed as a result of the possible cause.” Milford v. State, 2 Ala.App. 104 at 107, 108, 57 So. 96, 97 (1911); Smith v. State, 32 Ala.App. 209, 211, 23 So.2d 615 (1945).

The law presumes the accused sane at the time of the crime. Boswell v. State, 63 Ala. 307 (1879). The rule that insanity once shown is presumed to exist only arises in cases where the insanity is continuing and permanent in its nature, or where the cause of the disorder is continuing and permanent. Cogbill v. State, 8 Ala.App. 223, 62 So. 406 (1913); Benton v. State, 31 Ala.App. 338, 18 So.2d 423, cert. denied, 245 Ala. 625, 18 So.2d 428 (1944).

“And it is a sound general rule that insanity at any particular time, if shown to be habitual and permanent in its nature, is prima facie presumed as a matter of law to exist at any future time; and alone from its existence at a later time a presumption of fact may arise of its existence at a given prior time. Murphree v. Senn, 107 Ala. 424, 18 So. 264; McAllister v. State, 17 Ala. 434, 52 Am.Dec. 180. But in the latter case it is clear that the probative value of subsequent insanity to show insanity at any prior time will depend upon (1) the nature and degree of the insanity shown, and (2) its nearness or remoteness in point of time to the act under consideration. In re Winch, 84 Neb. 251, 121 N.W. 116, 18 Ann.Cas. 903, and note, 905, collecting many cases; Waterman v. Whitney, 11 N.Y. 157, 170, 62 Am.Dec. 71; Grant v. Thompson, 4 Conn. 203, 10 Am.Dec. 119; Dickinson v. Barber, 9 Mass. 225, 6 Am.Dec. 58; Terry v. Buffington, 11 Ga. 337, 56 Am.Dec. 423; Shailer v. Bumstead, 99 Mass. 112; Dowie v. Driscoll, 203 Ill. 480, 68 N.E. 56; LaBau v. Vanderbilt, 3 Redf.Sur. (N.Y.) 384, 390, 412.” Odom v. State, 174 Ala. 4, 9, 56 So. 913, 915 (1911).

A defendant does not, by evidence that he was “subject to spells of insanity from time to time”, raise a presumption that he was insane when he committed the homicide so as to shift the burden of proving his sanity to the state. Talbert v. State, 140 Ala. 96, 37 So. 78 (1904).

There was no testimony that the appellant was suffering from that chronic condition of schizophrenia that “never goes away”. The only evidence that the appellant was “insane” at the time of the commission of the crime was the testimony of the brother and mother of the appellant. Unusual or “weird” behavior alone cannot be equated with mental incompetency or insanity. McCune v. Estelle, 534 F.2d 611 (5th Cir. 1976). The jury had a right to consider the relationship of these witnesses to the appellant in weighing their testimony.

Applying the Alabama rule of mental capacity to commit a crime, the verdict of the jury convicting the appellant of first degree murder was well within its province. There was no sufficient showing that the appellant, at the time of the offense, was suffering a mind- so diseased that either he could not distinguish between right and wrong as to the homicide with which he was charged or that he was unable to resist an impulse to commit the offense if solely produced by his mental disease. Parsons v. State, 81 Ala. 577, 2 So. 854 (1886); Johnson v. State, 56 Ala.App. 105, 108, 319 So.2d 725 (1975).

Three convictions for first degree murder have recently been overturned because there were no facts which would support a reasonable inference that the homicide was committed by a sane man as defined by law where the evidence of insanity was conclusive. Christian v. State, 351 So.2d 623 (Ala.1977); Herbert v. State, 357 So.2d 683 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978). Most recently see Woods v. State, 8 Div. 46 (Ms. July 25, 1978). The evidence of insanity at the time of the offense in this case is far from being conclusive. This is not a case where the testimony of experts was arbitrarily ignored by the jury. Under these circumstances the issue of insanity was properly submitted to the jury.

We have searched the record on appeal in its entirety and found no error prejudicial to the rights of the defendant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Charles Anthony BOYD, alias v. STATE.
    6 Div. 766.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.

      Walter W. Furner, Bessemer, for appellant.
    William J. Baxley, Atty. Gen. and Larry R. Newman, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted and convicted in Jefferson County of murder in the first degree. The jury fixed punishment at life imprisonment. He appeals from an entry of judgment on the verdict.

It appears that defendant entered one of the buildings at Miles College looking for work. He approached a female student and told her he was looking for employment. She directed him to another building. After he had gotten outside the room, he came in contact with Dr. Max B. Crute, an instructor. Together they came back in the room, whereupon Dr. Crute agreed to show him where to go to get the employment. Just outside the door, defendant attacked Dr. Crute with a screwdriver which defendant had in his possession. Dr. Crute died from wounds that defendant inflicted with the screwdriver. So far as the record reveals, there was no reason for the attack. Defendant was convicted on a plea of not guilty and not guilty by reason of insanity.

The trial court determined that defendant was an indigent and appointed a lawyer to represent him in the ferial. Subsequently another local attorney advised the court that the mother of the defendant had employed him to represent her son. Appointed counsel was relieved of his appointment at which time the employed counsel took over the case.

After the conviction and appeal, the trial court appointed Walter W. Furner, an attorney, to represent appellant on appeal. The appointed counsel has filed an elaborate brief asserting three contentions of error to which we will write seriatim.

I

“That in the circumstances of this case, the appellant was denied his constitutional guarantee of individual freedom by denial of assistance of effective and reasonably competent counsel.”

We do not find that this issue was raised in the lower court, and no ruling of the trial court thereon is here presented.

Our appellate courts have held that new matter may not be raised for the first time in the appellate courts. Alabama Digest, Vol. 7, Criminal Law, «=>1030(1)(2); Scroggins v. State, Ala.Cr.App., 341 So.2d 967, cert. denied, Ala., 341 So.2d 972; Cole v. State, Ala.Cr.App., 337 So.2d 40, cert. denied, Ala., 337 So.2d 47; Cooper v. State, Ala.Cr.App., 331 So.2d 752, cert. denied, Ala., 331 So.2d 759; Fountain v. Vredenburgh Saw Mill Company, 279 Ala. 68, 181 So.2d 508; Alabama Digest, Vol. 2, Appeal and Error, 3=» 169. The Supreme Court, on appeal, will not consider constitutional questions not raised in the court below. Howard v. Pike, 290 Ala. 213, 275 So.2d 645; Alabama Digest, Vol. 2, Appeal and Error, 3=170(2).

II

“That in the circumstances of this case, appellant was denied his right to a speedy trial.”

The right of a speedy trial is a state and federal mandate provided by the United States Constitution, Amendment VI, and Alabama Constitution (1901) § 6.

The Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, set out four principles that control. They are:

1. Length of delay.
2. Reason for delay.
3. Defendant’s assertion of his right.
4. Serious prejudice to the defendant.

It appears that the homicide was committed on November 21, 1975, at which time defendant was immediately arrested and committed to jail where he remained until trial date except while he was committed to Bryce Hospital for mental examination.

An indictment for the offense of murder in the first degree was returned at the March 1976 term of the circuit court. The indictment was filed on April 2, 1976. It does not appear that there was any unusual delay in reporting the indictment.

Was there any serious prejudicial or unreasonable delay between the indictment and the filing of the motion to dismiss the indictment because defendant was not afforded a speedy trial?

It is to be noted that the motion to dismiss was filed by employed counsel and called to the attention of the court on May 13, 1977, and set for hearing on June 13, 1977, at which time it was overruled. No subsequent motion was presented or filed. The time element involved is between the date of the indictment on April 2,1976, and June 13, 1977, when the motion was overruled.

The record shows that on June 23,1976, a physician certified to the court that defendant was not competent to stand trial.' On July 6, 1976, the court ordered defendant committed to Bryce Hospital in Tuscaloosa for custody pending restoration to his right mind. On October 28, 1976, the Forensic Evaluation Board and the superintendent reported to the court that he was so restored.

The record shows that on February 11, March 24, April 21, and May 24, in the year 1977, the court passed the case to be reset.

Between the dates October 28, 1976, when the hospital reported defendant was competent to stand trial, and May 21, 1977, the record fails to show why the case was passed. It fails to show any effort made by defendant’s counsel to get the case tried. Nor, for aught appearing, was any objection made to the continuances. So far as this record discloses, no evidence was taken on the motion to dismiss. For aught appearing, no serious prejudice resulted to defendant. There is nothing to indicate that the court acted unfairly in the several continuances that were addressed to its sound discretion. In view of the state of the record, we are unwilling to say that defendant was denied a speedy trial in violation of his constitutional rights. Barker v. Wingo, supra.

Ill

We quote appellant’s third contention of error. “That appellant was denied due process by not having a hearing and determination of his competency at the time of the homicide and arraignment.”

Appellant makes the point that at the time defendant was arraigned, he had been declared incompetent to stand trial; therefore, the entire proceeding is null and void.

At the time of arraignment, defendant was represented by appointed counsel who entered a plea of not guilty for his client. Later, another plea of not guilty by reason of insanity was entered with the approval of the court. The latter plea was filed by employed counsel.

These two pleas were sufficient to raise adequate defense issues upon which the case was tried. We fail to see what other defense was available to defendant. We are unwilling to say that the “proceedings” were void.

Appellant further asserts that reversible error occurred when the court overruled appellant’s motion to determine his sanity. We fail to find any such motion. The motion cited is one to dismiss the indictment on the several grounds stated. The third ground is that defendant was insane.

But regardless of the absence of a motion to have defendant observed and tested for insanity, the trial court did on July 6, 1976, have defendant committed to Bryce Hospital for a mental examination. The Forensic Evaluation Board reported their findings on October 28, 1976.

It appears to us that the trial court acted within the bounds of law in seeing that defendant received a proper sanity examination. Defendant had employed counsel to assert his legal rights. The court respected the authority of defendant’s counsel to try the case and present issues in the manner provided by law. If the defense counsel made any mistakes or was guilty of omissions, the trial court was not to blame.

In our opinion, the judgment should be affirmed. It is so ordered.

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:
    Joe TYSON v. STATE.
    6 Div. 790.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.

      William Conway and Fred Blanton, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the offense of bribery of a police officer. After sentencing him to serve two years in the state penitentiary, the trial court suspended sentence and placed the appellant on three years’ probation. This probation was subsequently revoked.

The state’s evidence disclosed that the appellant, a hotel manager, paid a police officer a total of $279.00 to overlook and disregard the prostitution conducted in the hotel. Police Officer Clifton R. Robertson worked in Prostitution Detail of the Vice Bureau of the Birmingham Police Department. He testified that on the afternoon of January 25, 1977, he returned a telephone call that the appellant had made to him earlier that day. The appellant told Officer Robertson that he wanted to talk to him “about letting his girls work”. The following day Officer Robertson went to the Nancy Hotel at 323V2 Seventeenth Street North, Birmingham, Alabama, where the appellant worked as manager.

Robertson had a body transmitter concealed on his person and was in police uniform. Three of his superior officers were listening to and tape recording the conversation from a car. Officer Robertson testified that the appellant wanted to know what he could do about letting his girls work and stated that he couldn’t make any money the way things were going.

“I again asked him, ‘Just exactly what do you have on your mind?’
“And, then, he said that he would work out some deal to pay me to let the girls work, if I wouldn’t harass them and wouldn’t cheek the register, and let them work on the street.”
* * * * * *

“He said he would pay me twenty percent of the book — as he called it — each week.” The “book” was called the “trick book” and contained a record of the “tricks” that the girls “turned”. The appellant had Carl Smith, who was also charged with bribery, explain this book to Officer Robertson. The deal was made. During the months of February and March of 1977, Robertson returned four times to the Nancy Hotel and collected his twenty percent for a total of $279.00. On each visit the appellant was present and paid the money. On three of the visits Carl Smith was also present. Robertson arrested Smith and the appellant on his last visit. During this time Robertson did not make any arrests or check the register at the Nancy Hotel.

The appellant testified that he had operated the Nancy Hotel since 1974 and claimed that Robertson had come there “every day, and twice sometimes”, for about thirty times, and “beat on the doors of the rooms and run the customers away”. The appellant stated that Robertson offered to quit harassing him if he would pay Robertson twenty percent. When the appellant did not go along with the deal Robertson continued his harassment. Finally, since the appellant “wasn’t making no money”, he “just went along with it”.

I

The appellant alleges that the participation of a police officer in a series of separable criminal offenses constitutes entrapment as a matter of law and violates the due process rights of the appellant. We find no merit to this contention.

Entrapment occurs when state officers or persons under their control incite, induce, lure, or instígate a person into committing a criminal offense, which that person would not have otherwise committed and had no intention of committing. Johnson v. State, 291 Ala. 639, 285 So.2d 723 (1973). Where the defense of entrapment is raised, two separate issues of fact are presented: First, whether there was governmental inducement, and, second, if there was inducement whether the defendant was ready and willing to commit the act without persuasion. United States v. Jones, 473 F.2d 293 (5th Cir. 1973), cert. denied, 411 U.S. 984, 93 S.Ct. 2280, 36 L.Ed.2d 961 (1973); Lindsay v. State, 41 Ala.App. 85, 90, 125 So.2d 716, cert. stricken, 271 Ala. 549, 125 So.2d 725 (1960), cert. denied, 366 U.S. 933, 81 S.Ct. 1656, 6 L.Ed.2d 392 (1961).

The defense of entrapment is not applicable where the law enforcement officer merely affords an opportunity to one intending to violate the law. Johnson v. State, 36 Ala.App. 634, 61 So.2d 867 (1952); Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109, cert. quashed, 295 Ala. 412, 323 So.2d 116 (1975). “It is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” United States v. Russell, 411 U.S. 423, 436, 93 S.Ct. 1637, 1645, 36 L.Ed.2d 366 (1973). The primary focus is on the predisposition of the accused rather than on the agent’s actions. Russell, supra.

“The cases considering the defense of entrapment in prosecutions for offering or paying bribes support the conclusion that the defense cannot be successfully interposed when the accused initiates the transaction by offering or suggesting payment of a bribe, and law enforcement officers, public officials, or others to whose conduct the doctrine applies, thereafter pretend to cooperate by furnishing or otherwise aiding the completion of the offense for the purpose of prosecuting the accused or obtaining necessary evidence.
“(T)he defense is established where government officials, or persons acting under their direction, for the purpose of arresting and prosecuting the accused, first request, demand, or suggest payment of a bribe from an otherwise innocent person who apparently did not previously have the intention or design to commit the offense, and the accused, either because of fears of official retaliation or the persuasion and representation of the agents, was lured or induced into committing the offense.” Annotation: 69 A.L. R.2d 1396, 1400, 1401 (1960).

The proper allocation of the burden of proof when trying a case in which entrapment is claimed is set out in United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1976).

“The defendant must first come forward with evidence sufficient to raise a jury issue ‘that the Government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it’. United States v. Mosley, 496 F.2d 1012, 1014 (5th Cir. 1974) citing Pierce v. United States, 414 F.2d 163, 168 (5th Cir. 1969). Once such issue is raised, the government must prove beyond a reasonable doubt that the defendant was predisposed to commit the charged offense. Id. See also United States v. Gomez-Rojas, 507 F.2d 1213, 1218 (5th Cir. 1975). By relying on entrapment as a defense, an accused exposes himself to a ‘searching inquiry into his own conduct and predisposition. . . ’ Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413 (1932). To negative the defense, the government may introduce evidence to prove predisposition which is otherwise inadmissible. United States v. Moriarty, 497 F.2d 486, 488 (5th Cir. 1974); United States v. Simon, 488 F.2d 133 (5th Cir. 1973).”

The issue of entrapment is a question for the jury unless as a matter of law the defendant has established beyond a reasonable doubt that he was unlawfully entrapped. United States v. Harrell, 436 F.2d 606 (5th Cir. 1970).

“Under our jurisprudence to raise ‘entrapment as a matter of law,’ the defendant would have to (1) move the court (a) to exclude the evidence, or (b) to give a written affirmative instruction, or (c) to file a motion for a new trial; and (2) support one of these requests by uncon-tradicted evidence of unimpeachable weight and credibility, e. g., by the undisputed testimony of the State’s own witnesses.
“Even though the State, to secure evidence, is shown to have tempted the accused, yet if there is proof of his active appetite for forbidden fruit, the issue of causation is one of fact for the jury.” Lindsay v. State, 41 Ala.App. 85, 90, 91, 125 So.2d 716, 721.

Here the evidence was conflicting on whether the police officer or the appellant first initiated the bribe. Therefore entrapment was not proven as a matter of law and the issue was properly submitted to the jury. Lindsay, 41 Ala.App. 89, 125 So.2d 716. Legal entrapment did not arise simply because after Robertson had all the evidence that he needed to charge an offense, he continued to accept money as the appellant would have this court rule. Pinson v. State, 52 Ala.App. 444, 293 So.2d 869 (1974).

II

A police officer who participates in a series of acts to induce or to afford the defendant an opportunity to commit a criminal act does not become an accomplice as a matter of law.

In Brown v. State, 44, Ala.App. 135, 136, 203 So.2d 700, 702 (1967), the Alabama Court of Appeals approved the statement appearing in 23 C.J.S. Criminal Law § 788, p. 11:

“A detective or police officer who is engaged in attempts to discover violations of the law is not an accomplice of one charged with such a violation, even though the detective may have been instrumental in procuring the specific violation of the law on which the prosecution is based. Familiar illustrations of this principle are found in cases where detectives or other officers, investigating alleged illegal sales of liquor, purchase such liquor for the purpose of securing evidence, * *

See also Johnson v. State, 36 Ala.App. 634, 61 So.2d 867 (1952). An undercover police officer engaged in acts to uncover violations of the law is not an accomplice of one charged with such violations. Pitts v. State, 291 Ala. 136, 279 So.2d 119 (1973); Brantley v. State, 55 Ala.App. 493, 317 So.2d 337, reversed on other grounds, 294 Ala. 344, 317 So.2d 345 (1974); Grissom v. State, 51 Ala.App. 285, 284 So.2d 739, cert. denied, 291 Ala. 780, 284 So.2d 740 (1973).

Ill

The appellant alleges that the trial court erred in refusing to give defendant’s written requested charge number 10.

“The Court charges the Jury that the burden is never on the Defendant to establish his innocence or to disprove the facts necessary to establish a crime of which he is charged, but that in this case, if any or all of the evidence after considering all of same, raises in the mind of the Jury a reasonable doubt as to the guilt of the Defendant, you should acquit him.” ■

In our opinion the oral charge fairly and adequately instructed the jury that if they had a reasonable doubt of the defendant’s guilt growing out of any part of the evidence they should acquit him.

“If after a full and fair consideration of all the evidence in the case, or any part of the evidence in the case — if there remains in your mind an abiding conviction that the defendant is guilty as charged, then you would be convinced beyond a reasonable doubt, and, in that event, the defendant should be found guilty.
“On the other hand, if, after the same full and fair consideration of all the evidence in the case, there does not remain, in all the evidence, or any part of it, you can decide what evidence you will consider. That’s entirely up to the jury. But if there does not remain in your mind an abiding conviction as to the guilt of the defendant, then you would not be convinced beyond a reasonable doubt, and, in that event, the defendant should be found not guilty.”

The oral charge need not state the legal principle exactly as it appears in the requested charge. The principle expressed in the requested charge need only be fairly and substantially covered in the trial court’s oral charge. Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969). For other cases see 6A Alabama Digest, Criminal Law, >§=>828.

IV

The appellant contends that a fatal variance existed between the allegations of the indictment charging one count of bribery and the proof adduced at trial revealing four payoffs to the police officer pursuant to the bribery arrangement.

The indictment charged, in effect, that the appellant bribed the police officer with $180.00. The evidence showed that the police officer received four separate “payoffs” in the respective amounts of $73.00, $71.00, $46.00, and $89.00 for a total of $279.00. The appellant relies on Preswood v. State, 22 Ala.App. 628, 118 So. 768 (1928). This case stands for the proposition that a conviction on a single count charging larceny of two cows is precluded where the evidence shows two distinct larcenies.

An accused is only required to meet the charge laid against him in the indictment and need not defend against a distinct charge not included therein. Constitution of Alabama of 1901, Section 6; Mauldin v. State, 28 Ala.App. 30, 177 So. 309 (1937).

There was no variance between the allegations and the proof. The appellant recognizes that any variance between the indictment and the proof with regard to the amount of money would not be fatal to the bribery conviction. Wilson v. State, 268 Ala. 86, 105 So.2d 66 (1958); Richardson v. State, 237 Ala. 11, 186 So. 580 (1938)... The objection made by the appellant is best answered in Lindsay v. State, 41 Ala.App. 85, 92, 125 So.2d 716, 722 (1960), where the court noted:

“As to the admission of the evidence of the other payments after the proof of the first bribe, we see no harm to the defendant since the State itself chose to treat the $850 as one bribe rather than as eight. Lindsay got the best of the bargain in the State’s merging the other seven instances into a single charge.
“One exception to the rule in Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847, permits evidence of other crimes to show system. Had the State charged Lindsay with eight separate bribes, testimony of the other seven would have been relevant in order to negative illegal entrapment. See Brown v. State, 37 Ala.App. 516, 74 So.2d 273. Therefore, no harm comes from treating all eight payments as installments.”

For a variance to be material, it must be misleading or substantially injurious to the accused in making his defense. Blackmon v. State, 46 Ala.App. 274, 240 So.2d 696, cert. denied, 286 Ala. 733, 240 So.2d 699 (1970). It is sufficient to prove so much of the indictment as shows the accused has committed the substantial offense specified therein. Rogers v. State, 353 So.2d 19 (Ala.Cr.App.1977), cert. denied, 353 So.2d 24 (Ala.1977).

The State filed a motion to dismiss this appeal because the appellant did not give proper notice of appeal.

The appellant was sentenced on March 3, 1978. No oral notice of appeal was given at this time. The entire record contains no written notice of appeal.

On March 31, 1978, a hearing was called for probation revocation and preliminary hearing. The appellant then expressed “his desire for appeal from the sentence of March 3, 1978”. This was not a proper notice of appeal from the appellant’s conviction for bribery.

Rule 4(b), Alabama Rule of Appellate Procedure, clearly provides that:

“In a criminal case the notice of appeal by the defendant shall be filed in the trial court within 42 days (6 weeks) after the entry of the sentence appealed from. The notice of appeal may be either oral or written, as provided in Rule 3(a)(2).”

Rule 3(a)(2) states:

“In criminal cases, an appeal permitted by law as a matter of right to an appellate court shall be taken either by filing an oral notice of appeal at the time of sentencing which shall be entered of record or by filing a written notice of appeal with the clerk of the trial court, within the time allowed by Rule 4.” (Emphasis supplied)

Thus the appellant is required to either give oral notice of appeal at the time of sentencing or written notice within 42 days after entry of the sentence appealed from where there is no timely motion for a new trial. In the absence of a timely motion for a new trial any notice of appeal given at any other time (except a notice of appeal entered after the announcement of a decision or order, but before entry of sentence which shall be treated as filed after such sentence, Rule 4(b)) does not constitute sufficient or proper notice of appeal under the Alabama Rules of Appellate Procedure.

While the failure to file or give a proper notice of appeal is a basis for dismissing the appeal, Rule 2(b), A.R.A.P. cloaks this court with the authority to suspend the rules “in the interest of expediting decision, or for other good cause shown”.

Because this matter may have been subject to some misinterpretation or misunderstanding and in the interest of expediting our decision, we suspend the rules and deny the state’s motion to dismiss.

Having searched for error in the record on appeal and finding none, we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


text:
    Larry Wayne TAYLOR, alias v. STATE.
    7 Div. 595.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.

      Kermit M. (Mac) Downs, Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

On the night of Halloween, October 31, 1977, ten-year old Tamatha was abducted and kidnapped while “trick-or-treating” with some friends in Gadsden, Alabama. Throughout the remainder of that night she would be repeatedly raped.

The appellant was indicted and convicted for the carnal knowledge of a girl under the age of twelve years. Section 13-1 — 133, Code of Alabama 1975. The trial judge sentenced him to life imprisonment. Both at trial and on appeal the appellant is represented by court appointed counsel.

The sufficiency of the evidence is not presented for review. There was no motion to exclude the state’s evidence, no request for the affirmative charge, and no motion for a new trial. Skinner v. State, 30 Ala. 524 (1857); Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81 (1975). However, a consideration of all the evidence in this case convinces this court that the state proved the appellant guilty beyond any reasonable doubt.

The evidence discloses that on the night of October 31, 1977, the appellant and his companion, Frederick Hall, abducted the ten-year old prosecutrix while she was “trick-or-treating” with some friends. Both men raped her in an abandoned store and then took her to the appellant’s house. Throughout the remainder of the night the prosecutrix was repeatedly raped by the appellant, Hall, and two other individuals. At trial the appellant presented no evidence in his behalf.

I

After his arrest the appellant made a detailed eight page confession of his involvement and participation in the kidnapping and rape of the child. The trial court, after a pretrial hearing, denied defense counsel’s motion to suppress. On appeal it is asserted that this constitutes error because the confession was involuntary.

Detective Sergeant N. W. Griffin of the Gadsden Police Department was a friend of the appellant. The appellant had become Sergeant Griffin’s informant and given him reliable information leading to the recovery of stolen property and the arrests of thieves. Sergeant Griffin had, on one occasion, talked to a city judge about a case pending against the appellant and was apparently successful in getting the bond or sentence reduced. Griffin did talk to the appellant alone on the morning of his arrest on November 1, 1977, after the appellant had requested to see him. Before speaking with Sergeant Griffin the appellant only admitted being with the people he implicated in the crime. After his conversation with the Sergeant and after being questioned by Chief Carter the appellant admitted his guilt and confessed. The appellant testified that he confessed because of a promise made by Sergeant Griffin to “help him out”. Griffin specifically and repeatedly denied any such effort.

Because the law is well settled we need not detail the conflicting testimony presented during the hearing on the motion to suppress. Appellant’s argument on the involuntariness of the confession may be summarized by a direct quotation from his brief.

“The question then becomes one of whether Sergeant Griffin used his influence as a close friend of the Defendant’s in order to coerce the Defendant to sign a confession. Although Sergeant Griffin denies that he made any promises to the Defendant, the circumstances surrounding this case demonstrate readily that Sergeant Griffin must have made such a promise to the Defendant.” Appellant’s Brief, pp. 15-16 (Emphasis added).

This issue is governed by the principle that, where the trial court finds on conflicting evidence that a confession was voluntarily made, such finding will not be disturbed on appeal unless it appears contrary to the great weight of evidence or is manifestly wrong. Burks v. State, 353 So.2d 539 (Ala.Cr.App.1977) and cases cited at 542.

“Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty.”
McNair v. State, 50 Ala.App. 465, 470, 280 So.2d 171, 176 (1973).

We find no error in the trial judge’s determination that the confession was voluntary.

II

Following conviction, investigation, and a presentencing report, the trial judge sentenced the appellant to life imprisonment. Under the language of Section 15-18-20, Code of Alabama 1975

“When an offense is punishable by imprisonment in the penitentiary or hard labor for the county, the court must impose the term of punishment, unless the power is expressly conferred on the jury.”

Carnal knowledge of a girl under twelve years of age may be punished by imprisonment in the penitentiary for not less than 10 years, or as otherwise provided by law. It does not expressly confer upon the jury the duty of imposing the term of imprisonment as did its statutory predecessor Title 14, Section 398, Code of Alabama 1940. Section 13-1-133, Code.

The 1975 Code went into effect and was operative on October 31, 1977. See Vol. 1, p. vi, Code of Alabama 1975. Since the crime was commenced on and the prosecution began after the effective date of the new code, the sentencing power was vested in the trial judge and not the jury. Also see §§ 1-1-9, 1-1-12, Code of Alabama 1975.

III

The appellant argues that the trial judge committed reversible error in allowing into evidence two bedsheets seized from the residence of the appellant following his arrest and pursuant to his consent. Each sheet was subjected to tests for blood and semen and the tests were positive for the presence of both substances. Error is alleged because the toxicologist could not testify that the blood was that of the victim or even that of a human being. It is argued that because of this the sheets had no bearing on any material issue.

At trial testimony was presented that the appellant voluntarily gave permission to search his residence and freely told the police that the sheet that was on his bed the night of the crime was in a dresser drawer. The prosecutrix testified that she was raped a number of times on this bed and that it “hurt”. The other sheet was removed from the bed by the police.

The bedsheets were properly admitted into evidence to illustrate what the prosecu-trix claimed occurred. Allford v. State, 31 Ala.App. 62, 12 So.2d 404, cert. denied, 244 Ala. 148, 12 So.2d 407 (1943); Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967); Seals v. State, 271 Ala. 142, 122 So.2d 513 (1960); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960); Roberts v. State, 346 So.2d 473 (Ala.Cr.App.), cert. denied, 346 So.2d 478 (Ala.1977); Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975). The sheets were properly identified as coming from the bed of the appellant where the rape occurred, and they tended to show the commission of the crime and the manner in which it was committed because they contained blood and semen. The fact that the toxicologist could not match the blood to that of the prosecu-trix went to the credibility of the evidence and not its admissibility.

Under the appellant’s own confession he is guilty of the offense charged, Huggins v. State, 41 Ala.App. 548, 142 So.2d 915 (1962), consent being no defense to a prosecution under our carnal knowledge statute. Powell v. State, 53 Ala.App. 30, 297 So.2d 163 (1974).

After the trial court had advised the appellant of his right to appeal the appellant responded:

“No, sir, I know I was wrong and I want to pay for what I did.”

The appellant was convicted of an utterly debase and corrupt act revealing a lack of moral, sexual and social restraint totally shocking to this court. Despite our revulsion to the crime we have searched the transcript for error and found none. The appellant both at trial and before this court has been well represented by court appointed counsel who diligently and admirably defended a client not of his own choosing in the best traditions and standards of the legal profession.

The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.