author: BOWEN, Judge.

text:
    David CLIATT, Jr. v. STATE.
    4 Div. 547.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.

      Gary E. Davis, Phenix City, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from a conviction for second degree burglary specifically breaking and entering in the daytime with the intent to steal. Punishment was set at eight years in the penitentiary. The appellant has been represented at trial and on appeal by retained counsel.

On Saturday, March 13, 1976, the appellant went to the residence of Christine Tar-ver in Phenix City. He knocked on the front door and told Ms. Tarver that he wanted to come in and tell her something. He also stated that he had- some money to give her. After the appellant went to the front door he went to the side window and told Ms. Tarver the same things. However Ms. Tarver did not let the appellant inside the house and told him to leave. She did not take the money offered by the appellant.

At approximately 7:00 on the evening of the following day the appellant returned to Ms. Tarver’s residence. Again he went to her front door and knocked saying he wanted to come in and talk to her. Ms. Tarver told him to leave, that she did not want to talk to him and did not want his money. However the appellant “just kept on saying the same thing over and over”. He started kicking the front door and lost the heel on his shoe. Then he went around to Ms. Tarver’s bedroom window on the side of the house. He pulled a board off a broken window that had one or two panes missing and stuck his head and shoulders in the window.

The appellant stayed about two hours and most of the time he was begging Ms. Tarver to open the door for him. During this time a “running conversation” was had between Ms. Tarver and the appellant with the latter “wanting to come in” and Ms. Tarver refusing to let him in.

During these two hours Ms. Tarver’s niece came and Ms. Tarver told her to go tell her mother to call the police. While the appellant was raging outside, the house was occupied by Ms. Tarver, her four children who were in their room playing and Ernestine Strieter.

Ms. Tarver’s brother, Clifford Austin, arrived and observed the appellant with his head in the window and his shoulders up to the window. The appellant’s shoulders were too big to get through the window. Mr. Austin asked the appellant if he was trying to break in his sister’s house and the appellant pulled his head out of the window. Austin went inside the house to see if his sister was all right. While Austin was inside, the appellant put his head back in the window and said he was going to “whip” Austin. Shortly thereafter the police arrived.

Detective Robert Sawyer of the Phenix City Police Department testified that the appellant was intoxicated in his opinion.

Lieutenant Chappell Ray of the Phenix City Police Department stated that when he arrived the appellant was sitting in the back of Detective Sawyer’s car. He investigated and found the front door damaged and the heel to the appellant’s shoe on the front porch: The appellant’s shoe was found beside the porch. Detective Sawyer also testified that in his opinion the appellant was intoxicated.

Because of the importance of the following facts we have reserved them until this point in our discussion of the events surrounding the commission of the charged crime.

Ms. Tarver “knew” the appellant both in the accepted and Biblical senses of the term. Ms. Tarver’s husband was in prison; the last time she saw him was in June of 1974. Ms. Tarver “dated” the appellant for about three months during 1975. During the time that they were “dating” Ms. Tar-ver and the appellant had had sexual relations about seven times and the appellant had given her twenty-five dollars on five occasions because “he wanted to help her out”. At trial, Ms. Tarver’s youngest child was seventeen months old. Ms. Tarver was also pregnant. Neither of these children was fathered by the appellant.

Ms. Tarver testified that she did not know why the appellant was trying to break into her house. The appellant never “offered” or threatened to steal anything from her house.

The appellant took the witness stand in his own behalf and stated that he saw Ms. Tarver about 11:00 on the night of March 14th. He testified that he was inside her house and was “trying to go to bed with her”, but she said that she didn’t have any birth control pills. The appellant also testified that he kept trying to go to bed with her but Ernestine knocked at the door and Ms. Tarver sent him out a side door. The appellant told her he “would have some money the next day to give her”.

Sunday, true to his word, the appellant returned with the money. He admitted kicking the front door and accidentally pulling the board off the window while trying to talk to Ms. Tarver after she refused to let him in the front door. He denied ever having entered the window with his head or shoulder. He stated. that his purpose in going to see Ms. Tarver was to give her some money and not to steal anything from her.

The appellant has a criminal history of attempt to assault to rob, petit larceny, and attempt to commit burglary in the first degree. He denied ever stating that he would kill Ms. Tarver if she took out a warrant for his arrest. The state placed Ms. Tarver’s mother on the witness stand to show that the appellant did make such threatening remarks.

I

The appellant argues that the state failed to prove the requisite intent necessary to sustain a conviction for breaking and entering with the intent to steal, and that the trial court thereby erred in denying his motion to exclude the state’s evidence.

The evidence clearly shows a breaking and entering however there is absolutely no evidence that the appellant, at any time, formed or maintained any intent to steal anything from Ms. Tarver.

The state cites the rule that where the evidence shows a breaking and entering, the jury may reasonably infer the intent to steal from the mere presence of the accused in a dwelling or other building under circumstances showing a breaking and entering. However this is not a true and accurate statement of this rule of evidence.

The proper rule is that the unexplained breaking and entering into a dwelling house in the nighttime is in itself sufficient to sustain a verdict that the breaking and entry was done with the intent to commit larceny rather than some other felony. 12 C.J.S. Burglary § 55, at p. 732; 13 Am. Jur.2d Burglary § 52 at 353; Behel v. State, 40 Ala.App. 689, 122 So.2d 537 (1960); 2 Wharton, Criminal Law, §§ 408 — 409 at pp. 25-30.

“The general rule is that in the absence of explanation, the jury may infer from the fact of his breaking and entering that his intent was to commit larceny.” State v. Woodruff, 208 Iowa 236, 225 N.W. 254 (1929) cited in both C.J.S. and Am.Jur.2d citations given above. (Emphasis added)

Once there is evidence or explanation to the contrary the presumption disappears. The foundation and reason for this presumption and its limitations are crystal clear.

“The intelligent mind will take cognizance of the fact that people do not usually enter the dwelling of others in the nighttime, when the inmates are asleep, with innocent intent. The most usual intent is to steal; and when, there is no explanation or evidence of a different intent, the ordinary mind will infer this also.” Woodruff, 225 N.W. at 256.

Here there is no evidence whatsoever that the appellant broke and entered with the intent to steal. There are no circumstances which would even tend to indicate that his intent was such. If this were all the evidence presented, the jury could have properly inferred that the appellant committed the breaking and entering with the intent to steal. However the state’s own evidence not only shows a lack of evidence on intent but reveals that the appellant wanted to come in to “talk” and give Ms. Tarver some money. The facts are highly and strongly indicative of the intent of the appellant. His own actions, excluding his testimony, reveal his intent. The breaking and entering, if accompanied by any intent, was with the intent to have adulterous relations with Ms. Tarver. However it is not burglary to enter a house for adulterous purposes, when adultery is not a felony. State v. Cooper, 16 Vt. 551 (1844). See also Hooks v. State, 154 Tenn. 43, 289 S.W. 529 (1926). In reaching this conclusion we have considered the state’s evidence as construed most strongly against the appellant. From the actions of the appellant and the attendant circumstances there is no reasonable probability that he broke and entered with the intent to steal. Such an inference or presumption is not justifiable under the circumstances of this case. 3 McElroy, The Law of Evidence In Alabama, § 451.01 at 267. “Presumptions . . . may be looked on as the bats of the Law, flitting in the twilight but disappearing in the sunshine of actual facts.” IX Wigmore on Evidence 289.

We have read and carefully considered all the evidence adduced upon the trial. We are clear to the conclusion, and it is the judgment of this court, that the state failed to meet the burden of proof necessary for conviction. To allow the verdict to stand would permit a conviction based on' “guesswork, suspicion, and conjecture”. Sauls v. State, 29 Ala.App. 587, 199 So. 254 (1940). We note that the original complaint against the accused was obtained by Ms. Tarver in the Recorder’s Court of Phenix City and charged the appellant with breaking and entering with the intent to murder or do bodily harm. Our decision is made with caution and proper regard for the function of the jury in a criminal case. However an indictment for burglary must set out and define the felony intended to be committed. Of course, any issue of fact was for the jury. We see no evidence at all, however, that the appellant had any intention to steal.

We forego a discussion of the other issues raised on appeal as we have considered them and are of the opinion that they are not likely to arise again on a retrial of the appellant.

For good cause shown, this case is due to be

REVERSED AND REMANDED.

All Judges concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Billy Scott BARNETT v. STATE.
    6 Biv. 481.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.

      James W. May, of Beavers, May & De-buys, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: fifteen years imprisonment.

This case arose out of an unsuccessful murder attempt on the life of Gregory Allen Brooks by a gunman hired by the appellant. The victim Brooks was age sixteen and the appellant was age nineteen. They worked at Liberty Super Market in Birmingham. On Thursday, prior to the assault on the following Wednesday, March 3, 1976, the appellant came to Brooks’ home and presented Brooks with a lettér in which appellant stated among other things that he, Barnett, was “gay.” Brooks told the appellant that he would have nothing more to do with him, and the appellant left the house in an angry mood. Brooks testified that around 2:15 P.M. the following Wednesday, a stranger came to his residence, stated that he had car trouble, and asked to use the telephone. Brooks allowed the stranger, later identified as Eric Neal Dameron, to enter the house. Dameron then took a pistol from a paper bag and shot Brooks five times, wounding him in the legs, arms and back. Dameron pointed the gun directly at Brooks’ head and pulled the trigger a sixth time, but the gun failed to fire and Dameron fled out the back door.

Eric Neal Dameron admitted shooting Brooks for which he was to have been paid $100.00 by the appellant. Dameron testified that on March 2, 1976, the appellant gave him a gun belonging to appellant’s father, showed him a picture of Brooks, gave him five cartridges and $60.00, and pointed out Brooks’ home to him. Dameron stated that on Wednesday, March 3, 1976, appellant told him to kill Brooks and drove him over to the victim’s neighborhood. He said that he shot Brooks, ran out the back door and threw the gun in a sewer.

Officer L. R. Skipper testified that on March 5, 1976, he was dispatched to the East End Hospital after the appellant had called the police and requested to talk to an officer. He entered appellant’s hospital room, asked who was the complainant, and the appellant told him, “I’m the one that called you. I hired a man named Dameron to shoot Greg Brooks.” Officer Skipper stated that he then advised appellant of his rights and interviewed him. He testified that the appellant’s speech was coherent and that the statement was made voluntarily without threats or promises. A taped statement was taken later that day by Sgt. Morgan Knight in which the appellant identified and described Dameron and told Knight where he believed Dameron discarded the pistol. The appellant, who had taken an overdose of drugs on the date of the assault, was hospitalized and was recuperating at the time he gave the two statements at the hospital.

Appellant’s father testified that he owned a .32 caliber Colt revolver similar to the one identified at trial as the gun used by Dameron. The witness stated that he discovered his revolver missing on Thursday, March 4,1976, and that the gun exhibited during the trial looked like the one he was missing. Experts testified that a spent bullet found at the scene of the shooting was fired by that pistol and that latent palm prints found at the scene were those of Dameron.

I

The appellant contends that because this was his first offense, the trial court erred in refusing to exercise its discretion to grant him youthful offender status pursuant to Act No. 335, Acts of Alabama 1971, 3rd Special Session, approved February 10,1972 (Title 15, § 266(1) et seq., Code of Alabama 1940, Recompiled 1958). We do not agree.

The youthful offender act provides that a minor who has committed a crime involving moral turpitude, which was not disposed of in juvenile court, may be investigated and examined by the trial court to determine whether he should be tried as a youthful offender. After such investigation, the trial court may direct that the accused be arraigned as a youthful offender, or he may deny youthful offender treatment. The act specifically states that the granting of youthful offender treatment is in the discretion of the trial court.

The trial judge in the instant case requested and received -a thorough investigative report from the state probation officer. That report was duly considered at the hearing on the appellant’s motion for youthful offender status. Once an examination and appropriate investigation are completed, the youthful offender act vests the trial judge with almost absolute discretion in granting or denying youthful offender status. Morgan v. State, 291 Ala. 764, 287 So.2d 914 (1973); East v. State, Ala.Cr.App., 331 So.2d 414 (1976); McClendon v. State, Ala.Cr.App., 341 So.2d 174 (1976). Considering the extreme seriousness of the crime involved, we find no abuse of discretion in the trial court’s denial of youthful offender treatment. Although this was the appellant’s first offense, the trial court was entitled to give great weight to the nature of the crime charged. Clem- mons v. State, 294 Ala. 746, 321 So.2d 238 (1975).

II

The appellant next contends that the State did not adequately prove the volun-tariness of the confession given to Officer L. R. Skipper.

The basic test for admissibility of a confession is whether it was freely and voluntarily made. Price v. State, 52 Ala. App. 21, 288 So.2d 803 (1974). Before an inculpatory statement may be admitted into evidence, the State must make an eviden-tiary showing sufficient to rebut the prima facie presumption of involuntariness, to the satisfaction of the trial judge. Otinger v. State, 53 Ala.App. 287, 299 So.2d 333 (1974).

It is our opinion that the State made a proper showing during voir dire examination of Officer Skipper that the confession was voluntary. Where, as here, it appears from a review of the surrounding circumstances that the extra-judicial confession was not induced by threat or promise of reward, express or implied, operating to produce in the mind of the accused apprehension of harm or hope of favor, the confession is admissible. Bass v. State, 55 Ala.App. 5, 312 So.2d 576 (1975).

“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . There is no requirement that police stop . a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment . . . .” Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Allred v. State, 55 Ala. App. 74, 313 So.2d 195, cert. denied 294 Ala. 751, 313 So.2d 208, cert. denied 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86 (1975).

Appellant makes the assertion that an overdose of drugs taken by him over thirty hours before the confession rendered his statement involuntary under Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967). True, Beecher did hold a confession to be involuntary because the accused was under the influence of drugs. However, inquiry into the issue of voluntar-iness requires more than a “mere color-matching of cases,” Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961). Beecher involved an instance in which the accused was still in a “kind of slumber” from an injection of morphine received less than an hour before the lengthy interrogation began. Also see: Beecher v. Alabama, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972). Th'e statement in the instant case arose from no interrogation whatsoever. It was totally voluntary and was made over thirty hours after the drugs were taken. A realistic appraisal of the circumstances attending the taking of the confession in this case establishes its voluntariness without question.

III

Appellant’s third contention is that there was insufficient corroboration of the accomplice’s testimony. It certainly appears to this Court that the appellant’s confession, the tentative identification of the weapon by the appellant’s father, and other evidence, would be sufficient to connect the appellant with the offense and to corroborate the testimony of Dameron. However, whether the evidence sufficiently corroborated the testimony of the accomplice 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. Therefore, the trial court was not presented with an opportunity to rule on the sufficiency of corroboration as a question of law. Alexander v. State, 281 Ala. 457, 204 So.2d 488 (1967); Trussel v. State, 44 Ala.App. 194, 204 So.2d 839 (1967).

IV

Appellant’s final contention is that the trial court erred in meting out a sentence to the appellant which was substantially in excess of that meted out to the co-defendant.

Title 14, § 38, Code of Alabama 1940, states that the punishment for assault with intent to murder will be “imprisonment in the penitentiary for not less than two nor more than twenty years.” The appellant’s sentence of fifteen years was within the statutory limit, and hence must be affirmed. It was the prerogative of the trial court to set the punishment, within the statutory limits, as sound discretion should dictate. Smith v. State, 55 Ala.App. 323, 314 So.2d 925 (1975). The trial court acted within the limits provided by statute in setting punishment, and its discretion is neither reviewable nor revisable. Wood v. State, 28 Ala.App. 464, 187 So. 250 (1939).

AFFIRMED.

All the Judges concur.


author: SIMMONS, Retired Circuit Judge.

text:
    Paul JUZANG v. STATE.
    1 Div. 795.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    John Coleman, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant, a non-indigent here and at trial level, was indicted for and convicted of murder in the second degree. Punishment; ten years imprisonment.

After the jury was selected and excluded from the room, appellant’s counsel moved the court to require the State to furnish him “with a list of names of all their witnesses that the State might know of that have or possess information that would be favorable to the defendant, either in the impeachment of witnesses or have favorable testimony going to the merits of the case.”

Thereupon, the Deputy District Attorney replied:

“Your Honor, in response to that I would just say this is the day of trial and the trial has already been set and on December 16th it was passed at the request of the defense. At no time has any motion been filed before today. As far as any — I will be glad — . Mr. Coleman may look at the witness list; I am not going to hide anything and I will tell the Court the names of the witnesses we are going to call. Herbert Smith, Portia Ju-zang and Edna Lee Robinson. We are not going to call a witness by the name of Joe Miles because he is out of the city. Those are the only four eye witnesses that we know of.
“THE COURT: All right, in view of the lateness of the motion and in view of this statement, I am going to — .
“MR. COLEMAN: Judge, may I take a showing?
“THE COURT: Yes, sir.
“MR. COLEMAN: The reason the motion comes so late is because I wanted to be sure we got down to the last minute. I didn’t know when or if ever he would become aware of any witnesses that would be beneficial to the defendant. He may have found out yesterday or he may have found out this morning. That is why it comes at this hour.
“THE COURT: Well, I am going-in view of the lateness of it, I am going to take that as a sufficient answer to your request. I deny for the record your motion. All right, get the jury out — .”

We have examined the record and fail to find that the State withheld or concealed any evidence that was favorable to defendant. Therefore, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, cited by appellant, has no application.

The only witness of the three who was favorable to defendant was his wife, Portia Juzang, who in essence testified that the shooting was an accident. All the witnesses used by the State were available to defendant.

The motion to produce was of a “scatter-gun” type and amounted to a mere “fishing expedition.” It lacked specificity. Johnson v. State, Ala.Cr.App., 335 So.2d 663(27); cert. den., Ala., 335 So.2d 678.

We said in Fuller v. State, Ala.Cr.App., 338 So.2d 492(2, 3) that a motion to produce should be timely presented. Quote, from Fuller, supra:

“ * * * The trial court should not be put in error for denying a motion to produce that which would call for a delay in, or interruption of a trial, in order to determine whether a particular document exists or can be found. Powers v. State, 49 Ala.App. 690, 275 So.2d 369.”

The Court did not err in overruling defendant’s motion, supra. We find no error in the record. The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 3281); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Alexander PRICE, alias v. STATE.
    3 Div. 745.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.

      Kenneth T. Hemphill, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Kidnapping; sentence: ten years imprisonment.

Early on the morning of November 8, 1976, as the eighteen-year-old prosecutrix was walking to school, she was accosted by William Dalton Norsworthy. He forced her into a car in which he and the appellant were riding. She was forced to sit between the driver, Norsworthy, and the appellant as they left Montgomery and drove into Elmore County, near the Sand Town area. They drove to a deserted spot where they forced the victim to strip, and they both then raped her. The two men then drove away, leaving the prosecutrix stranded in the deserted area. The victim walked to a road, flagged down a truck, and was taken to the sheriff. She was later taken to Baptist Hospital in Montgomery where she was examined and treated for rape. After leaving the hospital, the victim viewed two lineups, during which she identified both the appellant and his accomplice. Both men had been arrested before noon on the date of the crime, based upon a description of their automobile given by the prosecutrix and witnesses to the abduction.

The appellant’s brief sets out only one ground for reversal, based upon the alleged prejudicial effect of four statements made by the prosecutor in his closing argument to the jury.

The first statement was:

“Folks, only in America could we have Kenneth Hemphill come to the assistance of a thug like Alexander Price.”

The defense made a general objection which was sustained by the trial court. Without a request from appellant, the trial court instructed the jury to disregard the comment.

The second statement complained of was: “Let’s go back to November 6th, 7:50 in the morning. [Prosecutrix] was grabbed by her left arm. Was Barry Teague there to yell T object’? Was the Honorable Perry Hooper there to say T sustain’? Where was Kenneth Hemphill on that date?”

Appellant’s general objection was sustained by the trial judge.

The third comment was:

“I submit to you that Alexander Price is unworthy of the benefits accorded the accused — ”

Another general objection was interposed to which the prosecutor replied, “I submit he’s unworthy, and it’s argument, Your Honor.” Appellant then moved for a mistrial. The court’s reply was:

“I will state this. What counsel has to say as I said to you earlier, is argument, in summary of what they see the facts and law to be, and I want you to have that in mind. I will sustain the objection, but I deny your motion for a mistrial.”

The record shows that the trial court sustained the appellant’s objection to the above three statements. The trial court properly, promptly, and without a request from the appellant to do so, admonished the jury to disregard the comments of counsel, and instructed the jury as to the purpose of arguments by counsel.

Our Supreme Court in Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973) stated:

“It is a general rule that where prejudicial statements are made in the heat of argument, even though improper, in accommodation of our adversary system, such statements are considered capable of being eradicated by the trial judge in sustaining objections thereto or by appropriate instructions to the jury or both. But our cases also recognize that an exception to this rule exists where, irrespective of the best efforts of the trial judge to disabuse the mind of the jury of any prejudicial impression, the conviction obtained is not in an impartial atmosphere. . . . ” (Citations omitted.)

The above statements of counsel were not so prejudicial, individually or in their cumulative effect, as to create an atmosphere of bias and prejudice that would require the granting of a mistrial. Scott v. State, 47 Ala.App. 509, 257 So.2d 369 (1972).

The fourth statement to which objection was raised was:

“Now, ladies and gentlemen, I won’t belabor the evidence, but I want to say this. You have it within your power to turn your back on the women and children of this community — ”

The trial court overruled the general objection of the appellant.

This latter statement appears to be no more prejudicial than a general appeal for law enforcement in the county, by asking the jury not to turn their backs on the people of the community. Embrey v. State, 283 Ala. 110, 214 So.2d 567 (1968); Green v. State, 19 Ala.App. 239, 96 So. 651 (1923); 6A, Alabama Digest, Criminal Law, § 723(3). Neither did the prosecutor’s comments here single out a juror or group of jurors and appeal to their fears or prejudices. Atchison v. State, Ala.Cr.App., 331 So.2d 804, cert. denied, Ala., 331 So.2d 806 (1976).

It is appellant’s contention that the reference to children in the above statement had the effect of accusing him of committing criminal acts against children. We note here that while the victim was not an infant, neither was she an adult, We deem the prosecutor’s argument to be a reasonable inference which he may argue from the fact in evidence that the victim was an eighteen-year-old school girl, on her way to school at the time of the abduction.

This Court has noted many times that a trial, “is a legal battle, a combat in a sense, and not a parlor social affair.” Arant v. State, 232 Ala. 275, 167 So. 540 (1936). Such statements by counsel are usually weighed by the jury at their true worth. That is, the jury views such statements as mere argument, and not as evidence to be weighed in reaching their verdict. This is especially so where the trial judge gives proper instruction to the jury concerning the purpose of argument by counsel and to the weight which should be accorded such statement.

Additionally, we note that each objection made by the appellant was general in nature. It is the duty of counsel, objecting to statements made in argument by opposing counsel, to make a specific objection pointing out substantially the language deemed objectionable. The trial court, as a general rule, will not be put in error for overruling a general objection interposed to statements made by opposing counsel. McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973); Ferguson v. State, 36 Ala.App. 358, 56 So.2d 118 (1952). The only exception to this general rule is where the remark or argument is so grossly improper and highly prejudicial to the defendant, “that neither retraction nor rebuke by the trial court would have destroyed its sinister influence. . . . ” Anderson v. State, 209 Ala. 36, 95 So. 171 (1922).

We find that the above four comments were not so grossly improper and highly prejudicial that their effect could not be eradicated by proper ruling of the trial judge, nor did their cumulative effect create an atmosphere of bias and prejudice incapable of eradication by proper admonition to the jury.

We find no error on the part of the trial judge in this regard.

AFFIRMED.

All the Judges concur.


author: CLARK, Supernumerary Circuit Judge.

text:
    Frank J. PATZKA v. STATE.
    3 Div. 749.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.

      Edward Cunningham, Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

Appellant was convicted of kidnapping, in violation of Code of Alabama 1940, Tit. 14, § 6, which provides:

“Any person who forcibly or unlawfully confines, inveigles, or entices away another, with intent to cause him to be secretly confined, or imprisoned against his will, or to be sent out of the state against his will, shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than ten years.”

He was sentenced to imprisonment for ten years.

Upon arraignment, defendant entered a plea of not guilty and a plea of not guilty by reason of insanity. Thereafter, the day before the trial commenced, he filed a plea of autrefois convict, to which the State filed a demurrer, which was sustained by the court.

In their briefs, the parties recognize that the evidence relative to the question of defendant’s guilt, as well as any question as to former jeopardy raised by his plea of autrefois convict, needs no lengthy recitation. It is summarized in a one-page Statement of Facts of appellant, accepted by appellee, which we paraphrase, chiefly for the sake of anonymity of the unfortunate victim, a young married woman residing in Montgomery, who was unknown to defendant.

On Sunday morning, September 14, 1975, the victim, while on her way to Sunday School, stopped at the Dalraida Shopping Center to mail some letters. Upon returning to her automobile, which she had left with the motor running, defendant forced her at gun point to allow him to get in the automobile with her and permit him to drive the automobile away. In leaving the shopping center area, defendant asked her if she had any money; when she responded in the affirmative, he made her give the money to him. The defendant then drove the automobile with the victim therein to the area of Mt. Meigs, where the car was stopped and the two remained therein for a while. While the car was there stopped, defendant took the victim’s watch. She managed to get out of the car in an effort to escape defendant, but he caught her and brought her back to the automobile. Later, they left and drove to Atlanta, Georgia, where defendant told her he was going to release her, but he did not release her. He returned with her toward Montgomery, reached Mt. Meigs again, left the Interstate, and ended up in a nearby wooded area in Macon County where defendant strangled and beat the victim, leaving her there and driving therefrom in her automobile to Montgomery where he was subsequently apprehended.

Prior to appellant’s trial in the case under review, he was tried and convicted of robbery and of assault with intent to ravish the same victim, as charged in two separate indictments and in two separate cases.

Appellee correctly adds to appellant’s Statement of Facts, that while defendant and the victim were parked in the Mt. Meigs area, he told her that he was waiting for some friends who were intending to escape from the Mt. Meigs Industrial School; he told the victim to take off her clothes. She told him that she had to get out of the car in order to undress, and when she got out of the car, she ran off into the woods, but defendant caught her and forced her back into the automobile. The victim attempted to let someone know that she was in trouble, but defendant prevented every effort. He had his gun all the time and forced the victim to accompany him around Underground Atlanta. After they returned to the Mt. Meigs area and had driven into Macon County and parked, defendant pulled a knife and held it at the victim’s throat, strangled her with her belt, beat her in the head and neck, kicked her in the stomach and left her unconscious, about dark Sunday afternoon. On Monday afternoon, she regained consciousness, crawled to the highway, and stopped a passerby, who took her to the emergency room of a hospital in Tuskegee.

When defendant was apprehended at Eastbrook Shopping Center in Montgomery on September 15, 1975, he had the victim’s watch in his wallet and some pictures of the victim and her former roommate. The victim’s automobile was found at the shopping center. The officers went to the area where the victim had been left by defendant and there found her belt, her Social Security card, pictures belonging to her which she had carried in her purse, and her automobile warranty book. Near the shopping center where defendant was apprehended, the officers found an automatic pistol, a clip, a blue jean jacket, and a multicolored headband. He had a knife in his pocket at the time of his apprehension.

Defendant did not testify in the case, and no evidence was offered in his behalf.

Appellant insists that the court was in error in sustaining the State’s demurrer to defendant’s plea of autrefois convict. The plea was substantially in Code form. Code of Alabama 1940, Tit. 15, § 288, Form 5. If the question whether there was prejudicial error committed in the sustention of the demurrer to the indictment depends solely on the question of the sufficiency of the plea, we would be at a loss to uphold the court’s ruling in this respect. However, it is to be noted that, in addition to the plea, defendant filed an affidavit wherein he purported to set forth the facts upon which he relied in support of his plea. The affidavit, although in some respects in conflict with some of the evidence, purports to be a condensation of the testimony summarized above.

In Inman v. State, 39 Ala.App. 496, 104 So.2d 448 (1958), it was held:

“Ordinarily, an issue of former jeopardy should be tried separately and in advance of the issue of not guilty, and the issue is for the jury. Parsons v. State, 179 Ala. 23, 60 So. 864.
“However, where the evidence introduced shows without contradiction that the plea could not avail even had the issues been submitted to the jury, a defendant is not prejudiced in his substantial rights by the action of a court in denying such plea without submitting it to the jury. Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284.”

No prejudicial error occurs in a trial court’s failure to try, and have a jury determine, a plea of former jeopardy prior to trial of the case in chief, if and when the record shows affirmatively, and without dispute, that there was no former jeopardy. Mikell v. State, 242 Ala. 298, 5 So.2d 825 (1941); Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970).

Whether a seizure or detention for the purpose of committing rape, robbery, or similar offense is a separate crime from kidnapping when committed during the course of the kidnapping has received voluminous consideration. Annot., 17 A.L.R.2d 1003, Kidnapping as Separate Crime ; Annot., 43 A.L.R.3d 699, Kidnapping — Aspor-tation for other Crime. As shown by the array of authorities cited, many convictions for kidnapping as a separate crime from the other mentioned crimes committed in the course of the kidnapping have been upheld. In others they have not. It is to be noted that in most of the cases in which the convictions were not upheld, the period of confinement or detention was little longer than that necessary for the perpetration of the other crime or crimes. Furthermore, in some of such cases the crime of kidnapping involved was different materially from the crime defined by statute in the case now under review. A valuable aid to an understanding of the crime of kidnapping for which appellant was tried is Judge Book-out’s opinion in Ball v. State, 335 So.2d 230 (Ala.Cr.App.1976). In therein reversing the trial court, it was made clear that in kidnapping under Tit. 14, § 6, Code of Alabama 1940, more is necessarily involved than the unlawful detention or seizure of the body of another that is often involved in an assault, an assault and battery, rape, or robbery. It is not a mere false imprisonment. There must be “an intent to secretly confine or imprison.”

In the instant case, the indictment followed the statute in charging that the conduct of defendant was “with intent to cause [the victim] to be secretly confined, or imprisoned against her will.” The trial court orally charged the jury that in order for defendant to be guilty of the crime charged, his conduct must have been “with the intent to cause [the victim] to be secretly confined or imprisoned against her will.”

There was abundant evidence to support a finding that forcible conduct of defendant as directed toward his victim was with the intent to cause her to be secretly confined or imprisoned. For a period of approximately eight or nine hours, he gave her no chance to make known her distress or location to others. His constant conduct was directed toward her secret confinement. Though he at times had other intentions, the intention to rob and the intention to ravish, they were not preclusive of the intention to confine her secretly. Her secret confinement may have been necessary for a short time in order for defendant to have robbed her of her money and her automobile, but after defendant had taken her money at the point of a gun and in like manner had obtained control of the automobile, her secret confinement was no longer a part of that crime. When he assaulted her with the intent to ravish, his need for her secret confinement for the purpose of that crime ended with its commission.

Whatever the relation between kidnapping and some other crime while both crimes are being committed, kidnapping is separate and apart from the other crime after the other crime has become fait ac-compli.

Appellant relies upon a statement in Gandy v. State, 42 Ala.App. 215, 159 So.2d 71, 72, as follows:

“The test of former jeopardy is whether the evidence necessary to sustain the second indictment would have been sufficient to secure a legal conviction on the first.”

In applying the quoted test, we find that the evidence necessary to sustain the indictment herein would not have been sufficient to secure a legal conviction in either of the other cases forming a basis for the plea of autrefois convict. Although the evidence presented in the case under consideration included some incidents of the other two crimes, such evidence was not necessary to sustain appellant’s conviction in this case. Furthermore, appellant could have well been convicted of each of the other two crimes without any evidence other than the testimony as to the facts thereof and the immediately surrounding circumstances.

As in many of the cases in which the courts have struggled with the question whether kidnapping is a separate crime from other crimes, such as rape and robbery, the guilt vel non of appellant of kidnapping turns on the same considerations essential to a determination of the validity of his plea of former jeopardy.

The crimes of robbery and assault with intent to ravish for which appellant was convicted were separate and apart from, as distinct legal crimes, the crime of kidnapping as charged in this case, and the action of the trial court in sustaining the State’s demurrer to defendant’s plea of autrefois convict was without prejudice to defendant.

We have searched the record for error prejudicial to defendant and have found none. The judgment appealed from should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . The record indicates that defendant was also tried and convicted of rape of the same victim in Macon County, but this conviction does not form a part of the plea of autrefois convict.


text:
    Frank MACK v. STATE.
    3 Div. 759.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.

      William W. Gobrecht, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and John B. Rucker, III, Asst. Atty. Gen., Montgomery, for the State.
   BOWEN, Judge.

The appellant was indicted for the first degree murder of Jonas Foster, Jr. A jury found him guilty of murder in the second degree and fixed punishment at ten years imprisonment. Judgment and sentence were accordingly and properly entered by the trial court. The appellant’s retained trial counsel was appointed by the trial court to represent him on this appeal.

While the appellant asserts eight assignments of error in his brief, four general questions are present for our consideration: (1) Whether self-defense justified the killing; (2) whether the admission of a confession and the murder weapon constituted error; (3) whether the trial court gave the proper instructions on self-defense, veracity, and bad character; and (4) whether the court reporter’s failure to provide a transcript in a timely manner resulted in irreparable harm to the defendant.

Shortly after midnight in the early morning hours of June 12, 1976, Jonas Foster, the deceased, stopped Robin Marie Mack, the sister of the appellant, along Day Street in Montgomery, Alabama. He asked her to make a telephone call for him and the two walked down to the G & W Grocery Store where there was an outside telephone booth. As they were walking Ms. Mack saw her boyfriend, Morris Davis, and her brother, the appellant, sitting in a parked car. The appellant drove the automobile past Ms. Mack and Foster. Morris Davis called her. by name and said something which she did not understand. As Foster and Ms. Mack continued walking, Davis and the appellant made a. turn and followed them.

As Foster and Ms. Mack arrived at the grocery store Davis and the appellant drove up. Davis got out of the passenger’s side of the car, came up to Foster and said, “Man ain’t I told you about being with her.” Davis then “hauled off and hit” Foster knocking him to the ground. Foster pulled a pistol from his pocket and fired one shot at Davis. Davis knocked the pistol out of Foster’s hand and ran behind his car and tried unsuccessfully to open the trunk. Foster came after Davis and the two began “tussling”. As they struggled, Davis told the appellant to “shoot the m_ f_

Although there was evidence that Ms. Mack had previously stated that the deceased pointed his pistol at the appellant before the appellant fired, at trial she testified that she never saw the deceased point his pistol at the appellant. She also testified that the appellant shot Foster five times in the back. A postmortem examination of the deceased revealed four gunshot wounds to Foster’s body, two in the back, one on the side of the left shoulder, and another one in the front of the right shoulder. Death resulted from massive bleeding into the stomach area and the body cavities subsequent to multiple gunshot wounds to the back.

After the shooting Ms. Mack and Davis left together in the car and the appellant walked home. One week before his trial, the appellant threatened Ms. Mack about testifying.

The appellant took the witness stand and testified that at approximately 9:00 on the night of the shooting, he went home and got his pistol because he did not need to go off “naked” without it. The appellant stated that after Foster shot at Davis, Foster pointed the pistol in the appellant’s face and pulled the trigger but the pistol only “clicked” and misfired. Examination of Foster’s pistol revealed three live bullets, one of which had misfired. The appellant further claimed that he shot Foster five times after Foster attempted to shoot him. He denied shooting Foster in the back.

I

The appellant initially contends that when the deceased used a pistol to fend off a simple assault he became the aggressor and the appellant was then entitled to meet Foster’s force with a like degree of force. Additionally it is asserted that there is no evidence that the appellant and Davis were on a joint venture so as to make the appellant a principal in the assault by Davis.

If the appellant, in shooting the deceased is invoking the doctrine of self-defense in the protection of a third person, having had a knowledge of the circumstances, the appellant steps into the shoes of Davis. Griffin v. State, 229 Ala. 482, 158 So. 316 (1954); Collier v. State, 49 Ala.App. 685, 275 So.2d 364 (1973). The evidence is clear and without dispute that Davis was the initial aggressor. The right of self-defense does not imply the right of attack and a provoked attack is no defense.

“And the general, if not the universal, rule is that one who slays another, to be justified or excused on the ground of self-defense, must have been without fault in provoking the difficulty, and must not have been the aggressor, and must not have provoked, brought on, or encouraged the difficulty, or produced the occasion which made it necessary for him to do the killing.” Wharton, Homicide, p. 502.

A defendant, to avail himself of self-defense, must have been free from fault in provoking or bringing on the difficulty which resulted in the killing. It is not enough that in the course of the difficulty it became necessary for the defendant to kill the deceased in order to save his own life. For a list of cases so holding see 11 Alabama Digest, Homicide, 112(11).

Davis, having provoked the difficulty, had no justification for killing the deceased. He could not provoke a quarrel, take advantage of it and then rely on self-defense as justification for the murder. Since Davis may not rely on self-defense neither can the appellant.

Alternatively, if the appellant maintains that he shot the deceased in self-defense, this was a question for the jury. There was evidence that the appellant shot the deceased in the back. There was conflicting evidence that the deceased aimed his pistol and “clicked” his pistol at the appellant before the appellant fired five times in self-defense. This conflicting evidence presented a question for the jury. Graham v. State, Ala.Cr.App., 339 So.2d 110, cert. denied, Ala., 339 So.2d 114 (1976); Moore v. State, 54 Ala.App. 22, 304 So.2d 263, cert. denied, 293 Ala. 768, 304 So.2d 268 (1974). Additionally, it was for the jury to determine whether or not the appellant was aiding Davis when he shot the deceased. Brown v. State, 41 Ala.App. 641, 148 So.2d 255 (1963); May v. State, 42 Ala.App. 401, 166 So.2d 860, cert. denied, 277 Ala. 700, 166 So.2d 865 (1963).

II

A. The appellant argues the Miranda warnings given to the appellant immediately after his arrest while the accused was in front of his home were incomplete. On voir dire, in determining the voluntariness of the statement and confession made by the appellant, Detective Cecil Humphrey testified that he advised the appellant of the following constitutional rights from memory:

“(W)e advised him he didn’t have to answer any questions, that he could remain silent, that any questions he did answer would be used against him in court, that he had the right to have an attorney. If he couldn’t afford an attorney, the court would appoint him an attorney.”

After the trial judge ruled the confession admissible, Detective Humphrey testified before the jury that the appellant

“was advised that he had a right to remain silent, that anything he said would be used against him in court, that he had the right to have a lawyer present while we talked to him. If he could not afford to hire a lawyer, one would be appointed. Anything he said would be used against him in court of law, and he had a right not to answer any questions.”

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) requires that the accused be informed that

“he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda, 384 U.S. at 478-479, 86 S.Ct. at 1630.

Miranda recognizes that “a fully effective equivalent” may be substituted for these warnings. 384 U.S. 476, 86 S.Ct. 1629. No precise language is required in warning the accused of his constitutional rights so long as the substance of the required warning is given. Jones v. State, 47 Ala.App. 568, 570, 258 So.2d 910 (1972). It is our conclusion that the accused was effectively advised of his constitutional rights upon his arrest.

B. After the appellant was arrested and advised of his constitutional rights, he was questioned on a public street in front of his house concerning the murder weapon. The evidence shows that there was no force, intimidation, or undue influence exerted against the appellant at this time or any time while he was in the custody of law enforcement officers. When asked about the weapon, the uncontradicted evidence shows that the appellant told two detectives that it was inside the house. The appellant was taken back in the house and retrieved his pistol from under a mattress in his bedroom and gave it to the detectives. This was not a search and no search warrant was required. Burrell v. State, 45 Ala.App. 664, 235 So.2d 913 (1970). The appellant testified that he carried the pistol for “protection” and kept it under the mattress in the room where he slept. There was no error in the admission of the murder weapon.

C. Also there was no error in the admission of the written confession of the appellant. The appellant was fully advised of his constitutional rights before the confession was made and signed a written waiver. Additionally the appellant took the witness stand and presented testimony substantially the same as the language of the confession. Payne v. State, 55 Ala.App. 181, 314 So.2d 100 (1975); Chandler v. State, 283 Ala. 29, 214 So.2d 306 (1968).

III

The appellant further contends that the trial court did not give the proper instructions on the issues of self-defense, bad character and veracity.

A. The appellant’s contention that the trial judge charged the jury “in effect” that the defense must satisfactorily prove self-defense is without merit and not in accord with the actual charge given by the court. The issue of self-defense was a question for the jury and it was proper for the court to instruct the jury that one of the questions they must answer is “Was he (appellant) justified in doing what he did under the evidence?” Hayes v. State, 45 Ala.App. 108, 226 So.2d 168 (1969).

When the issue is present, the state must prove that the accused did not act in self-defense in the sense that the state must prove a prima facie case of unjustified homicide. However even if the evidence of self-defense is undisputed, the credibility of the defendant with respect to the evidence of self-defense is-for the jury, and they may, in their discretion, accept it as true or reject it. Washington v. State, Ala.Cr.App., 339 So.2d 611, cert. denied, Ala., 339 So.2d 616 (1976); Moore v. State, 54 Ala.App. 22, 304 So.2d 263, cert. denied, 293 Ala. 768, 304 So.2d 268 (1974).

B. The trial judge instructed the jury that the evidence of bad character brought out by the prosecution may refute the evidence of good character and that the weight to be accorded this evidence was for the jury. Although the state presented no evidence of the bad character of the appellant the given charge was not error for two reasons. Instructions containing abstract propositions of law which are inapplicable to the issues or facts are not ground for reversal, unless the party complaining may reasonably be regarded as having been prejudiced thereby. McPhearson v. State, 271 Ala. 533, 125 So.2d 709(1961).

Additionally we note that the charge was given at the request of counsel for the appellant. Counsel may not base reversible error on his own actions in this situation.

C. The trial court properly refused the appellant’s requested instruction on veracity. The same charge was substantially and fairly given to the jury in the court’s oral charge.

IV

Finally, it is asserted that the failure of the court reporter to provide a transcript in a timely manner in compliance with Rule 11(b), Alabama Rules of Appellate Procedure, resulted in irreparable harm to the appellant and denied him equal protection under the law.

The responsibility for complying with the rules rests principally with the attorneys. It is the duty of counsel for the appellant to see that records pertaining to appeals are timely filed. Pope v. State, Ala., 345 So.2d 1385, 1387 (1976). Counsel’s allegations of misconduct of the trial court in supervising its court reporters are unfounded and not supported by the record.

The penalty for failure to comply with the rules of appellate procedure is dismissal. Rule 2, ARAP. The state has not filed a motion to strike the transcript. In the interest of expediting decision, this court will not strike this appeal on its own motion.

Appellant’s argument that different rules and standards should apply in the case of indigents than non-indigents is without merit as the Supreme Court of this state has noted. Pope, at 1387.

Our review of the record does not reveal any error. The judgment of the lower court is therefore

AFFIRMED.

TYSON, P. J., and HARRIS and DeCAR-LO, JJ., concur.

BOOKOUT, J., not sitting.


text:
    Joe TOLBERT, Jr. v. STATE
    5 Div. 383.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    H. Kenneth Wilkes of Baker, Lester & Wilkes, Opelika, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent here and below, was indicted for murder in the first degree and was convicted by a jury for murder in the second degree; punishment, life imprisonment.

The alleged offense was committed after the effective date of Act No. 213, General Acts, 1975, effective March 7, 1976. The indictment was statutory in form and did not involve a death sentence as punishment. Act No. 213, supra, appears at p. 282, Art. 5B, Recompiled Code, 1958, in 1975, Interim Supplement; Vols. 1 through 13.

The only contentions of reversible error, appearing in the argument of defendant’s counsel on this appeal, are addressed to the action of the trial court with respect to permitting five certain jurors to serve, and their inclusion in a panel for striking purposes. This was done over all appropriate objection on the part of defendant.

Defendant’s trial was set for the week beginning October 11, 1976, but was tried during the week of October 18,1976, particularly on Monday, October 18, 1976.

It appears that at the end of the week beginning on October 11, 1976, all jurors except five, were excused from further service. The presiding judge asked the jurors, all of whom had been fully qualified as to competency and eligibility, if any of them would like to serve as jurors for the week of court beginning on October 18, 1976. Five of the jurors elected to serve and so informed the court. These five jurors were not excused, but were instructed to return for jury service on October 18, 1976. The other jurors were excused.

On Monday, October 18, 1976, the five jurors were included in the panel of eligible and competent jurors for that week. A total of forty-five jurors, which included the five returning jurors were empaneled and placed on the list from which twelve were selected by the statutory striking procedure. The question here presented is the eligibility of these five jurors for jury service that week.

Contention is that they were not drawn at random from the jury box when the forty jurors were drawn and that they were not eligible for jury service during the week of October 18, supra. In other words, the contention is that their eligibility for service expired at the end of the week beginning October 11, 1976.

We are not in accord with appellant’s contentions. We hold that their eligibility continued and that they were lawfully included in the panel of jurors- for the week of October 18, 1976.

Again, we note that the death penalty was not involved. Even if it were, under the laws applicable to Lee County, a special venire was not available to defendant. Act No. 345, Acts of 1973, Vol. 4, 1973 Cumulative Supplement, Par. # 125(114) p. 402. This Section abolishes special venires in Lee County. In capital cases a minimum of forty competent jurors obtained from the regular jurors in the court must appear on the list from which the parties strike.

There are many Sections of the 1940 Code (Chapters 3, 4, 5 and 6, T. 30) that control the drawing, summonsing, examining, challenging, selecting and empaneling jurors. Some of the provisions of Chapter 3, relating to drawing and summonsing juries, are mandatory and some are directory. T. 30, § 45; Ziniman v. State, 186 Ala. 9, 65 So. 56. We are not informed of any Code Section in this Chapter (3) that mandates the court to draw from the jury box the names of jurors to be used for a designated week, or that precludes the court from using jurors theretofore regularly drawn and meeting the eligibility requirements of law. We see no reason why such jurors may not be used if there has been no specific selection by the court. Here, there was no selection; only a general question propounded to ascertain who were willing to serve during the succeeding week.

The motion for a new trial on the ground that the names of the five jurors were unlawfully included, over defendant’s objection and challenge, in the panel of jurors listed for striking or acceptance, was properly overruled.

We note, however, that no objection was made to the venire on the grounds of fraud in drawing or summonsing the jurors. T. 30, § 46, Recompiled Code, 1958.

We repeat, the trial court did not err in denying defendant’s challenge of these five jurors, and in overruling the motion for a new trial. The judgment is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Gary COOPER v. STATE.
    6 Div. 118.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    W. Wheeler Smith, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent here and at nisi prius, was indicted and convicted for robbery of a night clerk, Clara Belle Archer, at the Redmont Hotel in Birmingham. The jury fixed his punishment at ten years in the penitentiary. Appropriate judgment followed. This appeal therefrom was duly taken.

I

Appellant asserts prejudicial error by the trial court in denying his counsel the opportunity, before evidence adduced, to tell the jury what evidence he expected to adduce, in view of an opening statement by the State’s attorney as to the State’s expected evidence.

It appears that the State’s attorney, Mr. Johnson, did make some kind of opening statement, but the extent of such statement does not appear in the record. The motion for a new trial that was overruled does not raise the point and no evidence was taken with respect thereto.

The trial court did not permit defendant’s counsel to make an opening statement and stated as follows:

“I — Mr. Johnson kind of slipped something in on me. He knows that I don’t permit an attorney to say what they expect the evidence to show, and I was construing what he was saying as an enlargement on the reading of this indictment when he threw it in, saying that it happened at the Redmont Hotel, and I started to stop him, because I figured you were going to try to use it as an excuse to answer him and say ‘We expect the defendant’s evidence to show.’
“I am not going to permit that to be opened up. I have not ever, in I8V2 years, permitted either counsel for the State or defense to state to the jury what they expect the evidence to show.
“So, I am not going to let you do it, Mr.-."

Under the state of the record we find no abuse of discretion on the part of the court in declining to permit defendant’s counsel to pursue the matter.

This Court said in Baker v. State, 48 Ala.App. 535(4, 5), 266 So.2d 340, cert, den., 289 Ala. 739, 266 So.2d 344, as follows:

“The purpose of an opening statement is merely to advise the jury with regard to the issues of fact involved in the case. Wilkey v. State ex rel. Smith, 238 Ala. 595, 192 So. 588. And the scope and extent of the statement is a matter that rests within the sound discretion of the trial judge. Hooks v. State, 45 Ala.App. 221, 228 So.2d 833. His ruling will not be overturned unless an abuse of discretion appears. We find no such abuse of discretion by the trial court in the case at bar.”

See also, Holifield v. State, 42 Ala.App. 209, 159 So.2d 65, cert. den., 276 Ala. 705, 159 So.2d 70; Ala. Digest-Criminal Law, # 704.

II

Appellant next asserts that witness Bussey should not have been permitted to testify as to who was robbed inasmuch as he did not see the “incident,” which was the robbery.

It appears from the evidence that witness Bussey was in the lounge of the Redmont (where the robbery occurred) for several hours before the alleged robbery and for sometime thereafter. It also appears that during his presence there he had occasion to see the defendant at various times; in fact, he testified that this defendant invited the witness to play some pool, but he declined. The witness also identified the victim, Mrs. Archer. The witness did not actually see the robbery. However, he said he. saw defendant going toward the desk, but he lost sight of him. He further testified that he saw Mrs. Archer about three minutes after he saw defendant going toward the desk and disappear. But he said that Mrs. Archer did not make any complaint then, but he heard her say, “I have been robbed, I have been robbed”; that she appeared to be upset. He also saw the police there in about five minutes. This witness identified defendant as the one he saw in the lobby and as the one who went toward the desk.

We think that in view of all the circumstances that there was no error in permitting Mrs. Bussey to testify that Mrs. Archer “was the woman involved in the incident.”

Ill

Defendant next complains that the court erred to reverse in permitting witness Earl Walton to state that the reason he didn’t make any identification of defendant in a “lineup” was because “* * * I didn’t want to get involved.”

The questions and answers were:

“Q. Okay. Did you make any identification after the lineup?
A. No.
Q. Why didn’t you make any identification in the lineup?
MR. SMITH: Objection.
THE COURT: Over rule (sic).
You may answer.
A. Because I didn’t want to be involved.”

This case was tried in October, 1975, at which time Starr v. Starr, 293 Ala. 204, 301 So.2d 78, was in effect. Also, see Armstead v. State, 57 Ala.App. 459, 329 So.2d 150, had been decided. Grimes v. State, 56 Ala.App. 439, 322 So.2d 729, cert. den., 295 Ala. 403, 322 So.2d 733.

We think this evidence was material and admissible. The trial court did not err in overruling the objection.

IV

The final contention of error is that the court erred in refusing to suppress the identification evidence of the victim, Mrs. Archer.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court said:

“* * * Instead, we hold that each case must be considered on its own facts, and that convictions based on eye witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

We do not think the identification procedure was “so impermissibly suggestive” to require suppression.

It appears that appellant admitted checking into the Redmont Hotel the morning before the night in question under his own name. Mrs. Archer saw him before — in and “round” the hotel — but did not know his name. She also stated that she had seen him the night before when he registered in the hotel.

She also stated that she gave the police the name “Gary Cooper” and told them “that that was the man that was registered there the night before.” The police came back and brought a strip of pictures “that was all the same man, different views of the same man.” She said she had seen this man before. It was Gary Cooper whom she pointed out. She again identified Gary Cooper in a lineup. McGhee v. State, 48 Ala.App. 330, 264 So.2d 560.

We think the identification evidence taken on the motion to suppress was sufficient and ample. The court was justified in overruling the motion. The ruling was free of error. Clemons v. United States, 133 U.S. App.D.C. 27, 408 F.2d 1230, cert. den., 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567; State v. Matlack, 49 N.J. 491, 231 A.2d 369, cert. den., 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 606. See also, Wilson v. State, 57 Ala.App. 125, 326 So.2d 316, cert. den., 295 Ala. 218, 326 So.2d 315.

The judgment is due to 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.


author: HARRIS, Judge.

text:
    Ralph BROWN v. STATE.
    6 Div. 313.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.

      Chester Austin, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was indicted and tried for murder in the first degree. The jury found him guilty of murder in the second degree and fixed his punishment at 15 years in the penitentiary. Throughout the trial proceedings appellant was represented by counsel of his choice. After sentence was imposed, the appellant gave notice of appeal and trial counsel represents him on this appeal.

There was no motion to exclude the State’s evidence. Appellant requested the affirmative charge which was refused. A motion for a new trial was made and, after a hearing, this motion was overruled and denied.

The evidence in this case is in hopeless conflict. The evidence adduced by the State tended to show an unprovoked murder without any extenuating or mitigating circumstances. The evidence presented on behalf of appellant tended to show that shortly before the homicide the deceased had been evicted from appellant’s home because of his continuous use of profanity after being warned to stop cursing and that upon leaving he made a threat to “get” both appellant and his wife. It is claimed that the deceased returned to appellant’s home a short time later and unlatched the gate to his yard and pushed it open. At this time appellant fired one shot which struck the deceased in the upper left chest which caused almost instant death. It is undisputed that the deceased had no weapons of any kind at the time he was shot and killed outside the gate to appellant’s home.

Mr. Jack R. Parker, Deputy Coroner of Jefferson County, whose qualifications were admitted by defense counsel, testified that he was at the Cooper Green Hospital on March 1,1976; that he received a call at 3:04 p. m. to go to Pratt City, and he arrived at 3:24 p. m. He went to an alley between 616 and 624 on Avenue T and observed a black male lying on his back just off the alley. The man was dead at the time the coroner arrived. The deceased was identified as Jerry Johnson, Jr. He stated that the cause of death was due to a shotgun wound which penetrated into the chest and the area of the lungs.

He further testified that there were no weapons on or around the body when he arrived at the scene of the shooting. He was present when the body was undressed at the funeral home and no weapons were found.

George Terry testified that on March 1, 1976, he lived at 618 Avenue T in Pratt City and was employed by the City of Birmingham; that appellant also lived on Avenue T next to his house but there was an alley between their homes. He said the deceased was his brother-in-law and lived next door to him. He stated that the deceased came to his house around 7 o’clock on the morning of March 1,1976, and they drank a cup of coffee. He testified that they then walked over to appellant’s house between 9 and 10 o’clock and that appellant’s wife was there when they first arrived but she left and did not return until 12:30 or 1 o’clock. Terry further testified that he, appellant and the deceased started drinking and they drank until about 3 o’clock. He stated there was no difficulty between appellant and the deceased and the deceased had not been cursing or using any profanity; that around 3 o’clock appellant suddenly told the deceased to leave his house. There was a fence around appellant’s home and there was a gate with a latch on it directly in front of the door to appellant’s home. He said the deceased walked out of the appellant’s home and opened the gate and started walking on the sidewalk in the direction of the alley separating Terry’s and appellant’s homes. He stated that appellant followed the deceased to the gate with an opened knife in his hand; that while the deceased was walking away from appellant’s home he was talking to himself but Terry could not understand what he was saying. He testified that at this time appellant closed his knife, latched the gate and went back in his house. He said he and appellant’s wife were standing on the porch and as the deceased got almost to the alley, he shouted to him to go on home; that the deceased stopped and turned around and at about that time appellant appeared in the doorway and shot the deceased. He said that after the deceased was shot he pulled up his shirt and said, “That man shot me,’’ and he took about 12 to 15 steps and fell in Terry’s side yard.

On cross-examination Terry testified that the deceased was coming back down the sidewalk and was five feet from appellant’s gate when he got shot. He stated that the deceased was not using loud profanity in appellant’s house and that appellant did not tell him to stop using profanity because of the neighbors and to stop cursing in front of his wife. He said the deceased was drinking but he “wasn’t all that drunk.” He denied that appellant took the deceased by the arm and carried him out of the house, but he did tell the deceased “to go on away from my house.” He denied that the deceased made the statement, “I will be back and I will get you,” or that he pointed to appellant’s wife and said, “I will get you also.” He did admit that the deceased went away mumbling to himself but he could not understand what he was saying. He denied that the deceased came back to appellant’s gate and started into the yard and that appellant told him to stop and not come any further; and that he kept coming and that appellant then shot him. He further testified that the deceased was on the sidewalk about five feet from appellant’s gate when he was shot.

Three other State witnesses testified that they saw the deceased before he was shot and he was standing in front of appellant’s house but that he was on the sidewalk outside of appellant’s gate. At no time did they see the deceased open the gate and walk toward appellant’s front porch; that after appellant shot the deceased he staggered over to the yard of George Terry’s and fell. That he was dead when the Coroner arrived at the scene where the deceased was lying. None of these witnesses saw the deceased with a weapon before or after he was shot.

Police Officer T. T. Trammell and Officer Spears investigated the homicide. According to Trammell he observed a black male lying in the alley next to appellant’s house and he was dead at the time; that he and Officer Spears went to appellant’s house and appellant was sitting on his front porch. He testified that Officer Spears went inside the house and got the shotgun from a back bedroom. The shotgun was turned over to an Evidence Technician. He did not see any weapon in the immediate area of the deceased.

Ms. Charlene Kirkland testified that she was a Police Technician with the Birmingham Police Department and that she arrived at the death scene at two minutes to 3 o’clock on the afternoon of March 1, 1976. She stated that she got the gun off the porch of appellant’s house and she found two shells in the shotgun and they were live rounds. One was in the chamber and one was in the place that followed it. She said she found one shell that had been fired near the sidewalk on the yard side of the fence.

Six character witnesses, five of them white, testified they had known appellant for a number of years and had never known him to be in any trouble; they stated he had a good reputation in the neighborhood and that he was known as a quiet and peaceful man. They testified they would believe him in a case in which he was involved.

Appellant’s wife, Katie Brown, testified that she left her house on the morning of March 1, 1976, and did not return until about 1:30 that afternoon. She stated that no one was at her house that morning when she left and that her husband walked to the bus stop with her. She further testified that when she returned home, the only people there were her husband, George Terry and the deceased. That the deceased was cursing and using loud profane language and her husband told him to stop cursing because he had neighbors next door and he didn’t want them to hear. Appellant also told the deceased he didn’t want him cursing in front of his wife. She said her husband told the deceased three times to stop cursing in the presence of his wife and he refused to do so. Then appellant took the deceased by the arm and led him to the front door and told him to get out of his house.

She further testified that as the deceased was leaving he pointed his finger at her husband and said, “I’ll be back, and I will get you,” and he pointed his finger at her and said, “And I will get you too.” She said she had not opened her mouth to the deceased. After he left the house, he unhooked the gate and walked out and hooked the gate back and walked down the street; that after a short time the deceased came back and unhooked the gate and pushed it open. She heard her husband tell him “Don’t come back in my house.” That when the deceased pushed the gate open her husband shot him. She also stated that the deceased had been drinking.

On cross-examination she testified that she did not see anyone drinking that day but she smelled liquor on the breath of the deceased when he was in her living room. She stated that she did not smell anything on anyone else. She further testified that when the deceased came back to the gate, she did not see anything in his hands. She didn’t see a knife, gun, stick or a tree limb. In short, she did not see anything at all in the hands of the deceased before or at the time he was shot.

Appellant testified that he lived on Avenue T in Pratt City on March 1, 1976, and that the deceased and George Terry were in his home early that morning; that when his wife returned home the deceased began to curse and use loud profanity, and he asked him nicely to stop. He did not stop and he asked him again to either stop cursing or leave his house. He said that the deceased continued to curse and appellant caught him by the arm and carried him to the front door and told him not to come back in his yard. That as the deceased was leaving he said he would be back and get both appellant and his wife. Appellant said neither he nor his wife made any threats to the deceased. That when the deceased started coming back towards the gate, appellant went in the house and moved his shotgun from the middle bedroom to the living room. He said, “When I saw him coming in the gate I told him to stop there and stay out there. He kept coming and I fired. I fired the gun and didn’t aim it. I fired the gun to stop him. I didn’t have no intention to kill him. I tried to shoot him in the leg to stop him. I had no intention of hurting him. I fired the gun one time and emptied the magazine and was sitting on the front porch when the officers came.”

On cross-examination appellant stated that he did not remember telling a police officer that he had been drinking that day. He stated that no one had a drink that day except George Terry. He said the deceased looked like he had been drinking and talked like he had been drinking. He further said that after he put the deceased out of the house, he went back in the house and left George Terry and his wife on the front porch; that he moved the gun from the middle bedroom and put it in the living room and he sat down in the living room. He saw the deceased going by the picture window headed out towards the alley and he went to the front door and stood there. His wife and George Terry were on the porch at that time. When the deceased got to the gate and started to open it, appellant said he told him not to come in there. “He made another step and I fired one time but I had no intention to kill him.”

On rebuttal George Terry testified that appellant was drinking gin on the day he shot and killed the deceased. He stated that the deceased was standing on the sidewalk about five feet from the gate when appellant shot him.

As noted above the evidence in this case was in sharp conflict. It is not within the province of this Court to pass judgment on the truthfulness or falsity of conflicting evidence. Snipes v. State, 50 Ala.App. 139, 277 So.2d 413; Parham v. State, Ala.Cr. App., 333 So.2d 912.

Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation, and the defendant’s use of a shotgun was sufficient to warrant the jury in finding that he acted with malice. Parks v. State, Ala.Cr.App., 333 So.2d 906; Holcey v. State, 52 Ala.App. 664, 296 So.2d 750.

In Miller v. State, 38 Ala.App. 593, 90 So.2d 166, this Court held:

“ ‘Legal malice’ as an ingredient of murder is an intent to take human life without legal excuse, justification or mitigation, and it may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption.”

The conflict in the evidence presented a question for the jury to determine, and the evidence was sufficient, if believed by the jury to the required degree, to support the verdict. Young v. State, 283 Ala. 676, 220 So.2d 843; Harris v. State, 48 Ala.App. 723, 267 So.2d 512; Brand v. State, 46 Ala. App. 41, 237 So.2d 524; Pugh v. State, 51 Ala.App. 164, 283 So.2d 616.

Decision on motion for a new trial rests largely within the sound discretion of the trial court and, in reviewing that decision this Court will indulge every presumption in favor of the correctness thereof. Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624; Hamm v. State, 38 Ala.App. 423, 87 So.2d 863; Parks v. State, Ala.Cr.App., 333 So.2d 906, certiorari denied, Ala., 333 So.2d 912.

The Court charged the jury on murder in the first degree, murder in the second degree, and manslaughter in the first degree. He also charged the jury on the law of self-defense and there was no duty on the part of the defendant to retreat since he was in his own home. He charged the jury that the defendant was presumed to be innocent of the offense charged and that this presumption was to be considered as evidence in favor of the defendant and should not be disregarded. The oral charge dealt with the meaning of “reasonable doubt”, and that the burden of proof was on the State to prove the defendant guilty beyond a reasonable doubt and to a moral certainty. The oral charge dealt with good character evidence. The oral charge was very comprehensive and at the conclusion of the charge both the State and the defense announced, “Satisfied.”

The refused charges were adequately and substantially covered in the oral charge and in the given charges. Some of the refused charges were abstract under the evidence presented.

Appellant was represented by one of Alabama’s most distinguished trial lawyers whose reputation and fame is broad in the land.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Equator Doyle LARK, Jr. v. STATE.
    6 Div. 473.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    J. William Thomason, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree burglary; sentence: five years imprisonment.

On June 14,1976, Harold Taylor returned to his apartment from work and found that it had been burglarized and his stereo component was missing. The value of the missing stereo was estimated to be $704. Police investigated his complaint and lifted fingerprints from several items in the apartment. Five sets of appellant’s fingerprints were found there. The prints were positively identified as appellant’s by a police fingerprint technician.

I

Appellant challenges the sufficiency of the evidence, contending that it was all circumstantial.

Evidence to support a conviction need not be direct, or “eyewitness variety.” Circumstantial evidence will support a criminal conviction if it is so strong and cogent as to show a defendant’s guilt to a moral certainty. Tanner v. State, 291 Ala. 70, 277 So.2d 885 (1973); Locke v. State, Ala.Cr.App., 338 So.2d 488 (1976). Circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused. Locke, supra; Lewis v. State, Ala.Cr.App., 337 So.2d 108 (1976); Jones v. State, Ala.Cr.App., 337 So.2d 116 (1976); 6 Alabama Digest, Criminal Law, <®=»552(3), 552(4).

In the instant case, the prosecuting witness proved the corpus delicti, and the police connected appellant to the crime.

Harold Taylor testified that when he went to work, early on the morning of the crime, he locked the door to his apartment and his stereo was not missing. When he returned from work, he noticed scratch marks on the door facing, and found the door to be unlocked. He then noticed that his stereo system was missing. Taylor testified that there were only two keys to his apartment. He had one, and his brother had the other. His brother was at work with the same employer at the same time Taylor was, on the date in question. Taylor did not know appellant, had never seen him before, had never invited him to his apartment, and had never seen him there. There is no other reasonable explanation for appellant’s fingerprints being in the apartment than that he was there without the knowledge, consent or authorization of the party in possession. The evidence, though all circumstantial, certainly points to the appellant as the guilty party. The jury was acting entirely within its province in finding that appellant was guilty of breaking and entering the apartment with intent to steal.

II

After the jury was struck, appellant and the trial judge had the following exchange, outside the presence of the jury:

“THE COURT: All right, Mr. Monroe, you said the Defendant had something that he wanted to say to the Court. Okay. I am ready, Mr. Lark.
“THE DEFENDANT: I don’t have anything to say, nothing, Your Honor. I wanted to say it in front of the jury. You see, I have got to be careful. I can’t ■say just anything in front of the jury.
“THE COURT: What do you want to say in front of the jury?
“THE DEFENDANT: Well, I would like to get you to appoint me another public defender.
“THE COURT: It is too late for that. You are in this trial. . . .”

Appellant’s dissatisfaction with his attorney was apparently because his counsel did not have some of appellant’s family present for his trial. It appears that counsel for appellant tried to get in touch with appellant’s wife, but could not do so because she had changed her telephone to an unlisted number. Appellant was also dissatisfied because he was not allowed to make a statement in the presence of the jury to the effect that he wanted new counsel. The colloquy continued:

“THE COURT: Mr. Lark, first, for the record, you know that your father was up here and brought your clothes. I personally told your father that if he wanted to stay, if he wanted to see you, stay here, that you would be down here at 1:30. I don’t see him, but I just wanted you to know it. Secondly, I am not going to let him make any statement in front of the jury. When you want to get up here and testify, which I understand you may do, against the advice of counsel, which I am going to get to in due time, I am not letting you make any statements, him make any statements, with reference to withdrawing counsel, or wanting a new counsel.
“THE COURT: ... I think you told me — your father never mentioned this — that your father was going for another lawyer, but he never mentioned another lawyer to me, but if he can find one, firstly, I don’t think he would take it right now; secondly, I would not stop the trial after the jury has been sworn just because you want another lawyer. We can’t do that. The jury has been sworn and we are going ahead.”

An almost identical situation took place in Hillyer v. State [5 Div. 392, Ms. July 26, 1977] Ala.Cr.App., affirmed this date. In Hillyer, as here, after striking the jury, the appellant requested that another attorney be appointed to represent him. The judge refused to do so, and counsel then offered to withdraw under the circumstances, but the court also refused to allow the withdrawal. Unlike the instant case, there was a motion for a continuance filed in Hillyer. Although no request was made for a continuance here, for all practical purposes, new counsel could not have been substituted at this stage of the trial without giving additional time for preparation.

As pointed out in Hillyer, supra, in order to 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 (1976). The exact nature of appellant’s dissatisfaction with counsel is not clear. He first stated that counsel had not contacted his family to attend the trial. Of course, that had nothing to do with adequate trial preparation or with responsible conduct of the defense during trial. Elsewhere in the record, appellant decries the fact that counsel “had not done anything” for four months prior to trial. The preparation stage and duties of counsel were explained to appellant by the trial judge to no avail.

There is nothing in the record to indicate that appellant’s counsel was ineffective in preparation or trial. The State’s case was simple. Appellant wanted to take the witness stand solely to make an irrelevant and immaterial comment about his attorney. Since appellant had a prior criminal record, his attorney rightfully prevailed upon him to remain silent. Counsel performed ably for his client and, under the facts of the case, we think few could have done better.

We find no abuse of discretion on the part of the trial court for refusing to stop the trial, appoint new counsel, and let the jury sit idlely by while the defense engaged in trial preparation. To hold otherwise would create a cumbersome precedent. Every defendant could then wait until a jury was selected, express some dissatisfaction with appointed counsel, demand and receive new counsel, and thereby cause unwarranted delays and wreak havoc with the orderly process of criminal trials. A careful review of the record reveals no prejudice suffered by appellant as a consequence of the trial court s ruling. Also see: Hayes v. State, Ala.Cr.App., 340 So.2d 1142 (1976).

AFFIRMED.

All the Judges concur.


text:
    Paul MARS v. STATE.
    7 Div. 535.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.

      Terry T. Bush, Rainsville, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of transporting prohibited liquor in quantities of five gallons or more in violation of Title 29, Section 187, Code of Alabama 1940. He was sentenced to three years imprisonment. At arraignment, attended by court-appointed counsel, appellant entered a plea of not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

This is appellant’s second appeal for the same offense. Mars v. State, Ala.Cr.App., 339 So.2d 104. The first appeal was reversed and remanded for a new trial because of the action of the trial court in refusing to grant a continuance at the request of court-appointed counsel who was allowed only 25 minutes in which to prepare the case for trial.

The facts in the first trial are essentially the same as the facts in this second trial, and we quote:

“DeKalb County Chief Deputy Sheriff George Minor was in Gadsden, Etowah County, observing a State liquor store. He spotted the appellant coming from the store and loading into his car trunk two cardboard liquor cases bearing the label, ‘Seagrams Seven.’ He sent out over his police radio a code number which was assigned to appellant. He stated that all suspected bootleggers in the county were assigned code numbers. He started trailing the appellant, but lost him for approximately five or ten minutes, and then proceeded to the interstate highway leading toward DeKalb County. Within a few minutes, appellant passed Deputy Minor, traveling in excess of 90 m. p. h. Being unable to catch the appellant, Minor sent out a radio dispatch giving the make of the car, tag number and the identity of the driver.
“John Thomas Moses, Assistant Police Chief of Rainesville, after hearing the radio alert, stopped appellant’s automobile in DeKalb County. Jerry Bethune, Chief Investigator for DeKalb County, arrived at the scene, ‘in less than a minute.’ The appellant refused to open his car trunk, saying he did not have a key to the trunk. (In the instant case appellant said he wanted to see a search warrant.) Bethune pried the trunk open with a tire tool and found two cases of Seagrams Seven whiskey amounting to six gallons. The officers did not have a warrant.”

Bethune placed appellant under arrest and turned the two cases of whiskey over to Sheriff Bill Abies of DeKalb County who arrived at the scene a few minutes later. Each case contained 24 pints and the Sheriff testified that he opened one of the pint bottles and tasted the contents and that it contained whiskey. He further testified that all the bottles were full and he identified the liquor as Seagram’s 7. The Sheriff further testified that, he took the two cases of whiskey to his office and labeled them. He said there were 48 pints of Seagram’s 7 whiskey.

The Sheriff further testified that he turned the two cases over to the Clerk of the Circuit Court, Cecil Reed, and the two cases were in the same condition when he delivered them to Mr. Reed as they were when he removed them from the appellant’s car. He stated that each of the two cases had a Seagram’s 7 label.

Mr. Cecil Reed, a former Clerk of the Circuit Court of DeKalb County, Alabama, testified that prior to leaving office on or about January 16, 1977, he received two cases of Seagram’s 7 whiskey from Sheriff Abies. He said that these two cases of whiskey were in connection with the transporting case against Paul Mars; that he put these cases of whiskey in the vault of the Circuit Clerk’s Office in the courthouse and they were in the vault when he left office. He further testified that the two cases of whiskey and the contents thereof were in the same condition when he left office as they were when he received them from Sheriff Abies.

On cross-examination Mr. Reed testified that the vault in which he put the two cases of whiskey had a combination lock and that five of his employees had the combination to the vault lock. He was asked:

“Q. So you don’t know what they might have done with it?
“A. Well, it was still there this morning.”

Mr. Jimmy Lindsey became Clerk of the Circuit Court of DeKalb County on January 18, 1977, as successor to Mr. Reed. He testified that the two cases of whiskey were still in the vault when he took office. The District Attorney asked the Court to have the two cases of whiskey brought from the vault in the Clerk’s Office to the courtroom. When the cases were brought into the courtroom, the District Attorney asked that the two cases be marked State’s Exhibits 1 and 2 for identification.

Prom the record:

“Q. Mr. Lindsey, I’ll ask you if these are the two cases which you referred to in your testimony?
“A. Yes, it is.
“Q. What are contained in those two cases?
“A. 24 pints Seagram’s 7 whiskey.
“Q. Are there any other cases of Seagram’s 7 whiskey in your office, Mr. Lindsey?
“A. No sir.
“Q. Were there any at the time you took office?
“A. No sir.”

The two cases of whiskey were introduced into evidence over appellant’s objection that there was a break in the link of possession. This motion was overruled.

Appellant’s counsel then moved for a dismissal on the ground the State had failed to show a prima facie case. This motion was also overruled.

Appellant did not testify, nor did he offer any evidence in his behalf. It took the jury 15 minutes to return a verdict of guilty “as charged in the indictment.” The Court asked appellant’s counsel if she wanted the jury polled and she replied, “No sir.”

The evidence as to the custody and possession of State’s Exhibits 1 and 2 (the two cases of Seagram’s 7 whiskey) unequivocally shows there is no missing link in the chain of identification. Identification and continuity of possession were sufficiently established, affording ample assurance that the two cases of whiskey introduced into evidence were the identical cases of whiskey taken from appellant’s car trunk. Powell v. State, 47 Ala.App. 582, 258 So.2d 923; Green v. State, 42 Ala.App. 439, 167 So.2d 694; Dennison v. State, 259 Ala. 424, 66 So.2d 552.

In Griffin v. State, 39 Ala.App. 626, 106 So.2d 182, the Court held:

“Whiskey is a spiritous liquor within the common knowledge of all men, and juries may so find without specific proof. Freiberg v. State, 94 Ala. 91, 10 So. 703. The State having presented evidence from which the jury could reasonably infer that the appellant was transporting prohibited whiskey in quantities of five gallons or more, it had met its burden in establishing its prima facie case. If the whiskey so being transported was unfit for beverage purposes, such fact was a defensive matter to be shown by the appellant, in the absence of evidence by the State to such effect.”

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.