author: BOOKOUT, Judge.

text:
    Floyd CARTER v. STATE.
    1 Div. 655.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      E. Graham Gibbons, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

Around 11:30 P.M. on October 11, 1974, the appellant requested that Robert James Ford, the victim, repay approximately four dollars which Ford owed him. Ford laughed and refused to do so. The appellant then went and got his grandfather’s shotgun and shot at Ford twice. He missed the first time, but the second shot hit Ford in the head, killing him. The appellant then took thirty-five cents from Ford’s pocket and ran to a neighbor, Mrs. Bessie Mae Smith, and told her, “Robert was shot.”

Officer J. V. Sells, who investigated the murder and arrested the appellant, testified that he read the appellant his Miranda rights from a printed form. He stated that the appellant understood the rights and signed the form before any questioning began. Sells said that Lorenzo Carter, the appellant’s brother, called the police station and asked that he be allowed to come and talk with the appellant. He was brought to the station in a patrol car and was allowed to talk with the appellant alone in the interrogation room. After appellant talked with his brother for about five minutes, he made a complete confession to the police.

I

Appellant contends that the trial court erred in admitting the confession into evidence prior to the establishment of the corpus delicti. He asserts that nonmedical testimony by Officer Sells as to the cause of death was not competent to establish the corpus delicti. The State contends that the competency of the witness to give an opinion as to the cause of death was within the discretion of the trial judge. The State contends that Officer Sells’ qualification to testify as to the cause of death in the instant case was properly established, therefore, the trial court did not abuse its discretion in admitting such testimony into evidence.

A defendant’s confession may not be admitted into evidence until proof of the corpus delicti has been established by the State by independent evidence. Arnold v. State, 57 Ala.App. 172, 326 So.2d 700 (1976). Proof of the corpus delicti must show the actual commission of the crime by someone, but such evidence does not necessarily have to connect the defendant with the crime. Arnold, supra. Proof of the corpus delicti may be by circumstantial evidence as well as direct evidence. Johnson v. State, 55 Ala.App. 581, 317 So.2d 548 (1975). In the instant case, before the confession was admitted into evidence, it was established that the victim was shot. One witness stated that she heard the two shots and then saw an unidentified person running from the scene. Another witness, Bessie Mae Smith, testified that shortly after the shots were fired, the appellant ran up to her and told her the victim had been shot. We deem such testimony to be sufficiently strong as to support an inference on the part of the jury that the victim had been shot and that the shooting was brought about by the criminal agency of another. The fact that the witness could not identify the person running from the scene of the shooting is not necessary to the establishment of the corpus delicti. Malone v. State, 37 Ala.App. 432, 71 So.2d 99, cert. denied 260 Ala. 699, 71 So.2d 101 (1954). The fact that the victim had been shot is undisputed; however, the question remains as to whether the State presented adequate proof that the victim was dead, and if so, whether death resulted from the shooting in question.

Whether a witness is qualified to testify as an expert is a question addressed to the sound discretion of the trial court, and that court’s decision will not be disturbed on appeal in the absence of abuse. Chatom v. State, Ala., 348 So.2d 838 (1977); Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied 294 Ala. 764, 318 So.2d 341 (1975). Physicians are not the only persons who are qualified to express an opinion as to cause of death. A detailed list of many such persons and their qualifications is found in Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973).

In Welch v. State, 45 Ala.App. 657, 658, 235 So.2d 906, 907 (1970), this court stated:

“In a death as distinguished from a ‘killing,’ the prosecution must prove an absence of natural causes. That is, the first step is to prove the victim died because he was killed.”

In Dismukes v. State, Ala.Cr.App., 346 So.2d 1170, cert. denied, Ala., 346 So.2d 1177 (1977), this court held that cause of death could be shown by nonexpert testimony. In that case, the defendant shot her husband five times with a pistol on a public street. A “volunteer emergency technician” arrived at the scene and examined the victim and found no breathing, blood pressure, or carotid pulse. There, this court stated:

“. . . The causal relationship between the act of the accused inflicting the wound and the death of the deceased was not obscure or beyond the knowledge of the average layman. A dangerous weapon was used and there was no evidence presented or even suggested that the accused died from anything but the bullet wounds inflicted by the appellant.
“Expert medical testimony as to the cause of death should be admissible in all homicide cases. It should be regarded as necessary and essential for a conviction in many homicide cases and in those where death is not the natural and probable consequence of the unlawful act of the accused or the result of an independent intervening cause in which the accused does not participate and which he could not foresee.”

In McDonald v. State, 56 Ala.App. 147, 320 So.2d 80 (1975), the cause of death was proved without medical testimony. There, the shooting and death were almost simultaneous. The cause of death was so obvious that there was no necessity for a physician to testify. As stated in Dismukes, supra, on rehearing:

“There are eases where the killing is almost immediate or simultaneous with the commission of the crime, such as the shooting of a person five times. Where witnesses observe this, find no pulse and no blood pressure, and state that the person appears to be dead, the cause of death is fairly obvious and, therefore, may be proved by circumstantial evidence without expert testimony. However, (1) where the act which the State claims to have caused death is remote in time from the actual death, or (2) where there is a possibility or likelihood that an intervening cause could have brought about death, or (3) where the nature of the injury is not one that is ordinarily likely to cause death, or (4) where there is not an obvious causal connection between the nature of the injury and the death, then the State is under a burden to present expert testimony to show that the injury in fact resulted in and caused the death in question.”

In the instant case, Officer Sells testified that he had been employed by the Prichard Police Department some sixteen years. In that capacity, he had observed twenty-five or more bodies where gunshot wounds had resulted in death. The witness was questioned on voir dire examination outside the presence of the jury, and the trial court, after extended argument by counsel, concluded that an adequate predicate had been laid for Officer Sells to testify as to cause of death of the victim. Sells testified that he examined the body and checked for a pulse, heartbeat, and breathing. He stated the victim was not breathing and had a gunshot wound to the head, with small pellet holes around it. On the basis of Lucy v. State, 49 Ala.App. 116, 269 So.2d 134 (1972), the trial judge allowed the witness to testify in the presence of the jury that the cause of death was a gunshot wound to the head. In Lucy, supra, the defendant was charged with murdering the victim by repeatedly stabbing him with a knife. This court noted that there was an objection to testimony from a deputy sheriff that the victim’s death was caused by the loss of blood from the stab wounds administered by defendant. This court concluded:

“ . • - It appears from a preliminary examination that the witness had, during his career as a police officer, considerable experience in observing stab wounds and the effects thereof and was more knowledgeable than the average witness or juror. .
“The competency of the witness to give his opinion as to the cause of death was addressed to the sound discretion of the court and its ruling will not be disturbed on appeal in the absence of abuse. . “Aside from this, the jury could conclude from the physical facts in evidence that deceased died from the effects of the wounds.” (Citations omitted.)

We therefore conclude in the instant case that the trial court did not err in allowing Officer Sells to testify as to the cause of the victim’s death. His testimony, coupled with the prior testimony of Bessie Mae Smith and Margaret Hixon, sufficiently established the corpus delicti thus rendering the appellant’s confession admissible if it meets the standards of voluntariness.

II

Counsel for appellant asserts that the appellant’s confession should not have been admitted into evidence because it was induced by a promise of favor or reward.

Appellant’s brother testified during a hearing on a motion to suppress the confession that he did not call the police and request that he be brought to the police station to talk with his brother. He stated that the police came to his home, picked him up in a police car, and carried him to the station where he was allowed to talk to his brother alone. No police officers were present while the brothers talked, and the police did not know what was said during the conversation. The appellant’s brother stated:

“I told him that if he wanted to he could tell the truth and they would make it easier on him if he would go ahead and tell the truth. I promised him that they would make it easier on him.”

The witness stated, however, that none of the police officers told him or suggested to him that he should make such a statement to the appellant. On the State’s cross-examination of Lorenzo Carter, the following took place:

“Q. Alright. Did they tell you what to talk to him about?
“A. No, sir.
“Q. Did they tell you to promise him anything, did they?
“A. No, sir.
“Q. Did they tell you to tell him to confess to this matter?
“A. No, sir.
“Q. Did they tell you to tell him to admit to all this?
“A. No, sir.
“Q. You did this on your own?
“A. Yes, sir.
“Q. And you are his older brother?
“A. Yes, sir.”

Officer Sells testified that after appellant was allowed to talk to his brother for about five minutes, he made a confession. The waiver of rights form which was read to the appellant and signed by him was introduced into evidence. That form set out each of the required Miranda warnings. Sells likewise testified that neither he nor anyone in his presence threatened the defendant nor made any promises or offers of reward to him in order to obtain a confession. Both the Miranda predicate and the predicate as to voluntariness of the appellant’s statement were properly laid before the confession was admitted into evidence. The only question presented is whether the purported inducement by appellant’s brother should have prevented the admission of the confession into evidence.

A person inducing an accused to make a confession need not always be a law enforcement officer in order to render the confession inadmissible. Allen v. State, 53 Ala.App. 66, 297 So.2d 391 (1974), cert. denied 292 Ala. 707, 297 So.2d 399. In Allen, the confession was not made to a law enforcement officer, but was nevertheless held to be involuntary because it was made to a person who could have been fairly supposed by the defendant to have the power to secure the promised benefit for the accused. In the instant case, appellant could certainly not suppose that his brother would have the power to secure a promised benefit for him. Thus, Alien and the instant case are easily distinguishable.

The duty to determine whether or not a confession is voluntary rests with the trial judge. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973). Also see Tanner v. State, 57 Ala.App. 254, 327 So.2d 749 (1976), wherein a sharp conflict in the evidence existed as to whether or not an inducement had been made to the appellant to confess by an agent for a private company and by law enforcement officers. We find here, as we did in Tanner, that the evidence was sufficient to support the trial court’s ruling that the confession was voluntarily given.

Ill

Counsel for appellant contends in his brief that since the appellant was fifteen years of age at the time the crime was committed, his confession should not have been admissible. Counsel argues that the general juvenile statutes of Alabama at that time disallowed the use of a juvenile’s confession, except in juvenile court proceedings. He contends that although local statutes applying only to Mobile County permit the introduction of a child’s confession into evidence, that the inequity between the local and the general statutes constitutes “basic error.”

Local provisions of law concerning juveniles in Mobile County, effective at the time the confession was given, are found in Title 62, § 49, et seq., Code of Alabama 1940, Recompiled 1958. The general state law pertaining to juveniles, applicable at that timé, is found in Title 15, § 350, -et' seq., Code of Alabama 1940, Recompiled 1958. Title 13, § 377, is the section of the general law which appellant contends would render the confession inadmissible. This court has held that Title 13, § 377, did not mandate the exclusion of a confession made by a juvenile defendant while in custody of police officers. Parker v. State, Ala.Cr.App., 351 So.2d 927, cert. quashed, Ala., 351 So.2d 938 (1977). That decision was based upon the wording of that section which prohibited only confessions made to a probation officer or to the juvenile court from being used in other criminal proceedings. In any event, the purported inequity between the general and local statutes was not raised in the trial court and was not ruled upon specifically by the trial court. Matters raised for the first time on appeal are not subject to review. Review on appeal is limited to matters on which rulings are invoked at the trial court. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974).

The record shows that the appellant applied for youthful offender treatment pursuant to Act No. 335, Acts of Alabama 1971, 3d Special Session, approved February 10, 1972 (Title 15, § 266(1), et seq., Code of Alabama 1940, Recompiled 1958). The trial court ordered the probation officer to make an investigation to determine if the appellant would be eligible for youthful offender treatment. After a hearing thereon on May 16, 1975, the court denied the appellant’s request to be treated as a youthful offender. Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975). The trial court found that the appellant had likewise been certified by the juvenile court as incorrigible. As the appellant was a juvenile, we have reviewed the record carefully regarding the appellant’s confession. The admissibility of a confession does not depend upon age alone, but upon many other circumstances such as the defendant’s intelligence, education, experience, and ability to comprehend the meaning and effect of his statements. Parker, supra.

In considering the admissibility of the appellant’s confession, we have considered a comprehensive set of circumstances set out in West v. United States, 399 F.2d 467 (C.A.5, 1968). Our application to the instant case of each of the circumstances enumerated in West results in a finding that the appellant’s confession was not involuntary due to his age.

IV

Appellant called Bessie Mae Smith as a defense witness and asked, “During your acquaintanceship with Robert Ford, do you have an opinion as to his general reputation for violence?” The trial court sustained the State’s objection to that question, which appellant contends was reversible error.

In Anderson v. State, 30 Ala.App. 124, 2 So.2d 461 (1941), the Court of Appeals held:

“There was no impropriety in disallowing proof of the general bad character of the deceased. In a murder prosecution, such inquiry should be limited to his character or reputation for violence, turbulence, and bloodthirstiness; and this, of course, only where the issue of self-defense is presented. Sanford v. State, 2 Ala.App. 81, 88, 57 So. 134; McKenney v. State, 17 Ala.App. 117, 82 So. 565; 30 C.J., p. 229, Sec. 465.”

In Farley v. State, 279 Ala. 98, 182 So.2d 364 (1966), Justice Merrill stated the proposition well that:

“. . .in the absence of a tendency of the evidence to show that the defendant was without fault in bringing on the fatal encounter, that he was in imminent peril, or that he could not avoid the difficulty or retreat without increasing his peril, the defendant cannot prove the bad character of the deceased for turbulence, nor threats by him toward the defendant, nor a prior difficulty with him, though of a serious nature. . . . ” (Citations omitted.)

The record discloses no evidence of self-defense, per Farley, supra, which would allow the appellant to prove the bad character of the deceased for turbulence or violence.

V

After the trial court’s oral charge, the jury began its deliberations. After some period of time, the jury returned to the courtroom for further "instructions, and the foreman asked the trial judge, “We want to know if we set the severity and the penalty, or just the severity.” The trial judge further instructed the jury on that point of law, whereupon a juror made the following request, “I would like you to go over again the four things that constitute murder in the first degree, and explain that each word means of the four, willful, deliberate, malicious and premeditated.” The trial judge then read Title 14, § 314, of the Alabama Code and explained its meaning as requested.

After the trial judge finished his supplemental instructions to the jury and informed them they could return to the jury room for further deliberations, counsel for the appellant made the following objection:

“Prior to that time, Your Honor, may I say that I have no objection to an instruction on what the Court charged in response to the Foreman’s question, but I do have an objection to the latter question, and to the reiteration to the instruction previously given, and I move for a mistrial at this time.”

The same question was presented in Tillison v. State, 32 Ala.App. 397, 27 So.2d 41, cert. denied 248 Ala. 196, 27 So.2d 46 (1946). The Court of Appeals answered the question presented by stating:

“After the jury had deliberated for a while it returned to the court room for further instruction. The trial judge restated to the jury a portion of his oral charge. Exceptions were taken by appellant. Complaint is made that the trial judge restated a part of his oral charge and in this manner gave added and undue emphasis to said portion.
“We fail to see how this action on the part of the lower court could in any way interfere with the legal rights of the defendant. We take it that the jury came to a place in its deliberation where it wanted further light and it sought this light from the only source open to it. The law wisely gives this opportunity to a jury which at all times has access to the trial court for legal instruction. Montgomery v. State, 21 Ala.App. 327, 108 So. 348; Roberts v. State, 26 Ala.App. 331, 159 So. 373.”

In addition, we think the appellant’s objection came too late. He made no objection at the time the juror asked for the additional instruction. Instead, he waited until the trial court had read the applicable code section, had given a full explanation, and the jury was in the process of returning to the jury room before his objection was made known to the trial court. We likewise find no error by the trial court in denying the motion for a mistrial on this issue. A motion for a mistrial is addressed to the sound discretion of the trial judge, and we find no abuse of discretion in this instance. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967).

VI

The appellant asserts that an unreasonable delay in preparation of the trial record, caused by twelve extensions of time granted to the court reporter, effectively denied him procedural due process in perfecting his appeal. Counsel for appellant, in his brief, states, “I cannot suggest to this Court what remedy can be afforded . Perhaps the new rules will avoid this situation.”

This court has had considerable difficulty in the past in obtaining trial transcripts from some court reporters. See, Pope v. State, Ala.Cr.App., 345 So.2d 1381-1390 (1976-77); Smith v. State, Ala.Cr.App., 346 So.2d 463-465 (1976). We pointed out in the first Pope opinion that, as the appointing authority, the circuit judge has a duty to see that the court reporter functions properly, citing Pharr v. State, 45 Ala.App. 152, 227 So.2d 439 (1969). However, we do not find that the trial courts’ granting of numerous extensions of time for court reporters to prepare transcripts of the evidence is per se an abuse of the trial courts’ discretion. In the instant case, each order of the trial judge extending the time -to file the transcript of the evidence states that the extension was given for “good cause shown.” The record shows nothing to the contrary.

Prior to the adoption of Rule 11, Alabama Rules of Appellate Procedure, the legislature had given this court no power to control court reporters who were “within the appanage of a circuit judge.” Populus v. State, 48 Ala.App. 686, 267 So.2d 477 (1972). It was primarily because of delays in the preparation of trial transcripts, such as in the instant ease, that prompted the Supreme Court to adopt Rule 11(c), ARAP, which allows the circuit court to grant only one extension of time for filing the court reporter’s transcript. All other extensions of time must now be granted by the appellate courts, for cause shown. The appellant was correct in his observation that perhaps the new rules will avoid such inordinate delays as he experienced in the instant appeal.

For aught that appears in the record, each extension in the instant case was granted for “good cause shown.” The presumption that the trial judge acted properly is not overcome by the mere fact that the trial judge granted more extensions of time to the court reporter than the appellant considered necessary for completion of the record.

In Populus, supra, Judge Cates answered the question of whether a delay in preparation of the trial transcript is prejudicial to a convicted defendant:

“In United States v. Cifarelli, 2 Cir., 401 F.2d 512, we find:
‘ * * * [t]he constitutional guarantee to a speedy trial upon which appellant relies cannot be easily transposed to an appeal. The purpose of the guarantee is to prevent long unjustified incarceration or anxiety prior to trial and to limit the possibility that the memory of witnesses may dim or evidence may be lost, thus impairing the ability of the accused to defend himself. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 * * *. On the other hand, delay in appeal is not truly prejudicial except in case of reversal. This is not such a case.’ ” (Emphasis supplied.)

Having found no reversible error in the record, we find that the delay in the instant appeal was not prejudicial to the appellant.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Floyd CARTER.
    77-363.
    Supreme Court of Alabama.
    March 31, 1978.
   FAULKNER, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Lawrence CRAWFORD v. STATE.
    3 Div. 763.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
    Elno A. Smith, Jr, Montgomery, for appellant.
    William J. Baxley, Atty. Gen, and Larry E. Craven, Asst. Atty. Gen, for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the possession of a pistol after having been convicted of committing a crime of violence. The trial court, sitting without a jury, sentenced the appellant to three years’ imprisonment.

The facts were stipulated and reveal that the appellant admitted being found in possession of a pistol on November 26, 1976; that the pistol was his and that he had owned it for approximately two years and that he had a prior conviction for burglary. In defense the appellant maintained that he had a pistol permit which was issued to him on March 29, 1976, by the Montgomery County Sheriff’s Department. Although the application for the permit was approved by the county sheriff’s department and the Montgomery Department, no response or answer was indicated on the application in response to the question, “Have you ever been convicted of any criminal offense, including misdemeanor or traffic violation?”

Title 14, § 174(a), Code of Alabama 1940 (§ 13-6-152, Code of Alabama 1975) provides that

“(a) No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control.”

This section is constitutional and a reasonable regulation by the state under its police power. Jackson v. State, 37 Ala.App. 335, 68 So.2d 850 (1953). The purpose of § 174 is to protect the citizens of this state and it

“evinces a clear intention on the part of the legislature to protect the citizens of this State from the actions of that class of persons, who by their past acts, have shown themselves unsuitable and unfit to own and possess pistols.” Mason v. State, 39 Ala.App. 1, 5, 103 So.2d 337 (1956), affirmed, 267 Ala. 507, 103 So.2d 341 (1958).

In holding that the provisions of § 174 were not vitiated or destroyed by a pardon subsequently granted to the ex-felon, the court noted:

“(T)his appellant is in no position to complain that because of a past act of violence he has placed himself in a class of citizens deemed unfit by the legislature to own or possess a pistol. He has himself determined his civil classification, and must abide by the reasonable restrictions placed upon the class within which he falls.” Mason, supra, 39 Ala.App. 5, 103 So.2d 341. (Emphasis added)

A reading of Mason convinces us that the above quoted portion of § 174 does not conflict with the following quoted portion of § 177 (§ 13-6-155, Code 1975).

“The sheriff of a county may, upon the application of any person residing in that county, issue a qualified or unlimited license to such person to carry a pistol in a vehicle or concealed on or about his person within this state for not more than one year from date of issue, if it appears that the applicant has good reason to fear injury to his person or property or has any other proper reason for carrying a pistol, and that he is a suitable person to be so licensed.” (Emphasis added)

Under these authorities, it is clear to this court that any person who has been convicted of committing or attempting to commit a crime of violence is not a suitable person to be licensed to own a pistol or have one under his possession or control. The sheriff therefore had no authority to issue a pistol permit to the appellant and the license is void.

The conviction of the appellant is therefore due to be affirmed and is so ordered.

AFFIRMED.

All Judges concur.

      . Under Title 14, § 172, Code of Alabama 1940 (§ 13-6-150, Code 1975), burglary is a crime of violence.


author: BEATTY, Justice.

text:
    Ex parte Lawrence CRAWFORD.
    77-358.
    Supreme Court of Alabama.
    March 24, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Jimmy Claude GOODMAN, Jr., alias v. STATE.
    3 Div. 788.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      Frank W. Riggs, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Jimmy Claude Goodman, Jr., was charged by indictment with the unlawful possession of Amphetamine and Amobarbital in a two-count indictment, contrary to the provisions of Act No. 1407, Section 401(a), Acts of Alabama, 1971 Regular Session. The jury found the appellant guilty under both counts, and the trial court set punishment at eight years imprisonment.

Prior to trial a suppression hearing was conducted at which time Montgomery Detectives J. E. Nichols and William Fuller each testified with reference to the arrest and detention of Jimmy Claude Goodman, Jr., on the night of July 2, 1976.

According to Detective Nichols, he was assigned to the Bureau of Narcotics and Dangerous Drugs of the Montgomery Police Department as part of a special investigative team. At about 9:00 o’clock on the night of July 2, 1976, he, Captain Lynch, Captain Arnett, and Detective Fuller, were in the office having a discussion concerning a drugstore robbery at Southside Drugs on Court Street in Montgomery which had occurred the previous evening. The officers had received a telephone call concerning a station wagon which had been observed near the scene of the drugstore robbery the previous evening and which was then observed in the South Lawn area of Montgomery.

Detectives Nichols and Fuller left in an unmarked green Chevrolet Malibu, driving toward the intersection of U. S. 31 South and U. S. 80 West, and saw an off-white or beige station wagon with a luggage rack on top (R. p. 5). The officers gave chase and turned on the blue lights on top of their vehicle. Officer Nichols stepped from the police vehicle to the station wagon, identified himself, and asked the driver, Jimmy Claude Goodman, Jr., to step out of the station wagon. Officer Nichols related that a lookout had been placed for a white male with a ruddy complexion and reddish tinted hair, driving a station wagon, and that Goodman answered the description in question. As Goodman alighted from the vehicle, Officer Nichols noticed a tan prescription bottle lying on the floorboard on the driver’s side. He reached down and retrieved it (R. p. 6).

Nichols stated he opened the bottle and observed some green and clear capsules, and also some brown and clear capsules with small spangles inside and the capital letters “S K F” on the outside of each type capsule. Nichols stated that he recognized the capsules as being Amphetamines because of his prior work in the drug field.

The appellant was patted down at the scene of the stop, and Officer Nichols removed a .22 caliber projectile and a pharmaceutical vial that contained an injectable drug from appellant’s pants pocket. The drugs retrieved by Officer Nichols were turned over by him to State Toxicologist Alan Adair (R. p. 8).

Officer Nichols drove the appellant’s vehicle to Police Headquarters and secured it. The following morning the vehicle was searched pursuant to a search warrant obtained by Detective Fuller and Officer Segrest.

On cross-examination, Officer Nichols related that he had received a call on his police radio from Officers Arnett and Lynch concerning the station wagon which fit the description of the wanted vehicle and was asked his assistance in stopping it. This was within twenty-four hours of the robbery the evening before at the drugstore.

Montgomery Police Detective William Fuller related that on the evening of July 2, 1976, he was a partner of Officer Jim Nichols. He stated that about 9:00 or 9:30 o’clock in the evening they received a call by police radio to stop a station wagon which was light beige in color, had a luggage rack on top, and a type of sticker on the rear bumper. The vehicle was reportedly involved in the robbery of the drugstore on South Court Street in Montgomery the evening before. Detective Fuller stated that he and Detective Nichols gave chase on Highway 31 South just as the vehicle turned West on Highway 80 toward Dan-nelly Field. The station wagon was stopped, Officer Nichols stepped to the side of the vehicle, and asked the driver to step out. He stated this was the appellant, Jimmy Claude Goodman, Jr. Detective Fuller stated that he saw a tan prescription bottle after Detective Nichols found it on the floorboard of appellant’s car (R. pp. 19-20). The following morning Detective Fuller went before Judge Matthis Piel and obtained a search warrant in which he described the prescription bottle and the drugs contained therein as the basis for obtaining a search warrant for the station wagon which was secured at Police Headquarters.

Pursuant to this warrant, Detective Fuller and Corporal William Segrest searched the station wagon and removed from it a brown paper bag underneath the front seat. They placed the contents thereof in a bag which was sealed, then delivered by Montgomery Officer Campbell to the State Toxicologist Office.

Moreover, prior to obtaining the search warrant, the appellant had executed a written consent authorizing a search of his 1968 Ford station wagon, 4-11529, located at Police Headquarters (R. p. 35).

After hearing the three officers’ testimony, the trial court overruled the appellant’s motion to suppress.

Alabama State Toxicologist Alan Adair testified that on July 7, 1976, he received from Montgomery Police Detective J. E. Nichols a plastic bag with Officer Nichol’s initials on it, and that he marked it and gave the officer a receipt for it. He stated that he assigned Case No. 13215-A to the bag. He subsequently removed the contents and analyzed this. He noted that in one bag was a tan plastic prescription bottle which contained four green and clear capsules having the designation S K F D92 at each end, and also one green and clear capsule having S K F D91 at each end. Additionally, there were fifty-two brown and clear capsules having the designation S K F E13 at each end and fifteen brown and clear capsules having the designation S K F E14 at each end (R. p. 42).

Mr. Adair then analyzed these drugs and testified that he had custody of these until the day of trial, and, based upon his examination, the five green and clear capsules contained Amphetamine and Amobarbital (R. p. 43) and the sixty-seven brown and clear capsules were both types of Amphetamines. He stated that each of these are controlled substances within the meaning of Alabama law and require the prescription of a registered practitioner. Mr. Adair’s laboratory report was offered into evidence, but upon objection of defense counsel the trial court declined to admit this (R. p. 46).

Mr. Adair then testified that based upon his experience and examination these drugs were normally prescribed for weight loss by a physician and were capable of being taken either orally or crushed and injected into a person’s veins.

Mr. Adair was also allowed to testify that he received on July 2, 1976, a brown bag from Montgomery Police Officer Jimmy Gamble and that he had exclusive custody of the items received until the date of trial. In Mr. Adair’s testimony he identified one-half dozen different types of controlled substances which were analyzed and examined as coming from the bag received from Officer Gamble and marked with Montgomery Detective W. C. Segrest’s initials.

Montgomery Police Detective James E. Nichols was then recalled and related receiving information concerning a robbery on the night of July 1, 1976, of Southside Drugs on South Court Street. He stated that Detective Fuller was in the vehicle with him when they received this information that an off-white or beige station wagon with a luggage rack on top and an unusual sticker on the bumper with three white males and one white female occupant, the driver having a ruddy complexion and red tinted hair, the female being a blond or wearing a blond wig, had been involved in the robbery of a drugstore and that several types of drugs had been taken. He then described their giving chase on the following night, July 2, 1976, and stopping the vehicle just as it turned on U. S. 80 from U. S. 31 South. He stated that Detective Fuller was accompanying him that night also.

Officer Nichols related that, after having the appellant alight and patting him down, he then drove the station wagon to Police Headquarters where it was secured, and Detective Fuller transported the appellant. He also related that the items which he seized from the appellant were secured and kept under his care and control until he delivered them personally to State Toxicologist Alan Adair. He stated that he showed the bottle which he found in the vehicle to Detective Fuller and he also showed him the capsules inside the bottle.

Detective Fuller was then recalled to the stand and corroborated Detective Nichol’s testimony concerning the information received about the station wagon and the stopping and arrest of the appellant in Montgomery County. Detective Fuller testified that he transported the appellant to Police Headquarters on the night of July 2, 1976, and that he had observed the bottle at the scene of the arrest. Detective Fuller further related that he, accompanied by Corporal Segrest and Corporal Sticker, went before the Recorders Court Judge, Matthis Piel, and obtained a search warrant, and the following morning searched the station wagon at Police Headquarters. Corporal Segrest acted as the evidence officer in the case.

Corporal Segrest was then recalled to the stand and testified as to his participation on the morning of July 2,1976, in the search of a Ford station wagon at Police Headquarters. He stated that he was present when a consent to search form was executed by the appellant, Jimmy Claude Goodman, Jr. Segrest related that Goodman was fully advised of his Miranda rights and of the legal consequences of giving authorization to search. Segrest stated that nevertheless the two officers went before Judge Piel and obtained a search warrant “just to be safe” before going into the vehicle. He stated that a brown paper bag was found underneath the driver’s side which contained one-half dozen different drugs, some Demerol, some Leritine, and others contained Codeine and Amphetamines, was sealed and delivered by the officers on July 7, 1976, to Mr. Allen Adair, State Toxicologist.

The appellant’s • motion to exclude the State’s evidence was then overruled.

The State then called Montgomery Police Detective Cecil Humphrey who testified that on the night of July 1, 1976, he was involved in the investigation of the robbery of Southside Drugs on South Court Street in Montgomery, Alabama. Officer Humphrey stated he was present at Police Headquarters on the morning of July 3, 1976, when Montgomery Police Corporal Jimmy Lisenby read to the appellant his “Miranda rights,” and that without any threat, coercion, intimidation, or inducement being offered the appellant, Jimmy Claude Goodman, Jr., gave a typewritten statement which was taken down in his presence. After determining that this statement was purely voluntary, the trial court then admitted the appellant’s statement, which is as follows (R. pp. 104-106):

“A. Question — Jimmy Lisenby was asking the questions.
“The first question was, are you aware of the fact that the above store was — let me start again.
“This is the statement of Claude Jimmy Goodman, white male, age 43, as given to Corporal J. H. Lisenby and Detective C. H. Humphrey in Room 209 of the Montgomery Police, 3 July, 1976 at 11:55 a. m. in regard to his knowledge of the robbery of the Southside Drug Company on 1 July, 1976 at approximately 9:00 p. m. It starts off with the question: Are you aware of the fact that the above store was robbed 1 July, 1976? Answer: I was aware of it after it happened. Question: How do you know about it? Answer: Because I was out in the car when they, came running back with two boxes in their hands. Question: Who are you talking about? Answer: O’Neal Goodman and Raymond Lowe. Question: Who are they? Answer: O’Neal is my brother and the other one is his friend. Question: Did you drive them to the drugstore? Answer: Yes. I drove them all over town. Question: Did you know they were going to rob the store? Answer: No. Question: Didn’t they tell you to wait for them while they robbed it? Answer: No. They didn’t tell me they were going to rob anything. Question: Who else was with you? Answer: Nell Brazzell. Question: What did they say to you when you pulled up in the shopping center and they got out of the car? Answer: Buddy told me that they would be back in a minute. Question: Is Buddy the same as O’Neal? Answer: Yes. Question: Did you see any weapons when they got out of the car? Answer: No. Question: How long were they gone? Answer: Four or five minutes. Question: Were they carrying anything when they got out of the car? Answer: Not that I noticed. Question: Were they carrying anything when they got back in the car? Answer: Yes. Question: Who was carrying what? Answer: I don’t know which one was carrying which gun, but both of them had one and both of them was carrying narcotics. Question: Was either one carrying anything besides the guns and drugs? Answer: One of them had a box of candy, but I don’t know which one. Question: What did either one of them say when they got in the car? Answer: One of them said, get out of here. Question: Where did you go from there? Answer: To Gary and Peggy Cole’s house on Shades Valley. Question: Were they at home when you got there? Answer: Peggy was. Question: What did Peggy have to say about the guns and drugs? Answer: She asked them if the guns were loaded, and Raymond told her they were. And then they went over and unloaded them. Her and Nell went in the back room and I guess Nell told her what we had done. Question: When did Peggy and Gary Cole learn O’Neal and Raymond were escaped from prison? Answer: Yesterday. Question: Did you see Gary or Peggy use any of the drugs? Answer: Peggy took a Dexamil Spansule. Question: Do you know where the guns came from? Answer: No.
“It is signed by Jimmy Lisenby and signed by me and signed by Claude Goodman.”

The State then called Mr. Rex R. Riggins, who related that he was the pharmacist in charge of Southside Drugs at 4516 South Court Street in Montgomery in July, 1976. He stated that on the night of July 1, 1976, shortly after 9:00 p. m., the store was robbed by a man who first came in and asked for help, then pulled a sawed-off shotgun and pointed it at him. He stated that the man asked for all of “Class A Narcotics” which have now been reclassified under different schedules. Mr. Riggins stated that he handed to the party at gunpoint all of his injectable narcotics, including some Morphine and Demoral tablets. The man asked for some disposable syringes, and he gave the robber two disposable syringes. Mr. Riggins related that the robber directed that he lie face down on the floor. Prom an examination of certain drugs, Mr. Riggins stated that he could not positively state that the drugs shown to him were the drugs taken from him on July 1, 1976, but that drugs of this type were taken at that time.

The appellant presented no testimony or other evidence at trial.

I

Appellant contends that the stopping of his station wagon by Officers Nichols and Fuller on the night of July 2, 1976, was without probable cause, and the obtaining of the prescription vial was a violation of his Fourth Amendment rights against an unreasonable search and seizure.

Most recently, Judge DeCarlo, speaking for this Court in Herrin v. State, Ala.Cr.App., 349 So.2d 103, 106, cert. denied Ala., 349 So.2d 110, observed:

“The United States Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, recognized the ‘investigative stop concept.’ The court in Terry v. Ohio, acknowledged that the government’s interest in effective crime prevention and detection justified the recognition that: “ ‘ . . . a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’
“The Court stated this was a legitimate investigative function.
“In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, the court said that:
“ ‘ . . . The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in the light of the facts known to the officer at the time.’ [Citations omitted]
“In Alabama the investigative stop concept was adopted in the following legislation, T. 15, §§ 118(1) and 118(2), Code of Alabama 1940, Recompiled 1958, 1973 Cum.Supp. to Yol. Five, which read:
“ ‘§ 118(1). Authority to stop and question. — A sheriff, or other officer acting as sheriff, or his deputy, or any constable, acting within their respective counties, or any marshal, deputy marshal, or policeman of any incorporated city or town, within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense, and may demand of him his name, address and an explanation of his actions.
“ ‘§ 118(2). Authority to search for weapons. — When a sheriff, or other officer acting as sheriff, or his deputy, or any constable, acting within their respective counties, or any marshal, deputy marshal, or policeman of any incorporated city or town, within the limits of the county, or any highway patrolman or state trooper has stopped a person for questioning pursuant to this chapter and reasonably suspects that he is in danger of life or limbs, he may search such person for a dangerous weapon. If such officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.’ ”

Applying the above principles to the facts of the case at bar, we are clear to the conclusion that the two officers had the necessary probable cause to stop the appellant, Jimmy Claude Goodman, Jr., and to direct him to alight from the vehicle and be patted down. This was proper police procedure. Herrin, supra; Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200, cert. denied 291 Ala. 93, 278 So.2d 205.

Further, based upon the information received over the police radio, the officer properly looked inside, and the prescription vial being in plain view, it was properly seized as an item of evidence. Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210; Youngblood v. State, 47 Ala.App. 571, 258 So.2d 913.

Clearly, the pat down of the appellant was proper. Hoppins v. State, Ala.Cr.App., 337 So.2d 134; Dunaway v. State, supra; Campbell v. State, Ala.Cr.App., 354 So.2d 325, 1977.

In an opinion rendered December 20, 1977, Campbell v. State, Ala.Cr.App., 354 So.2d 325, Judge Bowen, speaking for the Court, related:

“A law enforcement officer may have probable cause for a warrantless arrest based on the identification or description of the suspect or his motor vehicle without knowing the identity of the person to be arrested. Sexton v. State, Ala.Cr.App., 349 So.2d 126 (1977); also Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975); Jackson v. State, 55 Ala.App. 334, 315 So.2d 131, cert. denied, 294 Ala. 760, 315 So.2d 136, cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 132 (1975). The arresting officer may base his arrest on an official description of the suspect or his motor vehicle as where he receives information from a police radio bulletin or report describing the person or vehicle. Brown v. State, 55 Ala.App. 615, at 619, 318 So.2d 311 (1975); McClendon v. State, Ala.Cr.App., 341 So.2d 174, writ, quashed, Ala., 341 So.2d 178 (1976). The identification or description of an offender or a motor vehicle may also be supplied to the police by the victim of or witness to an offense as well as by an informer. Turk v. State, 53 Ala.App. 106, 298 So.2d 37 (1974); Burrow v. State, 55 Ala.App. 24, 312 So.2d 596 (1975); Thomas v. State, 50 Ala.App. 227, 278 So.2d 230 (1973); Smith v. State, 51 Ala.App. 349, 285 So.2d 512, cert. denied, 291 Ala. 798, 285 So.2d 515 (1973).
“While mere presence is never a sufficient basis for a finding of probable cause to arrest, presence when coupled with other circumstances may ripen suspicion into a reasonable belief capable of supporting a finding of probable cause.”

Under the foregoing authorities, the stopping of the appellant’s vehicle, the “pat down” of the appellant, and his arrest was a reasonable course of action in view of the radio dispatch and the circumstances confronting Detectives Nichols and Puller at the time.

II

The appellant contends that Officer Puller lacked probable cause to give the affidavit in support of the search warrant on the morning of July 3, 1976; hence the issuance of the warrant and the resulting search and seizure were improper.

As related above, Detective Puller was present at the time of the arrest and seizure of the prescription vial by Detective Nichols. He observed this at the scene. Moreover, Detective Fuller transported the appellant to Police Headquarters on the night of July 2, 1976, and assisted Officer Nichols in securing the appellant’s vehicle. Clearly, therefore, Detective Puller possessed the necessary information, and probable cause to swear out the warrant under which the search was made on the morning of July 3, 1976, at Police Headquarters. Funches v. State, 53 Ala.App. 330, 299 So.2d 771, cert. denied 293 Ala. 752, 299 So.2d 778, and authorities therein cited.

Moreover, the search warrant itself is not contained in this record; hence, its validity is not before us for review. Barbosa v. State, Ala.Cr.App., 331 So.2d 811; McHellen v. State, Ala.Cr.App., 351 So.2d 689.

III

We have carefully examined this record in light of appellant’s contention that the State did not show a proper chain of possession of the evidence presented at trial; hence, his motion to exclude should be granted.

The evidence related by the two arresting officers, Nichols and Puller, together with Officer Segrest’s testimony, clearly established a proper chain of the seizure of the items which were subsequently examined by State Toxicologist Adair. This contention is without merit.

Further, we see no error in the admission of the testimony with reference to the drugs which were seized on the preceding evening from the pharmacist, Mr. Rex Riggins. This was part of the identification of the drugs seized from the appellant’s vehicle. See Brantley v. State, 294 Ala. 344, 317 So.2d 345.

We have carefully examined this record and find no error therein. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex Parte Jimmy Claude GOODMAN, Jr.
    77-361.
    Supreme Court of Alabama.
    March 31, 1978.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J„ and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    Katherine KENNEBREW v. STATE.
    5 Div. 402.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
    Allan Nathanson, Tuskegee, for appellant.
    William J. Baxley, Atty. Gen., and L. G. Kendrick, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Under an indictment charging murder in the first degree appellant was convicted of murder in the second degree and the jury fixed her punishment at ten years in the penitentiary. At all times in the lower court appellant was represented by counsel of her choice and at arraignment pleaded not guilty. Trial counsel represents her on this appeal.

On the night of March 28,1976, appellant shot and killed her husband in the driveway to a service station in Tuskegee, Macon County, Alabama. Earlier that evening the deceased called his girl friend at her home and told her he would pick her up. The deceased had been going with this woman for about six months and the appellant knew about the affair. The deceased drove to this woman’s house, whose name was Mae Pearl Felton, in a borrowed car and was returning to the Fire Station where he was employed.

As the deceased was returning to the Fire Station with Mae Pearl Felton they met and passed appellant driving in the opposite direction. Appellant turned her car around and followed the deceased until he pulled into the area of the service station.

Felton testified that the deceased got out of the car and walked back to the car appellant was driving where they talked for a few minutes. Felton did not hear this conversation. Shortly thereafter the deceased and appellant approached the car in which Felton was sitting and Felton saw appellant with a pistol in her hand and heard her say that she was going to take them to the Fire Station and kill them. Felton saw the deceased reach for the pistol in appellant’s hand and told her to give him the gun. Appellant backed away and the deceased moved toward her, saying, “You gonna shoot me?” Felton stated that appellant then fired the pistol hitting the deceased in the chest. The deceased turned to run and appellant shot him again.

Felton stated that appellant came to the car where she was still seated and said, “I’m going to kill you, too, _,” and fired twice striking her across the spine and under the shoulder blade. Felton then saw appellant walk to where her husband was lying on the ground, kneel and shoot him again. Felton said, “Katherine, don’t shoot him any more,” and then staggered to a nearby house where the police and ambulance were called.

Van Pruitt, Jr., a toxicologist, testified that he conducted a postmortem examination on the body of the victim. He stated there was a gunshot wound to the left mandible, a gunshot wound to the lateral right buttocks, and a gunshot wound to the left chest. He said that this slug passed through the left lung and went through the heart. The toxicologist stated it was this wound, resulting in massive hemorrhage, that caused Jesse Kennebrew’s death.

Appellant’s version of the shooting was in sharp conflict with Ms. Felton’s testimony. Appellant testified that in January, 1976, she saw a bill from a department store which showed that a lady’s pants suit had been charged. She confronted her husband with this bill and he became very angry and started beating her. She then left home carrying their baby girl, Linda, with her. She stated that she drove away from their home and the deceased pursued her in another vehicle. She further testified that the deceased pulled alongside her waving a pistol and motioned her to pull over. When she refused to stop the deceased overtook her and fired a shot in the air in her direction. She stated that she was driving so fast that she lost control of the car and crashed. She testified that after she crashed she abandoned the car and started running through the woods and she could hear the deceased shooting after her. Appellant detailed other incidents in which her husband physically mistreated and abused her. Several witnesses, including the appellant’s mother, supported appellant’s testimony about these abusive acts.

We think it fair to say that the marriage between appellant and the deceased was pleasant and harmonious until the deceased started going with Mae Pearl Felton.

Appellant further testified that the deceased had owned several pistols and that he carried a pistol in the pocket of his leather fireman’s jacket. She said he didn’t only carry pistols but he also slept with them. In her own words, “He slept with the pistol at the bedside on a can beside the trash can he laid it there every night that he lay down ... He never left home without it. Never.”

On the night of the fatal shooting appellant said she left home around 10:00 p. m. to borrow some milk for her daughter. On her way to get the milk she saw her husband driving in the opposite direction. She turned around and followed him until he turned into the service area of the Phillips 66 Station. She stopped her car just behind the car her husband was driving. She stated her husband got out and started walking back to where she was stopped. She got out to meet him. She noticed he was wearing his fireman’s jacket in which he always carried a pistol.

From the record:

“Q. Now, when you got out of the car, tell the Court and jury exactly what happened when you got out of the car.
“A. Well, when I got out of the car, Jessie came back there and he said, ‘where do you think you’re going this time of the night.’ And we started arguing, and I started snickering and I said, ‘it doesn’t matter, all I want you to do. Jessie, is give me some money for this baby some milk.’ And, he kept hitting on me and shoving me and I finally fell, and I—
******
“Q. While he was walking after you, and while you were backing up, what did he say?
“A. Well, I had the gun in my hand, and I said, ‘stay away from me Jessie, I don’t want you hitting on me and fighting me, all I want is for you to give me the money for Linda some milk, and I will get back in my car and leave.’ ”

Appellant further stated that when she fell her husband placed one of his hands inside his jacket pocket and pushed against her chest with his other hand. She said she had already seen her husband’s pistol that night and that he was trying to pull it from the holster inside his jacket. During this scuffling appellant claimed, “My gun went off and shot him.” Then the deceased got off her, turned and ran. As he was running he was still “trying to get that gun out of that holster,” and she shot him again while he was reaching toward his hips.

Appellant denied shooting “Jesse when he was down.” She stated after the incident with Mae Pearl Felton she got in her car and drove to the police station. She told the officer on duty to call an ambulance because she had shot her husband and his girl friend. She said she did not intend to kill her husband saying, “I didn’t even know the gun had discharged."

Mae Pearl Felton and several other witnesses testified the deceased carried a pistol at times and some said he carried one habitually.

In rebuttal the police officers who investigated the shooting testified that the deceased did not have a pistol or a holster on or about his person at the time they arrived at the murder scene. These officers stated they made a thorough search of the scene and no other weapon was found.

There was no motion to exclude the State’s evidence; there was no motion for a new trial, and no exceptions were reserved to the oral charge to the jury. Appellant did request the affirmative charge which was refused.

The evidence was in sharp conflict surrounding the events leading up to the homicide. Conflicting testimony is an issue to be resolved by the jury. It is apparent the jury did not believe appellant’s version concerning the shooting death of her husband.

It is settled law that this Court is without power or authority to pass judgment on the truthfulness of conflicting testimony, and a verdict rendered on such testimony is conclusive on appeal. May v. State, Ala.Cr.App., 335 So.2d 242.

The weight and credence to be given to the testimony of an accused as it relates to self-defense are questions for the jury. Garraway v. State, Ala.Cr.App., 337 So.2d 1349; Walker v. State, Ala.Cr.App., 339 So.2d 155.

Where the evidence raises a question of fact for the jury and such evidence, if believed to the required degree, is sufficient to sustain the judgment of conviction, the refusal to give the affirmative charge does not constitute error. Robinson v. State, Ala.Cr.App., 339 So.2d 145; Young v. State, 283 Ala. 676, 220 So.2d 843.

We have given careful consideration to the many refused charges requested' by appellant. We find that by far most of the refused charges state correct principles of law but we also find they were substantially and adequately covered in the Court’s oral charge to the jury. Title 7, Section 273, Code of Alabama -1940.

A thorough and careful search of the record reflects no error injuriously affecting the substantial rights of the appellant.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Katherine KENNEBREW.
    77-356.
    Supreme Court of Alabama.
    March 24, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    Jimmy Warren CARLISLE, alias v. STATE.
    6 Div. 338.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
    Roger A. Brown, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the jury fixed his punishment at twelve years in the penitentiary. Throughout the trial proceedings in the court below appellant was represented by counsel of his choice, and at arraignment pleaded not guilty. After sentence was imposed, he gave notice of appeal, and he is here represented by new counsel.

This is purely a circumstantial evidence case. Appellant did not testify, but he offered the testimony of a coindictee going to show that he was at a different place at the time of the robbery and that he did not know that the robbery was going to be committed. Because the time span between the robbery and the distance where appellant was first seen by police officers after the robbery was so short it could be legally inferred by the jury that he was the driver of the getaway car.

At the conclusion of the State’s case appellant made a motion to exclude the State’s evidence on the ground that a prima facie case was not established. The motion was overruled. Ordinarily this would put us to a recital of the evidence. We do not deem it necessary to summarize the evidence in this case as we think the case must be reversed because the trial court refused an alibi charge duly tended in writing.

Charge 31 reads as follows:

“The defendant, Jimmy Carlile, sets up an alibi in this case, and the burden of proof is not changed when he undertakes to prove it, and if by reason of the evidence in relation to such alibi, when considered with all the other evidence, the jury entertains a reasonable doubt as to defendant’s guilt, he should be acquitted, although you may not be able to find that the alibi has been fully proven.”

It was specifically held that the refusal of this charge constituted reversible error in Pickens v. State, 115 Ala. 42, 22 So. 551 and Hatch v. State, 144 Ala. 50, 40 So. 113. See also Ragland v. State, 238 Ala. 587, 192 So. 498, where an identical charge was given at the request of the defendant.

The trial court did not charge the jury on alibi evidence. As a matter of fact the word alibi nowhere appears in the oral charge.

For the error noted this case must be reversed and remanded for a new trial.

Reversed and remanded.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-362.
    Supreme Court of Alabama.
    March 24, 1978.
   JONES, Justice.

WRIT DENIED.

MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.


text:
    Jonathan VAN PELT v. STATE.
    6 Div. 552.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
    Bishop K. Walker, Jr., Oneonta, for appellant.
    William J. Baxley, Atty. Gen. and Susan B. Bevill, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was put to trial upon a two-count indictment charging: (1) burglary in the second degree, and (2) grand larceny. At arraignment, in the presence of counsel, he pleaded not guilty. The jury returned a verdict finding appellant guilty as charged in the indictment and the Court sentenced him to three years imprisonment in the penitentiary. He is in this Court with a free transcript and trial counsel was appointed to represent him on appeal.

The testimony presented by the State is not in dispute. Appellant did not testify nor did he offer any evidence in his behalf.

There was no request for the affirmative charge; there was no motion for a new trial, and no exceptions were reserved to the Court’s oral charge to the jury. However, when the State closed its case, appellant moved to exclude the State’s evidence on several specific grounds. The motion was overruled. This puts us to a recital of the evidence.

James Gillilan, d/b/a Tanyard Sand and Gravel Company, testified that in January, 1977, he was in the process of putting in a sand and gravel business on Highway 278 in Blount County, Alabama. He closed his shop at 5:00 p. m. on January 27,1977, after checking and locking the doors to his shop. The next morning he returned to his shop at about 7:30 a. m. and found the back door had been broken open and all of his tools and other property were missing. He stated the missing property consisted of an 18 inch Polarite chain saw, numerous sockets and wrenches, screwdrivers, anti-freeze, motor oil, grease, welding rods, and, in short, everything he had. He estimated the reasonable and fair market value of his missing property to be approximately $5000.00.

Mr. Gillilan further testified that he wrote his name on most of the metal tools with an engraving pencil and that he put two notches on the handles of the wooden screwdrivers. He notified the Blount County Sheriff’s Department and a representative of that office talked to Mr. Gillilan and got a full description of the missing property. Some time later he was called to the Sheriff’s Office and found most of his missing property and after identifying the property it was released to him.

Roger Beam, an investigator with the Blount County Sheriff’s Office, was assigned to investigate the burglary and theft and arrived at the scene of the burglary around 8:45 on the morning of January 28, 1977, along with Chief Fowler of the Walnut Grove Police Department. Officer Beam stated that he examined the building on the premises and found there had been a forced entry of the back door as he observed pry marks on the left side of the door. Mr. Gillilan gave him a general description of the missing property and told him that he had engraved his name on most of the metal tools and had cut two notches on the handles of the screwdrivers.

The investigation into the theft and burglary led the officers to the home of Roger and Rita Franklin at Route 2, Altoona, Alabama, where Officer Beam saw a 1966 Oldsmobile parked in the driveway. Beam looked through the window of the car and saw a screwdriver lying on the back floor in plain view and he observed that it had two notches cut in the wooden handle just as described by Mr. Gillilan. He testified that the screwdriver with the notches thereon was fully visible from outside the car and, in fact, it was the notches on the handle of the screwdriver which first drew his attention to it. Upon recognizing the two notches on the screwdriver he then opened the car door and removed the screwdriver in the presence of Chief Fowler and kept it in his exclusive possession until it was produced at trial.

Beam testified on cross-examination that he did not have a search warrant, nor an arrest warrant, when he first went to the Franklin house.

Beam stated that when the officers went to the Franklin residence he had information that Roger Franklin, his brother, Gary Franklin, and two unknown white males had been seen at Scruggs Truck Stop in Etowah County at 1:00 a. m. after the burglary.

Beam further testified that he had not entered the Franklin home at the time he spotted the screwdriver but that Chief Ezra Poole, Officers Fowler, Glasscock and he knocked on the door and asked for Roger Franklin who came out of the house. He showed Roger the screwdriver and asked him if it belonged to him and he said no. He specifically denied ownership of the screwdriver though it was found in his car.

Beam further stated that Rita Franklin told the officers that appellant had been staying with them for a few days and on the night of the burglary Roger, Gary Franklin, Jackie Pope and appellant had been riding around in Roger’s car drinking. Beam asked Roger for permission to search his automobile and this request was refused. Roger and Gary Franklin were arrested for burglary and placed in jail.

Beam went before a Circuit Judge, signed an affidavit and secured a search warrant to search the Franklin residence together with the yard curtilage and any vehicles parked on the premises. Pursuant to this search warrant the officers searched the Franklin house and found some stolen property that was unrelated to the burglary under investigation.

On this occasion Beam met appellant for the first time at the Franklin house. Beam showed appellant the screwdriver and appellant denied seeing it at any prior time. Appellant was arrested in the yard of the Franklin house and charged with burglary. He was then and there given the Miranda rights and warnings and stated he understood his rights. He was transported to jail. At the Sheriff’s Office he was again given the Miranda rights and again stated that he understood them. Appellant was again interrogated.

Officer Beam further testified that appellant stated he knew nothing about the burglary but that Roger and Gary Franklin might have gone in the place and that he might know where some of the tools were hidden. Appellant then agreed to accompany Chief Fowler and Investigator Aubrey Glasscock to see if they could locate the tools. He said that appellant’s agreement to go with the officers was not induced by any offer of reward, promise or threat.

Beam stated that he did not know where appellant, Glasscock and. Fowler went in search of the stolen property, but when they returned to the Sheriff’s Office they had the tools with them.

Appellant was again given the Miranda rights and warnings and he told Officer Beam that on the prior day, he, Roger and Gary Franklin, and Jackie Pope were riding around in Roger’s car drinking beer. He stated that he went to sleep and the other men waked him and asked him to drive the car and let them out in front of a sawmill or gravel pit on Highway 278. He said the other men told him to drive the car up and down the highway until one of them stopped him. He drove up and down the highway a few times until he was stopped by the others who got in the car and then appellant drove the car to Scruggs Truck Stop and bought gas. After getting the gas appellant stated that Roger Franklin then started driving and backed into Gilli-lan’s place, loaded the tools and left the place.

Officer Beam further stated that he examined the tools when they were brought to the Sheriff’s Office and saw the notches pn the handles of the screwdrivers and “Jim” was engraved on the ratchet handles on the metal tools.

Investigator Aubrey Glasscock testified that on the afternoon of January 28, 1977, appellant made a statement after being advised of his rights by Officer Beam in his presence. Glasscock then read from a Miranda card the rights which were given to appellant. He further stated that appellant was not threatened by anyone in his presence or hearing, nor was he offered any promises, rewards or other inducements to make any statements. He said appellant voluntarily went with him and another officer to search for the tools. He stated they were first directed by appellant to go to a certain place known as Catche Low Knob, located near Snead, Alabama, off Highway 278. According to Glasscock appellant said that Roger and Gary Franklin had stated to him they always hid stolen merchandise under a rock at this place. They searched this place but the tools were not there. Appellant then told the officers he knew of another place where the tools might be. They got back in the car and started driving and appellant told them to drive slowly as he was not familiar with the road and would have to look carefully. After driving a short distance appellant told the officers to park the car about two hundred yards from Antioch Church of Christ and they might find the property on the side of the road hidden in some woods. The officers followed appellant’s instructions and found in the weeds several small hand tools, hand wrenches, a chain saw, and motor oil. They put this property in the car and returned to the Sheriff’s Office where a photograph was made of these items found during this last search. The photograph was marked for identification as State’s Exhibit No. 3. After the proper predicate was laid this Exhibit, State’s Exhibit No. 3, was admitted into evidence. Mr. Gillilan identified these items of property and they were released to him.

On cross-examination Glasscock testified that there were 45 screwdrivers found at the church all of which had wooden handles with notches cut into them. He could not recall if the larger items were marked or engraved with the name of the owner.

James Gillilan was recalled and testified that State’s Exhibit No. 2, the screwdriver, was his property. He said that the last time he saw the screwdriver was when Officer Beam brought it to his shop on January 28, 1977, for identification. He identified it on that date as being his on the basis of the two notches he had cut on the handle.

The Court sustained appellant’s objection to the introduction of State’s Exhibit No. 2 into evidence.

The State then rested its case and out of the presence of the jury appellant moved to exclude the evidence. The Court overruled the motion.

Appellant was given the Miranda rights and warnings at least three times. He gave an oral statement that was taped. The taped statement was typed and given to appellant to read. He read the transcribed statement and signed his name on the last page in the presence of Officers Beam and Glasscock who signed their names as witnesses. Appellant also initialed each page.

After the proper predicate was laid showing no promises, threats, rewards or other inducements were made to get appellant to make any statements to the officers, the trial court determined that the statement was freely and voluntarily made and permitted it to be read to the jury.

It developed during the course of the trial that the affidavit and search warrant were never filed in the Circuit Clerk’s Office. Appellant moved to suppress the affidavit and the search warrant and the trial court granted the motion, probably on the basis of our holding in Owens v. State, 51 Ala. App. 50, 282 So.2d 402.

This is a circumstantial evidence case. Where the prosecution relies to a great extent on circumstantial evidence for a conviction, very wide latitude is allowed in making proof. Brown v. State, Ala.Cr.App., 331 So.2d 820; McCay v. State, Ala.Cr.App., 343 So.2d 577; Woods v. State, Ala.Cr.App., 344 So.2d 1225.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Woods v. State, supra; Jones v. State, Ala.Cr.App., 337 So.2d 116.

The circumstantial evidence which enshrouds appellant is that he drove the car on the night of the burglary as a lookout for the men who actually broke into the shop where the stolen property was located. He was present when the property was loaded in the car. He directed the officers to the place where the stolen property was hidden and he got out of the car and walked through the weeds with the officers to the spot where the property was found. The jury could reasonably infer from this evidence that appellant was a guilty participant in the burglary and theft of the property listed in the indictment.

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:
    Ex parte Jonathan VAN PELT.
    77-385.
    Supreme Court of Alabama.
    March 31, 1978.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    William Larry GANTT v. STATE.
    6 Div. 598.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      L. Drew Redden, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State:
   BOOKOUT, Judge.

Second degree manslaughter; sentence: twelve months hard labor.

Appellant was convicted of second degree manslaughter under an indictment charging him with the first degree murder of his wife, Jeannene Mayhall Gantt. The indictment charged that her injury was caused by being struck by the fist or feet of the appellant, “or by means otherwise unknown to the grand jury.”

On July 4, 1976, both the appellant and the deceased attended a party given by friends. During the course of the party, several persons noticed that the deceased was crying. She was apparently upset because a former girl friend of her husband was also at the party. Witness Patricia Ard testified that she was talking to the appellant during the party and told him that his wife was crying, to which he replied: “She had better damn not be.” Other witnesses stated that the deceased came up to the appellant later and attempted to hug him or put her arm around him, but he pushed her arm away and told her to go home. She left the party about 8:30 P.M. in her mother’s car. Appellant was seen walking toward his car at about the same time. He was not seen again at the party until about two hours later. Witnesses noticed that his car had been moved during that period of time and parked in a different place. By 11:30 P.M., the appellant had become highly intoxicated, and an acquaintance drove him home. There were no witnesses other than the appellant as to what happened between the time he arrived home and the time that he carried his wife to a local hospital the next morning. The State’s evidence was entirely circumstantial.

The appellant testified that when he came home after the party, he did not have his keys with him, but discovered that the front door to the house was unlocked. Upon entering, he found his wife lying naked on the floor of her dressing room and apparently asleep. He stated that he put her to bed and did not realize that anything was wrong with her until the next morning when he could not awaken her.

When he discovered that his wife was unconscious on the morning of July 5, the appellant carried her to the nearest hospital, and she was then transferred by ambulance to another hospital. She never regained consciousness and died a few days later as a result of subdural hematoma, a bleeding into the brain. Her mother testified that she was very hard to awaken when asleep. The injury to her head neither fractured the skull nor broke the skin of her scalp. Investigating officers found no blood stains or any evidence of a fight, a struggle, or a break-in when they searched the home on the morning of July 5.

The crux of the defense was that the deceased had accidentally fallen and hit her head or was injured by a third party unknown to the appellant, and that the appellant had no part in producing the injuries that caused her death. The State’s expert medical witness, a pathologist’s assistant, testified as to the cause of death from an autopsy he performed. He stated that the injury to the head was from a blunt object and could be consistent with an injury incurred by having been struck with a fist. He likewise admitted that the injury could be consistent with any number of other forces that would fall within a description of “blunt force trauma.”

A defense expert witness, a pathologist, testified that the subdural hematoma suffered by the deceased was more consistent with an injury suffered by a fall than by the head being struck by an object. He stated that an object striking the head makes a different type wound than a wound incurred by the head striking a stationary object. The pathologist stated that the instant case was a classical example of an injury associated with a fall. However, on cross-examination, he admitted that such an injury could be consistent with someone’s being struck with a fist or kicked with a foot.

Mrs. Melba Jean Mayhall, mother of the deceased, testified that the appellant called her on the morning of July 5 and stated that the deceased was in the hospital in intensive care. She stated that the appellant told her over the telephone that he had come home the night before and had found the deceased beaten up and had brought her to the hospital. The appellant again talked to Mrs. Mayhall after she had come to the hospital to see her daughter. She stated:

“Well, he explained to me that he had come home and Jeanine was lying in the floor in the middle bedroom where she always dressed and that he thought she was lying in the front of the vent trying to get some cool air was what he thought; that he didn’t know at the time that anything was wrong, and he picked her up and put her to bed.
* * * * * *
“Well, he told me he should have, you know, he said, T should have left the party and gone home with Jeanine. When I picked her up and put her in bed I was intoxicated and did not realize that anything was wrong.’ ”

Billie Brunner, a receptionist at the East End Hospital Emergency Room, testified that the appellant brought the deceased to the emergency room for treatment around 8:30 A.M. on July 5. She stated that the patient was not breathing, but did have a pulse at the time. Hospital personnel put the patient on a “breathing machine,” and in a short time transferred her by ambulance to St. Vincent’s Hospital for further treatment. Mrs. Brunner testified as to the account the appellant gave her of the injuries to his wife:

“A. I asked him what happened. I said, ‘What happened to her?’ And he said, ‘Well, she’s been beaten up.’ I said, ‘How do you know she’s been beaten up?’ And he said, ‘Well, I just took it for granted she was beaten up.’
# * * % ¡J8 *
“A. ... He said, ‘Well, we both went to a party last night and when we come — we went together, but we come home at different times.’ And he said, ‘When I got home I found her on the floor naked. Someone had broken into the house and beaten her up.’ He said, T thought she would be better by morning and she was not, so I decided I better bring her down here and get ya’ll to see about her.
* * * * * *
“A. He walked up to me and he said, ‘You don’t have to call the police.’
“Q. What did you say at that time?
“A. I don’t know. I said, ‘We do have to call the police. We have to do that on all accidents and anything that happens like that.’ And I might have told him that I did. But I know we do do that. He just made the statement to me, ‘You don’t have to call the police.’ ”

William Dale Leatherwood, a Birmingham police officer, testified that he interviewed the appellant at the East End Hospital on the morning of July 5. He said the appellant told him that, upon arriving home around midnight the previous night, he found his wife lying nude on the living room floor, that he thought she had too much to drink at the party, and he put her to bed. Appellant told the officer that he was unable to awaken his wife the next morning, so he took her to the hospital. Appellant did not mention a beating, nor did he mention that his wife was lying in front of an air vent.

The defense filed a motion to exclude the State’s evidence at the end of the State’s case in chief, and also filed a motion for a new trial after judgment, both of which were overruled. In overruling the motion to exclude the State’s evidence, the trial judge stated that in cases of a mysterious death, or where there were no witnesses to the death, then the appellant giving different accounts of what happened would be sufficient to present the case to the jury, citing Gardner v. State, 40 Ala.App. 276, 111 So.2d 916 (1959). This court in Gardner stated:

“Every homicide is presumed unlawful unless expressly excused or justified by law. A homicide being shown, it is incumbent upon the defendant to show the circumstances in mitigation, excuse, or justification, unless shown by the evidence produced against him. The degree of mitigation, the validity of the excuse, or justification, are for the jury. Champion v. State, 35 Ala.App. 7, 44 So.2d 616. “If for no other reason, the appellant’s varied, and varying accounts of the shooting would make this a question for the jury.”

The instant case differs from Gardner. Here, the victim was found unconscious, and the injury could have been caused by an accidental fall on her part, or by being hit or kicked by her husband, or by any number of other means. In Gardner, supra, the deceased was shot with a gun. The appellant there told police that, while he and deceased were standing on a street, a car drove by and someone shot the deceased from the car. The next day he told police that he had heard noises in the back of a store and had fired through a rear door and had hit the deceased. Still later he gave an account of the shooting as happening during a scuffle between him and the deceased, in which his gun had accidentally discharged.

In the instant case, there is no great discrepancy between the account given by the appellant to either his mother-in-law, to the hospital receptionist, or to Officer Leatherwood. In setting out the facts above, we have written them in the strongest light favorable to the State, and yet the discrepancies in the appellant’s account of what transpired fall way short of the discrepancies in the stories given by the defendant in Gardner, supra. Appellant’s assumption that his wife had been beaten was not unreasonable as she had the appearance of having what is commonly referred to as two “black eyes.” That condition, according to medical testimony, results from blood accumulating in the soft tissue under the eyes which is common in similar concussion type injuries to the head. Likewise, appellant never admitted that he in any way hit or beat his wife, whereas in Gardner, the defendant in two of his three accounts admitted firing the fatal shot, but sought to excuse his actions.

It is true that every killing, or homicide, is presumed unlawful unless expressly excused or justified by law. However, every death is not presumed unlawful. There is a great difference between a death which is apparently the result of foul play, or the use of a deadly weapon, and one which could have been caused by a pure accident, the means of which are unknown.

The only case of any significant similarity to the instant fact situation which we have found is McMurtrey v. State, 39 Ala.App. 319, 101 So.2d 88 (1957), cert. denied 267 Ala. 259, 101 So.2d 93. In McMurtrey, this court stated:

“The evidence of State’s witness Sowell tended to show that the deceased came to his death as a result of blows inflicted by a blunt instrument, or a fist. Further evidence by the State tends to show that this appellant was the only person with deceased during the time said blows could have been inflicted. A homicide being shown, it was incumbent upon the appellant to prove circumstances in mitigation, excuse, or justification, unless shown by the evidence produced against him. The degree of mitigation, the validity of the excuse or justification are questions for the jury. Champion v. State, 35 Ala.App. 7, 44 So. 616.” (Emphasis supplied.)

McMurtrey also differs from the instant fact situation in that the instant appellant was not the only person who could have inflicted the blow. From the evidence given by both medical experts presented by the State and the defense, the means of the appellant’s injury were just as likely to have been from an accidental fall as from being hit by a fist or other blunt object. While there was no evidence of a struggle or a break-in at the residence, there was evidence that the deceased was alone for a long period of time until discovered unconscious by her husband. The appellant’s testimony as to these events cannot be disregarded simply because he was the defendant in the case.

We do not read McMurtrey or Gardner, supra, to mean that any person finding a fatally injured person or a dead body is presumed to have caused the resulting homicide, thereby shifting the burden to that person to prove their innocence, or at least “circumstances in mitigation, excuse, or justification.”

The only hint of foul play in the instant case comes from speculative answers given by the two medical experts, to hypothetical questions propounded to them, to the effect that the injuries could be consistent with’ being hit by a fist. The direct medical testimony was much more persuasive that the injury most likely resulted from a fall. Although this issue would normally be decided by a jury, the State must show some connection between the appellant and the injury before a jury may find him guilty of homicide in any degree. The mere fact that the appellant was rude to his wife earlier in the evening at the party certainly does not connect him with the injuries she sustained. The only evidence as to the condition of the deceased when her injury was first discovered comes from the appellant. In no account given by him to any witness does he admit that he harmed his wife in any way. It is only by speculation that a jury could connect the appellant with the injuries to his wife.

As a general proposition, circumstantial evidence is given the same weight as direct evidence, so long as it points to the accused as the guilty party. Locke v. State, Ala.Cr.App., 338 So.2d 488 (1976); Lark v. State, Ala.Cr.App., 348 So.2d 539 (1977). A conviction may be had on circumstantial evidence so long as that evidence is so strong and cogent as to show the defendant’s guilt to a moral certainty. Tanner v. State, 291 Ala. 70, 277 So.2d 885 (1973); Hollenquest v. State, 290 Ala. 146, 274 So.2d 613 (1973). Furthermore, if circumstantial evidence fairly permits an inference consistent with innocence, it will not support a conviction. Cooper v. State, 235 Ala. 523, 180 So. 102 (1938); Carr v. State, 28 Ala.App. 466,187 So. 252 (1939). There must be substantial evidence to prove all elements of the charge against a defendant, Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1933), and it is a violation of due process to convict and punish a person without any evidence at all of his guilt, Clemons v. City of Birmingham, 277 Ala. 447, 171 So.2d 456 (1965).

While appellate courts do not normally weigh or evaluate evidence presented to a jury, such a task becomes necessary when the weight and sufficiency of the evidence is properly challenged in the trial court below. Here, by motion to exclude the State’s evidence, by request for the affirmative charge, and by motion for a new trial, the appellant properly presented that issue to the trial court. By reviewing the trial court’s ruling thereon, we necessarily evaluate the weight and sufficiency of the evidence. After careful review, we conclude that the evidence presented by the State was insufficient to support the verdict.

We think the case can be summed up by quoting from our Supreme Court on the proposition of circumstantial evidence in Ex parte Aeree, 63 Ala. 234 (1879):

“. . . Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis, but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty, by that full measure of proof which the law requires. . . . ”

Reversed and Remanded.

All the Judges concur.


text:
    Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
    77-351.
    Supreme Court of Alabama.
    March 31, 1978.
   FAULKNER, Justice.

WRIT DENIED.

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