author: DeCARLO, Judge. BOOKOUT, Judge

text:
    Thomas D. McDONALD v. STATE.
    8 Div. 524.
    Court of Criminal Appeals of Alabama.
    May 27, 1975.
    Rehearing Denied June 30, 1975.

      Watts, Salmon, Roberts, Manning & Noojin,. Huntsville, for appellant.
    William J. Baxley, Atty. Gen., William G. McKnight and William M. Bowen, Jr., Asst. Attys. Gen., for the State.
   DeCARLO, Judge.

Thomas D. McDonald was convicted of bribery and sentenced to three years. All of the judges of the 23rd Judicial Circuit recused themselves. The Chief Justice, Howell T. Heflin, assigned the Hon. L. S. Moore, Supernumerary Circuit Judge to preside over this case.

Before trial, appellant filed a plea in abatement based upon fraud and other irregularities in making up the jury box from which the grand jury returning the indictment was drawn. Appellant also filed a written waiver of his right to jury trial on the grounds of extensive pre-trial publicity, but did not file a motion for change of venue. Both the plea in abatement and the motion to waive a trial by jury were properly overruled by the court. Shields v. State, 52 Ala.App. 690, 296 So.2d 786.

On appeal, appellant also challenges the court’s action in hearing the evidence on the plea in abatement without a jury. The record does not reflect an objection by defense counsel and failure to submit this matter to a jury was not prejudicial to appellant. Racine v. State, 291 Ala. 684, 286 So.2d 896.

Appellant was charged by a four-count indictment with violations of T. 14, § 64, Code of Alabama 1940, Recompiled 1958, in accepting a bribe or agreeing to accept a bribe. A plea in abatement and demurrer thereto were overruled.

After an election by the State, the case was submitted to the jury on count one which reads:

“Thomas D. McDonald, alias Tom McDonald, a judicial officer, to-wit: Judge of the Madison County Court, Huntsville, Madison County, Alabama, did in, to-wit: December, 1971, in or near the office of the said Thomas D. McDonald, alias Tom McDonald, in the Courthouse of Huntsville, Madison County, Alabama, unlawfully and corruptly accept or agree to accept a gift, gratuity, or other thing of value, or a promise to do an act beneficial to the said Thomas D. McDonald, alias Tom McDonald, to-wit: Sexual intercourse, the promise of sexual intercourse, or the promise of other sexual favors or relationship from one Myra Layton Braidfoot, alias Myra Braidfoot Layton, a woman, under an agreement or with an understanding that his act, opinion, decision or judgment would be given in a particular manner, or upon a particular side of a cause, question, or proceeding, which by law was pending before him in his official capacity, to-wit: The cause, question or proceeding being a criminal prosecution of said Myra Layton Braid-foot, alias Myra Braidfoot Layton, wherein the said Myra Layton Braidfoot, alias Myra Braidfoot Layton, was charged with Grand Larceny under the laws of the State of Alabama, and said criminal prosecution being otherwise identified as the State of Alabama vs. Paul Duane Braidfoot, Myra Layton Braidfoot, Defendants, Case No. 97467, Madison County Court, Huntsville, Madison County, Alabama, and that the said Thomas D. McDonald, alias Tom McDonald, as Judge of the Madison County Court, Huntsville, Madison County, Alabama, would dismiss or cause to be dismissed, nol-pros or cause to be nol-prossed, reduce or cause to be reduced, continue or cause to be continued, or otherwise, dispose of or have disposed of, said criminal prosecution in a manner beneficial to the said Myra Layton Braid-foot, alias Myra Braidfoot Layton, all against the peace and dignity of the State of Alabama.”

This count is based on T. 14, § 64, Code of Alabama, which provides:

“Any legislative, executive or judicial officer or any municipal officer, or any deputy officer, or any clerk, agent or employee of any such legislative, executive, judicial or municipal officer who corruptly accepts or agrees to accept any gift, gratuity, or other thing of value, or any promise to make any gift, or to do any act beneficial to such officer, under an agreement, or with an understanding that his act, vote, opinion, decision or judgment is to be given in any particular manner, or upon any particular side of any cause, question, or proceeding, which is pending or may be by law brought before him in his official capacity: Or that he is to make any particular appointment in his official capacity, shall, on conviction, be imprisoned in the penitentiary for not less than two years or more than ten years.”

At trial Myra Layton Braidfoot testified she had been arrested in Madison County on a charge of “conspiracy of larceny.” Between November and December, 1971, she appeared in Judge Thomas D. McDonald’s court three times, and on each occasion, she saw appellant in his chambers.

The first time, she was told by the bailiff that the judge wanted to see her. While in the judge’s chambers, she sat on a couch and appellant sat in a chair behind his desk. Although she couldn’t remember the extent of their conversation, she did recall the judge commented about how attractive she was.

When she was called into the judge’s chambers the second time, he again remarked how attractive she was. She did not recall anything else about their conversation.

Her testimony as to the third occasion was:

“Q. What happened the third time, please ma’am?
“A. Well, we were in his Chambers again, and as we were getting up to leave he asked me if I could meet him at Kings Inn at 10:00.
“THE COURT: Asked you what?
“A. If I could meet him at Kings Inn at 10:00.
“Q. The Defendant asked her if she could meet him at the Kings Inn at 10:00.
“THE COURT: All right. I’m just a little hard of hearing.
“Q. Did he touch you or anything that time, squeeze you?
“A. He put his arm around my waist.
“Q. This Defendant, Thomas McDonald ?
“A. Yes, sir.
“Q. And were you alone in his office?
“A. Yes, sir.
“Q. And what again did he say now, other than meeting him at the Kings Inn ?
“A. He said if I met him at Kings Inn we could talk about the situation and maybe take care of it.
“Q. Of the case?
“A. Yes, sir.
“Q. All right. If you met him at Kings Inn at 10:00, what did you tell him?
“A. I told him that I would.”

Only she and appellant were present on each of the three visits, and during this period of time, her case was being continued. Following the last visit, she reported the incident to her lawyer in Decatur, and the case was later transferred to another court.

Judge Thomas D. McDonald, Judge of the General Sessions Court of Madison County, since January 1, 1974, and prior to this time, Judge of the Madison County Court, testified in his own behalf. He recalled that on December 9th or 16th of 1971, about 9:30 A.M., he sent either his bailiff or clerk to summons Myra Braid-foot to his chambers. She was alone, and either he or the bailiff closed the door. He sat at his desk and she sat on the sofa or a chair. He informed Myra Braidfoot her attorney would be late. They discussed her charges, but he did not recall telling her she was attractive. He denied asking her to meet him at the Kings Inn, but stated he may have taken her arm and escorted her to the door.

He stated the morning docket had not been completed. Ordinarily court was recessed after the first call until 10:00 A.M., and sometimes preliminary hearings would continue into the afternoon.

I

Appellant’s demurrer to the indictment contained 84 grounds, and he insists the judge erred in overruling it. In its brief, the State grouped these grounds under four general arguments, and the court’s action will be evaluated in this context.

1. The indictment does not apprise the accued with reasonable certainty of the act or acts with which he is charged.

No code form exists in Alabama, for the offense denounced in T. 14, § 64, supra. The indictment charged the offense in the words of the statute, Harris v. State, 32 Ala.App. 519, 27 So.2d 794, and it sufficiently recited the essential elements of the offense of bribery. The requisite general description of the offense was apparent. Caruthers v. State, 74 Ala. 406.

Identification of the accusation was sufficient to enable the accused to prepare his defense and permit the court to pronounce a proper judgment on conviction. Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162.

2. The indictment charges “two separate offenses” in the alternative.

Alternative joinder of offenses is expressly provided for in T. 15, § 249, Code of Alabama.

Where a statute specifies several ways in which an offense may be committed, they may be charged in one indictment or count using conjunctions to connect them. Arellanes v. United States, 9 Cir., 302 F.2d 603.

3. It does not specify the nature of the “gift, gratuity, or other thing of value” accepted by appellant.

The gift, gratuity, or other thing of value averred in the indictment was “. Sexual intercourse, the promise of sexual intercourse, or the promise of other sexual favors or relationship from one Myra Lay-ton Braidfoot . . .”

12 Am.Jur.2d Bribery § 7, states this test for determining value:

“It seems that a .bribe must involve something of value that is used to influence action or non-action. Value, though, is determined by the application of a subjective, rather than an objective, test, and the requirement of value is satisfied if the thing has sufficient value in the mind of the person concerned so that his actions are influenced.”

In Caruthers v. State, supra, Judge Somerville wrote:

“The word ‘thing’ does not necessarily mean a substance. . . . [I]t includes an act, or action.”

The Ohio court recognized in Scott v. State, 107 Ohio St. 475, 141 N.E. 19, that it is impossible to establish value which is universal. Further, the court stated: “The test of the value must necessarily be the desire of some person or persons, not necessarily of most persons or all persons, for the thing in question.” In conclusion, the court held that sexual favors solicited in exchange for official action was a sufficient thing of value.

4. The indictment did not specify the official duties of the accused sought to be corruptly influenced.

The official duties were generally stated in this manner:-

“. . . [Tjhat his act, opinion, decision or judgment would be given in a particular manner, or upon a particular side of a cause, question, or proceeding, which by law was pending before him in his official capacity . . .”

and more specifically:

“. . . [Wjould dismiss or cause to be dismissed, nol-pros or cause to be nol-prossed, reduce or cause to be reduced, continue or cause to be continued, or otherwise dispose of or have disposed of, said criminal prosecution in a manner beneficial to the said Myra Layton Braidfoot . . .”

The law does not protect a corrupt judge because he exceeds his powers, and his actions are “colorable” only. People v. Jackson, 191 N.Y. 293, 84 N.E. 65; Wells v. State, 174 Tenn. 552, 129 S.W.2d 203; Whitney v. United States, 10 Cir., 99 F.2d 327.

The gravamen of the offense is the acceptance and solicitation of the bribe to influence his official conduct. Sharp v. United States, 8 Cir., 138 F. 878.

II

To sustain its burden of proof, the State offered evidence of similar transactions to show intent, motive, design and scheme. This evidence involved four other females having matters coming before appellant’s court and the attending facts relative to their transactions with appellants.

Appellant insists the trial court' erred in allowing this evidence and urgently contends that the testimony of Cheryn For-sythe, Brenda Gwathney, Laura Blann, and one other whose anonymity was preserved, was palpably erroneous and prejudicial.

The facts as related by Cheryn Forsythe were:

In March, 1971, she came before Judge McDonald on a charge of issuing a worthless check to Tourway Inn. After a demand for preliminary hearing, the charge was amended on motion of the District Attorney, and she pleaded guilty. Upon payment of the fine and costs, the sentence was suspended for restitution. After restitution, the jail sentence was remitted.

On April 1, 1971, she was arrested on a fugitive warrant growing out of a probation violation in the State of Ohio. This case was continued from time to time on her own motion and prosecution was dismissed on May 27, 1971.

At the time she was arrested on the Tourway Inn check, Billy Eades, a city policeman, accompanied her to Judge McDonald’s office. The officer asked the judge to help her because she was working with the police. At that time, the Tour-way Inn check and the Ohio flight warrant cases were pending against her. After Officer Eades talked to Judge McDonald, she remained out of jail and continued to help the police.

In October, 1971, she was before appellant’s court for issuing a worthless check to Southern Airlines. On advice of the bailiff, she went to the judge’s chambers to discuss the case. The judge advised her to get a lawyer, and the warrant, being defective, was dismissed. Subsequently, she was re-arrested on a new warrant and went to see appellant in his chambers. Her testimony was:

“A. He asked me if I could meet him in his Chambers — I mean meet him. I asked why, he said he wanted to talk to me and that he could get it taken care of.
“Q. Get the case taken care of?
“A. Yes.”

Either that day or the next, she met appellant at the parking lot of the Big Gun Store and followed him in her car to George Fann Realty. It was just after dark when they arrived and both went into the office. After talking for awhile, the judge mixed himself a few drinks but the witness did not have any. She testified that after having sexual intercourse with the judge on the couch, he told her to bring the money by in a few days to pay the check. Eventually she took the money to him and never went back to court on that case.

In October, 1972, she was arrested on nine worthless check cases and after going to the sheriffs office, three additional warrants were placed against her. Again, she went to the appellant’s office. He told her she could make a personal bond on those warrants and not to worry, that she wouldn’t need a lawyer. She was directed to plead guilty and get the money to pay the checks. At this time, she was pregnant, and the judge put his arms around her back and buttocks and tried to kiss her.

After this meeting she went to court every Tuesday and when a check appeared on the docket, appellant asked if she had the money to make restitution. If she had it, it was paid, and if not, she was given two or three weeks to pay the check. Each time she would plead guilty, the sentence was suspended and after payment of court costs the sentence was remitted.

In March, 1973, she was arrested on other worthless check cases. It was about this time that newspaper publicity was released concerning Judge McDonald’s handling of her cases.

After the arrest, she called the judge from jail, to see if she could make a cash bond. She was told a friend would do it, and that was all he could do for her.

In April, 1973, she testified before the Madison County Grand Jury and after two days of testimony, she related to the jury the circumstances involving her relationship with Judge McDonald.

Judge McDonald testified Cheryn For-sythe had three worthless check cases and a bigamy case pending in the Madison County Court. The warrants on the check charges were executed on October 2, 1972, and continuances were given from time to time. On her appearances in court on these cases, she was sentenced to thirty days. Subsequently, some police officers told him she was working as an informer on a series of robberies and they requested him to keep her out of jail. He agreed to cooperate and saw to it that she was not imprisoned. She received a thirty day sentence. It was suspended pending payment of fine, and later this sentence was suspended.

She had been to his office once on the Southern Airline case and again on a board and lodging case when accompanied by the police. He did not ask her to meet him at a parking lot, Governors Drive or at the Big Gun Store, and did not go to Fann Realty with her. When he was consulted on the worthless check warrants, he encouraged her to make restitution. He denied kissing or putting his arm around her at any time.

As to Brenda Gwathney, the evidence submitted was: In August, 1972, she went to Judge McDonald’s court to answer a worthless check charge. She entered a plea of guilty and made restitution on that date. Not having enough money to pay the fine, appellant continued the case so she could get the money. The case was suspended for payment until September 5, 1972, and when she was unable to pay, she went to see Judge McDonald. While talking to him in his chambers, he asked where she lived and worked. As she got up to leave, appellant tried to kiss her and said he would give her another week or so.

The case was again continued at her request to October 10, 1972. At the October setting, she was late for her appearance in court and went to the judge’s chambers again. She still didn’t have the money to pay the fine and was upset because of the pending jail sentence. Judge McDonald sympathized and continued the case. As she was leaving, he put his arms around her and kissed her. The door to the judge’s chambers was closed on each occasion. Her testimony about the last visit was:

“A. He asked if I could get out at night and I told him no, that I couldn’t.
“Q. Did he say anything about your case?
“A. Just that he would give me all the time that I needed.”

The last day she went back to court, she didn’t see Judge McDonald, but was informed by one of the girls in the office that her case had been dropped.

Judge McDonald stated to his knowledge, Brenda Gwathney was not sentenced to jail on her first appearance in his court. The case was continued several times. One continuance was due to a death in her family.

Restitution had been made on the check, and the fine and costs were remitted. On the occasion she came to his chambers, he recalled putting his arm around her and escorting her to the door. He denied kissing her or asking her if she could get out at night.

The facts relating to Laura Blann as disclosed by the record were: In October of 1972, she appeared in Judge McDonald’s court on a forgery charge.

At her first appearance, the preliminary hearing was “overruled”, but she continued to return because of additional charges. Testimony regarding her first conversation with appellant was:

“Q. All right. Now, tell the Court and the jury, please, exactly what happened that time when you first had a conversation with the Judge.
“A. He asked me to come in his office, that he would like to talk about my cases with him. So, I went in his office alone, leaving my husband standing outside, and he said, ‘Well, I’m concerned about all these forgery charges you have.’ Said, ‘How have you got them?’ I explained to him that I had done it and that they had sent my checks up for fingerprints and that they was coming back just one at a time, they would arrest me as they came in.
“Q. You told the Judge you were guilty, you had done it ?
“A. Yes, sir. He told me not to ever plead guilty.
“Q. The Judge told you what then?
“A. He told me not to worry about it and not to plead guilty, that he would talk for me and he would get everything squared away.
“A. He said, ‘Don’t plead guilty to anything, regardless of what it is, because you always have a chance of beating it in Court.’
“Q. The Judge told you that?
“A. Yes, sir.
“Q. Before he said that, had he said anything to you — had he given you any compliments or anything like that, or did he just get right into it?
“A. Yes, he told me I had beautiful eyes.
“Q. Go ahead. What, if anything, happened ?
“A. Then he told me not to worry about the bigamy charge, that the State wouldn’t prosecute a woman on bigamy anyway.
“Q. Did he touch you in any way?
“A. Yes. He put his hands on me.
“Q. Where were you seated?
“A. I was sitting on his sofa in his office.
“Q. Where was he ?
“A. He was sitting besides me, when I got up to leave he put his arm around me and he tried to kiss me, and I turned my head and he did kiss me on my cheek.
“Q. He tried to kiss you on the mouth ?
“A. Yes.
“Q. Where all did he touch you? Just tell the Court and jury.
“A. He touched me on my breast and he rubbed my leg.
“A. He asked me did my husband follow me around and was there any possible way I could meet him, and and then he said, ‘Well, we better go back in the Courtroom. The recess is over.’
“Q. You didn’t give him an answer at that time ?
“A. No.
“Q. Did he ask you to call him ?
“A. Yes, he told me I could call him any time I needed him, any time that I was arrested and needed a bond dropped, or either — any of my friends that needed any help in getting their bond cut down, he would help.”

The next conversation she had with appellant was when she was arrested on forgery and “pretense” charges and placed in the Madison County Jail. She telephoned the judge to continue her preliminary hearing. He told her the case would be set up, but she should call him when she got home.

After a couple of days, she phoned the judge and was asked to come to his office that afternoon. He explained one had to be careful talking over the telephone. Upon arrival at his office, the judge locked the door and asked if she would like a drink. When she refused, he said he was a “scotch man” and gave her a bottle of bourbon. He again put his hands on her and tried to kiss her. She was asked to meet him at the Tour-way Inn and was told he would give her a room key. She responded that she had a dental appointment and couldn’t meet him.

On the night of April 27, 1973, she was in the Madison County Jail with Cheryn Forsythe, but denied Cheryn made any suggestion that she, Laura Blann, could help herself by testifying against the judge. She also denied having been shown any map of the judge’s office.

Appellant testified he did not know Laura Blann until her case came before his court but remembered having one conversation with her in his chambers.

She approached him at the door of his office and asked to speak to him. It was just before 10:00 A.M., and to his knowledge, he did not lock the door. He sat at his desk and she sat on the couch or in a chair.

A bigamy charge was pending against her, and he advised her to have a lawyer; that she was presumed to be innocent, and if so, should not plead guilty. Nothing was mentioned about her calling him, and he did not recall any occasion when he offered her a drink. He did not give her any whiskey and did not ask her to meet him at the Tour way Inn.

No offer of a key to Tourway Inn or to help her friends was made, nor did he rub her leg or kiss her.

As to the anonymous witness, the testimony was:

Around March, 1971, an auto theft charge against her brother was pending in appellant’s court. She went to the judge to ask if a bond could be set and was told it would cost a hundred dollars for his release.

After borrowing the money, the bond was made and appellant arranged for her brother to be brought down to the courtroom. While they were waiting for her brother, the following occurred:

“A. While they were bringing my brother down my mother was sitting out in the lobby, and the Judge said that he would like to meet me some other place and talk to me about my brother.
“Q. Your mother didn’t hear this did she?
“A. No.
“Q. And so the Judge said what now?
“A. He said that he would like to meet me some other place and talk to me about my brother’s case.
“Q. What, if anything did you say?
“A. I said okay.
“Q. What, if anything did he do then or say ?
“A. He said that I would meet him at Fann Realty at 7:00.
“Q. No. Did you go with the Judge or did you drive your own automobile or what ?
“A. I drove my own automobile.
“Q. Did you know where to go?
“A. No, I followed the Judge.
“Q. Where did you meet up with the Judge?
“A. Our here in 'front of the Courthouse.
“Q. And you followed him ?
“A. Yes, I did.
“Q. And when you got to Fann Realty, did you go inside ?
“A. Yes, I did.
“Q. Did you go in together or how?
“A. Yes, I think he was waiting in the car when I pulled in.
“Q. What, if anything, happened then? Go ahead and tell the jury and Court what, if anything happened.
“A. I went inside and I thought that I was going to talk to the Judge about my brother.
“MR. MANNING: We object to what she thought.
“THE COURT: You object to what?
“MR. MANNING: I’m objecting to a mental operation. She testified to what she thought.
“A. No, I’m testifying to what I thought.
“Q. Just tell what you said, what he said what you did and what he did. Now, what, if anything, happened after you got inside, what did the Judge say or do?
“A. I went inside with the Judge. I was sitting there, I was ready to talk to him about my brother’s case because I knew that he was not guilty of taking the car. I did not go there—
“Q. Did he get you a drink before that or did y’all have a drink ?
“A. No, I didn’t.
“Q. He fixed himself one?
“A. Yes.
“Q. After he fixed himself a drink, what did he do ?
“A. He asked me to take my clothes off.
“Q. Did y’all have sexual relations there at the time ?
“A. Yes.
“Q. After he finished, what, if anything, did he say to you? Did he ask you to call him?
“A. Yes, he did.”

She next saw the judge in reference to a speeding ticket and asked that payment be postponed until she could get the money. Later she received a letter indicating she would be in contempt if she did not come to court. When she saw the judge in his chambers, he told her the case had been continued but the letter was his only way of getting to see her. While they were in his chambers alone, he walked up behind, reached under her arms and started feeling of her breasts. She asked him “to let her go” and she left. He did tell her he would continue her case again.

Later in 1973, she again met the judge at Fann Realty concerning a peace bond against her husband. She had known appellant for about ten years and had seen him a few times in the clubs where she had worked as a barmaid.

Judge McDonald testified this witness would sometimes stop by his office on her way to the Registrar’s office. In March, 1973, she came to see him in his office regarding a criminal charge pending against her brother. She wanted to get him out of jail and appellant advised her that a hundred dollar bond would have to be made. A cash bond was posted and her brother was released.

He denied asking her to meet him at Fann Realty or any other place. In February, 1973, she wanted a peace bond, and in March, telephoned him at home about another peace bond.

He told her to meet him at the courthouse basement. Arriving about 6:15 P.M., he said they would have to talk at the jail and she asked if they could talk elsewhere. Ultimately, they drove to a large parking lot. He sat in her car while they discussed the peace bond. After the conversation they each left in separate cars.

On the way home he stopped and greeted a friend at Fann Realty. Subsequently, the above mentioned witness walked in and after a short while the three left. He talked with her a minute in the parking lot concerning a speeding ticket.

He did not ask her to remove her clothes, and did not have sexual relations with her. At no time afterwards • did he ever see her at the Fann Realty office.

He denied ever having a key to the back door of Fann Realty. The only time he had keys to the front door was when he hung pictures in the office, and these were left in the door when he finished.

Numerous grounds have been urged upon this court for a reversal of the judgment and although each and every one was considered separately and severally, only the pertinent ones will be reviewed here. In that regard, we believe the principal question necessary for rendering a decision in this matter involves the admission of “similar transactions” to show intent, motive, design and scheme.

It is a well recognized rule that in a prosecution for a particular offense, proof tending to show that accused is guilty of committing other crimes at other times is inadmissible, even though they are similar to the one charged in the indictment. Gassenheimer v. State, 52 Ala. 313.

The opinions in Fall v. United States, 60 App.D.C. 124, 49 F.2d 506; White v. State, 43 Ga.App. 748, 159 S.E. 897; Scott v. State, supra, and Roden v. State, 5 Ala.App. 247, 59 So. 751, sufficiently cover the rule governing admission of testimony about similar transactions of the defendant in bribery cases.

It is well to note however, that although the general rule excludes evidence of similar offenses for the purpose of showing bad character of the accused, exceptions are recognized if relevant for any purpose other than to show a mere propensity by the defendant to commit the crime charged. Gassenheimer v. State, supra; Dennison v. State, 17 Ala.App. 674, 88 So. 211.

In our determination of this issue involving the admission of “similar transactions,” we assessed the testimony in the light of certain limitations outlined by defense counsel.

First, we found that a connection and pattern existed between the similar transactions and the offense charged. This was indicated by the following facts from the testimony of the four witnesses:

1. All were women defendants or were interested in matters pending before the judge.

2. Each one went to the judge’s chambers.

3. After each entered, the door was closed.

4. Each one was alone with the judge in his chambers.

5. Judge offered each aid or help in matters pending before him.

6. The judge hugged, kissed or touched each.

7. All were asked to meet the judge.

Second, appellant’s transactions with the respective witnesses were not too remote in time; United States v. Cochran, 5 Cir., 499 F.2d 380, and occurred within these intervals:

Braidfoot November-December, 1971.

Forsythe October, 1971-October, 1972. Gwathney September-October, 1972.

Blann December, 1972-Janua.ry, 1973. Anonymous March, 1971- March, 1973.

Third, evidence of the similar transactions was admissible even though the proof shown was not sufficient to prove the similar offenses beyond a reasonable doubt. Scott v. State, supra.

Fourth, the general rule excluding evidence of similar transactions does not apply when it is material to the inquiry to show the intent with which the act charged was committed. Roden v. State, supra.

After admission of this evidence, in order to insure that no prejudice accrued to appellant, the trial judge admonished the jury as to the purpose of the evidence and at the close of the trial, again instructed the jury in this manner:

“Now, the State has made an effort to show by that evidence that the Judge has committed some other similar offenses, that is, similar to the ones [sic] charged in the Indictment, and the State, contends that he did commit other similar offenses. Now, once again, I’m not saying whether that contention on the part of the State is true or false, but it does present an issue, it’s for the jury to say whether it’s true or false. At the conclusion of that kind of evidence I limited that evidence, as you remember, to your consideration of the question of the intent that the Judge may or may not have had in the case that we are trying, and to the scheme or plan or action that he may have had in his dealing with this Braid-foot woman named in the Indictment.
“Now, we are not trying him for these other offenses, it’s merely evidence, and that evidence is to be limited in your consideration of the case that we are trying, as to the question of intent, scheme or plan.”

Based on the foregoing, our judgment is the court’s action in admitting the testimony of similar transactions showing intent, motive, design and scheme was proper.

Ill

It is strongly insisted by appellant that the evidence was insufficient to authorize a conviction.

To constitute an offer to accept a bribe, the thing solicited must be valuable and may be some act. Caruthers v. State, supra.

The Alabama statute condemns an offer to accept a bribe by promise of a “thing of value”, and a conviction may be had on proof that an offer to accept by an accused was made in exchange for his official partiality in matters pending before him.

Although the evidence before the jury was in dispute, it could be inferred from this statement in Braidfoot’s testimony, “if I met him at the Kings Inn we could talk about the situation and maybe take care of it,” appellant was asking for a “thing of value” or an “act beneficial to” himself.

The word “value” is not limited to desirable things generally received in bribery cases. The test of value is the desire of a person for the thing in question. Scott v. State, supra.

Authorities have shown that relevant, similar transactions as those committed by appellant are admissible. Fall v. United States, supra; White v. State, supra; Scott v. State, supra, and Roden v. State, supra.

Appellant argues the “pattern” evidence was inadmissible as nothing of value was solicited of Braidfoot or the others. A similarity between the Braidfoot matter and the pattern testimony is apparent. It could reasonably be inferred that appellant’s intent, motive, design and scheme in all of the transactions were the same and it was his intent to exchange his high judicial functions for what he personally desired.

Where there is legal evidence, as in this case, from which the jury can by fair inference find the accused guilty, this court has no right to disturb the verdict. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

Affirmed.

All the Judges concur.

ON REHEARING

Application overruled.

CATES, P. J., and TYSON, HARRIS and DeCARLO, JJ., concur.

BOOKOUT, Judge

(dissenting):

The indictment charges that appellant, “ . . . did . . . unlawfully and corruptly accept or agree to accept . . . a promise to do an act beneficial to the said Thomas D. McDonald, . . . , to-wit: Sexual intercourse, the promise of sexual intercourse . . . from one . . . Myra Braidfoot Layton, a woman, under an agreement or with an understanding that his act, opinion, decision or judgment would be given in a particular manner, or upon a particular side of a cause, . . . , being a criminal prosecution of said Myra Layton Braidfoot, . . . , charged with Grand Larceny under the laws of the State of Alabama,” and that he “would dismiss or cause to be dismissed, nol-pros or cause to be nol-prossed, reduce or cause to be reduced, continue to cause to be continued, or otherwise dispose of or have disposed of, said criminal prosecution in a manner beneficial to said Myra Layton Braidfoot. . . . ”

Mrs. Braidfoot testified that on her third visit to the Judge’s chambers, “he said if I met him at the King’s Inn we could talk about the situation and maybe take care of it.” She told him she would meet him there. Appellant made no promise or agreement to do anything specifically about the case. He only agreed “to talk about the situation and maybe take care of it.” (Emphasis supplied).

The appellant’s conduct with other women certainly shows pattern, motive, or intent, however, intent alone is insufficient to support the positive averments spelled out in the indictment. The above conversation lacked specificity of action by the appellant as charged in the indictment. On reviewing the evidence, I am unable to find an actual promise or agreement that appellant would dismiss or nol-pros Mrs. Braidfoot’s case in exchange for her favors. He suggested meeting and talking, and although we may believe from his pattern of conduct he would make an illegal proposition, nevertheless, we do not know for he never got tO' that point.

After considering the application for rehearing, I have sufficient doubt that I now believe the seriousness of the case and charges involved deserve our review on rehearing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Thomas D. McDONALD v. STATE. Ex parte Thomas D. McDonald.
    SC 1375.
    Supreme Court of Alabama.
    March 9, 1976.
    Glenn F. Manning, Huntsville, for petitioner.
    William J. Baxley, Atty. Gen., and William M. Bowen, Jr., Asst. Atty. Gen., for the State, respondent.
   PER CURIAM.

Petition of Thomas D. McDonald for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in McDonald v. State, 57 Ala.App.-, 329 So.2d 583.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur except HEFLIN, C. J., not sitting.


text:
    Winston LEWIS v. STATE.
    1 Div. 553.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.

      John F. Butler, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

A jury convicted appellant-defendant, pursuant to an incident, of possessing heroin contrary to law. Act No. 1407, Vol. 3, Acts 1971, p. 2378, § 204 (Schedule 1) (c) (10), p. 2384.

The trial court fixed punishment at three years imprisonment in the penitentiary. Defendant, an indigent here, appealed from the judgment.

The police officers in Mobile procured a valid search warrant for an apartment at a designated address in Mobile, and on Monday, March 18, 1974, proceeded to the address, in the daytime, to search the premises for narcotics.

Officer Seals knocked on the front door of the (two-story) apartment in response to which occupant, Raphael Morse, came to the door, and asked who it was. Officer Seals gave his name and official title. Morse, according to Officer Seals, pulled back the curtain over the glass window in the door and then proceeded to leave without making any effort to open the door.

Within five to ten seconds after the hurried departure, Officer Seals kicked the door open and entered just in time to see defendant make a hurried exit through a rear window to the ground. Officer Seals restrained Morse pending the chase of defendant.

The officer gave chase of defendant for a short distance, when the latter stumbled and fell. About this time the officer fired his pistol one time into the air to try to stop the fleeing Lewis.

This officer observed when he got to Morse that he had in his hand some paraphernalia (we omit identification of items) for injection of heroin. Possession of such paraphernalia is a misdemeanor, § 507, p. 2401, Act No. 1407, supra. The officer arrested defendant thereupon for such unlawful possession and took him back into the apartment.

After this episode, the officers, Seal, Calhoun and Orso made a careful search of the premises and found five capsules of white powder (identified in the trial as heroin) under a rug in the bathroom. The officers seized the powder.

At the voir dire hearing in camera it appears that while in the apartment one of the officers read defendant his Miranda rights. Soon thereafter defendant and Morse were taken to the police station where defendant was detained in the interrogation room and again reminded of his rights previously read to him. The defendant admitted that he possessed the heroin which he bought from a “dude” in Prichard.

After an extended examination, direct and cross, relative to the confession which the officers said was freely given without force, threats or inducement, etc., the trial court overruled defendant’s motion to suppress evidence of the confession and on trial admitted the capsules in evidence. A qualified State toxicologist testified that the powder in the capsules was heroin.

The State did not press the charge for possession of the paraphernalia which it appears defendant possessed when he was fleeing and was overtaken.

As we noted above, evidence was taken in camera in support of the State’s contention that the confession of defendant that the heroin found in the bathroom was his. The record implies that the trial court ruled that the alleged confession was voluntarily given. The court exercised its prerogative in determining that issue. Duncan v. State, 278 Ala. 145, 176 So.2d 840(22).

The jury considers the weight and credibility of the confession. Stone v. State, 208 Ala. 50, 93 So. 706.

It is observed in 23 C.J.S. Criminal Law § 843, at p. 297, as follows:

“In connection with, and for the purpose of making its determination as to, the weight and credibility of confessions, the jury, under proper instructions, may and should hear and consider evidence of circumstances as to the voluntary character of the confession. Thus, it has been held that if the confession was found by the court in the preliminary hearing to have been freely and voluntarily made and is admitted in evidence, the evidence given on the preliminary examination to determine its admissibility may or should be repeated before the jury to enable them to pass on the credibility of the confession although refusal of the court to have such testimony transcribed and read to the jury has been held not error.”

Numerous citations are listed including Duncan v. State, supra, (22), wherein the Supreme Court of Alabama, in an elaborate opinion written by Justice Lawson, observed :

“. . . However, after the confession has been admitted the jury could consider the, circumstances under which the confession was obtained, and the appliances by which it was elicited, including the situation and mutual relations of the parties in exercising their exclusive prerogative of determining the credibility of the evidence, or the weight to which it is properly entitled, in controlling the formation of a verdict.”

In Johnson v. State, 242 Ala. 278, 5 So. 2d 632(6), cited in Duncan, supra, the eminent and late Chief Justice Gardner, writing for the court, observed:

“And after the confessions have been admitted, the jury may consider the circumstances under which the confessions were obtained, and the appliances by which they were elicited, including the situation and mutual relation of the parties, in exercising their exclusive prerogative of determining the credibility of the evidence, or the weight to which it is properly entitled in controlling the formation of the verdict.”

We conclude therefrom that the trial court in the instant case committed reversible error in admitting in evidence before the jury, over the objection of defendant which was overruled, the alleged confession of defendant that the narcotic powders belonged to him, without the State having first adduced evidence theretofore offered in camera as to the voluntariness of the alleged confession. The jury in determining the weight and credibility of the confession Was entitled to consider this predicative evidence. Likewise, by the same token and for the same reasons, the jury was entitled to hear the Miranda warnings heard in camera. Thus the State must prove voluntariness and the Miranda warnings in camera, and after approval by the trial judge, again establish voluntariness and a Miranda warning in the presence of the jury.

The trial court under the circumstances, supra, committed reversible error in overruling defendant’s objection to the admission in evidence before the jury, the alleged confession of defendant.

The judgment is reversed and the cause remanded.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

Reversed and remanded.

All the Judges concur.


author: BLOODWORTH, Justice. MADDOX, Justice JONES, Justice

text:
    In re Winston LEWIS v. STATE of Alabama. Ex parte STATE of Alabama.
    SC 1528.
    Supreme Court of Alabama.
    March 26, 1976.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
    No brief for the defendant.
   BLOODWORTH, Justice.

This case comes to us by way of petition for writ of certiorari which we granted to review the decision of the Court of Criminal Appeals in 57 Ala.App. -, 329 So.2d 596, 1 Div. 553.

We perceive the question presented to us by this case to be:

“Is it reversible error for a trial judge (who has already determined the admissibility of a confession or inculpatory statement en camera) to permit the statement to be presented to the jury, over defendant’s objection, without first requiring the state to lay the ‘Miranda’ and ‘voluntariness’ predicates before the jury?”

We answer in the affirmative and affirm the Court of Criminal Appeals.

Our Alabama cases follow the “Orthodox Rule” to the effect that the question as to the admissibility of a confession addresses itself to the judge and that the credibility and weight to be given a confession are matters exclusively for the jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Johnson v. State, 242 Ala. 278, 5 So.2d 632 (1941).

Our Alabama cases have long held:

“And after the confessions have been admitted, the jury may consider the circumstances under which the confessions were obtained, and the appliances by which they were elicited, including the situation and mutual relation of the parties, in exercising their exclusive prerogative of determining the credibility of the evidence, or the weight to which it is properly entitled in controlling the formation of the verdict. Redd v. State, 69 Ala. 255.” [Emphasis supplied.]

Johnson v. State, 242 Ala. at 282, 5 So.2d at 635.

Prior to Jackson v. Denno, supra, the Alabama practice was to offer the predicate as to voluntariness to the judge and jury at the same time. As Mr. Justice Lawson (the author of the opinion) comments in Duncan, it was rare to find a record in which a request was made for the judge to first hear the predicate en camera. 278 Ala. at 163, 176 So.2d at 857.

After Jackson v. Denno, this Court held in Duncan:

“We are clear to the conclusion that whenever a motion is made for the question of the voluntariness of the confession to be determined outside the presence of the jury, the motion should be granted. In such a hearing, the trial judge sitting alone should make a determination upon a proper record of the issue of voluntariness. . • . . If the confession is held voluntary and admitted, the jury’s consideration of that confession and surrounding circumstances shall proceed in accordance with the ‘Orthodox’ procedure, that is, the jury considers the voluntariness as affecting the weight or credibility of the confession." [Emphasis supplied.]

278 Ala. at 165, 176 So.2d at 859.

This is exactly what is suggested by the U. S. Supreme Court in the opinion in Jackson v. Denno, supra, in Note 13:

“The question of the credibility of a confession, as distinguished from its admissibility, is submitted to the jury in jurisdictions following the orthodox Massachusetts, or New York procedure. Since the evidence surrounding the making of a confession bears on its credibity, such evidence is presented to the jury under the orthodox rule not on the issue of voluntariness or competency of the confession, but on the issue of its weight. Just as questions of admissibility of evidence are traditionally for the court, questions of credibility, whether of a witness or a confession, are for the jury. This is so because trial courts do not direct a verdict against the defendant on issues involving credibility. Nothing in this opinion, of course, touches upon these ordinary rules of evidence relating to impeachment.
“A finding that the confession is voluntary prior to admission no more affects the instructions on or the jury’s view of the reliability of the confession than a finding in a preliminary hearing that evidence was not obtained by an illegal search affects the instructions on or the jury’s view of the probativeness of this evidence.” [Emphasis supplied.]

378 U.S. at 386-87, 84 S.Ct. at 1786, 12 L. Ed.2d at 921.

Under the rationale of these decisions, how can the jury consider “the voluntariness as affecting the weight or credibility of the confession” unless the state presents evidence as to the “Miranda” and “volun-tariness” predicates to the jury? The answer seems to us to be self-evident, assuming, of course, that seasonable and proper objection is made by defendant, if such evidence is not presented by the state before a confession or inculpatory statement is offered. This, for the reason that defense counsel may decide for reasons of trial strategy it would not be desirable, from defendant’s standpoint, to rehash this evidence before the jury. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L. Ed.2d 408 (1965).

The Mississippi Supreme Court, in Rhone v. State, 254 So.2d 750 (Miss.1971), wrote that after the court [in an out-of-court hearing] had “found that the confession was competent evidence it allowed the state, over the objection of the defendant, to introduce a confession into evidence without showing that the confession had been freely and voluntarily given. When the defendant sought by cross examination of the witness relative to the circumstances surrounding the giving of the confession, the court sustained objections by the state and refused to allow the defendant to fully show the circumstances surrounding the giving of the confession.” [Emphasis supplied.] Id. at 754.

The court then held, viz:

“. . . It was the opinion of the trial judge that since the court had held the confession was competent evidence, the only thing that defendant could show was that the confession was not true. In so holding the court was in error. It has long been the law of this state, that before a confession can be received in evidence, it must be shown to be competent in that it was freely and voluntarily given. This is a legal question to be determined by the court on a preliminary investigation out of the presence of the jury. If, after hearing all the testimony pertinent to the inquiry, the court is satisfied beyond a reasonable doubt that the confession was freely and voluntarily given, it becomes competent evidence. However, after a confession has been held by the court to be competent evidence either party has a right to' introduce before the jury the same evidence which was submitted on the preliminary inquiry as well as any other evidence relative to the weight and credibility of the confession. The jury does not pass upon the competency of the confession, but the jury does pass upon the weight and credibility of the confession.”

Id. Although strictly speaking Rhone merely stands for the proposition that a defendant should be allowed to introduce evidence of “involuntariness” before a confession is shown to the jury, we think it infers that the state should show the vol-untariness to the jury. Any other conclusion misconceives the law and burden of proof. Under Alabama law, a confession is prima facie involuntary and inadmissible. The burden is on the state to rebut that presumption and show its “voluntariness” and that the “Miranda” predicate was laid in order to admit it. True, the trial judge makes a preliminary determination of admissibility but the jury is still left with its duty to consider “voluntariness as affecting the weight or credibility of the confession.” Duncan, supra. To do that, it must hear at least a “bare bones” voluntariness and Miranda predicate. To hold otherwise would shift the burden to the defendant to show these matters to the jury.

The Iowa Supreme Court in State v. Holland, 258 Iowa 206, 138 N.W.2d 86 (1965), stated what we conceive the correct rule to be:

“We note that after the trial court ruled the confessions were admissible and they were received in evidence before the jury, testimony was again admitted as to their voluntary character. It was proper to do this, not to permit the jury again to pass upon their admissibility —that had been properly determined by the court — but as bearing upon the weight to be accorded them and the credibility of the witnesses who testified regarding the confessions. . . .
“Our approval of the procedure used here is in accord with the view of both the Wisconsin and Michigan courts in approving the so-called ‘orthodox’ over the ‘Massachusetts’ method of determining the question of voluntariness. . [Citations omitted.]” [Emphasis supplied.]

Id. at 214, 138 N.W.2d at 91.

We think that the dissent has misconceived the question. The issue to the jury is not admissibility. That has already been determined by the judge en camera.

We believe that the dissent also misconceives the rule of law in our State respecting confessions. It is not, as the dissent suggests, “At the defendant’s insistance, [that] the State must first overcome the presumption against voluntariness en camera.” Our rule is that a confession is pri-ma facie involuntary and inadmissible and its voluntariness must be shown by the state. There is no requirement that it must be “At the defendant’s insistance.”

Again, we believe that the dissent has misconceived the nature and purpose of defendant’s objection to the confession when the inculpatory statement was offered and defendant’s counsel stated that “No proper predicate” was laid. The purpose of the objection was not, as the dissent suggests, “to preserve for review the trial Court’s ruling on admissibility.” That purpose had already been served by defendant’s objections en camera. Defendant does not have to repeat the objection to preserve for review the question of admissibility. It is obvious that the reason for the objection was, as we suggest, to require the state to do, what is necessary for it to do, to show to the jury evidence for the jury’s consideration of “the voluntariness as affecting the weight or credibility of the confession.” Duncan, supra.

We do not overturn, as the dissent suggests we do, “the traditional distinction between admissibility and credibility,” rather we follow that which we believe to be the prevailing practice which the circuit judges of Alabama have followed for years.

AFFIRMED.

HEFLIN, C. J., and MERRILL, FAULKNER, ALMON, SHORES, and EMBRY, JJ., concur.

MADDOX and JONES, JJ., dissent.

MADDOX, Justice

(dissenting).

It appears to me that the majority has given the defendant the best of two worlds. He was allowed to object when the state attempted to lay a predicate before the jury, which he had a right to do under Jackson v. Denno, saying “Judge, that [admissibility] is not a jury issue,” and now the majority permits him to object on the ground that the state did not show the predicate to the jury. If Lewis had been refused permission to cross-examine the state’s witnesses before the jury on the voluntariness of the statement, as happened in the Mississippi case, Rhone v. State, relied on so strongly by the majority, I would agree with the majority, because a defendant has a right to cross-examine the witnesses relative to the circumstances surrounding the giving of the confession.

The record here, however, shows that defendant’s lawyer had this right of cross-examination, not once, but three times — on a motion to suppress hearing, at the Jackson v. Denno hearing, and again before the jury. In fact, cross-examination of the officers concerning the circumstances surrounding the statement by Lewis makes up a substantial portion of the record on appeal.

The majority “infers” that Rhone [the Mississippi case] stands for the proposition that “the state should show the voluntariness to the jury.” How the majority can make such an inference in view of the plain language of Rhone escapes me. I set out and underline portions of the Rhone opinion which convinces me that the majority makes what, I believe, is an incorrect inference.

“After the court found that the confession was competent evidence it allowed the state, over the objection of the defendant, to introduce a confession into evidence without showing that the confession had been freely and voluntarily given. When the defendant sought by cross examination of the witness relative to the circumstances surrounding the giving of the confession, the court sustained objections by the state and refused to allow the defendant to fully show the circumstances surrounding the giving of the confession. It was the opinion of the trial judge that since the court had held the confession was competent evidence, the only thing that defendant could show was that the confession was not true. In so holding the court was in error. It has long been the law of this state, that before a confession can be received in evidence, it must be shown to be competent in that it was freely and voluntarily given. This is a legal question to be determined by the court on a preliminary investigation out of the presence of the jury. If, after hearing all the testimony pertinent to the inquiry, the court is satisfied beyond a reasonable doubt that the confession was freely and voluntarily given, it becomes competent evidence. However, after a confession has been held by the court to be competent evidence either party has a right to introduce before the jury the same evidence which was submitted on the preliminary inquiry as well as any other evidence relative to the weight and credibility of the confession. The jury does not pass upon the competency of the confession, but the jury does pass upon the weight and credibility of the confession. The jury has the same freedom of action in relation to confessions which they have in regard to other testimony. In the case before us, the court refused to allow the appellant to fully show 'the circumstances surrounding the giving of the confession, although counsel for the appellant made a valiant effort to get this evidence before the jury. This effectively deprived the appellant of a valuable right and was reversible error." [Emphasis added.]

It is clear to me that the Court in Rhone, reversed the case because the defendant was refused permission to cross-examine witnesses and show the circumstances surrounding the giving of the confession. In this, I agree with Rhone’s holding.

Another point in the majority opinion bothers me. The Court of Criminal Appeals’ opinion, and the majority opinion, states that the state must show that the Miranda warnings were given. The opinion of the Court of Criminal Appeals erroneously states that this was not done. The majority holds that the state must show a Miranda warning.

In any event, the state showed a Miranda warning in this case. The record shows :

“BY MR. KULAKOWSKI:
Q Now, Officer Seals, on March 18, 1974, you testified that you had made a search of the apartment at 269 Rickarby Street, here in Mobile County.
I will ask you, after the capsules of white substance were found in the bedroom, and after the defendant Winston Lewis was brought back by Officer Calhoun and Officer Orso after he jumped out the window, I will ask you then if you placed them under arrest ?
A Yes; I did.
Q Okay. Were they then advised of their Constitutional rights?
A Yes.”

Dean Wigmore, in his work Wigmore on Evidence, § 861, Vol. Ill, (1970), discusses the point here involved, as follows:

“Judge and jury; whether the confession is voluntary is a question for the judge, (a) The admissibility of the confession, as affected by the foregoing rules, is a question for the judge, on elementary principles defining the functions of judge and jury. . . . This orthodox principle is recognized in a substantial number of jurisdictions. [Alabama is listed as one of these jurisdictions.]
“But in comparatively recent times the heresy of leaving the question to the jury has made rapid strides.
“To say that it is a question for the jury may mean one of two things. It may mean that the confession goes in any case to the jury to accept or to reject or to give such weight as the jury chooses; this practically abolishes all the foregoing limitations. But it may, and commonly does, mean that the jury may be allowed to measure it by the foregoing legal tests, and to reject it as a judge would if the tests are not fulfilled. This is decidedly improper; first, because it makes abject surrender of the fixed principle that all questions of admissibility are questions of law for the judge only; secondly, because the confession rules do not attempt to measure the ultimate value of a given confession, and the tribunal which is to weigh all evidence finally ought not to be artificially hampered by them; thirdly, because the jury is not familiar enough with them to attempt to employ them. Nevertheless, many courts today hold that, after the judge has applied the rules and admitted the confession, the jury are to apply them again, and by that test may reject it. This unpractical heresy fails to appreciate the elementary canon of admissibility and in that aspect its judicial extension has been a discouraging circumstance.”

The defendant is entitled to have the trial court charge the jury on the law relative to confession; he is allowed to cross-examine witnesses and present evidence touching the issue of voluntariness of a confession, but he is not entitled, in my judgment, to object to the state’s initial offer of a predicate, force an en camera hearing, and then insist that the state must show before the jury that the statement was admissible, because as defendant’s counsel here stated, when the state started to prove the predicate, “Judge, that is not a jury issue.” I agree with him. Admissibility is not a jury issue.

JONES, Justice

(dissenting):

I respectfully dissent. I would state the issue thusly: Must the State in a criminal prosecution, as a predicate to admissibility, prove the voluntariness of a confession and the existence of a Miranda warning in the presence of the jury after it has successfully established voluntariness and Miranda warnings to the trial Judge en camera?

By affirming the Court of Criminal Appeals’ reversal of the conviction in this case, the majority of this Court has overturned the traditional distinction between admissibility and credibility of a confession; and, by destroying this distinction, Alabama now stands alone, as far as I can determine, in fashioning a hybrid rule for admissibility of confessions: At the defendant’s insistence, the State must first overcome the presumption against volun-tariness en camera and then this predicate to admissibility must again be proved before the jury. The majority says that such proof the second time around is in order for the jury to weigh its credibility; but admissibility, not credibility, is the only issue raised by the objection (grounded on lack of proper predicate) at the time the confession is offered into evidence before the jury.

While its utility may be of doubtful value in the context of a dissenting opinion, it is at least interesting to review briefly the legal and factual background against which the dispositive question in this appeal arose. A good beginning is the excellent statement of the rule in the early case of Redd v. State, 69 Ala. 255:

“It is a well established maxim of the law, that the admissibility of evidence is always a question to be determined by the court, and its weight or credibility is for the determination of the jury. It is for the court, therefore, to say whether the confessions of a prisoner are voluntary or involuntary, and this question being judicially settled can not be reviewed by the jury. Hence a charge is erroneous which submits to them the decision of this legal question, and should for that reason, be refused.
“There is no conflict whatever between this principle and the further one, which is equally well settled, that after the confessions, in a given case, have been admitted, the jury may consider the circumstances under which the confessions were obtained, and the appliances by which they were elicited, including the situation and mutual relation of the parties, in exercising their exclusive prerogative of determining the credibility of the evidence, or the weight to which it is properly entitled in controlling the formation of the verdict . . . . ”

Under this so-called orthodox rule, the admissibility-credibility distinction was preserved through instruction to the jury since the voluntariness predicate' — -though invoking a pure legal ruling on admissibility — was taken before the jury in the same manner as all other proof. Subsequent federal case law development (notably Miranda and Jackson) added two constitutional dimensions to Alabama’s “presumption against voluntariness” rule: First, additional rights were included in the warning (e. g., right of counsel); and, second en camera proceedings were required to insure against irradicable prejudice to the defendant in the event the predicate was ruled legally insufficient to admit the confession into evidence.

In the pre-preliminary inquiry era, then the defendant could not avail himself of the involuntariness presumption without necessarily casting on the state the burden of proving to the Court and before the jury, as a predicate to the admission of the confession, the circumstance under which the confession was obtained. The presentation of this predicate before the jury was purely incidental to the pre-Jackson single proceeding which then existed. While the Jury’s limited prerogative to weigh the confession and its attendant circumstances, and not to judge its competence, was carefully circumscribed by thorough instructions, this single proceeding system forced the defendant to risk dual prejudice: First, the jury heard confession evidence prior to a competence ruling by the Court; and, second, and just as potentially prejudicial, the confession may be given undue emphasis and weight by the State’s compliance with the predicate requirement. Jackson’s en camera requisite cured the first problem. Before we proceed with an analysis of the second point, a brief statement of the factual context of the instant review may be helpful.

The record shows that the defendant, at the first hint of the State’s offer of a predicate for the admission of the confession, objected on the ground that this was a matter for the Court, not for the jury. Acting upon this appropriate objection, and the State's concurrence therein, the trial Court then recessed the jury and heard testimony en camera on the voluntariness issue for two hours. After holding the confession competent, the trial Court reconvened the jury and the State offered the defendant’s confession. Defendant again objected to its admission before the jury on the stated ground that the proper predicate had not been laid.

The purpose of the objection at this point was in the exercise of abundance of precaution to preserve for review the trial Court’s ruling on admissibility; that is, the defendant did not want to risk his failure to object as constituting a waiver of his previous objection. The trial Court’s ruling, consistent with his en camera indication, was a statement for the record in the main proceeding upholding the legal competency of the confession.

The majority opinion holds that the trial Court erred in not sustaining this objection. Thus, this enigma: Does the majority mean that the trial Court should have changed its mind and ruled differently than earlier indicated en camera? Or, should the trial Court have shared its admissibility prerogative with the jury? Actually, it is not the intent of the majority to do either; bút I have-posed this alternative inquiry to make a point. The majority opinion states: “Under the rationale of [Duncan & Jackson], how can the jury consider ‘the voluntariness as affecting the weight or credibility of the confession’ unless the state presents evidence as to the ‘Miranda’ and ‘voluntariness’ predicates to the jury?” This presupposes one of two things: Either the defendant will invariably prefer to have the State prove before the jury the circumstances surrounding the confession; or, by objecting, the defendant can preclude such proof. The first conditión is ruled out, and rightly so, by the majority’s observation “that defense counsel may decide for reasons of trial strategy it would not be desirable, from defendant’s standpoint, to rehash this evidence before the jury.”

We now look at the second supposition that the defendant, by timely objection, may preclude the State from bolstering the confession by showing the surrounding circumstances. If it is error for the trial Court to overrule Defendant objection to the introduction of the confession on the ground of lack of the voluntariness predicate, how, then, could it be error to overrule the defendant’s objection to the State’s offer of such proof. If this predicate can be insisted upon by the defendant, then surely the State would have the right to make such proof over the defendant’s objection. A contrary conclusion would produce the oddity of rendering either choice (to prove or not to prove the predicate) subject to the objection by the defendant.

I will now make a final point in the context of a comment on the Mississippi {Rhone) and Iowa (Holland) cases cited by the majority. Neither of these cases addresses itself to the issue before us. Surely, there should be no question in anyone’s mind that the defendant has the unqualified right to attack the credibility of a confession ruled competent by the Court and admitted into evidence before the jury. Neither case held (or addressed by way of dictum) whether the trial Court would have erred in requiring the state to prove the voluntariness predicate before the jury. To be sure, there is dictum to the effect that either party has the right to submit such proof. With this I disagree. To avoid one of the inherent potentials for prejudice, as earlier discussed, I would limit this right to the defendant — permitting the State to preface the offer of a confession or inculpatory statement, first ruled competent by the trial Court, with words to the effect, “Officer, after warning the defendant of his constitutional right, did he make a statement?”

In the trial of the instant case, the defendant, on direct and cross examination of the police officers who heard the defendant’s confession, explored the circumstances under which the confession was made. On cross examination, the defense attorney emphasized the violent nature of police arrest procedures when they “bust some citizen’s door open,” and he portrayed the panic and confusion within the defendant’s apartment after the police had entered. This evidence was admissible because it bore upon the credibility of the confession. Following such an examination, the prosecution could elect to counter this attack on credibility by introducing the evidence of Miranda warnings and volun-tariness to offset the defendant’s presentation. Under the majority opinion of this Court of the Court of Criminal Appeals’ interpretation of the Johnson case, the prosecution would put the trial Court in error by not presenting as strong a case against the defendant as possible. I do not believe this is the law of Johnson. I, therefore, would reverse the judgment of the Court of Criminal Appeals and remand to the Court of Criminal Appeals for af-firmance of the conviction of the trial Court.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Mancil Paul QUINN v. STATE.
    8 Div. 481.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Joe Gilliland, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

ON THE MOTION

It appears in the record here on file that the appellant was indicted for second degree burglary on May 23, 1969, and his trial began on November 26, 1973. He was convicted.

It further appears that on or about October 18, 1973, defendant filed his unverified motion in writing to dismiss the indictment or action for that he was not accorded a speedy trial in obedience to his constitutional rights.

It appears by stipulation of the parties that the motion to dismiss was argued before the court on November 6, 1973, and overruled.

The record does not contain a transcript of the evidence, if any was taken on the motion. It is silent in that regard.

The case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, impresses certain guidelines for judicial use in determining the deprivation vel non of defendant’s right to a speedy trial. The case of Strunk v. United States, 412 U.S. 434, 37 L.Ed.2d 56, 93 S.Ct. 2260, should be noted and considered.

The trial court will try the issue raised by the pleadings without the aid of a jury to determine whether the movant, Quinn, has been denied a speedy trial. The mandates in the cases, supra, will be observed.

Defendant, or his counsel, shall be notified of the date fixed for the hearing and defendant shall be present if he so desires and be allowed to present evidence in support of his motion.

The trial court is further instructed to conduct the hearing as speedily as possible; that a full record be made thereof; the court will state its conclusion from the evidence adduced, and rule on the motion, supra. Prior order overruling the motion is vacated. A transcript of these proceedings, including the evidence lawfully certified, will be forwarded to this court for review.

Further consideration of this appeal shall be held in abeyance pending the trial court’s compliance with this order.

The cause is hereby remanded with directions. Prince v. State, 50 Ala.App. 368, 279 So.2d 539, cert. denied 291 Ala. 796, 279 So.2d 549, habeas corpus granted; Prince v. Alabama, 507 F.2d 693; Ex parte Collins, 53 Ala.App. 577, 302 So.2d 551, cert. denied 293 Ala. 750, 302 So.2d 555; Adams v. State, 57 Ala.App. 137, 326 So.2d 665, 1975; Mayberry v. State, 48 Ala.App. 276, 264 So.2d 198.

The foregoing order in lieu of opinion was prepared by the Honorable BOWEN W. SIMMON'S, Supernumerary Circuit Judge, serving as a judge of this Court under Section 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his order is hereby adopted as that of the Court.

Remanded with directions.

All the Judges concur.


text:
    Mancil Paul QUINN v. STATE.
    8 Div. 481.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.

      Joe Gilliland, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and Rosa Hamlett, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

This court on November 4, 1975, remanded this cause to the circuit court from which this appeal originated. In the remand we directed the trial court, without the aid of a jury, to determine whether appellant had been denied a speedy hearing, as he contended in his motion filed at nisi prius, and to report to this court.

We further directed that defendant, or his counsel, to be notified of the date to be fixed for the hearing, to the end that defendant shall be present if he so desires and be allowed to present evidence in support of his motion.

It appears from the original record, filed here on July 18, 1975, that defendant was convicted of burglary in the second degree pursuant to an indictment therefor. The court sentenced him to three and one-half years imprisonment in the penitentiary and judgment entered accordingly. Thereupon, defendant made known to the court that he desired to appeal from this judgment and moved the court that execution of the judgment be suspended pending the appeal. Sentence was suspended and appeal bond was set at $9,000. For aught appearing the bond was never made.

In the report which we mandated the trial court to make to this court, it appears that the trial judge ascertained that the defendant was not present. Thereupon, the court made inquiry of Mr. Gilliland, defendant’s attorney.

We quote from the court’s report as follows :

“MR. GILLILAND: The defendant’s attorney does not know where Mr. Quinn is. I have no correspondence. I have not seen him, since the date of his sentence in this Court on November 26, 1973. I understand from talking to Assistant Attorney General Rosa Hammock [sic], who handled the Appeal for the State of Alabama, that upon Mr. Quinn’s finishing his sentence at the Atlanta Penitentiary in Atlanta, Georgia, that he was released by the Board of Corrections on August 7, 1974, at which time the Board of Corrections states that they had no knowledge of the conviction from which this Appeal was taken. A Writ of Arrest was duty [sic] issued at that time and Mr. Quinn, to this day, remains at large as Defendant’s attorney knows.
“MR. JOLLY: At this time, the State of Alabama would like to offer an Affidavit signed by the District Attorney and the District Attorney would further like to state to the Court that he has no knowledge and has no information concerning the presence [sic] whereabouts of the defendant, but the defendant has remained at large since his release by the Board of Corrections on August 7, 1974.
“MR. GILLILAND: On November 4, 1975, the Alabama Court of Criminal Appeal [sic] issued a Remand in this particular case, in order that we can add to the record in this Appeal and on to-wit the 15th of November, the Circuit Court of Franklin County issued an Order setting Friday, November 21, as the date for the hearing to add to the record in this case. The defendant has not been found as the defendant’s attorney has previously stated. At this time, the defendant’s attorney would like to make a motion for a continuance in this cause.”
The continuance was denied.

Now comes the State of Alabama, by and through the Attorney General, and moves the court as follows:

“For that it appears from the record filed in this Court on December 17, 1975, that the trial court, the district attorney and defense counsel have made a diligent effort to ascertain the whereabouts of appellant and that the whereabouts of appellant is unknown to the ap-pellee or its agents or employees at this time; and
“For that appellant has therefore abandoned his appeal by not making himself available to the jurisdiction of this Court.
“WHEREFORE, PREMISES CONSIDERED, Appellee respectfully prays this Court to enter an order dismissing the above styled appeal.”

We think the foregoing motion has merit and should be granted. The absence of appellant-defendant and his inability to be located or found is equivalent to an escape for that he is not within the actual or constructive jurisdiction of the court.

Justice Somerville speaking for the Supreme Court of Alabama, in Warwick v. State, 73 Ala. 486, observed:

“. . . There is no rule of law which requires of courts that they should go through the empty and useless form of doing a nugatory thing. It would be a legal mockery to sentence one to be hanged who had fled the State and was beyond the seas. This is not upon the theory that the personal appearance of the accused in the appellate court is necessary to confer jurisdiction — rule of the common law which does not prevail either in this, or, perhaps, in any of the other American States. — Arch.Cr.Pl. & Pr. (Pomeroy), p. 622, note. It rather grows out of the fact that the necessary basis of all criminal proceedings is the condition precedent, that the accused must be in the custody and under the control of the court, either actual or constructive, before such tribunals of justice will undertake to sit in judgment upon questions involving his life or liberty. It is repugnant to every just conception of judicial proceedings, in the decent and orderly administration of justice, that the accused should occupy an attitude enabling him to accept or reject the judgment of a court, according as it may coincide or conflict with the selfish promptings of his own option. Such a practice would be fraught with much of the evil resulting from the iniquitous conception of permitting a criminal to sit as judge in his own case.”

The Supreme Court of the United States in Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377, rendered on March 17, 1975, held that a Texas statute authorizing dismissal of an appeal taken by an escaped prisoner did not violate the equal protection clauses of Amendment XIV, § 1 of the Constitution of the United States.

It is therefore ordered that the instant appeal be dismissed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Appeal dismissed.

All the Judges concur.


text:
    Fred G. ROGERS v. STATE.
    3 Div. 398.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.
    Gray, Seay & Langford and Donald V. Watkins, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appeal from a judgment of guilt pursuant to an indictment charging defendant with carnally knowing a girl over the age of twelve years and under the age of sixteen years. The jury fixed punishment at ten years imprisonment in the penitentiary.

A judgment pursuant to leave of the court amended the original judgment nunc pro tunc to show that the jury fixed the punishment instead of the trial court as was erroneously stated in said original judgment.

We do not think it necessary to delineate all the evidence supporting the jury’s verdict. Suffice it to state that defendant-appellant at the time of the several sexual embraces, beginning about Thanksgiving in November 1973 and ending on May 3, 1974, was a junior high school teacher in Prattville, Alabama, and the victim was a mathematics pupil of his.

Some of the alleged sexual embraces took place in a mobile housing unit used for an office behind the school building wherein they willingly met by artful means. Another encounter occurred at the home of the victim while her parents were away, and the last, on May 3, 1974, in the woods near her home on the ground minus a blanket.

It was on this occasion that the suspicion of her parents were aroused when they saw her coming out of the woods. An automobile registered in the name of the defendant was near a road on which her stepfather chased the automobile and obtained the tag number. The fourteen-year-old girl testified against the defendant and accused him of the embraces.

The defendant denied the charges, admitted he was her mathematics teacher, and had given her special tutoring in mathematics because she asked for help. Her grades began to pick up when the tutoring began.

I

Appellant here contends that the court erred in overruling his motion to exclude the evidence. We cannot agree. There was ample evidence offered by the State to make out a prima facie case as charged in the indictment. Defendant’s denial of the embraces and his alibi evidence created an issue of fact for the jury.

II

Appellant next contends that the trial court erred in overruling his amended motion for a new trial. We are not in accord. We have read the entire record and conclude therefrom that the case was well tried and that the trial court was very careful .to protect defendant’s rights and his rulings were free of error. The jury believed the State’s evidence beyond a reasonable doubt and did not go along with defendant in his assertions of innocence. There was ample evidence to corroborate that of the victim.

Under our statute, sexual intercourse is sufficient to convict notwithstanding the fact the girl may have consented. Bedsole v. State, 28 Ala.App. 27, 177 So. 308; Title 14, § 399, 1958 Recompiled Code.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    In re Fred G. ROGERS v. STATE. Ex parte Fred G. Rogers.
    SC 1762.
    Supreme Court of Alabama.
    April 9, 1976.
    Solomon S. Seay, Jr., Montgomery, for petitioner.
    No appearance for the State.
   BLOODWORTH, Justice.

Petition of Fred G. Rogers for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Rogers v. State, 57 Ala. App.-, 329 So.2d 611.

WRIT DENIED.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: CATES, Presiding Judge.

text:
    Ricky ARLEDGE v. STATE.
    7 Div. 415.
    Court of Criminal Appeals of Alabama.
    Feb. 17, 1976.
    Rehearing Denied March 16, 1976.
    Wilson, Propst & Isom and Gordon F. Bailey, Jr., Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Appeal from a denial of relief by writ of error coram nobis.

I

Arledge was originally convicted of manslaughter in the first degree. After pleading guilty with a full Boykin colloquy he was, on October 18, 1974, sentenced to ten years imprisonment. On January 8, 1975 his application for probation was denied. No appeal was taken from the judgment of conviction.

On July 8, 1975, through a new counsel, Arledge filed a petition for a writ of error coram nobis. Among the allegations were:

“11. That at the time the Petitioner entered into an agreement to withdraw his plea of not guilty to the charge of first degree murder and enter into a plea of guilty to the charge of manslaughter in the first degree, the Petitioner was under the belief and impression that his timely application for probation would be approved by the Honorable A. B. Cunningham should he plead guilty and testify for the State of Alabama in the trial of the State of Alabama versus Gene Arledge, that the Petitioner did in fact testify at both criminal proceedings wherein Gene Arledge was the Defendant and that the heretofore stated representations made to Petitioner, i. e., that his application for probation would be approved should he testify as stated, were made by the Honorable A. B. Cunningham.
“12. That the Petitioner, because of the above matters related is thereby entitled to a Writ of Error Coram Nobis holding that the plea of guilty and denial of probation by the Honorable A. B. Cunningham in the Circuit Court of Eto-wah County, is for nought and that such conviction and sentence ought to be set aside for the matters above alleged.”

The State did not plead or demur; rather, the trial judge ordered a hearing on the petition. The petitioner also moved in writing that the judge recuse himself. The grounds therefor failed to allege any matter that would have made disqualification mandatory. Compare Ex parte White, 53 Ala.App. 377, 300 So.2d 420.

II

As to the motion for recusal, we hold that this was a matter which addressed itself to the judge’s subjective reaction to Arledge. The grounds of the motion merely recited, in effect, that Judge Cunningham should disqualify himself because: (1) Arledge believed that Judge Cunningham would have difficulty in believing the petitioner’s witnesses; (2) that it was entirely probable that the judge would be called as a witness; and (3) recusal would be in the best interests of the court.

Such reasons afford no objective circumstances to require recusal. Hence, the motion was addressed to the conscience of Judge Cunningham without any outward manifestation of bias or partiality per se.

“(b) The most desirable venue for a post-conviction proceeding is in the court in which the applicant’s challenged conviction and sentence were rendered. * * * To guard against prejudice because of the site of the forum, procedure for change of venue should be provided and liberally administered.
“(c) Where jurisdiction is vested in the trial courts and venue is determined as in (b) above, neither a general rule favoring nor one disfavoring submission of post-conviction applications to the same trial judge who originally presided is clearly preferable. If the practice of ordinary assignment to the same judge is adopted, it should be tempered to permit the judge freely to recuse himself in a particular case, whether or not formally disqualified by bias or by being potentially a witness who may testify, whenever he finds it better to have a different judge preside in the case.” ABA Standards Relating to Post-Conviction Remedies, § 1.4.

George Rose Smith, J., has, after citing the foregoing standard, written:

“We have recognized the need for a different presiding judge when the one who originally heard the case is biased or, for a want of a record of the first heading, must appear as a witness. Elser v. State, 243 Ark. 34, 418 S.W.2d 389 (1967); Orman v. Bishop, 243 Ark. 609, 420 S.W.2d 908 (1967). In the case at hand, however, the petitioner asserts no factual basis for his insistence that the assignment of a new judge is constitutionally mandatory. We find nothing in the record to suggest that Judge Enfield was disqualified from acting upon the postconviction petition. * * * ” Meyers v. State, 252 Ark. 367, 479 S.W.2d 238. See also Commonwealth v. Leate, -Mass.-, 327 N.E.2d 866.

jjj

As to the remedy sought here, we consider that coram nobis is not available.

Alabama is liberal in allowing appeals from convictions on guilty pleas— except only where an accused pleads guilty to a non-capital felong before indictment. Code 1940, T. 15, § 266. See State v. Baker, 268 Ala. 410, 108 So.2d 361. Const. 1901, Amendment 37.

Nothing appears in this record to even hint that the State in anywise frustrated Arledge in taking a direct appeal from the judgment of conviction.

Coram nobis is not an omnium gatherum or catchall of accordion like remedies to solve (or salve) all the supposed wrongs of those once duly convicted. Rather it is, in Alabama, a writ to prevent fraud in the procurement of criminal judgments in our courts. Adair v. State, 52 Ala.App. 522, 294 So.2d 771.

Harris, J., has written for us:

“ * * * The privilege against compulsory self-incrimination is the first right outlined in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.Zd 274, and would have been fatal to the judgment of conviction on a direct appeal. There was no appeal from the original judgment of conviction.
“The writ of error coram nobis is not intended to provide a review by appeal where the complaining party has not sought to appeal and the time for appeal has long since expired. Thomas v. State, 280 Ala. 109, 190 So.2d 542.” Mayton v. State, 52 Ala.App. 626, p. 627, 296 So.2d 249, p. 250.

Facts known to an accused debar him from seeking coram nobis. Eagen v. State, 280 Ala. 438, 194 So.2d 842. The purported impression on Arledge that he was to receive probation is not adequate. See Lapesarde v. State, 54 Ala.App. 654, 312 So.2d 60, wherein we wrote:

“As grounds his lawyer advanced the notion that he, albeit mistakenly, had thought that the District Attorney would have recommended (or at least not contested) probation. No doubt this was a bona fide belief, though not reciprocal.
“Probation is the ultimate and sole responsibility of the trial judge. Each judge has his own idiosyncracies and modus operandi. While we are sure that suggestions properly put on appropriate occasions are welcome, nevertheless when the Areopagitic rhetoric dies and the die of Fate must be cast the lonely seat of decision belongs to no one but the judge. This, in probation, is under the constitutional amendment and its corollary statute. Const.1901, Amendment No. 38; Code 1940, T. 42, §§ 19-26, incl.
“Furthermore, agreements between counsel must be in writing.
“ ‘No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby.’ Sup.Ct. Rule 20 & Rule 14 Cir.Ct. Rules.”

The judgment below is

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


author: FAULKNER, Justice.

text:
    In re Ricky ARLEDGE v. STATE. Ex parte Ricky Arledge.
    SC 1775.
    Supreme Court of Alabama.
    March 9, 1976.
    Gordon F. Bailey, Jr., Anniston, for petitioner.
    No appearance for the State.
   FAULKNER, Justice.

Petition of Ricky Arledge for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Arledge v. State, 57 Ala.App. -, 329 So.2d 613.

WRIT DENIED.

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


text:
    Kenneth Aaron FLEMING v. STATE.
    4 Div. 407.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Myron H. Thompson, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant, an indigent minor here and below, was indicted for second degree burglary of Lindsey’s Pawn and Loan Company, convicted by a jury on a plea of not guilty, and sentenced by the court to five years imprisonment.

The evidence, without contradiction, shows that the second degree burglary as charged in the indictment was committed and several guns and other property were taken by the burglar. Details of the offense are unnecessary.

I

Defendant asserts that although he was given warning rights as required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 604, the inculpatory statements elicited from him were not voluntary.

The record shows that the police officer who interrogated defendant not only informed defendant in detail of his Miranda rights, but the officer also testified that there was no force, coercion, threats, etc., used or employed by him or anyone in his presence to get the defendant to make a statement, and according to the police officer, the inculpatory statements were voluntary.

But according to the defendant, there was force and threats used, and his statements were not voluntary. The issue of voluntariness arose out of this conflict of testimony. We are unwilling to disturb the court’s finding.

II

Appellant contends that he did not voluntarily sign a waiver of his rights. The trial court heard the evidence with respect to this waiver. We see or know of no reason for this Court to disturb the judgment of the court,

ttt

It appears from the evidence that the officers caused the confession of defendant to be taped. The recording tape was subsequently erased for use again. The recording was typed by a competent secretary.

The Supreme Court of Alabama held in Elkins v. State, 250 Ala. 672, 35 So.2d 693, that both written statement and the oral testimony of a witness who heard the statement are classed as primary evidence; that the rules governing the establishment of a contract had no application in Elkins wherein the appellant (Elkins) made an in-culpatory statement with respect to his guilt of murder.

It is unfortunate that the recording on the tape was erased and not available for the defendant’s consideration or use. The defendant testified as to what occurred. His version was not accepted as true. We do not think the unavailability of the recording due to the improvident erasure would preclude the admission of the oral testimony of the witness as to the defendant’s inculpatory statement. It is speculative as to what the recording would show.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.