author: JONES, Justice. MADDOX, Justice

text:
    In re Eugene WILLIAMS, alias, Eugene Simpson, alias, Eugene Ware, alias, Eugene Ware Simpson v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2165.
    Supreme Court of Alabama.
    Feb. 25, 1977.
    William J. Baxley, Atty. Gen., and Jack Curtis, Asst. Atty. Gen., for the State.
    Sam A. Beatty, Northport, for respondent.
   JONES, Justice.

The defendant was convicted of murder, first degree, and sentenced to life imprisonment. The Court of Criminal Appeals reversed the judgment of conviction and remanded the cause for a new trial.

Upon preliminary consideration, this Court granted the State’s petition for review by certiorari on a limited “conflict” ground, raising a procedural issue: Whether a claim of violation of constitutional rights in the selection of the petit jury venire can be raised for the first time on appeal?

Because of a common understanding of the procedure for the timely attack on the composition of a jury (grand or petit), which arose out of and following Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964), we affirm the Court of Criminal Appeals’ reversal of the defendant’s conviction in this cause.

Having so ruled, however, we now proceed to establish and announce a rule of procedure for prospective application with respect to the preserving for appellate review adverse rulings on jury composition attacks.

We state the rule thusly: A motion challenging the composition of a grand jury, a petit jury, .or qualifications of individual jurors, filed after the commencement of trial, must allege, and proof must show, that grounds for the motion were not known to the defendant before he went to trial, or that he could not have known them by exercising due diligence.

The rule which we announce today for application to future cases is not a new rule in Alabama. Indeed, in our statement of the rule, we have drawn heavily on the language and substance of Alabama case law dating back to the 1841 case of State v. Morea, 2 Ala. 275, which held that objections to the qualification of a juror, which are known at the time, are waived unless made before the juror is sworn in chief.

The rule was firmly crystallized by the time of Higdon v. State, 20 Ala.App. 649, 104 So. 913 (1925), which states:

“If the defendant or his attorney knew about the matter of drawing the jury, or, by the exercise of due diligence, could have ascertained the facts, he cannot for the first time raise the question [of improperly drawn venire] by motion for a new trial.”

The only measure of uncertainty in the application of this rule came in a line of cases relating to the timely filing of a motion to quash a grand jury indictment. See, e. g., Johnson v. State, 134 Ala. 54, 32 So. 724 (1901); and Bell v. State, 227 Ala. 254, 149 So. 687 (1933). These cases, among others, held that such motion, to be available, must be made before arraignment and plea to the merits. But this was clarified— and the inconsistency between the time for challenge of the composition of a grand jury and that of a petit jury (see Vernon v. State, 239 Ala. 593, 196 So. 96 (1940)) was eliminated — in Thomas v. State, 277 Ala. 570, 173 So.2d 111 (1965). Thomas held that a motion to quash either the grand or petit jury, while untimely if raised for the first time on motion for new trial, could be timely filed any time before trial. Vernon, supra, which had preserved the distinction between the timely attack on a grand jury and a petit jury, was cited, and quoted from with approval, in Ball v. State, 252 Ala. 686, 42 So.2d 626 (1949).

Between the time of Ball (1949) and Thomas (1965), came Coleman v. Alabama, supra. The common understanding (or, more properly, misunderstanding) from the United States Supreme Court’s decision in Coleman (that matters relating to the jury composition, although known at the time of trial, may be raised for the first time by motion for a new trial) needs to be reexamined in the context and posture of the record in Coleman. Coleman was convicted of first degree murder and sentenced to death. The challenge against the grand and petit juries on the “systematic exclusion” ground was raised for the first time on motion for new trial. Mr. Justice Clark, writing for the United States Supreme Court, after first observing that the trial court took testimony on the motion rather than striking the motion as untimely filed, stated:

“Here petitioner’s counsel failed to raise the issue before trial; but the Alabama Supreme Court, apparently acting under the enlightened procedure of its automatic appeals statute [T. 15, § 382(10)], did not base its affirmance on this ground but considered the claim on the merits. . Exercising its discretion to permit petitioner to attack the exclusion by motion for a new trial, the Supreme Court of Alabama decided petitioner’s constitutional claim on the merits.”

It is clear that the United States Supreme Court in Coleman did not purport to preempt State procedure. Instead, the United States Supreme Court reversed the judgment of the Alabama Supreme Court on the same substantive grounds on which the Alabama Supreme Court, on its consideration of the merits, had affirmed the conviction. Moreover, we interpret Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), decided in the context of a collateral habeas corpus attack, as holding that State procedures will be given validity in the Federal courts so long as that procedure is clearly established and followed. See Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973).

Consequently, we hold that henceforth a failure by the defendant in a criminal case to raise proper objection to the composition of a grand or petit jury, including, but not limited to, the constitutional ground of the jury selection process, before entering upon the trial of the case on its merits, constitutes a waiver of his right to do so, subject, of course, to the recognized exceptions of fraud and as to matters which were not known, or by the exercise of due diligence, could not have been known, before trial.

The rationale espoused for the parallel rule in civil cases pertains with equal force in criminal cases: A defendant who has not been misled is not permitted to participate in the selection of the jury without objections, speculate on winning a favorable verdict, and, failing to do so, raise for the first time such questions on a motion for new trial. Fulwider v. Jacob, 221 Ala. 124, 127 So. 818 (1930).

This rule shall be prospective only and shall be applicable to all cases in which the trial commences after the date the certificate of judgment is issued by the Clerk of this Court in this case. Due to the prospective effect of the waiver rule set out and discussed above, the judgment of reversal of the defendant’s conviction and remand of this cause for a new trial is affirmed.

THE COURT OF CRIMINAL APPEALS IS AFFIRMED.

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

MADDOX and ALMON, JJ., dissent.

BEATTY, J., recuses himself.

MADDOX, Justice

(dissenting).

I agree with the rule announced in the majority opinion regarding the grounds of, and the time when, an objection to the composition of grand and petit juries should be raised, but I would apply the rule to Williams, and would not make it prospective.

ALMON, J., concurs.

      . It is interesting to note that Morea cites States v. Williams, 3 Stew. 454 (1831), which in turn cites Lord Coke's first Institute, book 3, chap. 9 (1628). For the general proposition in civil cases that the law disfavors motions for new trial based on objections which could have been made at the time of trial, see Fulwider v. Jacob, 221 Ala. 124, 127 So. 818 (1930); Simpson v. Golden, 114 Ala. 336, 21 So. 990 (1897).


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Sammy BECKLEY, alias v. STATE.
    6 Div. 931.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.

      Sam A. Beatty and Donald M. Phillips, Northport, for appellant.
    William J. Baxley, Atty. Gen. and Jack Curtis, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Burglary; sentence: thirty years. Rape; sentence: fifteen years and one day.

This Court, on this date, rendered an opinion authored by Cates, P. J., which governs the instant appeal: Williams v. State, (1976), Ala.Cr.App., 342 So.2d 1325.

The testimony in both cases concerning the selection of jurors is identical. In both instances, there is a random selection from the voters’ list in Tuscaloosa County, excluding persons over the age of sixty-five years. As Judge Cates pointed out in that opinion:

“Alabama law, Code 1940, T. 30, § 21, as amended, does not exclude persons over 65 from being put on the jury roll. Rather it leaves serving after summons to the individual.
“The defendant was entitled to a cross section of the community without purposeful exclusion, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690. Since trial was after January 21, 1975, Taylor controls. See Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790.”

As to the illegality of selecting jurors only from lists of registered voters see Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970).

REVERSED AND REMANDED.

All the Judges concur except DeCARLO, J., dissents.

Certiorari denied, Ala., 342 So.2d 1331.


author: FAULKNER, Justice.

text:
    In re Sammy BECKLEY, alias v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2130.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State, petitioner.
    None for respondent.
   FAULKNER, Justice.

Petition of the State by its Attorney Gen. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Beekley, alias v. State, 342 So.2d 1330.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Reginald Reese ROBINSON, alias v. STATE.
    3 Div. 662.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

      George W. Cameron, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The indictment returned by the grand jury of Montgomery County charged Reginald Reese Robinson, alias Maliki Shabazz, with the first degree murder of Manfred E. Furr, by “shooting him with a sawed off shotgun”. The jury found the appellant guilty as charged and fixed punishment at life imprisonment. The trial court then entered judgment in accordance with this verdict. The appellant has been previously tried and convicted of the crime in question. This court, on appeal of that case, reversed and remanded. Robinson v. State, Ala.Cr.App., 335 So.2d 420, cert. denied, Ala., 335 So.2d 426 (1976).

On this appeal the appellant has raised two issues for review: (1) The admission into evidence of a photograph exhibiting the wound of the deceased and (2) the admission of the recorded testimony of a deceased witness taken at a former hearing.

The question of the sufficiency of the evidence is not presented to us for review. There was no motion to exclude the State’s evidence, no request for the affirmative charge, no exceptions reserved to the oral charge, and there was no motion for a new trial. Jones v. State, 55 Ala.App. 466, 316 So.2d 713 (1975); Hunter v. State, 57 Ala.App. 651, 331 So.2d 406 (1976). The defendant did not testify nor did he offer any evidence in his behalf. Frazier v. State, 56 Ala.App. 166, 320 So.2d 99 (1975); Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1974).

The facts of this case are eloquently and accurately set forth in detail by Judge Bowen W. Simmons in Robinson v. State, Ala.Cr.App., 335 So.2d 420, cert. denied, Ala., 335 So.2d 426 (1976). Therefore, a brief rendition of the facts is all that is necessary here.

On the morning of October 12, 1974, the appellant, Arthur (X.) Lewis, and several other involved black people entered downtown Montgomery, Alabama, on a mission of wholesale violence which began when Lewis, for no apparent reason, slashed with a machete the face of an elderly white man. The deceased, Manfred E. Furr, was a security officer for a local department store. He was summoned and went across the street where he was shot and killed by Lewis. The appellant was present and armed with a sawed-off shotgun.

The police arrived immediately and a gun battle ensued. The appellant participated in the shootout, firing at the police with his shotgun. The appellant, Lewis, and another fled to a radio station which they commandeered. Lewis and the appellant broadcast over the radio and appealed to the black community to come to their aid, to fight for the black race and to “take the capitol”.

I

On appeal the appellant’s counsel contends that the admission into evidence of a picture of the deceased was error where the toxicologist testified that the photograph was not used by him to determine the cause of death or to identify the victim. The photograph depicts the left armpit area, the wound area, of the deceased. It was properly identified and authenticated by the toxicologist. Counsel argues that the photograph should not have been admitted as it shed no light upon the case. We disagree.

The toxicologist testified that he took the photograph and that it is illustrative of his observation at the time of the post-mortem examination (the same day as the murder). The photograph was taken as a routine portion of the toxicologist’s examination and as documentation of the injuries observed on the body. The photograph was not used to identify the victim nor to determine the cause of death.

The general rule in this area is that photographs, to be admissible, must have some tendency to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. They must have a tendency to shed light on some material inquiry. Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (1972). Photographs of the deceased are admissible in murder prosecutions when they shed light upon the character and location of the wounds on the victim’s body. Snow v. State, 50 Ala.App. 381, 279 So.2d 552, cert. denied, 291 Ala. 798, 279 So.2d 558 (1973); Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965); Hurst v. State, 54 Ala.App. 254, 307 So.2d 62, cert. denied, 293 Ala. 548, 307 So.2d 73 (1974). Photographs are relevant and admissible where they are identified and authenticated by a witness and are used to show wounds inflicted on the body and are illustrative of the witness’ verbal testimony. Layne v. State, 54 Ala.App. 529, 310 So.2d 249 (1975); Johnson v. State, 55 Ala.App. 581, 317 So.2d 548 (1975); Shields v. State, 52 Ala.App. 690, 296 So.2d 786, cert. denied, 292 Ala. 749, 296 So.2d 793 (1974); when they corroborate the testimony of the toxicologist as to the size and location of the wound inflicted, Means v. State, 51 Ala.App. 8, 282 So.2d 356, cert. denied, 291 Ala. 792, 282 So.2d 359 (1973); Aycock v. State, 50 Ala.App. 130, 277 So.2d 404, cert. denied, 291 Ala. 49, 277 So.2d 412 (1973); Alabama Digest, Vol. 6, Criminal Law, &wkey;438(5) and (6).

As the photograph in question showed the portion of the victim’s body where the wound had been inflicted, it was relevant as shedding light on the character and location of the wound and corroborating the testimony of the toxicologist, even though it was merely cumulative evidence and there was no dispute as to the location of the wound. The admission of cumulative evidence, even upon a fact not disputed, is not prejudicial error. Wilson v. State, 31 Ala.App. 21, 11 So.2d 563, cert. denied, 243 Ala. 671, 11 So.2d 568 (1943); Snow, supra; Reedy v. State, 246 Ala. 363, 20 So.2d 528 (1945); Farris v. State, 57 Ala.App. 390, 328 So.2d 640 (1976).

II

The second assertion of error raised by the appellant concerns the admission of the former testimony of a deceased witness for the State which was read into the record. The appellant contends that the prosecution failed to establish a proper predicate for its admission because it was not shown that the testimony was given under oath in the former hearing. The record itself does not disclose that the testimony in question was taken from the first trial of the appellant.

It was stipulated that the testimony was given at a previous hearing where the appellant, his counsel, and the State were present and the appellant’s counsel was afforded the opportunity and actually did cross-examine the now deceased witness. The appellant failed to object to the introduction of this evidence and, in fact, the testimony was read to the jury only after the trial judge had ascertained that the appellant’s trial counsel (who represents the appellant on this appeal) had no questions about the testimony. The appellant was permitted to read to the jury those parts of the testimony he desired in evidence. Under these circumstances, we find that there was no reversible error in the admission of this testimony. The law is clear in this State that this court has no authority to review without an adverse ruling in the trial court. Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976). When testimony is admitted in the trial court without any objections made to its admissibility, there is nothing reserved for consideration by this court on appeal, and the appellant can take no advantage of it here. Patterson v. State, 51 Ala.App. 659, 288 So.2d 446 (1974); Cox v. State, 19 Ala.App. 205, 96 So. 83 (1923).

We have searched the entire record for error as required by law and have found none. Therefore, this case is due to be and is hereby

AFFIRMED.

All the Judges concur.

      . See Lewis v. State, Ala.Cr.App., 339 So.2d 1035, cert. denied, Ala., 339 So.2d 1038 (1976) for a prime discussion and example of the liberal policy in this state in the admission of photographs.


author: HARRIS, Judge.

text:
    Varnall WEEKS v. STATE.
    5 Div. 366.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

      Harry D. Raymon, Tuskegee, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of grand larceny and the Court sentenced him to seven years imprisonment in the penitentiary. Prior to arraignment it was ascertained that appellant was without counsel to represent him and desired the services of an attorney. Thereupon the Court appointed an experienced trial lawyer to represent him at arraignment and trial. He went to trial under a plea of not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The evidence adduced by the State tended to show that on the afternoon of May 17, 1974, around 3 o’clock appellant went into a jewelry store in Tuskegee, Alabama, to look at a man’s diamond ring. Appellant had been in this store several days prior to May 17,1974, and told the owner that he wanted a diamond cluster ring with a horseshoe design. The owner of the jewelry store, Mr. William T. Coggans, informed appellant that he did not have such a ring in stock. Appellant came back to the store on May 17, and again inquired about a diamond cluster ring with a horseshoe design and Mr. Coggans told appellant that he had not been able to obtain such a ring. Appellant then said he wanted to look at some other rings and Mr. Coggans went behind the counter and unlocked the case in which diamond rings were kept. Appellant reached over and picked up a diamond ring with clusters and put it on his finger and walked out the front door. As appellant was walking toward the door Mr. Coggans thought he said he wanted to look at the ring in a different light but when he reached the door he kept going.

Mr. Coggans testified that the ring was worth $395.00 and when he realized that appellant was leaving the store he went to the door to stop him but appellant was going across the square. Another man by the name of Harold Collins entered the store with appellant and left behind appellant. Mr. Coggans immediately called the Tuskegee Police Department and reported the theft of the ring. Mr. Coggans had known appellant for several years and no question was raised as to his identity.

Lieutenant Roy Cole of the Tuskegee Police Department responded to Mr. Coggans’ call and about fifteen minutes later he saw appellant and Harold Collins walking on Highway 81, north of Auburn Street, and he stopped them. He observed what appeared to be weapons in the pockets of both men. He ordered the men to put their hands on top of the car and at this time he saw a diamond ring on appellant’s finger. He called for a back-up unit and Lieutenant Flowers arrived on the scene. Officer Cole searched appellant and removed a .38 caliber pistol from his pocket. Officer Flowers searched Collins and removed a .25 caliber pistol from his pocket.

Officer Cole handcuffed appellant and put him in the rear of the patrol car and transported him to the station house. While en route to the jail Officer Cole got a radio message to pick up another officer. Collins was put in Officer Flowers’ car and transported to the City jail.

When Officer Cole was putting the handcuffs on appellant, he saw the diamond ring on his finger. On the way to the jail appellant asked for a cigarette and Officer Cole put one in his mouth and lit it for him. When they got to the jail Officer Cole did not see the diamond ring and he asked appellant about the ring and appellant said he did not have the ring and denied that he ever had the ring. The officers searched the clothing of appellant and did not find the ring. They removed all of his clothing and they could not find the ring. Officer Cole testified that only four minutes elapsed from the time he put appellant in the patrol car and the time they arrived at the jail. The officers thoroughly searched the patrol car in which appellant was transported to jail and the ring was not in the car.

The officers logically concluded that appellant must have swallowed the ring. The officers carried appellant to a local hospital and had an x-ray made of his stomach. An x-ray technician took the x-ray in the presence of Officer Cole and after the film was developed the officer testified that he could clearly see a ring in appellant’s stomach.

The x-ray technician, Marie Reafroe, testified that on the 17th day of May, 1974, Officer Cole brought appellant to the hospital for a stomach x-ray and that she made the x-ray. In court she identified appellant as the man she x-rayed and identified the x-ray film that she took and developed. The x-ray film is before us and it is crystal clear there is a ring in the stomach and it clearly appears on the x-ray film. Over appellant's objection this x-ray film was introduced into evidence.

Mr. Coggans was shown the x-ray film revealing the outline of a ring. He was asked if he could identify that ring as being the one that appellant took from his store and he replied, “Not by looking at the picture, I can’t.”

Appellant did not testify in his behalf but offered the testimony of several police officers in support of his plea of not guilty by reason of insanity. The strongest testimony that was developed from these officers, during the time they observed him in jail, was that “he was not normal”; “that he was not in his right mind,” and “looked like he was insane, I don’t think he acted right.” They all testified that he would bang on the jail bars and would take off all his clothes.

The record indicates that after appellant’s arrest he was carried to Bryce Hospital for a period of time pursuant to a Court order issued pursuant to a petition filed by his attorney. This petition, Court order, and the findings of the doctors at Bryce Hospital are not in this record.

The defense of insanity must be clearly proved to the reasonable satisfaction of the jury and the burden of proof in this regards rests on the defendant. Insanity is treated as an affirmative defense. Title 15, Section 422, Code of Alabama 1940, and cases there cited.

The scanty proof presented by the defense on the issue of insanity certainly did not meet the test laid down in the case of Parsons v. State, 81 Ala. 577, 2 So. 854. Nevertheless, the trial court gave appellant the benefit of the doubt by charging the jury fully on the law of insanity and at the conclusion of the oral charge appellant’s counsel announced, “Satisfied.”

The sufficiency of the evidence is not presented to us for review. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; there were no exceptions reserved to the oral charge of the Court, and there was no motion for a new trial. Jones v. State, 55 Ala.App. 466, 316 So.2d 713; Frazier v. State, 56 Ala.App. 166, 320 So.2d 99; Bass v. State, 55 Ala.App. 88, 313 So.2d 208.

We turn now to determine whether the x-ray film was legally admitted into evidence or whether its admission violated any of appellant’s constitutional rights not to be compelled to give evidence against himself. Under the following Federal cases we hold that appellant’s constitutional rights were not violated: United States v. Allen, D.C., 337 F.Supp. 1041; Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900.

In Schmerber, supra, the Court said:
“On the other hand, both federal and state courts have usually held that it (the 5th Amendment) offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony’, but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.”

In Schmerber a blood sample was drawn from a defendant, over his objections, who was accused of driving an automobile while under the influence of intoxicating liquor. The Court held that the admission of the blood analysis into evidence did not violate the defendant’s Fifth Amendment privilege against self-incrimination and the taking of the blood did not violate his Fourth Amendment right to be free of unreasonable searches and seizures.

In United States v. Allen, supra, it was held that the use of such bodily identification evidence as securing blood samples and x-rays does not violate the privilege against self-incrimination under the Fifth Amendment or the search and seizure clause of the Fourth Amendment.

The Court went on to say: “Of course an x-ray is not actually seized from the person x-rayed, but the use of the body to make the x-ray is so seized and considering that x-rays actually penetrate the body we cannot say as a matter of law that it is less an invasion than the taking of blood.”

In Cupp v. Murphy, supra, the Court upheld the right of police officers, who had probable cause to suspect the accused had killed his wife, to take a sample of scrapings from the suspect’s fingernails over his protest.

In the present case a police officer went before the judge of the Recorder’s Court of the City of Tuskegee and made an affidavit that he had reason to believe that a stolen diamond was in the stomach of appellant. Affiant’s belief was based on viewing a prior x-ray which showed that a ring believed to be the one stolen from Coggans Jewelry Store on May 17, 1974, was in the stomach of appellant. This affidavit was made' on May 24, 1974.

A search warrant was issued by the Magistrate to confirm affiant’s belief that a ring was then and there in the stomach of appellant.

We think that aside from the x-ray the facts and circumstances of this case were sufficient to submit the issue of appellant’s guilt vel non to the jury. The owner of the jewelry store saw appellant put the ring on his finger and walk out of the store. Fifteen to twenty minutes later a police officer arrested appellant and saw a diamond ring on his finger and four minutes later the ring was missing.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Rider v. State, 56 Ala.App. 137, 319 So.2d 756; Washington v. State, 55 Ala.App. 116, 313 So.2d 544; Price v. State, 53 Ala.App. 465, 301 So.2d 230.

The refused charges containing correct statements of the law were adequately and substantially covered in the Court’s oral charge and in the charges given at the request of appellant.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Hugo COVINGTON v. STATE.
    6 Div. 294.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

      Ralph C. Burroughs, Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was tried on an indictment charging murder in the first degree, found guilty of murder in the second degree and sentenced to fifteen years imprisonment.

Appellant and the victim had known each other for several years; they lived in Northport, Tuscaloosa County; each had a wife and a family. They had two major interests in common, the chief one being the wife of deceased and the other, red whiskey and beer.

The evidence is undisputed that defendant killed the victim by shooting him with a pistol while they were together at the home of defendant, about three miles from the home of the victim. No one else was present at the time. Circumstantial evidence presented by the State pointed almost certainly to the conclusion that the victim was killed by defendant, even before he so testified on the trial.

Under the plea of not guilty, defendant relied chiefly upon the defense of self-defense.

According to the undisputed evidence, defendant had been with the wife of the victim approximately all of the daylight hours of October 22, 1974, and a part of the night before. In the late afternoon of October 22, the victim returned from work to his home where his wife and defendant were at the time. Defendant and the victim then went for some liquor and beer and the three, accompanied by others, did some heavy drinking. The relation between defendant and the victim’s wife is probably epitomized by the following part of her testimony:

“Q Now I think you mentioned you had had an affair with Hugo, and how long did you say the affair had been going on?
“A A good while.
“Q Pardon me?
“A A good while. I don’t know.
“Q Were they good enough friends you all visited back and forth and not necessarily when the wife or husband was home or what?
“A Right. He didn’t care.
“Q He didn’t care?
“A He didn’t seem to.”

During the evening of revelry, Frank Long, Jr., the victim, took a knife out of his pocket, opened it and put the blade of the knife against defendant’s neck. The circumstances shown by the evidence permit an inference that there was some threat by deceased to kill defendant; on the other hand an inference is permissible that no one took the deceased seriously. It was not a large knife, being referred to by the wife of deceased as a “little frog sticker.” She said that when she told her husband to put it back in his pocket, he said, “I was just playing with Hugo.”

The testimony is undisputed that defendant and the victim left the victim’s home in defendant’s automobile about eight or eight-thirty P.M. Defendant testified that the victim did not stay in defendant’s automobile after the automobile had been driven a few blocks, but that within the next hour the victim knocked at the door of defendant’s home and entered it when defendant cracked the door. Soon thereafter neighbors heard gunshot sounds, and after fifteen or twenty minutes they heard an automobile being driven from defendant’s home. There was no detection of any crime until two days later when the victim’s body was found in the Hopewell Cemetery, in Pickens County. Upon investigation by the authorities and questioning of defendant, he left the State, first going to Texas and then to Chicago, after leaving the pistol used in the killing, and his automobile, with a friend, stating to the friend, “Well, I got the hat,” meaning, according to the testimony of the friend, “he had to leave.” Defendant was not apprehended until he turned himself in at Tuscaloosa on February 20, 1976.

Appellant’s main contention in support of his argument for a reversal is that it was reversible error for the trial court to include in its oral charge to the jury on the subject of the defense of self-defense, the element of freedom from fault. The particular contention, as made promptly after the oral charge was given, was as follows:

“MR. SOGOL: Further, we would except that the State has not met the burden of showing the defendant was not free from fault and we except to Your Honor including that as an element in the charge of self-defense.”

Defendant testified positively that soon after the victim entered defendant’s house, they both sat down for a while, then defendant went to the bathroom and as he returned, the deceased “came out with a knife,” that defendant asked him what was wrong with him; that the deceased said, “I have come to get it over with”; and that upon being asked what he meant, the deceased stated, “You know what it is all about.” According to defendant, he pleaded with the deceased to “Shut the knife up and leave, just get out of the house.” He said that then the deceased “made an attempt to get up with the knife,” that deceased “lunged” at defendant “with a knife,” that “he didn’t do anything with the knife because I shot. When he out with the knife I also pulled a pistol.” Defendant was not certain how many times he shot, whether four, three or five shots were fired, but it is certain that one bullet entered the left temple of deceased and killed him almost instantly.

Expert testimony was to the effect that a sample of blood taken from deceased showed, “An alcohol level of 0.24 percent,” which denoted that the victim at the time of his fatal injury was “sloppy drunk.” Further testifying on the subject, the expert witness described the condition of a person in such a state of intoxication as “the character, if you saw him walk, the subject would stagger markedly. His coordination would be very poor.” Other expert testimony was to the effect that there were no powder burns upon deceased within the area of the place where the bullet entered his head.

We have no difficulty in concluding that there was ample evidence to support the finding of the jury that the homicide was not justified on the theory of self-defense, particularly in that defendant was not in such real or apparent danger of death or great bodily harm as to make it reasonably necessary for defendant to kill him, as he did. The circumstances of the killing as narrated by defendant himself were sufficient to justify such a finding. In addition, the jury had the right to consider, as evidence of defendant’s consciousness of guilt, his macabre effort to dispose of the body of his victim and his flight from the State for more than a year.

It is not necessary for us to decide whether, as contended by appellant, a jury issue was presented in favor of the State on any question of defendant’s freedom from fault in bringing on the difficulty. The portion of the charge on the subject of freedom from fault, to which defendant took an exception, stated a correct proposition of law and was within the issues formed by the pleadings, particularly by the defense of self-defense embraced within the plea of not guilty. If defendant deemed that there was no evidence of fault or aggression by defendant and that it would have been best from the standpoint of defendant for the court to have so instructed the jury in one way or another, it was incumbent upon defendant to request such an instruction. In the assertion of his contention on appeal, appellant relies upon Col- Her v. State, 57 Ala.App. 375, 328 So.2d 626, cert. denied, 295 Ala. 397, 328 So.2d 629 (1976), wherein it was held that the trial court committed reversible error in refusing a written charge requested by' defendant that pretermitted consideration of the question of freedom from fault on the subject of self-defense in a case in which, as here contended by appellant, there was no fault on the part of defendant as shown by the undisputed testimony. Instead of Collier’s being an authority in favor of appellant, it emphasizes the importance of the presentation to the trial court of the particular contention in the form of a requested written charge. To have omitted freedom from fault as an essential element of self-defense would have constituted an incomplete statement of the legal principle of self-defense. To have told the jury that there was no fault on the part of defendant would have been beyond the duty of the court, unless defendant had requested in writing such an instruction and the evidence in the case would have justified the same. The court was governed by Code 1940, Tit. 7, § 270, as follows:

“The court may state to the jury the law of the case, and may also state the evidence when the same is disputed, but shall not charge upon the effect of the testimony, unless required to do so by one of the parties.”

This is not to say that it was not within the inherent power of the court to direct the attention of the jury to any absence of evidence on the question of fault of defendant, but the court is not required to do so unless requested by one of the parties. Any confusion between the power of the court and the duty of the court in this particular respect should be clarified by what was said in Vinson v. State, 29 Ala.App. 234, 194 So. 705, 708:

“. . . Moreover, as to the point under discussion, all the evidence adduced upon the trial of this case tended to show that deceased was a trespasser on the occasion, and where this is true, no conflict in the testimony upon the point, the court had the inherent power to so charge even if not required by one of the parties to do.”

In Vinson, the court relied upon Goff et al. v. Sellers, 215 Ala. 489, 111 So. 210, 211, as follows:

“Section 9507, Code 1923 (section 2274, Code 1852), declares that the court ‘shall not charge upon the effect of the testimony, unless required to do so by one of the parties.’ It has been held that this section ‘was not intended to abridge the original, inherent power of the court to direct the attention of the jury to undisputed, admitted facts.’ Dennis v. State, 112 Ala. 64, 20 So. 925; Tidwell v. State, 70 Ala. 33. And, ‘when the record shows affirmatively that certain facts are clearly shown and not disputed — not made any part of the contention — then it is not error if they be assumed in the charge to be facts, and stated as such without hypothesis.’ ”

Appellant also argues that the oral charge on the subject of freedom from fault as an element of self-defense was erroneous for the reason that “the prosecution has the burden of proving that the Defendant was at fault in bringing on the difficulty.” There was nothing in the court’s charge to the contrary. In fact, the court at the written request of defendant so instructed the jury in defendant’s charge No. 5, which ended:

“. . . and if the jury believe from all the evidence that defendant acted under such circumstances as above set out, the burden of showing that he was not free from fault in bringing on the difficulty is on the State, and, if not shown, the jury should acquit.”

No part of the oral charge of the court to which exception was taken or an objection made was erroneous; all valid charges requested by defendant in writing were given.

We find no error in the record prejudicial to defendant. The judgment appealed from should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge. DeCARLO, Judge,

text:
    Roger G. O’TINGER v. STATE.
    8 Div. 904.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.
    Dwight Duke, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Grand larceny; sentence: four years.

The State put on a case of circumstantial evidence which tended to connect the appellant with the May 7, 1976, burglary of a store in Section, Alabama. In addition to circumstantial evidence, the State introduced a confession by the appellant. In his defense, the appellant put into evidence facts which tended to negate the circumstantial evidence presented by the State. The sole issue to be decided is whether or not the appellant’s confession was voluntarily, understandingly and intelligently given without having been induced by offer of reward or the result of coercion and undue influence. McNair v. State, 50 Ala.App. 465, 280 So.2d 171 (1973).

Many of the facts surrounding the appellant’s confession were in dispute at trial. However, the following facts were undisputed. The appellant was arrested on the morning of May 7, 1976, at which time his shirt and shoes were taken from him. Some new clothes and a pair of boots were also taken from him.

On May 12, 1976, the appellant was questioned concerning the burglary. At that time the appellant had been without shoes for approximately six days. He had asked for shoes during this six day period, but the shoes were not forthcoming. Due to a lack of shoes, the appellant’s feet became sore and infected. When questioned, the appellant stated he would confess to the crime in return for his new boots. The interrogating officer agreed, the confession was given and the boots were returned to the appellant. The confession was admitted into evidence over proper objection.

Jackson County Deputy Sheriff, Freddie Adams, testified in pertinent part as follows:

“Q. When you put him in jail, you took his shoes off, didn’t you?
“A. Yes, sir.
“Q. You took his clothes away from him?
“A. Yes, sir.
“Q. And you denied him a phone call; you wouldn’t let him call his lawyer, isn’t that right? He didn’t call nobody, did he?
“A. I don’t remember, Mr. Hamlet.
“Q. You didn’t let him have a phone call, did you?
“A. I didn’t but someone else could have.
% * * * * *
“Q. You took all his clothes except his pants, didn’t you, Mr. Adams; you took all of his clothes off him except his pants, didn’t you?
“A. Yes, sir; I think so.”

Officer George Tubbs, an investigator for the Sheriff’s Department, testified outside the presence of the jury that he questioned the appellant on May 12, 1976, and gave him a proper Miranda warning. His further testimony, pertinent to the issue here, is:

“I was talking to him in my office and some other people came upstairs to talk to me, and I asked him to step out of the room until I finished business with these two people; and after these two people left, he came back to the door; he said, ‘If you will give me my clothes and boots, I will tell you what all happened’; so I couldn’t refuse that, and I did.”

The appellant testified that he was arrested on the morning of May 7, 1976, and that officers took his shirt and his shoes away from him. His shoes were taken as evidence, and all he had left was a pair of pants. He later obtained part of a shirt, which he described as, “a piece of cloth I got out of the bull pen or out of the jail back there.”

Appellant testified that he was kept in jail without shoes or a shirt until he confessed to Officer Tubbs. During appellant’s testimony, the following occurred:

“THE COURT: You are telling the Court that the only reason you made any statement was to get a pair of new shoes that were still in the box?
“A. Well, I was trying to get some kind of shoes to put on my feet because my toes were trying to fall off; it’s from that dirty jail back there, no shoes; and sores were coming up all over my feet.”

The appellant strongly objected to the admission of the confession into evidence, however, the trial court allowed Officer Tubbs to relate the confession to the jury.

Later in the trial, Officer Tubbs was recalled by the State in rebuttal, and testified in pertinent part as follows:

“Q. Did you knowingly deprive him of any shoes?
“A. I did not.
“Q. Did he ever beg or ask for shoes?
“A. The only time he asked me anything was, about the shoes was like in meeting; when the prisoners are taken out to make phone calls, several are out at a time making calls; he said, ‘When are you going to give me my shoes?’ And I told him, T am not giving your shoes; they are being held for evidence.’
******
“Q. You said his shoes were held in evidence, but he had a new pair of boots in the lobby?
“A. In the office.
“Q. And he didn’t get those boots until he made confession to you, isn’t that right?
“A. He came in the door and said, T am going to’—
“Q. He got his boots after he made a confession?
“A. He came in the door of my office; and he said, ‘I will tell you about the whole mess if you will give me those boots.’
“Q. And you said, ‘Deal’?
“A. I said, ‘Lay it on me.’
“Q. And you gave him the boots after he told you?
“A. You better believe it.”

The law is clear in this area. The confession of a defendant is prima facie inadmissible and the burden of proving that the confession was not obtained through undue influence rests with the State. Any inducement of profit, benefit, or melioration held out, or any threat of violence, injury, increased rigor of confinement, or any other menace which can inspire alarm, dread, or slightest fear, is enough to render the confession inadmissible. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967).

In the present case, the evidence is undisputed that the appellant confessed to the crime in return for a pair of boots. The trial judge, at trial, and the State, in its brief, appear to agree that the appellant’s confession would have been inadmissible had the interrogating officer initially made the offer to give the appellant a pair of boots in return for a confession. They perceive some distinction in the present case because the appellant made the initial offer. We do not find that to be a meaningful distinction.

The appellant, in the suppression hearing, testified as to the state of his confinement, and as to the condition of his feet, showing the reason he needed some shoes or boots. The State introduced no testimony to contradict that of the appellant on those points.

We attributed no maliciousness to the authorities of Jackson County regarding the appellant’s confession. We merely find that from the evidence that the confession was not voluntary within the meaning of Wallace and Harris, supra.

It is probable that many prisoners during medieval days made the initial offer to confess to crimes in order to be released from the “rack.” It is also probable that in other times and in other societies, prisoners have made the initial offer to confess in return for food, or water, or clothing, or blankets, or sleep. While the instant case is one of much lesser degree than the examples we set out, the principle is nevertheless the same.

As an analogy, suppose a prisoner is inadvertently left without food for several days, and upon offering to confess, in return for food, is promptly fed immediately after the confession. Would such a case really be any different than the instant one? We think not. The return of previously withheld necessities such as food, clothing, shoes, blankets or medical care, upon an offer to confess is of such serious constitutional import that it makes little difference whether or not denial of such items was deliberate, or whether the prisoner or the police made the initial suggestion of a confession. To hold otherwise would create an obviously dangerous precedent.

The improper admission of the appellant’s confession affected his constitutionally protected right against self-incrimination, which requires a new trial. Article 1, § 6, Constitution of Alabama 1901; Amendments Five and Fourteen, United States Constitution.

REVERSED AND REMANDED.

All the Judges concur except DeCARLO, J., dissents with opinion.

DeCARLO, Judge,

dissenting.

In the present case the appellant’s involuntariness contention is based on the claim that he spoke to the investigator only after he had promised to give him a new pair of shoes which the appellant had in the jail’s office.

The basic question here is what type of promise or inducement would be improper and cause the statement to be involuntary. In Wallace v. State, supra, the Supreme Court of Alabama set out the test for vol-untariness. It is whether:

“. . . under all the surrounding circumstances, a confession has been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor.” (Emphasis added.)

Some of the important factors to be examined in a consideration of the surrounding circumstances are: First, whether the police or the accused made the initial offer of inducement. People v. Steger, 16 Cal.3d 539, 128 Cal.Rptr. 161, 546 P.2d 665. Second, did the influence or promise induce hope or fear in the mind of the accused, Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, and did it rise to the indignity of the threats, trickery or cajolery condemned in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Third, did the inducement involve some assurance of benefit to the accused with respect to the crime charged. For example, that he would not be prosecuted or that his punishment would be mitigated. Pittman v. State, 36 Ala.App. 179, 54 So.2d 630. Fourth, the underlying facts giving rise to the inducement or promise. See: Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513; Wallace v. State; Bennefield v. State, 44 Ala.App. 33, 202 So.2d 48, reversed, 281 Ala. 283, 202 So.2d 55, for reasoning at 44 Ala.App. 39, 202 So.2d 54 under West’s Headnote Five.

Under the facts before us, the shoes had been taken to preserve them as evidence of a crime. The matter of the shoes as an inducement was introduced initially by O’Tinger and not by the authorities. It did not involve any assurance of benefit in respect to the crime under inquiry or the mitigation of punishment. Any desire of the defendant to confess was entirely self motivated. The promise allegedly made was not an improper influence that would induce hope or fear in the mind of the defendant. Bram v. United States, supra. Further, it did not rise to the indignity of the threats, trickery or cajolery, condemned in Miranda v. Arizona, supra. The allegation concerning the promise of the shoes is insufficient in itself to render an otherwise voluntary confession inadmissible.

It does not seem reasonable to conclude that the appellant should confess to a burglary just to get his shoes.

The trial court heard the evidence and saw the defendant and the officers when they testified. Under the circumstances in the present case the trial judge was in a far better position than this court to determine the voluntariness of the confession.

In view of the foregoing, it is my judgment that the court was correct in holding the confession voluntary.

I respectfully dissent.


text:
    Clinton DUMAS, Jr. v. STATE.
    2 Div. 185.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    No brief for appellant.
    William J. Baxley, Atty. Gen. and Stephen M. Langham, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent here and below, was indicted for burglary with intent to rape, tried and convicted therefor on a plea of not guilty. He entered and withdrew a plea of insanity. The jury fixed punishment at fifteen years imprisonment.

It appears from the evidence that the victim refused to let defendant in her house at night. He then proceeded to kick the front door open, then entered and a struggle ensued, resulting in physical injuries to the victim. The res gestae was interrupted by a person on the street who entered the home in response to noises he heard. Others came over, including the sheriff. We omit further details of the State’s evidence.

Defendant testified, inter alia, that he had slept with the victim on occasions prior to the night of the difficulty and had seen her that night at the house of another person where they had been drinking intoxicating beverages. He contended that later, as he passed in front of the victim’s home, she called him and an argument ensued in the victim’s home about another woman. A fight ensued; that she grabbed a hammer, which he took away from her and hit her with the handle, thus causing bruises that bled. He denied breaking into the victim’s home and that he tried to rape her.

Suffice it is, there were conflicts in the evidence which the jury heard and resolved in favor of the State.

The attorney appointed for defendant on this appeal did not file a brief. However, we have carefully and in detail, examined the record as required by T. 15, Section 389, Recompiled Code 1958. We find no prejudicial errors of any kind.

Appellant was well represented at nisi prius by appointed counsel. It appears from the record that he got a fair trial and now cannot be heard to complain.

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

The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Warner Lee RAINER v. STATE.
    2 Div. 187.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Nicholas H. Cobbs, Jr., Williams & Cobbs, Greensboro, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. Prior to arraignment the Court determined that appellant was indigent and appointed counsel to represent him. At arraignment he interposed a plea of not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

The evidence presented by the State shows that on Saturday afternoon, January 25, 1975, appellant drove from his home in Tuscaloosa, Alabama, to the store of the deceased located on Highway 14 west of Sawyerville in Hale County, with the avowed intentions of robbing the store. The store was owned and operated by the deceased, Frank Dooley, a 64 year old white man. Appellant was a 25 year old black man and he testified that he intended to rob Mr. Dooley, and several days before the robbery he bought a .32 caliber pistol and a box of ammunition in preparation to effectuate the robbery. During the course of the robbery Mr. Dooley was shot and killed by the appellant.

There was no motion to exclude the State’s evidence and there was no motion for a new trial. Appellant did request the affirmative charge in writing and this puts us to a recital of the evidence.

Appellant filed a motion to quash the jury venire on the ground of systematic exclusion of qualified blacks from the jury roll and the jury box of Hale County.

Systematic exclusion means a purposeful non-inelusion based solely on race, and the burden of proving discrimination by systematic exclusion is on the defendant. Purposeful discrimination may not be assumed or merely asserted, it must be proved. Mere statistical disparity between the number of blacks presumed eligible for jury duty and the number actually included in the jury roll does not of itself establish a primary inference of invidious discrimination. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Beecher v. State, 294 Ala. 674, 320 So.2d 727.

The only testimony offered in support of the motion to quash the venire in this case was that of appellant’s attorney and the Clerk of the Jury Commission. The appellant’s attorney testified that there is a total of approximately sixty-six percent white people serving on the jury venire in a county that contains approximately seventy or more percent blacks. This testimony was no more than the personal opinion of this attorney and was not documented in any way. He further testified that of the sixty members of the jury venire drawn to try this ease there were twenty blacks. Eighty jurors were drawn but most of the other twenty could not be found and several were excused for medical reasons. There was no testimony as to the racial make-up of these twenty persons.

Mrs. Rosalyn DeWitt, the Clerk of the Hale County Jury Commission, testified that she had served on the Commission for about three years. She stated that she sent a questionnaire and a card to be returned to the Commission, to every person in Hale County who was over twenty-one and under sixty-five years of age that the Commissioners thought met the qualifications set forth in the Code for jury duty. When the cards were returned, the members of the Jury Commission selected the ones that met the qualifications set out under the Code and they were put on the jury roll and into the jury box. She said the poll list of voters was used and also the tax assessor’s records as there were some people who assessed property who were not on the poll list of voters but were still residents of the county. She further testified that the members of the Jury Commission would go out in the county and contact black people to ascertain the addresses of blacks who failed to return the cards she mailed to them. She stated that in her best judgment there were about twenty-two hundred persons in the jury box and that when they were putting names in the jury box, they didn’t know whether these persons were black or white. She further stated that there was about a fifty-fifty percentage of both blacks and whites in the jury box. She further testified that she did not make a special effort to maintain a fifty-fifty ratio and didn’t know what the ratio was until they were through compiling the list. She said this method was approved by the Federal Court.

The Clerk of the Jury Commission further testified that during her tenure the Jury Commission was operating under a Federal Court order and they had people from the Justice Department who assisted them in compiling the list of qualified persons for jury service. She stated that they fully complied with the Court order and are still using the same system as ordered by the Federal Court. She said the Jury Commission meets once a year and reworks the jury roll and the jury box and new names are added. The only persons removed from the jury roll and the jury box are those over sixty-five years of age or those who have died or moved out of the county.

The Clerk further testified that one of the members of the Jury Commission who lived in the northern part of the county took a list of black people who had failed to return the cards mailed them and interviewed a number of black persons in an effort to locate those who did not return the cards.

During this hearing the trial court made the statement that a number of jury ve-nires drawn for the terms of court since the Federal Court order were made up with seventy-five percent blacks and this was the result of random drawing from the jury box.

It is of significant interest to note that appellant did not call a single member of the Jury Commission to testify in support of his motion to quash the jury venire.

Under Swain v. Alabama, supra, and Butler v. State, 285 Ala. 387, 232 So.2d 631, and the other cases cited in this opinion, we hold that appellant did not meet the burden of proof cast upon him to show “the existence of purposeful discrimination” by the exclusion of Negroes on account of race from jury participation.

We will summarize the testimony presented by the State and also the testimony presented by the appellant.

Around 2:00 p.m., on January 25, 1975, young Robin Massey together with his father, Mr. Richard Massey, drove to the store of the deceased and young Massey was told to go in and buy some cheese. When he entered the store, he saw the deceased and a Negro man. The Negro man was sitting on the corner of a drink box. He told the deceased how much cheese he wanted and the deceased went to the rear of the store and got a knife to cut the cheese from a hoop. Young Massey observed the Negro walk toward the back in the same direction that the deceased had gone. Massey then went to a cake rack and to the drink box and got himself a soft drink. He saw the deceased approaching the front of the store with a shotgun in his hand and heard him exclaim, “Get out of my store before I kill you. Get out of my store before I kill you,” and the deceased told young Massey to go out of the store and get him some help. Young Massey ran out of the store to his father’s truck and told his father that a robbery was in progress in the store. His father told him to load his rifle. There was a 30.30 rifle and a .410 shotgun in the pickup truck at that time. As young Massey was loading the rifle he heard two shots and a loud blast that appeared to be coming from the back of the store and then he heard several other shots. Moments later the deceased appeared at the door and collapsed on the floor. The Negro man appeared at the door and pointed the pistol at young Massey and his father and young Massey pointed the 30.30 rifle at the man standing at the front of the door to the store. The man jumped back in the store out of sight.

Mr. Massey started backing the truck so as to put his son in position to be directly in front of the entrance to the store and in doing so, backed into a ditch and the tires started spinning and he was unable at that point to get the truck into the position that he wanted to put it in in relation to the store. Young Massey saw the Negro man run out of the store to an automobile parked almost directly in front of the store. This was a yellow automobile with a black vinyl top and the Negro went to the passenger’s side of this automobile and opened the door. The Negro then pointed the pistol again at young Massey and his father across the top of the car. Young Massey’s father told him to shoot but not to kill the man. Young Massey fired a shot that struck the roof of this automobile and at that point the Negro got in the car and cranked it and started to leave.

Young Massey’s father told his son to shoot the tire on the automobile that was moving away from the store and young Massey shot the tire and in doing so, also hit the rim of the tire. The Negro pulled out and got on the highway and left.

About this time Mrs. Dooley, the wife of the deceased, and her son, Wayne Dooley, came out of the residence which was located about 20 to 25 yards from the store and young Massey ran to the front door where the deceased had fallen and he turned around and told Mrs. Dooley and her son that Mr. Dooley was dead. Wayne Dooley went to his father and was going to get him in a vehicle and take him to the hospital but he felt his pulse and knew that his father was dead. He then ran in the house and got his gun and got into an automobile and started chasing the Negro who had shot Mr. Dooley. He went down Highway 14 toward Eutaw in Greene County and he passed the Negro who had done the shooting, off the highway onto a side dirt road, where he was engaged in changing his automobile tire. Wayne Dooley then went to a nearby store and called the Eutaw Police Department.

A radio dispatch was put out and was picked up by Officer Harvey Foster who was employed by the Department of Conservation. Also Officer Vernie Striplin, Assistant Chief of Police of the City of Eutaw, picked up the radio dispatch. Wayne Dooley talked to Officer Foster and told him that this yellow over black automobile had turned on Highway 43 headed toward De-mopolis. Officer Foster gave chase down Highway 43. He came in sight of this automobile and turned on the blue light and the siren and the suspect’s automobile picked up speed. Officer Foster clocked this car as going around 100 to 125 miles an hour, but he overtook him and stopped him. Just before the driver of the getaway car stopped, Officer Foster saw him hold a pistol out of the window on the driver’s side. After the Negro stopped, he threw the pistol in some weeds across the highway and Officer Foster took him into custody. About that time Officer Striplin arrived at the scene. Officer Striplin took the suspect and placed him in the patrol car and returned him to the Eutaw Police Department. Officer Foster got the pistol from the place where it was thrown and gave it to State Trooper G. E. Gravelee of the Department of Public Safety, who came to Eutaw and he immediately advised the suspect of his constitutional rights by reading him the Miranda warnings from the card. He asked him if he wanted to make a statement, and the suspect said he did not.

Trooper Gravelee testified that after giving the suspect the Miranda rights and warnings, he asked him if he understood them and he said he did. These rights were given to the suspect in the presence of several officers.

According to Trooper Gravelee appellant signed the waiver of rights form and before he signed it, no one in the presence or hearing offered the suspect, who will hereinafter be referred to as appellant, any hope or made him any promises or threatened him in any manner and offered him no rewards or other inducements. Trooper Gravelee and the other officers took appellant back to his automobile. The door to the car was open and one of the officers saw a box of ammunition lying on the console. He picked up the box of cartridges and noticed that a side of the box had been torn off and twelve cartridges were missing from the box. At this point the officers closed the doors and sealed all the doors with some form of tape. It was towed to a garage in Greensboro, and the keys had been surrendered by appellant and the car was locked after it was sealed.

It was discovered that appellant had sustained a bullet wound in his shoulder and he was carried to the emergency room of a local hospital where Dr. Wallace C. McAdo-ry administered first aid to him whereupon he was released to the officers and lodged in the Hale County Jail. All of this occurred on the Saturday afternoon of January 25, 1975.

While appellant and the officers were at the hospital appellant voluntarily made the statement to Trooper Gravelee that he did not intend to kill the man. Officer Grave-lee testified that he did not interrogate appellant at any time concerning the facts of the case and had not asked him a single question before appellant made this statement, “I did not intend to kill the man.”

The following Monday morning, January 27, 1975, Mr. C. H. Weber, who was employed by the District Attorney’s Office as an investigator and who formerly had been an investigator with the Department of Public Safety, went to the jail in Greensboro and took appellant into an office where he interviewed him, but before asking him any questions he gave him the Miranda rights and warnings and asked him if he understood them and appellant told him that he understood his rights. Mr. Weber asked him if he was willing to give a statement and he said that he was ready to give a statement. Mr.-Weber stated that no one in his presence or hearing threatened appellant or made him any promises or offered him any rewards or other inducements to get him to make a statement.

There was a voir dire hearing out of the presence and hearing of the jury and the court, after a lengthy hearing, determined that the statement given by appellant to Mr. Weber was freely and voluntarily made. The statement is as follows:

“January twenty-seventh, Nineteen seventy-five, Monday, nine fifty-five a. m. The following voluntary statement of Warner Lee Rainer, twenty-five years old, address one twenty-eight Eighteenth Court East, Tuscaloosa, Alabama, as told to C. H. Chuck Weber, who identified himself to me as an Investigator for the District Attorney’s Office, Fourth Judicial Circuit. What is your full name? Warner Lee Rainer. How old are you? Twenty-five. What is your date of birth? Four eleven forty-nine. What is your address? One twenty-eight Eighteenth Court East, Tuscaloosa, Alabama. How far did you go in school? Completed the eleventh and half of the twelfth. Are you married? Yes, I am. Do you have any children? Yes, a boy. How long have you been married? Four years this coming March. Can you read and write? Yes, I can. It is initialed at the bottom of the page ‘WLR.’ Page three: ‘Were you in or around the Sawyerville area on Saturday, January twenty-fifth, Nineteen seventy-five? Yes, I was. When did you leave Tuscaloosa? I left about one thirty p. m. Did you tell anyone that you were going down there? No, I didn’t. Did you know the name of the store where this took place? No, I didn’t. How did you know the store was there? I have stopped in there before to get shells and something to eat when we go hunting. How long have you been hunting around the Sawyerville area? Ever since last hunting season. Was the gun you used yours? Yes, it was, a thirty-two revolver. How long have you had it? Almost a month. Where did you buy it? Handy Pawn Shop in Tuscaloosa. How much did you pay for it? Fifty-nine dollars. Page 4: Did you buy any cartridges for your gun? Answer: Yes, I did on Thursday or Friday. Question: Where did you buy them? Answer: At Mac’s Bait Shop in Tuscaloosa. Question: Do you recall what time it was when you got to the store? Answer: No, I don’t. Question: When you first got to the store, was there anyone there? Answer: Yes, there was. How many was there? There was three cars there. Did you wait until they left before you went in? Yes, I did, I left and drove toward Greensboro about a mile, turned around and came back to the store, the last car was leaving, I went towards Eutaw about two blocks, turned around and went back to the store and there were no cars there. I parked on the far side of the store near Highway Fourteen facing the store. Question: Where did you have the gun? Answer: On my left side in my waist band. Question: When you went in the store was there anyone else in there? Answer: No, just the man. It is initialed at the bottom ‘WLR’.
“This is page five. “Where was he at? He was standing in front of the counter, leaning up against it. Warner, will you tell me what happened after you got in the store? Answer: I went to my right, I felt my gun slip. I grabbed it and pulled it out, pulled the hammer back, turned around and told him, ‘Don’t make me kill you’; he replied he didn’t have any money. I told him to go around and open the cash register. We both went around to the cash register. I stayed a couple of yards behind him and to keep his hands where I could see them and to move slow. “He opened the cash register, he began to get the money out, he reached to get a paper sack to put the money in and I told him to put it on the scale. After he laid it on the scale, I told him to get on the floor and put his hands behind his back. These people drove up in this truck. I told him to get up and wait on them just like nothing was happening.
“I grabbed the money off the scale and put it in my pocket. I walked back by the scale and the meat counter, I put my gun in my right pocket. I went to the drink box to the right of the door. A boy came in about fourteen years old and asked for twenty cents worth of cheese. The man went back sliced the cheese, I walked back by the meat counter so I could keep an eye on him, I walked back to where he kept the cokes to make it look like I was buying one” — It is initialed at the bottom of this page ‘WLR’ on the left side at the bottom. Page six: “I walked back down towards him and asked him did he know me, he said no, I told him he did.
“I told him I was fixing to go out the store, and I told him don’t come out behind me.
“About this time he had the cheese.in some paper and walked towards the front corner of the store. I was about where the cheese was and I saw him with the shotgun. I told him to put the gun down. He said he was going to kill me. I heard the man tell the little boy, ‘Go out there and tell the man to give me some help.’ “The man fired the shotgun at me. I was near the corner where the cheese was, I moved back to where the meat display case was and I shot over the shelf towards the front of the store. He moved back toward the front corner of the store. I was near the cheese and I shot, he hollered, ran to the door and fell.
“I started to look for some polaroid shades which I had on when I first went in the store but I couldn’t find them. “I went around where he was laying in the door for I was fixing to go out the door, I saw this little boy in a truck. He had a rifle pointed at the door. I heard a shot go off, I backed back into the store, I peeped back out the door, I saw him in the truck trying to get out of a ditch they were in. I broke and ran to my car, I opened the door, I squatted down trying to reach in and crank my car, the second shot”-At the end of the page near the left corner are the initials ‘WLR’.
“Page seven: ‘ — caught me in the right shoulder.
“I got the car started closed the door and backed out into the highway, and I noticed one of my tires was flat, so I drove down the highway looking for a place to change my tire, while doing this I reloaded my gun. About three-quarters of a mile I turned right onto a dirt road. I went about two cars off the highway, I laid the gun up on hood and changed my tire. After I got the tire changed I got back on the highway and went towards Eutaw. I drove until it felt like my recap tire was hitting my fender, I pulled over to check it, and a guy in a blue Volkswagen pulled into a store and started to point in my direction.
“I got back into the car, I think I had the gun in my coat pocket and I took it out and put it on the seat, when I got to the intersection at Eutaw I went down Highway Forty-three. I drove down it a while, I didn’t see anyone behind me, I looked in my rearview mirror and I saw a car coming pretty fast, I started to pull over but decided to keep on driving, while it got in good sight I recognized who it was, it wasn’t the state, it was a policeman then I showered down on it, I guess I was going one twenty to one twenty-five, I looked back through my mirror and I was leaving him behind.
“A lot of things went through my mind and I said ‘What the hell, they would have a road block’, so I pulled off the road, I held the gun outside the window and got out, and threw the gun in the grass toward the man in’-. It is initialed in the lefthand corner ‘WLR’. Page eight: • — -‘brown uniform.’
“Another policeman drove up and told me to put my hands on top of the car and then searched me. Then he stepped back and told me to lay flat on the ground and put cuffs on me.
“They put me in the car and carried me to the police station in Eutaw.
“A State Trooper advised me of my rights at the police station.
“I was taken to the hospital in Hale County, treated and then placed in the County jail. Signed, ‘Warner L. Rainer, one hypen twenty-seven hyphen seventy-five. Witness: C. H. ‘Chuck’ Weber.”

Dr. Richard A. Roper, an Assistant State Toxicologist conducted a post-mortem examination on the body of the deceased and he removed two .32 caliber slugs from his body which he turned over to Mr. Dale Bloomer, a Criminologist of the Department of Toxicology. Dr. Roper stated that the cause of death was the result of a gunshot wound that the victim received which penetrated the lung and the heart.

In the course of the investigation the people from the Crime Laboratory in Selma came to the store where the shooting occurred and where Mr. Dooley was killed and made an investigation in the presence of the Sheriff of Hale County and other officers. A .32 caliber slug was found on the shelf in the back of the store and this slug together with the two slugs removed from the body of Mr. Dooley were turned over to the Criminologist, together with the pistol used by the appellant for the purpose of making a ballistics test to determine whether or not these spent slugs were fired from appellant’s gun. Mr. Bloomer testified to his qualifications in detail, as to his training and experience in conducting ballistics tests. He test-fired the pistol using three of the .32 cartridges that were in the box removed from appellant’s automobile and he testified that all of the spent slugs were fired from the .32 Smith and Wesson pistol belonging to appellant, to the exclusion of all other weapons.

The State called Mr. Hank Hanley who lived in Northport, Alabama, and who was employed at Hanley’s Pawn Shop located in downtown Tuscaloosa. This witness testified that on January 17, 1975, appellant signed an application to buy a pistol. Appellant had filed the application as this is a record required to be kept under the Federal Statute when purchasing firearms. A copy of the application was introduced in evidence without objection. Appellant applied for the purchase of a .32 caliber revolver.

The State called Allen L. McDuff as a witness who testified that he was the manager of Mac’s Bait Shop in Tuscaloosa and from the business records required to be kept by Mr. McDuff, it was shown that appellant bought from this shop one box of Remington .32 caliber Smith and Wesson ammunition on January 23, 1975, just two days before he robbed and killed Mr. Dooley.

Without attempting to set out in detail the chain of possession of the various items recovered in this investigation of the robbery and killing of Mr. Dooley, suffice it to say that there is no missing link in the chain of possession relating to any items that were identified and introduced in evidence.

Mrs. Dooley testified that she left the store to go to their home close by to use the rest room; that while she was in the house she heard gunshots in the store. The first shots that she heard were in her judgment pistol shots and after hearing three or four of them, she heard a loud noise like a shotgun blast and then there were three or four more pistol shots. She looked out the window and saw a young boy running toward a truck and she went out the house with her son and found that her husband was lying in the front door of the store dead.

Michael Wayne Dooley, aged 25, testified that he was in his father’s home on the day that he was killed; that he went in the house to get a sandwich and a cup of coffee; that as he entered the house he noticed an automobile parked in front of his father’s store and the body of this car was yellow with a black vinyl top. He further testified that he heard several shots and in his judgment, they were pistol shots and that he also heard a loud blast and then heard two more shots that appeared to be muffled. That he ran out of the house and was told by young Massey that his father had been killed.

Appellant offered several witnesses who testified as to his good character. He also testified in his behalf. According to his testimony he lived in Tuscaloosa and that on the 25th day of January, 1975, he went to Mr. Dooley’s store in Sawyerville in Hale County and the purpose of this trip was to rob Mr. Dooley. That he had purchased a .32 caliber pistol on January 17, and that on the 23rd day of January he bought a box of .32 cartridges. He stated that he was familiar with Mr. Dooley’s store as he had stopped by there on one or two occasions previously to buy shells to go hunting, that on this particular afternoon he arrived there around 2 o’clock and that he saw several automobiles parked in front of the store and he drove on by and went up Highway 14, toward Greensboro, that he went about a mile or so and turned around and came back by the store. He saw one car still parked there so he kept going and after driving for approximately two or three blocks he returned and did not see any automobiles or other vehicles parked in front of the store so he stopped, got out and went in. That he had his pistol in his belt as he started in the store and he felt it slip and he pulled it out and pulled back the hammer and walked up to Mr. Dooley and told him, “I don’t want to kill you.” He ordered him to open the cash register and take out all the currency. Mr. Dooley got the currency out and started looking for a sack to put it in and appellant told him to put it on top of the meat scales. After the money was placed on the meat scales, he told Mr. Dooley to lie down on the floor and Mr. Dooley complied with his orders. He said that he had a shoestring in his pocket and he was going to tie Mr. Dooley’s hands behind him so that he couldn’t get up but at about that time he heard a vehicle drive up and stop, so he told Mr. Dooley to get up off the floor and wait on whoever was coming in and to act as if nothing was happening; that a young boy came in and ordered 20$ worth of cheese and Mr. Dooley walked back to the meat counter to cut the cheese. That he had taken the money off the scales and put it in his pocket and he walked back to the drink stand where he could have a good view of Mr. Dooley and he went up to him and asked him if he knew him and Mr. Dooley told him no, that he did not know him, and he told him, “I am fixing to leave the store and I don’t want you to come out behind me.” He stated that after Mr. Dooley cut the cheese, he either dropped the knife on the floor or laid it on the counter and started toward the front when he picked up a shotgun. That he shouted at him to put the gun down and that Mr. Dooley did not make a reply but shouted to the boy to go outside and get some help.

He stated that he again hollered at Mr. Dooley to put the gun down and Mr. Dooley fired the gun in his direction. That he then fired his pistol in the direction of Mr. Dooley. He said the first shot was in the ceiling as he was trying to warn Mr. Dooley to put the shotgun down. Mr. Dooley did not put the shotgun down and he fired directly at him.

He testified that he knew that he shot at Mr. Dooley at least two times after he shot the first time in the ceiling, that he could not recall firing the fourth shot but that after firing the two shots directly at Mr. Dooley, Mr. Dooley started running toward the door and hollering for help and fell in the door on top of the single barrel shotgun that he had in his hands when he went toward the door.

He further testified that when he got to the door, he saw this young boy pointing a gun in his direction and he jumped back inside the store and then when he saw the truck had backed into a ditch, he ran to his automobile and got on the driver’s side and got down in a crouched position and opened the door and it was at this point that he felt a wound in his shoulder. He denied that when he got to his car that he reached over the top of his car and pointed the gun in the direction of the truck occupied by Mr. Massey and his son. He did state that after driving away from the place he reloaded his gun and that after going some distance down Highway 14, he felt that one of his tires was flat and he pulled onto a dirt road to put on a spare and while he was parked there, he saw a blue Volkswagen pass and the person driving the Volkswagen pointed at him and then kept going. He said that at the place where he changed tires he threw away four spent .32 cartridges and then he reloaded his pistol in his car.

On both direct and cross-examinations appellant testified that he went into Mr. Dooley’s store to rob him.

Appellant contends that he was denied due process of law in that the State of Alabama does not provide adequate compensation for lawyers who are appointed to represent indigent defendants. We do not consider this to be a due process matter, nor do we consider it to be a matter of constitutional law.

We agree that appointed counsel in indigent cases are underpaid at all levels of trial proceedings but this is a matter that should be addressed to the Legislature and not the courts.

Appellant contends that the confession he made to Mr. Weber was involuntary and inadmissible. We do not agree.

An extrajudicial confession, oral or written, is prima facie involuntary and inadmissible, and the duty rests in the first instance on the trial court to determine whether the confession is voluntary, and unless it so appears, it should not be admitted. Myhand v. State, 259 Ala. 415, 66 So.2d 544; Duncan v. State, 278 Ala. 145, 176 So.2d 840; Carter v. State, 53 Ala.App. 43, 297 So.2d 175; Luschen v. State, 51 Ala.App. 255, 284 So.2d 282.

As we have pointed out appellant was given the Miranda rights and warnings on two occasions after his arrest and before he was interrogated. The trial court conducted a voir dire hearing out of the presence and hearing of the jury before concluding the confession was voluntary.

The State laid the proper predicate for the introduction of the inculpatory statement. We hold that appellant knowingly and intelligently waived his right to counsel, and knowingly and voluntarily made the confessory statement. Embrey v. State, 283 Ala. 110, 214 So.2d 567; Jones v. State, 292 Ala. 126, 290 So.2d 165; Guenther v. State, 282 Ala. 620, 213 So.2d 679; Luschen v. State, supra.

Appellant voluntarily took the witness stand and his testimony corroborated, in the main, the confession he made and signed two days after the robbery-murder. He admitted that he drove from his home in Tuscaloosa to Mr. Dooley’s store in Hale County with the intent to rob Mr. Dooley. There were some conflicts in his testimony with that of some of the State’s witnesses but conflicting testimony is peculiarly within the province of the jury to resolve.

Appellant complains that the trial court erred in allowing the District Attorney to question one of his character witnesses as to where his son was and the witness replied that he was in Kilby Prison. Appellant contends that this was irrelevant and highly prejudicial to the rights of appellant. The short answer to appellant’s contention is that he failed to object to this testimony and move that it be excluded. A proper objection in the lower court is necessary to preserve the matter for review on appeal. Crow v. State, 49 Ala.App. 155, 269 So.2d 171; Daniels v. State, 53 Ala.App. 666, 303 So.2d 166; Felton v. State, 47 Ala.App. 182, 252 So.2d 108.

Appellant also claims the trial court committed reversible error in permitting the District Attorney to ask appellant if he had a permit to carry a pistol. In Pattillo v. State, 245 Ala. 192, 16 So.2d 303, the Supreme Court held that such evidence was permissible as going to show intent.

Appellant admitted that he drove all the way from Tuscaloosa to Dooley’s store in Hale County for the avowed and expressed intent to rob Mr. Dooley. Appellant’s testimony leads us squarely to the conclusion that the possession of a pistol permit would not have deterred him from robbing Mr. Dooley.

Appellant claimed self-defense. This has to be the most novel claim ever made in a robbery-murder charge. It is his contention that the robbery was a completed crime and when Mr. Dooley would not put the shotgun down on his orders but, on the contrary, fired at him he had a right to kill Mr. Dooley in self-defense.

We do not think appellant has a legitimate complaint to make in any respect. The Court charged the jury on the law of self-defense and also charged the jury on all four degrees of homicide. This was more, much more, than appellant was due under the law and the facts of this case. He was at fault in bringing on this difficulty and he certainly was not entitled to have the jury charged on manslaughter.

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

AFFIRMED.

All the Judges concur.