text:
    Tommy LOWERY v. STATE.
    3 Div. 512.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Rehearing Denied June 29, 1976.

      Carl O. Pilgrim, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is another appeal from another conviction of another homicide that was started by another fight between two or more men about the same woman.

The charge is murder in the first degree; the verdict was guilty of murder in the second degree; the sentence was imprisonment in the penitentiary for twenty-one years and a day.

The fight started in the lounge of the Pekin Cafe, in Montgomery; the victim, Johnny Williams, was killed in front of the cafe, after considerable fighting had gone on in the lounge between or among the victim, defendant and one Jessie Maner.

The first witness as to the fight was the woman, Lucille Harris, common law wife of the victim for two and a half years; at the time of the trial living with defendant. She testified that she and her then common law husband were having a fight in the cafe, her husband hitting her four or five times, and that several people came over to break it up, including Tommy Lowery. Lowery and Williams began to tussle; the witness’ girl friend drug her into the bathroom; she looked out and saw the owner fire a pistol. Tommy Lowery then ran out the door of the Kozy Room. At that time she saw Jessie Maner and Johnny Williams on the floor struggling; Jessie Maner was on top of Williams and was coming down on Johnny Williams with his “dutch,” which, according to the context of the word as used by other witnesses, seems to be a vernacularism of the word “dirk.” She said that Williams had his knife while he and Maner were fighting on the floor. Another shot was fired by an owner of the place, which did not stop the fight, but one of the owners took a bar stool and hit Maner on the back of the head and thereby broke up the fight on the floor. The three men mentioned as having struggled and fought in the lounge or barroom, called Kozy Room, of the cafe, went outside to the sidewalk or street. Two knives were found on the floor of the Kozy Room and another was found elsewhere in the Kozy Room.

There was testimony that while the fighting was going on in the Kozy Room defendant stabbed Williams in a shoulder.

Two witnesses for the prosecution testified that they saw fighting in front of the cafe, that defendant stabbed Williams in his chest with a knife, that Williams then fell backward and did not arise. He was officially determined to be dead and taken away by an ambulance.

Dr. Richard Roper of the Department of Toxicology and Criminal Investigation testified that his post-mortem examination of Williams revealed that there were ten wounds upon the body. He listed one on the chin, one on the cheek, one over the left ear, three on the back area of the left shoulder, one on top of the right shoulder, two of the left arm and “a penetrating wound or cut in the center area of the chest.” He concluded that the wounds were made with a knife or a knife-like object. He said that it was. his opinion that the wound “in the chest would be the only one that would be a fatal wound.” He said the wounds in the back and shoulder area “did not penetrate -vital organs or arteries.” He further said that in his opinion death resulted from hemorrhage or bleeding and shock “associated with the stab wound to the chest, in which the heart and a major artery were penetrated.”

At the conclusion of the State’s case, defendant moved to exclude the evidence, which motion was overruled. Defendant did not testify. Evidence for defendant consisted of the testimony of only one witness, Mr. Dale Segrest. He testified that while driving an automobile he observed a melee in front of the Pekin Cafe and reported it to the police. He saw a black male and several other people fighting with him, some of them holding him and some of them beating on him. He saw “another black male hit him just a broad hand lick in the face. And at that time the man fell on his back.” He said that “at least six or seven people were actively involved in the fight.” He was not able to identify any of the fighters or others around them.

Defendant filed a pretrial motion to produce a list of documents, including “any confessions or admissions made by defendant” and a list of “all information . which may be exculpatory in nature” and “the names and addresses of all the witnesses the State intends to call in its behalf on the trial of this cause.” The motion was denied by the court eleven days prior to trial.

Within thirty days after defendant was convicted, he filed a motion for a new trial alleging, inter alia, that the verdict was against the weight of the evidence. When the motion was heard, he asked leave to include the additional ground of newly discovered evidence, and, with the permission of the court and no objection by the State, he presented testimony relevant to the additional ground.

The evidence presented on the Motion for New Trial consisted chiefly of the testimony of one Willie Shelby, who testified that he saw the fight in front of the Pekin Cafe, that defendant was engaged in it, but that one Jessie Maner struck Williams with a “dutch,” that as soon as Maner struck Williams, Williams fell down and did not “ever get up.” The witness Shelby had also seen the fight in the lounge. His testimony on the Motion for New Trial was to the effect that he was in the immediate area of the fight as it took place in front of the cafe. He said that Williams and defendant had been fighting with knives before Maner stuck Williams with the “dutch,” but that Shelby had pulled defendant away from Williams. It developed in testimony on the Motion for New Trial that Maner had given the police a statement setting forth substantially the same information contained in his testimony on the hearing of the Motion for a New Trial. It developed also that on the trial of Jessie Maner, which took place between the trial of defendant in the instant case and the hearing on his Motion for New Trial, the witness Willie Shelby testified for the State and at that time gave substantially the same testimony as he did on the Motion for New Trial in this case. It was shown further that on the trial of Jessie Maner, Maner was found guilty of murder in the second degree and sentenced to ten years imprisonment.

One of the few insistencies of appellant is that the trial court erred in overruling defendant’s pretrial Motion to Produce, and appellant complains of injury to him as the result of such action of the court, in that if the prosecution had been required to produce all the information called for in the Motion to Produce, defendant would have had the benefit of the information revealed by the witness Jessie Maner and could have used him effectively, to the benefit of defendant, on the trial of this case. Appellee counters largely with the the contention that “defendant’s request was stated so extremely broad as to amount to a fishing expedition,” that there “is no specific request stated which would require the prosecution to respond.”

Appellant relies chiefly upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, holding that the suppression by the prosecution of evidence favorable to an accused upon request, violated due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution. Appellee urges that the comprehensive contents of the Motion to Produce constituted a “shotgun approach . . . expressly rejected and criticized in both United States v. Ahmad [D.C.], 53 F.R.D. 186 (1971) and Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972).”

The glare of the substantive principle declared in Brady tends to obscure procedural interstices preceding the pronouncement. On certiorari, the United States Supreme Court affirmed the judgment of the Maryland Court of Appeals (226 Md. 422, 174 A.2d 167) in holding that the suppression of evidence by the prosecution denied petitioner due process of law and that the judgment of the trial court should be reversed and the case remanded for a retrial. The proceeding had gone to the Court of Appeals of Maryland on an appeal from a denial of a petition for post-conviction relief under the Maryland Post Conviction Procedure Act. The same case previously had been before the Court of Appeals on two previous occasions. 220 Md. 454, 154 A.2d 434 and 222 Md. 442, 160 A.2d 912. On the first, there was an affirmance of Brady’s conviction. The second was an appeal from a denial of a motion for a new trial based on the newly discovered evidence that had been suppressed by the prosecution. Such appeal was dismissed .without prejudice to the relief subsequently sought in the post-conviction proceeding. The court therein held that the action of the trial court in overruling a motion for a new trial on the ground of newly discovered evidence was not reviewable on appeal and that defendant’s sole remedy, if any, was under the statutory Post Conviction Law of Maryland.

If our consideration as to the particular problem now discussed is to be limited to whether the trial court should be reversed for denying defendant’s Motion to Produce, we would be required to ponder seriously the contention of appellee as to the generalities and unlimited nature of the contents of the motion. Furthermore, except for the showing made on the hearing of the Motion for a New Trial, the record presents no suggestion of any prejudice to appellant in the overruling of the Motion to Produce. This being true, our attention is focused upon whether there was error in overruling defendant’s Motion for a New Trial.

Like the Court of Appeals of Maryland on the second appeal in Brady, we are confronted with procedural questions, though not precisely the same in this case. There exists no specially created statutory post-conviction remedy in Alabama, as in Maryland. Even so, if there is merit in appellant’s contention that he was denied due process under the principle established by Brady, other post-conviction remedy will be available to him unless a decision can be made in his favor on this appeal.

The Motion for New Trial, as indicated above, was filed within the thirty-day period required for the court to have jurisdiction to grant a new trial. Code of Alabama, Title 13, Section 119. It was duly and regularly continued until the date it was heard and ruled upon. However, at that time more than thirty days had expired since the judgment of a conviction and at that time the motion contained no ground relative to newly discovered evidence, or the action of the court as to defendant’s Motion to Produce, or as to any claimed suppression of evidence by the prosecution. It is clear that within such thirty-day period defendant was not in a position to make any claim as to newly discovered evidence or as to the testimony of Willie Shelby on the trial of Jessie Man-er, for Jessie Maner was not tried until more than thirty days after the trial of appellant.

It has been uniformly held that after the expiration of thirty days from the rendition of a final judgment, no additional grounds can be assigned to a motion for a new trial filed within the thirty-day period that are not germane to, or merely elabora-tive of, grounds previously assigned. Seibold v. State, 287 Ala. 549, 253 So.2d 302; Lane v. State, 40 Ala.App. 174, 109 So.2d 758; Burton v. State, 40 Ala.App. 146, 109 So.2d 311; Latham v. State, 38 Ala.App. 92, 77 So.2d 499, cert. stricken 262 Ala. 108, 77 So.2d 502.

We find ourselves in a position similar to that of the Court of Appeals of Maryland in Brady v. State, 222 Md. 442, 160 A.2d 912, in holding that the trial court is not to be reversed for denying or overruling defendant’s Motion for a New Trial, but that the action of the court in this respect should be without prejudice to the right of appellant to present the question to the trial court in a post-conviction petition, separate and distinct from this proceeding.

Appellant’s insistence that the trial court should have charged the jury on the subject of self-defense is answered adversely to appellant in Payne v. State, 48 Ala. App. 401, 265 So.2d 185, cert. denied 288 Ala. 748, 265 So.2d 192, cert. denied 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669, in which it was held that for an accused to be entitled to charges on the law of self-defense, he must first produce evidence warranting findings that he was in actual or apparent imminent peril and was unable to retreat. No such evidence was presented in this case. In saying this, we are not overlooking the contention of appellant to the effect that there was some evidence that while the fight was taking place in the Kozy Room appellant was in apparent or actual peril and that he was unable to retreat, but there was no such evidence as to the fight in front of the Pekin Cafe. As to that fight, the issue was whether defendant struck or stabbed Williams. The prosecution contended that he did; defendant contended that he did not. The prosecution presented evidence that he did; defendant did not take the stand, but evidence as to what he stated after the occurrence was to the effect that he did not fight Williams outside of the Pekin Cafe.

Appellant urges error in the action of the trial court in overruling defendant’s motion to suppress testimony of Detective Humphrey as to a statement (referred to by appellant as a confession) made by defendant to Detective Humphrey. Appellant assigns two reasons: (1) that the court had overruled defendant’s Motion to Produce, which called for the production of such a statement, and (2) that defendant was under the effects of alcohol at the time he signed the statement. As to (1), it is to be noted that there was a written Motion to Suppress “evidence obtained against” defendant on the same day (about two weeks before trial) that the heretofore mentioned Motion to Produce was filed. The Motion to Suppress referred to “the statement of defendant,” alleging that it was “given as result of coercion, threats, promise of reward and slant or trick.” No reference is made therein to the statement’s being made while defendant was under the influence of alcohol. The written Motion to Suppress was continued by the court to the date of trial, to be heard by the trial judge, a different judge from the one who ordered the continuance. It appears that the trial judge never made a ruling on the written Motion to Suppress. It also appears that no action was requested on the Motion to Suppress until the prosecution sought to introduce the “statement,” at which time counsel for defendant stated:

“We move to suppress at this point in time, Your Honor. We haven’t had a chance to examine the statement. We filed a motion to produce which was overruled and we feel that without being able to see the statement — ”

At that time the court had excused the jury from the courtroom, and a “voir dire examination” of Detective Humphrey was conducted, in which both counsel for the State and counsel for defendant participated. In the voir dire examination conducted by defendant’s counsel, the witness was asked whether at the time the statement was made defendant still appeared to be under the effects of alcohol. The witness replied, “Yes, sir. He had been drinking when he come in.” The witness was then asked by counsel for the State whether defendant was drunk, and he replied, “No, sir, he was not drunk.” Thereupon counsel for defendant stated:

“Your Honor, the requirement is that it be an informed consent. And a man under the influence of alcohol is debilitated and cannot form an intelligent consent.” “THE COURT: Overrule the objection.

Before the jury returned to the courtroom, the following occurred:

“MR. PILGRIM: Your Honor, have you ruled on the motion to suppress? I believe you have?
“THE COURT: I overruled your objection. Are we ready?
“MR. PRICE: The State is ready, Your Honor.
“MR. PILGRIM: We are ready.
“THE COURT: Let the jury back in.”

Upon interrogation by the State of Detective Humphrey as a witness, no part of the written statement was offered; he was asked by defendant to read a part of the statement to the jury, which he did. In none of the testimony as to what defendant had told Detective' Humphrey, either in writing or orally, was there a confession by defendant that he killed Williams. On the contrary, defendant made it clear that defendant’s statement to Detective Humphrey was to the effect that defendant did not participate in the fight with Williams out of the Pekin Cafe. The statement of defendant to Detective Humphrey was so impressive on the point, that defendant’s counsel had Detective Humphrey read the crucial part of the statement the second time, as shown by the following:

“Q Would you please read that again slowly?
“A It says, I was standing on the corner when Johnny came out of the Kozy Room and Jessie Maner came running out after him and ran up behind him and asked Johnny, niger, what did you cut me for? And then Jessie struck Johnny with the dutch. It looked like he stuck him in the front. I believe he stuck him two times.”

It appears to us that after defendant’s counsel read the statement made by defendant to Detective Humphrey, he was pleased with it as counsel for defendant, that there was more in it favorable to defendant than there was to the State. At any rate, defendant did not press its “Motion to Suppress,” and defendant did not object to the testimony of Detective Humphrey as to the statement made by defendant on the ground that the Motion to Suppress had been denied, nor on any ground assigned in the Motion to Suppress. The ground of objection was exclusively as to defendant’s condition as affected by alcohol at the time he made the statement. It is clear that defendant was not under any such state of intoxication as to preclude the admission in evidence of the statement made by him. Carter v. State, 53 Ala.App. 43, 297 So.2d 175; Stewart v. State, 49 Ala.App. 681, 275 So.2d 360. Before the statement was admitted in evidence, there was ample proof made of its trustworthiness and voluntariness.

We find that no prejudicial error occurred in connection with the admission in evidence of the statement of defendant to Detective Humphrey. The statement gives us additional ground for concern as to the question whether there was compliance with due process as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, as previously discussed, for the statement of defendant is in line with the testimony of Willie Shelby presented on the Motion for New Trial in this case on the question whether defendant fatally stuck Williams in front of the Pekin Cafe, and underscores the fact that our action in this case should expressly show, as we herein state, that it is without prejudice to a request for post-conviction relief by an appropriate separate and distinct proceeding. Other than as to the merit of the point made by appellant as affected by the principle set forth in Brady v. Maryland, supra, which is not within our authority to decide on this appeal, we find that there was no error prejudicial to defendant on the trial of the case, and that the judgment of the trial court 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.

      . The remand for retrial was as to the punishment only, but this fact is not of significance in' the instant case.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Tommy LOWERY.
    SC 1947.
    Supreme Court of Alabama.
    Dec. 10, 1976.
   FAULKNER, Justice.

WRIT QUASHED.

All the Justices concur.


author: TYSON, Judge.

text:
    Patricia Ann McGINNIS v. STATE.
    7 Div. 439.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Rehearing Denied Aug. 24, 1976.

      Wilson, Propst & Isom, and Gordon F. Bailey, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   On Rehearing

TYSON, Judge.

The appellant, Patricia Ann McGinnis, was indicted on a charge of perjury. The Jury’s verdict and judgment set sentence at three years imprisonment.

The appellant testified as an alibi witness for one Gary Smith at a rape trial that Smith had been with her from the early afternoon of December 20, 1974, until the early morning of December 21, 1974, and that they had driven around and had been near the Hubbard Oil Company site on U.S. Highway 78.

As part of this alibi testimony, the appellant also stated that she and Smith had gone by a place known as the “Beach Ball,” and that Smith had not left her presence during this period of time. This sworn testimony from the rape trial was placed in evidence at the perjury trial through Mrs. Mary Lambert, Official Court Reporter.

George L. Honeycutt testified that he lived in the City of Anniston, Alabama, on December 20,1974. He testified that Patricia Ann McGinnis had relieved him at their place of employment, the “Zippy Mart,” about 7:00 p. m. that evening. He stated that as this store was open twenty-four hours a day, he and Mrs. McGinnis took turns relieving each other.

Jim Bankston testified he was a supervisor of “Zippy Mart of Alabama.” He identified his payroll record and work sheet for Store No. 657, in Anniston, where Mrs. McGinnis was employed. He stated that this record showed Mrs. McGinnis at work on the evening of December 20, 1974, and that she had signed the time chart, so indicating. This record was then placed in evidence.

I

This cause was affirmed on June 15,1976, without opinion.

Because the Supreme Court of Alabama rendered an opinion in Oglesby v. State, 337 So.2d 381, on July 2, 1976, we render this opinion in the instant case.

The testimony of the State’s witnesses clearly established the “corpus delicti of perjury” by showing Mrs. McGinnis’s whereabouts on the evening of December 20-21, 1974. Bradford v. State, 134 Ala. 141, 32 So. 742.

Clearly the proper corroboration was here established by the State’s witnesses. Knight v. State, 30 Ala.App. 97, 1 So.2d 668, cert. den. 241 Ala. 152,1 So.2d 669; Oglesby v. State, supra.

The prospective operation of Oglesby, supra, does not affect this case.

We have carefully examined this record and find the same free of error. The judgment is therefore

AFFIRMED, APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Patricia Ann McGINNIS.
    SC 2041.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   MADDOX, Justice.

WRIT DENIED.

HEFLIN, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: PER CURIAM.

text:
    Aaron HOWARD v. STATE.
    3 Div. 428.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.
    Edward B. Raymon, Tuskegee, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   PER CURIAM.

The appellant, Aaron Howard, was indicted on a charge of first degree murder, convicted of first degree murder and sentenced to be imprisoned in the penitentiary for a term of life imprisonment.

There is no conflict in the evidence presented in the trial court that on the morning of July 5th, 1975 appellant shot one William James Avery with a .25 caliber pistol and as a result thereof Avery died.

The state’s evidence was sufficient to sustain a verdict of first degree murder. The appellant admitted the shooting and relied on self defense and presented evidence to the jury sufficient to sustain his defense, if believed by the jury.

The appellant was represented by counsel of his choice at all stages in this cause in the trial court, and is now represented in this Court by the same counsel appointed by court order.

This appeal was submitted to this Court on briefs. The appellant in his brief complains that the trial court committed prejudicial error in refusing to give at his request the following written jury instructions:

“Charge No. _JL
The Court charges the jury that the defendant may offer proof of his good character, and such proof taken in connection with all the evidence in the case may be sufficient to create a reasonable doubt of the defendant’s guilt.”
“Charge No. _8_
The court charges the jury that in all criminal cases under the law of our land every man on trial has the right to offer his standing in the community before the jury, not for the purpose of disproving that he did not do a thing, or that he did do a thing, but if he can show a good reputation it is for the jury to look at that reputation in connection with all the rest of the evidence to say whether or not a man of such standing would have done the thing he is charged with having done, and, if after considering all the testimony the jury have a reasonable doubt as to whether a man would do what he is charged with having done, bearing that good reputation, if the jury believe that has been established, then that may be sufficient to generate a reasonable doubt.”

Instructions Numbers 5 and 8 deal with the character of the appellant. During the trial questions were propounded to two witnesses by the appellant with reference to the general reputation and character of the appellant. The state objected to all these questions and the trial court correctly sustained the objections, and on one occasion when the witness answered a question after the state objected to it and before the trial court could rule on the objection the court excluded the answer from the consideration of the jury. The appellant in his brief does not complain of these rulings by the lower court.

There is in the record testimony of two witnesses for the appellant about the following: How long they had known him; where they lived; where appellant lived; that they were familiar with him; that they did not know of any trouble he had had; that they had had no problems with him; the kind of work he did; how long he had worked; they knew his family; and that he was a good worker.

In the case of Charles Frank Jones v. State, 53 Ala.App. 690, 304 So.2d 34, this Court said:

“It probably should be said also that character, good or bad, is not provable by one’s opinion or knowledge as to the character of another, but only, as a general rule, by evidence of general reputation. Stearns v. State, 266 Ala. 295, 96 So.2d 306, Wilcutt v. State, 41 Ala.App. 25, 123 So.2d 193, cert. denied, 271 Ala. 315, 123 So.2d 203.”

We have searched the record before us and do not find any evidence of the character, good or bad, of the appellant.

It is not error for a trial court to refuse to give an abstract instruction to a jury at the request of a defendant. Bill Kemp, Jr. v. State Of Alabama, 278 Ala. 637, 179 So.2d 762; Drake v. State, 51 Ala. 30; Walker v. State, 33 Ala.App. 614, 36 So.2d 117; Caldwell v. State, 36 Ala.App. 229, 55 So.2d 211; 256 Ala. 466, 55 So.2d 213.

We hold that in the absence of evidence of the character of the appellant, in the record, charges numbered 5 and 8 are abstract and it was not prejudicial error for the court to refuse to give them to the jury.

There being no other rulings of the trial court complained of in appellant’s brief, we have examined carefully the entire record, including:

(a) The indictment;
(b) The Court Reporter’s certificate;
(c) The Circuit Clerk’s certificate;
(d) The judgment entry;
(e) All the evidence; and
(f) The actions of the trial judge.

We find from such examination that there is no error in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, 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.

Affirmed.

All the Judges concur.


text:
    Ex parte Aaron HOWARD.
    SC 2104.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   MADDOX, Justice.

WRIT DENIED.

HELFIN, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: JOSEPH A. COLQUITT, Circuit Judge.

text:
    Charles Alexander LUCY v. STATE.
    1 Div. 674.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.

      Arthur B. Briskman, Mobile, for appellant.
    William J. Baxley,' Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   JOSEPH A. COLQUITT, Circuit Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment.

The evidence as produced by the State tended to establish the following facts. Around 11:00 or 11:30 P.M., on June 18, 1975, appellant and several other men gathered along Rose Street in Citronelle, Alabama. Discussions of previous fights between members of the group began, and as the discourse continued, arguments resulted.

At some point during the argument, appellant engaged in disputes with both the deceased, Eddie Hughes, and another party, Willie Roberts (or Robinson). The conflict between appellant and the deceased was terminated by the intervention of Edward Hughes, the brother of the deceased. During the argument with Roberts, however, appellant was cut on the back of his right shoulder. This injury was apparently a knife wound inflicted by Roberts.

Appellant thereupon departed from the immediate vicinity of the gathering and proceeded to a relative’s house across the street to examine his wound. After a brief interval, appellant then left the relative’s house and went to his own house a short distance away. While at his house, appellant procured from a closet a loaded shotgun belonging to his brother. From there, he then proceeded back to the site where the group had gathered.

Before he reached the group, appellant placed the shotgun at the corner of the house in front of which the group had gathered. As appellant reached the group, he inquired as to the whereabouts of Willie Roberts. Roberts had left the area and appellant was informed of this.

Appellant then displayed his wound to the group and he was advised to see a doctor. Turning to the deceased, Eddie Hughes, appellant began asking the deceased why he had given Roberts the knife with which to cut him.

The deceased explained to appellant that he had not given Roberts the knife and in proof thereof he attempted to show appellant that his knife was clean. Appellant’s reply to the deceased was, “I’m going to kill you.”

Appellant proceeded to the corner of the house where he had placed the shotgun, picked the shotgun up, and turned toward the deceased, who had followed appellant. The deceased was still trying to convince appellant that he had not given Roberts a knife. As the deceased approached, appellant fired the shotgun, hitting the deceased in the midsection. The deceased fell to the ground and called for help, but as other members of the group attempted to provide some aid, appellant warned them not to come near.

One Alonzo Feagin thereupon got into a car and backed it out onto the road. Two others jumped into the car and Feagin began to move the car up the road. Appellant turned his shotgun and fired at the car. Feagin was hit and the car careened off the road and into a ditch. Both the deceased and Feagin died from the gunshot wounds.

Leaving the scene of the shootings, appellant returned to his home. From there, his mother took him to a doctor for treatment of his wound and then to the police station in Citronelle.

While at the police station, appellant was informed of his right to counsel and his right to remain silent by reading the Miranda warning. Appellant waived these rights by signing a waiver form. Appellant then made a statement admitting the shootings.

Appellant was indicted, tried, and convicted for unlawfully and with malice aforethought killing Eddie Hughes by shooting him with a shotgun.

The above facts are taken from the record on appeal. Appellant, however, made other assertions in his brief on appeal which cannot be substantiated by the record. These assertions are as follows:

“During voir dire examination of the venire, the Court asked if any member of the jury was related by blood or marriage to any one of the prospective witnesses whose names the Court had read (R. iv, v). The Court also asked if any member of the jury knew of any reason whatsoever why he could not fairly and impartially try this case based upon the evidence that is heard in the courtroom (R. v). Herman Edward Beard, who ultimately served on the petit jury, did not respond to either of these questions (R. v, 5). Nowhere in the voir dire examination of the venire did the Court ask if any members of the jury were related by blood or marriage with the deceased or members of his family (R. i-v).”

Furthermore, in his argument on appeal, appellant also asserted the following:

“One of the members of the jury was related to the deceased, to a subpoenaed witness and to an individual whose death was brought out through the entire course of the trial having allegedly been caused by the Appellant (Deposition of Herman Edward Beard) and nowhere in the voir dire of the jury did the Court or counsel for the Appellant request the qualification of the jury as to any relationship by blood or marriage to the deceased or members of his family (R. i-v).”

The citations for these allegations, designated “R.,” and the “Deposition of Herman Edward Beard,” are not contained in the record, nor is there any other indication in the record that these alleged occurrences took place. Upon these unsupported statements, appellant maintains that he was denied his constitutional right to a fair trial by an impartial jury.

Appellee argues that since there is no transcript of the voir dire examination contained in the record and, since the alleged facts of kinship are otherwise not revealed by the record, the matter of irregularities in the voir dire examination is not properly reviewable on appeal. It is maintained that the court is bound by the record.

As a general rule, it has been firmly established that the reviewing court may only consider matters contained in the record as it is filed on appeal. Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976); Blakely v. State, 28 Ala.App. 574, 190 So. 102 (1939). This principle often finds expression in the phrase that the appellate courts are “bound by the contents of the record.” Butler v. State, 285 Ala. 387, 393, 232 So.2d 631, 636, cert. den. 406 U.S. 939, 92 S.Ct. 1807, 32 L.Ed. 140 (1972). See: Williams v. State, 52 Ala.App. 207, 290 So.2d 668 (1973), cert. den. 292 Ala. 758, 290 So.2d 672 (1974).

As a corollary to this rule, the appellate court cannot consider any matter outside of the record on appeal. Dates v. State, 282 Ala. 457, 212 So.2d 845 (1968). Therefore, facts asserted in the brief of the appellant or of the appellee, which cannot be ascertained from the record, cannot be reviewed. Dockery v. State, 269 Ala. 564, 114 So.2d 394 (1959); Walker v. State, 223 Ala. 294, 135 So. 438 (1931); Boyd v. State, 50 Ala.App. 394, 279 So.2d 565 (1973); Thomas v. State, 49 Ala.App. 537, 274 So.2d 93 (1973); Hayes v. State, 33 Ala.App. 364, 33 So.2d 744 (1948).

In Thomas, supra, upon appeal, the appellant therein contended that the trial court committed reversible error in denying his motion for a mistrial based on the conduct of a prospective juror on her qualifying examination. Appellant, in his brief, maintained that during the court’s examination the prospective juror failed to reveal her acquaintance with the prosecuting witness and her knowledge of the facts of the case. It was further asserted that appellant had to “smoke her out” on voir dire, but that her conduct nevertheless created “ineradicable prejudice against the defendant.” Id. 49 Ala.App. at 539, 274 So.2d at 95. The court stated:

“We here can be guided only by the record before us. . . . The record is silent as to the court’s qualifying questions to the juror and her answers thereto. We are bound by the record and cannot consider statements in brief not supported by the record.”

From the foregoing authority, it can be concluded that in the present case the factual assertions made by the appellant in his brief concerning irregularities in the jury examination must be disregarded.

Appellant indicates in his brief that a sworn statement in support of the facts as asserted in his brief was to be filed with the Court_ of Criminal Appeals. By what authority this statement was to be filed was not indicated. Furthermore, appellant also indicates that a deposition of Herman Edward Beard is available to the Court. The deposition was not made part of the record. In any respect, these documents cannot be considered. Appellate courts are bound by the record on appeal, and such record may not be supplemented, impeached, or contradicted by affidavits or otherwise by matters dehors the record. Williams v. State, 52 Ala.App. 207, 290 So.2d 668 (1973), cert. denied, 292 Ala. 758, 290 So.2d 672 (1974); Colburn v. State, 40 Ala.App. 248, 112 So.2d 800, cert. denied, 269 Ala. 694, 112 So.2d 804 (1959).

Butler, supra, concerned circumstances similar to those in the present case. The attorneys for the Appellant therein submitted affidavits to the appellate court to be made a part of the record on appeal. In substance, these affidavits alleged that at the voir dire examination of prospective jurors, several jurors were excluded on the grounds that they opposed the death penalty. Neither the record nor the transcript of evidence contained any matter concerning the voir dire examination. In refusing to consider the affidavits, the court noted that “[e]x parte affidavits of the nature in question cannot be made a part of the record . . . Id., 285 Ala. at 393, 232 So.2d at 636.

During the trial of appellant, the prosecution introduced evidence of another crime which appellant allegedly committed and which was not charged in the indictment. This evidence was admitted over the objection of appellant.

The evidence in controversy, as produced by the prosecution, tended to show that appellant, after having shot Eddie Hughes, proceeded to commit a subsequent crime by the shooting and killing of Alonzo Feagin. The prosecution introduced this evidence by the testimony of the detectives investigating the homicide of Eddie Hughes, by the use of a photograph depicting the body of Alonzo Feagin, and by the testimony of various witnesses to the homicide of Eddie Hughes. The prosecution also referred to the death of Feagin in its closing argument.

Appellant contends that evidence of the second homicide, which was allegedly committed by him, was prejudicial to the appellant, and that the admission of such evidence over appellant’s objection was error requiring reversal. Appellant argues that this evidence prejudiced and inflamed the jury so that a fair and impartial decision was not possible. Furthermore, it was claimed that the introduction of such evidence effectively put the appellant on trial for two crimes, one of which was not in the indictment.

As a general rule, in the criminal prosecution of a person for the alleged commission of a particular crime, evidence of other acts which of themselves constitute distinct and independent offenses is not admissible. Brantley v. State, 294 Ala. 344, 317 So.2d 345, on remand, 55 Ala.App. 717, 317 So.2d 347, cert. denied, 294 Ala. 346, 317 So.2d 348 (1975); Garner v. State, 269 Ala. 531, 114 So.2d 385 (1959); Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953); Murphy v. State, 52 Ala.App. 490, 294 So.2d 457, cert. denied, 292 Ala. 743, 294 So.2d 462 (1974); see 1 J.R. McElroy, The Law of Evidence in Alabama § 69.01, at 166 (2d ed. 1959) [Hereinafter cited as McElroy].

This rule is regarded as an application of the character rule which prohibits the State from initially proving the defendant’s bad character. The evidence when found inadmissible is considered to be relevant only for the purpose of showing the accused’s guilt via his bad character, i.e., showing a probability that the accused committed the crime for which he is being tried because his character is of a criminal nature, or because he has a criminal inclination or propensity. The use of the evidence for such a purpose is disfavored. See: Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953); Brasher v. State, 249 Ala. 96, 30 So.2d 3 (1947); McCormick, The Law of Evidence § 190, at 447 (Cleary ed. 1972) [Hereinafter cited as McCormick]; 1 McEl-roy § 69.01, at 166-67.

The apparent justification for the rule is that the introduction of evidence of other separate and distinct offenses requires the accused to defend himself against charges which do not form a part of the indictment and which the defendant is not called on to answer. Garner v. State, 269 Ala. 531, 114 So.2d 385 (1959); Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953). Alternatively, it has been suggested that the actual justification is that in the setting of a jury trial, the probative value of the evidence is outweighed by the danger of prejudice. McCormick § 190, at 447.

The general rule, however, is subject to several exceptions. If the evidence of separate offenses is offered for certain recognized purposes, the rule of exclusion becomes inapplicable. Thus, it has been stated:

“Evidence of other distinct criminal acts is admissible when relevant to the crime charged, as bearing on scienter, intent, motive, res gestae, or to establish the identity of the accused . . . . The authorities also recognize such an exception to show system or plan usually to identify the accused or to show intent.”

Garner v. State, 269 Ala. 531, 533, 114 So.2d 385, 386 (1959).

A more complete listing of these purposes had been given as follows:

“ ‘[The] exceptions fall under the following general divisions: (1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes.’ ”

Murphy v. State, 52 Ala.App. 490, 494, 294 So.2d 457, 461, cert. denied, 292 Ala. 743, 294 So.2d 462 (1974), quoting Wharton, Criminal Evidence § 31. For purposes of the present case, this list is sufficient, although variations and additions do exist. See: McCormick § 190, at 448-51; 1 McElroy § 69.01, at 167-70.

Whatever exception is argued, however, it is clear that the evidence is only admissible if relevant to the crime charged. Garner, supra.

In the present case, appellee has asserted that the res gestae exception is applicable. Admissibility for this purpose does make a strong case, but other exceptions also are available. See: 1 McElroy § 70.12, at 183-88. Examination will therefore be made of all purposes for the evidence, which would apply in these circumstances.

“Evidence of the accused’s commission of another crime is admissible if such other crime is inseparably connected with, or is a part of the res gestae of the now-charged crime; or, if such other crime and the now-charged crime are parts of one continuous transaction or one continuous criminal occurrence.” 1 McElroy § 69.01(3), at 167. This principle has been firmly established by the Alabama courts. See: e.g., Wilson v. State, 268 Ala. 86, 105 So.2d 66 (1958); Jackson v. State, 229 Ala. 48, 155 So. 581 (1934); Wilcutt v. State, 41 Ala.App. 25, 123 So.2d 193 (1960).

What constitutes the res gestae or the same transaction, however, must be factually determined — no definition could encompass every set of circumstances which may be encountered. Nevertheless, an examination of the cases which rely on the res gestae exception reveal a certain pattern of treatment for similar sets of facts. To be noted are those patterns applicable to the present case.

Recurring in several cases are the circumstances in which the defendant in a homicide prosecution killed another person at the same time and place. Proof of the crime not included in the indictment is allowed as part of the res gestae. Smarr v. State, 260 Ala. 30, 68 So.2d 6 (1953) (Evidence of the murder of the deceased’s two sisters which occurred within a short time of the homicide being prosecuted was admitted.); Kilpatrick v. State, 257 Ala. 316, 59 So.2d 61 (1952) (Evidence of the complete incident — a gunfight in which the deceased and two others were killed — was admitted in the trial for the murder of the deceased.); Granberry v. State, 182 Ala. 4, 62 So. 52 (1913) (Following an argument, defendant shot and killed the deceased. Defendant then pursued and killed a witness to the homicide. Evidence of the full transaction was admitted at the prosecution for the murder of the deceased.); Hoback v. State, Ala.Cr.App., 338 So.2d 439 (8 Div. 809, June, 1976) (Photographs of the deceased and another victim slumped into the deceased’s lap were admitted.). See: Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955); Grissett v. State, 241 Ala. 343, 2 So.2d 399 (1941).

The lapse of time between the two crimes will present no difficulty, as evidence of the collateral crime has been admitted when the crimes were almost simultaneous, Kilpatrick v. State, 257 Ala. 316, 59 So.2d 61 (1952), and when the sequence and time of the offenses could not be determined, Smarr v. State, 260 Ala. 30, 68 So.2d 6 (1953). A longer interval would not prevent a finding that the two crimes were within the same transaction.

As a final note to the res gestae exception it is interesting to observe the conclusive language of the court in Kilpatrick, supra:

“Sometimes as a part of a single transaction more than one offense is charged to have been committed. . . . [I]f in that occurrence [the accused] shoots different persons by different discharges of his firearm, an offense can be fastened separately as to each person so injured or killed, although there was but one transaction, and upon a trial for one such offense the whole transaction is admissible.”

McElroy, in his examination of Alabama evidence cases, discovered four other purposes for the introduction of evidence of other crimes in a homicide prosecution. 1 McElroy § 70.12, at 183-88. Two of these purposes, to show a plan, design, scheme, or system and to rebut the accused’s evidence of his good character, would at best make weak arguments for admissibility in the present case. However, two other purposes, to show intent and to show motive, require consideration.

When an issue arises in the prosecution for an offense as to whether the accused acted intentionally or accidentally, the accused’s commission of another crime tends to show that the actions were intentional. 1 McElroy § 70.12(2), at 184. Thus, in Grissett v. State, 241 Ala. 343, 2 So.2d 399 (1941), evidence of the successive killings of three persons was allowed as probative of the accused’s intent.

To show motive is also a frequent exception to the general rule. In this context, motive is employed to define the feeling or passion of the accused, which propelled him towards the commission of the charged crime. 1 McElroy § 70.12(4), at 185. Evidence of the collateral homicide is properly admitted for such a purpose. Hardy v. State, 51 Ala.App. 489, 286 So.2d 899 (1973).

Earlier cases are in agreement with the use of such evidence to show motive, although the formulation of the purpose is not the same. Thus, it is often said that the evidence is admissible to show that the accused was . . in a reckless, dangerous, malicious mood,” Sims v. State, 253 Ala. 666, 46 So.2d 564 (1950), to show the “. . . hostile spirit which actuated defendant.” Granberry v. State, 182 Ala. 4, 62 So. 52 (1913), or to “. . . throw light upon the animus of the perpetrator.” Seams v. State, 84 Ala. 410, 4 So. 521 (1887).

In summation, the foregoing authorities clearly indicate that the evidence of the shooting and killing of Alonzo Feagin would be admissible in the prosecution for the homicide of Eddie Hughes. Once the evidence was admitted, further proof of the collateral crime and arguments concerning that evidence would also be proper. See: Granberry, supra.

We have reviewed the entire record as required by T. 15, § 389 of the Code of Alabama 1940, recompiled 1958, and find no reversible error therein.

The foregoing opinion was prepared by Honorable JOSEPH A. COLQUITT, Circuit Judge, temporarily on duty on the Court of Criminal Appeals pursuant to subsection (4) of § 38, T. 13, Code of Alabama 1940, recompiled 1958; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.

      . Subsequent to the writing of this opinion, the author received a transcript of a hearing held in the Mobile Circuit Court on July 30, 1976, concerning this matter. This transcript is not a part of the record, and cannot be considered.


author: EMBRY, Justice.

text:
    Ex parte Charles Alexander LUCY.
    SC 2223.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   EMBRY, Justice.

WRIT DENIED.

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


author: CLARK E. JOHNSON, Circuit Judge.

text:
    Willie SHELBY, alias v. STATE.
    3 Div. 479.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 2, 1976.
    George W. Cameron, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State, appellee.
   CLARK E. JOHNSON, Circuit Judge.

Appellant was convicted of rape and sentenced to a term of twenty-five years imprisonment and now brings this indigent appeal.

The evidence of the State tends to show that appellant in the night-time gained entrance to a residence where two young ladies were alone; he was armed with a knife; he then forcibly had relations, first with the older of the two girls who was seventeen years old and named in the indictment and immediately following had sex relations with the younger girl, age eleven, then again had sex relations with the older girl.

Appellant contends for a reversal because of the improperly admitted evidence in a single instance and, also, because of a statement of the district attorney in his argument to the jury. No other error is claimed.

During the trial, in the questioning of one of the investigating detectives by the district attorney, the following occurred:

“Q. What did you find when you arrived at the scene?
“A. The father of [the seventeen year-old] was there and this [eleven year-old] girl, a young black female, and [the seventeen year-old] and said they had been raped—
“MRS. WEISS: Your Honor, I object unless everybody that he has mentioned is going to testify.
“THE COURT: Well, I overrule your objection. This is part of his investigátion. I overrule your objection.” [Names omitted and bracketed material added.]

The district attorney then changed his method of questioning and proceeded with no details of the complaint being revealed.

It is noted there was no motion to exclude, the objection was conditional, and that both the young ladies referred to later testified fully in the case on both direct and cross-examination. The statement of the witness was not responsive and there was no motion to exclude; hence, there was no error on the part of the trial court. Woods v. State, 54 Ala.App. 591, 310 So.2d 891; Miller v. State, 48 Ala.App. 28, 261 So.2d 447.

In addition, we call attention to Waters v. State, 55 Ala.App. 646, 318 So.2d 342, wherein it is stated as follows:

“The state may on direct examination of the prosecutrix prove the bare fact that she made immediate complaint of being raped and when and to whom, and she may be corroborated by the person or persons to whom she complained as to the same fact.” [Citations omitted.]

In this case it is impossible to separate the evidence of the two crimes testified about, and evidence of the alleged conduct of the appellant, on the occasion in question, toward either or both of the girls is admissible.

In his final argument, the district attorney stated as follows:

“MR. PRICE: When this case is over if you find the defendant guilty, I sure would like for that verdict, that decision, to beat me back to Young Forte Village to tell others who perhaps might commit the same type crime to tell the people in Young Forte Village that no longer will you be allowed or be able to go out and rape little young girls seventeen and eleven years old out in Young Forte Village or any other village or any other place in the City of Montgomery—
“MRS. WEISS: Your Honor, I object. That is improper argument.
“THE COURT: You mean as to the eleven year old?
“MRS. WEISS: Yes, sir.
“THE COURT: All right. I will instruct the Jury to disregard that statement.
“MR. PRICE: I apologize, Your Honor.”

We first note that the trial court did everything which the appellant’s attorney asked. Although the use of the term “all right” has been condemned for the purpose of indicating a ruling, the trial court proceeded to instruct the jury to disregard the statement and no other relief was requested or sought. The trial court did not commit error. Espey v. State, 270 Ala. 669, 120 So.2d 904. It further appears that this statement did not go so far as the statement alluded to in the ease of Barnett v. State, 52 Ala.App. 260, 291 So.2d 353.

The court has carefully reviewed the entire record, according to its duty under T. 15, § 389, Code of Alabama 1940, Recomp. 1958, and finds no reversible error.

The foregoing opinion was prepared by Hon. Clark E. Johnson, Jr., Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, T. 13, Code 1940 as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.


text:
    Ex parte Willie SHELBY.
    SC 2178.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   EMBRY, Justice.

WRIT DENIED.

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


author: S. A. WATSON, Jr., Circuit Judge.

text:
    Carol HARRISON v. STATE.
    4 Div. 349.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.

      Marlin V. MacLaughlin, Jr., and Walter L. Allen, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   S. A. WATSON, Jr., Circuit Judge.

The appellant was indicted on a charge of murder in the first degree, convicted of murder in the second degree, and sentenced to imprisonment for ten years.

I.

The deceased was the husband of the defendant and the major thrust of the defense, as indicated by examination of the witnesses, was that the mortal gunshot wound was self-inflicted. In order to overcome in regard to that tactic the State presented evidence that it was the motive of the defendant to kill her current husband, the deceased, in order to be free to return to a former husband and incidently to receive the proceeds of a small insurance policy. To prove motive the State put questions to the former husband concerning letters written to him by the defendant. Numerous objections were made on best evidence rule grounds and were duly sustained by the trial court. Oblique efforts to elicit the contents of the letters were largely thwarted by the trial court, as were efforts on the part of the State to satisfy the best evidence rule by establishing the lost document exception. However, the same witness in later testimony was permitted, without objection, to answer that the appellant had asked him in in person to help her kill the deceased and had asked him to acquire drugs for her to use in poisoning the deceased.

The appellant’s assertions that the effects of the repeated attempts of the prosecutor to introduce the contents of the letters prejudiced the case are without merit.

It is well established that though motive is not an essential element of murder it is relevant and is therefore a proper subject of inquiry. Brothers v. State, 236 Ala. 448, 183 So. 433 (1938); King v. State, 19 Ala.App. 153, 96 So. 636, cert. den.; Ex parte King, 209 Ala. 446, 96 So. 639. It follows that where the inquiry is proper and, as in this case, comes to fruition through later legal questioning about a subsequent conversation, there can be no prejudice because of earlier efforts to elicit information about a duplicate previous occurrence. This holding obtains a fortiori when the trial court has sustained all timely objections to the questions which seek to establish the content of a document in contravention of the best evidence rule.

The trial court additionally, prohibited efforts to establish the lost document exception to the best evidence rule in the following manner: (Tr. pp. 144-145)

“MR. ALLEN: We object to reference to letters. The letters or documents or documents of any sort, they are the best evidence in and of themself, (sic) and otherwise it would be heresay—

“MR. CAIN: Let me recast the question. Do you have the letters?
“A. No, Sir.
“THE COURT: Sustain your objection.
“Q. Do you know what became of the letters?
“A. No, Sir, I don’t.
“Q. All right, sir. Do you recall the content of these letters, or what they contained or what they were in reference to?
“MR. ALLEN: We object.
“THE COURT: Sustained.”

This prohibition was in the appellant’s favor and was, in point of fact, more than the appellant was due under the law. If the trial court had so chosen it could have correctly allowed the State to establish the past existence of the written documents and their subsequent loss or destruction, then, after those facts were established, the court could have allowed oral statement of the content. Hurt v. State, 23 Ala.App. 369, 125 So. 787. The availability of that course of action to the trial court must temper this court’s opinion on the issue of the ultimate harm of the prosecutor’s repeated questioning.

Our appellate courts have held that although unfounded inflammatory remarks by the prosecution may result in irreparable prejudice, no iron-clad rule exists by which the prejudicial qualities of improper remarks of counsel can be judged. Such depends on the issues, parties and general circumstances of the particular case. Anderson v. State, 209 Ala. 36, 95 So. 171 (1922); Langley v. State, 32 Ala.App. 163, 22 So.2d 920 (1945); Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944); Madison v. State, 55 Ala.App. 634, 318 So.2d 329 (1975).

No one has a better vantage point from which to observe the parties, the issues and the general circumstances than the trial court and great weight should be accorded its determination. As to the instant situation motive was a relevant subject of inquiry; the content of letters stating a motive in the accused is a proper source of proof; in the absence of the letters the State had the right to seek to establish their content by parol evidence; and information having the identical impact as that sought earlier by the State was later given without objection. It is the opinion of this court that the trial court was not in error in this instance.

II.

The appellant additionally asserts that her marital status subsequent to the death of the deceased and at and prior to time of trial was not a proper subject for inquiry by the prosecution. Marital status subsequent to a homicide is relevant in the trial as bearing on the motive of the accused. Luekie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. den., 294 Ala. 764, 318 So.2d 341 (1975).

III.

The appellant maintains that the trial court erred in overruling her objections to statements made by the prosecutor in summation which tend to denigrate the character of the appellant when the appellant’s character was not placed in evidence by the defense.

All statements by a prosecutor which tend to convince a jury that one has committed murder must, as a natural byproduct, also be harmful to the reputation of the accused. But that is the prosecutor’s job. Error results only when a prosecutor makes a frontal attack on the character of the accused when there was no issue of character in the trial and from that attempts to extrapolate for the jury that one of such poor character is undoubtedly the type to commit the crime charged. Such an attempt may or may not have occurred here. When objection was made there was no statement placed in the record as to the substance or nature of the argument to which objection was taken. Therefore no error may be predicated upon the allegedly improper remarks. The appellate courts of this state have steadfastly held that where the record does not reveal the statement to which objection is taken no error may be predicated thereon. Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973); Embrey v. State, 283 Ala. 110, 214 So.2d 567 (1968); Argo v. State, 282 Ala. 509, 213 So.2d 244 (1968).

IV.

The appellant, subsequent to conviction, moved for new trial stating as a ground that it was discovered that the verdict was a compromise verdict and not unanimous. The trial court struck that ground and denied the motion for new trial and such ruling is assigned as error.

In support of the stated ground the appellant filed an affidavit of the father of one of the defense counsel. The affidavit gave a rendition of a conversation the affi-ant had had with the jury foreman subsequent to the verdict. It is noteworthy that the affidavit was not that of the foreman but rather of one who had conversed with the foreman and later related the conversation. It is further noteworthy that the portions of the affidavit which are in derogation of the verdict are merely a relation of the conclusions and suppositions of the affiant.

The following is a quotation from the affidavit:

“Mr. Wells stated that when the jury left for the night on the day of March 5,1975 the vote was eight to four for acquittal. The opinions at that time appeared to be based on the evidence presented. Mr. Wells stated that on the morning of March 6, 1975, a vote was taken which was nine to three for guilty. Mr. Wells stated that he was curious as to the change in thinking. After discussion, it was apparent to him that the jury members felt that the defendant was not guilty of the crime charged, but they felt she knew enough about it and the circumstances that she should have some punishment for her conduct and knowledge .” (Emphasis supplied)

The affidavit is insufficient as a matter of evidence and was improperly filed as a purported statement of a juror about the jury’s deliberations tending to challenge the verdict, and it was therefore properly stricken by the trial court. Alabama Fuel & Iron Co. v. Rice, 187 Ala. 458, 65 So. 402; Reed v. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 237.

It is unquestioned, due to enactment of the legislature, that where the elements of a lesser found offense are essential to the original and greater charge the jury is empowered to render a verdict for the lesser offense. Code of Alabama 1940, recompiled 1958, T. 15 § 323; Jarnigan v. State, 24 Ala.App. 153, 132 So. 48; Phillips v. State, 38 Ala.App. 102, 76 So.2d 785.

Moreover, under the evidence in the case the defendant was legally entitled to have the jury instructed on the offense of murder in the second degree. It would have been erroneous for the trial court to have failed to do so. A defendant is entitled to an instruction on lesser offenses included in the original indictment if there is any reasonable theory from the evidence which would support the position. Weldon v. State, 50 Ala.App. 477, 280 So.2d 183 (1973).

In Edwards v. State, 33 Ala.App. 386, 34 So.2d 173, and in DeGraaf v. State, 34 Ala. App. 137, 37 So.2d 130, this court stated that neither § 323 of T. 15, mentioned above, nor T. 14, § 42, Code of Alabama, supra, can be construed to vest in the jury a pardoning power. That case is distinguishable from this applying the reasoning processes outlined in Gautney v. State, 36 Ala.App. 90, 53 So.2d 595, cert. den., 256 Ala. 73, 53 So.2d 599, since in Edwards the court was dealing with facts wherein the sole question before the jury was identity rather than the proof of the essentials of the time.

Since premeditation is a state of the mind and rarely susceptible of direct proof, in all charges of first degree murder that element must always be a question for the jury, and therefore where an instruction on first degree murder is correct so also is a charge on second degree. If then the instruction was proper, and it went to the jury without exception of the appellant, the jury was within the bounds of legality in finding guilt of the offense under the provisions of Title 15, Section 323. Certainly a review of the transcript shows sufficient evidence upon which to base a conviction for murder in the second degree.

The trial court assured itself of the unanimity of the verdict by asking each individual juror if the verdict reflected his individual judgment of the case. A juror who responds in the affirmative to such question should not be later heard to impugn the verdict and certainly not by mere conclusions and hearsay.

The conclusion therefore is that the instruction of the court was proper on second degree murder; that the jury verdict was supported by the evidence; that the verdict was unanimous; that the method of challenge to it was insufficient as a matter of law; and that the affidavit in support of the challenge was insufficient as an eviden-tiary matter, and therefore no error was committed in the trial court’s exercising its discretion to deny a new trial.

V.

The court has considered the entire record under Code 1940, T. 15, § 389, including the following:

(a) The clerk’s certificate;
(b) The court reporter’s certificate;
(c) The statement of the organization of the court;
(d) The indictment (caption, charge, conclusions, and required endorsements);
(e) Judgment entry (arraignment, presence of counsel, empanelling of the jury, verdict, adjudication of guilt, allocutus, sentence and notice of appeal);
(f) Proceedings on the motion for new trial; and
(g) Each ruling of the trial judge adverse to the appellant (including without limitation the written charges refused appellant, and appellant’s exception to the oral charge to the jurors).

From this examination the Court concludes that error is not made to appear.

The foregoing opinion was prepared by Honorable S. A. Watson, Jr., Circuit Judge, temporarily on duty on the Court of Criminal Appeals pursuant to subsection (4) of § 38, Title 13, Code of Alabama 1940, recompiled 1958; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.


author: ALMON, Justice.

text:
    Ex parte Carol HARRISON.
    SC 2237.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   ALMON, Justice.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Clifford BAKER v. STATE.
    4 Div. 361.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.

      Myron H. Thompson, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of possessing heroin as charged in the indictment. The Court fixed his punishment at seven years imprisonment in the penitentiary. Prior to arraignment he was found to be indigent and counsel was appointed to represent him during arraignment and the trial. He pleaded not guilty. After conviction he was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Appellant raises two issues on this appeal in which he contends he is entitled to a reversal, (1) that appellant’s person was searched without probable cause and without a search warrant, and (2) the State struck all blacks on the strike list panel.

We will answer these contentions in the order presented.

Lamar Hadden, an enforcement agent of the Alabama ABC Board, who was assigned to the Alcohol and Drug Division, testified that at approximately 4:00 p. m., on December 3, 1974, he received a telephone call from an informer who said he had seen Clifford Baker, appellant, with heroin on his person and that appellant was with one Frank Jackson in a blue 1970 Buick automobile in front of Johnson Homes Apartments where appellant lived. Hadden further testified that he had known appellant for several years. The informer told Hadden that appellant and Frank Jackson were going to deliver the heroin from Jackson’s home to 211 Adams Street. The informer told Had-den that both Jackson and appellant had heroin on their persons and they were in a parking lot in front of the residence of appellant.

Hadden stated that his informer was a reliable and creditable person who had furnished him good information in the past that proved to be entirely accurate. He said the informer had previously given him information that led to the arrest and conviction of four persons charged in drug cases: Dwight Baker, Melton Foster, Johnny Johnson and Memphis Junior Jones.

Hadden further testified that immediately after getting the informer’s telephone call, he got in his automobile and was accompanied by Police Officer Wallace Williams and they started to appellant’s residence. They turned left on South Street and headed straight to the Johnson Homes Apartments when they met a 1970 blue Buick. The officers turned around and followed the blue Buick for several blocks. The traffic was heavy and they got to the three hundred block of North Cherry Street before they could get the Buick to pull over and stop. Officer Hadden went to the passenger’s side where appellant was sitting and Officer Johnson went to the driver’s side. There was a black female in the car with appellant and Jackson.

Officer Hadden ordered appellant to get out of the car and after getting out of the car the officer patted him down. Appellant had on a black leather jacket and was wearing a yellow cap. After patting him down he reached in the black leather jacket and got ten little plastic bags that were wrapped in tinfoil inside the black jacket. While holding the package in his hand, appellant grabbed the bag from the officer’s hand and ran. The officer ran after him and saw him throw the package down in the middle of the street and he kept running. The officer followed him for some distance and realized that he was unable to catch him, so he turned around and came back and picked up the package that appellant had thrown in the street. After he got back to the patrol car, he gave the package to Police Officer Wallace Williams. They then took Frank Jackson and the female occupant of the car to the Dothan City Jail. Approximately 25 minutes later Officer Hadden got a telephone call from the same informer who had told him about the heroin being in the possession of appellant and in this telephone call the informer told Officer Hadden that appellant had returned to his residence, Apartment Number 5, in the Johnson Homes Apartments. The officers secured a search warrant and went to the apartment and knocked on the door. A black female came to the door and the officer identified himself but the woman would not take off the night latch to the door. Officer Hadden pushed against the door until he broke the night latch and he and the other officers entered the apartment and they found appellant in one of the bedrooms sitting in a chair looking at television. He saw the black leather jacket from which he had taken the heroin, lying on the bed. Appellant was carried to the City Jail.

On cross-examination Officer Hadden testified that he told appellant that he was under arrest at the time he patted him down and got the white powder out of his black leather jacket. He further testified that he had known the appellant since 1970 and had seen him around the Johnson Homes Apartments on several occasions. He stated that while appellant was running he lost the yellow cap that he was wearing and the officers found it.

Police Officer Wallace Williams testified to substantially the same set of facts as were related by Officer Hadden. He stated that he knew both appellant and Frank Jackson whose nickname was “Fish” and that he recognized both of them when they stopped the car; that he went to the driver’s side while Officer Hadden went to the passenger’s side. That he asked “Fish” for his identification, that is, his driver’s license and told him that he was a police officer and to put the car in park, switch it off, and for all three to get out of the car with their hands on top of the car. He further testified that while he was examining “Fish’s” driver’s license, he told him that they had information that he and appellant had heroin in the car and that they wanted to search the automobile. He further testified that when appellant got out of the car, Officer Hadden reached into one of the pockets of his jacket and removed the little plastic-like bag and was holding it in his hand looking at it when all of a sudden appellant grabbed the bag and ran and that Officer Hadden ran after him. That a short time later Officer Hadden returned to the automobile and handed him the plastic container containing some tinfoil packets. He further testified that a little later they ran a field test on the white substance in the plastic bag and determined that it was heroin. He stated that he took the ten small tinfoils in the plastic bag and folded them up and put them in a manila envelope and took this to the office and locked it in a file cabinet; that it stayed in the file cabinet until he turned it over to Sergeant McCord of the Dothan Police Department who carried it to the Crime Laboratory in Enterprise, Alabama.

He corroborated the testimony of Officer Hadden that some 25 or 30 minutes after they had carried the driver and the female passenger to the Dothan City Jail, Officer Hadden got a telephone call advising him that appellant was now back at his apartment. He testified that they secured a search warrant and went to the apartment to conduct a search. They knocked on the door and a woman named Mamie Davis to whom the apartment was rented came to the door. They identified themselves and told her they had information that appellant was there and she asked them if they had a search warrant and she was advised that they did have a search warrant, but she would not open the night latch. Officer Hadden bumped the door with his shoulder and broke the night latch and the officers went in.

Under questioning by the trial judge, Officer Williams testified that he took the package turned over to him by Officer Had-den and put it in a file locker and locked it up; that two or three days later Sergeant McCord was going to Enterprise, and Williams unlocked the file cabinet and took out the package and gave it to McCord to deliver to the Crime Laboratory in Enterprise. He further testified that the package was in the same condition when he turned it over to McCord as it was when he took it into his possession originally, except for a small portion that he took out to make the field test.

The State called Sergeant James R. McCord who testified that he was employed as a police officer with the City of Dothan and had been assigned to work on the Narcotics Detail with Officers Williams and Hadden. McCord testified that Officer Williams turned over to him the same package that Hadden had given him a few minutes after they had stopped the 1970 Buick automobile. That this package was locked in a cabinet and it was placed in his custody to carry to the Crime Laboratory in Enterprise; that he personally delivered this package to Ms. Melinda Long at the Toxicology Laboratory in Enterprise. He said the envelope was properly sealed and stamped at the time he delivered it to the Crime Laboratory and it was in the same condition when he gave it to Ms. Long as it was when he took it out of the locked file cabinet.

Ms. Melinda Long was called as a witness for the State and testified that she was employed as a criminologist at the Enterprise Crime Laboratory of the State Department of Toxicology, and that her main job was to conduct analysis to determine the contents of materials turned over to the Department of Toxicology. She further testified as to her education, experience, training and her qualifications and that during the time she had been at the Enterprise Laboratory, she had conducted approximately 100 tests on substance thought to be heroin.

She further testified that on December 5, 1974, she received from Officer J. R. McCord a manila envelope which contained ten individual packets that were in tinfoil, that she conducted an analysis on each of these ten separate foil packages and found that each contained heroin.

At this point the State rested its case and appellant made a motion outside of the presence and hearing of the jury to suppress the introduction of the heroin in evidence because appellant was not under arrest at the time the heroin was removed from his jacket; that the search was not incident to an arrest and further that the State had failed to make out a prima facie case. This motion was overruled.

The defendant called Mamie Lou Davis who testified that she rented Apartment 5 in the Johnson Homes Apartments in Do-than, Alabama, and that she had known appellant since about 1973; that he was her boyfriend and was living with her and she had a child by him. She further testified that she remembered the day that he was arrested for possession of heroin and on that date he was at her home all day long. She testified that appellant had three people come to visit him at her apartment on that date and one of them was a guy called “Fish”, a woman, and another man whom she did not know. She said that they came at about 3 o’clock and that “Fish” was talking to appellant in an angry tone of voice about some money that he previously had loaned him to pay rent and that appellant told “Fish” that he had been out of work and didn’t ,have the money to pay him at that time but that he would pay him later. All three of them got in the car and left. She was positive in her testimony that appellant did not leave the apartment all day on December 3,1974, until the police came and arrested him.

Appellant testified in his behalf and in sum, his testimony was the same as that of Mamie Lou Davis. He denied that he was in the automobile that was driven by Frank Jackson at the time it was alleged to have been stopped by the officers and he denied that he was in the car or that he had any heroin on his person. In short, his complete defense was that of an alibi. Appellant filed a motion for a new trial in which he raised the two issues heretofore mentioned in this opinion, namely, that appellant was unconstitutionally searched without a warrant and that the Court erred in permitting the State to introduce evidence respecting the fruits of that search and also that all blacks on the jury venire that was called to serve as jurors in appellant’s case were all struck by the State in violation of appellant’s constitutional rights.

The Clerk of the Circuit Court of Houston County was called as a witness in support of appellant’s motion for a new trial. She testified that she made up the jury list from which the jury was struck in appellant’s case and that she did not know the composition of the jury list at the time it was made up but at the suggestion of appellant’s counsel, she went back and checked and found that the State struck all blacks on the jury list and four white jurors. Appellant struck all white jurors until there were twelve left on the list to try appellant. At the conclusion of the hearing the Court overruled and denied the motion for a new trial.

Title 15, Section 154, Code of Alabama, provides that an officer may arrest any person, without a warrant, when a felony has been committed and he has reasonable cause to believe that the person arrested committed it.

In Fennell v. State, 51 Ala.App. 23, 282 So.2d 373, this Court held:

“Reasonable ground for belief of guilt or probable cause means more than a good faith suspicion. Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. The measure of legality of a seizure of an automobile without a warrant is whether that seizing officer has reasonable or probable cause to believe that the auto seized is carrying contraband. In cases where the securing of a warrant is practicable, it should be done, however, where seizure is impossible except without a warrant, the seizing officer acts lawfully when his actions are predicated on probable cause. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.”

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, the Supreme Court said:

“Nor can we agree with petitioner’s second contention that Marsh’s information was insufficient to show probable cause and reasonable grounds to believe that petitioner had violated or was violating the narcotic laws and to justify his arrest without a warrant. The information given to narcotic agent Marsh by ‘special employee’ Hereford may have been hearsay to Marsh, but coming from one employed for that purpose and whose information had always been found accurate and reliable, it is clear that Marsh would have been derelict in his duties had he not pursued it. And when, in pursuing that information, he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the verv trains from the very place stated by Hereford and start to walk at a ‘fast’ pace toward the station exit, Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford’s information being thus personally verified, Marsh had ‘reasonable grounds’ to believe that the remaining unverified bit of Hereford’s information—that Draper would have the heroin with him—was likewise true.
“ ‘In dealing with probable cause, * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, supra, 338 U.S. 160, at page 175, 69 S.Ct. 1302, at page 1310, 93 L.Ed. 1879. Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543.”

In the instant case the informer had proved to be reliable and creditable and had given accurate information that resulted in the arrest and conviction in four previous drug cases. The facts stated by the caller proved to be true of his own personal knowledge. The other corroborating facts are that events predicted by the caller happened almost precisely as foretold. The accuracy of his information was tested in every particular. He told Officer Hadden that he had personally seen appellant and Jackson in possession of heroin and they were in a blue 1970 Buick automobile and they were going to deliver the heroin to 211 Adams Street. This being so, we are of the opinion that the hearsay and its reliability were sufficiently shown to justify a reasonable man in believing that appellant was in possession of heroin and he and Jackson were on their way to the Adams Street address to make a sale, and they would have accomplished their mission if the officers had not stopped the Buick automobile. Clenney v. State, 281 Ala. 9, 198 So.2d 293; Cook v. State, 56 Ala.App. 250, 320 So.2d 764; Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81.

The time frame in which the officers had to get a search warrant in this case after receiving the telephone call from the informer afforded no time to seek the issuance of a search warrant. There are six exceptions under which warrantless searches have been upheld: (1) plain view, (2) consent voluntarily and knowingly given, (3) incident to a lawful arrest, (4) hot pursuit or emergency situations, (5) exigent circumstances coincidental with probable cause as in case of movables, and (6) stop and frisk situations. Daniels v. State, 290 Ala. 316, 276 So.2d 441.

If there was ever a case of “exigent circumstances coincidental with probable cause”, this is such a case. If the officers had failed to act upon the information imparted to them by the informer, they would have been guilty of imprudence and gross neglect of duty.

The peremptory striking of Negroes by the District Attorney in a particular case is not a denial of equal protection of the laws. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

We find no reversal error in the record and the case is affirmed.

AFFIRMED.

All the Judges concur, except CATES, P. J., not sitting.


text:
    Ex parte Clifford BAKER.
    SC 2212.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   FAULKNER, Justice.

WRIT DENIED.

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