text:
    Gary FRANKLIN v. STATE.
    6 Div. 642.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.
    Thomas B. Prickett, II, Oneonta, for appellant.
    William J. Baxley, Atty. Gen., and J. Anthony McLain, for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

This is an indigent appeal from a judgment that appellant was guilty under an indictment that contained a count for burglary in the second degree and a second count charging appellant with larceny. The verdict of guilt was general. The sentence was four years imprisonment.

The subject of the burglary was a building, near a gravel or sand pit, in which tools were stored for use in connection with the business of removing and selling the sand and gravel. The owner of the stolen tools and of the storehouse or building housing the tools, was James Gillilan who testified that the value of the stolen tools was $5,000.

There was ample evidence that the storehouse was burglarized on the night of January 27-28, 1977. The identity of appellant as a guilty participant was a disputed issue in the ease. The plea was not guilty.

It appears in the record that Mr. Gillilan discovered on the morning of January 28, 1977, that his storehouse, supra, or building had been burglarized. Mr. Roger Beam, an investigator with the Sheriff’s Department of Blount County, was called to the scene and was given a description of the stolen tools. Mr. Gillilan described to him some identifying marks which had been made on the wooden handles of the stolen screwdrivers, i. e., the initials “MAC” with two notches.

. Later in the morning of January 28,1977, Investigator Beam went to the Roger Franklin residence with two police officers, Early Fowler and Ezra Poole. Roger Franklin was a brother of appellant. The officers were on a mission to investigate the burglary and discover possible leads or clues as to the guilty parties. They did not have a search warrant. Their presence on the premises of Roger Franklin was investigative as we view the record.

When they entered the premises they noticed three motor vehicles in the yard. One of them was a white Oldsmobile, which testimony from the record indicates belonged to appellant. Mr. Beam testified that as he passed the Oldsmobile, enroute to the dwelling house, he noticed a screwdriver with marks on it as indicated by Mr. Gillilan. The tool was lying on the back floorboard of the Oldsmobile in plain view. Suffice it to say that Mr. Gillilan, when shown the screwdriver by Mr. Beam, identified it as his property.

After the discovery of the screwdriver, one of the officers obtained a search warrant, and in the company of other officers returned to the Franklin residence. The officers searched the premises, but did not find any more of the stolen property.

However, another person, Jonathan Van Pelt, who was in the searched house, told the officers where they could find some more of the stolen items. Following this lead, the officers found additional stolen articles about one or two miles from the house. There was no direct evidence as to who put the stolen items at the place they were found. They were not on the searched premises of Franklin.

Because the screwdriver discovered in appellant’s alleged automobile was one of the stolen tools, we think proof of actual or constructive possession of it by the appellant would give rise to a reasonable inference that he aided in placing the additional stolen loot in the other location.

We have read the entire record and conclude therefrom that the Oldsmobile (a white car) was the property of appellant of which he was in actual or constructive possession at the time the screwdriver was discovered on the rear floorboard. Witness Beam testified on voir dire outside the presence of the jury (Tr. 36, 37) that Roger Franklin told him that the Oldsmobile was defendant’s car. Officer Fowler testified before the jury, without objection, that Roger Franklin, defendant’s brother, stated (Tr. 99) that the Oldsmobile belonged to appellant.

Appellant complains that the seizure of the screwdriver which was in the Oldsmobile was without authority of law for the reason that the officers at the time of the seizure did not have a search warrant and were therefore, appellant argues, unlawfully on the premises.

With respect to the officers presence on the premises, we are unwilling to say that they were trespassers. They were on an investigative mission, trying to find out some leads pertaining to the burglary. They were not intruders.

The Supreme Court in Alexander v. State ex rel. Carver, 274 Ala. 441, 150 So.2d 204 (1963), observed:

“ * * * a policeman has the duty of not only enforcing municipal ordinances or bylaws, but he has the responsibility of enforcing state criminal laws and is charged with the duty of making arrests for such violations.”

Also, United States v. Barone, 2 Cir., 330 F.2d 543, upholds the inherent right of a peace officer to enter and investigate in an emergency without the intent to search or arrest. This right is derived from the common law. It is to be noted that appellant in his brief, p. 12, states:

“ * * * There is no testimony to show that at the time the entry upon the premises was made that the officers intended to make a lawful arrest of anyone. * *

Nor is there any justification for an assertion that the officers at the first entry intended to search. Later, they reentered with a search warrant.

The screwdriver being in plain view, its seizure was not the fruits of an unlawful search. See Coolidge v. New Hampshire, 403 U.S. 443 at p. 466, 91 S.Ct. 2022 at p. 2038, 29 L.Ed.2d 564, where the U. S. Supreme Court stated:

“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification- — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. * * * ”

We are aware of the absence of any direct proof offered by the State that appellant broke into and burglarized the premises and took the screwdriver from the storehouse. But such direct proof is not essential to a conviction. We held in Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130; cert. den. 291 Ala. 774, 285 So.2d 134, as follows:

“The position has been repeatedly taken by this Court and by other courts that upon proof that a burglary has been committed, the possession soon thereafter of goods stolen in the burglary affords a logical inference, in the absence of a satisfactory explanation of the possession, that the possessor was the burglar. Wildman v. State, 42 Ala.App. 357, 165 So.2d 396; Miller v. State, 43 Ala.App. 287, 189 So.2d 576; Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210, cert. denied 288 Ala. 750, 264 So.2d 214. The rule applies alike to burglary and larceny, * * * jy

See also, Atwell v. State, 50 Ala.App. 290, 278 So.2d 739, Vol. 4, Ala. Digest Burglary &wkey;42(l). We wish to note that appellant did not take the stand either before the jury or on his motion to suppress. There is evidence, by a witness for the State, that appellant denied ownership of the Oldsmobile. Under the evidence we conclude that defendant’s ownership and possession of the Oldsmobile was a jury question.

It is to be noted that the legality of the search pursuant to a search warrant is not a lawful issue in this case. The evidence shows that nothing incriminating against appellant was found when the officers searched the premises of defendant’s brother, Roger Franklin, where appellant was visiting. The screwdriver, Exhibit No. 1, was in plain view of the officer and was lawfully seized. Segers v. State, 283 Ala. 694, 220 So.2d 882(3); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067.

Appellant complains that the court erred in overruling his motion for a mistrial arising as follows:

“Q. What had you' received in the way of information?
MR. PRICKETT: I object to that, that is heresay (sic). Mr. Fowler is here to testify.
THE COURT: (To the witness) was this part of your investigation of the offense of which the defendant is charged?
“A. Yes, sir.
THE COURT: Overruled.
MR. PRICKETT: We except.
“A. Chief Earley Fowler advised me that he had known these people pri- or to this time, and they were known burglars and that .
MR. PRICKETT: Your Honor, we object to that on the grounds of first of all, that is heresay (sic).
THE COURT: Sustained.
MR. PRICKETT: And I move for a mistrial at this point because that is inadmissible as evidence in its entirity (sic).
THE COURT: I will sustain the objection and Ladies and Gentlemen of the Jury you will not consider the statement the witness said.
MR. PRICKETT: I would like a ruling of my motion for a mistrial.
THE COURT: Overruled. Do not consider Ladies and Gentlemen the evidence the witness gave in response to that question.”

It is to be noted that appellant’s objection was made on the ground that it was “heresay” (sic). Defendant was bound by this ground. Prince v. State, 50 Ala. App. 644, 282 So.2d 83(4).

The trial court immediately instructed the jury twice that they should not consider this evidence. These instructions were clear, emphatic and decisive. We hold that any prejudicial effect of this evidence was eradicable and was cured by the court’s instructions. Gavin v. State, 52 Ala.App. 469, 294 So.2d 169(1, 2), cert. den. 292 Ala. 722, 294 So.2d 170; Woods v. State, Ala.Cr. App., 344 So.2d 1225(1); writ quashed, Ex Parte Woods, Ala., 344 So.2d 1230(1).

Another contention is that defendant was entitled to change of venue pursuant to his unverified motion therefor. It does not appear that this motion was called to the court’s attention. No evidence was taken, no ruling of the court was invoked, and no ruling appears. Under such circumstances there is nothing for this Court to review. Statham v. Statham, 282 Ala. 322, 211 So.2d 456(1); Cash v. Usrey, 278 Ala. 313, 178 So.2d 91.

Appellant also contends:

“ * * * When the record is viewed in it’s entirety, a pattern of bias and hostility may become apparent which clearly demonstrates the prejudicial misconduct of the trial judge and requires a reversal of the judgment of conviction. * * * With the jurors’ mind so severely prejudiced, it would have been impossible for the defendant to have obtained a fair and impartial trial. Therefore, the defendant urges that the judgment of conviction must be reversed.”

We have reviewed the transcript of the evidence in its entirety, word for word, and we conclude that the court’s rulings were fair and unbiased. There is no merit whatsoever in appellant’s contention. We not only decline to agree with appellant’s accusation, but we commend the Court for its fairness.

We conclude with a final statement that the issues presented jury questions. The motion to suppress the evidence was properly denied or overruled. There was no motion for a new trial. We find no error in the record to justify a reversal. The judgment is affirmed.

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

AFFIRMED.

All the Judges concur, except BOOK-OUT, J., who concurs in result only.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Ex parte Gary FRANKLIN.
    77-417.
    Supreme Court of Alabama.
    April 21, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    William R. WATERS, Jr. v. STATE.
    4 Div. 554.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Rehearing Denied March 21, 1978.

      G. M. Harrison, Jr., Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Joseph M. Carlton, Jr., Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Burglary and grand larceny; sentence: five years imprisonment.

Mr. P. A. Scarborough, co-owner with his son of a drug store in Eufaula, Alabama, was called to his store the night of October 16, 1976, by police who had answered a silent burglar alarm at the store. He met Officer Bowman and another officer at the store, opened the door, and entered the store with them. Mr. Scarborough heard a noise in the rear of the store and heard Bowman say, “He is going out the window. I am going after him.” Mr. Scarborough observed that the door to the prescription department was open, the drug cabinet had been pried open, and drugs removed. An inventory revealed $415 worth of drugs had been taken. The drugs were later found in a sack at the rear of the store and scattered on the ground behind the store.

Officer Bowman testified that after entering the store, he heard a noise behind the medicine shelves and proceeded to the rear of the store. He observed the appellant with his head and shoulders through the back window. The burglar bars had been pried from the window. Bowman identified himself as a police officer and ordered the appellant to halt, but he fled. Bowman fired a warning shot and apprehended the appellant as he attempted to hide under an automobile. Bowman testified the appellant exclaimed at that time, “You have got me, go ahead and kill me.” The appellant also gave a false name when he was taken into custody.

A locked automobile found near the scene was later determined to be the appellant’s. The car was towed to the Eufaula Police Department, and a search warrant was obtained for it. A water ski case was found in the suitcase in the car which contained a crowbar, a pair of bolt cutters, duct tape, and a pair of gloves.

The appellant contended he was merely an innocent bystander who, after having seen two other men flee the store, was merely peering into the window out of curiosity when he was surprised by the policemen and fled. Appellant’s girl friend, Le-thia Speigner, also testified in support of appellant’s version of the facts. She stated that she and the appellant were traveling from Enterprise to Atlanta and stopped in Eufaula to see an unusual juke box. She further stated that the appellant drank a bottle of tequila during the drive between Enterprise and Eufaula. As the couple drove through an alley en route to view the juke box, the appellant noticed two men behind the drug store. Later as the couple resumed their trip to Atlanta, the appellant had an uneasy feeling about the two men and returned to the scene. He left Ms. Speigner in a night club near the drug store and went to investigate. She testified she heard the officer’s gunshots and was later taken into custody at the scene herself along with appellant.

I

The appellant’s first point of error alleges that there was a lack of probable cause to support the issuance of the search warrant for his car, and thus it was error to overrule his motion to suppress the evidence obtained during that search. The search of the vehicle revealed a bag containing a pair of rubber gloves in the back seat and two pairs of binoculars on the front seat. A suitcase in the back of the car contained a crowbar, gloves, duct tape, and a nylon rope. He asserts that the mere geographical proximity of his locked car to the burglarized store was insufficient in and of itself to provide probable cause for a search, and that the unsupported conclusion of the affiant that he “had cause for believing” the car contained burglary tools was equally insufficient. Thus, appellant contends the search was a “fishing expedition” with nothing apparent from the face of the warrant affidavit upon which the magistrate could base a finding of probable cause.

Officer Brown’s affidavit, dated October 18, 1976, appears in the record in pertinent part as follows:

“Affidavit in support of search warrant for search of a 1976 Mercury Bob-Cat automobile V.I.N. 6T20Z533294 bearing 1976 Alabama license 38-36451.
“The affiant’s cause for believing that the above described vehicle was used in the commission of a burglary of the Scar-bouroughs (sic) Rexall Drug Store which occurred October 16, 1976, is as follows:
“1. Billy Waters, a white male of Do-than, Alabama, was apprehended during the commission of a burglary at Scarbor-oughs Rexall Drug Store at approximately 9:00 P.M. on October 16, 1976.
“2. That 1976 Mercury V.I.N. 6T20Z533294 bearing 1976 license tag 38-36451 is registered to Dothan-Lincoln Mercury of Dothan, Alabama, for the above described vehicle.
“3. That said Billy Waters is an employee of said Dothan-Lincoln Mercury and the above described vehicle was checked out to the said Billy Waters and,
“4. The above 1976 Mercury automobile V.I.N. 6T20Z533294, was found parked on Broad Street, Eufaula, Alabama, in. front of said Scarboroughs Rexall Drug Store at 1:45 A.M. on October 17, 1976.
“5. The affiant has cause for believing and does believe that the above described automobile contains burglar tools and drugs related to the aforementioned burglary and other illegal contraband.”

In order for the issuing magistrate to make a finding of probable cause, he must have brought before him sufficient information from which he may independently determine whether probable cause exists to support a warrant. Murry v. State, 48 Ala.App. 89, 261 So.2d 922 (1972). “. . . [T]he very essence of search and seizure law is that the issuing magistrate must make a finding of probable cause from facts communicated to the magistrate by the affiant.” Brown v. State, 45 Ala. App. 265, 229 So.2d 40 (1969). Because the magistrate’s decision is a judicial determination, appellate courts pay substantial deference to that determination of probable cause. Yet, it is our function to insist that the magistrate perform his function in a neutral and detached manner and not serve merely as a rubber stamp for police. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

An affidavit which contains a mere conclusory affirmation of suspicion and belief, without statements of adequate support, is an inadequate basis for a magistrate’s finding of probable cause. Murry, supra. We cannot agree with appellant, however, that such is the case in the instant affidavit. The affiant here.stated numerous factual details important to a determination of probable cause, i. e.: (1) the fact that a felony had been committed; (2) the fact that appellant was apprehended during the commission of that crime; (3) the fact that the vehicle in question was checked out for use in appellant’s name by Dothan Lincoln-Mercury; and (4) the fact that this vehicle, known to be in use by one apprehended in the commission of the crime, was parked in front of the very location where the crime was committed. Though the fifth statement in the affidavit is a conclusion, it is one logically deduced from the list of facts preceding it.

We find that sufficient facts were stated in the affidavit from which the magistrate could conclude both that a felony had been committed and that the vehicle, operated by appellant and parked at the scene of the crime, probably contained articles used in connection with that crime. It was very possible that appellant had returned to the vehicle with items used or taken during the burglary prior to the arrival of police. Probable cause deals with probabilities, not legal technicalities. It is grounded upon those practical, factual considerations of everyday life upon which reasonable and prudent men act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed.2d 1879 (1948). Though the line' between mere suspicion and probable cause may be a fine one, it is clear in this case that sufficient facts were before the magistrate to place the affidavit on the probable cause side of that line.

II

The appellant contends that even if the search was proper, the admission of the articles found was erroneous because they were in no manner connected with the offense charged. He further contends they were introduced for the sole purpose of prejudicing and inflaming the jury which amounted to reversible error. This argument is without merit. Where the proffered evidence has a tendency, even though slight, to enlighten the jury as to the culpability of the defendant, then it is relevant and properly admissible. Barnes v. State, 31 Ala.App. 187, 14 So.2d 242, cert. denied, 244 Ala. 597, 14 So.2d 246 (1943). A fact having a logical relation or a causal connection with another fact, which makes the other fact either more or less probable, is competent or relevant to prove it. Ward v. State, 52 Ala.App. 392, 293 So.2d 307 (1974).

We think that the potentially bur-glarious nature of the tools found in the vehicle, in light of (1) the apprehension of the appellant during the burglary, (2) the close proximity of the vehicle to the store, and (3) the possibility of his going to and returning from the car before police arrived was competent and relevant evidence which had some probative value in determining appellant’s guilt or innocence. We do not agree that this evidence served only to prejudice and inflame the jury as argued by the appellant. The evidence had the potential to lend some degree of support to the State’s case and was therefore admissible.

Ill

The appellant next contends that it was error for the court to deny his motion for a continuance. The motion was based upon a pending motion for a new trial on a prior conviction in Houston County which the State would seek to introduce for impeachment purposes if the appellant testified during the instant trial.

The granting or denying of a continuance is within the sound discretion of the trial court. Lamberth v. State, 48 Ala.App. 134, 262 So.2d 622 (1972). We find no abuse of discretion here which would mandate a reversal. The appellant had in fact been convicted in Houston County prior to this trial, hence it was not error to deny a motion for continuance based on the pendency of the motion for a new trial in Houston County.

The appellant next contends that it was error for the trial court to allow the Houston County conviction to be used to impeach his credibility as a witness as that judgment was not final at the time he testified in the instant trial. He contends that the Houston County conviction was neither appealable nor final due to the un-disposed of motion for a new trial.

Section 12-21-162, Code of Ala.1975 (formerly Title 7, §§ 434, 435, Code of Ala.1940) provides in pertinent part:

“As affecting his credibility, a witness may be examined touching his conviction for a crime involving moral turpitude, and his answers may be contradicted by other evidence.”

The Code does not use the term “final” in describing a conviction which may be used for impeachment purposes. The only requisites are that there be a “conviction” and that the crime be one of “moral turpitude.”

The appellant was convicted in the Circuit Court of Houston County of a crime involving moral turpitude, and the presumption of innocence no longer attended him in that case. Whether final or not for purposes of appeal, we hold that that conviction was admissible for the purpose of impeaching the appellant as a witness in the instant case. See: Ex parte Alabama State Bar, 285 Ala. 191, 230 So.2d 519 (1970); Calhoun v. State, Ala.Cr.App., 346 So.2d 39 (1977).

IV

The appellant contends that there was a fatal variance between the allegations of the indictment and the proof thereof at trial as to the ownership of the property. The indictment alleged that P. A. Scarborough owned the goods, while in reality the goods were owned by a partnership in which Scarborough was a member. However, that variance is clearly not fatal. An allegation of ownership of property in the name of one partner is sufficient to uphold the indictment where partnership property is involved. Scott v. State, 55 Ala.App. 318, 314 So.2d 921 (1975); Title 15, § 245, Code of Ala.1940.

V

Appellant’s last issue involves his concern with a variance between the six year sentence imposed by the court, as announced in open court, and the five year sentence contained, by clerical mistake, in the written judgment entry. The State points out in brief that it was advised by the clerk of that court of the error and filed a motion to amend the record pursuant to Rule 10(f), Alabama Rules of Appellate Procedure. We have reviewed the record and find that an order issued by the court below pursuant to A.R.A.P. 10(f) has been entered with the clerk of this court, and the record has been properly amended to conform with the sentence as announced by the judge in open court. Having carefully reviewed the record, we find no error justifying reversal of the conviction below.

Affirmed.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte William R. WATERS, Jr.
    77-431.
    Supreme Court of Alabama.
    April 21, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: DeCARLO, Judge.

text:
    Thomas WORRELL v. STATE.
    4 Div. 582.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Rehearing Denied March 21, 1978.

      J. Fletcher Jones, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Based on an affidavit executed by Claude J. Spicer, Thomas Worrell was charged with willfully or wantonly injuring or destroying the property of another.

On April 9, 1976, Worrell was convicted in the Covington County Alabama Intermediate Court for the destruction of private property and fined two hundred dollars and costs.

On that same day an appeal from the judgment of conviction was taken to the Circuit Court of Covington County.

The complaint was filed by the district attorney charging Thomas Worrell with willfully and wantonly injuring or destroying the property of Claude J. Spicer. To this complaint, defendant filed a motion to strike, which was denied and duly excepted to on July 1, 1977.

Appellant filed a demurrer to the complaint averring, among other things, “that the charge in this complaint is identical to the charge appearing in the complaint filed in case No. 6383, which is being tried before this court at the same time of the prosecution of this instant case.”

Further, the demurrer assigned as grounds that there was a variance between the affidavit executed by Claude J. Spicer on December 26, 1973, and the complaint filed in this cause by the district attorney of Covington County.

Appellant alleges that the variance was because the affidavit charged that the said acts by the defendant were to threaten, injure or destroy property of another and the complaint stated that the said acts by the defendant were to threaten, injure or destroy property of Claude J. Spicer.

The demurrer was overruled on July 1, 1977. On the same day, the day of trial, the State amended the solicitor’s complaint by adding a second count, alleging that Wor-rell did willfully and wantonly, injure or destroy the property of Claude J. Spicer, or did willfully or wantonly derange or attempt or threaten to derange any mechanics, appliances, or devices of Claude J. Spi-cer. At the time of filing the amended complaint, the district attorney stated “that Count II pertains to Claude Spicer in both instances, the property of Claude Spicer or devices of Ciaude Spicer. And, in Count I of the complaint it pertains to property of Claude J. Spicer, or to the devices of Claude J. Spicer.”

To this amended complaint, defendant filed a motion to strike which was denied by the court. The defendant then filed a demurrer and it too, was overruled. Subsequently, the defendant filed a plea of not guilty and a special plea of the statute of limitations. He asserted as grounds that Count II of the amended complaint alleged that the offense occurred in December of 1973. Therefore, more than twelve months had lapsed before the new prosecution in this case.

On July 1, 1977, this case was presented to a jury. The jury returned a verdict of guilty as charged and fixed a fine of three hundred dollars. In addition to the fine the court sentenced the defendant to serve five months and twenty-nine days in the Cov-ington County Jail.

The sufficiency of the evidence presented by the State was raised by the appellant during the trial by means of a motion to exclude written requested charges in an affirmative nature, and following the trial, by a motion for new trial. That evidence is summarized below.

On December 23, 1973, Claude J. Spicer, the son of Claude Spicer, had driven from Florida with his family to visit in his father’s home. When the families retired for the' night Claude J. Spicer’s automobile and Claude Spicer’s pick-up truck were both parked in the front yard. The tires on each vehicle were in good condition.

During the early morning hours of December 24, 1973, Claude Spicer was awakened by the barking of dogs. He went to the front door and as he crossed the threshold he saw the appellant, “stooped over beside one of the tires on his truck, or standing beside his pick-up truck.” Clyde Odom was also there and was standing in back of the truck. As Claude Spicer stepped out onto the porch the appellant and Odom ran.

On examining the vehicles, Claude Spicer saw that the tires on the truck had been cut and were flat.

During the trial, Claude Spicer stated that he had known Thomas Worrell “all of his life.” Further, he testified that the fair market value of his truck tires and tubes at approximately one hundred and sixty dollars. His son, Claude J. Spicer, testified that his three automobile tires were valued about one hundred and twenty dollars.

After a motion to exclude the State’s evidence for failure to make out a prima facie case was denied, Thomas Worrell took the stand in his own behalf and denied cutting the tires. He stated that at the time he was separated from Glenda Spicer, Claude Spicer’s granddaughter, and the niece of Claude J. Spicer.

Worrell denied that he and Odom had sharpened knives in preparation of cutting the tires. He also denied making any statements just prior to the incident that he planned to cut the tires. Further, he stated that he had never bragged that he had cut them.

Lavon Reese was called as a rebuttal witness. She was also Claude Spicer’s granddaughter, and Claude J. Spicer’s niece. In her testimony she stated Worrell had sharpened a knife on the night of the incident and stated that he was going to cut “Uncle Junior’s and Grand Daddy’s tires.” Further, she said that when he returned he made the comment, “he had cut Uncle Junior’s and Grand Daddy’s tires.”

At the end of Reese’s testimony, Worrell again took the stand and denied making any admission to the effect that he had cut the tires belonging to the Spicers. He said, “no, sir, I didn’t cut none of them tars. I ain’t seen his tars.”

I

The motion and the demurrers filed which were denied by the circuit court, and appellant’s brief, tends to show that the appellant was convicted in two separate prosecutions in the intermediate court of Covington County in 1973. It also appears that both cases were appealed to the circuit court. However, the appearance bond filed in the circuit clerk’s office bearing the date of April 12, 1976, shows an appeal on case No. 6382 only. Case No. 6382 indicates the conviction in the intermediate court for the offense of destruction of private property with a fine of two hundred dollars and costs. Following this appeal bond we have a complaint drawn in case No. 6382, based on that appeal and alleging the destruction of property of Claude J. Spicer.

As can be seen from the foregoing facts, the prosecution involved the tires on the automobile of Claude J. Spicer, who was the son of Claude Spicer. Involved also were the tires on Claude Spicer, Sr.'s pick-up truck, Claude Spicer, Sr. being the father of Claude J. Spicer.

The appellant, in a motion to strike filed July 18,1977, and a plea filed the same day, made the allegation that case No. 6383 was “nol prossed” by the district attorney. Case No. 6383, the appellant says, was based upon an affidavit executed by Claude Spi-cer and a warrant issued on charges preferred by Claude J. Spicer.

The written complaint filed in the circuit court of Covington County in case No. 6382, reads in substance as follows:

“. . . Thomas Worrell . . .did willfully or wantonly injure, destroy, attempt to destroy, or threaten to injure or destroy the property of Claude J. Spicer, or did willfully or wantonly derange or attempt to threaten to derange any mechanics appliances or devices of Claude J. Spicer . . . ”

A comparative reading of this complaint with the language of T. 14, § 115(1), indicates that the complaint tracks the statute.

On July 1, 1977, after a jury was empan-elled, but before testimony was taken, the State amended the foregoing complaint by adding a second count. The second count was basically the same as the first, except that it substituted the name, “Claude Spi-cer ” in the second count where the name of “Claude J. Spicer” appeared in the first count. A close reading of the second count shows that the averment stating the destruction or injuring of the property was laid in Claude J. Spicer and was followed immediately with the averment that “did willfully or wantonly derange devices belonging to “Claude Spicer.” At this point the district attorney made the comment that he intended the first count to refer to “Claude J., Spicer” and the second to refer to “Claude Spicer.”

Also we note that the court in its oral charge stated that the appellant was charged with destroying the private property “I believe of Claude Spicer, Sr. and in Count.II, destroying private or damaging private property of Claude Junior Spicer.”

We have examined the record and have been unable to find, except in appellant’s pleadings, any indication that case No. 6383 was nol prossed. No documents from the Covington County Intermediate Court support such a claim. This court on appeal is bound by the record and cannot look beyond it. Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831; Strong v. State, 47 Ala.App. 238, 252 So.2d 659; Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Colburn v. State, 40 Ala.App. 248, 112 So.2d 800. Based on this fact we cannot assume that case No. 6383 was nol prossed.

II

Nothing in the record indicates that the circuit court of Covington County acquired jurisdiction over the offense involved in Count II. It is necessary for the record to show jurisdiction of the court. Ford v. State, 20 Ala.App. 67, 100 So. 917; Nix v. State, 20 Ala.App. 94, 100 So. 918; Guin v. State, 17 Ala.App. 293, 84 So. 863; Hall v. State, 19 Ala.App. 178, 95 So. 904; Miller v. State, 20 Ala.App. 625, 104 So. 775. See T. 15, § 359. The record does not show an appeal bond on case No. 6383, whereas an appeal bond does appear in case 6382, which was the basis for Count I of the written complaint filed originally.

Due to the fact that there can be no amendment to add a separate offense, a determination of Count II as far as the statute of limitations or its form will not be discussed. Lemley v. State, 24 Ala.App. 427, 136 So. 494, Melech v. State, 42 Ala.App. 465, 168 So.2d 33; Brown v. State, 41 Ala.App. 565, 140 So.2d 371. See T. 13, § 347, Code of Alabama 1940, Recomp. 1958.

III

In a multi-count solicitor’s complaint, which is the case before us, where one count is bad and the other good, and a general verdict is handed down by the jury, the rule is that the general verdict is referable to the good count if there is evidence to support it. Here such supported evidence exists. Myrick v. State, 20 Ala.App. 18, 100 So. 455; Corrunker v. State, 19 Ala.App. 500, 98 So. 363; Haney v. State, 19 Ala.App. 79, 95 So. 57; Cunningham v. State, 15 Ala.App. 644, 74 So. 747; Hancock v. State, 14 Ala.App. 91, 71 So. 973; Norman v. State, 13 Ala.App. 337, 69 So. 362.

In the present case the jury was not instructed to specify as to which count it was making its finding of guilt and there was no affirmative charge or motion directed to each count separately and severally. Therefore, the general verdict was referable to Count I. Norman v. State, supra; Stover v. State, 36 Ala.App. 696, 63 So.2d 386.

IV

The appellant has also questioned the constitutionality and the general form of Count I. Further, he raises the possible confusion of the names as to Count II and the adequacy of the affidavit in the complaint in the intermediate court to support Count I. We note that the appellant was charged under T. 14, § 115(1), and 13-2-9, Code of 1975, and the prosecution was begun in the Covington County Intermediate Court. Although the rule is not without exception, generally statutory offenses similar to T. 14, § 115(1) may be charged in the terms of the statute. McKinney v. State, 50 Ala.App. 271, 278 So.2d 719; Kennedy v. State, 39 Ala.App. 676, 107 So.2d 913; Haynes v. State, 293 Ala. 221, 301 So.2d 208; Hockman v. State, 265 Ala. 1, 91 So.2d 500.

Count I of the complaint very closely parallels the statute, and in our judgment, is adequate. See Ellis v. State, Ala. Cr.App., 338 So.2d 428.

Appellant also insists that the property was not alleged to have a value. A requirement for such an allegation exists if the punishment or the offense is dependent on the value of the property. See Barber v. State, Tex.Cr.App., 449 S.W.2d 53; State v. Breznick, Vt., 356 A.2d 540; 54 C.J.S. Malicious Mischief §§ 5(1), 8(h); State v. Garner, 8 Port. 447; Caldwell v. State, 49 Ala. 34. However, T. 14, § 115(1), requires punishment be proportioned to the offense. Neither the fine, sentence, nor offense is dependent on the amount of damage or value of the property damaged. It is the seriousness of the offense, not the value of the thing damaged that determines the punishment. Thus, the need for an allegation of value is not present.

VI

As to the similarity of the names, there seems to be no cases in direct point. The purpose of any complaint is to inform the defendant of the offense with which he is charged and to avoid the likelihood of being put in jeopardy twice. In the present case there seems to be little likelihood of this being done. Appellant’s preparation of his defense was not jeopardized since the offenses charged in Count I and II occurred on the same night.

The facts indicate that the tires on Claude J. Spicer’s automobile were cut at almost the same time as the tires on his father’s truck. Without question, it was the same transaction and part of the res gestae.

In our judgment, the jury would not have been confused.

Although the court’s statement concerning the two counts was erroneous because the trial judge said that Count I referred to Claude Spicer and Count II referred to Claude J. Spicer, we do not believe this, in any way, confused the jury. At any rate, no request was made for clarifying instructions by the court on these counts.

VII

Next, the appellant complains that there was a variance between the affidavit alleging “property of another,” which was shown in the complaint in the lower court, and the complaint in the circuit court alleging the property of “Claude J. Spicer.” In this regard, we find no error. See Philyaw v. City of Birmingham, 36 Ala.App. 112, 54 So.2d 619, and also compare Green v. State, supra; Broglan v. State, 17 Ala.App. 403, 86 So. 164.

In view of the fact that the complaint follows the affidavit when one considers the affiant’s name, the variance complained of is not made to appear.

In our judgment, Count I is not defective and the general verdict is referable to the one good count of the complaint. The punishment meted out in this case was within the statutory limits for the one offense. Therefore, the case under consideration should be affirmed as to the offense involved in Count I.

The jury’s general verdict is sustainable under the facts presented in the case.

VIII

During the court’s oral instructions to the jury, the judge gave the following instructions:

. . The State does have the burden to convince you beyond a reasonable doubt as to the guilt of the Defendant, but it does not have the burden to convince you beyond all possible doubt.”

To this instruction, defense counsel took an exception and he now contends this portion of the oral charge reduced, “the burden of proof required of the State” and was thus error.

The record does not indicate a definitive ruling by the court on appellant’s exception. However, although a ruling has not been made, the consequence of such a ruling may be determined from the surrounding procedure or circumstances. Zeigler v. State, 52 Ala.App. 501, 294 So.2d 468. In the instant case, the judge said:

“All right. Members of the Jury take the proposed forms of the verdict that I have prepared for you . . ”

With this comment the jury was allowed to go to the jury room to begin their deliberations. No further charges were given. From these circumstances it can be inferred that the court overruled the exception to the oral charge.

In Littleton v. State, 128 Ala. 31, 29 So. 390, the Supreme Court of Alabama held that a similar charge was not ambiguous, misleading or objectionable. That charge read:

“. . . The State is not required to prove defendant’s guilt beyond all doubt, but only to prove guilty beyond a reasonable doubt. . . . ”

In Mills v. State, 148 Ala. 633, 42 So. 816, the charge in question basically followed the charge in Littleton v. State, supra. The Supreme Court in Mills, supra, stated that the charge had been many times approved by that court. See Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130. There the use of “all reasonable doubt” is condemned and the use of a “reasonable doubt” is approved. See also Karr v. State, 106 Ala. 1, 17 So. 328.

In our judgment, the instructions given by the court in its general charge, with respect to the degree of quantity of evidence necessary, was not objectionable and no error was made to appear.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Thomas WORRELL.
    77-432.
    Supreme Court of Alabama.
    April 21, 1978.
   FAULKNER, Justice.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Wayne Terrell LITTLE, alias v. STATE.
    6 Div. 644.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    As Corrected On Denial Of Rehearing April 4, 1978.
    David B. Ellis, Jones, Ellis & Randall, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Wayne Terrell Little was charged by indictment with the robbery of A. G. Williams by taking some $14.00 in currency from his person by “violence to his person or by putting him in fear, etc.” The two-count indictment also contained a charge of “assault with intent” against the said A. G. Williams. This count was dismissed on the motion of the State at the time of submission of this cause to the jury.

The jury returned a verdict of guilty of “robbery as charged” and fixed punishment at “twenty years and one day” in the penitentiary. The trial court entered judgment accordingly. The appellant’s motion for a new trial, challenging the weight and sufficiency of the evidence, was overruled following a hearing thereon.

A. G. Williams related that he was the owner and operator of Williams Pharmacy located on University Avenue in Tuscaloosa, Alabama, on March 19, 1977. Williams indicated that he had been in business at this location for some twenty-eight years and his wife worked in the store part time. Mr. Williams ipdicated that on Saturday, March 19, 1977, his wife worked that morning but left shortly after the noon hour. Williams indicated that he was on duty near the prescription department shortly before 5:00 o’clock that afternoon when a young woman came into the store and spoke to him, then said she wanted some Pepto Bismol. Mr. Williams stated that he waited on her and then noticed a black man walking around in the store who wanted some Ex-Lax. Mr. Williams said he noticed the woman’s hands were very rough and scarred looking in appearance.

Mr. Williams stated about this time a second young black male came into the store and began looking around. He stated the man was wearing a nice looking light tan matching outfit and he was light skinned. This individual first purchased some Bromo Seltzer then made an inquiry about Ex-Lax. He stated that as he was attempting to wait on him, he pointed a pistol at him and “he let me know that this was a holdup.” Williams stated he ducked behind the counter and started to run for the front door but the robber pushed the whole display off the top of the counter (R. p. 14), caught Williams, and made him go back and open the cash register at pistol point. The robber then took the cash, which amounted to some $14.00, and began thumbing through some checks. The robber then asked if there was any more money in the register, and upon being told there was not, he began beating Williams across the face and head, causing him to fall to his knees. Williams indicated that he was struck at least “ten or twelve times with the butt end of the pistol on the forehead and head” (R. p. 18). He stated that the man ran out of the store and he watched him jump into a 1967 or 1968 two-toned Oldsmobile Cutlass and drive away.

Williams indicated that he was bleeding profusely (R. p. 19) but he ran out of the store and called for help. He testified that he called for Dr. Jackson and some police officers and within fifteen to twenty minutes he was taken to the Tuscaloosa Hospital where five stitches were taken on his forehead and three on the back of his head. Williams then identified a number of photographs of the interior and front of Williams Pharmacy. From the record (R. p. 27):

“Q. Mr. Williams, did I understand you to say in State’s Exhibit No. 6, which I believe you testified to be a picture of the cash register, that you were behind on the 19th of March?
“A. Uh-huh (yes).
“Q. And now, would this view, would this picture be taken looking toward the front door?
“A. Toward the front door.
“Q. And if I might hold this picture up right here for the jury, would you point to the box — the particular portion of the cash register where the checks were lifted by Wayne Terrell Little?
“A. Right here.
“Q. And were there — I believe you testified there were no twenty dollar bills?
“A. No, no twenty dollar bills there.”

Williams related that the robber was thumbing through the checks just before he began beating him over the head with the butt end of his pistol. He further stated that the robber “got in the Oldsmobile Cutlass with, I believe, a woman who had bought the Pepto Bismol,” and they drove away (R. p. 41). Williams related that later in the Spring of 1977 he was called to the Sheriff’s Office to view a lineup of four or five young black males. He was unable to make a positive identification but said he thought the individual in position No. 1 was the robber. Mr. Williams indicated in response to questioning, “I think that is him” (R. p. 31). Williams indicated he was present in the store when Tuscaloosa police officers came in and began making photographs and picking up the checks from the floor.

On cross-examination Williams stated “he was 100% positive that the man who robbed him at the cash register thumbed through the checks” then threw them to the floor (R. p. 40).

Jerry Junkin testified he was the owner and operator of a Gulf Service Station located at 2002 University Boulevard in Tuscaloosa, Alabama, on March 19, 1977. Jun-kin related that his station is directly across 20th Avenue from Williams Pharmacy. Junkin indicated on Saturday, March 19, 1977, about 5:00 o’clock in the afternoon, he heard Williams running out of the drug store and calling for help. He said he saw some individuals get into a 1967 or 1968 two-toned'Oldsmobile Cutlass. As this car drove away, Junkin jumped in his truck and pursued the Oldsmobile. He stated the car went down 20th Avenue, made a turn and headed for River Road, which paralleled the Warrior River. Junkin then indicated he lost the automobile in traffic and was unable to obtain the tag number (R. pp. 46-49).

Mrs. A. G. (Martha) Williams testified that on March 19,1977, she came to work at Williams Pharmacy about 9:00 that morning. She stated she worked until 1:00 or 2:00 o’clock that afternoon before leaving to go home. She stated that on this date, about mid-morning, one Mrs. Leila Mae Garrett came into the store and made a purchase, then cashed a check for $2.00, which she endorsed and left with Mrs. Williams. Mrs. Williams stated that Mrs. Garrett had been a “customer of ours for quite a long time,” and that she definitely remembered cashing the check for her and placing it in the cash register at Williams Pharmacy.

Harold Jones, Tuscaloosa Police Department Investigator, stated he received a call to go to Williams Pharmacy on Saturday, March 19, 1977, shortly after 5:00 o’clock. Upon reaching the store he saw Mr. Williams with a handkerchief to his head and saw blood running down his face. Jones stated that Williams had a wound on his left forehead and there was a small hole in his skull which was bleeding quite a bit. Jones stated he noticed blood near the cash register and that Williams showed him where he had been struck over the head with a pistol. He stated he saw two checks lying on the floor, that he picked up one of the checks, endorsed by Mrs. Leila Garrett, placed it in a plastic container and delivered it to Investigator Everett of the Tuscaloosa Police Department, on March 21, 1977. Jones also picked up a bag which contained Bromo-Seltzer and Ex-Lax. He placed these in a plastic bag which he turned over to Investigator Everett on Monday, March 21, 1977.

Mike Everett, Tuscaloosa Police Investigator, stated that he assisted in the investigation of the Williams Pharmacy robbery and that on March 21,1977, he received two checks from Investigator Jones which he sent by registered mail to Ron Smith, Latent Fingerprint Examiner with the Alabama Bureau of Investigation in Montgomery. He stated that he also sent the package containing the Bromo-Seltzer and Ex-Lax, and subsequently sent a suspect fingerprint card to Ron Smith for comparison purposes. Later he received a telephone call from Ron Smith concerning the results of his examination and Smith then returned State’s Exhibit No. 11, the Garrett check, to him and it had been in his care, custody and control since that time.

Everett indicated that on March 81,1977, he obtained a warrant for the arrest of the appellant, Wayne Terrell Little, and he attempted to locate him in Tuscaloosa and within the State of Alabama but was unsuccessful. Everett stated he first saw the appellant on May 25,1977, at 12:24 p. m. at the Tuscaloosa County Jail. At this time he read the appellant a “Miranda rights form,” and without making any threats, intimidation, coercion, or offering any hope of reward or other inducement on his part or Investigator Cooper’s, who was with him, he questioned Little. Little denied committing the robbery of Williams Pharmacy on March 19, 1977, but did indicate he had been there one time to get a prescription filled. Little was asked by Investigator Everett if he had ever borrowed an Oldsmobile automobile belonging to Dudley Mol-ton. Little responded that he had borrowed this car on occasion, but that he did not borrow it on March 19,1977, and that while he knew one Stella Taylor, they did not go to Williams Pharmacy in Molton’s car on March 19, 1977.

Everett also asked Little if he knew Mrs. Leila Mae Garrett, and he stated that he did not. Williams was unable to explain why his fingerprints were found on the check Mrs. Garrett cashed and left at Williams Pharmacy and denied “robbing the store.”

The Miranda Waiver form signed by Little was placed in evidence. The check to Mrs. Leila Mae Garrett was dated March 10, 1977, and made payable to her.

Everett related that he had been to the home of Dudley Molton and there found a 1967 Oldsmobile Cutlass. Upon knocking at the door and talking with Molton and his wife, he observed a bottle of Pepto Bismol sitting on the kitchen counter (R. p. 103). Everett related that .Mr. Williams had been unable to make a positive identification at police lineup of anyone, and that a photograph made of this lineup showed Little standing in position No. 4. This lineup took place on May 26, 1977.

Dudley Molton testified that he lived at Route 1, Box 88C, in Northport, Tuscaloosa County, with his wife and two sons. He was employed at B. F. Goodrich Rubber Plant and' testified that he had known Wayne Terrell Little since elementary school years. Molton stated that he recalled Saturday, March 19,1977, because on Wednesday prior to that time, Little came to him with his girl friend, Stella Taylor, and asked if they could stay with them several days, and that he allowed Little and Taylor to stay there. Molton stated that after breakfast that Saturday morning, he went to pick up some food for his family, and when he got back Wayne Little and Stella Taylor asked him if they could borrow his automobile. He stated that he let them have it. This was shortly after 10:00 o’clock a. m. on March 19, 1977. Molton also stated that Stella Taylor had several scars on her hands and they were noticeable. Molton then identified three photographs of his 1967 Oldsmobile Cutlass and stated that it was a two-toned car with a light blue bottom and a black top. Molton indicated that during the afternoon, after Little and Taylor did not come back, he went out on two occasions trying to find them but was not able to do so. When he returned the second time to his home, his wife told him that they had come back and left the car, but took off in a hurry. He noticed a “bottle of Pepto Bismol” sitting on the counter in the kitchen two days later. Molton stated that he was a friend of Little’s and that Little had driven him to work several times on other occasions before Saturday, March 19. He stated that Wayne Little and Stella Taylor returned the car between 7:00 and 8:00 o’clock on the night of March 19, 1977, but he was not at home when they came back. He stated that he later looked in the automobile for a pistol or money and did not find any.

Jacqueline Molton testified that she was the wife of Wayne Molton and lived with him and their two sons in Northport, Alabama. Mrs. Molton stated that she had known Wayne Terrell Little since grammar school days and that he was going with a girl named Stella Taylor in March of 1977. She stated that Little and Taylor had gone to their home and had been staying with them since the Wednesday before Saturday, March 19, 1977. She stated that from time to time they had borrowed their 1967 Oldsmobile Cutlass.

Mrs. Molton stated that she awakened shortly before 11:00 on the morning of Saturday, March 19, 1977, and that neither Little nor Mrs. Taylor was there and she did not see them again there until after 6:00 that same evening. Shortly after 6:00 Wayne Little and Stella Taylor came in and returned the car, then began gathering up their personal clothing. She said they appeared to be in a hurry, that they went back to the bedroom, got their clothes, and left. She said she first saw a bottle of Pepto Bismol on the kitchen counter after they left. Mrs. Molton stated that Little and Taylor did not stay with them on Saturday night and she had not seen them since that time.

J. P. McFerrin stated that he was Assistant Jailer with the Tuscaloosa County Sheriff’s Department and also made fingerprints of suspects. McFerrin identified Exhibit 18 as being the fingerprints of Wayne Terrell Little which he made at the Tuscaloosa Jail. McFerrin indicated that both he and Little signed Little’s fingerprint card, which was admitted into evidence, and that he only made one such card.

Ron Smith testified he was employed by the Alabama Bureau of Investigation at Montgomery Headquarters. Smith related that he had formerly been with the Federal Bureau of Investigation for one year prior to being employed by the Alabama Bureau of Investigation in 1973 and that he had been trained in fingerprint investigation by Mr. R. G. Wittmus at the FBI Print School at Quantico, Virginia. Smith stated that his specialty was latent fingerprints which usually appear as a smudge on an object caused by perspiration or any foreign substance when an object is touched. Smith testified that he had received State’s Exhibit No. 11, a check made payable to Leila Mae Garrett, from Tuscaloosa Police Investigator Mike Everett. Smith stated he also received State’s Exhibit 18, a fingerprint card, bearing the photograph and the signature of Wayne Terrell Little, and that these remained in his care and custody for comparison purposes until he returned them to Investigator Mike Everett.

Smith stated that he made a comparison of the fingerprints and found twenty-two points which he checked and determined matched the fingerprints of the appellant, Wayne Terrell Little, by comparison with Exhibit 18. He further stated that this was an ample basis for fingerprint comparison, that he had known of fingerprint comparisons having been made with as few as seven to nine points. Mr. Smith related that no two sets of human fingerprints are the same, but that the fingerprints on the card, State’s Exhibit No. 11, were those of the appellant, Wayne Terrell Little. Exhibits Nos. 11 and 18 were admitted into evidence.

At this time the State dismissed the assault with intent charge.

The appellant did not testify or present any evidence at trial. Both sides stated they were “satisfied” with the trial court’s oral charge.

I

Appellant contends that the identification by Mr. Williams of Little in court should be suppressed and stricken because he was unable to make a positive identification, simply stating, “I think that is him” (R. pp. 31, 36), “but I am not positive” (R. p. 40).

In Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336, we find the following:

“The testimony of the victim of the alleged robbery which was offered to establish the identity of the appellant as one of the alleged robbers presented a jury question on that matter. Although this witness did not positively identify the appellant, did not observe appellant under ideal conditions, failed to identify him in a police line-up, and although there were minor discrepancies in his description of the alleged robber, these matters, in our opinion, went to the weight of the testimony and did not destroy its value for the purpose of establishing identity. See 23 C.J.S., Criminal Law, §§ 864, 920.”

See Hall v. State, Ala.Cr.App., 353 So.2d 51 (1977); Hopkins v. State, 57 Ala.App. 78, 326 So.2d 144; and Lomax v. State, 355 So.2d 755, 6 Div. 397, February 15, 1978 (Ala.Cr.App.).

We are of the opinion that the trial court properly allowed Mr. Williams’ statement to be submitted to the trial jury under the foregoing authorities.

II

Because this is a circumstantial evidence case, the appellant earnestly contends certain questions were asked of the various State witnesses which called for answers or suggestions as to the evidence, and the result of these constituted error.

We do not agree.

The fingerprints of the appellant were definitely established as being upon the check cashed by Mrs. Garrett on the morning of March 19, 1977, at Williams Pharmacy by Mrs. Williams. The check itself is dated March 10, 1977, but Investigator Jones picked up the check from the floor of the store in the presence of Mr. Williams and then delivered it to Investigator Everett on Monday, March 21, 1977, where it remained except for being sent to Montgomery for comparison by Mr. Ron Smith. A proper chain was established under the evidence of the custody of the check in question, therefore the trial court properly admitted this in evidence. See Dardy v. State, Ala.Cr.App., 347 So.2d 584 (1977).

Identity may be established by either direct or circumstantial evidence. Dentman v. State, 267 Ala. 123, 99 So.2d 50.

The fingerprints of the appellant on the check found on the floor of the pharmacy were circumstances to be considered by the jury together with all other circumstances on the question of his guilt. Thomas v. State, 57 Ala.App. 320, 328 So.2d 321; Hall v. State, 57 Ala.App. 132, 326 So.2d 660; Vaughn v. State, 57 Ala.App. 134, 326 So.2d 662.

Ill

The appellant asserts that the trial court erred in denying his request for the affirmative charge and in overruling his motion for a new trial which challenged the weight and sufficiency of the evidence, stating that the State failed to prove a prima facie case of robbery.

This Court, per Harwood, J., in Tunstill v. State, 33 Ala.App. 460, 34 So.2d 857, cert. denied 250 Ala. 421, 34 So.2d 859, observed:

“ . . . Thomas v. State, 91 Ala. 34, 9 So. 81, 82, contains an excellent discussion by Justice McClellan of the offense of robbery. Therein he defines robbery to be ‘a felonious taking of goods from the person of another, or in his presence, against his will, by violence, or putting him in fear. And this violence must precede or accompany the stealing.’ In Hardis v. State, 28 Ala.App. 524, 189 So. 216, 217, in discussing the offense of robbery Judge Samford wrote: ‘As defined by our decisions, robbery is an offense against both person and property, and is briefly defined as the felonious taking of money or goods of value from the person of another, or in his presence, by violence or by putting him in fear. Parks v. State, 21 Ala.App. 177, 106 So. 218.’”

Not only did the State properly establish the chain of custody of the check containing the appellant’s fingerprints found on the floor immediately following the robbery, but also two childhood acquaintances testified that the appellant borrowed their automobile and, accompanied by his girl friend, Stella Taylor, was gone from between 10:30 and 11:00 o’clock on the morning of Saturday, March 19,1977, until shortly after 6:00 that evening when the 1967 Oldsmobile Cutlass was returned to the Molton’s residence by the appellant. A fresh bottle of repto Bismol was left on the kitchen counter, and Stella Taylor’s hands were similar to those which Mr. Williams had observed when he sold a bottle of Pepto Bismol to a black female with scarred hands early that afternoon.

Both Mr. Williams and Mr. Junkin observed a two-toned 1967 or 1968 Oldsmobile Cutlass at the scene of the robbery, though they were unable to obtain the tag number or positively identify the occupants.

The issue thus presented by this record is whether or not the evidence is sufficient to sustain the verdict and judgment. After careful consideration, we are of the opinion that the trial court ruled correctly on appellant’s motions and request for the affirmative charge. Williams v. State, 48 Ala.App. 737, 267 So.2d 526; Zimmerman v. State, 49 Ala.App. 442, 272 So.2d 914; Clay v. State, 52 Ala.App. 272, 291 So.2d 364.

After careful examination of this record, we find same to be free from error. The judgment is

AFFIRMED.

All the Judges concur.


author: BOWEN W. SIMMONS, Retired Circuit Judge. BOWEN W. SIMMONS, Retired Circuit Judge.

text:
    Ernest Calvin PACE v. STATE.
    7 Div. 562.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Rehearing Denied March 21, 1978.

      Donald W. Stewart, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

This is an appeal from a judgment of the Circuit Court of Etowah County dismissing appellant’s petition for a writ of error cor-am nobis. Such dismissal was pursuant to a Motion of the State without an evidentiary hearing.

It appears from the pleading before us on this appeal that appellant was tried in the Circuit Court of Etowah County and convicted of robbery; sentence, fifteen years.

We take judicial knowledge that defendant appealed to this Court from the judgment. Pace v. State, 45 Ala.App. 390, 231 So.2d 166. This Court dismissed the appeal on January 30,1970. It appears that appellant Pace escaped pending his appeal. He escaped from the penitentiary while serving time on another sentence.

This dismissal precluded review of the record as to probabilities of prejudicial error and made the appellant subject to the judgment of conviction.

Appellant asserts in his petition now under consideration that he was in prison in the City Jail of Scottsboro, Alabama, on June 28, 1968, at which time the alleged robbery occurred. We think that the pleadings or petition of appellant justified an evidentiary hearing on this factual issue if not on other asserted issues. We make no judgment on the other contentions.

We note that appellant; an imprisoned indigent, was not represented by an attorney when the trial court dismissed his petition. We think he was entitled to counsel. The trial court on remand of this cause will give such an appointment proper consideration.

We note that appointed counsel on this appeal filed an able and comprehensive brief for his client. His insistence that his client was entitled to an evidentiary hearing is well taken. Appellant was deprived of his constitutional right of due process. Greenfield v. Hamrick, Ala., 341 So.2d 136.

The judgment is reversed and the cause is remanded.

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

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

BOWEN W. SIMMONS, Retired Circuit Judge.

The petition here under consideration is the pro se product of appellant, who, as we have noted, was an indigent.

Attached to the petition is an exhibit which indicates that appellant might have been in jail when the alleged offense, for which he was tried and convicted, was committed.

If, by competent evidence, it appears later that defendant was in jail at the time the alleged offense was committed, and his identification as a participant in person was a mistake, he should not be imprisoned.

Appellant should be given an opportunity at an evidentiary hearing in this proceeding to present his defense and explain why it was not asserted at the trial on the merits, to the end that he might refute negligence on his part. It is probable that he could have been confused as to the date he was in jail, if such be a fact. Denial of such a right would violate his constitutional right of due process.

In view of his indigency, we think he would be entitled to counsel to present his case.

Application overruled.

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

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-424.
    Supreme Court of Alabama.
    April 21, 1978.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    Louis Neal THROWER v. STATE.
    8 Div. 7.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Rehearing Denied March 21, 1978.

      James D. Walker, Albertville, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Marshall County returned an indictment against the appellant, Louis Neal Thrower, charging him with buying, receiving, concealing, etc., stolen property. Appellant entered a plea of not guilty. A jury found the appellant guilty as charged. The trial court duly sentenced him to four years in the penitentiary, and appellant appeals to this Court.

This appeal was submitted on briefs. The appellant was represented at his arraignment by counsel appointed by the trial court. Appellant was not represented by counsel during the remainder of his trial and is represented in this Court by counsel under court appointment.

The question presented to this Court is whether or not the appellant was able financially or otherwise to obtain the assistance of counsel to represent him during all the proceedings in the trial court. Was the appellant an indigent for the purpose of being entitled to have counsel appointed to represent him at his trial in the trial court at the expense of the public?

We find from the record that on May 26, 1977, the indictment against the appellant was returned, filed in open court, and appearance bond set at $5,000. On May 27, 1977, a writ of arrest was issued for the arrest of appellant, was executed by the arresting of the appellant, and he was released upon posting a $5,000 appearance bond. On June 6, 1977, appellant appeared before the trial judge for arraignment; the trial court asked appellant if he had a lawyer, had he talked to one, and if he was able to employ one. The appellant answered all three questions, “No, sir.” Upon being further questioned, the appellant stated that he was in business; that his last business was pretty good; that he and the bank owned a car; and that appellant did not know if he could or not borrow enough from the bank to hire a lawyer. Appellant asked the court if it was required that he have a lawyer. The court advised him that it was not required, but he would be better off if he had a lawyer. The appellant replied that he would be a lot better off if he wasn’t in Guntersville. The court then asked Hon. W. D. Wilkes, Jr., an attorney of the bar, to represent the appellant on arraignment. The court, with the appellant present with his attorney, inquired of appellant if he had received a copy of his printed explanation of some of his major rights, had he read them, did he understand them, and did he want the court to further explain them to him. Appellant stated he had received a printed statement of his rights, had read them, understood them, and did not want the court to further explain them to him.

The printed copy of the rights stated in substance the offense charged; the punishments; right to remain silent; rights to or not to testify, and the consequences thereof; right to attorney, and confidential relations of attorney and client; right to assistance of legal counsel, and duty of counsel to client; speedy trial by jury; presumption of innocence; burden of proof on state; right to have witnesses in his behalf; no evidence seized by unlawful search allowed; no involuntary confessions used; rights as to pleadings and consequences thereof. The statement is dated June 6, 1977, signed by appellant and further states that he can read, has read, and understands the above rights; that his attorney has gone over them with appellant. The statement is also signed by his attorney who states he has gone over appellant’s rights with him and explained them to him in detail. Whereupon the court proceeded to duly arraign the appellant. The appellant entered a plea of not guilty. The court set the case for trial on August 29, 1977, at 9:00 A.M., and advised the appellant to be present with his lawyer at that time; that the court thought he was able to employ his own counsel.

On June 13, 1977, appellant withdrew $6,500 in cash from his checking account in the First National Bank of Guntersville and did not use it in his business or to support his family, but blew it.

On August 29, 1977, the appellant’s case was called for trial. At this time the appellant appeared and advised the court that he did not have an attorney to represent him and asked that one be appointed. Appellant took the position that he had no money to hire a lawyer. The court, after some discussion with the appellant, advised him that he should have a lawyer and gave him an opportunity to get one. Appellant took the position that he did not have any money to pay a lawyer, therefore, there was no use to talk to one. The trial court then set a hearing for August 31, 1977, for the purpose of determining whether the appellant was entitled to a court appointed counsel to assist him at his trial at the expense of the public.

On August 31, 1977, the appellant was sworn as a witness and stated that he wanted a lawyer; that he had no property, did not think he could borrow any money; that he owed the bank but did not know how much; that he owned only the clothes on his back. On cross-examination the appellant testified that he had a bank account in The First National Bank of Guntersville; that on June 13, 1977, he wrote a check to cash for $5,700, cashed it, and blew it having a good time; that on June 13, 1977, he wrote a check to cash for $800, cashed it, and lost it in a crap game in Las Vegas; that on July 27, 1977, he gave his son a check for $300 which they spent; that on August 10,1977, he cashed a check for $300, and he imagined he lost it in a crap game.

The state offered evidence by an employee of the First National Bank of Gunters-ville. The evidence consisted of transactions of the appellant with the bank over a period of time from September 17,1976, up to August 31, 1977; appellant was or had been engaged in the capacity of a secondhand automobile dealer. Testimony showed that appellant’s dealings at the bank were all current up to August 20, 1977. Appellant was indebted to the bank in the sum of approximately $5,000, and he was current with the bank except for one note due in August. The witness did not think the bank would lend him money at this time under the circumstances.

At the conclusion of the hearing, the court ascertained that the appellant was able financially, or otherwise, to obtain the assistance of counsel, and advised the appellant if he wanted to, he could use the judge’s telephone to contact an attorney. The appellant replied that, “I don’t want to call nobody.” Whereupon the court proceeded to the courtroom, and the appellant was tried before a jury without the assistance of counsel, except for the striking of the jury. On September 1, 1977, the jury returned a verdict of guilty as charged, the court duly sentenced the appellant, and advised him of his right to appeal. Appellant gave notice of appeal. The court set the appeal bond at $5,000. The appellant was prepared and immediately posted a $5,000 appeal bond; it was approved by the clerk of the court, and he was released pending the appeal. Whereupon the appellant asked that an attorney and transcript for the appeal be furnished him at public expense. This motion was set for hearing on September 9, 1977, at 11:00 A.M. and continued from time to time until September 26,1977, when the trial court, after a hearing, appointed counsel to represent the appellant and assist him with his appeal and ordered that he be furnished with a free transcript.

On September 28, 1977, the appellant filed a motion for a new trial.

Under the procedure provided by our legislature for appointment of counsel to represent a defendant in the trial court at the expense of the public, there are three duties imposed on a trial judge: first, to ascertain whether or not the defendant has arranged to be represented by counsel; second, whether or not the' defendant desires the assistance of counsel; and third, whether or not the defendant is able financially or otherwise to obtain the assistance of counsel. Code of Alabama, 1975, Section 15-12-20(1), (2), and (8).

It is undisputed that the court ascertained appellant had not arranged to be represented by counsel, and appellant desired the assistance of counsel. Appellant stated to the court that he had not talked to any counsel about representing him in this case.

The trial court made a thorough and wide-range examination of the appellant’s financial condition and ascertained that the appellant is able financially or otherwise to obtain assistance of counsel. The court’s finding is fully supported by the evidence in this record. It is not required that a defendant be furnished counsel at the expense of the public when he has the ability financially or otherwise to obtain counsel. Locke v. State, Ala.Cr.App., 333 So.2d 217; Minniefield v. State, 47 Ala.App. 699, 260 So.2d 607; Boswell v. State, 50 Ala.App. 718, 282 So.2d 337.

Before the trial court is authorized to appoint an attorney at public expense to provide assistance to a defendant at his trial, the court must ascertain that the defendant is not able financially or otherwise to obtain assistance of counsel. In this case the court did not so find.

We hold that the court did not err in its finding that the appellant was not an indigent defendant as defined in the Code of Alabama, 1975, Section 15-12-1(1) and in denying appellant’s request for court appointed counsel. Code of Alabama, 1975, Section 15-12-21(a).

On November 30, 1977, appellant filed a brief and argument. On December 28, 1977, appellee filed a brief and argument, and this case was submitted to this Court. On January 4, 1978, the appellant filed a brief in reply. On January 6, 1978, appellee filed a brief in reply. On January 12, 1978, appellant filed a motion to strike appellee’s brief in reply on the grounds that there was no compliance with Rule 31 of Appellate Procedure.

Rule 2(b) of Appellate Procedure provides that this Court may, on its own motion, suspend the requirements or provisions of any of these rules in a particular case; except the rule 4(a)(1) which provides for the time of taking an appeal.

In the case of State v. Jacks, 272 Ala. 107, 128 So.2d 734, the Supreme Court of Alabama, speaking of a brief, said:

“But if we receive it before the case is decided, we consider it in the effort to get all the help possible in deciding the issues correctly.”

Appellant’s motion to strike appellee’s reply brief and argument is overruled. Rule 2(b) of Appellate Procedure; State v. Jacks, supra.

It is not necessary to state the evidence of the state in support of the charge contained in the indictment, other than to make the observation that the evidence given by two of state’s witnesses who were accomplices of the appellant in the commission of the crime was fully corroborated and sufficient to make the guilt or innocence of the appellant a question of fact to be decided by the jury.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

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, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Louis Neal THROWER.
    77-438.
    Supreme Court of Alabama.
    April 21, 1978.
   EMBRY, Justice.

WRIT DENIED.

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