text:
    Fernando LETT, alias v. STATE.
    7 Div. 462.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Hubert H. Wright, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to ten years imprisonment in the penitentiary. At arraignment with counsel present he pleaded not guilty.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charges that before the finding of this Indictment Fernando Lett, alias Fernando T. Lett, alias Fernando Thepolis Lett, whose name to the Grand Jury is otherwise unknown than as stated, feloniously took one (1) white beaded purse, of the value of $10.00; one (1) red billfold, of the value of $7.00; one (1) red change purse, of the value of $2.00; and Twenty-nine and no/100 Dollars ($29.00), lawful United States currency, the exact denomination of which is unknown to the Grand Jury, of the value of $29.00, all of the aggregate value of $48.00, the property of Lualta McDill, from her person or in her presence, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same, contrary to law and against the peace and dignity of the State of Alabama.”

When the case was called for trial, the appellant and his counsel made known to the Court that he wished to change his not guilty plea and plead guilty to the indictment with the understanding that he would receive a sentence of ten years.

Appellant’s counsel made a thorough investigation of the case against appellant and the District Attorney made available to appellant’s counsel the contents of his file. The file reflected that appellant had signed a confession admitting his participation in the robbery. His confessory statement showed that he and one Elbert Rupert agreed to go to Crestwood Cemetery near Gadsden and rob any person visiting the cemetery. While they were waiting at the cemetery, the victim and her husband arrived. The appellant was to grab and hold the husband while Rupert was to take the victim’s pocketbook. Appellant grabbed the old man and he began to holler and the appellant turned him loose and ran. Rupert succeeded in getting the woman’s pocketbook.

Appellant’s diligent and astute counsel had many conferences with appellant about the facts against him. Counsel went over the Ireland form in detail. The Ireland form, in this case, contained all the Boykin rights, including the range of punishment, and appellant signed this form along with the trial judge and appellant’s counsel.

At one point during counsel’s interrogation of appellant he indicated he was not guilty. His counsel told him that if he thought he was not guilty that he would have to stand trial saying, “In all my years of practice I have never pleaded a man guilty who told me he was not guilty.” It seems that appellant did not think he was guilty of robbery since he did not actually take the pocketbook from the woman. Counsel then explained to appellant the law of aiding and abetting and appellant then decided to plead guilty.

Before accepting the guilty plea there was a detailed colloquy between the judge and appellant which was reported by the Court Reporter. The Court was satisfied that appellant’s guilty plea was freely and voluntarily made. He explained to appellant all of his constitutional rights as enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. He ascertained from appellant’s own lips that he participated in the robbery and that no threats, promises, rewards or other inducements had been made to him to get him to plead guilty.

After sentence was imposed, appellant applied for probation and a hearing was set to hear his application. Probation was denied and appellant gave notice of appeal. He applied for a free transcript and the Court determined that he was indigent and he was furnished a free transcript. New counsel was appointed to represent him on appeal.

The only issue presented on this appeal is whether appellant’s guilty plea was truly voluntary in the light of the colloquy between the Court and appellant where at one point he indicated he was not guilty. Reliance is had on the case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.

In Alford the Court held that a guilty plea coupled with a claim of innocence shall not be accepted unless the judge inquires into the conflict and determines there is a factual basis for the plea. In the instant case the Court made an in depth inquiry into the facts of the case and found there was more than a factual basis for the guilty plea. The State had a strong case against appellant and he was advised by competent counsel that it was in his best interest to plead guilty. The trial court was of the same opinion.

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Johnny Eugene FIELDS v. STATE.
    4 Div. 405.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    J. Herring, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant and Mickey Kelly with the possession of marihuana contrary to law. The jury found the appellant “guilty of possession of marihuana for his own use,” and fixed punishment at 12 months imprisonment in the county jail. The verdict also assessed a $1,000 fine. The trial court entered judgment setting sentence in accordance with this verdict.

This case arose from an investigation on June 25, 1975, by ABC Agents Bobby Davis and Charles Blount together with Dothan Police Sergeant J. R. McCord of a field in which marihuana was growing situated in Houston County, Alabama. Each of these officers testified that the location of the field was to the rear of a house trailer in which Mickey Kelly and his wife and child lived. This area was described as being on Route 4 in the direction of the “two TV stations” on the Columbia Highway in Houston County, Alabama.

The ABC officers testified that they were dropped off by the Dothan officer and walked along a railroad track through a corn field to a location where they had a full view of the field in which the marihuana plants were growing. Some of the plants were only a few inches high and some of the others were as much as three feet in height. They testified that they set up an observation of the field in question about 4 o’clock in the afternoon. They testified that they observed the appellant Johnny Eugene Fields and Mickey Kelly walk from the direction of the house trailer to the field and then “began working the plants.”

From Agent Davis’s testimony:

“Q Where was it, with reference to the marijuana plants, that you saw this defendant ?
“A We saw him at the trailer, coming from the trailer to the plants; we saw him watering and working the plants; and also saw him putting some potting soil and watering some styrofoam cups that they had brought out there.
“Q After you made this observation, what did you and the other officer do?
“A As they started leaving, we radioed the other two officers, which was in a car, and then we proceeded to follow them. We crossed over into the woods and followed them on up behind the trailer, as the other two officers got to the trailer.
“Q And at that point, did you arrest them?
“A I didn’t, but someone in the crowd did.
“Q How many officers were there?
“A Four.
“Q Immediately after you arrested them, did you and anybody else there with you go back to where these plants were growing?
“A Yes, sir, I did.
“Q And when you got there, did you make any measurements, count any— make a count of any of the number of plants, and take an inventory of what was there?
“A Yes, sir.
“Q All right. Tell the jury what you found ?
“A We found eleven plants, approximately three foot tall; ■ eighteen plants, approximately a foot tall; eight plants approximately six inches tall; and 117 pots with some type seed in it.
“Q Did you see this defendant do anything with any of those plants that you have just told the jury about?
“A Yes, sir.
“Q All right. Will you tell the jury in some detail what you saw this defendant do with each article or plant?
“A As the defendant and Mickey Kelly arrived, they brought something in a sack with them. They watered some of the bigger plants, and one or two of the smaller plants; dug around one or two of the larger plants; and then they took some little white styrofoam cups, put potting material in it, and appeared to plant something in it, and then watered it and left.
“Q Do you have a judgment or opinion as to what period of time elapsed while the defendant and this other man, Kelly, were there working on these plants ?
“A I would say approximately 15 minutes. 10 to 15.”

Each officer testified that the field in which the marihuana plants were growing was about 35 to 40 feet from the rear of house trailer in which Kelly lived.

Dothan Police Sergeant J. R. McCord testified he was working with ABC Agents Lamar Hedden, Charles Blount and Bobby Davis in the investigation of the marihuana field in question on June 25, 1975. He testified he drove to the house trailer belonging to Kelly and observed the appellant in possession of some green marihuana plants which he put in the police vehicle. He testified that he took a large box which contained the styrofoam cups and that there were a total of 117 plants. He testified that this material was turned over to Melinda Long at the Enterprise State Toxicology Crime Lab.

Melinda Long testified that she received the marihuana plants which she examined from Dothan Officer J. R. McCord and ABC Agent Bobby Davis. She stated that the large box which was brought to her contained “117 styrofoam plastic cups which were filled with potting soil and little small plants,” that these plants were “marijuana” and that the total weight of the marihuana plants was 169.5 grams or approximately six ounces. Agent Davis and Sgt. McCord’s testimony was corroborated by ABC Agent Charles Blount.

He testified as to the number of plants in the field as follows:

“A There were 11 marijuana plants about three feet tall growing. There were 18 about a foot tall, 8 about six inches tall, and 117 styrofoam cups with potting soil and seeds planted in them.”

Officer Blount further testified that in his opinion between 300 and 400 cigarettes could be made from “6 ounces of marijuana.”

With reference to the appellant’s activity at the field in question on cross-examination Agent Blount testified:

“Q And you didn’t see this man actually working the plants, did you? You saw him bending over, but you didn’t know what he was doing, did you? You know that, because you went back out later and saw that a plant had been worked, is that right?
“A They were both out there bent over working around the plants.
“Q They were bent over? You saw them bent over, didn't you?
“A Yes, sir.
“Q But anything else, you didn’t see until you went back out later, did you?
“A I don’t understand what you are trying to say.
“Q What I am saying is that you saw them bent over, and you presumed that he was working on the plants, didn’t you, Mr. Blount ?
“A No, I don’t presume. He was working on them.
“Q You saw him actually working?
“A Yes.
“Q What did you see him doing?
“A He was messing with that potting soil and those cups and things there; and they were just generally milling around and working with the plants, watering them and putting stuff around them.
“Q Did you go back to the trailer after they went back to the trailer?
“A When they left the plants, and started back towards the trailer, we—
“Q Took off after them?
“A —left after them, and we caught them about the corner of the trailer and placed them under arrest.
“Q Okay. And what Mr. Fields was arrested for was what he was doing around the plants that you have just testified to, isn’t it?
“A Yes, sir.
“Q Now, ya’ll found some marijuana in the trailer, didn’t you ?
“A Yes, sir.
“Q Okay. He is not being charged with that, is he?
“A No, sir.
“Q In other words, he is being charged with the possession of these plants that you saw growing out behind Mr. Kelly’s house, is that right?
“A Yes, sir.”

The appellant presented the testimony of his co-defendant Mickey Kelly. Mr. Kelly testified that he lived in the house trailer in question at Route 4, in Houston County, with his wife and baby. He testified that Gene Fields lived with his mother on Third or Fourth Avenue in Dothan and that no one else lived at his home but his own family. He testified that Fields had come by his home that afternoon and that they had ridden down to the K-Mart to get some watermelon seeds and a coke. He testified that they then returned to' his house trailer and walked out back as he told Fields he wanted to show him where he was planting some seeds. He testified that he told the appellant that they were marijuana plants and that he personally watered the plants but that the appellant did not do any watering or working with the plants while they were at the field on the afternoon of June 25, 1975. He testified that after a few minutes they walked back to his trailer house where both of them were arrested for possession of marihuana.

I

The sole issue presented by this record is whether or not sufficient evidence was presented at trial of the appellant’s “possession of the prohibited substance, in order to sustain the verdict and judgement.”

Knowledge of the presence of the prohibited substance may be established by circumstantial evidence, and guilt does not depend on ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169.

The offense of possession of illegal drugs is susceptible of joint commission. Green v. State, 30 Ala.App. 94, 2 So.2d 324; Parks v. State, supra.

While it is true that the mere presence at the scene of a crime without more, does not make an accused a party to such crime, nevertheless, when the presence of the accused at the scene is established and the evidence of his knowledge of the presence of the prohibited substance is shown, along with any other incriminating evidence, then the issue of the appellant’s guilt should be submitted to the jury. Radke v. State, 292 Ala. 290, 293 So.2d 314.

We are of the opinion that the State here presented a prima facie case and the trial court therefore properly submitted this cause to the jury.

After careful examination we find this record free of error. The judgment is therefore

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.


author: PER CURIAM.

text:
    Willie James McGHEE, Jr. v. STATE.
    3 Div. 511.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack Curtis, Asst. Atty. Gen., for the State.
   PER CURIAM.

Second degree murder; sentence: ten years.

On Christmas Eve 1974, the appellant’s car collided with a car driven by James Alvin Nix. The collision took place on Highway 143 in Montgomery County near the Tyler-Goodwyn Bridge. As a direct result of the collision, William Thomas Nix, a six-year-old child, was killed. William Thomas Nix was a passenger in the car driven by James Alvin Nix, his father.

The overwhelming weight of the evidence presented showed that the appellant was at fault in the collision and that the appellant was driving while intoxicated. The State presented numerous witnesses on the issues of fault and intoxication including occupants of the car hit by the appellant, law enforcement officers and other citizens who arrived on the scene immediately after the collision. The State also introduced the result of the appellant’s P.E.I. (Photo-Electric Intoximeter) test which read .17. It is a rebuttable presumption that a reading of .10 or above establishes that one is under the influence of alcohol to the extent one cannot safely operate a motor vehicle.

The State indicted and tried the appellant under the fourth class of first degree murder found in Title 14, § 314, Code of Alabama 1940, which reads in pertinent part as follows:

“ . . . or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree; . . . ”

Mitchell v. State, 60 Ala. 26 (1877), quoting from Blackstone, 4 Com. 200, refers to the preceeding provision as being applicable to the following:

“ . . . ‘Neither shall he be guilty of a less crime, who kills another in consequence of such a willful act as shows him to be an enemy to all mankind in general; as going deliberately, and with an intention to do mischief, upon a horse used to strike or coolly discharging a gun among a multitude of people. So, if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice.’ And we may mention the intentional wrecking- of a passenger train on a railroad, by which a life or many lives are destroyed, as another instance of universal malice. . . . ”

Mitchell also defines universal malice as follows:

“ . . . that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim. The supreme depravity shown in this so-called universal malice, is considered as the equivalent of the strong adjectives, willful, deliberate, malicious, and premeditated, which characterize the first class of murder in the first degree.”

The State’s theory in the present case is that the appellant’s act of driving while intoxicated evidenced the requisite “depraved mind.”

I

The State introduced into evidence prior convictions of traffic offenses which were contained in the appellant’s driving records. The convictions read as follows:

“February 26th, 1957, convicted of speeding; December the 30th, 1961, convicted of reckless driving.
“October 13th, 1962, improper brakes; October 27th, 1962, failed to stop at a stop sign; December 1st, 1962, speeding; June 29th, 1963, improper brakes; November 16th, 1963, driving while license revoked; October 16th, 1965, driving while intoxicated; March 3rd, 1970 driving while license revoked; February 4th, 1972, reckless driving.”

The appellant made a timely objection to the introduction and admission of the above record. If the basis for admissions of this record of convictions was to impeach the credibility of the appellant’s testimony, then the admission would have been error as the above crimes do not involve “moral turpitude.” Sims v. Callahan, 269 Ala. 216, 112 So.2d 776 (1959). Also, such record of convictions would be inadmissible if offered to prove that the appellant was drunk on Christmas Eve 1974. Wilkins v. State, 29 Ala.App. 349, 197 So. 75 (1940).

The State contends that the record of convictions was introduced and is admissible solely for the purpose of demonstrating the appellant’s repeated, prolonged, and conscious indifference to the consequences of his improper driving. Such habitual indifference, the State contends, would be evidence of the appellant having had a depraved mind on Christmas Eve 1974.

The issue of whether prior traffic convictions may be introduced to show a depraved mind at the time of the homicide by reason of the defendant’s driving a vehicle while intoxicated appears to be a question of first impression in Alabama. However, several cases have indicated in dicta that evidence of prior offenses may be admissible to show the element of malice. McMurtrey v. State, 37 Ala.App. 656, 74 So.2d 528 (1954); Murphy v. State, 52 Ala.App. 490, 294 So.2d 457 (1974). Wharton’s Criminal Evidence, Vol. 1, § 246 (13th ed. 1975) also states that evidence of other crimes may be admissible to show malice. It seems that under certain circumstances prior conduct on the part of the appellant, including recent criminal convictions for driving while intoxicated, might be probative of the state of mind of the appellant on Christmas Eve 1974. If evidence had been introduced tending to show that the appellant habitually drove his car while intoxicated or that he had numerous recent convictions for driving while intoxicated, such evidence would probably be indicative of malice, or a wanton and willful disregard for human life pursuant to the definition stated in Mitchell, supra.

The appellant objected to the driving record being admitted on the ground that such record was not relevant and was too remote in time from the alleged murder. We agree.

The prior convictions took place, on the average, approximately ten years before the fatal wreck in question. From the record, it is impossible to conclude that any of the convictions other than the October 16, 1965, D.W.I. conviction, had anything at all to do with intoxication.

Ordinarily, remoteness of time affects the weight and probative value rather than the admissibility of evidence and admission of such evidence rests largely in the trial court’s enlightened discretion. Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396 (1948). In Wilkins, supra, it was said that remoteness of time of the commission of previous acts does not alone render them inadmissible as evidence of intent or identity. However, in the present case, the State seeks to show an habitual indifference amounting to malice on the part of the appellant through the introduction of the appellant’s prior record of traffic convictions.

In a similar case, Waters v. State, 80 Ga.App. 559, 56 S.E.2d 924 (1949), the defendant was charged with manslaughter by operation of an automobile. The State of Georgia introduced evidence of a plea by the defendant of guilty to D.W.I. in 1941 to show, among other purposes, a “bent of mind” on the defendant’s part. There, the court held that the evidence should have been excluded because of remoteness. It should be noted that there is a recent trend in the United States as evidenced by the Federal Rules of Evidence, § 609, to exclude evidence of prior conduct which is remote in time, unless the prior conduct is highly probative of a material issue.

While it is true that a trial judge has wide discretion in determining remoteness and relevance, we conclude that such discretion was abused in the present case. Prior convictions for driving while his license was revoked, running stop signs, reckless driving, speeding, and improper brakes, between October 1957 and February 1972, have no bearing on the issue of the appellant’s state of mind on December 24, 1974.

The cumulative effect of allowing the Deputy Custodian of Records for the Department of Public Safety to read a list of the appellant’s prior traffic convictions which were either remote or not relevant violated the substantial rights of the appellant.

II

The appellant also contends that the method of introducing appellant’s prior traffic convictions was in error. We again agree.

The Deputy Custodian of Records for the Department of Public Safety was allowed to testify as to the appellant’s prior traffic convictions by reading a compilation of the appellant’s driving record which was on file with that Department. The cases are in agreement that the proper method of proving a prior conviction is by a judgment entry in the court records or a certified copy of the court record showing a judgment entry of the prior conviction. Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975); Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973). In Highsmith, supra, proof of the previous conviction was part of the prosecution’s case in chief and in Headley, supra, the proof of the prior conviction was presented to bear on the credibility of a defendant’s testimony. The State cites Ellis v. State, 244 Ala. 79, 11 So.2d 861 (1943) for the proposition that a trial docket sheet of a defendant’s prior conviction is a proper method of introducing a defendant’s record of prior convictions. Therefore, the State contends, an official traffic record should also be admissible to show prior traffic convictions. In Ellis, supra, the defendant had previously admitted on cross-examination that he had been convicted of other crimes and the trial docket sheet was merely cumulative evidence of an admitted fact.

A record of prior convictions which is offered to prove a material element in a charge of first degree murder must be submitted by way of a judgment entry in the court records, a certified copy of the judgment entry in the court record, or by the oral testimony of the defendant. The aforementioned procedure was not used in the present case, therefore, the records from the Public Safety Department were legally inadequate and inadmissible.

Pursuant to Title 36, § 68, Code of Alabama 1940, the various municipal and county courts send a record of conviction of certain driving offenses to the Department of Public Safety. Such records are used to determine whether an offender’s driver’s license should be administratively suspended or revoked. The director of that Department may rely upon those records of convictions in taking such ad-ministratrive action. But here we are asked to go a step further and say that a compilation or list of those records is admissible as proof of the conviction. As stated in Lowery v. State, 55 Ala.App. 514, 317 So.2d 365 (1975):

“Hearsay in documents does not become admissible by merely having a custodian certify a copy to be the same as the original document. ...”

The list itself was not in fact introduced into evidence, but the deputy custodian was allowed to verbally testify as to its contents in the instant case. This is also impermissible. Childers v. Holmes, 207 Ala. 382, 92 So. 615 (1922).

This Court reversed the same trial judge in 1970 on substantially the same point of law. In Goodwin v. State, 46 Ala.App. 149, 239 So.2d 221, the appellant there had been convicted of possessing a pistol after having a prior conviction of a crime of violence, per Title 14, § 174, Code of Alabama 1940. The trial judge, over objection, allowed a witness to prove the prior conviction by reading such from a report of the F.B.I. In reversing, this Court stated:

“Proof of conviction comes from the original court record or a certified copy thereof. No proper predicate was laid for oral proof of a secondary nature.
“We judicially know of no Alabama statute making a report from the Federal Bureau of Investigation of the Department of Justice evidence of a conviction in any jurisdiction.
Hence, the rulings cited above were erroneous under established rules enunciated in this State at least as early as 1846 and repeated without deviation.

We see no material difference in attempting to prove prior convictions by reading an F.B.I. “rap sheet” and in reading from a compilation of reports from the files of the Public Safety Department.

In the instant case, the trial judge, in ruling on the objection, stated:

“ . . . This Court realizes that this is a departure from existing practices, but the facts of this case, and most especially, the problems of protecting the motoring public from this type of driving abuse justifies. I believe it is a proper statement to state that what the law is is not necessarily what the last appellate court said it was, but rather what can reasonably be assumed what the next court will say the law is under the existing circumstances. And I could hot conceive in my wildest sense of right and wrong that a jury trying this case should not be allowed the opportunity to hear this type of testimony. (Emphasis supplied.)

Contrary to the assertions of the trial judge, the doctrine of stare decisis is well founded in the law of Alabama. As stated by the Court of Appeals in Atkins v. State, 27 Ala.App. 212, 169 So. 330 (1936):

“Inferior courts are bound by the decisions of the appellate courts of this state and should keep informed as to these decisions. Had this been done in the case at bar the labor expense and time involved would have been avoided.”

See also: Mitchell v. City of Dothan, 33 Ala.App. 19, 30 So.2d 73S (1947), affirmed, 249 Ala. 253, 30 So.2d 737; Article VI, Constitution of Alabama (Judicial Article) ratified December 27, 1973. The appellate courts of this State have not deviated in the instant rule since 1846, as stated in Goodwin, supra, and we do not do so now. McCarty v. State, 55 Ala.App. 342, 315 So.2d 139 (1975); Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975).

Ill

It is worthy of note that there have been previous prosecutions and convictions for murder where a defendant was found to have been driving while intoxicated. Hyde v. State, 230 Ala. 243, 160 So. 237 (1935). In Hyde the defendant was indicted and tried under the first class of first degree murder.

The approach used in the present case seems preferable to the Hyde approach. However, this appears to be an area which is ripe for legislative action. A statute which speaks specifically to the elements of vehicular homicide while intoxicated, along with an appropriate penalty section, would be an immense improvement over the present attempts to prosecute for such conduct under our traditional murder statutes.

IV

The appellant further contends that it was error to allow a wrecker driver to testify as to a conversation that took place between himself and the appellant’s father. This conversation was held approximately one hour after the wreck and the appellant’s father purportedly told the wrecker driver that he knew appellant had been drinking. This is the rankest sort of hearsay and should not have been admitted over the appellant’s timely objection. The State contends that under Dodd v. State, 26 Ala.App. 367, 160 So. 267 (1935), the admission of the above mentioned hearsay was harmless error. Strickland v. State, 269 Ala. 573, 114 So.2d 407 (1959) appears to be a case that would also support the State’s contention. As the present case is being reversed on other previously mentioned grounds, we will not reach the question of harmless error at this time. Hopefully this particular error will not be repeated on retrial of this case.

For the foregoing reasons, it is necessary that the appellant be given a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ervin HARRIS v. STATE.
    6 Div. 133.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.

      Quentin Q. Brown, Jr., and Spencer T. Bachus, III, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State.
   TYSON, Judge.

The appellant was indicted for forcibly ravishing the prosecutrix, a female. His request for Youthful Offender treatment was denied following a hearing. Following a jury trial, the appellant was found guilty as charged, and the verdict fixed punishment at 99 years imprisonment. The trial court then set sentence in accordance with this verdict.

Dr. Joe M. Cannon testified that he was on duty in the emergency room of the Cooper Green Hospital in November, 1974, as an intern. He testified that on November 16, 1974, he performed a general physical examination, including a pelvic examination on the prosecutrix, shortly after 1:45 in the morning. The testified that from his examination of the vaginal region, there was a trace of blood and a tear in the hymeneal ring. His examination indicated that there “had been probably some intercourse and was a laceration like an abrasion.” In his opinion the prosecutrix “had been the victim of a physical assault.”

The prosecutrix testified that she was 21 yéars of age and resided in Hueytown. She testified that she was attending Jefferson State and was employed after school at Loveman’s in the Western Hills section of Birmingham. She testified that she had gone to work November 15, 1974, at Love-man’s and left her car in the parking lot near the store. She testified that she wore a blue pants suit with white shirt and orange sweater. She testified that as-she was coming to get in her car later that evening at the Western Hills Mall, a black male accosted her with a small pistol. He forced her to unlock the car and get into the automobile. She testified that the two of them drove around for perhaps 30 minutes to an hour and that he questioned her as to who her boy friend was, where she went to school and what her favorite music was, all the while pointing the pistol at her. Finally, he drove the car into a deserted section of the city on an old road and pulled the car over and told her, “Bang, bang, you are dead,” still pointing the pistol at her. He asked her if she had ever had sexual relations with her boy friend to which she replied no. She stated the appellant then removed her clothing and had sexual intercourse with her.

She said she pleaded and told him to stop and she struggled but that at pistol point he completed the sex act. She said that in a few minutes she got out and put her clothes on and the appellant then got back in the car with her but that she was in somewhat of a state of shock and the appellant then drove not too far from Western Hills Mall where he stopped the car but just before doing so, told her that he was already in trouble with the cops and that if she told the cops, he would get her. She testified that the appellant got out of the car in Ensley and that she immediately, as best she could, drove home where she told her mother that she had been raped.

She said that her parents then took her to the West End Hospital for treatment. She was referred to University Hospital.

On cross-examination he testified she remembered passing a sign near some houses which read, “Wylam” and that she passed a Shell Service Station at the Minor section near North Birmingport. She also stated that while driving with the appellant that they had passed McDonald’s Chapel in the Minor section beyond Ensley.

She testified that the next day she went to police headquarters and talked with Police Lieutenant Willis Randall Stricklin at the Fairfield Police Department. She stated that after talking with Lieutenant Stricklin that they drove out into the section of Birmingham beyond Ensley and she testified that she identified a street where she let the appellant out of the car. She also testified that she turned over the clothing she had worn to Lieutenant Strick-lin and a day or two later she selected the photograph of the appellant from some photographs which were given to her and the next day she selected the appellant from a police lineup, that the appellant was standing in the middle position of a five-man lineup. She stated that no attorney was present on this occasion and that only herself and Lieutenant Stricklin were present at the lineup.

The prosecutrix made a positive in-court identification of the appellant at trial.

Lane M. Thigpen testified that he was an employee of the State Toxicology Department in November, 1974. He stated that the Fairfield Police Department delivered several items of female clothing which he examined. He testified that he examined the white nylon panties and found a reddish-brown stain and also a faint red-brown stain on the cuff of the white blouse. He stated that he also made tests on the pants and panties which were “positive for semen.”

Leunis D_ testified that she was the mother of the prosecutrix and that they lived in Huey town, Jefferson County. She testified that her daughter was working part time.at Loveman’s and that on November 15, 1974, had driven to the Western Hills section where she was to work a shift from 5:30 till 9:00. She testified that her daughter came in that evening and that she screamed that she had been picked up in the parking lot by a black male and raped. She testified that she then accompanied her daughter to the University Hospital in Birmingham that evening for examination.

Willis Randall Stricklin testified that he was a police lieutenant with the Fairfield Police Department. He testified that he arrested the appellant Ervin Harris on November 20, 1974, after he had been identified by the prosecutrix from photographs exhibited to her as a part of his investigation in the alleged rape. He testified that the prosecutrix had driven with him on November 16, 1974, to the 1500 block in Ensley and identified an area where she had let the assailant out of the automobile. He testified that immediately upon his arrest of the appellant he read a Miranda card to him and advised that he would obtain counsel for him and appellant stated he would waive those rights. He stated that the appellant told him he did not commit the alleged rape.

He testified that he was present at the lineup with the prosecutrix a few days after his arrest and that there was no attorney present and that prosecutrix immediately selected the appellant from a group of five persons as soon as they appeared in the lineup. Officer Stricklin also identified some photographs which were of the appellant at the time of his arrest. Lieutenant Strick-lin further stated that the appellant said to him he had been playing cards with some cousins and friends on the night in question.

The items of clothing which were delivered to him by the prosecutrix on November 16, 1974, were identified and then placed in evidence, over objection.

The appellant presented the testimony of Ann Clark, Mary Jewett, Cathy Gosha, and Gregory Hunter, all of whom were either cousins or friends of appellant and each testified that appellant had been present with them on the night of November 15, 1974; that they had driven around in an automobile and then had gone over to a friend’s and played some records and played cards. They said that the appellant Ervin Harris had eaten dinner with them that evening and that he had been with them all evening on the date in question.

The appellant Ervin Harris testified that on the night of Friday, November 15, 1974, he had been over to his sister’s house and that later had gone by his aunt’s where he had been playing cards and listening to some records with several friends. He denied committing the assault on the prose-cutrix or that he had ever seen her. He testified he did not drive an automobile very well.

On cross-examination he admitted two prior burglary convictions.

I

The appellant asserts that the clothing worn by the prosecutrix at the time of the alleged rape were improperly admitted into evidence.

Though such evidence may be only cumulative and may tend to inflame the jury, its admissibility will not be affected, if such clothing sheds light upon a material inquiry, or illustrates the transaction, then such is properly admitted. Floyd v. State, 245 Ala. 646, 18 So.2d 392; Reedy v. State, 246 Ala. 363, 20 So.2d 528; Puckett v. State, 213 Ala. 383, 105 So. 211; Smith v. State, 248 Ala. 363, 27 So.2d 495.

Where as here, not only does such clothing illustrate the transaction at issue, such clearly established the “act of intercourse” and therefore sheds light upon a material inquiry in this cause. Beyond question, the clothing of the prosecutrix was properly admitted in this cause. Smith v. State, 248 Ala. 363, 27 So.2d 495; Seals v. State, 271 Ala. 142, 122 So.2d 513, and authorities therein cited.

II

The appellant contends that the State here failed to prove a prima facie case.

Rape is unlawful carnal knowledge of a woman by a man forcibly and against her will. Stewart v. State, 27 Ala.App. 315, 172 So. 675, cert. denied 233 Ala. 480, 172 So. 678; Harris v. State, 2 Ala.App. 116, 56 So. 55.

To adopt' a statement from appellant’s brief which accurately reflects the law in Alabama:

“Penetration alone, the other elements of the crime concurring, is rape, without regard to the actual completion of the act, and without regard to the condition of the mind of the prosecutrix or of the defendant subsequent to the actual penetration; but there must be actual penetration.” Herndon v. State, 2 Ala.App. 118, 56 So. 85; Waller v. State, 40 Ala. 325; Harris v. State, supra; Ballew v. State, 23 Ala.App. 274, 124 So. 123.

Penetration and sexual intercourse are synonymous terms. Ballew v. State, supra. Carnal knowledge is synonymous with sexual intercourse in its legal sense. Reynolds v. State, 274 Ala. 171, 146 So.2d 85.

From American Jurisprudence 2d, Vol. 65, Rape, Section 3, we quote:

“The actual penetration of the female sex organ by the male sex organ is required as an element of rape, according to all the authorities and this penetration constitutes carnal knowledge, which is synonymous with sexual intercourse.” Reynolds v. State, supra.

In Vol. 75 C.J.S. Rape § 10 b we find the following:

“However, penetration to any particular extent is not required, * * * nor need there be an entering of the vagina or rupturing of the hymen, the entering of the vulva or labia being sufficient; but some degree of entrance of the male organ within the labia pudendum is essential.”

We have carefully examined this record and beyond question the State proved each element of the offense in question. Thomas v. State, 53 Ala.App. 232, 298 So.2d 652, cert. denied 292 Ala. 755, 298 So.2d 657; Kelsoe v. State, 50 Ala.App. 378, 279 So.2d 549, cert. denied 291 Ala. 786, 279 So.2d 552.

Where as here, the evidence is contradictory, a jury question is presented. The jury in performing its function may believe or disbelieve all or any part of the testimony presented by either side. In our opinion, the jury properly found the appellant guilty under the evidence present■ed. Thomas v. State, supra; Kelsoe v. State, supra; and Williams v. State, 51 Ala.App. 1, 282 So.2d 349, cert. denied 291 Ala. 803, 282 So.2d 355.

We have carefully examined this record and found no error therein. The judgment is due to he and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, TT., concur.


author: HARRIS, Judge.

text:
    Rogers BECKLEY v. STATE.
    6 Div. 205.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Sarah L. Thompson, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of possessing marihuana not for his personal use and the jury assessed a fine against him in the amount of $25,000.00. The Court sentenced him to two years imprisonment in the penitentiary.

Prior to arraignment appellant made known to the Court that he wanted to represent himself and did not want a lawyer to handle the case or assist him in his defense. It is most unfortunate that appellant rejected the offer of the trial court to appoint counsel to defend him. For a better understanding as to whether appellant was fairly advised of the charge against him and that he knowingly and intelligently waived his constitutional right to he represented by counsel, we quote from the record:

“THE COURT: Read the indictment.
“MR. ANDRES: ‘The State of Alabama, Tuscaloosa County, Circuit Court, July Term, 1975. 1. The Grand Jury of said County charge that before the finding of this indictment Rogers Beck-ley, whose name is otherwise unknown to the Grand Jury, did, after September 16, 1971, unlawfully possess marijuana, against the peace and dignity of the State of Alabama. Louis Lackey, District Attorney, Sixth Judicial Circuit.’ Under the laws of Alabama this indictment charges the unlawful possession of marijuana. This can be either a misdemeanor or a felony. If it should be found that the possession was not for the defendant’s own personal use then it would be a felony and the range of punishment is not less than two nor more than fifteen years in the penitentiary and in addition a fine not to exceed $25,000.00. However, should it be determined that the possession was for the defendant’s personal use and that the defendant has not had a prior conviction for a drug violation either in this state or any other state, then it would be a misdemeanor and the range of punishment is up to one year imprisonment and a fine not to exceed $1,000.00.
“THE COURT: Misdemeanor is what?
“MR. ANDRES: Zero to twelve months and zero to one thousand dollars.
“THE COURT: Do you understand that?
“MR. BECKLEY: Yes, sir, 1 understand that, Your Plonor.
“THE COURT: Mr. Beckley, you have told me but I will ask you again. You waive your right to have a lawyer ?
“MR. BECKLEY: Yes, sir.
“THE COURT: You want to represent yourself?
“MR. BECKLEY: Yes, sir.
“THE COURT: The court has offered to let a lawyer sit here in court with you if you so desire, but you do not wish that at all ?
“MR. BECKLEY: No, sir. I figure I can best handle it.
“THE COURT: You have that right under a recent decision of the United States Supreme Court. Since you do not have a lawyer, the gentlemen from the D.A.’s office, if you want to talk about some settlement, and I am not suggesting it but they will be available to talk about it.
“MR. ANDRES: I think the Court, for the record, might ascertain his educational background.
“MR. BECKLEY: I finished twelve years high school and four years trade school. I was in service in the Marine Corps.
“THE COURT: You understand, of course, when you defend yourself, there may be some questions come up that would be objectionable that a lawyer would object to, but that is what you want to do ?
“MR. BECKLEY: Yes, sir.
“THE COURT: You feel you are fully competent and qualified to do so ?
“MR. BECKLEY: Yes, sir.
“THE COURT: The Court will be here and I will explain the method of selecting the jury if you don’t know how, but that is your right. You know the case hasn’t been set yet ?
“MR. BECKLEY: No, sir.
“THE COURT: Do we have your address here where you can be mailed a notice ?
“MR. BECKLEY: I have lived there approximately seventeen years and my age is forty years old.
“THE COURT: We have a public defender and I don’t know about your financial setup. I would ask them to advise you if you need legal advice. You can get it from them. We will see that you get a fair trial and they will see that you get a fair trial, but that will be up to you.
“MR. BECKLEY: I thank you, Your Honor.
“THE COURT: We will let the record show he maintains he is qualified to represent himself.
The judgement entry, in pertinent part, is as follows:
“August IS, 1975. This day comes Louis Lackey, as District Attorney who prosecutes for the State, and comes also the defendant in his own proper person and the defendant maintains that he is fully qualified to represent himself and does not want a lawyer at all or under any circumstances and further the Court ascertained that said defendant is a high school graduate and has attended trade school for four years, that he is fully capable of defending himself in this case by virtue of his life experience, that he under no circumstances would accept services of a lawyer in this case, that he positively did not want a lawyer to sit with him at counsel table in this case; that he wanted no legal advice in this case from any outside source; whereupon the Court again urged the defendant in this case to accept appointed counsel and he again flatly refused to accept such an appointment and thereupon the Court told defendant that he would be permitted to defend himself in this case.
Fred W. Nicol, Judge.”

Appellant was then arraigned and he pleaded not guilty to the indictment.

Just before the trial got underway it was discovered that the Clerk by oversight and inadvertence left on the strike list a juror who was then and there serving on a jury in another courtroom and he was left on the jury that was selected to try appellant. The Court, the attorneys for the State and the defendant then retired to the Court’s chambers, out of the presence and hearing of the jury, at which time the following occurred:

“THE COURT: In selecting the jury in this case it develops the clerk’s office had inadvertently left on the list for selection of the jury in this case a juror who was trying a case in another courtroom, thus leaving eleven jurors eligible to try this case at this time. The parties have agreed and the Court has ratified their agreement to let this case be tried by eleven jurors.
“MR. BECKLEY: Yes, sir.
“THE COURT: Said verdict, if any, there be returned will not be challenged on the basis of the fact only eleven jurors rendered, such verdict and the parties waive any right they might have to challenge such verdict.”

We are confronted with two major issues in this case: (1) Can an accused constitutionally waive his right to be represented by counsel and conduct his own defense, and (2) Can he constitutionally agree to be tried by a jury of eleven members. Both issues must be answered in the affirmative provided certain safeguards are adequately met.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the Supreme Court of the United States held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so, and that the state may not force a lawyer upon him when he insists that he wants to conduct his own defense.

In Faretta the Court went on to say:

“It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to hie own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ Illinois v. Allen, 397 U.S. 337, 350-351 [90 S.Ct. 1057, 25 L.Ed.2d 353] (concurring opinion of Brennan, J.).
“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268.”

Article 1, Section 6, Constitution of Alabama 1901, provides “that in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either,” * * *

There is no constitutional provision, State or Federal, that required or permitted counsel to be thrust upon appellant against his avowed wishes. The choice to have counsel was his and his alone. The issue was not then and is not now whether he might have benefited by having counsel. If he freely, intelligently and knowingly waived his right to counsel, and the record in this case fully supports that he did so, this was his right and his action in so doing should be final. Ex parte Allison, 42 Ala.App. 507, 169 So.2d 436; Elrod v. State, 281 Ala. 331, 202 So.2d 539; Jones v. State, 50 Ala.App. 541, 280 So.2d 801; Irvin v. State, 44 Ala.App. 101, 203 So.2d 283; Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309.

We turn now to the question whether appellant’s consent to trial by eleven jurors was constitutionally permissible.

The older Alabama cases hold that in a criminal case a verdict rendered by eleven jurors is invalid notwithstanding consent by the accused, the District Attorney and the trial judge. This was on the theory that trial by jury, where provided for and had, must be before a common-law jury of twelve persons. Bell v. State, 44 Ala. 393; Cleghorn v. State, 22 Ala.App. 439, 116 So. 510. It should be noted that Bell was written in 1870 and Cleghorn in 1928.

The above Alabama cases were decided prior to Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854. In Patton the Supreme Court held that a defendant could consent to be tried by a jury of less than twelve.

In Kirk v. State, 247 Ala. 43, 22 So.2d 431, the Supreme Court expressly held that an agreement by appellant and the prosecuting attorney, with the approval of the Court, that a verdict rendered by eleven jurors did not deprive the defendant of any constitutional right.

Kirk was followed by Singleton v. State, 288 Ala. 519, 262 So.2d 768, which held that with the consent of the State and the Court a defendant charged with a non-capital felony may waive a jury trial, enter a plea of not guilty and be tried by a circuit judge without a jury, and such waiver is not violative of public policy.

On May 6, 1975, George Barrows, a Special Agent with the United States Treasury Department, appeared before a Federal Magistrate and made an affidavit leading to the issuance of a search warrant to search the residence of appellant located at 2806 39th Avenue, Tuscaloosa, Alabama for “one short barrel shotgun, single barrel, blue finish, with a pistol grip, and a barrel length of approximately 15 inches and an overall length of 21 inches, name brand unknown.” The affidavit was based upon information furnished Agent Barrows by an unidentified informer who had given reliable and correct information in the past.

On May 7, 1975, at 9:15 a. m., Agent Barrows and three other Special Agents went to appellant’s home and executed the search warrant. Appellant and his wife were present at the time the search warrant was served. In the den of appellant’s home was a pool table and underneath the pool table was a ledge upon which was found a sawed-off shotgun and two rolled cigarettes and cigarette papers. Other guns, pistols and revolvers were found during the search but it is unnecessary to further identify them.

Agent Barrows gave appellant the Miranda rights and warnings. Appellant stated that he understood his rights and that he did not want a lawyer. Agent Barrows further stated that no promises, threats, rewards, or other inducements were made to get appellant to make a statement and that he would answer any questions. Appellant admitted he owned the sawed-off shotgun an dthe marihuana cigarettes, adding that it was not illegal to own two “Mary Janes” in your house. The “Mary Janes” referred to were the two marihuana cigarettes.

Agent Barrows called Sergeant L. N. Bradford of the West Alabama Narcotics Squad in Tuscaloosa and he came to the appellant’s home in about 20 minutes and received the two cigarettes from Agent Barrows. He ran a “field test” on the cigarettes and determined the contents were marihuana. This material was subsequently delivered to the Toxicology Laboratory where a chemical analysis was made and the contents of the two rolled cigarettes, it was established, were marihuana.

Out of the presence and hearing of the jury, the prosecution sought a ruling on the validity of the search warrant and not be forced to introduce it into evidence and thereby cause any possible prejudice to appellant by disclosing federal offenses against him.

From the record:

“MR. ANDRES: Further let the record reflect we all approached the bench out of the presence of the jury and explained we wanted to go into the federal search warrant out of the presence of the jury so as not to disclose to the jury the pending federal charge and further explain to Mr. Beckley we felt it would be to his benefit and we did not want to prejudice his case. And he stated he felt this was all one matter and he wanted to go into it. Is that essentially right, Mr. Beckley?
“MR. BECKLEY: Yes.”

Appellant cfoss-examined all of the State’s witnesses. He repeatedly asked questions about the sawed-off shotgun after the Court admonished him over and over again that the State was not interested in any of the guns and cautioned him to confine his questions to the marihuana charge for which he was on trial. He even introduced the shotgun into evidence over the prosecutor’s statement that the State, “had no wish that it be offered in evidence.”

After the State rested, appellant realized that he had blundered in rejecting the Court’s offer to appoint a lawyer to represent him and at that late time he requested the appointment of a lawyer. The Court denied the request saying, “I urged and begged you to let me get you a lawyer, even to sit with you at the table and you did not want one and you stated that you did not want one. And you stated you felt you were competent and qualified and I am going to overrule the motion.”

In Adams v. United States ex rel McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, and Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172, the defendants had competently waived counsel but latex-sought to renounce actions taken by them while proceeding pro se. In both of these cases the Supreme Court of the United States upheld the convictions. Both Adams and Carter 'support the conclusion reached in Faretta that a defendant who represents himself may not thereafter dis-affii-m his deliberate trial decisions.

There is a footnote in Faretta that is worth repeating here :

“The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thei-eafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ”

A careful search of the record discloses there is nothing “open” to him on this appeal.

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


text:
    Joe Junior DOUGLAS v. STATE.
    4 Div. 430.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.

      Rufus R. Smith, Jr., Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the first degree murder of his former wife, Frances Coleman, “by cutting her with a knife.” The jury found the appellant guilty of murder in the first degree as charged and fixed punishment at life imprisonment. The trial court then set sentence in accordance with this verdict.

Alice Johnson testified that on June 29, 1975, she was living with her daughter, the deceased Frances Coleman, in Dothan, Alabama, at 304 East North Street. She stated that her daughter Frances had formerly been married to Joe Junior Douglas, the appellant, but they were divorced.

Mrs. Johnson stated that on the evening of June 29, she returned to her daughter’s home and found the appellant there sitting on the front porch talking to her daughter. Mrs. Johnson stated she was eighty-three years of age and had just been on a brief trip to Newton, Alabama. When she returned, she heard the appellant say to her daughter that, “he wanted her,” and that her daughter said she would see what she could do. She stated her daughter then said for him to call her the next evening. From the record:

“Q. What happened then, Mrs. Johnson?
“A. He wanted to go to the bathroom and asked if Frances let him go. And he went in the bathroom and he stayed a good while in there. And he came out and we was standing in the living room. He came out of the bathroom and he stood at the kitchen door, one hand on the side and went a peeping all in the kitchen. And when he come out, Frances was standing a little ahead of him. He throwed his left arm around her neck and he just put into cutting on her. And I said huh-hu and he just kept a cutting her and throwed her over in a chair. And I hollered don’t hurt her and I hollered help, help, help, help. Nobody didn’t come to me. And at that time, I thought about a blade I will just be truthful, I thought about a blade I carried in the house for her protection because I was there every day by myself.
“Q. Is that a lawn mower blade?
“A. That’s a lawn mower blade.
“Q. Where was this?
“A. Behind the chair. Not the chair Francis was in, the chair I usually sit in, and I reached back and got it and I hit him with it. And he cut Frances again and he turned around and caught me and said you bitch you, I will kill you. And I just thought it was my last too. I didn’t have no protection.
“Q. Did you hear any shots at any time?
“A. I did. I heard two shots.
“Q. Where was Frances and Joe when you heard the shots ?
“A. Frances was in the chair.
“Q. By the air conditioner?
“A. Uh-huh. And Joe was cutting her.
“Q. All right.
“A. And I went, he throwed her over in the chair I was sitting in and that is when he grabbed me.
“Q. After he grabbed you and took the blade away from you, what did he do then?
“A. He went out the door, that was as far as I could see.
“Q. All right.
“A. I hollered and hollered and another man came and he got there to (sic) late. I hollered help, help, help and nobody ever come.
“Q. Did you see what happened to the gun?
“A. No, I didn’t see the gun. I just heard it shoot.”

Mrs. Johnson stated she called to her daughter to shoot again, but heard nothing further.

On cross-examination Mrs. Johnson said that her daughter went by the last name of Douglas at the time of her death and that she had been formerly married to Coleman and then married a second time. She stated that the instance in question happened shortly after 7:00 P.M. just before dark on the evening in question. She stated that in response to questions, she did not know where the pistol came from, that she did1 not see one in her daughter’s hands, or on the dresser or coffee table near where the appellant had thrown her daughter. She stated that she had only been back at the house ten or fifteen minutes when the fight started. She testified she saw the appellant cut her daughter with a knife.

Alexander Neal testified that on June 29, 1975, he lived at 306 East North Street in Dothan, that he heard some people “hollering” next door and that he went over to see what was happening-. He said he tried to help Mrs. Johnson and saw Frances sitting in a chair in a pool of blood. He said that he met the appellant coming out of the house and as the appellant ran past him, he exclaimed, “he was tired of these mothers and daughters running over him,” and that he used curse words. On cross-examination, he stated he could not tell whether Joe Douglas was hurt or not.

Danny McGriff testified he was a patrolman for the city of Dothan on June 29, 1975. Officer McGriff stated he went to 306 East North Street in response to a call and saw one Alexander Neal who identified himself as a next door neighbor. He observed the body of Frances Coleman in a chair, “slumped over with blood all over her.” He called for a detective and the coroner. He stated that Police Sgt. Larry Lynn was the first to arrive and that he assisted Lynn in taking photographs. He identified a photograph of the victim, Frances Coleman, as accurately representing the scene when he first arrived. He testified that Sgt. Lynn locked up the house after the investigation.

Sgt. Larry Lynn testified he was with the Criminal Investigation Unit of the Dothan Police Department on June 29, 1975. He stated that upon his arrival at 304 East North Street, he met Officer Danny McGriff and a next door neighbor named Alexander Neal. He testified that together with Officer McGriff, they checked the body of Frances Coleman for vital life signs and found none. He said he was present when an ambulance attendant also checked for vital signs and none were found.

Sgt. Lynn described the living room of the house as being a “mess” and that blood was all on the walls, the floor, coffee table and on the couch, that there was some broken furniture, and that he found a lawn mower blade in the middle of the floor. He further testified that he locked up the premises after the body was removed and that two days later, he went back with Sgt. Robert Davis and made a search of the living room. At this point, they found “the point of a pocketknife” blade and turned this over to Criminalist Dale Carter of the Department of Toxicology. Sgt. Lynn further stated that on the evening of the homicide, Mrs. Alice Johnson had given him some clothing which was also turned over to the Department of Toxicology.

On July 3, 1975, Sgt. Lynn received information that the appellant was at 559 Hall Street in the city of Montgomery, Alabama, and at that time, accompanied by Sgt. Black, they arrested the appellant and made a search of his person.

Upon searching the appellant’s pant's pocket, a pocketknife was found and the tip of the blade was missing. He testified this pocketknife was turned over to Dale Carter of the Department of Toxicology. In response to questioning, Officer Lynn stated that he had been advised that subsequently a pistol was found in the living room of the home. On cross-examination he testified that at the time of the arrest, there were two small caliber gunshot wounds in the appellant’s back, “just above the belt line.”

Sgt. Robert Davis corroborated Sgt. Lynn’s testimony concerning the finding of the tip of the knife blade.

Dale Carter testified that he examined the small triangular shaped piece of metal which had been delivered to him by the Dothan police officers and also the pocketknife and found that the tip was from the same knife.

G. R. McCahan, Jr., testified that as State Toxicologist he performed an autopsy on one Frances Coleman at Southeast Alabama General Hospital on June 30, 1975, that Coroner Jack Still, Dr. James Buttram, and Dothan Police Officers Ronald Black and Sgt. Larry Lynn were both present. He said that he found extensive knife wounds on the body of the deceased, that several of these were deep stab wounds in the area of the throat, chest and jaw, that some of these were two to three inches in depth; that on the left side of the throat, there were eight slices and on the right side of the throat, four slices; and that the right carotid had been severed; that on the left side the common carotid artery was severed once and almost severed a second time. There were numerous stab wounds about the face and body of the victim. He testified that the cause of death was the “severing of the carotid arteries in the neck.”

Dr. McCahan testified he had also received a pocketknife and a piece of metal tip which he had turned over to Mr. Carter of his laboratory for examination. He further testified he had received one bullet which was identified as being removed from the body of Joe Junior Douglas, a pair of blue trousers belonging to Douglas, and a .22 caliber Rohm pistol, Serial No. 1191252, together with four live rounds and two spent cartridge cases.

Charles Brooks testified he was employed by the Department of Toxicology in Enterprise, Alabama, on June 29, 1975. He testified that from Mr. Dale Carter of the Department he received a lawn mower blade and pocketknife with broken tip, that he delivered these to Mr. William H. Lan-drum.

Mr. Landrum testified that he received a lawn mower blade, pocketknife and knife tip and made an investigation for the presence of blood; that he had also received from Dr. McCahan a sample of blood identified as being from the person of Frances Coleman. Mr. Landrum testified that the victim’s blood was group B, MN, and that he found the presence of this type blood on the knife.

The appellant’s motion to exclude for failure to make out a prima facie case was overruled.

The Defendant called one Earl C. Jones. He testified on July 7, 1975, he received some keys to the home of Frances Coleman, who was his mother-in-law, from Officer Larry Lynn. He stated he was cleaning the house and that he found a .22 caliber small pistol which had been covered by a small bedroom shoe and that he turned these items over to Sgt. Lynn that day. He testified that a vase of flowers had been knocked over and was lying in the same area where he found the pistol.

At this point, the State and the defendant stipulated as to a .22 caliber bullet which had been removed from the person of the appellant, Joe Junior Douglas, by Dr. McClintock.

Sgt. Larry Lynn was then recalled and testified that he turned over the pistol which he received from Earl Jones, and the bullet which he received from Dr. Mc-Clintock, to Criminalist Dale Carter.

Dr. McCahan was then recalled and testified that he received the pistol and bullet from Officer Lynn and turned them over for examination to Dale Carter. Dale Carter was then recalled and testified he made a test comparison of the bullet removed from Joe Douglas with test firings from the .22 pistol and said that the bullet in question was fired from a pistol with the same identical class characteristics but that he could not positively state that the bullet was from the pistol, but that “it could have been fired in that pistol.”

Joe Junior Douglas then testified that he had gone to the home of Frances Coleman on the afternoon of June 29, 1975, after receiving a telephone call from his ex-wife; that she had called him about 6:00 that evening. He testified that the deceased had “a warrant sworn out” for “breach of peace.’’ He said that he went over to give her $30.00 to pick up the warrant and that he gave her $50.00 more. He stated that she wanted him to open up a bank account and put money in it in her name and that he had helped her pay some bills. He said he did not want to come over without her consent and that later while they were talking, the deceased’s mother came home, and they began to argue. From the record:

“ . . . And she said well, I am just tired of you fooling with me and I don’t see why you worry me. And her mama was sitting right there in the chair, with her hand down to her side. And, I didn’t see nothing at that time. And her mother was sitting there in the chair with her arm hanging down beside her and I said Frances, I did not come over heré to harm you. I said I wouldn’t be here if you didn’t invite me here. And I said within myself, god dog, I done walked in a trap. I said no telling who is here to kill me. I said well, I’m going and I will call you sometime tomorrow. And she said no, don’t go. When I was right there at the door, her mama hollered said shoot him. And a bullet hit me in the back. And she said shoot him again. And a bullet hit me in the back. And she said shoot him again. And a bullet hit me in the back and I went to my knees. Well, when I went to my knees, and I turned around on my knee on one knee and one foot, her mother had the lawn mower blade coming down. First, I got caught on my arm. And the next lick that she went to come down on me, I caught that on my shoulder over here on this shoulder, right here when I had made a turn. And, I took my feet and placed it in her stomach and kicked her over to the side of the wall. Well, at that time the pistol in Frances hand snapped again. Well, when the pistol snapped again, I will admit that I run my hand in my pocket but I didn’t do that with no intention of doing nothing to her, just trying to analyze, I mean smooth things out. I reached my hand in my pocket and I pulled my knife out and went to sticking on her hand. And, she was still hitting on me with the pistol. And I went to getting blood in all of my eyes and I couldn’t see. What this doctor say about all this unnecessary cutting, I don’t remember doing all that cutting. And, I got one hundred and fifty dollars in my pocket to prove to them Jury and not charge to the County, I take a lie test to prove that I am telling the truth. And I am paying for the lie test. And I will pay for the lie test that her mother invited me there.”

The appellant further testified he was operated on and had one bullet removed from his back and that he had had to have an additional operation and that one of the bullets was near his spine and could not be removed. On cross-examination appellant admitted a 1948 grand larceny conviction, a murder in the second degree conviction in March 1950, and a first degree murder conviction in July 1952.

I

Appellant first asserts that the trial court erroneously admitted into evidence the “gruesome photographs of the victim.” We have carefully examined these photographs and they graphically depict the testimony of Mrs. Johnson and Officer Danny McGriff immediately after the homicide. We are of the opinion that these photographs were properly received in evidence. Smarr v. State, 260 Ala. 30, 68 So.2d 6; Nichols v. State, 267 Ala. 217, 100 So.2d 750; Brodka v. State, 53 Ala.App. 125, 298 So.2d 55.

II

Appellant also asserts that there was a fatal variance between the indictment and the testimony at trial since the appellant’s mother referred to her as Frances Douglas. The indictment in question refers to the deceased as “Frances Coleman, whose name is to the Grand Jury otherwise unknown.” Further, Mrs. Johnson testified that her daughter had remarried after her divorce from the appellant. Also the neighbor stated he knew the deceased as “Frances Coleman.”

We are of the opinion that no fatal variance is here shown. Ward v. State, 242 Ala. 307, 6 So.2d 394; Clark v. State, 21 Ala.App. 597, 110 So. 562; Sawyer v. State, 26 Ala.App. 434, 162 So. 314.

Beyond question, the State of Alabama presented a prima facie case and after careful examination, we find the record free of error. We are of the opinion appellant received a fair and impartial trial, and the judgment is therefore to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.


text:
    James Harrison CLARK, alias v. STATE.
    5 Div. 319.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied April 20, 1976.

      James T. Gullage, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant, defendant at nisi prius, was indicted for assault with intent to murder and convicted as charged. The trial court fixed punishment at twenty years imprisonment. Defendant’s plea was not guilty and not guilty by reason of insanity.

This is a second appeal involving the same offense. Clark v. State, 54 Ala.App. 183, 306 So.2d 51, cert. denied 293 Ala. 749, 306 So.2d 54.

It appears from the undisputed evidence that the victim of the alleged offense, who was married and the mother of children, and the defendant, who was divorced, had been engaging in clandestine sexual relations at intervals for about five years. The victim became penitent and decided to discontinue these conjugal embraces. Just prior to the alleged shooting, she had so informed defendant and'declined to accept his sexual appeals. The defendant shot her twice while they were struggling. We omit further details which appear in the report, supra, of the first trial.

I

Appellant asserts error in the court’s refusal to give his written charge 59, reading as follows:

“The court charges the jury that upon the trial of an indictment for assault with intent to murder, the jury may find the accused not guilty of the offense charged in the indictment but, if the evidence warrants it, guilty of an attempt to commit such offense.”

Section 38, Title 14, Recompiled Code 1958, reads:

“Any person who commits an assault on another, with intent to murder, maim, rob, ravish, or commit the crime against nature, or who attempts to poison any human being, or to commit murder by any means not amounting to an assault, shall, on conviction, be punished by imprisonment in the penitentiary for not less than two nor more than twenty years.”

It is to be noted that the indictment alleges that the defendant, “. . . unlawfully and with malice aforethought did assault [naming the victim] with the intent to murder her.”

The charge, supra, instructs, the jury that they may find the accused not guilty of the offense charged in the indictment but, if the evidence warrants it, guilty of an attempt to commit such offense.

Therefore, under such instructions, the jury’s verdict would properly read, “We the jury find the defendant guilty of an attempt to commit an assault with intent to murder [naming the victim].” Such a verdict could only mean that the defendant was guilty of an attempt to commit murder. We quote from Burton v. State, 8 Ala.App. 295, 62 So. 394, as follows:

“The defendant was indicted for an assault with the intent to rape, which is made a felony by section 6309 of the Code, punishable by imprisonment in the penitentiary for not less than two years. He was convicted of an ‘attempt to commit an assault with intent to rape,’ and sentenced by the court, as for a misdemeanor under section 7622 of the Code, to hard labor for the county for a term of six months. The defendant moved in arrest of judgment that the verdict of the jury, finding him guilty of an ‘attempt to commit an assault with intent to rape,’ was void, in that there is no such crime known to the law. The motion was overruled. In this the court committed no error. White v. State, 107 Ala. 132, 18 So. 226. The verdict and judgment that the defendant was guilty of an ‘attempt to commit an assault with intent to rape’ can only mean that the defendant was guilty of an ‘attempt to commit rape,’ which attempt did not proceed far enough to amount to an assault. Lewis v. State, 35 Ala. 380; Prince v. State, 35 Ala. 367.”

It is to be noted, however, that the evidence, without dispute, shows that the attempt did proceed far enough to amount to an assault. The victim was shot twice with a pistol in the hands of defendant. The charge was premised in the alternative on the absence of an actual assault.

So a critical issue was the existence vel non of an intent to murder. In the absence of such intent, the offense would be reduced to assault and battery or a kindred offense, embraced in the indictment. The evidence would not justify a jury verdict of an attempt to commit murder because the statute (T. 14, § 38) plainly says that the attempt to commit murder must be “by means not amounting to an assault,” and is a felony. Therefore, under the facts in this case, there was no place in the proof for the application of the doctrine of an attempt to commit the offense of assault with intent to murder, i.e. an attempt to commit murder.

The refused charge 59, supra, is paraphrased after Section 42, Title 14, Recompiled Code 1958. We quote:

“Upon the trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt.”

Thus Section 42 has no field of operation in the instant case. The defendant was guilty of either assault with intent to murder, of assault and battery, or assault with a weapon, if anything. Stovall v. State, 34 Ala.App. 610, 42 So.2d 636. The assault was a completed act. Broadway v. State, 36 Ala.App. 542, 60 So.2d 697, states:

“Unquestionably the evidence sustained the finding that the charged offense was being perpetrated in its completed commission and that the accused was engaged in this commission.
“In the state of the record there is no place in the proof for the application of the doctrine of attempt to commit the charged crime. The written tendered charges were, therefore, abstract and properly refused. De Graaf v. State, 34 Ala.App. 137, 37 So.2d 130.”

There was no error in the refusal of this charge.

II

Appellant asserts that the court erred to reverse in refusing his charge 31, which states:

“The Court charges the jury that if there was sufficient provocation to excite sudden passion, and the defendant acted under such passion, then the presumption is that passion disturbed the sway of reason and made him regardless of his act; and if the jury are satisfied from the evidence in this case that the defendant did act under such passion when he fired the shots, then you should not find the defendant guilty of assault with intent to murder.”

Pretermitting the validity of the charge, we are unable to find any evidence of sufficient provocation to excite sudden passion on the part of the defendant. The fact that the victim wanted to discontinue the clandestine sexual intimacy and had so informed the defendant, who then fired the shots into the victim’s body, does not justify or excuse the assault. Ellis v. State, 120 Ala. 333, 25 So. 1; Chestnut v. State, 7 Ala.App. 72, 61 So. 609; Elmore v. State, 226 Ala. 327, 146 So. 826. Informing defendant of such sexual termination was not sufficient as a matter of law to create sudden passion referred to in the refused charge. We note defendant did not take the stand and did not put up any witnesses except one to support his insanity plea; nor facts or witnesses relating to the res gestae.

There was no error in refusing charge 31, supra.

III

Defendant contends the court erred in refusing his written charge 32, which is as follows:

“The Court charges the jury that in order to reduce the offense in this case from assault with the intent to murder to assault and battery, it is not necessary that the defendant, at the time he fired the shots, should have been unconscious of what he was doing; but, if there was a sufficient provacation (sic) to excite sudden passion, and the defendant acted under such passion, then the presumption is that passion disturbed the sway of reason, and made the defendant regardless of his act, and if the jury believe this from the evidence, then you should find the defendant not guilty of an assault with the intent to murder.”

This charge was correctly refused as was 31, supra. We pretermit discussing other defects in the charge.

IV

The appellant contends the court erred in refusing his written charge 51 as follows :

“If you find from the evidence in this case that the defendant on the occasion complained of, was so intoxicated that he was unable to form or entertain malice, as a proximate result of such intoxication, then you cannot convict the defendant of an offense higher or greater than assault and battery.”

The trial court charged the jury orally as follows:

. . Voluntary drunkenness does not excuse a crime. But in a case of this kind which requires a felonious intent, before- you co.uld convict this defendant, you would have to find that he was not so drunk that he could have the necessary felonious intent. I’ll put it this way: If you find that he was so completely drunk that he was incapable of forming a felonious intent, then you could not find him guilty. As I said, voluntary drunkenness is no defense; but if he was so drunk that he could not form the felonious intent, such drunkenness would be considered a defense in this case.” (Emphasis supplied.)

We have said in' Bowen v. State, 32 Ala.App. 357, 26 So.2d 205, that assault with intent to murder is an assault with an intent to take life, under circumstances which if successful would constitute murder in either degree.

We also observed in Clack v. State, 29 Ala.App. 377, 196 So. 286, that malice aforethought is an essential ingredient of murder in the first or second degree, but does not apply to the offense of manslaughter. Where there is an absence of malice, though the killing is not justified, it is not murder. Simpson v. State, 31 Ala.App. 150, 13 So.2d 437.

Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. Title 14, § 314, Recompiled Code 1958; Warren v. State, 34 Ala.App. 447, 41 So.2d 201. “Legal malice” as applied to a homicide is an intent unlawfully to take the life of another without legal excuse, justification or mitigation. It is not necessarily ill will or hatred. Warren, supra; Miller v. State, 38 Ala.App. 593, 90 So.2d 166.

We thus observe that “legal malice” is an ingredient of murder (in the second degree) and embraces an intent to take human life without legal excuse, justification or mitigation.

Since malice embraces an intent to take human life, we hold that the refused charge, 51, supra, was covered by the oral charge above quoted and was refused free of error. Title 7, § 273, Recomplied Code 1958.

This is true even though the oral charge referred to “felonious intent” without the addition of words “to take life.”

The refused charge, supra, was not explanatory of the oral charge, but itself was confusing for that it failed to define “malice,” leaving the jury to conjecture and to cast about as to the lawful definition of the word.

We find no error in the refusal of other written charges. They were either misleading, confusing, inapplicable to the evidence, or did not state correct principles of law.

V

Appellant’s next insistence is that the court erred in overruling defendant’s objection to certain evidence.

During the progress of the trial, the victim testified that she was shot in the back. During the examination, she was asked if either of the bullets was removed. She answered, “No, sir.” Then followed a belated objection, which was overruled.

The answer was error without injury for that failure to remove the bullet shed no light on the offense charged. The evidence was undisputed that defendant fired the bullets into her body. The issue was whether or not the act of shooting the victim constituted an offense embraced in the indictment. The mere failure to remove the bullets shed no light on the guilt or innocence of defendant. The advisability of removing the bullets vel non was a medical question.

We hold that the trial was free of error and that the judgment should be affirmed. It is so ordered.

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

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re James Harrison CLARK v. STATE. Ex parte James Harrison Clark.
    SC 1833.
    Supreme Court of Alabama.
    July 2, 1976.
    James T. Gullage, Opelika, for petitioner.
    None for the State.
   MADDOX, Justice.

Petition of James Harrison Clark for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Clark v. State, 57 Ala.App. -, 333 So.2d 885.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Vernon O. GRIGSBY v. STATE.
    6 Div. 126.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied April 20, 1976.
    Lewis K. Cato and James B. Morton, II, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Possession of marijuana for personal use; sentence: one year imprisonment in the county jail. The appellant waived trial by jury, and the case was tried solely before the circuit judge.

Joe Marsh, the State’s first witness testified that he was a reserve deputy of the Blount County Sheriff’s Department. On the night of July 21, 1974, he was on duty and patrolling with a regular deputy sheriff, Larry Staten. They drove by a chert pit near the Lebanon Church in Blount County where several cars were parked and a group of young people were gathered. He stated that they stopped and started talking to some of the gathering to determine what was happening. Marsh said that he saw the appellant coming from the direction of a small yellow convertible. The appellant was having difficulty walking and appeared to be drunk. The top of the convertible was open, and Marsh looked inside. He saw a brown grocery bag containing four or five plastic bags with a green substance in them. He lifted the bag out of the car, and Deputy Staten then asked, “Who does this belong to ?” Marsh said that the appellant answered, “It’s mine.” Marsh stated that another person present, Coleman Elrod, claimed the material and both were arrested and charged with possession of marijuana.

Deputy Staten testified that he and Marsh stopped at the chert pit and got out of the patrol car to determine what was happening. They talked' to some of the people there and then started looking through the windows of the cars parked there. He stated that he was merely looking through the windows, but Deputy Marsh was, “giving the cars a pretty thorough search.” Staten said he observed the appellant when they arrived and that he was staggering and appeared to be intoxicated. He testified that Marsh picked up a bag of marijuana from the yellow sports convertible.

Staten testified that he was trained in identification of controlled substances and marijuana, that he had experience as an officer with marijuana, and that based upon his training, experience and knowledge in recognizing controlled substances and drugs, that in his opinion, the bag contained marijuana. He testified that he asked who the marijuana belonged to and that the appellant said, “It’s my marijuana.” Staten said Coleman Elrod then spoke up saying, “That marijuana doesn’t belong to Vernon. I bought it from him.” Elrod was then arrested also. A report from the State Toxicologist, stating that the substance was found to be marijuana was introduced during Deputy Staten’s testimony. On cross-examination, Staten testified that he had not seen the appellant in the convertible and had not seen him in possession of the marijuana. The State rested its case. There was no motion to exclude the State’s evidence at that point.

The defense called Coleman Elrod who testified that he was present on the night in question and that he had borrowed the appellant’s car. He stated that he went and picked up the sack of marijuana. He then returned to the chert pit, and that the appellant had not been in the car from the time he drove it until the marijuana was found by the deputy. The witness further stated that the appellant had no knowledge of the marijuana, did not own it, sell it to him, or otherwise have anything to do with the marijuana. Elrod testified:

“They got out and first started searching cars and asking us what we were doing there. And we said we were just up there sitting. And they found marijuana in Vernon’s car. And they asked whose car it was. And Vernon stood up and said, ‘It is my car.’
“And then the officer said, ‘You are under arrest for possession of marijuana.’ And I said it was my marijuana. And I tried to explain to him that I had just driven the car. And they said, ‘Well, you are under arrest for possession of marijuana. And Mr. Grigsby, you are under arrest for public drunkenness.”

Elrod further testified that he had plead guilty to possession of the same marijuana and that he was presently under sentence.

Ralphine Hayes, Debbie Belou, Donald Nichols and Larry Edwards Cornelius each testified for the defense in substance as follows : that they were present at the chert pit on the night in question together with the appellant and were merely visiting and talking; that no one was smoking marijuana or in possession; that they did not see the appellant in possession of marijuana or hear him having conversation about it until the police arrived; that Coleman Elrod borrowed the appellant’s car and was absent for a time and then returned; that the appellant did not go back to his car or near it from the time Coleman Elrod returned; that the appellant did not state to the deputies that the marijuana found in his car gelonged to him, and; that the deputies told the appellant they were placing him under arrest for public drunkenness.

The appellant, Vernon Grigsby, testified that he was placed under arrest for possession of marijuana on the night of July 21, 1974, when a sack of marijuana was found in his car. He stated that Coleman Elrod was placed under arrest for possession of the marijuana when he came up and told officers that it belonged to him, and at that point, the appellant was placed under arrest for public drunkenness. He said that he at no time told the officers that the marijuana belonged to him, but he had told them his name and that the car belonged to him. He stated that the marijuana did not belong to him and that he had no knowledge of it until the deputies found it. He did not know that Coleman Elrod was going to get the marijuana and said that he had not been in his car or close to it since Elrod returned with it. He stated that he had not been smoking marijuana or drinking, but that he was tired and had been up all weekend because of some medicine he was taking.

At the end of the appellant’s testimony, the defense announced: “That is our defense, if it please the Court. That is all that we have.” The following then immediately occurred:

“THE COURT: Well, I am convinced beyond a reasonable doubt that the Defendant had marijuana in his possession. And we agreed that it would be tried as a misdemeanor. And it would be the finding that he had it for his own personal use. And of course, I think the evidence might have shown that he—
“MR. CATO: Would Your Honor care to hear from me on this case, or have you made up your mind?
“THE COURT: I have heard the evidence.' And I am satisfied that he was in possession of marijuana and that he was having it for his own use of some kind. I am finding the Defendant guilty of possession of marijuana for his own personal use. . . .”

The court promptly judged the defendant guilty and asked the appellant and his counsel if they had anything to say before sentence was pronounced. Defense counsel stated: “Your Honor, we take exception to the Court’s ruling.” The court asked if he had anything further to say, to which the defense counsel replied that the evidence was insufficient to sustain the finding of guilt.

The appellant contends that the trial court erred in refusing him the right to be heard in closing argument, through his counsel. The State, in its brief, contends that there are no cases holding that a judge in a non-jury trial must hear closing arguments. The State contends that the only right to argument is limited to jury trials, pointing out that each case cited in appellant’s brief on this point refers only to jury trials.

This issue was conclusively decided by the United States Supreme Court on June 30, 1975, in the case of Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593. There, at the conclusion of the case for the defense, Herring’s attorney requested to “be heard .somewhat on the facts.” The trial judge responded: “Under the new statute, summation is discretionary, and I choose not to hear summations.” The trial judge immediately adjudged Herring guilty and subsequently imposed sentence.

The Supreme Court held that the New York statute, granting power to judges in non-jury criminal trials to deny the right of summation by counsel, was an unconstitutional violation of the Sixth Amendment right to assistance of counsel.

Quoting from Herring, we find:

“There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge. The issue has been considered less often in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a non jury criminal trial is a denial of the basic right of the accused to make his defense.” (Footnotes omitted.)

The decision in Herring, is binding upon this Court. The trial court’s refusal to allow closing argument by appellant’s counsel in the instant case is, therefore, a denial of assistance of counsel in contravention of the Sixth Amendment to the United States Constitution.

REVERSED AND REMANDED.

AH the Judges concur.


text:
    In re Vernon O. GRIGSBY v. STATE. Ex parte STATE of Alabama.
    SC 1815.
    Supreme Court of Alabama.
    July 2, 1976.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for petitioner, the State.
    None for respondent.
   MADDOX, Justice.

Petition of the State for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Grigsby v. State, 57 Ala. App. -, 333 So.2d 891.

WRIT DENIED.

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