author: L. S. MOORE, Retired Circuit Judge.

text:
    Bobby Gene CHILDRESS v. STATE.
    7 Div. 466.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 8, 1977.

      W. N. Watson for Watson & Watson, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   L. S. MOORE, Retired Circuit Judge.

The appellant was indicted, tried, convicted and sentenced for the offense of assault with intent to murder. His punishment was fixed by the final judgment at imprisonment in the penitentiary for eight years. The indictment among other things charged that the appellant “did assault Floyd W. Cole, with intent to murder him.” Hence this appeal.

In substance the witnesses for the State testified as follows.

Floyd W. Cole testified that he lived in DeKalb County, Alabama; that Betty No-velle Cole was and is his wife; that he married her in November, 1975 and that she had previously been married to appellant; that she and appellant had three children, Billy, Bobby, and Alvin; that those children lived with him and their mother and were so living with him and his wife, their mother, on December 7,1975. He stated that on that date about 5:30 daylight time, the appellant came to his home; that appellant came in a car that was loud (made noise) and it awakened him and his wife and his wife went to the door and appellant was at the door. He stated that appellant said he wanted to see the children; that he was still in bed at that time, that his wife came back and asked him if it was all right and asked him to get up and to tell him. He said he got up and asked appellant, “You Bobby Gene?” and he said, “Yes,” and “I said ‘Come in.’ ” He said that was the first time he had ever seen the appellant. That he came in and woke the children up and told them their daddy was there to see them; that he turned around and saw appellant putting a gun in his back pocket, a black revolver with a short barrel; that when he first saw the gun appellant was letting the hammer down on the gun and putting it in his pocket; that he let the appellant visit with the boys; that appellant remained there five or ten minutes and left; that neither he nor his wife had any other conversation with appellant during that visit; that about five minutes after appellant left, he came back and said he broke his gearshift off and could not get it in gear; that he went out and helped him get it in gear and he left; there was a woman with him but she never came in the house and he did not know her.

He further testified that about five minutes later he came back and came into the house without invitation and without knocking on the door; that he asked the witness’s wife if he could have the boys and she told him no; that he (the witness) said, “Well, now he can. He can come see them at any reasonable hour and if he is not drinking." He stated that appellant then asked his wife when their divorce was final; that his wife got the divorce papers and the appellant jerked off his coat and threw it on the floor and said, “I’ll finalize it right now. I’ll kill you.” Mr. Cole stated that his wife stepped in between him and appellant and that he (Mr. Cole) shoved her, and just as he shoved her, appellant fired the shot; that he got the gun from his back pocket; that he fired a second shot which hit the wall; that the first shot hit the witness in the one leg going through that leg and into and out of the other leg. That when the first shot was fired, his wife made a dive for the back bedroom; that after both shots were fired, the appellant ran out the door; that he, the witness, made a dive for the back room; that the witness went to the hospital and was treated there. He further testified the appellant was drinking when he came to the witness’s home on the occasion in question.

On cross-examination this witness drew a diagram of his home which was not introduced into evidence and with reference to that diagram gave the following testimony. We here quote from the record:

“Q. Would you just draw the outline of the house and rooms, please sir?
“A. It’s just simple. It’s, you might call it a three-room house. It’s made sort of like a square box, just a straight frame like that. You have a back bedroom here. You have a little partition that comes here for the kitchen, and this is the living room. We had the boys’ bunk beds here.
“Q. Would you show me where the road runs?
“A. The road runs, oh, I’d say 20 or 25 yards in front of the house. It’s the main road and I have a driveway coming from behind the house like this.
“Q. Where was Bobby Gene standing when he came back in?
“A. Would you mind repeating the question?
“Q. Where was Bobby Gene when he fired the shot?
“A. He was right here at the kitchen table kindly out from this partition. He was standing right here at the corner of the kitchen table, and I was standing here where the bunk beds was. There’s a chair. I got up out of this chair and there’s a couch here. And my wife was sitting on it and she got up and got the paper out of this end table right here. She walked over to show him when the divorce was finalized, and he jerked his coat off and throwed it. When he did I stepped here and shoved her out of the way.
“Q. Where’s the front door on this house?
“A. There’s one here. There’s one here at this back room door, and there’s one here.
“Q. Now, which door did Mr. Childress go out of after he fired the shots?
“A. Back door.”

This witness on direct examination had testified as above set out that appellant said, “I’ll finalize it right now. I’ll kill you.” On cross-examination with reference to the statement, “I’ll kill you”, we now again quote from the record:

“Q. Now you testified, I believe, that he came back in and after all this thing about the divorce and everything you said he said, ‘I’ll kill you.’ Was he talking to you at that time?
“A. Well, I can’t really say that for sure, sir. I believe he was talking to my wife.
“Q. You think he was talking to your wife. So, he said he was going to make the divorce final and said he would kill her, is that right?
“MR. IGOU: Object to that. He didn’t say he’d kill her. He said he didn’t know, object to it.
“THE COURT: Overruled.
“Q. So, he said ‘I’m going to make this divorce final. I’m going to kill you’ talking to your wife, is that right?
“A. He said ‘I’ll kill you’. That’s the exact words he said.
“Q. Then you testified that just before that he said ‘I’ll make this divorce final’?
“A. Yes sir.
“Q. He wasn’t going to make the divorce to you final, was he? He had to be talking to his wife, didn’t he? His ex-wife, your wife.
“A. I really don’t know who he was talking to.
“Q. All right, when he pulled out this gun who was standing in the line of fire?
“A. My wife.
“Q. Your wife. And you pushed her out of the way?
“A. Yes sir.
“Q. And then the shot hit you is that correct?
“A. Yes sir.
“Q. And he had taken his coat off and thrown it on the floor, is that correct?
“A. Yes sir.
“Q. And he didn’t take his coat off until the third time?
“A. That’s right.
“Q. And he was carrying a gun in his back pocket?
“A. Yes.”

Betty Cole testified that she was the wife of Floyd Wayne Cole; that she had been married to appellant before she married Cole and she and appellant had three children. She stated that the children live with her and her present husband. She testified that on December 7,1975, appellant came to their house at about 4:00 a.m. slow time; that she got out of bed and went to the door; that appellant asked her if her husband was at home; that he wanted to see the children; that she asked her husband if it was all right to let him see the kids and he said “Yes.” She further stated that her husband dressed and went to the door and that appellant came into the house; that appellant was drinking and that he woke the kids up; that she saw appellant put a gun in his back pocket just after he came in the house; that the gun was a pistol and that appellant was there about fifteen minutes and left. This witness testified substantially as her husband did as to appellant coming back to the house a second time. This witness further testified that he came back a third time and just came on in the house; that he wanted to know if he could have the children; that she told him he could not take them off any more; that he wanted to know when their divorce became final. She stated that at that time she was sitting in a chair and Wayne was sitting on the arm of the chair; that appellant said, “You got a good woman there, be good to her,” and he said, “When did our divorce become final?” and the witness replied, “Just a minute and I’ll see” and that she went to a table and picked up the divorce papers and appellant was standing beside the bunk beds, coming into the living room, and that she was going to show him when the divorce became final. She said he wanted to know when the support payments started and she was going to tell him; that when she picked up the papers he pulled his jacket off and threw it on the floor and pulled the gun out of his pocket; that about that time Wayne got out of the chair and walked over to where she was and Bobby Gene pointed the gun at her and said, “When did the divorce become final?” and she said, “I’ll tell you,” and that the appellant said, “I’ll finalize the thing right now. I’ll just kill you.” She further testified that Wayne then shoved her and he shot Wayne; that two shots were fired; one struck Wayne and one struck the wall about an inch above her baby’s head; that appellant ran out the back door and she took her husband to the hospital. She stated that when the shots were fired, appellant and her husband were about three feet apart.

On cross-examination this witness further testified that the reason she was not hit was because her husband pushed her out of the way; that she was the one that was in the line of fire and was standing beside Wayne; that she was not between them; that the first shot wounded Wayne.

This witness was then shown the drawing which we heretofore mentioned and we here again quote the record of her testimony in that connection:

“Q. If you’ll turn around and look at this drawing behind you, was Bobby Gene standing about there and Wayne about there roughly?
“A. What’s those other shots represent?
“Q. I think that’s a table.
“A. All right, they weren’t there. Where were they?
“A. The table is back.
“Q. Which way?
“A. That’s the living room, right?
“Q. As I understand it, this is the living room, this is the kitchen, and this is the bedroom.
“A. Right here is where Bobby was standing. The bunk beds are over here.
“Q. So Bobby was standing here.
“A. And Wayne was standing about right here.
“Q. And Wayne was standing there.
“A. I was standing right beside him.
“Q. You were standing there. Let’s move back so the Jury can see this. You say Bobby Gene was standing here. This is the bedroom right here.
“A. No, the bedroom’s right there. The bunk beds are in the living room.
“Q. That’s your bedroom.
“A. My bedroom’s right here.
“Q. All right, so this is Bobby Gene and this is Wayne, and this is you. He shoved you out of the way.
“A. Yes.
“Q. And he got hit?
“A. Yes.
“Q. Bobby Gene fired another shot, and your testimony is that Wayne ran past Bobby Gene into here, and Bobby Gene ran out the back door is that correct?
“A. Yes sir.”

The State at this point introduced evidence given by a nurse at the hospital as to the treatment given to Floyd Wayne Cole at the hospital. The State introduced into evidence a .38 caliber bullet found in the room where the shooting occurred after carefully following the chain of possession after it was found.

The State then rested.

Thereupon the appellant made a motion to exclude the evidence and dismiss the case of assault with intent to murder on the grounds the evidence does not show any intent on the part of the defendant to kill Wayne Cole, but may show he intended to kill Betty Cole and that the doctrine of transferred intent is not applicable in a case of assault with intent to murder; that if the real intent shown by the evidence is not that charged there can be no conviction; that for a conviction to be had the evidence must show an intent to kill the named victim and malice.

The motion was denied by the trial court.

The defendant testified in his own behalf and in substance his explanation of the events immediately surrounding the shooting was that he did not have a gun; that he did not say anything about finalizing the divorce or that “I’ll kill you.” He testified there was an argument about his having or seeing the children. He further testified that while the argument was going on, Wayne Cole jumped up and ran into the bedroom; that the next time he saw Cole he came running out of “this room right here” (referring to a diagram of the house drawn by his attorney) and “I was standing right over here; that Cole had a gun in his hand; that I grabbed him by the arm and knocked it sideways and the gun went off and I ran out the back door and from the way he acted, I thought Wayne Cole had been shot.”

The defendant offered other evidence but none of it related to the events that took place inside the house except his own testimony. He testified that he had previously lived in that house and had dropped a gun in it and it went off; that he never looked to see where the bullet went. This was an effort to explain the bullet hole in the wall that the State witnesses had testified about.

It is the contention of the appellant that the evidence in this case may have shown that the appellant had the intent to murder Betty Cole, but that the evidence fails to show that he had any intent to murder Floyd W. Cole and that before a conviction could be had the evidence must show that he assaulted Floyd W. Cole with the intent to murder him. The appellant argues that the doctrine of “transferred intent” does not apply to a charge of assault with intent to murder, although it does apply to a charge of murder.

The appellant cites in brief the case of Simpson v. State, 59 Ala. 1. In that opinion we find the following:

“If the intent was to murder another, or if there was not the specific intent to murder Ford, there can not be a conviction of the aggravated offence charged, though there may be of the minor offence of assault or of assault and battery.”
* * * * * *
“So, also, if there is the felonious intention to kill one, and the fatal blow falls on another, causing death, it is murder. The act is referred to the felonious intent existing in the mind of the actor, and by implication of law supplies the place of malice to the person slain. (Citations omitted) The doctrine of an intent implied by law, different from the intent in fact, can have no application to the of-fences the statute punishes. It is excluded by the terms of the statute, which include only direct assaults on the person of the party it is averred there was the intent to murder. If in fact there was not the intent to murder him, whether there was a general felonious intent, or an intent to do harm to some other individual, is not important — there can be no conviction of the aggravated offence.”

In Simpson, supra, the facts may be briefly stated:

There had been repeated trespasses in the defendant’s garden. The defendant set a spring-gun in contact with a string attached to the gun. The defendant did not know who the trespassers were. One Ford came in contract with the string and was shot. The indictment charged the defendant with assault with intent to murder said Ford. This is not a case of shooting at one person with intent to kill him and injuring another. But apparently the case holds the same principle of law would apply.

In the case of Lawhon, Yarbrough and Yarbrough v. State, 41 Ala.App. 577, 141 So.2d 205, appears the following:

“The proof of the mens rea must show (1) intent to kill the named victim and (2) malice.”

In Rowlan v. State, 14 Ala.App. 17, 70 So. 953, the defendant requested the following written charges:

“I charge you that, unless you believe from the evidence and beyond a reasonable doubt that defendant intended to shoot Mr. Clayton, and not some other party, you cannot convict the defendant of an assault with intent to murder.” That charge was refused by the Court. The Court gave charge 3, as follows:
“Unless you believe from the evidence and beyond a reasonable doubt that defendant had the intention to kill Mr. Clayton in her mind at the time of the commission of the alleged assault upon him, you cannot find her guilty of an assault with intent to murder.”

After giving charge 3, the Court then of his own motion, said to the jury:

“I give you this charge, gentlemen, with the explanation that, if you believe she shot at someone else with the intent to kill that person, and the shot hit Mr. Clayton, she would be just as guilty as though she had been shooting at Mr. Clayton with the intent to kill hirn, and your verdict should be rendered accordingly.”
On appeal this Court said:
“While an unlawful act and a specific intent must concur to constitute the statutory offense of an assault with intent to murder, it is not essential that the intent be to murder any specific person. The offense is complete if the intent is to murder the person assaulted, although the assailant may not know who it was. The court was not in error in explaining written charge 3, nor in refusing 1, 2, 9, and 10.”

It clearly appears to the writer of this opinion that the judge’s explanation of charge 3 in Rowlan, supra, embraces the doctrine of “transferred intent.” To say the least there is a state of confusion as to the doctrine.

We have discussed this doctrine of “transferred intent” in assault with intent to murder charges because of the earnest insistence of counsel for appellant in brief filed in this Court that the only intent shown by the evidence on the part of the appellant was to kill Betty Cole and that said evidence does not show any intention on his part to murder Floyd Wayne Cole.

The doctrine of “transferred intent” was not applied by the trial judge in this case. In his oral charge to the jury he instructed the jury as follows:

“If you are to find the defendant guilty of assault with intent to murder then you must be convinced beyond a reasonable doubt that on the occasion complained of the defendant assaulted Floyd W. Cole with the intent to murder him.”

The trial judge also gave the following charge as part of his oral charge but apparently at request of defendant although not so stated:

“I charge you ladies and gentlemen of the jury that unless you are satisfied beyond a reasonable doubt and to a moral certainty that the defendant had a specific intent to murder the prosecuting witness you cannot find the defendant guilty of assault with intent to murder.”

The real question in this case, now before us, is not whether the trial judge misapplied the law with reference to so-called doctrine of “transferred intent”, but whether there was evidence to justify the verdict of the jury to the effect that the appellant did assault Floyd W. Cole with intent to murder him. With that in mind we here point out some of the important facts shown by the evidence offered by the State. The defendant was armed with a pistol when he went to the Cole home; he was invited into the home by Cole, the man he later shot. He followed Floyd W. Cole into the children’s bedroom and when the said Cole looked back, he saw appellant had a gun in his hand and “he was letting the hammer down on it and was putting it into his pocket;” that appellant made three trips to that home in quick succession. The appellant told him he had a good wife. The appellant brought up the subject of when the divorce would be final and when the child support would begin. He was drinking when he went there the first time. Appellant admitted he had drunk two beers. A jury may use common sense. How many times do we and juries hear this “two beers” idea from defendant and even from friends. He was hostile and admitted getting into an argument in that home. Mrs. Betty Cole testified in substance that when the appellant first drew the pistol at the time of the shooting, she was in the line of fire and that her husband, Floyd Wayne Cole, was beside her. He was therefore not behind her and not in the line of fire at that time. There is no evidence that when her husband pushed her out of the way, that he stood where she had been standing. The appellant fired the first shot after she was pushed away. Not a single witness gave any evidence as to the expired time between when she was pushed out of the way and the firing of the first shot. The jury could well have determined that the appellant changed the direction the gun was pointed after she was pushed and with intent to murder Floyd W. Cole aimed the gun at and fired the gun at him.

It is true that the evidence would clearly support a finding that at one point of time appellant intended to murder Betty Cole, but it was also a jury question that at the time he fired the first shot he intended to murder Floyd W. Cole. There was other evidence in this ease that the jury saw and heard that is not completely revealed in this record. We refer to the diagram drawn and the evidence as quoted from the record about the positions of appellant and Floyd W. Cole and Betty Cole during the difficulty and other matter with reference to the diagram. The diagram was not introduced in evidence and we do not have it before us with markings on it to demonstrate such position or the locations of rooms in the home and the furniture and doors. The evidence shows that when appellant had the gun pointed at Betty Cole, Floyd W. Cole shoved her and the first shot was fired and that Betty made a dive for the back bedroom and then a second shot was fired and struck the wall. The jury could have determined that the second shot also was intentionally fired at Floyd W. Cole with intent to murder him. We have set out these relevant facts but we are not excluding all of the other evidence.

Considering these stated relevant facts as testified to by the witnesses for the State and considering them along with all the evidence in the case there was substantial evidence of the existence of every element of the offense charged and a jury question was made out and the case was properly submitted to the jury and the verdict of the jury is justified by the evidence. We should not substitute this Court for the jury.

The rule in respect to the sufficiency of the evidence to justify overruling a motion to exclude the evidence and to support a verdict of guilty is stated in Sullivan v. State, 48 Ala.App. 347, 264 So.2d 576, as follows:

“There must be substantial evidence tending to prove all elements of the charged offense, a mere scintilla of evidence, in view of the presumption of innocence, being insufficient.”

Error cannot be predicated in the case before us on the trial court’s denial of the motion to exclude the evidence or the trial court’s refusal of the general charge.

The appellant requested the following charge which was refused by the trial court:

“7. I charge you ladies and gentlemen of the jury that if you find intoxication was such that defendant could not form the required specific intent then you must not find the defendant guilty of assault with intent to murder but must deliberate only on lesser included offenses.”

In Duncan v. State, 30 Ala.App. 356, 6 So.2d 450, certiorari denied, 242 Ala. 329, 6 So.2d 454, it is said:

“Of course if the charge was merely an abstract statement of the law — as to the evidence inapplicable — no error was made in its refusal.”

In George v. State, 240 Ala. 632, 200 So. 602, the Court said:

“Written charges numbered 10,15,17 and 18 were properly refused to defendant for the reasons they were abstract and inapt. There is no evidence to support the theory upon which they were based.”

There was no evidence that the appellant in the case before us at the time in question was intoxicated or drunk. The evidence was that he was drinking. He stated he had two beers. Said charge was for that reason correctly refused. It may also be said that it is confusing because it does not state who was intoxicated.

The other requested refused charges were either covered by the Court’s oral charge or were incorrect statements of the law.

We have searched the record in accordance with our duty for error and have found none justifying a reversal.

It is therefore ordered and adjudged by the Court that the judgment of the trial court be and is affirmed.

The foregoing opinion was prepared by Retired Circuit Judge L. S. Moore, serving as a judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328); opinion is hereby adopted as that of the Court. The judgment is hereby

AFFIRMED.

All the JJ., concur, except BOWEN, J., who recuses himself.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte Bobby Gene CHILDRESS.
    SC 2432.
    Supreme Court of Alabama.
    April 29, 1977.
   ALMON, Justice.

WRIT DENIED.

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


author: MOORE, Retired Circuit Judge. DeCARLO, Judge,

text:
    Ervin EDWARDS v. STATE.
    3 Div. 599.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.
    David B. Byrne, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Eric A. Bowen, Asst. Atty. Gen., for the State.
   MOORE, Retired Circuit Judge.

The indictment in this case contained two counts. Count 1 charged the appellant with burglary in the second degree and Count 2 charged him with grand larceny. The verdict of the jury is as follows:

“We the jury find the defendant guilty as charged.”

The trial Court accordingly adjudged, “that the said defendant is guilty as charged in the indictment”. The trial court also sentenced the defendant to imprisonment in the penitentiary of the State of Alabama for a term of four years. The appellant’s motion for a new trial being denied, the appellant brings this appeal.

On the trial of this case C. J. Evans, a policeman of Montgomery, Alabama, testified, in substance, that he was on duty on February 4, 1976, and while patrolling on Federal Drive at about 4:00 o’clock A.M. he came to the Jamboree Club; that he saw a 1972 blue LTD there; that he got out of his car to check the building and found a hole in the back of the building; that the hole was about 14 by 21 inches in size; that he found some bottle miniatures of whiskey on the ground about the hole; that he called for back up officers and they came; that Detective Herbert Norton was one of the officers that came to the club; Norton came about fifteen minutes after the witness got to the club; that in about fifteen minutes after the other officers arrived at the club, we found Larry Powe in some woods at the east side of the building about 50 yards from the building; that they arrested Powe; that about 6:30 o’clock that morning, he saw the appellant at Lower Wetumpka Road and Broadway Street, which was about seven or eight miles from the Jamboree Club; that the detective came up and took appellant to headquarters; that appellant had on a blue leather jacket and beige pants and a green flowered shirt; that prior to the time he saw the appellant at the place above mentioned, he had a description of the clothing he would wear; that he had been told that; that the description of appellant’s clothing as told to him was a blue leather jacket, beige pants and flowered printed shirt.

On cross-examination, this witness testified he was told the description of appellant’s clothing from the other subject (the only other subject was Larry Powe); that the other subject did not give him appellant’s name; that the car he saw parked at the Jamboree Club building had a Michigan license plates on it and Larry Powe is from Michigan; that he found a pick behind the car; that the club was painted green; that it was muddy behind the club where the hole in the building was; that the appellant’s shoes were muddy when he saw him at Lower Wetumpka Road and Broadway; that appellant did not have on his person any miniatures at the time of his arrest.

Charles Brown testified, in substance, that he was president of Jamboree Club, a corporation, located at 2015 Federal Drive in Montgomery; that he had owned the club since January 11, 1976; that on the morning of February 4, 1976, at about 5:30 o’clock, he arrived at the club; that the police were there and he saw a hole in the back wall; that the wall was concrete blocks .on the outside with paneling on the inside; that he unlocked the front door and went inside with the officers; that 984' miniatures of whiskey were missing of a value of $480.00; that some miniatures were on the ground near the hole in the wall and we found a case in the back seat of the car parked there; there were four or five cases in the car trunk; that the jukebox and cigarette machine in the building had been broken into and the money in them taken out; that we found a cloth bag with change in it; that it was the same type bag his jukebox had; that his place of business was in Montgomery County; that they recovered about all of the whiskey taken from the car and on the ground at the hole in the wall.

Detective H. C. Norton testified, in substance, that on February 4,1976, he investigated the burglary at the Jamboree Club; that they got Larry Powe out of the woods near the club and talked to him and a description of a second subject that was described to us was put out; that the description of the second subject was a black male, about 35 years of age, wearing a black leather-looking jacket and some brownish-beige looking pants; that he later saw appellant at police station and removed his clothing, which we wrapped and took to the toxicologist’s office; that as appellant disrobed, he was standing on some paper and little pieces of what we call rock cement was all through his clothes and fell on the paper; these pieces and the clothes were wrapped up and sent to the toxicologist’s office; that there were particles at the hole in the rear of the building, rocks, dust and paint we took and wrapped individually and sent to the toxicologist’s office; that he did not find any of appellant’s fingerprints at the scene of the burglary on anything there.

On cross-examination, this witness testified that the motor on the car parked at the club was not running when he got to the club; that officer Evans or somebody had turned it off; that we found the crowbar in the car and the pick was at the rear of the car.

Richard A. Roper, a toxicologist employed by State Department of Toxicology and Criminal Investigation, Montgomery Laboratory, testified, in substance, that he received some evidence in the case; that the items received by him were a pick, one pair of black leather gloves, a pair of work gloves, a pry bar, samples of cement blocks from Jamboree Club, clothing, including shoes; that he found some plaster-like material on the shaft of the pry bar; that he found some orange-colored powdery paint-like material on the handle and end of the handle of the pick; that he examined that material and compared it with the material that came from the club and found them similar in color and texture, and that they displayed similar properties in solvents, and they had the same chemical elements; that he found no inconsistency in any respect; that he examined the clothing; that he compared' the small pieces of concrete block in the bag with the clothing which had some paint on the surfaces; that he compared the paint found on those pieces of concrete blocks with the paint on the material that came from the Jamboree Club and said materials were similar in color and texture, displayed similar properties when placed in various solvents, and contained the same composition of chemical elements; that the same was true of the pieces of concrete found with clothing compared with the concrete block material from the Jamboree Club; that he examined these materials with a microscope and they had the same visual properties; that these materials could have had a common source of origin but he could not say unequivocally they did have a common source of origin; and that he found no inconsistencies.

This witness further testified that fingerprints would not show through gloves with the texture of the two pairs of gloves he received. (State’s Exhibits 1 and 2)

Detective Herbert Norton was recalled and testified State’s Exhibit 2 were gloves worn by Larry Powe when he was arrested at the club; and State’s Exhibit 1, a pair of gloves, was found in the car parked at the club; that State’s Exhibit 4 was a sack containing particles removed from the rear wall of the Jamboree Club; that State’s Exhibit 5 was clothing worn by the appellant at the time of his arrest, which he took off at police headquarters while standing on paper; that the particles of concrete fell off onto the paper while he was disrobing and that State’s Exhibit 6 was a pick found at the rear of the car parked at the club.

These items in said exhibits were submitted to the toxicologist. Said exhibits were admitted in evidence.

Officer C. J. Evans testified also, in substance, that Larry Powe did not give the officers any name of his accomplice, but he did describe him and the clothing he was wearing.

When the State rested, the appellant filed a written motion for a judgment of acquittal on the ground the State had not proved sufficient facts to constitute a prima facie case, which was denied by the court below.

Larry Powe, a witness for the appellant, testified, in substance, that he lived in Detroit, Michigan; that on February 4, 1976, he broke into the Jamboree Club; that he and a friend came up from Mobile and rode around awhile and was out of gas trying to get back to Detroit and stopped at a building;. that it was open at the time and we drove around for awhile and went back and it was closed; that they parked the car and went and broke into the back of it by knocking out a piece of concrete wall; that he told the police that the appellant was not with me when the club was broken into; that it was his car that was parked at the club when it was broken into; that he told the police-“Robert” was the persons’s name that was with him when the club was broken into; and that appellant did not commit the crime with him. On cross-examination this witness testified that Robert Harris lived in Detroit and helped him break into the club and they got some money and miniatures of whiskey.

None of the police were called to deny any of Powe’s testimony.

During the testimony of C. J. Evans he was asked by the Assistant District Attorney this question:

“Prior to the time you saw Ervin Edwards, did you have a description of the clothing he would wear?”

The appellant objected to that question and his objection was overruled. The witness answered:

“Yes, sir, I was told”.

On cross-examination that witness stated he learned that from the other subject. The evidence shows the other subject was Larry Powe. The officers appeared on the scene while the crime was in progress and captured Larry Powe when he came out of the woods and had him under arrest at the time he gave them the description of the clothing his accomplice was wearing. The accomplice was not present, having fled the scene. After the court overruled the objection to the above quoted question, the witness was asked to give the description and answered blue leather jacket, beige pants, and flowered printed shirt.

In Edwards v. State, 279 Ala. 371, 185 So.2d 393, as to the admissibility of such evidence stated:

‘It is a well-recognized rule that the incriminating acts or statements of one confederate after the ends of the conspiracy have been accomplished, and no longer exist, are not admissible against another in his absence, and without his knowledge and consent.’ Dailey v. State, 233 Ala. 384, 387, 171 So. 729, 731.”

When the description of the accomplice of the said Larry Powe was given by him to the policeman C. J. Evans, the said Powe was under arrest and the police were in complete control of the premises and no further acts of burglary or larceny could have been performed by any party that had been engaged in the crime. It was all over so far as the crime itself was concerned. Any other acts of either of said parties would not be in furtherance of the crime. It could not be said that this evidence was a part of the res gestae. A period of time had elapsed since the last act in furtherance of the crime had been performed. It is not shown to be within the scope of any conspiracy. It was not an effort to suppress or conceal evidence and for that reason would not constitute an exception to the rule stated in Edwards, supra.

The trial court is in error in admitting said testimony.

The Assistant District Attorney, in his examination of the witness H. C. Norton, brought out the fact that after the arrest of the appellant, the said Norton gave to the appellant a full and complete Miranda warning and that the appellant said he understood it and stated he wished not to make any statement and refused to sign the rights form. At that point appellant objected and moved to strike the testimony and said objection and motion was overruled. The appellant did not make a statement to the said witness. A defendant in such a situation does not have to deny or affirm his guilt. The only purpose such evidence could have is to prejudice the defendant in the minds of the jury. The ruling of the trial court in this respect is error. This evidence is only admissible when a defendant makes a statement.

After the final judgment of conviction and sentence, the appellant filed a motion for a new trial and among the grounds assigned for said motion were the following: (1) That the verdict was contrary to the facts and the law of the case; (2) that the verdict of the jury is contrary to the facts of the case; and (3) that the verdict of the jury is contrary to the law in the case.

We come now to a consideration of the question of whether said motion for a new trial, which was denied and overruled, should have been granted.

The evidence in this case, to a great extent, must be classified as circumstantial. It is for that reason that we have set out the evidence, or the substance thereof, in considerable detail in this opinion. However, we have not stated every detail of the evidence.

In Willingham v. State, 28 Ala.App. 261, 183 So. 887, the court stated:

“The case therefore presented, is one entirely of circumstantial evidence, and while a conviction may rest on circumstantial evidence, if sufficiently strong and cogent, such conviction should be carefully scrutinized by the judiciary.”

A well-connected train of circumstances may be as cogent of the existence of a fact as any array of direct evidence. Perez v. State, 34 Ala.App. 406, 40 So.2d 344; Desilvey v. State, 245 Ala. 163, 16 So.2d 183.

The measure of proof required in a case where conviction is sought on circumstantial evidence is stated in this manner in Pruett et al. v. State, 33 Ala.App. 491, 35 So.2d 115:

“It is evident that a conviction depended in the main on circumstantial evidence. It is apparent, also, that the doctrines of conspiracy and ‘aid and abet’ have places in the review.
“It is a familiar rule that ‘a person charged with a felony should not be convicted unless evidence excludes to a moral certainty every reasonable hypothesis but that of his guilt, and that, no matter how strong the circumstances were, they did not come up to full measure of proof which the law required if they could be reasonably reconciled with theory that defendant was innocent.’ It follows that if the evidence does exclude to a moral certainty every reasonable hypothesis, etc., a conviction is authorized on circumstantial evidence.” (Citations omitted)

The law is clearly stated in Davis v. State, 33 Ala.App. 299, 34 So.2d 15, cert. denied 250 Ala. 240, 34 So.2d 17, that:

“A new trial, on the grounds that the verdict is contrary to the evidence, will not be granted where it affirmatively appears that the questions involved are for the determination of the jury, unless it is clearly apparent that the verdict is palpably wrong or unjust.” (Citations omitted)

If circumstantial evidence fairly permits an inference consistent with innocence, it will not support a conviction. Tanner v. State, 291 Ala. 70, 277 So.2d 885.

In the case before us, laying aside the identifying description of the accomplice of Larry Powe given by said Powe to the police since we have ruled it inadmissible, there remained before the jury the following circumstance: The police soon after the burglary and arrest of Powe found the appellant on the streets of Montgomery dressed in the manner they described; that they had appellant to disrobe while standing on a paper and pieces of concrete blocks fell from his clothing that were examined by the toxicologist, and his findings that they were consistent in composition and reaction and visual appearance with samples taken from the building burglarized, but which the toxicologist could not say that the two had a common source of origin. Those were the circumstances offered by the State.

In considering the motion for a new trial, we must also consider the testimony of Powe that he told the police that Robert Harris was his accomplice in the offense which was competent evidence in laying a predicate to impeach the witness, but which was not denied by the police. That witness also testified that appellant was not a participant in the offense. The evidence fairly permits any number of inferences consistent with appellant’s innocence.

Upon a consideration of the evidence in this case, we are of the opinion and so adjudge that the verdict of the jury is so contrary to the evidence that it is palpably unjust and that the motion for a new trial should have been granted by the trial Court and that the same be and is granted by this court.

For the errors noted, it is ordered and adjudged by this court that this cause be, and is hereby, reversed and remanded to the trial Court for proceedings consistent with this opinion and order.

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

REVERSED AND REMANDED.

TYSON, P. J., and HARRIS, BOOKOUT and BOWEN, JJ., concur.

DeCARLO dissents.

DeCARLO, Judge,

dissenting.

The facts in this case parallel those in Creel v. State, 53 Ala.App. 504, 301 So.2d 267, and on its authority I would affirm.


author: EMBRY, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2484.
    Supreme Court of Alabama.
    April 29, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


author: CLARK, Supernumerary Circuit Judge.

text:
    Frederick L. BLAKELY, alias v. STATE.
    6 Div. 243.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied March 29, 1977.

      McCain & White, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State,
   CLARK, Supernumerary Circuit Judge.

A jury found defendant guilty of an assault upon a named and identified woman with the intent forcibly to ravish her; the court sentenced him to imprisonment for fourteen years.

The victim, who the record indicates is a young lady in the most sublime sense of that word, was a student at the University of Alabama and was in the vicinity of a girls dormitory, where she roomed, about 9:00 P.M. Sunday, August 24, 1975, when she was suddenly and violently thrown into the front seat, on the passenger’s side, of an automobile, by a man standing beside the automobile, whom she was never able to identify positively but who, she (white) said, was “black” and “kinda big, and he had big forearms.” In the driver’s seat at the time was another black man; the victim could not identify defendant as either of the two men. She repulsed her assailant by directing her feet to his midsection and propelling her body toward him as he was getting in the automobile; she scrambled out of the automobile and freed herself. Her attacker then entered the automobile and closed the door. Others heard the commotion; the automobile drove away; police were on the scene almost immediately. The victim described the automobile as a dark Cadillac with a vinyl roof half-white and a National Guard tag on the car.

Within about half an hour after the attack, officers apprehended the defendant driving such an automobile in the vicinity of the crime. Officers recognized him as one who had been driving the same automobile in the vicinity of the crime a short while before the attack. There was another black male in the automobile at the time the automobile was stopped. Both were detained and questioned. Appellant said that he and the other man had been at a theater in downtown Tuscaloosa and had driven out to the University to see a friend. After being questioned and indicating no knowledge of any assault, they were released.

The victim of the assault lost a contact lens in the encounter. She reported this to the police, and soon after she had returned to her dormitory and had regained to some extent her composure, she and the officers went to the scene of the struggle and searched carefully for the contact lens, but it was not found.

On August 28, the automobile was searched at the place where appellant’s wife worked, pursuant to a search warrant issued by an ex-officio judge of the Tuscaloosa County Court. There was evidence that prior to the crime the automobile had been bought by defendant from a member of the National Guard. The search warrant was served on appellant’s wife. The search disclosed a contact lens on the front seat of the automobile.

Defendant offered no testimony on the trial of the case.

Many objections were made by defendant to questions relative to the identity of the contact lens. Appellant argues that an adequate chain of possession and custody of the contact lens was not shown by the evidence and that the court erred in overruling defendant’s objection to the introduction of the lens into evidence. Appellant contends that there were two breaks in the chain of custody: (1) that there was no testimony that Ms. Michelle Minolie, who testified as to a lens, actually received the same lens that the police had found in the automobile, and (2) the lens was left lying on a counter in the court room, in the custody or possession of no particular person, while the trial court was adjourned for lunch, and was thereafter admitted in evidence. Officers Mills and Shaw of the University of Alabama Police Department, who found the lens in defendant’s automobile, testified that thereafter the lens was placed in the evidence locker at the University Police Department, to which no one had access but such officers. They were intensively and extensively interrogated by attorneys, particularly defendant’s attorney, as to the possibility that someone could

have substituted another lens for the lens found in the automobile, but taking their testimony as a whole, there is no basis for any reasonable conclusion that such occurred. There was no other contact lens in the evidence locker. There was no evidence indicating that the contact lens was ever in the hands of anyone out of the presence of one of such officers, except perhaps the District Attorney or one of his assistants, for an examination of it about one week before trial, and perhaps the court reporter or some of the attaches of the court trying the case. Even the possibility of a substitute for, or a material change in, the lens between the time of its finding and its admission in evidence becomes infinitesimally small and remote in view of the nature and size of the object and of the difficulty of anyone’s making a switch or change that would result in the making of such article to correspond with the lens made for the victim by her optician in another city. We find no error in the admission of the lens in evidence. To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it

existed at the commencement of the chain. Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552; Mullins v. State, 56 Ala.App. 460, 323 So.2d 109; Jemison v. State, 40 Ala.App. 581, 120 So.2d 748.

Ms. Minolie was allowed to testify, over the objection of defendant that she was not properly qualified, as to the power and diameter of the contact lens introduced by the State into evidence. Ms. Minolie was employed by a Tuscaloosa ophthalmologist as a contact lens fitter and the operator of a lensometer. She had previously taught at Tuscaloosa High School; she had a B.A. degree from San Francisco State University. She was vigorously questioned by defense counsel and manifested by her answers that her testimony as to the power and diameter of the lens tested by her pertained to the particular work in which she was engaged and for which she was employed by the ophthalmologist. She did not testify on direct examination as to any matter out of the field of her employment. She unquestionably had acquired knowledge beyond that of ordinary witnesses on the subject as to which she testified. The objections to her testimony were not well taken. Daniel v. State, 31 Ala.App. 376, 17 So.2d 542; Bufkins v. State, 20 Ala.App. 457, 103 So. 902, cert. denied, Ex parte Bufkins, 212 Ala. 638, 103 So. 906; Reynolds v. State, 29 Ala.App. 139, 193 So. 192.

Appellant complains of two instances of action by the trial court in overruling defendant’s motion for a mistrial by insisting that the trial court was in error in inquiring of the jury whether they were prejudiced by what had occurred. Appellant insists that whether a mistrial should be declared is the responsibility of the judge and not the jury. He is correct, but we do not consider that the trial judge was leaving to the jury a decision as to what the court should do. The record is to the contrary. As we view it, the record indicates that the question of the jury by the trial judge was in the nature of extra precaution on his part to assure a trial free of prejudice. It is clear that the trial judge ruled in accordance with his own opinion that no prejudice to defendant had occurred in either instance and that the motion for a mistrial should be overruled.

This brings us to the only remaining contention of appellant, an occurrence during the argument of counsel for the State as follows:

“MR. ANDRES: . . . Freddie Blakely knew exactly what was going on. They had planned it during the time they were at the moving seeing — I believe Jimmy Mills said ‘Black Mamma White Mamma.’ They probably decided while they were there at the movie and then drove down to the University and cruised around until they could .
“MR. McCAIN: Your Honor, we’re going to object at this time and move for a mistrial on the grounds that Mr. Andres has stated the name of a movie that has not been put into evidence, possibly the prejudicial name of a movie.
“Absolutely no evidence has been put before this Court, and it’s an obvious .
“THE COURT: Did one of the officers say he told them they had been to a movie?
MR. McCAIN: A movie, Your Honor.
“THE COURT: A movie?
“MR. ANDRES: If I was incorrect in stating the evidence, Your Honor, I apologize to the Court.
“MR. McCAIN: We don’t think an apology would clear this.
“THE COURT: Well, the motion is denied.
“The defense is due an exception to the Court’s ruling.”

In a preceding portion of the argument of counsel for the State, he had said:

“. . . It’s really been a pleasure for me to work with the people I’ve worked with in this case. I’ve worked with Jimmy Mills since the date of August 25th, the day after this happened, when we had this lineup.”

The parties on appeal are not in disagreement as to the evidence in the case. They agree that Officer Mills testified that defendant told him that he and his companion had been to a movie just before they proceeded to the University campus; that Officer Mills did not testify that the movie was “Black Mamma White Mamma,” and that there was no evidence in the case to that effect. Long before the surge of preemptive federal laws, regulations and judicial decisions pertaining to civil rights, the courts of Alabama zealously and assiduously guarded against injustice toward a litigant because of his race. That such dedication to duty was at times more pronounced in the appellate courts than in the trial courts is probably due to the fact that, as seemingly happened in this particular case, the questionable incidents occurred with such suddenness and lack of warning and in such unforeseeable form, that the parties concerned at the time, including the trial court, could not then give them the plenary consideration to which they were entitled. Ofttimes the injection of prejudice, sometimes invidiousness, was intended; at others it was not. Irrespective, however, of the question of design, the settled principle has been that no litigant, whether the State or other party, will be allowed to profit by an appeal to one race at the expense of a member of another and no greater ban can be placed upon improper forensic dispute than that which prohibits argument calculated to arouse members of one race against another merely because he is a member of another race. Tannehill v. State, 159 Ala. 51, 48 So. 662 (1909); James v. State, 170 Ala. 72, 54 So. 494 (1911); Moulton v. State, 199 Ala. 411, 74 So. 454 (1917); Johnson v. State, 212 Ala. 464, 102 So. 897 (1925); Simmons v. State, 14 Ala.App. 103, 71 So. 979 (1916); Bailum v. State, 17 Ala.App. 679, 88 So. 200 (1921); Green v. State, 22 Ala.App. 56, 112 So. 98 (1927); Early v. State, 42 Ala.App. 200, 158 So.2d 495 (1963).

It is not to be gainsaid with reason that references to race in judicial proceedings are at times necessary. If necessary and benign, they furnish no just ground for complaint. If unnecessary and malignant, they cannot be condoned. When serious questions are raised whether they are one or the other, patterns in other cases are sometimes helpful, but not conclusive, unless the circumstances of the previous case are the same as in the case under consideration, which seldom they are. We must look closely at the circumstances of this particular case to determine whether error prejudicial to defendant occurred in that part of the trial quoted above.

It is not for us to assay the contents of the movie, “Black Mamma White Mamma.” We don’t know whether any of the jurors ever saw it or knew anything about it. But we can conceive of no title to a movie, which would ever pass today’s liberal acceptance of what can be shown to the pub-lie, that would be more offensive to some jurors than the title “Black Mamma White Mamma.” We can conceive of no other publicly acceptable title to a movie that is more calculated to arouse antipathy, deep-seated in the hearts and minds of some, against miscegenetic conduct. There can be no reasonable question as to the applicability in the title of the word “Mamma,” which until recent years occupied only the loftiest of human pedestals, as the appellation of a child for its mother, and had not been denigrated to slang of a sensual and even sexual nature.

Notwithstanding our expressed feeling as to the impropriety of the particular argument, we are not saying that it would not have stood the test of legitimacy if there had been evidence to support it. It would have then been based on the deduction of counsel from the evidence, as to which there is broad latitude. But not so as to argument of counsel of a substantially injurious nature that constitutes an assertion of fact of his own knowledge that is not based upon the evidence. Smith v. State, 282 Ala. 268, 210 So.2d 826; Eaton v. State, 278 Ala. 224, 177 So.2d 444; Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied 294 Ala. 764, 318 So. 337; Taylor v. State, 54 Ala.App. 353, 308 So.2d 714; Smith v. State, 51 Ala.App. 527, 287 So.2d 238, cert. denied, 292 Ala. 750, 289 So.2d 808.

There was no effort made to heal the wound resulting from the improper argument. To some extent there was a duty in this respect upon defendant’s counsel; to some extent it was upon the court; to some extent it was upon State’s counsel. Defendant’s counsel objected and moved for a mistrial. The trial court overruled the motion and gave defendant an exception. The court overruled the motion but made no ruling as to defendant’s objection, which perhaps defendant’s counsel should have separately made. State’s counsel commendably apologized but stated that he did so if he “was incorrect in stating the evidence.” We do not think that either the trial judge, State’s counsel or defendant’s counsel is to be blamed for the manner in which the matter was handled by the trial judge, the action of State’s counsel when.it appeared to him that he had probably mistakenly endeavored to refer to evidence, or defendant’s counsel in what would have likely bewildered any attorney under the circumstances. Defendant’s counsel was not required to have known about “Black Mamma White Mamma.” He naturally recoiled but he did not then know how poisonous the argument was or how to handle or dispose of it.

The problem was perplexing to all concerned, and we decline “to take the scorner’s seat or hurl the cynic’s ban” at anyone concerned. State’s counsel evidently thought that the witness Mills had testified that defendant had said he had been to a movie entitled “Black Mamma White Mamma,” but there was no such testimony. The veteran trial judge doubtless pondered the question, but no one supplied a positive answer. In the light of what had occurred, we can fully understand the immediate reaction of the trial judge, and the writer would probably have ruled as he did; but the argument made, with all of its implications under the circumstances, becomes more clearly impermissible and prejudicial, the more it is considered. The jury well knew, or had good reason to believe, that State’s counsel had been reliably informed that defendant had been to see “Black Mamma White Mamma” shortly before the crime was committed and there was no way to erase that from the minds of the jury. A mistrial should have been granted, and the judgment should be reversed. We conclude that there was no intentionally improper argument on the part of counsel for the State, that the trial court is not to be blamed for not immediately seeing, through the smoke of what occurred, the now obvious injustice to defendant, that defendant’s counsel is not to be blamed for not being able at the time to point out to the trial judge by appropriate measures how much his client had been hurt; but greatly hurt he was. In this connection it should be noted that by agreement of parties the court charged the jury on the lesser included offense of an assault and battery. Furthermore, there was and is no contention by the State that appellant is the person who caught hold of the victim of the assault and put her partly in the automobile, but that defendant, while sitting under the steering wheel of the automobile aided and abetted the other in the commission of the crime.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945. The judgment of the Court below is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All Judges, concur.

      . . .2. slang; WOMAN, WIFE.”
      Webster’s New International Dictionary (3d ed. 1961, but not in 2d ed. 1950);
      . .2. Slang. A voluptuous woman: the last of the red-hot mammas.” The American Heritage Dictionary (1969).


author: JONES, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2405.
    Supreme Court of Alabama.
    April 29, 1977.
   JONES, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Michael Anthony MAYOLA v. STATE.
    6 Div. 372.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied March 29, 1977.

      Howard A. Mandell for Mandell & Boyd, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

In November of 1962, Michael Anthony Mayóla, the appellant, was convicted of the first-degree murder of an eleven year old child. He was sentence to life imprisonment. No appeal was taken from that conviction for which the maximum penalty was death.

On April 3,1973, the appellant filed a pro se petition for writ of error coram nobis, which he subsequently amended, and which, as amended, was heard and denied. This denial was appealed and this court in Mayola v. State, 57 Ala.App. 137, 326 So.2d 665 (1976) affirmed the ruling of the lower court.

Mayóla subsequently filed a petition for a writ of habeas corpus with the United States District Court for the Northern District of Alabama. On April 2, 1976, this petition was denied because the appellant had failed to exhaust his state remedies regarding his claims of (a) the introduction of inadmissible evidence, (b) improper jury selection, and (c) prejudicial pretrial publicity.

On April 12, 1976, the appellant filed a second petition for writ of error coram no-bis with the Circuit Court of Blount County. In this second petition, the appellant allegedly and admittedly sought to present those issues to which the state remedy had not been exhausted under the federal court order. After a full hearing on the merits of that petition, it was denied. This appeal is taken from the lower court’s order denying the appellant’s second petition for a writ of coram nobis. As an indigent, the appellant was afforded counsel on the hearing of each coram nobis petition, a free transcript in each case and counsel on each appeal.

Four issues are presented for review. The appellant urges that the following failures of the lower court were error: The failure of the lower court (1) to furnish the appellant with a copy of his trial transcript, (2) to grant the appellant’s request for a change of venue based on pretrial publicity, (3) to grant his petition for writ of error coram nobis because illegally obtained evidence was admitted at trial, and (4) because the appellant alleges he was not represented by counsel at his. arraignment.

The facts of the crime surrounding the kidnapping and murder of the deceased youth are repulsive and shocking. However, they are not material for purposes of this appeal. Therefore, the relevant facts and testimony will be discussed as material to each issue.

I

The appellant asserts that the lower court erred in denying his request for a copy of his original trial transcript without a showing that (1) the transcript was no longer available and (2) that the state was in no way responsible for its unavailability.

From the testimony given in this second coram nobis hearing it affirmatively appears that, contrary to the appellant’s assertions, he was informed by his trial attorneys of his right to appeal and that he knowingly and intelligently waived this right. The appellant has given no credible reason for his delay in raising any issue surrounding his conviction and in appealing his case.

Under Alabama law (Act 525, approved September 16, 1963, Acts of 1963, page 1129; see Code 1940, Recompiled 1958, Title 15, § 380(14) et seq.) a court cannot order a free transcript until an appeal has been taken. There is no provision under the law of this state for furnishing a transcript of the evidence of a conviction, which has never been appealed, on a post-appeal review. Holden v. State, 47 Ala.App. 164, 251 So.2d 782 (1971); Keeton v. State, 278 Ala. 81, 175 So.2d 774 (1965); Allison v. State, 273 Ala. 223, 137 So.2d 761, cert. denied, 369 U.S. 856, 82 S.Ct. 946, 8 L.Ed.2d 15 (1962); Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966).

We recognize the rule established in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); and Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed. 899 (1963) and extended by Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1957); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961) and Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963) that the right to a free transcript is not limited to direct appeals from criminal convictions, but extends alike to state post conviction proceedings, even though the state has already provided one review on the merits. Indeed Act 525 was enacted in response to the constitutional mandate set forth in Griffin, supra. Ex parte Hable, 278 Ala. 11, 174 So.2d 689 (1965); Ex parte Vann, 44 Ala.App. 404, 210 So.2d 850 (1968).

Here when a request was made for the trial transcript, fourteen years had elapsed. The lower court judge stated that “the transcript is not available I’m informed. Now, if it were available, I would make it available to you.”

The appellant was represented by counsel at his trial and that counsel was fully prepared, as the record so indicates, to protect his rights on appeal. Here the appellant specifically waived those rights and cannot now be heard to complain.

The attorney for the appellant has represented to this court that diligent efforts have been made to obtain the trial transcript or the court reporter’s notes without success. The appellant did not take an appeal from his conviction nor did he give any indication to the trial court that he desired a transcript of his trial prepared. Since no evidence has been adduced indicating intentional state action designed to discriminate against the appellant, his contention that he was denied due process because the state failed to prepare a transcript of his trial is without merit and must fail. See: McGarrity v. Beto (S.D.Tex.1971) 335 F.Supp. 1186 and cases cited at 1189. Although it would be an invidious discrimination for the state to make available a transcript to those who could afford them, yet deny them to those who were indigent, the failure of the state to provide them because they simply do not exist does not arise to the magnitude of a constitutional violation. Yates v. Wellman (E.D.Ky.1974) 373 F.Supp. 437 and cases cited at 439.

II

The appellant also contends that the lower court erred in not granting his petition for writ of error coram nobis on the ground that adverse and sensational publicity denied him the right to a fair trial.

From the evidence before us it appears that a motion for change of venue was not filed in the trial court although the trial judge and the appellant’s attorneys discussed it. A motion for a continuance on the ground of pretrial publicity was made but was denied. Because of this, the trial judge specifically qualified the jury on his own as to whether they would be prejudiced by the newspaper publicity. The trial judge testified that he was satisfied that the jury had been amply qualified with regard to pretrial publicity because he specifically “took that up with the jury and because the appellant’s attorneys questioned all of the jurors individually and at length”.

By not raising the matter of venue in the trial court the appellant has waived his right to urge improper venue for the first time at the coram nobis hearing. Eagen v. State, 280 Ala. 438, 194 So.2d 842 (1967); Akins v. State, 50 Ala.App. 94, 277 So.2d 369 (1973).

The function of a writ of error cor-am nobis is not to relieve a party of his own negligence in not raising issues at the time of trial when he had full knowledge of the facts. Hopkins v. State, 57 Ala.App. 78, 326 So.2d 144 (1975); Mathis v. State, 281 Ala. 424, 203 So.2d 442 (1967).

The existence of widespread publicity alone does not indicate that the accused will not get a fair trial. Publicity by press, radio, and television is not necessarily a ground for a change of venue. Mathis v. State, 280 Ala. 16, 189 So.2d 564, cert. denied, 87 S.Ct. 963, 386 U.S. 935, 17 L.Ed.2d 807 (1966); Hurst v. State, 54 Ala.App. 254, 307 So.2d 62, cert. denied, 293 Ala. 548, 307 So.2d 73 (1974); Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert. denied, 288 Ala. 748, 265 So.2d 192, cert. denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (1972). There is absolutely no evidence before this court of any actual prejudice directed toward the appellant resulting from extensive publicity. Indeed, the record before us establishes the fact that the jury which tried and convicted the appellant was fair and impartial. That they sentenced the appellant to life rather than death is enough indication of this. It is elementary that the movant must show bias or prejudice in the jury or jury venire created by the alleged prejudicial publicity before he is entitled to a change of venue. Without proof of prejudicial influence on the jury, this court will not hold the trial court in error for refusing or failing to grant a motion for a change of venue or continuance based on pretrial publicity. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835, cert. denied, 293 Ala. 745, 309 So.2d 844 (1974); Mathis v. State, 52 Ala.App. 668, 296 So.2d 755, cert. quashed, 292 Ala. 732, 296 So.2d 764, cert. denied, 419 U.S. 1106, 95 S.Ct. 777, 42 L.Ed.2d 802, rehearing denied, 420 U.S. 967, 95 S.Ct. 1363, 43 L.Ed.2d 446 (1973); Edwards v. State, 51 Ala.App. 433, 286 So.2d 308, cert. denied, 291 Ala. 777, 286 So.2d 313 (1973); Flowers v. State, 47 Ala.App. 613, 259 So.2d 300 (1972). Only the newspaper articles are before this court. There was absolutely no offer of proof as to their prejudicial influence or effect, if any, upon the jury. On the contrary the evidence presented shows that the jury was not influenced by the publicity. The introduction of newspaper articles is alone insufficient to support a motion for a change of venue (or continuance) without a showing of the effect such articles would have on the venire or the jury. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175, cert. denied, 266 Ala. 694, 96 So.2d 178 (1956); Aycock v. State, 50 Ala.App. 130, 277 So.2d 404 (1973); Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79 (1975); Slaughter v. State, 47 Ala.App. 634, 259 So.2d 840 (1972).

From the above it is obvious that relief cannot be granted on this claim of error.

III

The third argument of the appellant is that illegally obtained evidence was admitted at his trial. The office of the writ of error coram nobis is not that of a delayed appeal but rather is the vehicle to seek review of matters which were not known or could not have been reasonably discovered within the time for taking a direct appeal. Seagroves v. State, 53 Ala.App. 481, 301 So.2d 245 (1974). Furthermore, testimony before this court affirmatively shows no illegally obtained evidence was introduced at the appellant’s trial. For these reasons, this claim of the appellant must fail.

IV

Finally, the appellant argues that his petition should have been granted because he was not represented by counsel at arraignment. The evidence positively belies this assertion and demonstrates that the appellant was represented by counsel. The appellant’s conviction of kidnapping was reversed by this court because of lack of counsel at his arraignment. Mayola v. State, Ala.Cr.App., 337 So.2d 105 (1976). Perhaps the appellant has these cases confused in his own mind.

Absent from his petition for the writ of error coram nobis is an allegation that the appellant was innocent of the crime charged or that he had a valid defense. Under a long line of cases of this court and the Supreme Court, failure to make this assertion is fatal. Upshaw v. State, 50 Ala.App. 172, 277 So.2d 917 (1972); Mack v. State, 51 Ala.App. 611, 288 So.2d 150 (1974). It is indeed a sad commentary when guilt or innocence is no longer the paramount question to be resolved. Cooper v. Wiman, 273 Ala. 699, 146 So.2d 216 (1962).

This court finds absolutely no merit whatsoever to any of the claims advanced by the appellant. We will not allow the appellant to make a mockery of justice and abuse the process of this court by asserting frivolous accusations bounded only by his own imagination.

After carefully and fully considering each contention raised by the appellant and searching the record for error prejudicial to the appellant and finding none, it is the opinion of this court that the judgment of the lower court denying the petition for writ of error coram nobis is due to be and is hereby

AFFIRMED.

All Judges concur.


text:
    Ex parte Michael Anthony MAYOLA.
    SC 2486.
    Supreme Court of Alabama.
    April 29, 1977.
   ALMON, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Marvin Roosevelt HARGROVE v. STATE.
    8 Div. 895.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied March 29, 1977.
    Earl E. Cloud, Cloud, Berry, Abies, Blan-ton & Tatum, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: ten years imprisonment.

The evidence presented at trial showed that the appellant killed James Boyce King, also known as Blackie King, by shooting him through the chest. The shooting took place in the presence of a room full of witnesses at the City Cafe; a bar in Huntsville. The State called eleven witnesses, the majority of whom claimed to be eyewitnesses to the shooting. Apparently the shooting was the culmination of an argument over the proceeds of a dice game. The appellant testified that he did not shoot King, however, the main thrust of his defense was a claim of self-defense. The appellant called thirteen witnesses who testified either to the appellant’s good character or to King’s bad character. Suffice it to merely state that the evidence adduced at trial presented an overwhelming case of second degree murder against the appellant.

I

The appellant contends that the trial court erred in allowing the State’s attorney to ask questions which assumed prejudicial facts not proven. See Campbell v. State, 32 Ala.App. 461, 27 So.2d 220 (1946). The first complained of instance resulted in the following colloquy:

“Q. Did you see this man struck in any other fashion, except by Charles Cantrell, other than after he shot Blackie King? “A. No, sir.
“MR. CLOUD: We object, he didn’t say he shot Blackie King, he didn’t see the gun and we object to that.
“MR. MORGAN: I’ll rephrase the question, Judge.
“MR. CLOUD: We ask it be excluded. “THE COURT: Overrule.’’

At the time the above colloquy occurred, sufficient evidence had been presented from which the court could easily infer that the appellant had shot King. Therefore, as nothing prejudicial was assumed, the rule in Campbell, supra, was not violated. The question was then rephrased in proper form and the same response was elicited. No prejudicial error thus resulted.

The second contention of appellant concerns the following colloquy:

“Q. Did you see Blackie King with a knife in his hand?
“MR. CLOUD: We object, he said he never saw a knife.
“THE COURT: Overrule.
“Q. Where was Blackie King when you saw him with a knife in his hand?
“A. Standing between the openings.”

The question objected to did not assume any facts. The witness was merely asked if he saw King with a knife in his hand. The trial court’s ruling was entirely proper. The next question did assume that the witness saw King with a knife in his hand, however, no objection was raised to that question and no ruling elicited.

II

At trial Officer Larry Seaver testified concerning the appellant’s arrest and a statement made by the appellant subsequent to the arrest. It was Officer Seaver’s testimony that he gave the appellant the appropriate Miranda warnings. Officer Seaver recited the warnings that were given to appellant, and he said that appellant acknowledged an understanding of the Miranda warnings. Later during Officer Seaver’s testimony, the following occurred:

“Q. Did Mr. Hargrove, during this trip to the hospital, make any statements to you?
“A. Yes, sir.
“MR. CLOUD: We object to any unsolicited statements, that is a conclusion.
“THE COURT: You can ask what he said, if he knows.
“Q. Officer Seaver, what, if anything, did Mr. Hargrove say to you on the way to the hospital?
“A. He told me he should have killed him twenty years ago and that he shot him right in the heart, that he was an expert shot.” (Emphasis added.)

The appellant contends on appeal that the proper predicate was not laid for the admission of the above statement. He contends that there was no showing that the statement was voluntarily given as required by McNair v. State, 50 Ala.App. 465, 280 So.2d 171, cert. denied 291 Ala. 789, 280 So.2d 177 (1973). While all confessions are considered to be prima facie involuntary, the present confession was especially suspect due to the apparent dazed condition of appellant following a severe beating which was inflicted on him after the shooting and before his inculpatory statement to Officer Seaver. The beating was inflicted by King (after he had been shot through the chest) and by King’s cohorts in the bar.

The italicized portion above was the only objection at trial to the appellant’s confession. Specific grounds of objection waive all grounds not specified, and the trial court will not be put in error on grounds not assigned. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). The objection was unclear, and it certainly did not specify that the proper predicate, i. e., proof that the statement was voluntarily given, had not been laid. Apparently the State contends, as did the trial court, that the appellant’s statement was “volunteered” or spontaneous. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Boyd, 212 Pa.Super. 80, 239 A.2d 853 (1968). We pretermit discussion of the validity of the State’s contention because we find that the appellant did not properly object to the admission of the statement.

Likewise, the objection came after the first question was answered; no ruling was elicited from the trial judge on the objection; the second question was propounded to the witness without objection, and; the witness then gave an answer unfavorable to appellant. After the answer, no motion to exclude was made. See Graham v. State, 40 Ala.App. 471, 115 So.2d 289 (1959); Miller v. State, 52 Ala.App. 525, 294 So.2d 774 (1974); Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1976).

Ill

During the period between the appellant’s preliminary hearing and trial, the appellant attempted to depose Bernard Webb, the owner of the City Cafe. Title 15, § 297, Code of Alabama 1940 (Recompiled 1958) reads as follows:

“The defendant may take the deposition of any witness, who, from age, infirmity, or sickness, is unable to attend court; or who resides out of the state, or more than one hundred miles from the place of trial, computing by the route usually traveled; or who is absent from the state; or where the defense, or a material part thereof, depends exclusively on the testimony of the witness.”

Apparently the depositions were not allowed by the trial court. We say apparently because we find no ruling in the record on the appellant’s Title 15, § 297 motion. Absent a ruling contained in the record, we have nothing to review. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974).

IV

The appellant requested that one hundred twenty written charges be given to the jury. The trial court gave only five. The refused written charges were either affirmative in nature, incorrect statements of applicable law, argumentative under the evidence, confusing, or were fairly and substantially covered in the oral charge. We have carefully reviewed the refused charges and compared them to the given charges and to the court’s oral charge. We find that the trial court committed no error in refusing the one hundred fifteen requested charges. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974).

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Marvin R. HARGROVE.
    SC 2490.
    Supreme Court of Alabama.
    April 29, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ.,' concur.


author: PER CURIAM.

text:
    Wendell Lee LOVELL v. STATE.
    8 Div. 891.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Finis Royal, Scottsboro, for appellant.
    William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State, appellee.
   PER CURIAM.

The appellant, Wendell Lee Lovell, brings this appeal from a judgment rendered in the Circuit Court of Jackson County which denied his petition for a writ of error coram nobis.

From the record before us it appears that the appellant was represented in the trial court, and is now represented by court appointed counsel.

By his petition for a writ of error coram nobis the appellant sought relief from three judgments of the circuit court of Jackson County whereby he had been sentenced to the penitentiary of Alabama for three years in each of the three cases with all three of the sentences to run concurrently. At the time the appellant filed his petition for a writ of error coram nobis, and at the time the judgment under appeal to this Court was rendered, the three judgments the appellant had been sentenced on were pending on appeal to this Court.

We hold that a writ of error coram nobis is not available to one during the time the judgments sought to be set aside are pending on appeals. Kinney v. White and White v. Kinney, 215 Ala. 247, 110 So. 394; Vincent v. State, 284 Ala. 242, 224 So.2d 601; Daniels v. State, 48 Ala.App. 750, 267 So.2d 540.

The trial court’s action in dismissing the appellant’s petition for a writ of error cor-am nobis is hereby affirmed.

There are no other rulings of the trial court complained of in appellant’s brief. We have examined carefully the entire record, and find from such examination that there is no error in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All Judges concur.