author: LEIGH M. CLARK, Retired Circuit Judge. TYSON, Judge

text:
    Howard Lee PROTHRO v. STATE.
    5 Div. 419.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Rehearing Denied Feb. 20, 1979.
    See also, Ala.Cr.App., 362 So.2d 1284, 369 So.2d 814 and 372 So.2d 37.

      Larkin Radney, Alexander City, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The only issue expressly presented by appellant for review is stated in his brief as follows:

“The Alabama ‘Death Penalty and Life Imprisonment Without Parole’ statute violates the Constitution of the United States and the Alabama Constitution of 1901.”

The instant challenge of the constitutionality of said Death Penalty and Life Imprisonment Without Parole Act (Act 213, 1975 Ala. Acts, p. 701, et seq. ) is based upon grounds in addition to those presented in several cases in which the constitutionality of said law as therein raised and considered has been upheld by the Supreme Court of Alabama and by the Alabama Court of Criminal Appeals. See Jacobs v. State, Ala.Cr.App., 361 So.2d 607 (1977), cert. denied Ala., 361 So.2d 640 (1978); Cook v. State, Ala.Cr.App., 369 So.2d 1243 (1977), aff’d in part and rev’d in part and remanded for a rehearing on mitigating circumstances, Ala., 369 So.2d 1251 (1978); Wilson v. State, Ala.Cr.App., 1978, 371 So.2d 932; Beck v. State, Ala.Cr.App., 1978, 365 So.2d 985; Williamson v. State, Ala.Cr.App., 1978, 370 So.2d 1054; and Clements v. State, Ala.Cr.App., 1978, 370 So.2d 708. See also, Evans and Ritter v. State, Ala.Cr.App., 361 So.2d 654 (1977), aff’d as to Evans and rev’d and rem’d as to Ritter for consideration of the applicability of the “felony-murder doctrine” Ala. [July 6, 1979] on remand, Ala.Cr.App. [August 9,] (1978), in which cases each of the defendants-appellants requested and was given the death penalty.

On an indictment charging Zebedee Hayes, Howard Lee Prothro, and Dave Thomas with intentionally killing Luther Shoffeitt during the course of a robbery of Shoffeitt, appellant herein was separately tried. The jury found him guilty as charged and fixed his punishment at death. On a post-conviction hearing, the trial court reduced his punishment by a sentence to imprisonment for life without parole.

Appellant urges that the Alabama Death Penalty Act “violates the Fifth Amendment right to plead not guilty, the Sixth Amendment right to demand a trial by jury, and the Constitution of Alabama, 1901, Article I, Section 11, which provides, “That the right of trial by jury shall remain inviolate.”

Appellant centers his aim upon the following parts of the cited Alabama Act:

“§ 13-11-2.
(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation “§ 13-11-3.
If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. . . .”

Appellant relies chiefly upon United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), in which the court had for consideration the Federal Kidnaping Act, 18 U.S.C. § 1201(a) in pertinent part as follows:

“Whoever knowingly transports in interstate . . . commerce, any person who has been unlawfully . . . kid-naped . . . held for ransom . shall be punished (1) by death if the kid-naped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.”

In Jackson the Court, speaking through Mr. Justice Stewart for a majority of six, held that the death penalty provision of the Federal Kidnaping Act was invalid because it imposed an impermissible burden upon an accused’s exercise of his Fifth Amendment right not to plead guilty and his Sixth Amendment right to demand a trial by jury. The Court said at 390 U.S. 581, at 88 S.Ct. 1216:

“Under the Federal Kidnaping Act, therefore, the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilty before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. . . .”

The question presented and determined in Jackson is not the question to be determined here, as the legal premises for a conclusion reached therein are essentially different from, and in some respects diametrically opposed to, the legal premises in the case now before us.

It is to be kept in mind that, although Jackson holds that a defendant has the constitutional right not to plead guilty, citing Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126, it does not hold that one has the constitutional right to a trial without a jury. Even before the Bill of Rights, it was provided, “The trial of all crimes, except in cases of impeachment, shall be by jury; . . . ” Constitution of the United States, Art. Ill, Sec. 2, Par. 3.

Rule 23(a) of the Federal Rules of Criminal Procedure provides:

“Cases to be tried by jury shall be so tried unless a defendant waives a jury trial in writing with the approval of the court and the consent of the government.”

Rule 23(a) was attacked as unconstitutional in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, Singer claiming that in a federal criminal case, by virtue of his unconditional right, guaranteed by Art. Ill, Sec. 2, and the Sixth Amendment, he had “a correlative right to have his case decided by a judge alone if he considered such a trial to be to his advantage.” In an extensive consideration of the history of criminal proceedings in England under the common law, in the courts of the American Colonies, in United States courts, and in the courts of the various states before and after their adoption of the Constitution of the United States, the Court in Singer concluded that the Constitution of the United States does not confer upon a defendant in a criminal case a right to waive a jury trial and that Rule 23(a) FRCrP sets forth a reasonable procedure governing attempts to waive jury trials.

At the time of Singer, at the time of Jackson, and from the time of the adoption of the Constitution to and including the present time, with few possible exceptions, such as was attempted by the Federal Kid-naping Act, the determination of the punishment, within the limits prescribed by law, to be imposed upon a defendant convicted in federal cases, was, has been, and is exclusively a function of the trial judge.

“It is axiomatic that it is the exclusive function of juries to determine whether defendants are guilty or not guilty, and of the court to determine matters of punishment. Sullivan v. United States, 317 F.2d 101, 102, C.A. 5, cert. den. 375 U.S. 854, 84 S.Ct. 114, 11 L.Ed.2d 81; McClanahan v. United States, 292 F.2d 630, 634, C.A. 5, cert. den. 368 U.S. 913, 82 S.Ct. 193, 7 L.Ed.2d 130.” United States v. Davidson, 367 F.2d 60, 63 (6 Cir. 1966)

The line of demarcation between the function of the judge and the function of a jury as to the punishment to be imposed upon a defendant found guilty of a crime is distinctly different in federal trial courts from what it is in trial courts of Alabama. In a capital case in the trial courts of Alabama, a jury, and a jury alone, has authority to fix the punishment at death. So assiduously has the integrity of the exclusive function of the jury been guarded throughout the years, that not until September 12, 1969, (the date of the approval of Acts 1969, No. 1061, p. 1981, § 1, which will be hereafter discussed) could the trial judge (the court without the intervention of a jury), fix the punishment for a felony when such “power is expressly conferred on the jury,” even though defendant had expressly waived a jury trial and entered a plea of guilty. The proposition is stated in Ex parte Jenkins, 38 Ala.App. 117, 76 So.2d 858 (1955) as follows:

“The appellate courts of this State have reviewed many cases in which the trial judge fixed the punishment when he was not authorized by statute to do so. Some have involved capital offenses, others have not. All of these authorities adhere to the rule that the statutory duty of the jury to fix punishment is mandatory and the trial judge cannot relieve the jury of this prerogative. See Houston v. State, 37 Ala.App. 359, 68 So.2d 735; Tanner v. State, 23 Ala.App. 116, 121 So. 693; Washington v. State, 125 Ala. 40, 28 So. 78; Powell v. State, 30 Ala.App. 606, 10 So.2d 867; Smith v. State, 23 Ala.App. 72, 121 So. 692; Smith v. State, 23 Ala. 106, 121 So. 692.”

In amending the statutory law by Acts 1969, No. 1061, p. 1981, § 1, the previous stringent requirements that the provisions of statutory law for punishment be fixed by a jury were relaxed to the extent that where a defendant upon arraignment or prior to trial pleads guilty and contemporaneously therewith waives his right to a jury trial, the court, without the intervention of a jury, can fix the punishment the same as a jury might fix or impose it if the case were being tried by a jury, but the court cannot impose capital punishment without the intervention of a jury.

“(a) If a defendant upon arraignment or prior to trial pleads guilty, the court, without the intervention of a jury, shall determine the degree of the offense and fix the punishment therefor the same as a jury might fix or impose it if the case were being tried by a jury, unless, in the discretion of the trial judge, a jury should be impaneled to determine the degree of the offense or to fix the punishment thereof or unless the defendant at the time of entering such plea demands a jury in writing. The court shall not in any event, however, impose capital punishment without the intervention of a jury.” (Emphases supplied). Ala.Code 1975, § 15-15-24

Even under the amended statute as above noted, the perennial exclusive function of the jury to fix the punishment for certain crimes, including crimes punished capitally, is preserved, unless a plea of guilty is entered “upon arraignment or pri- or to trial.” The amendment is not applicable when a plea of guilty is entered while the trial is in progress. Headrick v. State, 46 Ala.App. 202, 239 So.2d 572 (1970).

In Singleton v. State, 288 Ala. 519, 262 So.2d 768 (1971), it was held that a defendant charged with a felony, not capital, could waive a jury trial, enter a plea of not guilty and be tried by a judge without a jury if agreeable to both the prosecution and the trial judge. It was noted therein that there was neither constitutional nor statutory provision to the contrary. Speaking through Mr. Justice Maddox, the Supreme Court of Alabama clearly distinguished between the law governing whether accused has the absolute right to a trial by a judge without a jury and the law governing whether the court has jurisdiction or authority to try the accused without a jury if and when the accused, the prosecution and the trial judge agree for him to be so tried. It was pointed out that in misdemeanor cases in the circuit court, the issues, or questions of fact, are tried by the court without the intervention of a jury unless one is demanded. In the absence of such a demand, the judge trying the case necessarily fixes the punishment within the limits provided by statute. The crime for which Singleton was tried and convicted was burglary in the second degree, grand larceny and receiving or concealing stolen property, as to which there was no legislative provision requiring a jury to fix the punishment. Code of Alabama, Recomp.1958, Tit. 14, § 86, § 331, § 338. The court said, at 288 Ala. 522, at 262 So.2d 771:

“We express no opinion whether a defendant could waive a jury trial in those cases where a jury is required to fix the punishment, and degrees of the offense, but we note the provisions of Title 15, § 329, which read:
“ ‘In all cases in which the statute authorized or provides that the jury may fix or impose punishment or penalties of any kind, if the case is tried by the court without a jury, the court or judge trying the case may fix or impose any punishment or penalties which the jury might fix or impose if the case was being tried by a jury.’ (Emphasis added).
“We do call attention to Act No. 1061, Acts of Alabama, 1969, which amends Title 15, § 277, Code of Alabama, 1940, so as to eliminate the necessity of impaneling a jury in certain cases when the defendant upon arraignment or prior to trial pleads guilty. . . .”

Whether the Supreme Court of Alabama in Singleton v. State, supra, was indicating, by its quotation from Ala. Code 1940, Tit. 15, § 329, and its reference to Act No. 1061, Acts of Alabama, 1969, that probably a defendant could waive a jury trial in cases where a jury is required to fix the punishment, we express no opinion, but it is clear from the opinion in Singleton that there is no indication therein that a jury trial could be waived in a capital case. The opinion deals exclusively with the question whether such a waiver can be made in a noncapital case, as shown by its first sentence, “Can a defendant charged with a felony, not capital, waive a jury trial, enter a plea of not guilty and be tried by a circuit judge without a jury?”

If the sentence in Acts 1969, No. 1061, p. 1981, § 1(a), “The court shall not in any event, however, impose capital punishment without the intervention of a jury,” is not sufficient to show that the Act makes no change in the law that in a capital case a defendant cannot by an attempted waiver of a jury trial and a plea of guilty to a capital offense preclude a jury from fixing his punishment, Code of Alabama 1975, § 12-16-126, when considered with the other pertinent principles of law obtaining in Alabama as hereinabove considered, definitely establishes that a trial court in a capital case can neither determine the guilt nor fix the punishment of a defendant without the intervention of a jury.

“At any time before a special venire has been drawn for the trial of any capital case, if the defendant enters a plea of guilty or in writing waives the right of a special venire, such plea of guilty or such waiver of special venire shall be entered of record and, in either event, no special jury or venire shall be necessary for the trial of such case, but the trial of the case shall be had and the question of the degree of guilt must be ascertained and the punishment fixed by a jury to be selected from the panel of regular petit jurors organized by the court during the week such case is set for trial in the same manner as juries are organized for the trial of felonies not capital, and the state and the defendant shall be allowed the same number of peremptory challenges as they are respectively allowed in the trial of felonies not capital.” (Emphasis supplied) Ala.Code 1975, § 12-16-126. (Code 1907, § 7264: Code 1923, § 8651; Code 1940, T. 30 § 70.)

If it is thought that Acts 1969, No. 1061, p. 1981 § 1, is capable of ever permitting a court without a jury to fix the punishment as to a capital crime, it should be noted that by said Act itself the court can only do so “the same as a jury might fix or impose it if the case were being tried by a jury.” The Act furnished no authority for the action of the trial court in fixing the punishment in this case at life imprisonment without parole, as such punishment would not be “the same as a jury might fix or impose.”

Aside from and independent of the legislatively made and judicially declared law of Alabama prior to the effective date of the Alabama Death Penalty and Life Imprisonment Without Parole Act, as hereinabove stated, that necessitates a determination by a jury of the guilt or innocence and punishment of a defendant in a capital case, the inapplicability of United States v. Jackson, supra, to said Alabama Act is sealed by the express provisions of the Act itself. It provides:

“Except in cases enumerated and described in sections 13-11-2, neither a court nor a jury shall fix the punishment for the commission of treason, felony or other offenses at death, and the death penalty or a life sentence without parole shall be fixed as punishment only in the cases and in the manner herein enumerated and described in section 13-11-2. In all cases where no aggravated circumstances enumerated in section 13-11-2 are expressly averred in the indictment, the trial shall proceed as now provided by law, except that the death penalty or life imprisonment without parole shall not be given, and the indictment shall include all lesser offenses. (Acts 1975, No. 213, § 1.)” (Emphasis supplied). Ala.Code 1975, § 13-11-1
Section 13-11-2 of the Act provides: “(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses:
“(c) In such cases, if the jury finds the defendant not guilty, the defendant must be discharged. The court may enter a judgment of mistrial upon failure of the jury to agree on a verdict of guilty or not guilty or on the fixing of the penalty of death. After entry of a judgment of mistrial, the defendant may be tried again for the aggravated offense, or he may be reindicted for an offense wherein the indictment does not allege an aggravated circumstance. If the defendant is reindicted for an offense wherein the indictment does not allege an aggravated circumstance, the punishment upon conviction shall be as heretofore or hereafter provided by law; however, the punishment shall not be death or life imprisonment without parole.” (emphasis supplied)

Additional provisions of the Act and the codification thereof are as follows:

“§ 13-11-3.
“If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13 — 11—2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole.
“§ 13-11-4.
“Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death. . . . ”

The Act, ex vi termini, and the Alabama Legislature, ex proprio vigore, have set forth not only the only crimes for which one may be punished by death or by life imprisonment without parole, but also the only method by which either punishment may be lawfully imposed. Neither the death sentence nor a sentence to life imprisonment without parole is permissible, whether by agreement of all concerned or not, in the absence of a verdict of a jury finding the defendant guilty and fixing his punishment at death.

We must come to the conclusion that in Alabama the constitutional and statutory law does not permit the trial court, without a jury, to try or fix the punishment in a capital case. Here we find the distinction between United States v. Jackson, supra, and the case now under review. In Jackson, the defendant could waive “a jury trial in writing with the approval of the court and the consent of the government” (Rule 23(a) FRCrP) and thereby escape the death penalty. In Alabama, under the Death Penalty and Life Imprisonment Without Parole Act, he cannot waive a jury trial, even with the consent of the prosecution and the consent of the trial court; he cannot by such a maneuver avoid the legal necessity for a jury to try the facts, find defendant guilty or not guilty, and if found guilty to fix his punishment at death. Such was the procedure in the Evans and Ritter v. State, supra, in which defendants pleaded guilty and requested the death penalty.

Stated otherwise, no provision of the Alabama Act, when considered with other statutory law of Alabama, can have the effect “to discourage assertion of the Fifth Amendment right not to plead guilty and [or] to deter exercise of the Sixth Amendment right to demand a jury trial” as was held in Jackson, supra, 390 U.S. 581, 88 S.Ct. 1216. In the case before us, defendant had nothing to gain by pleading guilty or attempting to waive a jury trial, or both.

In Jackson, if defendant had pleaded guilty and waived a jury trial with the approval of the court and the consent of the government, the court could and would have tried the case without a jury, and if Jackson was found guilty, the court would have had no alternative to fixing his punishment at “imprisonment for any term of years or for life,” as provided by the Federal Kidnapping Act, 18 U.S.C., § 1201(a)(2). In instant case, the court could not approve and the State could not consent to any attempted waiver by defendant of a jury trial. In Jackson, the court and the government, when acting together, could approve and consent to such a waiver.

By the law of Alabama, whether the accused pleads guilty or not guilty, or refuses or declines to plead, a jury must pass upon the question of the guilt or innocence of one indicted under the Death Penalty and Life Imprisonment Without Parole Act, and a jury must fix defendant’s punishment if he is found guilty. Neither the Constitution of the United States nor the Constitution of Alabama gives an accused the right to dispense with a jury trial.

In support of his contention that United States v. Jackson, supra, leads to the conclusion that the Death Penalty and Life Imprisonment Without Parole Act is unconstitutional, appellant finds comfort in what was said by Mr. Justice Blackmun in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), in which he stated that Ohio’s “Death Penalty and Life Imprisonment Without Parole” statute contained a similar infirmity to the statute considered in the Jackson case. Appellant candidly concedes that Mr. Justice Blackmun was expressing his view only and that such view is not to be found expressly or by implication in the plurality opinion holding the Ohio statute unconstitutional as incompatible with provisions of the United States Constitution not involved in this case. Nevertheless, appellant asks that we consider Mr. Justice Blackmun’s views, which we gladly do.

Mr. Justice Blackmun stated:

“Under Ohio Rule Crim.Proc., 11(C)(4), the sentencing court has full discretion to prevent imposition of a capital sentence ‘in the interest of justice’ if a defendant pleads guilty or no contest, but wholly lacks such discretion if the defendant goes to trial.”

It is to be seen therefrom, as well as from the remainder of the view expressed in reliance upon Jackson, that, unlike Alabama law on the subject, a trial court of Ohio could withhold imposition of the death penalty solely by reason of “the interest of justice,” whenever a defendant pleads guilty, but could not do so if and when defendant pleads not guilty. There is no such provision of law in Alabama. The encouragement to plead guilty that Mr. Justice Blackmun finds in Ohio law cannot be found in the law of Alabama. The law of Alabama is in marked contrast, in that only a jury can make a factual determination of guilt and only a jury can fix the punishment at death. If and when both are done, then the trial court without a jury, can impose a sentence of death or of life imprisonment without parole, regardless of how defendant has pleaded.

In addition to our consideration of the only issue raised by appellant, we have reviewed the record to determine whether there was any error on the trial prejudicial to defendant. The evidence fully justifies the verdict. Without attempting to summarize it, we refer to a summary of the evidence in the companion case of Thomas v. State, Ala.Cr.App., 358 So.2d 1076 (1978), in which the witnesses and their testimony were substantially the same as in instant case, except in the particular that the incriminating statement of each defendant was admitted in evidence in his case only. According to the evidence in the case now before us, including appellant’s incriminating statement, the robbery of Mr. Shoffeitt was carefully planned by the three defendants; Mr. Shoffeitt was killed by one of the two shotguns supplied by appellant for the purpose of killing, if necessary, in an attempt to rob; appellant was in the store with Mr. Shoffeitt prior to the robbery and signalled the other two to come in with the guns, and was standing with Shoffeitt and was in the process of robbing him when Hayes shot and killed him. Furthermore, in the incriminating statement of appellant, he said:

“. . . I heard a shot and the man fell back into my arms. I didn’t see Zebedee shoot the man, but I heard Zebedee say he shot the man. Dave told me I grabbed the man around the neck, but I don’t remember it. I may have when I saw the man had a gun and I was behind him. I can’t remember for sure, because I was behind the man, And I thought I was shot too. I saw Zebedee’s gun unb-riched and I guess Zebedee took the empty shell out. I saw a billfold on the floor of the store and I got it. I then run out the door. ... I didn’t see the money until we got to my house and I counted it and divided it.”

There is no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

(The writer of this opinion, in the main as it is now, submitted it before the then manuscript opinion in Evans v. State, Ala.Cr. App., 362 So.2d 1284, came to his attention.)

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge on 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 and Evans, supra; Roosevelt Youngblood v. State, 3 Div. 935, (October 31, 1978) affirmed without opinion, are hereby overruled.

AFFIRMED.

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

TYSON and DeCARLO, JJ., concur specially.

TYSON, Judge

(with whom DeCARLO, J., joins), concurring specially.

Judge DeCarlo and I concur in the result only of the affirmance of this cause, but respectfully disagree with the language used and construction of Section 13-11-1 through Section 13-11-9, Code of Alabama 1975 (Alabama Death Penalty Act), and Section 15-15-24(a), Code of Alabama 1975.

There is no member of the Bar of Alabama or jurist in this State for whom Judge DeCarlo and I have greater love and respect than the author of the principal opinion in this cause, the Honorable Leigh Clark. Needless to say, a majority of our brothers have agreed with his views in the principal opinion, but the two of us view the statutes under consideration through a different set of “eyeglasses.” We respectfully disagree for the following reasons:

1.The holding of the majority in this cause overrules the opinion of this Court in Evans v. State (1978), Ala.Cr.App., 362 So.2d 1284, which was followed by this Court in Roosevelt Youngblood v. State (Oct. 31, 1978), 3 Div. 935, affirmed without opinion. Needless to say, however, it is not the overruling of these two cases per se that constitutes the basis of our disagreement, but rather the problems created by the majority’s opinion in this cause in so doing.

2. The effect of the majority’s opinion in this cause is to require that all persons charged with a capital offense, i. e., under the Alabama Death Penalty Act (See Section 13-11 — 1 through Section 13 — 11—9), shall hereinafter be required to undergo a trial by jury and the ensuing aggravation and mitigation hearing (See Section 13-11-3 through Section 13-11 — 7) and are therefore unable to enter an intelligent plea of guilty and have sentence imposed by the trial court without a jury being impaneled. This interpretation effectively precludes the imposition of “life imprisonment without parole” without such trial by jury and ensuing aggravation and mitigation hearing following trial. We view such an interpretation to be an unconstitutional infringement on Amendments Nos. Five and Six to the Constitution of the United States of America.

3. Should the majority’s view prevail, then Judge DeCarlo and I are of the opinion that the accused is being denied the effective assistance of counsel in violation of Amendment Fourteen and Amendment Five of the Constitution of the United States by virtue of nullifying the accused’s right to “plea bargain.” See Boykin v. Alabama (1970), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; and Chaffin v. Stynchcombe (1973), 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714.

4. Not only would the majority’s view have the “chilling effect” on the effective assistance of counsel and ensuing “plea bargaining,” but would necessarily require all persons charged under the Alabama Death Penalty Act to endure a trial by a jury, and the ensuing aggravation or mitigation hearing, in order to receive “life imprisonment without parole.” We are of the opinion that such an interpretation is in conflict with the views of the United States Supreme Court in Corbitt v. New Jersey (1978), - U.S. -, 99 S.Ct. 492, 58 L.Ed.2d 466.

5. Judge DeCarlo and I are of the opinion that “the several chapters, titles, and sections of the Code of Alabama are in pari materia, each having a field of operation and must be so construed.” Jenkins v. State (1944), 245 Ala. 159, 16 So.2d 314; Smith v. State (1931), 223 Ala. 346, 136 So. 270.

Based upon the foregoing principle, we note that Section 13-11-1 through Section 13-11 — 9 were brought forward by the Legislature of Alabama, as indeed was Section 15-15 — 24(a), Code of Alabama 1975, when all of the foregoing statutes were adopted by the Legislature of Alabama in 1977 and proclaimed effective on October 31,1977, by Governor George C. Wallace (See Volume 1, Code of Alabama 1975 at vi, introductory portion). Inasmuch as Section 15-15 — 24(a) (formerly Title 15, Section 277, Code of Alabama 1940, as amended 1969) was brought forward, it is our view that the express purpose of this statute was to allow the trial court to impose in a capital case a punishment of less than death by the acceptance of a formal plea of guilty at a point in time prior to trial without the intervention of a jury. We do not read the provisions of Section 13-11 — 1 as in effect “pre-empting the field” in this respect. To the contrary, we are of the opinion that following indictment and arraignment, an accused in a capital case may through “plea bargaining negotiations” through counsel, with the district attorney, and with the consent of the trial judge enter a guilty plea, and the court impose a punishment of “life imprisonment without parole,” without the intervention of a jury. Section 15-15— 24(a), Code of Alabama 1975; Evans v. State (1978), Ala.Cr.App., 362 So.2d 1284.

In our view, to hold otherwise, would have the unconstitutional effect of denying the accused the opportunity to negotiate through his attorney for a lesser punishment where he is charged under the Alabama Death Penalty Act. Cf. United States v. Jackson (1968), 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138.

6. We are further of the opinion that the majority’s view in this cause may well conflict with Jacobs v. State (1978), 361 So.2d 640, in that Jacobs determines that the trial judge is the final sentencing authority and not the trial jury. Id. at 644.

      . Ala.Code 1975, § 13-11-1, et seq.

      . This particular qualification in Act No. 1061, Acts 1969, will be hereafter especially considered in connection with particular language of the Death Penalty and Life Imprisonment Without Parole Act.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Patricia Eileen Wade CARROLL v. STATE.
    6 Div. 75.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Rehearing Denied Feb. 20, 1979.

      Randolph P. Reaves, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

Late in the night of October 3, 1974, the appellant shot and killed her two young children and in an apparent suicide attempt took a large quantity of prescription drugs from which she almost died. This appeal is from her conviction and life sentence in the death of two year old Monty J. Carroll, her youngest son.

I

At trial the State introduced testimony of four statements made by the appellant while she was in a hospital recovering from her attempted suicide. The appellant contends that the admission of these statements was error because the trial judge did not make a determination of voluntariness before their admission and because the appellant was incompetent to make a voluntary and admissible confession.

Soon after the appellant was discovered around midnight on October 3, 1974, she lapsed into a deep coma and appeared to be suffering from a “very classic drug overdose”. She was taken to a local hospital where her stomach was pumped. Within hours she was transferred to the University Hospital in Birmingham, Alabama, where she was placed on an artificial kidney machine. Within thirteen hours after her admission to the University Hospital, the appellant “began to be rousable”. On October 5th, she was able to breathe on her own and dialysis was discontinued. The appellant remained in the intensive care unit until she was “physically stable” and on October 8th she was transferred to the psychiatric ward. During the time spent in intensive care the appellant received no drug which would “alter her- mental state”. The appellant remained in the psychiatric ward for approximately one month.

At trial the defense presented expert testimony that the appellant had no recollection of what had happened from the early evening of the day of the murders until waking up in the hospital. A psychiatrist testified that only under the influence of sodium amytal, a powerful sedative, was the appellant able to recall any facts surrounding her drug overdose or the deaths of her children. Another psychiatrist testified that the appellant suffered a “relative kind of amnesia” and that in relative amnesia there could be “patches of memory”. This psychiatrist also testified that the appellant appeared not to know what had happened and was “groping for memory”.

A.

While the appellant was in intensive care, Diane Ballard, who characterized herself when asked as the appellant’s “best friend in Birmingham”, came to visit her. From the record objection to the first statement appears.

“Q. (Assistant District Attorney): What was the first thing either you or she said when you went in that room?
“MR. HARD (Defense Counsel): May we approach the bench, Your Honor? “THE COURT: Yes.
(Whereupon, an off the record discussion was then had at the bench.)” * $ $ * * *
“Q. Go ahead.
“MR. HARD: For the record, I would like to object on two grounds. Number one, Mr. Barber’s own evidence discloses that the Defendant was in the intensive care at the University Hospital. “I personally, tomorrow, Thursday or whenever we get into it, will proffer to the Court evidence that she was under medication at that very time and suggest to the Court that whatever she said at that time was not volitional, that she could not be held responsible for what was said on that particular occasion.
“And secondly, as the Court knows, these statements were not made under oath in court. They are extrajudicial statements, and they are hearsay. And I object to them on that ground.
“THE COURT: All right. Overruled.
“MR. HARD: We respectfully except, Your Honor.
“THE COURT: All right.”

After relating the general conversation had with the appellant, Mrs. Ballard testified:

“Well, she asked me then had I seen Max (the appellant’s former husband and the father of her two deceased children). And I told her yes, that I had. And she asked me how he was doing.”
******
“Uh huh. And I told her yes, that I had seen him, and that he was in real bad shape, that he was just real bad off, that I had seen him at the funeral home.
“And she said well, I hope it drives him crazy. That’s all she said then.”

There was no further objection or motion to exclude this testimony.

It is settled in Alabama that admissions relating directly to the facts or circumstances of the alleged crime and connecting the defendant therewith are incul-patory admissions in the nature of a confession and subject to the same rules as direct confessions. Reeves v. State, 260 Ala. 66, 73, 68 So.2d 14 (1953); Campbell v. State, 341 So.2d 735, 740 (Ala.Cr.App.), affirmed, 341 So.2d 742 (Ala.1976); Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975). Admissions as to purely collateral matters, which are not confessory of guilt in any respect, are not within the scope of this rule, and the predicate as for a confession need not be laid. Tillison v. State, 248 Ala. 199, 27 So.2d 43 (1946); Herring v. State, 242 Ala. 85, 5 So.2d 104 (1942); Twymon v. State, 358 So.2d 1072 (Ala.Cr.App.1978); Campbell v. State, 341 So.2d at 740; C. Gamble, McElroy’s Alabama Evidence § 200.02(4)(e) (3rd ed. 1977). The appellant’s statement that she hopes “it” drives her former husband crazy cannot be construed as a confession or an admission of guilt. It does not tend to incriminate or connect her with the murder of her child. Therefore the State was not required to prove that the admission was voluntary and the trial judge had no duty to determine its admissibility. The objection of defense counsel is not well taken.

B.

Several days later, either the first or second day after the appellant had been transferred to the psychiatric ward, the appellant called Mrs. Ballard on the telephone. Either that night or the next Mrs. Ballard went to see the appellant. Defense counsel again objected to the contents of any conversation between the two women.

“Q. Do you recall the subject matter of that conversation?
“MR. HARD: I would like for the record to state that I just think it’s inherently distastful to have the statement of a patient in the psychiatric ward admitted into a court of law as proper evidence. And I would like to object to it.
“THE COURT: Have you got any doctors coming from the psychiatric ward?
“MR. HARD: Yes, sir, I do.
“MR. BARBER: Your Honor, by nature of the course that any criminal trial takes, I didn’t arrange it. And I imagine it was arranged a long time before you or I were here.
“The State has the burden of meeting the proof in a case. For that reason the State puts on their evidence first. And whatever evidence that the Defense has that it feels like is in defense of the matter, just by our system must come second.
“MR. HARD: Your Honor, some matters are proper for the State to put on in rebuttal as opposed to being put on in the case in chief. And I submit to the Court that this is the very type of subject matter that we should not be going into in the State’s case in chief. “THE COURT: May I speak to the two lawyers.
(Whereupon, an off the record discussion was then had at the bench.)
“THE COURT: Proceed, Mr. Barber.”

Mrs. Ballard testified that she talked to the appellant for about one and one half hours. For the first hour it was “just mostly general small talk”. Then the appellant “wanted to talk about the children” and “got emotional”.

“Q. Do you recall what was said by either of you about the children?
“A. She was asking me about the funeral and how the children looked and what they were dressed in, and if they, you know, if they looked good. She wanted to know if everything was done right at the funeral.
“And then she got real upset. And she told me that she missed them. And then she said this is not the way things are supposed to be. She said I’m supposed to be dead with my children. I’m supposed to be with my children instead of up here. And the rest of it was just more or less— “I told her if she wanted to cry, you know, that she could cry to me. And it was just — the rest of it was more or less — She was just upset the rest of the night.”

Again there was no further objection or motion to exclude this testimony.

This second statement was certainly no admission by the appellant that she killed her children or in any way harmed them — only that she was supposed to have died with them. While there are certain facts which tend to indicate that the confession was voluntary, we need not make that determination. Here, as in Allred v. State, 55 Ala.App. 74, 313 So.2d 195, cert. denied, 294 Ala. 751, 313 So.2d 203, cert. denied, 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86 (1975), we cannot say that the evidence indisputably establishes the strongest probability of appellant’s insanity or incompetency .

Even assuming that this statement was an inculpatory admission requiring the laying of a predicate, we do not consider its admission error in view of the prior admission of the suicide letter written by the appellant and to which defense counsel specifically stated that he had “no objection”. That letter reads:

“Dear Mother & Daddy,
“I’m sorry to do this to you’all but I can’t take this life any more. I’m taking my boys with me. Please put one on my right and one on my left side. I love my boys and hope God forgives me and lets me be with them. I know in my heart that my boys will be with God. God please forgive me for I have sined.
I love you Mother & Daddy Eileen
“Please dress the boys in blue they look good in it. Please put me between them I love them and want them to be in heven Gods heven. Please put with Monty Jay his night night & blanket one that Mom made.
“Please put with Jeff his little tiger that he got on his first Christmas on my bed. “Read later “Mother & Daddy
“Please let Gail have my side board and something else two
“Please let Diane have something and also some clothes.
“Mother & Daddy let Jimmy & Camille have something if they want it.
“Renea will help you’all two.
Im Sorry I love youall Eileen”

Other incriminating statements made by the appellant were subsequently admitted without objection.

It is well settled that it is not error to allow facts to be shown over objection when they have already been admitted in evidence without objection. Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968); Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Hendley v. State, 200 Ala. 546, 76 So. 904 (1917); Clark v. State, 240 Ala. 65, 197 So. 23 (1940); Clarke v. State, 32 Ala.App. 622, 29 So.2d 151 (1947). The suicide letter was a virtual and literal admission by the appellant of the crime for which she was convicted. The appellant had discussed taking her life and someone else’s with Mrs. Ballard on “numerous occasions” prior to the October 3rd.

“Most of the time she would talk about taking pills and ending her life. And on one occasion she said this was a very bad world the way that things were nowdays, and that her children would probably be much better off out of it.”

There was no objection or motion to exclude this testimony.

Additionally it was defense counsel who fully explored what the appellant had stated under the influence of sodium amytal. While Mrs. Ballard testified, without objection, on direct examination by the State that she listened to a tape recording made of the appellant who was then under the influence of “sodium pentothal or something like that”, defense counsel, over the State’s objection, cross examined Mrs. Ballard on the contents of the tape recording.

“Q. Please, ma’am, tell us what you remember hearing on the tapes.
“A. I don’t recall how they begin or anything. The doctor would ask her questions. And he would ask her if there was someone else there with her, if she could see someone else with her. And she said yes, that she remembered going to the door and letting Max in.
“It seems like, to the best of my knowledge, that’s how it started.
“Q. All right.
“A. That Max had come to the house. And I believe there was a reference that he had hit her. And — ”
$ sf< % sfe * sfc
“Q. All right. He gets in the house and hits her, and what else does she say, please, ma’am?
“A. She said that she could remember the gun being on Monty J.’s dresser. And that she can remember being in Jeff’s room. And that she can remember being given pills, that she can remember somebody forcing her to take pills or— The tape was really unclear. I couldn’t understand a lot of it.
“Q. Would it be fair to say in summary and form that the tapes in substance related a narrative wherein Max administered the drugs to Eileen—
“A. I think so.
“Q. —and that he shot the children? “A. I think that is about it.
“Q. Was that in substance what you heard?
“A. Yes.

If illegal evidence is introduced over objection, the subsequent introduction of evidence of the same tenor, without objection thereto, renders harmless any error in overruling the objection. McElroy § 426.01(20). In view of all the evidence admitted without objection, notably the suicide letter, the testimony adduced by defense counsel and the equivocal and ambiguous nature of this second statement, its admission was harmless error. Alabama Rules of Appellate Procedure, Rule 45.

C.

While the appellant was still in the psychiatric ward, the appellant had another conversation with Mrs. Ballard. This constitutes the third admission objected to on appeal.

“Q. What was the discussion at this time that you are speaking of?
“A. She wanted to discuss the children at that time. And she had a photo album. And she looked through the album and talked about the children.
“And she at that time told me that she had had a dream or that she thought that she had had a dream, she couldn’t remember whether it was real or a dream. And she could remember seeing Jeff in a terrible situation. And she described it to me and told me that she didn’t know whether it was real or something that she just remembered, just dreamed since she had been in the psychiatric ward.
“Q. What series of events or happenings did she describe to you?
“A. She just said that she dreamed that she was walking through the house or that she would see herself walking through the house and that she could see herself going into Jeff’s room. And she described the image of a child laying on his bed, and that he was dead, and that there was a lot of blood. And she described a horrible look on his face.
“Q. Did she discuss that any further?
“A. No. She just told me that she couldn’t remember seeing Monty, that she could just remember seeing Jeff.
“Q. Did she at any other time, other that the time that you have already testified to, did she talk to you about what happened the night of October the 3rd?
“A. A little while later she told me that they had given her a test, and that they had made a tape recording under the influence of sodium pentothal or something like that. And I listened to the tape recording. And it seems that I listened to the tape recording two or three times.”

Defense counsel made no objection or motion to exclude any of this testimony.

D.

The fourth statement of the appellant, the admission of which is challenged on appeal, concerns an incriminating admission made to Ms. Robbie Ollifant, another friend of the appellant. Ms. Ollifant testified that the appellant telephoned her about one and one half to two weeks after the murders while the appellant was in the psychiatric ward. Defense counsel made no objection or motion to exclude this testimony.

Ms. Ollifant stated that the appellant “asked me how I was doing. And I told her fine. And she said have you heard what I have done. And I said yes. She said who told you. And I told her that Doris Lennon had called.
“And she wanted to know if it was in the newspapers or anything like that up there. And I told her yes, that it had been in the Saturday afternoon paper. “Q. Did y’all have any further conversation at that time?
“A. Yes. She went on to tell me, to describe to me the children in their coffin, what they had with them, how they were dressed. And she went on, and I asked her why, you know, what happened, and if she had had anything to drink — No. I asked her if she had taken anything, what she had taken.
“And she said that she did not take any drugs, that she had had only two drinks that night. And I asked her if she remembered anything about that night. And she said that she remembered going into Monty J.’s room.
“Q. Did she tell you anything else that she remembered about that particular night of October the 3rd, what transpired?
“A. Well, I don’t believe it was that night that she may have remembered this. But she said that she had a picture of Jeffery laying kind of on a side angle with his eyes open in his bed.
“Q. Did she tell you — All right. Now, this last statement that you have made, was this during this first telephone conversation?
“A. Yes.
“Q. Okay. Did you inquire or did she tell you any other specifics that she remembered about that night?
“A. She said that she just remembered going into Monty J.’s room and (pause) shooting him. And I asked her if — why she had unloaded and reloaded the gun. And she said she didn’t remember that. And she asked me where I had heard that. And I just told her that someone had told me that the gun had been unloaded and reloaded.
“Q. Did y’all — Did she discuss or mention the gun any further after that?
“A. She said that the gun had been found in the old hiding place.
“Q. Did she tell you where that was?
“A. No, sir. She said that she had a new hiding place for it, and that no one knew where the new hiding place was but herself. But that the gun was found in the old hiding place.”

During the same conversation, the appellant told Ms. Ollifant, who lived in Nashville, Tennessee, that she wanted her to come down and see her. Ms. Ollifant agreed to try and come that weekend.

During the first telephone call with Ms. Ollifant, the appellant “just went on into detail to tell me that she had been in the intensive care”; that she knew her children were dead; that “Max, her ex-husband, made her do it because his money meant more to him than his children”. The appellant also told Ms. Ollifant that

“she had left a note stating that she wanted the children to be buried one on each side, and why she had done it, and she could not go on living in this life any longer the way she was living.
“And she told me that when she was in Nashville. And that they believed that the note was a forgery because the handwriting was more legible than her handwriting.”

On Sunday, when Ms. Ollifant did not come to visit the appellant as she was supposed to, the appellant telephoned her a second time and asked why she didn’t come. She told Ms. Ollifant that her lawyer had been waiting to talk to her that day. The only thing the appellant said with reference to the killing was that “they had gotten a lawyer and he was working on it”.

As noted, there was no objection of any type made to these last two statements. No “continuing objection” was requested to the admission of any statement made by the appellant and there was no motion for a new trial. The law is clear in this state that an accused may waive the rule as to the prima facie inadmissibility and incompetency of a confession without a proper predicate by failing to interpose a timely objection. Peoples v. State, 256 Ala. 612, 56 So.2d 665 (1952); Shiflett v. State, 52 Ala.App. 476, 294 So.2d 444, cert. denied, 292 Ala. 749, 294 So.2d 448 (1973); Wilkerson v. State, 50 Ala.App. 150, 277 So.2d 423, cert. denied, 291 Ala. 802, 277 So.2d 427 (1973); Moore v. State, 44 Ala.App. 113, 203 So.2d 460, cert. denied, 218 Ala. 723, 203 So.2d 465 (1967); Lipscomb v. State, 32 Ala.App. 623, 29 So.2d 145 (1947); Ray v. State, 29 Ala.App. 382, 197 So. 70, cert. denied, 240 Ala. 73, 197 So. 73 (1940); Jones v. State, 23 Ala.App. 384, 125 So. 898 (1930).

While it is not always necessary to repeat the specific grounds for an objection each time a question is asked, if there has been a proper objection previously made to the same evidence and the trial court had been made fully aware of the ground of that objection, Anderson v. State, 354 So.2d 1156, 1160 (Ala.Cr.App.), cert. denied, 354 So.2d 1161 (Ala.1977), here there were four different admissions made to different people under different conditions. Under these circumstances defense counsel was not being required to do a useless thing, Nobles v. State, 30 Ala.App. 434, 7 So.2d 770, cert. denied, 242 Ala. 643, 7 So.2d 773 (1942), by objecting to each separate admission made by the appellant.

The entire defense was that the appellant was insane and under the influence of drugs at the time of the homicides. The jury could have considered the statements of the appellant as indications of her insanity as well as suggestions or admissions of her guilt. Clearly defense counsel did not intend to object to every admission made by the appellant as he specifically waived objection to the suicide note and introduced testimony of the contents of the amytal interviews. The State would have had a difficult task in proving the voluntariness admissibility of those interviews. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). For these reasons we find that objection was waived to the admission of these last two statements of the appellant.

E.

On the question of the voluntariness of a confession, the burden is not on the trial court to withdraw the jury ex mero motu, hear evidence on the question of the voluntariness of a confession outside the jury’s presence, and expressly rule. State v. Wilbanks, 289 Ala. 166, 169, 266 So.2d 619 (1969). By its rulings on the objections and the admission of the confession into evidence, the trial court had determined its voluntariness. Pittman v. State, 36 Ala.App. 179, 180, 54 So.2d 630, cert. denied, 256 Ala. 369, 54 So.2d 632 (1951); Cork v. State, 50 Ala.App. 670, 675, 282 So.2d 107 (1973). Here defense counsel made no request that a hearing be held outside of the jury’s presence to determine the voluntariness of the confessions and admissions of the appellant. Sanders v. State, 278 Ala. 453, 463, 179 So.2d 35 (1965). Quite the contrary, counsel stated that he would present evidence “tomorrow, Thursday, or whenever we get to it” that the first conversation the appellant had with Mrs. Ballard was not volitional because she was “under medication at that very time”. However the trial judge is under no duty to “cast about and determine evidential existence” of the facts alleged by defense counsel in his objection to the admission in evidence of the confession. Price v. State, 52 Ala.App. 21, 25, 288 So.2d 803 (1974). The defense was not precluded in any fashion or degree from adducing evidence that the appellant’s statements were involuntary. During the trial there was no motion to suppress any statement, inculpatory admission or confession made by the appellant. There was no motion for a new trial. In view of the facts that the appellant was in no wise precluded or hampered in adducing evidence on the question of voluntariness, specifically stated that evidence on this issue would be presented at a later time, did not request a hearing out of the presence of the jury and made no objection to the procedure followed by the trial court in considering the admissibility of the confession, we do not think that the trial court erred by not holding a voluntariness hearing outside the presence of the jury.

II

During the testimony of defense witness Dr. Lionel Corbett, the physician in charge of the psychiatric services to which the appellant had been admitted, defense counsel requested the witness to read an “interpretation paragraph” of an electroencephalogram performed on the appellant by another physician. The prosecution objected to the witness reading “the report of the man who reviewed the brain wave recording”, and the trial court sustained the objection. From the record it is apparent that Dr. Corbett was referring to some type of notes or record throughout his testimony. He stated that the “interpretation paragraph” was part of his “file”. This file was never specifically identified or introduced into evidence. Likewise, no medical records were offered or introduced into evidence.

The rule is that

“if a hospital record of a physician’s diagnosis of a patient in the hospital is shown to have been made in conformity with the Business Records Act, then such record is admissible even though the diagnosis is an opinion because, if the physician were a witness, testimony by him as to the diagnosis would be admissible as an expert opinion.” C. Gamble, McElroy’s Alabama Evidence § 254.01(4) (3rd ed. 1977).

Once a hospital record is shown to have been made in conformity with the Business Records Act, Rule 44, Alabama Rules of Civil Procedure, and the proper predicate is laid that the records were kept in the regular course of business, the diagnosis of the defendant by a doctor who does not testify at trial which is contained in the records, is competent and admissible evidence. Bailey v. Tennessee Coal, Iron and Railroad Company, 261 Ala. 526, 75 So.2d 117 (1954); Hall v. State, 248 Ala. 33, 26 So.2d 566 (1946); Ward v. State, 44 Ala.App. 229, 206 So.2d 897 (1966), cert. denied, 281 Ala. 650, 206 So.2d 922 (1967); McElroy, § 254.01(2) and (7). However expert witnesses, even physicians, cannot testify to the opinions of others in giving their opinions. McElroy, § 110.01(3). Such testimony is hearsay.

Since no predicate was laid for the admission of the notes or file under the Business Records Act the trial court did not err in refusing to permit the defense witness to testify to that portion of the record stating the opinion and conclusions of another.

Ill

During its case in chief the State introduced testimony concerning and a photograph of a second pistol found in the home of the appellant. This second pistol was, undisputedly, not the murder weapon and had no probative value on any question before the jury.

While the evidence concerning this second pistol was irrelevant and immaterial we fail to see how the admission of such evidence could have possibly injured or prejudiced the appellant. This second weapon was not used in any manner to identify or incriminate the appellant or to connect her with the crime charged. Under the facts and issues of this case the evidence of a second pistol was error without injury. Alabama Rules of Appellate Procedure, Rule 45.

IV

It was not error to permit the State to introduce evidence of the homicide of Jeffrey Wade Carroll despite the fact that the appellant was only on trial for killing her other child, Monty Carroll. Under the evidence these two killings were inseparable parts of a single transaction.

“Although the accused was not on trial for the killing of Ola Bee and Mattie Jean Posey, the three killings were parts of a single transaction, and were in fact inseparable. Each was of the res gestae of the other, and every fact and incident illustrative of one was competent also in illustration of the other. Keith v. State, 253 Ala. 670, 46 So.2d 705, and cases cited; Parsons v. State, 251 Ala. 467, 38 So.2d 209; Cantey v. State, 244 Ala. 108, 11 So.2d 844. Hence, the trial court did not err in permitting the State to prove the killing of Ola Bee and Mattie Jean Posey. Likewise, it was not error to permit the State to show the injuries to Lucy Posey and her physical condition at the time she was found. The attack on her was within the res gestae of the crime against her little brother and was admissible as shedding light on the acts, motive and intent of the assailant. Snead v. State, 251 Ala. 624, 38 So.2d 576, and cases cited.” Smarr v. State, 260 Ala. 30, 34, 68 So.2d 6, 9 (1953).

Where the defendant kills two persons as a part of one transaction, evidence of both killings is admissible on the trial of the killing of one of them. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955); Grissett v. State, 241 Ala. 343, 2 So.2d 399 (1941); Granberry v. State, 182 Ala. 4, 62 So. 52 (1913); Lucy v. State, 340 So.2d 840 (Ala.Cr.App.1976).

It was also not error to permit the State to prove prior acts of hostility by the appellant toward both victims since the two murders were inseparable and such evidence was admissible to show motive, malice and intent. The prosecution may prove former acts of hostility by the accused toward the victim for the purpose of showing motive and malice. Thigpen v. State, 50 Ala.App. 176, 179, 277 So.2d 922 (1973); Gregg v. State, 106 Ala. 44, 17 So. 321 (1895). While it is not permissible to show a difficulty between the accused and a third person not connected with the victim or the offense, Caylor v. State, 353 So.2d 8, 10 (Ala.Cr.App.), cert. quashed, 353 So.2d 11 (Ala.1977), the third person in this case was a victim of a double murder occurring within the same time span and under virtually identical circumstances. “(E)very fact and incident illustrative of one was competent also in illustration of the other.” Smarr, 260 Ala. at 34, 68 So.2d at 9.

Evidence of recent abuse to the deceased child by the defendant is admissible to show intent, motive or scienter. Layne v. State, 54 Ala.App. 529, 534, 310 So.2d 249 (1975), and cases cited; Cameron v. State, 24 Ala.App. 438, 136 So. 418 (1931).

“While the details or merits of the former difficulty, or difficulties, cannot be brought out, yet sufficient of the details may be shown as may illustrate the gravity of the former difficulty. Spain v. State, 37 Ala.App. 311, 68 So.2d 53.
“Particularly is this true as to former difficulties between a minor child and parent, since the law authorizes a parent to administer such corporal punishment as the misconduct of the child seems to warrant.”
Connell v. State, 39 Ala.App. 531, 538, 105 So.2d 695, cert. denied, 268 Ala. 692, 105 So.2d 700 (1958).

Furthermore, it was defense counsel who first interjected and explored the issue of whether the appellant was a “solicitous and tender-hearted mother”, whether the deceased was a “planned child”, and brought out specific instances when the appellant cared for her children. Under these circumstances and applying the law as above stated, we hold the admission of testimony concerning the hostility of the appellant towards her children was not error.

V

The appellant asserts that the trial judge erred when it refused to allow an alleged expert witness to testify to the condition of the appellant’s mind at or about the time of the homicide.

Mrs. Thelma Mueller was a psychiatric social worker at the University Hospital. She was present when Dr. Corbett initially interviewed the appellant, at the two interviews when the appellant was given sodium amytal, and “had a great deal of informal contact, you know, on the ward” with the appellant. Mrs. Mueller also obtained a “background history” from the appellant’s parents.

Specifically the appellant contends that the trial court erred when it sustained the prosecution’s objections to the following questions asked by defense counsel of this witness.

“Q. All right. Can you relate to us the impressions and judgments you formed based upon your interview with the parents about Eileen?”
* * * * * M
“Q. Well, can you tell us something about Eileen Carroll based upon your interviews with her and your observations of her? Can you describe her for us, please, ma’am?”

Insanity, or mental competency, may not be proved or disproved by hearsay. Kimbrell v. State, 130 Ala. 40, 30 So. 454 (1901); Howard v. State, 347 So.2d 574, 575 (Ala.Cr.App.1977), and cases cited. A witness cannot testify directly as to the mental operation of another. Fincher v. State, 211 Ala. 388, 100 So. 657 (1924); Fillman v. State, 41 Ala.App. 175, 127 So.2d 628, cert. denied, 271 Ala. 698, 127 So.2d 632 (1961). A defendant attempting to show insanity by family history has the duty of showing that the evidence was within the exception to the hearsay rule. Jarvis v. State, 220 Ala. 501, 126 So. 127 (1930).

A non expert witness cannot testify to the mental condition of a person until it has been shown that he has an intimate acquaintance with such person and that his association with him is of such a duration as to justify the forming of an opinion. Langston v. State, 16 Ala.App. 123, 75 So. 715 (1917).

“A lay witness may give his opinion that another was insane or afflicted with an analogous mental defectiveness if, but only if, the witness has first testified: (1) to facts showing that he had an adequate opportunity to observe such other’s conduct in general and (2) to his personal observation of specific irrational conduct of such other.
“It should be emphasized that a lay witness may not testify that it is his opinion that another was insane, no matter how extensive and adequate the witness’ opportunity to observe such other’s conduct, unless the witness has first testified to his personal knowledge of specific irrational conduct of such other.”

McEiroy, § 128.02.

Whether a witness has acquired a knowledge beyond that of an ordinary witness so as to qualify him as an expert on a particular subject is within the discretion of the trial court whose ruling thereon will not be disturbed on appeal unless a clear abuse of discretion is shown. Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954). The competency of a witness, whether expert or not, to give an opinion as to the sanity or insanity of a person rests largely in the discretion of the court. Woods v. State, 186 Ala. 29, 65 So. 342 (1914); Parrish v. State, 139 Ala. 16, 36 So. 1012 (1904). “The inference of a witness as to the mental state of another is rejected where it is conceived rather than perceived.” Hembree v. State, 20 Ala.App. 181, 184, 101 So. 221 (1924). The mere fact that a lay witness has handled a great many insane persons, had observed and studied them and had read medical works on the subject, does not automatically qualify him to testify as an expert on insanity, the general rule being that only persons licensed by law to practice medicine as a profession can testify as experts on that question. Odom v. State, 174 Ala. 4, 56 So. 913 (1911).

The record does not show that this witness was qualified to state her opinion on the mental condition of the appellant at the time of the crime. Since there is no showing that the trial judge abused his discretion in determining the competency of a witness we will not predicate reversible error on the rulings of the trial judge on the above questions.

We have carefully searched the record for error prejudicial to the appellant. In the absence of such error we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.

      . The evidence is without conflict that while the appellant was in intensive care she received no drug which would “alter her mental state”.

      . The statement was made in a conversation to a friend after a general discussion in which the appellant evidenced some degree of awareness of her situation and the death of her children. The statement itself contains thoughts similar to and in confirmation of some of the thoughts expressed in the suicide note. There is no evidence that the appellant was under the influence of any medication when the statement was made.

      . While a person so mentally incapacitated as to be incompetent as a witness will generally be considered to be incompetent to make an admissible confession, Redwine v. State, 258 Ala. 196, 61 So.2d 724 (1952); McElroy § 200.-14(1); H. Weihofen Mental Disorders As A Criminal Defense, p. 455 (1954); 23 C.J.S. Criminal Law § 828 (1961), the burden of showing such incapacity rests upon the defendant. Kelso v. State, 40 Ala.App. 627, 628, 119 So.2d 916 (1960).


author: PER CURIAM.

text:
    In re Patricia Eileen Wade CARROLL v. STATE. Ex parte Patricia Eileen Carroll.
    78-319.
    Supreme Court of Alabama.
    April 27, 1979.
    Randolph P. Reaves, Montgomery, for petitioner.
    No brief for the State, respondent.
   PER CURIAM.

By denying this petition we do not wish to be understood as agreeing with the rationale advanced by the Court of Criminal Appeals in its opinion. See: McElroy, Law of Evidence in Alabama, Vol. 2, § 200.13(5) (2d Ed.1962).

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


author: OVERTON, Justice.

text:
    STATE of Florida, Appellant, v. Carl John DICKINSON, Appellee.
    No. 54095.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Rehearing Denied June 4, 1979.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellant.
    Gregory B. Hoppenstand, Coral Gables, for appellee.
   OVERTON, Justice.

The appellee, Carl John Dickinson, was charged by information with dealing in stolen property in violation of Section 812.019, Florida Statutes (1977). Dickinson was discharged by the trial court, which found Sections 812.012 to 812.028, Florida Statutes (1977), facially invalid under the Constitutions of the United States and the State of Florida because they fail to provide adequate notice of the conduct prohibited. We have jurisdiction to review this direct appeal under Article V, Section 3(bXl), Florida Constitution.

We extend our reasoning in State v. Allen, 362 So.2d 10 (Fla.1978); State v. Lewis, 364 So.2d 1223 (Fla., 1978); and State v. Belgrave, 364 So.2d 1225 (Fla., 1978), to this case and hold that Sections 812.012 to 812.028, Florida Statutes (1977), are constitutionally sound because reasonable persons have adequate notice of the types of conduct proscribed by these statutes.

The trial court also invalidated Section 812.028 on another basis, finding that it “gives the government an opportunity to create crime rather than prevent it” and eliminates the defense of entrapment. We disagree.

Section 812.028(4), Florida Statutes (1977), provides it shall not constitute a defense to a prosecution that:

(4) A law enforcement officer solicited a person predisposed to engage in conduct in violation of any provision of ss. 812.-012-812.037 in order to gain evidence against that person, provided such solicitation would not induce an ordinary law-abiding person to violate any provision of ss. 812.012-812.037.

This statute only codifies the defense of entrapment as it now exists in the State of Florida. See, e. g., Lashley v. State, 67 So.2d 648, 649 (Fla.1953); Fla.Std. Jury Instr. (Crim.) 2.11(e). There is clearly no constitutional prohibition against a law enforcement officer providing the opportunity for a person who has the willingness and readiness to break the law. As the United States Supreme Court stated in United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 164A-45, 36 L.d.2d 366, 375-76 (1973):

Sorrells and Sherman both recognize “that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution . . ..” Nor will the mere fact of deceit defeat a prosecution . for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play (citations omitted).

See Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820-21, 2 L.Ed.2d 848, 851 (1958); Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77 L.Ed. 413, 416 (1932). The essential element of the defense of entrapment is the absence of a predisposition of the defendant to commit the offense. The Russell court opined:

[T]he entrapment defense prohibits law enforcement officers from instigating a criminal act by persons “otherwise innocent in order to lure them to its commission and to punish them.” 287 U.S., at 448, 53 S.Ct. 210. Thus, the thrust of the entrapment defense was held to focus on the intent or predisposition of the defendant to commit the crime. “[I]f the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue.” Id., 411 U.S. at 451, 93 S.Ct. at 1641.

United States v. Russell, 411 U.S. at 428-29, 93 S.Ct. at 1641, 36 L.Ed.2d at 371.

See Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). We reject the inference raised by the trial court’s holding that a high degree of law enforcement participation constitutes a defense to a criminal charge. That issue was squarely confronted in Russell and rejected; we agree with the United States Supreme Court’s conclusion. In the instant case, Section 812.028(4), Florida Statutes (1977), preserves the line between the predisposed criminal and the unwary innocent and withstands this constitutional challenge.

The order below, dismissing the information against Dickinson because Sections 812.012 to 812.028, Florida Statutes (1977) are unconstitutional, is reversed; this cause is remanded to the trial court for proceedings consistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    ESTATE of W. T. GRANT COMPANY (Bankrupt), Appellant, v. Gerald A. LEWIS, etc., et al., Appellees.
    No. 54431.
    Supreme Court of Florida.
    March 29, 1979.
    Rehearing Denied May 30, 1979.
    Robert M. Ervin, Joseph C. Jacobs, James R. McCachren, Jr. and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Eugene J. Celia, General Counsel, and Harold F. X. Purnell, Asst. Atty. Gen., Tallahassee, for appellees.
   PER CURIAM.

The decision of the District Court of Appeal, First District, in Estate of W. T. Grant Co. v. Lewis, 358 So.2d 76 (Fla. 1st DCA 1978), affirming the decisions of the state comptroller and the Department of Revenue denying Grant’s request for a sales tax refund and upholding the constitutionality of sections 212.17 and 215.26, Florida Statutes (1975), is before us for review on direct appeal. We agree with the logical and well reasoned opinion of the district court and, accordingly, affirm.

It is so ordered.

ENGLAND, C. J., and BOYD, OYER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., dissents.