text:
    Willie Fred ALEXANDER v. STATE.
    6 Div. 138.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Rehearing Denied Aug. 24, 1976.

      E. Calhoun Wilson, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the first degree of Olmstead Copeland, Jr., by shooting him with a pistol.

Although no contention is made on appeal that the evidence was not sufficient upon which to base the finding of the jury, we will summarize enough of it to indicate that the verdict is amply supported by the evidence.

In the early morning of December 14, 1974, the lifeless body of Mr. Copeland, a fireman for the city of Tuscaloosa, was found in the median of 1-59, between Moundville and Greensboro overpasses, south of all Tuscaloosa entrances and exists. Mr. Copeland’s parked truck was three or four hundred yards from his body. Officers were summoned to the scene; search, survey and photographs were made of the area; an intensive and successful investigation was commenced immediately. There was mute evidence, buttressed by many circumstances, that Mr. Copeland had been robbed and shot to death with a pistol. Although his death was established as attributable solely to a 38 caliber bullet in the head, a twelve gauge loaded shotgun shell was found near the body of Mr. Copeland. The shell bore an indentation on its primer indicating an unsuccessful effort to fire it from a shotgun. Between two and three weeks thereafter, a single barrel twelve gauge shotgun was found under appellant’s bed at his home. There was expert evidence that the marking on the shell found at the scene of the crime had been made by the firing pin of the shotgun found under appellant’s bed.

There was testimony by passing motorists to the effect that shortly before Mr. Copeland was killed, his truck with a winch on it was being used by him to extricate an automobile from the low ground of the median in the area where the body of Mr. Copeland and his truck were found. There were descriptive markings of the tires of the automobile in the median.

During December 14, while Tuscaloosa authorities were investigating the homicide of Mr. Copeland, Jefferson County and Birmingham authorities were investigating the suspected homicide of Mr. John Harbin, who was last seen by his wife when he left in his automobile on December 13. Mr. Harbin’s automobile was located in Birmingham on December 16. The automobile had been abandoned. Mr. Harbin’s body in the meantime had been found. The rear bumper of Mr. Harbin’s automobile had been bent as if by a hook from the chain of a winch. There were fresh markings where the mud had apparently been removed by the hook. There was other evidence, such as similarity of the tire markings in the median to the tires on Mr. Harbin’s automobile, sufficient to warrant the conclusion that probably the automobile of Mr. Harbin was the automobile that was extricated from the median by Mr. Copeland shortly before his death. In the automobile was a hat referred to as a “big apple cap,” a velour texture flop hat with a little ball on the top of it, which was identified as a cap or hat that had been previously worn by appellant.

Appellant was arrested on January 3, 1975. After a comprehensive statement of his constitutional rights was given to him, he voluntarily and understandingly made a statement to officers denying his presence in Tuscaloosa the night Mr. Copeland was killed and any and all connection with Mr. Copeland’s death. He made positive detailed statements amounting to an alibi. He was interviewed again on January 3 and again on January 4. About noon January 4, after he had been again advised fully as to his constitutional rights, including the right to an attorney, and he had expressly waived such rights, he made a lengthy written statement admitting that he was present when Mr. Copeland was killed. He narrated in detail that he and James Turk, and another man, had gone from Birmingham to Tuscaloosa in an automobile; that they passed the last Tuscaloosa exit before realizing it and made an effort to cross over the median to the northbound traffic lane, but in doing so the automobile bogged down. Mr. Copeland arrived going south in a truck with a winch; he extricated the automobile from the median. There was a short discussion between Copeland and Turk about payment for the service rendered. Defendant said that Turk shot Copeland with a pistol, a 38 pistol. He further said that the third man with him and Turk on the trip from Birmingham to Tuscaloosa was a man he called “Bobo” but that he had not seen him since. He claimed that he verbally protested the action of Turk but seemed to explain or excuse further action on his part by fear of injury or death at the hands of Turk.

There were many other circumstances revealed by the evidence tending to connect the defendant with the crime, which, need no recitation here for the purpose of the conclusions herein reached. No contention is made, and none can be made with reason, that the evidence was not sufficient to support the verdict of the jury. The jury was fully justified in rejecting defendant’s claim of innocence of felonious participation in the murder and robbery. In testifying on the trial, he stated he attempted to run away from the scene after Mr. Copeland was shot but he heard someone say, “Nigger, where you going?”, that he then “stopped because I knowed that they had a gun.” He said that Bobo had a sawed-off shotgun. Such was the shotgun that was found under appellant’s bed. He admitted that he knew Mr. Copeland was robbed, that Turk had gone through Mr. Copeland’s pockets. He said they attempted to take Mr. Copeland’s truck and move it north, but they didn’t go far because they couldn’t get the yellow light turned off the truck. He said the other two obtained a large number of articles from the truck and put them in the car, including a shotgun in a case. They soon ran out of gas, near a motel. Turk went to a filling station and got some gas and they then proceeded toward Birmingham, but'they gave out of gas again below Bessemer. After obtaining some gas they moved on to Bessemer where they were stopped by two policemen, who interrogated them but told them to go ahead. They drove on to Birmingham and Turk let appellant off at appellant’s home.

In attempting to explain the presence of the sawed-off shotgun under his bed, appellant said that he had been handed the gun by Turk the summer before and appellant had kept it for Turk, but that Turk thereafter came and got it, but returned it to appellant after the night of the killing of Mr. Copeland, appellant stating that this was on “December 16, 15th, somewhere in there.”

Appellant’s sole insistence on a reversal is grounded on the action of the trial court in overruling defendant’s motion to suppress evidence obtained upon a search of defendant’s residence on January 3, 1975, particularly the shotgun found under his bed. The search was by warrant issued the same day on the lengthy and detailed affidavit of Sergeant H. H. Brooks of the Jefferson County Sheriff’s Department. The particular shotgun was introduced in evidence over defendant’s objection. The affidavit for the search warrant showed that affiant with others had made almost continuous investigation of the death of Mr. Copeland and the death of Mr. Harbin since December 13, 1974. The affiant had talked with Tuscaloosa authorities and with Jefferson County and Birmingham authorities. William James Turk had been arrested on January 2, 1975, and an S & W pistol, the property of Mr. Copeland, was in Turk’s possession. A search warrant was obtained for Turk’s residence and among numerous items there found was a clip for an S & W pistol. A shotgun belonging to Copeland was not found. A billfold belonging to Copeland was not there. In the affidavit of Sergeant Brooks for a search warrant, he stated that there was probable cause for believing and that he did believe that the shotgun and billfold of Copeland were at the residence of defendant; he also stated that he had probable cause for believing and believed that some items belonging to Mr. Harbin were at the residence of defendant. Before obtaining the search warrant for the residence of defendant, Sergeant Brooks talked with three personal acquaintances of Turk and with the employer of both Turk and defendant. Two of the acquaintances told Sergeant Brooks that they had seen Turk and a man by the name of Willie, who one said was called “Big Willie,” together on December 13, 1974. One said that Turk and Willie carried her to work at approximately 2:30 P.M. that day and that Turk told her the next morning that “he and Willie had gone to Tuscaloosa to see a girl and that they ran off the road and a man pulled them out and that he shot and killed the man and stole his pistol.” and that Turk told her at the time that he had killed two white men that night. Learning the name of the employer of Turk and “Big Willie,” Sergeant Brooks called the employer and was informed by the employer that “Willie’s name was Willie Alexander,” who lived at the address of the residence for which the search warrant was obtained.

The search of the residence did not reveal the items specifically listed in the affidavit relative to the homicide of Mr. Copeland, but the shotgun found under defendant’s bed was seized.

In arguing that the court was in error in overruling defendant’s motion to suppress the evidence presented as to what was found upon search of defendant’s room in the house where he lived and in overruling defendant’s objection to the admission in evidence of the shotgun found under his bed, a gun which the evidence on the trial showed ejected an unspent shell at the scene of the crime, appellant contends that there was a violation of his right to be secure in his house against an unreasonable search and seizure; that the search warrant was invalid in that there was no probable cause for searching the particular premises for the specific articles described therein.

Appellant relies largely upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, in which it was stated:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 [78 A.L.R.2d 233], the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825 [11 L.Ed.2d 887], was ‘credible’ or his information ‘reliable.’ Otherwise, ‘the inferences from the facts which lead to the complaint’ will be drawn not ‘by a neutral and detached magistrate,’ as the Constitution requires, but instead, by a police officer ‘engaged in the often competitive enterprise of ferreting out crime,’ Giordenello v. United States, supra, 357 U.S. [480] at 486, 78 S.Ct. [1245] at 1250 [2 L.Ed.2d [1503] at 1509]; Johnson v. United States, supra, 333 U.S. [10] at 14, 68 S.Ct. [367] at 369 [92 L.Ed. [436] at 440], or, as in this case, by an unidentified informant.”

Appellant complains that the affidavit upon which the search warrant was issued did not contain a statement by the affiant that the persons from whom he obtained the information were credible or that the information obtained from them was reliable and that therefore the affidavit did not meet the test of Aguilar. Although the majority opinion in Aguilar, adopting the language employed in the affidavit, uses the word “informant” instead of the word “informer,” the dissenting opinion uses both words without distinction, and most opinions thereafter in which Aguilar is relied upon use the two words interchangeably, it should be noted, we think, that in most instances the information considered came from an “informer” rather than an “informant,” as those words are distinguished by Webster’s New International Dictionary (2d ed.) under “informant” as follows:

“An informant is one who gives information of whatever sort; an informer is one who informs against another by way of accusation or complaint. Informer is often, informant never, a term of opprobrium.”

Under “informer” the same authority states:

“One who informs against another; specif., Law, one who informs a magistrate of a violation of law; one who lays an information; esp., one (often called a common informer) who makes a practice of informing against others for violations of penal laws, particularly when the informer may receive as a reward a share of the money penalty imposed.”

Whether the failure to distinguish between an “Informant” and an “Informer” accounts for some of the confusion and the “sound and fury” decried in United States v. Bell, 457 F.2d 1231 (5th Cir. 1972), the opinion in such case should have removed a great deal of the confusion that previously existed relative to the application of the Aguilar and Spinelli requirements. In Bell it was held that the requirement of a showing of credibility of an informant (informer) is not applicable to information obtained from a victim or from an eyewitness. The reason should have been obvious and is expressed in Bell as follows:

“ . . . We have discovered no case that extends this requirement to the identified bystander or victim-eyewitness to a crime, and we now hold that no such requirement need be met. The rationale behind requiring a showing of credibility and reliability is to prevent searches based upon an unknown informant’s tip that may not reflect anything more than idle rumor or irresponsible conjecture. Thus, without the establishment of the probability of reliability, a ‘neutral and detached magistrate’ could not adequately assess the probative value of the tip in exercising his judgment as to the existence of probable cause. Many informants are intimately involved with the persons informed upon and with the illegal conduct at hand, and this circumstance could also affect their credibility. None of these considerations is present in the eyewitness situation such as was present here. Such observers are seldom involved with the miscreants or the crime. Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it. A ‘neutral and detached magistrate’ could adequately assess the probative value of an eyewitness’s information because, if it is reasonable and accepted as true, the magistrate must believe that it is based upon firsthand knowledge. Thus we conclude that Aguilar and Spinelli requirements are limited to the informant situation only.”

We need go no further than the sound principle established in Bell to hold that the position of appellant is not tenable as based upon the contention that the affidavit for the search warrant did not show that the people from whom the affiant obtained his information were credible informants. Not one among the many identified persons giving the information could be classified as an informer in the sense that Bell holds was meant by Aguilar and Spi-nelli. The affidavit was based on information obtained by the affiant, as shown by the affidavit, over a period of nearly three weeks, from the wife of one of the victims of a homicide and robbery, several law enforcement officers of Tuscaloosa County- and Jefferson County, a ballistics expert from the State Department of Toxicology, persons who had talked with Turk and who identified defendant as his companion on the night Mr. Copeland was killed, defendant’s employer, and others, and was reinforced by the viewing of the affiant himself of several objects that formed links in the chain connecting defendant with the murder and robbery of Mr. Copeland. From all of this, the affiant concluded, and he had just ground to conclude, that he believed and that he had probable cause for believing that the items listed in the warrant were in the residence of defendant. As the residence of Turk had been searched and the particular items listed in the affidavit for the warrant for the search of defendant’s residence were not found in Turk’s residence, where was a more likely place for them to be than in the room occupied by defendant?

To uphold our conclusion, we are not required to go as far as United States v. Darensbourg, 520 F.2d 985 (5th Cir. 1975), in which a basis for the dissent of Judge Godbold was that the informant, he thought, a fifteen-year-old youth, had such a connection with the events involved that “there was risk of his tip’s having been given to exculpate himself or to curry police favor useful in the event he became a suspect.” No such derogation can be made of any of the informants in this case.

Although the shotgun found under defendant’s bed was not the shotgun described in the affidavit and search warrant, that is, a shotgun believed to have been owned by and stolen from Mr. Copeland, its seizure was unquestionably legal. It was an illegal sawed-off shotgun, under the legal limit both in the distance between the tip of the barrel and the other end of the stock and in the length of the barrel itself. In Sheppard v. State, 49 Ala.App. 674, 275 So.2d 353, 356, it is stated:

“ . . .If during a lawful search under a warrant the police, searching in the manner authorized, find evidence of another offense not related to the crime for which the warrant was issued, it may nevertheless be lawfully seized. Lucy v. State [46 Ala.App. 484, 243 So.2d 756].”

In addition, and more, importantly, the gun seized and admitted in evidence over the objection of defendant was one of the most persuasive links in the chain of circumstances connecting defendant with the crime charged. According to some of the evidence, it was the gun used and sought to be shot by a companion of Turk in an effort to aid Turk in killing and robbing Mr. Copeland. Dispositive of appellant’s contention that the fact that it was not listed in the warrant precluded its admissibility as evidence is the following:

“Although the weapons seized were not described in the search warrant, such evidence having a nexus with the crime under investigation may be seized at the same time as the described evidence. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); United States v. Burks, 508 F.2d 672 (5th Cir. 1975); United States v. Kane, 450 F.2d 77 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 954, 30 L.Ed.2d 810 (1972); Bryant v. United States, 252 F.2d 746 (5th Cir. 1958).” United States v. McCoy, 515 F.2d 962 (5th Cir. 1975)

The court was not in error in overruling defendant’s motion to suppress the evidence or in admitting the gun in evidence over objection of defendant.

Our search of the record fails to reveal any error prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

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

CATES, P. J., not sitting.

      . The quotations from Webster’s Second Edition are substantially the same as in the First Edition. It is to be noted that in the current (Third) edition the detailed distinction is not observed. This suggests the thought that perhaps the reluctance to defer disparagingly to one from whom information is obtained has contributed to a synonymity of the words. Black’s Law Dictionary (4th ed.) defines “Informer” and “Common Informer” with resemblance to the quotations from Webster. It does not recognize “Informant.”

      . Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.


source: Caselaw Access Project

author: TYSON, Judge. TYSON, Judge.

license: Public Domain

text:
    Michael A. MAYOLA v. STATE.
    6 Div. 198.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.
    William W. Rogers, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   TYSON, Judge.

This is an appeal from the denial of the petition of error coram nobis wherein the appellant sought to set aside his conviction on a charge of kidnapping wherein he entered a plea of guilty on January 25, 1963, without counsel and without waiving counsel.

The then District Attorney testified that he had no recollection as to whether or not counsel was offered the appellant or that one would be appointed for him. The then Circuit Judge had a recollection of the appellant appearing before him but could not remember whether or not the appellant was offered counsel.

The Circuit Clerk testified that according to his records no counsel was shown of. record for the appellant at the time he entered his guilty plea in this case.

In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, we find the following:

“. . . Gideon v. Wainwright [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799] established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective applications. . . . ”

Moreover, in this cause there was no showing that the appellant had counsel at the time of his arraignment or of his appearance for trial. Tucker v. State, 42 Ala.App. 174, 157 So.2d 229, cert. denied, 275 Ala. 700, 157 So.2d 229, fully establishes the requirement of counsel at arraignment in all felony cases citing Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Beyond question this right is retrospective. Barnes v. State, 42 Ala.App. 504, 169 So.2d 313, cert. denied, 277 Ala. 695, 169 So.2d 313. Burgett v. Texas, supra.

Likewise, coram nobis is the appropriate State remedy to raise the alleged denial or lack of counsel at arraignment and at trial. Brown v. State, 42 Ala.App. 690, 170 So.2d 504, cert. denied with opinion, 277 Ala. 353, 170 So.2d 504. See also Pate v. Holman, 5 Cir., 341 F.2d 764; Williams v. Alabama, 5 Cir., 341 F.2d 777, and cases therein cited.

It is equally well settled that the lack of counsel at the time of taking a plea of guilty may also be raised by appropriate petition for writ of error coram nobis in Alabama. Varner v. State, 43 Ala.App. 48, 179 So.2d 177; Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Davis v. Holman, 5 Cir., 354 F.2d 773, and Pate v. Holman, supra.

The seeming ground for the denial of appellant’s petition was his financial status at the time of entering his plea of guilty. The State offered no testimony on this question. However, the appellant’s testimony established that he had sold his business, house and automobile in 1962 to finance his defense in a proceeding in Blount County, and had been subsequently incarcerated at Kilby Prison, prior to being transferred to the courthouse at Bessemer on the morning of January 25, 1963, for arraignment and trial on the kidnapping charge. Clearly the appellant was indigent. Pate v. Holman, 5 Cir., 341 F.2d 764 and authorities therein cited.

The test of Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, must be here applied.

From Carnley, supra:

“Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

There being no evidence of an offer of counsel, or of waiver of counsel, either at arraignment or at trial, this cause is due to be and the same is hereby

REVERSED AND REMANDED.

CATES, P. J., and HARRIS, J., concur.

DeCARLO and BOOKOUT, JJ., dissent.

ON REHEARING

TYSON, Judge.

In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, we find the following statement:

“. . . It has been pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and that we ‘do not presume acquiescence in the loss of fundamental rights.’ A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”

As noted on original deliverance, there was no explanation of the appellant’s right to counsel, affirmatively reflected, nor of an offer of counsel, affirmatively reflected, hence we cannot consider from this record that the accused intentionally relinquished a known right. Authorities cited on original deliverance.

OPINION EXTENDED; APPLICATION OVERRULED.

CATES, P. J., and HARRIS, J., concur.

DeCARLO and BOOKOUT, JJ., dissent.


author: JONES, Justice.

text:
    In re Michael A. MAYOLA, alias v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1899.
    Supreme Court of Alabama.
    Aug. 27, 1976.
    William J. Baxley, Atty. Gen. and Jack Curtis, Asst. Atty. Gen., for the State.
    None for respondent.
   JONES, Justice.

Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Mayola v. State, Ala.Cr.App., 337 So.2d 105.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Gregory Glenn MOSBY v. STATE.
    3 Div. 407.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Harry H. Perdue, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Merrill Curtis, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

On motion of the Attorney General to remand.

Appellant was convicted of robbery and sentenced to a term of ten years imprisonment. The record discloses that the appellant was eighteen years of age at the time, of his trial. The record fails to affirmatively show that the appellant was ever apprised of the provisions of the Youthful Offender Act, Act No. 335, Acts of Alabama 1971, 3rd Special Session, approved February 10, 1972 (Title 15, § 266(1) et seq., Code of Alabama, Recompiled 1958).

The Attorney General has filed a motion with this Court to remand the cause to circuit court for a hearing to determine whether the appellant should be afforded treatment as a youthful offender pursuant to the above Act.

The Attorney General’s motion to remand is hereby granted, and the cause remanded to the circuit court for further proceedings in conformity with Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975). Upon final determination of such issue by the circuit court, a full return shall be made to this Court showing by proper minute entry the decision of that court, including a record of witnesses’ testimony, if any be taken.

REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    Gregory Glenn MOSBY v. STATE.
    3 Div. 407.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
   After return to remand, 58 Ala.Cr.App., 337 So.2d 107.

AFFIRMED, without opinion.


author: HARRIS, Judge.

text:
    Charles LEWIS v. STATE.
    6 Div. 162.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Randolph B. Moore, III, Montgomery, for appellant.

      William J. Baxley, Atty. Gen. and Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State, appellee.
   HARRIS, Judge.

Appellant was put to trial on a three-count indictment charging (1) burglary in the second degree, (2) grand larceny, and (3) buying, receiving, concealing or aiding in concealing stolen property. At arraignment attended by counsel appellant pleaded not guilty. The jury found appellant guilty of burglary in the second degree, and the Court sentenced him to imprisonment in the penitentiary for 10 years. He gave notice of appeal and requested a free transcript. The Court found him to be indigent and ordered a free transcript for him. Trial counsel was appointed to represent him on appeal, but failed to file a brief. This Court appointed counsel to represent him on this appeal.

When the jury found appellant guilty of burglary in the second degree this had the effect of acquitting him of the two other offenses charged in the indictment. The State made out a strong ease against appellant and it took the jury only 35 minutes to return a guilty verdict.

There was no request for the affirmative charge; there was no motion for a new trial; there were no exceptions reserved to the oral charge of the jury; and there were no adverse rulings on the admission of evidence which contained any merit. When the State rested its case appellant made a motion to exclude the State’s evidence which motion was overruled and denied. This puts us to a recital of the evidence pointing to the guilt of the appellant.

Mrs. Betty Self testified that she and her husband owned their home at Route 5, Box 400 A, Bessemer, Alabama, on January 30, 1975. She stated that around 1:30 p. m., she locked her house and she and a friend, Mrs. Betty Rickies, went to a neighbor’s house to pond fish. The distance from her home to the neighbor’s home was less than two blocks. They did not fish long as it was almost 3 o’clock and their children would be coming home from school. When she started to return home, she noticed an automobile parked in her carport. It was a green ear with a black top and she said it was an Oldsmobile. She said this Oldsmobile sped away from her house and she and Mrs. Rickies gave chase trying to get the tag number. She chased the car for about three miles going at a speed of 80 to 85 miles per hour. There were three occupants of the Oldsmobile and she could see two in front and one in the rear seat. This car had to stop for a stop sign and they pulled up and stopped immediately behind the Oldsmobile and the driver and the passenger in the front seat turned around and looked her directly in the face. The occupants were black men and the Oldsmobile did not have a tag on it but had a cardboard or paper of some kind on which was written “tag applied for at Jack Self Motors.” Mrs. Self stopped at Payne’s Grocery Store to get gas and while Mrs. Rickies was getting gas, Mrs. Self went in the service station and called the Sheriff’s Department and gave them a description of the Oldsmobile and said it was occupied by three black men.

After contacting the officers Mrs. Self returned home and found the bottom glass in her back door broken and the door partly opened. She made an inspection of her home and found several items missing, including one .20 gauge shotgun, one .410 gauge shotgun, one .22 caliber rifle, one stereo turntable and two speakers, one portable television, a fake diamond ring, a ring with some diamonds in it, and a dresser drawer in which she kept some money. Mrs. Self stated that most of the items were returned to her the next day by a sergeant from the Sheriff’s Department.

Mrs. Self further testified that the driver of the Oldsmobile turned his face to her when they were parked at the stop sign and she got a good look at his face for at least 15 seconds. She also saw the driver at the preliminary hearing and another time at the courthouse when the case was continued. She made a positive in-eourt identification of the appellant as the driver of the Oldsmobile and stated that she made her identification based on the face to face confrontation at the stop sign on the highway.

Mrs. Betty Rickies testified that she was with Mrs. Self on the afternoon in question and accompanied her during the chase of the fleeing automobile. She stated that she put gas in the Self car while Mrs. Self was calling the Sheriff’s Office. While waiting for Mrs. Self to return, Deputy Sheriff Roy Field drove into the parking lot at the grocery store and she told the officer what had happened and gave him a description of the car occupied by the suspects.

Deputy Roy Field testified that on January 30, 1975, around 3:00 p. m., he was in uniform but was off duty and was driving his private car on 15th Street Road toward Warrior River. He saw an automobile speed up, come to a quick stop and a black male jumped out of the back seat of the car and got in another car parked on the side of the road. The officer went to Payne’s Grocery and talked to Mrs. Rickies. She told him what had transpired and the officer immediately went in pursuit of the three suspects. He approached the cars and got out with his pistol in his hand and arrested the occupants of the Oldsmobile. The third man jumped in a blue Chevrolet and sped from the scene. This officer stated that he knew appellant and he was the driver of the Oldsmobile. He ordered appellant and the other man in the car to get out and he handcuffed them. He made a positive in-court identification of appellant as the driver of the Oldsmobile. He further testified that at this time his brother-in-law drove up in his car and he had a mobile telephone and the officer got in the car and called the Sheriff’s Office on the mobile telephone. He stated the passenger in the Oldsmobile driven by appellant was Zackary Smith.

Detective Sergeant A. R. Bracewell of the Jefferson County Sheriff’s Department testified that he arrived at the scene in response to the call made by Deputy Field and found appellant and Smith handcuffed lying on the ground off the road. He further testified that he found a green Oldsmobile with a black top at the scene where Deputy Fields had appellant and Smith handcuffed. He looked in the back seat and saw several articles including one .20 gauge shotgun, one .410 gauge shotgun, one .22 caliber rifle, one stereo turntable and two speakers, one portable television and a dresser drawer with some change in it.

Zackary Smith testified in behalf of the appellant. He had previously pleaded guilty to this same burglary. He stated that he and appellant were riding around looking for junk cars on the afternoon of the burglary. Smith testified that appellant was driving the Oldsmobile and they stopped and picked up a third party. Smith stated that he directed appellant to pull into the driveway of the Self residence and that he and the third man burglarized the Self house and put the stolen articles in the back seat of the Oldsmobile where appellant was waiting for them with the motor running.

Appellant testified that he drove the Oldsmobile into the driveway at the Self house and that when Smith and the other man got out of the car and went toward the back of the house, he turned the automobile around and waited until they returned. When they returned and loaded the car with the articles they had taken from the house, appellant stated he drove away. He admitted that he had pleaded guilty to four previous burglaries and was on probation at the time the Self burglary was committed.

On cross-examination appellant stated that the third man was his brother, Curtis Lewis. He also admitted that he knew why they stopped at the Self house and knew the other two were burglarizing the house while he was waiting in the getaway car but denied breaking in himself. He further admitted that he did all the driving once the getaway car left the Self home.

Mr. Self testified as to the total value of the items taken from their home. He stated the aggregate value was $650.00.

This was a clear case of “hot pursuit” and appellant was caught red-handed with the stolen articles in plain view in the back seat of the car he was driving. He was arrested within minutes after the burglary and after a high-speed chase. His claim that he did not have anything to do with the burglary and that he was just along for the ride is incredible and the jury returned a verdict in 35 minutes after the case was given to them.

This case is controlled by Title 14, Section 14, Code of Alabama 1940 and the case of Stokley v. State, 254 Ala. 534, 49 So.2d 284. See also Foster v. State, 43 Ala.App. 435, 191 So.2d 523.

This is one of the strongest circumstantial evidence cases to make its way to this Court. Circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided it points to the guilt of the accused. Where the prosecution relies to a great extent on circumstantial evidence for a conviction, very wide latitude is allowed in making proof. Willis v. State, 37 Ala.App. 185, 66 So.2d 753; Sumeral v. State, 39 Ala.App. 638, 106 So.2d 270; Creel v. State, 53 Ala.App. 504, 301 So.2d 267.

If there is a reasonable inference to prove existence of the corpus delicti, the Court should submit to the jury for its consideration the question of the sufficiency and weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Creel v. State, supra.

We have carefully considered the entire record and find no reversible error and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Howard HART v. STATE.
    4 Div. 432.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Edward M. Price, Jr., and Farmer & Farmer, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant, in forma pauperis, appeals from a judgment of conviction for possessing heroin, contrary to law. A jury returned a verdict of guilt on defendant’s plea of not guilty. The trial court fixed punishment at twelve years imprisonment in the penitentiary.

The offense of possessing heroin for which appellant was tried is a felony under the laws of Alabama, Act No. 1407, Acts 1971, p. 2378, T. 22, § 258 (Supplement) (29)(c)(10)(47).

Officer Lamar Hadden, employed by Alabama ABC Board for fourteen years as a law enforcement officer, whose duties for the last three years was “working drugs and whiskey,” testified as a witness for the State.

The officer testified that on October 31, 1974, about 10:30 P. M., while at home, received a long distance call from an informant in Miami, Florida, that a brother of Willie F. (Miami) Hart of Dothan, was en route to Dothan from Miami on a Greyhound bus with heroin in a suit-case, “ . business-man’s suit case”; that he was bringing it to his brother, Willie F. Hart in Dothan. The officer verified that the bus would arrive a few minutes after 12 o’clock on the morning of November 1, 1974.

This witness testified that he enlisted the help of some local officers, one of whom, accompanied by other officers, went to Mariana, Florida, where he boarded the bus to identify the defendant. This officer knew Willie F. Hart and identified the Hart from Miami by his favoring of his brother in Dothan.

When the bus arrived in Dothan, another officer was waiting at the exit door of the bus. The officer on the bus indicated to the officer waiting at the door which passenger was Hart; this waiting officer signaled the other officers who converged and one of them put defendant under lawful arrest.

After the arrest, the defendant told them that he did not have a key to the luggage he was carrying, thereupon the arresting officer pried it open with a screwdriver that was made available.

The luggage contained heroin according to the testimony of the arresting officer who testified as to his expertise in such identification. Through proper channels the powder was examined by a State toxicologist who also identified the powder as heroin.

Contention is here made as was in the trial court, that the search was illegal and that the trial court erred in overruling defendant’s objection to the introduction in evidence of the seized heroin because of search illegality.

The ABC officer, Lamar Hadden, who set up the arrest and search, testified that he did not have a search warrant and did not try to obtain one because of the lateness of the hour and the inaccessibility at the late hour of an officer authorized to issue such warrant; that the time element prevented him from obtaining the warrant; He further testified about prior experiences in failing to obtain a search warrant at a normal hour, so he proceeded without one to act on the information obtained over the telephone.

He further testified that his informer was reliable; that he acted on information on three prior occasions pursuant to the information obtained from their informer; that on each occasion the informer was correct and the defendants'were convicted.

The evidence we think fully established the existence of reasonable cause to sustain the officer’s arrest of defendant without a warrant of arrest. T. 15 § 154, Code of Alabama 1940, Recompiled 1958, authorizes such arrest. We quote:

“An officer may also arrest any person, without warrant, on any day and at any time, for any public offense committed, or a breach of the peace threatened in his presence; or when a felony has been committed, though not in his presence, by the person arrested, or when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it; or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or on a charge made, upon reasonable cause, that the person arrested has committed a felony.”

In the instant case the arresting officers had “reasonable cause” to believe that the defendant had committed a felony when he reached Alabama in the bus and a lawful arrest followed. The search that followed was lawful. The search was a lawful incident of the arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, cert. den., 386 U.S. 1042, 18 L.Ed.2d 616, 87 S.Ct. 1474; Adams v. Williamson, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427; Tadlock v. States, 45 Ala.App. 246, 228 So.2d 859.

We hold that the trial court was free of error in overruling defendant’s objection to admitting the heroin in evidence.

We find no error to reverse. The judgment of the court pursuant to the jury’s verdict is affirmed.

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

The judgment of the trial court is hereby

AFFIRMED.

CATES, P. J., and TYSON, DeCARLO and BOOKOUT, JJ., concur.

HARRIS, J., concurs in the result.


author: CAMPBELL, Circuit Judge.

text:
    James A. POSEY v. STATE.
    6 Div. 174.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.

      William W. Rogers, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for appellee.
   CAMPBELL, Circuit Judge.

The Defendant, who, as an indigent, was represented by Court appointed counsel at trial, and by other Court appointed counsel on appeal, appeals to this Court from a judgment of conviction, based upon a jury verdict, of murder in the first degree, with a life sentence.

I.

The homicide arose out of, or was incident to, a bar-room brawl at the Sea Horse Tavern in Bessemer, Alabama. Two American-Indians were killed by gunshot wounds in the difficulty. The victim in the present case was a 16 year old girl who was six months pregnant at the time, and who died as a result of a gunshot wound that severed the spinal cord in the area of the neck.

The State’s evidence was to the effect that the Defendant shot the deceased’s husband as he was going out the door of the tavern, and that when the deceased screamed, the Defendant turned and fired at the deceased, who was not involved in any difficulty with the Defendant in any manner. The Defendant also made threatening gestures with a pistol and oral threats to other persons in the room, according to the evidence of the prosecution. The defense was that the Defendant did not shoot anyone, or at anyone, and that, in fact, he did not have a weapon in his possession, until after the shooting. When asked if the deceased threatened him, the Defendant stated “called me a baldheaded son-of-a-bitch”.

II.

Two issues are raised by the Appellant in his brief. The first issue is set out by the Appellant as follows:

“It is reversible error for the Trial Court to allow the State to present evidence disguised as rebuttal evidence after resting its case against the Defendant, when such evidence does not fall into the classification as being rebuttal evidence”

This is the result of the testimony of Police Officer Guinn, who arrived on the scene approximately one minute after the shooting, concerning the position of the Defendant at the time of the Officer’s arrival and the Defendant’s activity relative to a pistol in his possession at that time. This witness was called after the Defendant had rested his case. The Defendant had testified that he did not shoot anyone and that he did not have a gun in his possession at the time of the difficulty, although he said he picked up a gun from a table after the people were shot. He further stated that he did not point the gun at anyone, or threaten anyone with the gun, and described, apparently in some detail, the position of the gun in his hand, and the “delivery” of the gun to the officers (according to the Defendant’s version), or the “taking” of the gun by the officers (according to the State’s version).

The testimony of Officer Guinn was clearly admissible at this stage of the proceedings. The admission of evidence offered at the rebuttal stage of a trial is discretionary with the Court, and may be properly admitted, even though such evidence would have been admissible as evidence in chief by the State. Blackwell v. State, 264 Ala. 553, 88 So.2d 347, and numerous cases found in Alabama Digest, Criminal Law, <®=684.

III.

The second issue, according to the Appellant’s brief is:

“It is reversible error for the Trial Court to refuse to instruct the Jury as to all degrees of homicide including manslaughter when such charges are requested”.

A colloquy between the Court and Defense Counsel is set out in the transcript (R.P. 81), at the end of the Court’s oral charge, as follows:

Are there any exceptions to my charge?
Mr. Jordan: Could I approach the Bench?
The Court: Yes
Mr. Jordan: You are not charging on manslaughter?
The Court: No, I am not charging on manslaughter.
Mr. Jordan: May I take an exception to that?
The Court: You may take exception.

Clearly, the evidence would not warrant a charge on manslaughter, second degree. Fulghum v. State, 291 Ala. 71, 277 So.2d 886.

While the safer procedure would be to charge on manslaughter in the first degree in most homicide eases, the law does not require this where there is no reasonable theory from the evidence to support such charge. Stovall v. State, 34 Ala.App. 610, 42 So.2d 636; Fulghum v. State, supra.

The presence of malice distinguishes murder from manslaughter in the first degree, and if the killing is done maliciously, it is murder. Harold v. State, 12 Ala.App. 74, 67 So. 761. The intentional use of a deadly weapon raises an inference of malice, and this inference prevails unless the circumstances incident to the killing rebut that inference. Caldwell v. State, 203 Ala. 412, 84 So. 272. In this case the facts do not rebut this presumption. The Defendant either killed the deceased under the circumstances that would constitute murder, or he did not kill her at all.

The Court instructed the Jury on murder in the first degree and murder in the second degree. The Jury found the Defendant guilty of murder in the first degree.

IV.

This issue was not properly presented to the Trial Court, and is not properly before this Court for review.

The proper way to raise the question of the failure of the Court to charge on a lesser included offense is by a written requested charge, and not by exception to the Court’s oral charge. Lovejoy v. State, 33 Ala.App. 414, 34 So.2d 692, cert. denied 250 Ala. 409, 34 So.2d 700.

This Court so held as recently as April 20, 1976 in the case of Windle v. State, Ala.Cr.App., 331 So.2d 420. Upon first impression there is a statement contained in the opinion in the case of Fulghum v. State, 291 Ala. 71, 277 So.2d 886, that might indicate a different rule. The present case can readily be distinguished from the Fulghum case. In the Fulghum case the Court said, as part of its oral charge, “but I will not charge you on manslaughter in the second degree”. The Defendant excepted to this portion of the Court’s charge. In that case the Court had charged on manslaughter in the first degree.

In the case before us, the statement was not a part of the Court’s oral charge, and the exception would have applied to both manslaughter in the first degree and manslaughter in the second degree.

This case is a good example of the necessity for the rule set out in Lovejoy, supra. The manner in which this question was presented to the Trial Court leaves a great deal to one’s imagination as to specifically what the Defendant was excepting to, or, more importantly, what action he wanted of the Trial Court. At the best, the Defendant excepts to the Court’s failure to charge on manslaughter. Would this include both degrees of manslaughter? What, specifically, did the Defendant wish the Court to charge on manslaughter?

We quote Justice Bloodworth in his concurring opinion in Ex-parte: State of Alabama (Re: State of Alabama v. Burns), Ala., 327 So.2d 927, rendered March 5, 1976:

“The Supreme Court of Alabama has never reversed a Trial Judge, to my knowledge, for failing to instruct. When a Trial Judge’s instructions are not as full as the Defendant’s Counsel desires, the remedy is to request instructions explaining Defendant’s theory of the case. Smith v. State, 262 Ala. 584, 80 So.2d 307”.

V.

There was no motion for a directed verdict, no request for written charges, and no motion for a new trial. There was a motion made to exclude the evidence, but this came long after the State had rested its case, and after the Defendant had presented his first, of two, witnesses. Even if such motion had been timely made, the evidence clearly supports the verdict.

The Appellant has cited no Alabama cases in support of the issues raised by him in his brief.

The Court has searched the record and finds no error therein prejudicial to the Defendant.

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

The judgment below is hereby

AFFIRMED.

All the Judges concur, except CATES, P. J., who did not participate.


text:
    Otis JONES v. STATE.
    2 Div. 178.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.

      Drinkard & Drinkard, Linden, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of grand larceny and the Court sentenced him to five years imprisonment in the penitentiary. At arraignment and trial appellant was represented by court-appointed counsel. He pleaded not guilty. After conviction and sentence he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on appeal.

The evidence presented by the State is not disputed. Appellant did not testify nor did he offer any testimony in his behalf.

Nate Conner and Buddy Lawrence were Deputy Sheriffs of Marengo County and were patrolling in the south end of the county on December 17, 1975. Between 1:30 and 2 o’clock a. m. on that date they came upon a U-Haul truck parked at or near an intersection on County Highway 25. They stopped and found a black man in the truck, who was later identified as Alonzo Posey, and asked if he was having any trouble. He replied that he was not but was merely waiting on a couple of men. Conner stated that he then saw two men walking on the side of the road. One of the men was later identified as Matthew Pritchett and the other man was appellant, Otis Jones. Appellant was carrying a flashlight which he threw into a ditch. The Deputies then left the truck and drove their car to these two men. Deputy Conner asked appellant what he had thrown into the ditch and appellant replied, “Nothing.” Conner then got the flashlight out of the ditch, and the two men were placed in the squad car and carried to the U-Haul truck. Appellant and Pritchett were wet and muddy. Appellant was wearing tennis shoes. The two men were asked where they had been and why they were so muddy. They stated that their car was stalled and that it had thrown mud on them when they were attempting to get it out. The officers asked them where their car was located and they replied that they did not know. The officers felt that something was wrong and they decided to take the three men and the truck to the police station for a further investigation.

On the way to the jail one of the Deputies radioed Chief Deputy R. P. Bridges who met them at the jail. Conner and Bridges returned to the location on Highway 25 where the U-Haul truck had been parked. Near the place where the truck had been parked they noticed tracks from one side of the highway to the other and a great amount of mud. The tracks were plainly visible by flashlight and had been made by someone wearing tennis shoes and someone wearing “plain shoes.” The tracks were right beside a caterpillar tractor on which was a stack or roll of telephone cable. The officers observed where the cable had been pulled out and laid on a piece of iron on the tractor and cut. They followed the tracks and directly across the highway from the tractor they found a pile of wire or cable. The place where appellant and Pritchett had been seen was between this pile of cut wire and the place where the U-Haul truck had been parked. The officers put some of the cut wire from the pile in the squad car.

Chief Deputy Bridges testified that after he and Deputy Conner got to the scene he saw a trail of mud across the highway. A roll of wire was on the caterpillar tractor, and the cut off wire was on the opposite side of the highway. He stated they also found an axe or wire cutter and a wrench near the place where appellant and Pritch-ett had been picked up. He and his fellow officer put a couple of pieces of wire, a wrench, axe or wire cutter in the squad car and went back to the jail. When they got back to the jail, he placed Posey, Pritchett and appellant under arrest and gave each of them the Miranda rights and warnings. He stated that Pritchett made a statement after he was given his constitutional rights but appellant did not say anything.

Matthew Pritchett testified for the State. He testified that he, appellant, and Posey all lived in Birmingham. He stated that over a week prior to December 17, 1975, he and appellant had been to Marengo County and had seen the wire. He said that appellant, Posey and he met at his house on the afternoon of December 17, and all agreed to rent a truck in Birmingham and go to Mar-engo County and get the wire and they left Birmingham around 6:30 or 7 o’clock p. m. on that date. He testified that he had an axe that he had for some time and he brought the axe with them to cut the wire. He stated that they all agreed to share the expense of renting the truck and that he drove the truck.

Pritchett further testified that after they arrived in Marengo County, he drove to his grandmother’s home in Magnolia, Alabama. He could not remember if appellant and Posey actually went in his grandmother’s house but they left from there and went to the place where they had seen the wire. He stated that after they arrived at the place where the wire was located, he parked the truck a short distance from the tractor on which the wire was situated. That he and appellant both started cutting the wire and Posey stayed in the truck which was parked not more than 150 feet away. He said as they cut the wire appellant moved all of it across the highway and put it in a pile and they planned to bring the truck down to pick up the cut wire. That when they saw the officers, they were walking back to get the truck to load the wire which they had cut. He further testified that they intended to sell the wire but at that particular time they did not know to whom they were going to sell it.

Audrey Whitehead testified that he was employed by the Southland Telephone Company, Inc., and that he went to the scene where the telephone wire was cut. He stated that he measured the number of feet that was cut from the roll of telephone cable that was on the truck. He stated that about 1,030 feet of telephone cable had been cut from the roll on the tractor and placed on the opposite side of the road at his company’s job site in Marengo County. He said the value of the cable, which was underground cable, was $1.00 to $1.50 a foot, or well over $1,000.00.

When the State rested, appellant moved to exclude the testimony of Matthew Pritchett saying, “Your Honor, at this time I would like to move to exclude the testimony of Matthew Pritchett on the grounds that it was uncorroborated testimony of an accomplice or an accessory.” This motion was overruled.

There was no motion to exclude the State’s evidence on the ground the State failed to prove a prima facie case; there was no request for the affirmative charge; there was no motion for a new trial; and there were no adverse rulings on the admission of any testimony that contained any merit.

The motion to exclude , the testimony of Pritchett as above mentioned raises an issue that must be dealt with.

Under the statute requiring corroboration of the testimony of accomplices to authorize conviction of a felony (Title 15, Section 307, Code of Alabama 1940), the corroborative evidence need not be strong, nor sufficient of itself to support the conviction, the criterion being that it legitimately tends to connect the accused with the offense. Moore v. State, 30 Ala.App. 304, 5 So.2d 644; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358; Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62.

Nor need such corroborative evidence directly confirm any particular fact stated by the accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776; Cameron v. State, 49 Ala.App. 482, 273 So.2d 242.

“Any circumstantial evidence is sufficient to corroborate if it proves that the accused was connected with the criminal act, or tends to connect him with the commission thereof, or if such connection may reasonably or clearly be inferred from the corroborative evidence; and where the accomplice is strongly corroborated by facts and circumstances connecting accused with the crime, a conviction will be sustained.” 23 C.J.S. Criminal Law § 812(3), p. 109.

The accomplice, Pritchett, testified that he, appellant and Posey lived in Birmingham. That he and appellant had been in Marengo County a week before and had seen the roll of telephone cable on a tractor on a rural county road. That appellant and Posey met at his house the afternoon before they left for Marengo County and decided to rent a U-Haul truck to load the telephone cable and Pritchett had an axe to cut the cable. Pritchett further testified that the U-Haul truck was parked a short distance from the tractor on which the roll of wire cable was located. That he and appellant cut the cable by using an axe and that appellant took the cut pieces of cable and piled them across the highway just opposite the tractor. He stated that after appellant had placed the cable in a pile across the road, they were on their way to get the U-Haul truck to load the wire when they were stopped by the officers. The officers found the U-Haul truck parked about 150 feet from the cut cable and also found the axe that was used to cut the cable. The officers saw tracks crossing the highway from the tractor to the place where the cut cable was placed and observed that one of the tracks was made by a pair of tennis shoes. Appellant was the only one of the trio who was wearing tennis shoes. The U-Haul truck and the axe and appellant’s presence at the scene of the crime strongly corroborated the testimony of Pritchett and certainly tended to connect appellant with the commission of the crime.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813; Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Washington v. State, 55 Ala.App. 116, 313 So.2d 544.

The State’s case rested on circumstantial evidence. Circumstantial evidence is entitled to the same weight as direct evidence provided it points to the guilt of the accused. Creel v. State, 53 Ala.App. 504, 301 So.2d 267.

The evidence presented by the State was sufficient to support the judgment of conviction.

Affirmed.

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


text:
    Plutarcho HILL, alias v. STATE.
    6 Div. 163.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Robert B. Crumpton, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant was indicted, tried and convicted of robbery. Sentence was fixed at twenty-five years imprisonment.

Defendant informed the trial judge that he preferred to represent himself at the trial. The judge warned him of the inadvisability of such preference and insisted that he accept the professional services of the court’s public defender. He continued to. decline.

However, the trial judge requested the public defender to sit at counsel table with defendant and make his services available to defendant if he requested his assistance. Defendant was so informed, and the trial proceeded under such setup. Defendant conducted his own defense.

This appeal is in forma pauperis with appointed counsel filing a brief here that asserts and argues reversible errors.

The first insistence is that the trial court erred in overruling defendant’s motion to suppress the identification by lineup for that defendant at such proceedings was not allowed to obtain his counsel which he asserted he has retained.

It seems that defendant was in jail in Louisiana, (under what authority is not clear), when the lineup was there held. No warrant for his arrest on the instant robbery was issued nor arrest made thereunder until after the lineup.

On voir dire cross-examination of Detective Cooper of Tuscaloosa, Alabama, who was present at the lineup, defendant (representing himself) questioned Cooper:

“Q. Do you remember me telling you that I wanted to have my attorney there?
“A. No, sir. I don’t.
“Q. It was whenever you first came in and talked to me, I told you I wanted my attorney.
“A. The first time I talked to you was when you were in the jail cell, do you remember that?
“Q. No, I don’t remember you coming around to talk to me.
“A. Well—
“Q. But, you don’t recall me telling you that I wanted my attorney?
“A. I recall you telling me that you would not sign anything and would not make any statement whatsoever. I advised you of your rights and told you we were going to have a lineup and you could call a lawyer if you wanted to.
“Q. And I didn’t sign your card.
“A. No, sir.
“Q. Okay. But, you don’t recall me saying I wanted my attorney?
“A. No, sir. Like I said, I advised you of your rights and advised you we were going to have a lineup and you could have an attorney if you wanted one and you were offered a chance to make a phone call.”

Defendant testified on his motion:

“PLUTARCHO HILL, having been first duly sworn to speak the truth, the whole truth and nothing but the truth, testified as follows:
“MR. HILL: Your Honor, my argument on this Motion is that I did ask for an attorney and that I had an attorney and I think that I was — the identification that was made on me was improper because I did ask for an attorney and I had a right to an attorney.
“THE COURT: Do you know what his name was?
“MR. HILL: Yes. I had two, Mr. Erving Greenburg and Mr. Mater of Shreveport, Louisiana.
“THE COURT: Now, since you are representing yourself, do you contend as a matter of law that you were entitled to an attorney? Is that your contention?
“MR. HILL: Yes, sir. I believe that I was entitled to it.
“THE COURT: All right.
“MR. HILL: To have my lawyer there when I came down, when I was brought down for the lineup. I told the Shreveport jailers there, I didn’t want to go in front of the lineup because — until my lawyers were there, and they wouldn’t let me make the phone call to get in touch with my lawyer and they put me in front of the lineup anyway.”

Thus, it is in dispute whether defendant ever asked for an attorney to be present at the lineup. It was an issue for the court to decide. By the court’s ruling denying the motion, this issue among others was decided against defendant. It did not affirmatively appear to the satisfaction of the trial court and here that any request by defendant for an attorney was ever made. The record on the motion indicates that defendant had previously been convicted for burglaries and other robberies; also for other offenses. The court was authorized to assess defendant’s credibility in the light of those prior convictions.

As we pointed out, supra, no warrant of arrest in the instant offense was issued until after the lineup. For aught appearing he was in the Shreveport jail for another offense. No indictment had been returned. He was not entitled to counsel at the lineup.

Presence of counsel is not required at a lineup conducted before indictment. Humphrey v. State, 54 Ala.App. 62, 304 So.2d 617; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; Thomas v. State, 50 Ala.App. 227, 278 So.2d 230; Houston v. State, 49 Ala.App. 403, 272 So.2d 610.

Under the attending circumstances and the doubt about an attorney being requested at the lineup, we will not hold the court in error for denying the motion to suppress. We pretermit deciding the legal impact of a request for an attorney at the lineup, had such request been made.

With further reference to the lineup, it appears that a picture (Exhibit No. 1) of six men (including defendant) in a lineup was identified and introduced as a picture of the lineup in issue. The State caught the mistake and moved to withdraw the picture. The motion was overruled.

It appears as we read the evidence there were only five men in the instant lineup, including defendant, while the exhibit showed six men. It was shown that four of the men in Exhibit No. 1 were in defendant’s lineup; defendant was among the four. Two of the men in Exhibit No. 1 were not in the lineup picture. The court took this into consideration in hearing the evidence on the motion.

The victim of the robbery and a visitor in his office when and where the robbery occurred both identified defendant as the robber.

Their evidence shows that the office was well lighted and the robbery was in the daytime. The ordeal took three or four minutes and defendant was close enough to the victim to touch his clothes that he was wearing.

We have read the evidence and agree with the trial court that there was no credible evidence that indicated suggestion as to the identity of the robber who appeared in the lineup. The fact that defendant was an Indian could have caused the victim and the visitor to notice and remember his physical features and made him more identifiable than otherwise. The presence of Indians in Tuscaloosa, where the robbery occurred, we would say is rare.

We think that the identifying evidence of victim and the visitor was admissible. Leroy Wilson v. State, 57 Ala.App. 125, 326 So.2d 316, cert. denied Ala., 326 So.2d 319; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Thomas v. State, 50 Ala.App. 227, 278 So.2d 230.

The judgment of conviction is affirmed.

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

AFFIRMED.

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


text:
    Dianne RENO v. STATE.
    6 Div. 879.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.

      Hugh A. Locke, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent here and at nisi prius, was indicted, tried and convicted by a jury for embezzlement and sentenced by the trial court to four years imprisonment in the penitentiary.

We quote the essentials of the indictment as follows:

“The grand jury of said county charge that, before the finding of this indictment, DIANNE RENO, whose name is to the Grand Jury otherwise unknown, being at the time the agent, clerk, employee or servant of Meyer Brothers Drug Company of Alabama, Inc. a corporation, did embezzle or fraudulently secrete with the intent to convert to his own use, or the use of another Thirty Six Thousand One Hundred Sixty Three Dollars and Thirty Three Cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, which came into his possession as such agent, clerk, employee or servant, the personal property of Meyer Brothers Drug Company of Alabama, Inc., a corporation, against the peace and dignity of the State of Alabama.”

The indictment appears to be definite and not subject to defendant’s demurrer for vagueness.

It appears from the evidence without dispute, that the State proved the allegations of the indictment except the alleged embezzlement, which defendant denied by a plea of not guilty. Defendant’s evidence tended to establish her innocence. This evidence was in conflict with evidence offered by the State which tended to prove guilt.

The transcript before us is in four volumes and contains 786 pages of pleading and testimony. We will not burden this opinion by an extended delineation of the testimony, but will refer to some essentials pertinent and illustrative of the contentions of error.

It appears that the victim of the embezzlement was a foreign business corporation, with a division located in Jefferson County, by which appellant-defendant was employed as a cashier.

As we understand the record, the embezzled money was received from C.O.D. invoices that accompanied deliveries of drug merchandise to customers: These invoices were returned to defendant with money or checks tendered by the purchaser in payment of the invoiced merchandise. The paid invoices and the money or checks therefor were .turned over to Mrs. Reno as the cashier of the business: The transactions were day to day and covered a period of months.

The manager of the business was alerted to the fact that a certain invoice or. invoices had been paid and that the particular customer was not indebted to Meyer Brothers Drug Company. This alert invited an investigation which led to the discovery, in the desk drawer of defendant, of a bunch of paid invoices that totaled the amount alleged in the indictment. These invoices and the money or checks therefor never reached the accounting department of the company. The invoices had accumulated over a period of months and the alleged embezzlements took place from time to time during that period.

One Mr. Taylor, who was manager and vice president of Meyer Brothers Drug Company, and in charge of the Jefferson County division, called appellant-defendant in for a conference. He also notified the bonding company on Mrs. Reno’s bond. A representative of the bonding company appeared on the scene and also held a conference with Mrs. Reno.

The two conferences, at which no law enforcement officer was invited or present, produced two confessions of guilt, both of which were offered by the State and admitted in evidence for consideration of the jury.

Defendant’s written confession of guilt (Tr. p. 178), made in the presence of Mr. Taylor, company officer, which she signed, stated, “I took C.O.D. money from Meyer Brothers Drug Co., estimated amount unknown.” The second confession in writing (Tr. p. 268), which defendant signed reads as follows:

“June 20, 1972
Birmingham, Alabama
“I am Dianne Rogers Reno, female age 24. I am employed at the present time at Meyer Brothers Drug Co. of Alabama. I am married to Alton Reno and we live at 4301 39th Avenue North Birmingham, Alabama. My job with Meyer Brothers is cashier. I went to work for Meyer Brothers on or about October 1, 1970. “As a part of my job with Meyer Brothers I accepted envelopes from delivery drivers. These envelopes were on C. 0. D. deliveries and as I counted the money from these envelopes I took some of the cash money and placed the empty envelope in my desk drawer. I used this money for my own personal use and on my family. My husband does not know that I took this money. There were no other employees of Meyer Brothers or anyone else involved in the taking of this money.
“s/ Dianne Rogers Reno.”

The voluntariness of both confessions was adjudged by the trial court before the confessions were in evidence. Jones v. State, 292 Ala. 126, 290 So.2d 165. This determination will normally not be disturbed unless it appears contrary to the great weight of the evidence or is manifestly wrong. Carter v. State, 53 Ala.App. 43, 297 So.2d 175 (1974). The trial court heard evidence on this issue and we will not disturb his ruling. Evidence surrounding the confessions was then given to the jury which determined the weight it would give therein. McKee v. State, 24 Ala.App. 175, 132 So. 68. Whether accused made a confession, and whether alleged confession was a true statement of facts, were for the jury. Grimes v. State, 31 Ala.App. 336, 17 So.2d 288.

In view of the fact that the alleged confessions were made at a time when defendant was not under arrest and no law enforcement officer was present, warnings mandated by Miranda v. Arizona, 384 U.S. 438, 86 S.Ct. 1602, 16 L.Ed.2d 694, were not required. The confessions here under consideration were made to private citizens and not officers of the law who appeared later on the scene. Truex v. State, 282 Ala. 191, 210 So.2d 424(1). This decision and others of similar import are controlling and binding on this court. Arguments of counsel that other attending circumstances incident to the confessions should invoke the mandates of Miranda, supra, are not persuasive. We are not privileged to extend Truex and Miranda to include other situations.

In addition to appellant’s contentions of error relating to the confessions and' their admissibility, appellant asserts her two written charges which directed an acquittal unless the jury found that appellant embezzled the entire sum alleged in the indictment was true, should have been given. In other words, embezzlement by defendant of a lesser sum would not support a conviction. These charges were properly refused. Walker v. State, 117 Ala. 42(8), 23 So. 149; Wall v. State, 2 Ala.App. 157, 56 So. 57(9); Martin v. State, 37 Ala.App. 197, 65 So.2d 540(2).

Appellant further contends that the court erred in receiving the verdict which found the defendant guilty of embezzling (only) $2,000, for that, as argued, the jury could not have rendered such conclusions except as a compromise or resorting to a quotient finding. We do not think this contention has merit.

The jury was faced with a difficult determination,- under the evidence and the loose accounting system of Meyer Brothers Drug Company, of the amount that appellant did embezzle. Evidently, they were convinced that she did take at least $2,000. This amount constituted a felony. An exact determination in dollars and cents was not necessary to a conviction.

We compliment appellant’s counsel on his diligent and brilliant defense of this case at nisi prius, and here, and note his serious contentions in briefs that appellant was innocent of the charge and that the offense was committed by an officer of Meyer. The guilt of another is not before this court, nor was it before the jury. Suffice it is, the jury heard the evidence, the argument of counsel, and determined the issues against appellant. We find no prejudicial error in the rulings of the trial court.

So far as this court is concerned, future consideration of appellant’s plight is addressed to the pardon and parole board. However impressed we may be, with the sincerity of counsel’s assertion that he has an innocent client, the jury has spoken and we affirm the judgment. There was no motion for a new trial that we have found in the record.

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

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: WILLIAM I. BYRD, Circuit Judge. TYSON, Judge

text:
    Edison MATHEWS v. STATE.
    8 Div. 769.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.

      Gary K. Grace, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State, appellee.
   WILLIAM I. BYRD, Circuit Judge.

The defendant, Edison Mathews, was indicted, tried, convicted of robbery, and sentenced to serve ten years in the State penitentiary by a jury in Madison County, Alabama from which he appealed.

Evidence presented by the State tended to show that on a dark night, June 5, 1975, about 10:45 P.M., two men entered an establishment known as Veterans Beverage Store on Highway 72 in Madison County, Alabama, operated by Claude Harbin. Harbin was alone. The two men drew pistols and took $60. and a wrist watch from Harbin. Harbin testified one of the men, the defendant, attempted to take the watch off Harbin’s arm forcibly, but was unable to remove it without additional help from Harbin. Mr. Harbin further stated that the defendant took the money and watch and the men fled in a blue car which the witness shot at and hit with his shotgun. At the time of the robbery the defendant had a goatee, beard, and a scar that was seen by the witness.

Edgar Blakenship testified that he drove up as the robbers fled. He and his passenger gave chase, but lost the car and could not identify the robbers.

About twenty-five minutes later the car was found parked about 2.2 miles from the scene of the crime and a short distance across a cotton patch from where the defendant resided. Harbin identified the car as the get-away car. It was impounded by the police.

Nathan Langford, the owner of the car, testified that on the day of the robbery he and the defendant, for much of the afternoon, rode around in the car, a Dodge Swinger. About 5:00 P.M., they began to drink beer, whiskey and gin, and ended up at the home of the defendant. About 7:00 P.M., Langford passed out and the defendant awoke him about 7:30 to obtain the use of the car. The defendant told Langford he would go get some girls. Langford gave the defendant the keys, fell asleep again, and awoke the next morning about 8:00. Soon after Langford awoke, he received a call from the defendant stating that he had left the keys in the car in Huntsville, and it had been stolen the night before. Langford and the defendant reported the theft to the police department and the defendant told the police he had used the car on the night of the robbery, but it was stolen from him.

About two days later, Langford and the defendant went to the Madison Police Department to pick up the car. Langford identified the car as his and said the defendant had borrowed the car on the night of the robbery. The defendant at that time said nothing. The police kept the car.

Four or five days after the robbery, Harbin went to the Madison Police Department to check the progress of the investigation. Officer Smiley testified that he spread six or seven mug shots out on the counter for Harbin to inspect. Harbin identified a picture of the defendant as one of the men who robbed him. These pictures were admitted into evidence. Harbin also made an in-court identification of the defendant as the person who robbed him.

The evidence introduced by the State raised questions of fact for the jury and such evidence, if believed, was sufficient to take the case to the jury. The defendant’s motion to exclude the evidence was properly denied.

The defendant testified in his own behalf and denied that he participated in the robbery. He indicated that he did borrow the get-away car from Langford on the night of the robbery at 8:00 P.M., left about 10:00 P.M., went to the Village Gate Club in Madison, then went to Huntsville to meet a girl named Linda at the house of Marie Leamon, arriving there at 10:30 P.M. He testified that he left the keys in the car parked across the street from the house of Marie Leamon. When Linda did not appear, he went to sleep on the couch at Marie’s and was awakened the next morning about 8:00 by Larry Fletcher, who had spent the night upstairs. The defendant said he then discovered that the automobile had been stolen which he reported to Lang-ford.

The defendant was with Langford when the stolen car report was filled out and when Langford went to the police department to claim the car. On cross-examination, the defendant admitted it was “convenient” and “fortunate” that the people who stole the car in Huntsville brought it back to Madison and parked it near his aunt’s house and across a cotton patch from his home where it was found after the robbery.

Marie Leamon testified for the defendant and said the defendant came to her home about 10:15 P.M., on the night of the robbery, looking for a girl; that she did not know the girl; that the defendant was invited in and used her couch on the lower floor upon which to sleep; that she went upstairs about 10:45; that the defendant was still there at that time and was awakened by Larry Fletcher the next morning about 8:00 A.M.

Larry Fletcher testified he was upstairs at the home of Marie Leamon on the night of the robbery; that he heard the voice of the defendant when he came in, but did not see him until he awoke the defendant the next morning.

Testimony concerning the defendant’s good character was admitted and not rebutted.

All the evidence raised a jury question which was resolved against the defendant, and there was no error in the denial of the motion for a new trial.

I

Counsel for appellant contends that robbery is a capital offense and that the trial court erred in refusing to allow the appellant to strike a jury from forty-eight veniremen as required by T. 13, § 125 (90h) Code of Alabama, Recompiled 1958.

The statute provides that in the twenty-third judicial circuit, a defendant, “ . in capital felony cases shall be entitled to strike from a list of not less than forty-eight competent jurors . . . ” The trial court treated the case as non-capital and allowed a venire of thirty-one.

If this were a case of first impression the defendant would have room for argument; however, in a case from Madison County on January 20, 1976, this question was decided against defendant, Fisher v. State, Ala.Cr.App., 328 So.2d 311, rehearing denied February 17, 1976, in this court and cert, den. by the Alabama Supreme Court on March 5, 1976, in Ex parte Johnny Ray Fisher, Ala., 328 So.2d 321. The same point was decided even more recently in a robbery case, Killough v. State, 57 Ala.App., 332 So.2d 736, rendered March 16, 1976, rehearing denied April 20, 1976, and cert. den. on June 11, 1976, Ex parte Michael S. Killough, Ala., 332 So.2d 739.

In Fisher, supra, Judge Bookout wrote for the court as he did a concurring opinion in Shepard v. State, 57 Ala.App. 35, 325 So.2d 551, as follows:

“Contrary to the broad language employed by the Supreme Court in Bynum, we are of the opinion that the Court was addressing itself solely to the question of bail. The purpose for a special venire in ‘capital cases’ was to give a defendant, on trial for his life, an additional safeguard, not given to those where only their liberty was at stake. At the time Act No. 532, supra, and Title 30, § 63, Code of Alabama 1940, were enacted, the only' distinction between ‘capital’ and ‘non-capital’ cases was the possible imposition of , the death penalty. Since the imposition of the death penalty has been suspended, there is no rational justification for a special venire in a case formerly classified as ‘capital’ where the maximum punishment is now the same as in a ‘non-capital’ case.
“Should the legislature ever enact a death penalty statute which meets all the constitutional tests for validity, then such special venire statutes would again become applicable, in our opinion. We do not believe the Alabama Supreme Court intended that its reasoning in the Bynum decision should be extended to require a special venire in cases where the death penalty cannot be imposed.”

This court is committed to the proposition that, since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, (1972), abolished capital punishment, robbery is a non-capital offense and no special venire is required. The writer, a nisi prius judge and most interested in putting the matter to rest, agrees but is not sure the Supreme Court is in accord. Justice Jones writing for the divided court in Ex parte Bynum, 294 Ala. 78, 312 So.2d 52 said: “. . . The only effect of Furman was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.” Those words are clear and in unmistakable language.

Justice Bloodworth wrote in Bynum, supra, “I concur with the majority opinion authored by Justice Jones as to 1 — that the pre-Furman classification of ‘capital cases’ are still so classified, . . . ” Chief Justice Heflin, in Bynum indicated he believed the majority was classifying non-capital cases as capital. As late as the Shepard case on January 29, 1976, Justice Jones wrote, “By quashing the writ we are not to be understood as agreeing or disagreeing with the language of the Court of Criminal Appeals’ opinion dealing with the effect of Furman v. Georgia, supra, on the defendant’s right to a special venire because this discussion was not necessary to an affirmance in view of the noncapital offense for which he was tried and convicted . . ”

By not granting certiorari in Fisher, supra, and Killough, supra, the Supreme Court may have approved the failure to grant a special venire in rape and robbery cases.

II

The defendant contends that he was entitled to be arraigned one full day before trial again based on the capital nature of the crime of robbery. Since the crime of robbery is a non-capital felony, arraignment is not required one full day before trial. The judgment entry recites:

“Comes the State of Alabama by its assistant District Attorney, Honorable Roy Miller, also comes the defendant, Edison Mathews, in his own proper person and with his attorney, Honorable Wayne Morris, and being duly arraigned in open court upon and indictment on a charge of robbery, for his plea thereto says he is not guilty. Issue is joined.”

The judgment recital is sufficient. See T. 15, § 276, Code of Alabama, Recompiled 1958, and cases cited thereunder.

III

The defendant contends that the court erred in allowing the assistant district attorney to make improper argument to the jury by saying that a defendant who receives a ten year sentence will spend one-third of that sentence in the county jail. The record reflects the following:

“Mr. Miller then began the concluding portion of his closing remarks to the Jury and the following occurred:
“MR. MORRIS: Your Honor, I object, it is not the law.
“(This referring to Mr. Miller’s statement that the law is that the defendant would spend one-third of ten years in the County Jail.)
“THE COURT: It is answer in kind to an argument made by the defense. Of course, I will charge the Jury what the law is, not with regard to that subject, but it is generally something that can be argued without regard to specifics.”
“MR. Miller then concluded his closing remarks to the Jury without further objection.”

The exact argument does not appear in the record. What was purportedly said is not the law as the defense counsel pointed out to the court and jury. The trial judge’s statement seemed to satisfy the counsel since there was no exception, motion to exclude or motion for mistrial. The remarks cannot be characterized as prejudicial enough for reversal; Scott v. State, 47 Ala.App. 509, 257 So.2d 369.

There is no error in the record and the judgment is affirmed.

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

AFFIRMED.

TYSON, HARRIS, DeCARLO, and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

TYSON, Judge

(concurring specially).

I concur in the opinion prepared for this Court by the Honorable William I. Byrd, Circuit Judge. In addition to the authorities cited in the Court’s opinion, as prepared, I felt it appropriate to cite Spears v. State, Ala.Cr.App., 329 So.2d 579, cert. den., Ala., 329 So.2d 582; and Proctor v. State, Ala.Cr.App., 331 So.2d 828, in further support of our holding with reference to the use of a “special venire.”

I also wish to cite Scott v. State, Ala.Cr.App., 331 So.2d 759, cert den., Ala., 331 So.2d 762, also in support of the above point, and also as to its holding with reference to the excusal of prospective jurors in “capital” cases in the absence of the appellant.

Though the issue of being arraigned and served with a copy of the indictment one day before trial was here timely raised, this point has also been deemed not to be a prejudicial error where the punishment is less than “capital.” See Williams v. State, 51 Ala.App. 694, 288 So.2d 753, citing Hubbard v. State, 290 Ala. 118, 274 So.2d 298.

The possible effect of Act No. 213, Acts of Alabama 1975 (Volume 1, page 701), wherein the Legislature of Alabama has reenacted the death penalty, under certain limited circumstances, is not before this Court in this cause.

BOOKOUT, J., and SIMMONS, Supernumerary Circuit Judge, concur in the above.