text:
    S. & T. LEASING CORPORATION, a corp. v. ALABAMA HIGHWAY EXPRESS, INC., a corp.
    SC 1566.
    Supreme Court of Alabama.
    June 25, 1976.
    Rehearing Denied Aug. 6, 1976.
    John W. Cooper, Birmingham, for appellant.
    Robert McD. Smith and Joseph W. Mathews, Jr., Birmingham, for appellee.
   BLOODWORTH, Justice.

This is an appeal from a judgment sustaining defendant-appellee’s motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), ARCP. We hold that the dismissal was inappropriate and reverse and remand.

The complaint filed by plaintiff S. & T. Leasing Corporation was amended several times and in its final form consists of seven counts. The first is a common count claiming $500,000 from defendant, Alabama Highway Express, Inc., for money had and received by defendant for the use of plaintiff. It is still pending in the trial court. The last six counts, which are variations of a common theme that will be set forth below, were dismissed under Rule 12(b)(6), ARCP. Judgment was entered for defendant on all six counts under Rule 54(b), ARCP. An express finding in accordance with Rule 54(b) was made.

Count seven, the most comprehensive of the last six counts, contains the following allegations:

(1) In June, 1966, the parties executed a contract under which plaintiff S. & T., the “Contractor,” was to provide pick-up and delivery services in the “Birmingham Commercial Zone” for defendant AHE, the “Carrier.” A document identified as this contract was incorporated into the complaint.

(2) Paragraph nine of the contract reads as follows:
“9. Term: The operations contemplated under this Agreement shall commence on June 11, 1966. This Agreement is for a stated continuous term of four (4) years, and shall be automatically renewed from year to year thereafter. This Agreement will remain in force until either party hereto gives notice to the other of its intention to cancel in writing ., at least ninety (90) days prior to the date of cancellation set forth in such notice; provided, however, that this Agreement shall not be cancellable prior to the said ninety (90) days prior notice, except for the substantial breach of this Agreement by either party hereto.” [Emphasis supplied.]

(3) The second sentence of paragraph nine was not in the contract as originally drafted but was inserted upon the insistence of Exchange Security Bank, with which plaintiff S. & T. was negotiating an agreement for financing the equipment needed to perform the pick-up and delivery service for AHE.

(4) The agreement with defendant AHE was executed concurrently with and was part of a financing scheme that included the following documents, which were incorporated into count seven:

(a) a loan agreement between Exchange Security Bank and S. & T.;
(b) a note from S. & T. to the bank;
(c) a chattel mortgage from S. & T. to the bank; and
(d) an assignment of the contract between S. & T. and AHE by S. & T. to the bank.

(5) The financing agreement between plaintiff S. & T. and the bank provided for the payment of the note over a four-year period.

(6) In July, 1968, defendant AHE breached its contract with plaintiff S. & T. by terminating the contract.

(7) Plaintiff demanded judgment for $500,000. Defendant AHE, which had demurred to counts two through five, filed motions to dismiss after counts six and seven were added to the complaint. The trial court found: that the termination clause in paragraph nine “provides that the contract could be terminated by either party;” that the complaint itself demonstrates that notice was given according to the terms of the contract; and that consequently “on the face of the complaint there is no claim for which relief can be granted as to Counts VI and VII.” The trial court stated that it had previously sustained demurrers to counts two through five. The last six counts were dismissed.

On this appeal, plaintiff S. & T. challenges the trial court’s construction of paragraph nine. Plaintiff contends that paragraph nine should be construed to establish a four-year term during which the contract can be terminated only for cause. It argues that the provision for termination upon ninety-days’ notice was intended to apply only to the continuation of the contract beyond the initial four-year term. This construction of the contract is based on plaintiff’s contention that sentences two and three of paragraph nine are inconsistent and conflicting since sentence two purports to create an uninterrupted, fixed term of four years and sentence three provides for termination by either party at any time upon the giving of ninety-days’ notice. This alleged ambiguity is urged as sufficient grounds for the court to refer to materials extrinsic to the contract to aid in determining the intent of the parties. Paragraphs (3), (4), and (5) of our summary of count seven set forth plaintiff’s allegations of those facts upon which it would rely to establish that the parties intended that the first four years of the contract term should not be subject to the ninety-day termination provision.

Defendant AHE argues that there is no ambiguity in the contract terms and that, if plaintiff S. & T. and the bank had wanted a guaranteed four-year term, such a provision should have been included in the contract in clear, unmistakable terms.

The dispositive issue in this case is whether, as a matter of law, it may be said that paragraph nine is capable of no construction other than that placed upon it by the trial court. If paragraph nine may be construed so that the ninety-day termination provision does not apply to the initial four-year term of the contract, it cannot be said that “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” and the claim should not have been dismissed. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

We hold that it cannot be said, as a matter of law, that paragraph nine unambiguously makes the ninety-day termination provision applicable to the initial four-year term and consequently that it does not appear beyond doubt that plaintiff can prove no set of facts in support of its claim which would entitle it to relief. It is thus that we hold the trial court erred to a reversal in granting the 12(bX6) motion to dismiss.

Although the construction of a contract is involved, the issue in this case is the sufficiency of the complaint. Construction of the contract between plaintiff and defendant is involved only because the contract was incorporated into the complaint. In construing pleadings, we are bound by Rule 8(f), ARCP: “All pleadings shall be so construed as to do substantial justice.” The committee comments to Rule 8 state,

“Rule 8 is expressly intended to repudiate the long standing doctrine in Alabama of construing the pleadings strictly against the pleader, when ruling on demurrer. See Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443 (1933); Richards v. Richards, 98 Ala. 599, 12 So. 817 (1892); Childress v. Miller, 4 Ala. 447 (1842). According to Rule 8(f), the goal of the proposed rule is to construe the pleadings so as to do substantial justice. ‘In appraising the sufficiency of the complaint we follow . the accepted rule that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support ,of his claim which would entitle him to relief.’ . Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Dennis v. Village of Tonka Bay, 151 F.2d 411 (2d Cir. 1944); 5 Wright and Miller, Federal Practice and Procedure, §§ 1220, 1286 (1969).”

Under Rule 8(f), the trial court’s dismissal of counts two through seven of the complaint can be upheld only if paragraph nine could not possibly have been read to support plaintiff’s contention.

Both parties’ respective views as to the meaning of paragraph nine may be supported by cogent arguments. If the termination provision applies to both the four-year term and the year-to-year continuation of the contract, the provision for a four-year term seems, as plaintiff argues, to serve “no material function in the contract. On the other hand, defendant counters with the argument that the function of the four-year term was to provide an initial period in which the parties would not have to renegotiate the contract — not, as plaintiff contends, to provide an initial period during which the contract could not be terminated. The point is that the contract itself does not resolve this question. Consequently, the contract on its face is susceptible of either reading. Since we are considering the adequacy of the pleadings and not construing the contract as such, we must decide the issue for plaintiff if it appears that it can prove, in support of its claim, any set of facts which would entitle it to relief. It so appears.

In the trial court’s order and in defendant’s brief, it is pointed out that plaintiff did not specifically allege ambiguity in its pleadings. However, defendant itself concedes in its brief that the question of ambiguity was before the trial court. We think this was clearly the fundamental issue. Moreover, the trial court specifically found no ambiguity.

Concluding therefore that the trial court erred in granting the motion to dismiss for failure to state a claim, we reverse and remand.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    OPINION OF THE JUSTICES.
    No. 226.
    Supreme Court of Alabama.
    July 7, 1976.
   Members of the House of Representatives

State Capitol

Montgomery, Alabama

Sirs and Madam:

On June 29, 1976, Honorable John W. Pemberton, Clerk, Alabama House of Representatives, forwarded to the members of the Alabama Supreme Court the following House Resolution No. 231: -

“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional questions which have arisen concerning the pending bill, the Substitute for H. B. 452, a copy of which is attached to this resolution and made a part hereof by reference:
“1) Is that portion of the Substitute for House Bill 452, which would limit the tenure of general officers of the Alabama National Guard to 5 years from the date of federal recognition of their grade, incompatible with Section 276 of the Constitution of 1901 as amended by Amendment 89?
2) Is the aforesaid portion of the Substitute for House Bill 452 violative of Section 273 of the Constitution of 1901 as amended by Amendment 89, in light of 32 United States Code 324(b) and Code of Federal Regulations Title 32, Chapter XI, [sic] paht 564, Sections 564.1(f), 564.2(a)(2) and (d), and 564.5(b)(1)?
RESOLVED FURTHER, That the Clerk of the House of Representatives is hereby directed to send five true copies of the pending bill, H. B. 452, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.”

We answer both questions in the negative.

Substitute H. B. 452, so far as we are here concerned, amends Section 61 of Act No. 1038, 1973 Regular Session, p. 1594; now appearing in Code of Alabama, Recompiled 1958, Tit. 35, § 185(61) by adding the following provision:

“Except as provided herein, the term of office for all general officers, other than the adjutant general who is appointed by and serves at the pleasure of the governor, and the assistant adjutants general for army and air who are appointed by and serve at the pleasure of the governor, shall not exceed five years from date of federal recognition in grade and such officers cannot be removed from office except for cause.”

Sections 273 and 276 of the 1901 Constitution are. as follows:

“Sec. 273. Each company and regiment shall elect its own company and regimental officers; but if any company or regiment shall neglect to elect such officers within the time prescribed by law, they may be appointed by the Governor.”
“Sec. 276. The Governor shall, with the advice and consent of the Senate, appoint all general officers, whose terms of office shall be four years. The Governor, the generals and regimental and battalion commanders shall appoint their own staffs, as may be provided by law.”

For construction of the phrase, “whose terms of office shall be four years,” for general officers in Section 276 prior to Amendment 89, see Clark v. State ex rel. Graves, 177 Ala. 188, 59 So. 259 (1912).

Amendment 89 which amends Sections 272, 273 and 276 of the 1901 Constitution reads as follows:

“LXXXIX
“State Military Forces.
“272. The legislature, in providing for the organization, equipment, and discipline of the state military forces, shall conform as nearly as practicable to the regulations of the department of defense of the United States, and the laws of the United States, governing the armed forces of the United States. All affairs pertaining to the state military forces shall be administered by a state military department, which shall be headed by the adjutant general, and who shall be responsible to the governor as commander-in-chief.
“273. Officers of the state military forces, including the adjutant general, shall be appointed, and shall be subject to suspension, discharge, removal, or compulsory retirement as such, solely on the basis of military proficiency, character and service, as determined by department of defense regulations and military usages sanctioned by the military laws of the United States, anything in this Constitution to the contrary notwithstanding. The qualifications of personnel of the federally recognized national guard shall be as prescribed in pertinent regulations and policies of the United States department of defense.
“276. The governor shall, with the advice and consent of the senate, appoint the adjutant general and all general officers. The governor shall appoint his own staff, as may be provided by law.”

It is significant that the amendment does not provide for any definite term of office for general officers. It is our opinion that the amendment abolished the four year term of office which had previously been mandated by Section 276 in the 1901 Constitution.

Moreover, Section 272 of the amendment charges that the legislature, in providing for the organization, equipment and discipline of the state military forces, shall conform as nearly as practicable to the regulations of the department of defense and the laws of the United States.

Additionally, Section 273 of the amendment provides that officers of the state military forces, including the adjutant general, shall be subject to suspension, discharge, removal or compulsory retirement solely on the basis of military proficiency, character and service, as determined by department defense regulations and military usages sanctioned by the military laws of the United States.

In turn, federal laws and regulations in effect at this time provide that termination of office is, subject to some exceptions, a state function. 32 U.S.C.A., Section 324, 32 Code of Federal Regulations, Subtitle A — Department of Defense, Chapter V— Department of the Army, Part 564.

Thus, the effect of the amendment by failing to provide terms of office is to defer to federal law and regulations the matter of tenure for general officers. Since federal law and regulations place appointment and tenure within the province of state law, it is our opinion that the state legislature may fix tenure as it chooses.

Respectfully submitted,

(s) Howell T. Heflin_ Howell T. Heflin, Chief Justice

(s) James N. Bloodworth_ James N. Bloodworth

(s) James H. Faulkner_ James H. Faulkner

(s) Reneau P. Almon_ Reneau P. Almon

(s) Eric Embry_ Eric Embry

(s) Sam A. Beatty_ Sam A. Beatty Associate Justices


author: HEFLIN, Chief Justice.

text:
    Lisa C. HICKEY, a minor suing by and through her father, Richard L. Hickey, as next friend v. James E. CHARLTON et al. Richard L. HICKEY v. James E. CHARLTON et al.
    SC 1393, SC 1417.
    Supreme Court of Alabama.
    May 28, 1976.
    Rehearing Denied Aug. 6, 1976.

      Robert H. Smith, Mobile, for appellant Lisa C. Hickey, a minor.
    Fred W. Killion, Jr., Mobile, for appellee James E. Charton.
   HEFLIN, Chief Justice.

These cases have been consolidated and constitute an appeal from the granting of summary judgments for defendants below. The actions were brought by Lisa Hickey and her father to recover damages sustained by Lisa when she fell while playing on a treehouse in defendant Charlton’s yard. Defendant’s motions were based on the pleadings, the deposition of eight-year-old Lisa Hickey (who was six years old at the time of the accident) and the answers to interrogatories of defendant Charlton. Opposition to the motions were based on the pleadings, deposition of Lisa Hickey, answers to interrogatories of defendant Charl-ton and on pictures of the treehouse filed in both cases.

Plaintiffs’ complaints allege in count one that defendant maintained a treehouse on his property, which was naturally attractive to children and likely to be dangerous to them. They further allege that the danger was not obvious, but was known to defendant. Liability was alleged to be based on defendant’s failure to take due care to warn plaintiff Lisa Hickey of the danger or to see that the treehouse was guarded so as to prevent injury to plaintiff. The second count of both two-count complaints allege that defendant maintained an attractive nuisance which caused plaintiff Lisa Hickey injury.

The facts as set out in the complaints, deposition and answers to interrogatories show that six-year-old Lisa Hickey was in defendant’s yard at the invitation of defendant’s six-year-old daughter Amy, with whom she often played. They played on the swing set for awhile and then entered the treehouse at Amy’s suggestion. After playing in the treehouse for some time, Lisa attempted to come down the ladder from the treehouse to the ground. She slipped and fell, sustaining injuries to her back. The ladder also fell, although it did not break.

The issue presented by this case is whether the treehouse built in defendant’s back yard under the circumstances of this case falls within the attractive nuisance doctrine so as to present a question of liability for the jury and thus defeat summary judgment.

The duty owned by a landowner to one on his property generally depends on the status of the injured party in relation to the land. See, e. g., Autry v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). Where, as here, the plaintiff was on defendant’s property with his consent or as his guest, but with no business purpose, she attains the status of a licensee and is normally owed only the duty not to be willfully or wantonly injured, and not to be negligently injured after the landowner has discovered her peril. Autry v. Roebuck Park Baptist Church, supra.

The doctrine of attractive nuisance offers an exception to the limited duty owed by a landowner to a trespasser or licensee. The doctrine applies only where children are involved. Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964); see Fulford, The Tort Liability of Possessors of Property to Trespassing Children in Alabama, 11 Ala. L.Rev. 1, 9-13 (1958). The doctrine was described by this court in City of Dothan v. Gulledge, 276 Ala. 433, 435, 163 So.2d 217, 219 (1964):

“The attractive nuisance doctrine applies to one who maintains dangerous in-strumentalities or appliances on his premises of a character likely to attract children in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement. Williams v. Bolding, 220 Ala. 328, 124 So. 892.
“The doctrine is not supported unless the defendant has on his premises a condition which is naturally attractive to children at that place and is likely to be dangerous to such a person in the ordinary course of events, all of which is known to the defendant and not to the injured person and not obviously dangerous in itself; and there is no warning of the danger given; that the injured person responded to that attraction and went to the place by reason of it and was injured there by pursuing a course of conduct which was to be anticipated in the ordinary course of events. Republic Steel Corp. v. Tillery, 261 Ala. 34, 72 So.2d 719.”

The treehouse on defendant’s property was built by defendant and his fourteen-year-old son in 1968. It stood approximately five and one-half feet from the ground and was built between four small trees. It had sides, a roof, one door and a window and was reached with a ladder, the first rung of which was approximately three and one-half feet off the ground.

This court has been very reluctant in the past to extend application of the attractive nuisance doctrine. See, e. g., Herbert v. Regency Apartments, Inc., 292 Ala. 417, 295 So.2d 404 (1974) (a flatbed trailer was held not an attractive nuisance); Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972) (tree with debris under it not an attractive nuisance); Alabama Great Southern R.R. Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964) (pond); City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217 (1964) (storm sewer); Alabama Power Co. v. Kirkpatrick, 268 Ala. 338, 105 So.2d 855 (1958) (transmission tower).

In Alabama Power Co. v. Kirkpatrick, supra (opinion set aside on rehearing) the court recognized children’s “natural love of climbing” but still found that a count which alleged that a transmission tower with a live electrical wire was an attractive nuisance did not state a cause of action. The court has also found that a tree with debris, a dog house and lumber scraps under it did not constitute an attractive nuisance where a dead limb gave way under a child. Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972).

A careful comparison of the circumstances of these cases with those of the cases cited above where liability under the doctrine was denied compels this court to conclude, as a matter of law, that the facts in these cases do not justify the extension of the attractive nuisance doctrine as a remedy for the plaintiffs. Thus, the granting of defendant’s motion for Summary Judgment was appropriate. The trial court’s action below is, therefore, affirmed.

AFFIRMED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    OPINION OF THE JUSTICES.
    No. 225.
    Supreme Court of Alabama.
    July 13, 1976.
   To the Members of the House of Representatives

State Capitol

Montgomery, Alabama

Sirs and Madam:

This acknowledges receipt of House Resolution 230 adopted June 29, 1976, which is as follows:

“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE ALABAMA LEGISLATURE, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the constitutionality of House Bill 582, and each individual provision thereof.
“RESOLVED FURTHER, That the Clerk of the House is hereby directed to send five true copies of the pending bill, H.B. 582, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution.”

Since the adoption in 1923 of the act authorizing advisory opinions, now codified at Title 13, § 34, Code, the justices have consistently declined to give advisory opinions on the general constitutionality of pending legislation, and have restricted such opinions to questions of the constitutionality of pending legislation under specific provisions of the Constitution.

The reason for this position is readily apparent and was restated in 1970 in Opinion of the Justices, No. 199, 286 Ala. 156, 238 So.2d 326, in declining to give an advisory opinion requested by the Governor, as follows:

“1. The Justices have declined to give an advisory opinion under Tit. 13, § 34, Code of Alabama, 1940, on the general constitutionality of an act of the Legislature or statute. Such requests are considered too broad and indefinite. In re Opinion of the Justices, 216 Ala. 469, 471, 113 So. 584; In re Opinion of the Justices, 226 Ala. 18, 21, 145 So. 481; Opinion of the Justices, 249 Ala. 511, 31 So.2d 721; Opinion of the Justices, 252 Ala. 527, 41 So.2d 775. We have ordinarily restricted advisory opinions to questions on the constitutionality of proposed legislation arising under a stated section or sections of the Constitution. To leave to the Justices the search for all possible avenues of constitutional tests, imposes a task accompanied with such doubt and uncertainty that even those gifted with unusual ingenuity, would retreat from it.” (286 Ala. at 158, 238 So.2d at 327)

In this instance, the question propounded, which elicited the comment set out above, is broader than that of the Governor. We, therefore, respectfully decline to render an advisory opinion.

Respectfully submitted,

(s) Howell T. Heflin_ HOWELL T. HEFLIN Chief Justice

(s) James N. Bloodworth_ JAMES N. BLOODWORTH

(s) Hugh Maddox_ HUGH MADDOX

(s) James H. Faulkner_ JAMES H. FAULKNER

(s) Reneau P. Almon_ RENEAU P. ALMON

(s) Janie L. Shores_ JANIE L. SHORES

(s) Eric Embrv_ ERIC EMBRY

(s) Sam A. Beattv_ SAM A. BEATTY Associate Justices


author: CATES, Presiding Judge. CATES, Presiding Judge.

text:
    Newton Ricky SMITH v. STATE.
    6 Div. 947.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied June 1, 1976.

      Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Selling marihuana: fine, $15,000; sentence, two years in the penitentiary, plus ten years for non payment of fine.

I

An undercover agent who positively identified Smith testified that on February 7, 1973, he bought “marijuana” from Smith for $160. A State toxicologist ran a Du-quenois-Levine test on a part of the substance. The result was positive for the presence of marijuana. In the course of his testimony we find:

“Q Mr. Bailey, on the Duquenois-Levine test, if THC were present in the plant substance, would that still show up positive on the Duquenois-Levine test?
“A Yes, sir.”

In Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, the indictment used the word “marijuana”. This term was used in the predecessor statute, Code 1940, T. 22, § 256, as amended.

The 1971 Alabama Uniform Controlled Substances Act changed the definition. First, it used the spelling “marihuana”. Whether this was intentional we do not know.

More importantly, the new law limited the term to cannabis sativa Linnaeus. There is respectable, though not unanimous, scientific authority to the effect that in addition to cannabis sativa Linnaeus there are at least two other varieties of cannabis sativa. See Stein, Laessig and Indriksons, An Evaluation of Drug Testing Procedures Used by Forensic Laboratories and Qualifications of Their Analysts, 1973 Wisconsin Law Review 727 at 767; United States v. Collier, (D.C., Super., March 19, 1974) 14 Cr.L. 2501.

Marihuana, or marijuana, in everyday speech is not a scientific name. However, when a statute defines a term with the limiting word “means”, the courts must construe the expression narrowly. See Helvering v. Morgan’s, Inc., 293 U.S. 121, 55 S.Ct. 60, 79 L.Ed. 232 and Sims v. Moore, 288 Ala. 630, 264 So.2d 484. The 1971 Act narrowed “marihuana” to cannabis sativa Linnaeus.

The 1971 Act also has expressly proscribed possession of a tetrahydrocannabi-nol (THC). The dictionary definition of marijuana is broad and embraces a plant substance containing THC. See Schedule I, § 204(d)(17) of the Act.

Here the indictment described the substance which Smith was accused of selling as “ * * * marijuana, cannabis Americana or cannabis Indica, or a compound or mixture containing marijuana, cannabis Americana or cannabis Indica, * * *.” This use of “marijuana” and not “marihuana” apprised the defendant that he was accused of selling a substance containing THC. See Hill v. State, 56 Ala.App. 369, 321 So.2d 708.

We consider that the State made out a prima facie case.

II

The supervisors of the undercover purchaser had rigged him with a short-range radio transmitter. Part of the direct examination of Sgt. Bibb elicited:

“A I had followed Officer Glover to this address in my car. He was in his car.
I followed him to the address, in order to cover—
MR. PARKER: We object to his mental operation and move to exclude it.
THE COURT: Well, I am going to overrule the objection and let him testify.
MR. PARKER: We accept.
THE COURT: You can testify. Go ahead.
THE WITNESS: I followed Officer Glover, to cover a narcotic purchase.
MR. PARKER: That is what I am objecting to and move to exclude.
THE COURT: I will overrule the objection.”

In brief appellant argues that this is a contemporaneous mental operation otherwise undisclosed. He further argues that it does not come under the principle of Starr v. Starr, 293 Ala. 204, 301 So.2d 78, because the purpose in Glover’s mind was not “material” to the issue in the trial of the indictment. He would distinguish between relevant and material as the latter work is used in the Starr opinion.

We consider it would be an over refinement to exclude the operation of the Starr rule in this case. Certainly the State is entitled to corroborate its witnesses even though the proof is cumulative:

“As long as the plea of not guilty stood, the State had the right to prove its case up to the hilt and to choose its own way of doing so, subject only to the rules of evidence and the standards of fair play. Powell v. State, 40 Ala.App. 148, 109 So.2d 525, and cases there cited.” Baldwin v. State, 282 Ala. 653, at p. 655, 213 So.2d 819, at p. 820.

Ill

With respect to the sentence of imprisonment for non payment of the fine, we consider that Code 1940, T. 15, § 341, applies only in cases of misdemeanor. This, because the obedience is in the county jail or where the county’s hard labor agent lawfully directs.

Because of this, while the fine remains as a civil judgment, the penitentiary sentence must be set aside.

We have considered the whole record under Code 1940. T. 15, § 389. The judgment below is affirmed, but the cause is remanded for proper sentencing.

AFFIRMED; REMANDED FOR PROPER SENTENCE.

All the Judges concur.

ON REHEARING

CATES, Presiding Judge.

Neither the Attorney General nor the Appellant’s lawyer thinks our original decision was right. They have different reasons.

The prosecution’s position is that Part III of the opinion is wrong. The brief says in part:

“The State also feels strongly that the Circuit Courts of this jurisdiction should have the option of fining a convicted felon who is participating in an illegal occupation which may be extremely lucrative. The trial judges across the State frequently levy fines of this nature and many times do so in lieu of an increased sentence under the impression that the convicted felon can be penalized for this non-payment. The State can only submit that if this decision by the Honorable Court of.Criminal Appeals is allowed to stand that a valuable deterrent in the fight against crime, and in particular, the drug traffic will have been taken away from our system of justice.”

Deterrents to drug traffic as well as other nefarious activities are the exclusive prerogative of the Legislature. The Courts cannot constitutionally however much tempted, emulate the Mikado’s Lord High Executioner by making each punishment tailor-made to fit each peculiar crime.

Here Judge Gibson did not go outside his delegated duty in setting punishment. He did, however, extend § 341 (which commutes an unpaid fine into jail or hard labor time) to apply to a felony fine. This is incompatible with § 325 of T. 15 because here we would have a two year stretch in the penitentiary coupled with durance vile of ten years which, arguendo, if § 341 were to apply, could not be served in the penitentiary. All cases annotated under § 341, supra, according to a random sample are misdemeanors only. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130, was not raised. Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586, is not applicable.

The Attorney General has simply argued without citing a single case. Nor has he come up with any attempt to make a logical demonstration or a syntactical parsing of the statute itself.

We remain persuaded that Part III of the opinion is right.

We consider that for the purposes of Rule 39, ARAP, we have heretofore in Parts I and II of our opinion given Appellant enough to get review by the Supreme Court of Alabama.

However, in fairness because of our fallibility through not being final, we go into another point raised by Appellant.

IV

After witness Bailey’s testimony, the record shows:

“MR. PARKER: That’s all I have, Your Honor.
THE COURT: All right. Do you all want to excuse him?
MR. HUFFSTUTLER: Yes, sir.
THE COURT: All right, you are excused.
MR. HUFFSTUTLER: Your Honor, I would like at this time, if possible, to let Mr. Bailey take that substance with him.
I have no intention to enter it into evidence. If it would be possible.
THE COURT: I don’t know. If, at some later time, it becomes material, or if somebody wants it, we are going to have to sit and wait on him.
It would be highly unusual to do that.
MR. HUFFSTUTLER: All right.
THE COURT: I will say this to you:
I think I know what is bothering you, but I call myself as having taken care of the situation with Mr. Johnson, the man in charge of the toxicology office, here.
If we are left with something on our hands like this at the end of the trial, you don’t need to have that worry about it getting into the wrong hands, or anything like that, because we are quite diligent about it.
MR. HUFFSTUTLER: I wasn’t implying otherwise.
THE COURT: Yes, I know. I just wanted to explain to you. I wish it were possible to do like you say, then I wouldn’t have to fool with this type of evidence later on.
However, I am afraid it wouldn’t be practical.
MR. PARKER: Judge, could I clarify for the record:
When you say ‘wrong hands,’ you mean that the chain of evidence be kept so that the proper authorities have it, so that the jury will not misunderstand.
THE COURT: Well, what I meant was when the case is over with and is completely disposed of, no one need worry about me letting this stuff get out of here, or somebody carrying it out of the courtroom.
I am not talking about anybody connected with the trial. I am talking about it getting back into the trade or traffic, or anything like that.
I have a means of disposing of that sort of thing when it is no longer needed.
That is what I mean.
MR. PARKER: I didn’t want the Court to say anything that it is prejudicial to my client.
I don’t mean the Court is—
THE COURT: Is it your contention that what I say is prejudicial, with that explanation, that this stuff, when the trial is over with, I am not going to give it to somebody, say, “Hey, Buddy,” to somebody on the street, “Do you want this stuff?” that it won’t be destroyed?
That is what I am talking about. Well, we will just do the rest of it — if you want to go into it further — in the absence of the jury.
I have not intended to prejudice this defendant. I don’t know how in the world that what I said could prejudice.
All I said was that when this trial is over with that this stuff here — that I will dispose of it, that nobody need to worry about it.
MR. PARKER: Yes, sir. We except.
THE COURT: And I am not saying what it is. I am not saying it is marijuana. I don’t know what it is, but, whatever it is, it will be disposed of in a manner wherein it will be a matter of record, and it won’t be improperly done. That is what I am trying to say, whatever it be, whether it be Johnson grass, or anything else.
All right.
(WITNESS EXCUSED)
THE COURT: Anyway, from here on in, let’s take up this sort of matter outside the presence of the jury.
Do you mind?
MR. HUFFSTUTLER: Yes, sir. I fully understand. I’m sorry, Your Honor.
State rests at this time, Judge.
THE COURT: All right.”

Appellant argues that the foregoing colloquy injected prejudicial or vitiating influence into the minds of the jurors, citing Neal v. State, 36 Ala.App. 156, 54 So.2d 613.

Neal, supra, involved reprimands and sarcastic remarks by the trial judge addressed to defense counsel. Here Judge Gibson was courteous and made no prejudging of what the substance was. Moreover, the mere statement, “We except,” was not a sufficient objection.

The application for rehearing is overruled.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.

      . Present Federal law dealing with the offender who does not pay a fine permits imprisonment until the fine is paid. 18 U.S.C., § 3565. An offender who has been imprisoned for 30 days solely because of the nonpayment of a fine can make application to the warden or to a U.S. Magistrate for a hearing on whether he should be released. He is then entitled to his release if it is found that he is unable to pay the fine and that he does not have any property exceeding $20 (excluding property that is exempted from being taken on execution tor debt). Finally, it is provided that the Attorney General may intervene if the offender has more property than $20, and may cause his release if such excess property is. found reasonably necessary for the support of his family. The Attorney General may also claim part of the excess property in partial satisfaction of the fine, and may similarly effect the prisoner’s release. 18 U.S.C., § 3569.


text:
    In re Newton Ricky SMITH v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1892.
    Supreme Court of Alabama.
    July 30, 1976.

      William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for petitioner, the State.
    None for respondent.
   HEFLIN, Chief 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 Smith v. State, 58 Ala.App.-, 335 So.2d 393.

WRIT DENIED.

BLOODWORTH, JONES, SHORES and BEATTY, JJ., concur.


text:
    In re Newton Ricky SMITH v. STATE. Ex parte Newton Ricky Smith.
    SC 1893.
    Supreme Court of Alabama.
    July 30, 1976.
    Parker & Garrett, Birmingham, for petitioner.
    None for the State.
   HEFLIN, Chief Justice.

Petition of Newton Ricky Smith for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Smith v. State, 58 Ala.App.-, 335 So.2d 393.

WRIT DENIED.

BLOODWORTH, JONES, SHORES and BEATTY, JJ., concur.


author: TYSON, Judge.

text:
    Shirley J. ADAMS v. STATE.
    8 Div. 742.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Rehearing Denied May 4, 1976.
    Robert M. Shipman, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the first degree murder of Harold D. Adams, “by shooting him with a pistol.” Following a jury trial, the appellant was found guilty of murder in the second degree, and her punishment fixed at ten years imprisonment. The trial court then entered a judgment in accordance with this verdict.

This appeal arises out of a “Saturday night” shooting which occurred in the parking lot of the Ebony Club in Madison County during the early morning hours of April 6,1975, that involved the appellant and her husband, Harold Adams, the deceased.

The appellant, though she changed her story several times, claimed basically that the pistol accidentally discharged as she and her husband struggled in the front seat of their car. The State, on the other hand, was able to produce an eye witness, Fred Fennel, who testified that though true, the couple had been “fussing” and pushing each other around earlier, at the time of the shooting appellant was standing outside of the car, gun in hand while her unarmed husband was sitting in the car. Presented with conflicting versions of the fatal encounter, the jury evidently found the State’s the more believable.

I

As a sole basis for her appeal, she contends that the State failed to prove that the injuries from the shooting caused death, that there was insufficient proof of the causal connection element of the corpus de-licti, and that therefore her motion to exclude should have been granted, citing Welch v. State, 45 Ala.App. 657, 235 So.2d 906; Daniel v. State, 31 Ala.App. 376, 17 So.2d 542; and Duncan v. State, 30 Ala. App. 356, 6 So.2d 450.

The appellant ran from the parking lot into the Ebony Club, found Oscar Cowley and urged him to follow her outside, explaining that she had shot her husband. Cowley and several other persons rushed Harold Adams to the emergency room at Huntsville Hospital where he was examined by Dr. Leonard Martinec in the “wee hours of the morning”, April 6, 1975. Dr. Marti-nec testified that Adams had suffered a penetrating wound in the facial area just below the right eye, that x-rays indicated that a metallic object was lodged in the posterior region of the brain (R. p. 80). Dr. Martinec stated that the patient still had blood pressure at the time of the examination (R. p. 79), but that he was unconscious and apparently in critical condition (R. p. 79), that such a wound could “very definitely” be fatal (R. p. 80), and that the last time he saw the patient, he was being transferred to the Intensive Care Unit at which time in his, Martinec’s opinion, death was imminent. (R. p. 80-83).

On cross-examination, Dr. Martinec testified that, of course, there was always a possibility of recovery, but that in this case, it was a very remote one and that on the night of the shooting when asked if he thought the patient would survive, he replied, “No.” (R. p. 84).

Dr. John Ploussard testified that he examined Harold Adams later in the day, that all vital signs were absent and that he pronounced Adams dead. Dr. Ploussard stated that the deceased had a gunshot wound beneath the right eye which had apparently penetrated the head. (R. p. 110).

While there can be no doubt that the State must offer evidence of a causal connection between any injuries attributable to the appellant and death, it is well-settled that this burden may be satisfied by the use of circumstantial evidence. Butler v. State, 54 Ala.App. 468, 309 So.2d 505; Hearns v. State, 47 Ala.App. 725, 261 So.2d 64; Gurley v. State, 36 Ala.App. 606, 61 So.2d 137.

As stated by Mr. Justice Merrill in McCall v. State, 262 Ala. 414, 79 So.2d 51:

“It is true that no direct evidence of the causal connection between the wound inflicted and death was presented. There was, however, much circumstantial evidence tending to prove that the deceased died as a result of a wound inflicted by the appellant with a knife.
“Here it was shown that the deceased was cut, that he received only one wound and that he died. Clearly there was am-pie evidence from which the jury could have found causal connection between the wound inflicted by the appellant and the death of the deceased. All the evidence concerning the death of the deceased tended to show that it was caused by the criminal agency of appellant and that it was not the result of accident or natural causes, or of suicide.”

The trial court here properly overruled the appellant’s motion to exclude the State’s evidence.

We have carefully examined the record as required by law and find no error therein. The judgment of the trial court is therefore due to and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.


text:
    In re Shirley J. ADAMS v. STATE. Ex parte Shirley J. Adams.
    SC 1848.
    Supreme Court of Alabama.
    July 30, 1976.
    Robert M. Shipman, Huntsville, for petitioner.
   HEFLIN, Chief Justice.

Petition of Shirley J. Adams for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Adams v. State, 58 Ala. App.-, 335 So.2d 398.

WRIT DENIED.

BLOODWORTH, JONES, SHORES and BEATTY, JJ., concur.


author: CATES, Presiding Judge. DeCARLO, Judge

text:
    Charles Paul KNAFFL v. STATE.
    6 Div. 774.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Rehearing Denied Jan. 20, 1976.

      Rogers, Howard, Redden & Mills, and William N. Clark, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for the State.
   CATES, Presiding Judge.

This appeal is from a conviction of rape. The verdict below set punishment at ten years imprisonment.

I

The prosecutrix testified that at the time of the charged offense she was fifteen years old. On a June night in 1971, a girl friend had asked the prosecutrix to double date with two young men ostensibly to go bowling until four in the morning. The prosecutrix’s mother consented, apparently not being aware that the girls were going with men. According to her, she was lured into an upstairs bedroom under the guise of watching television.

Once in the room the defendant threw her upon the bed covering her mouth with his. He thereupon removed enough clothing to achieve a carnal connection. As he and the prosecutrix descended the stairs they encountered his mother in the kitchen. The prosecutrix made no outcry or complaint.

Later that night, under her testimony, appellant drove her, in a pickup truck with a camper cover, to Green Springs and there committed further acts of intercourse and fellatio upon her person. No objection was taken to this evidence.

When she got home about five in the morning the prosecutrix made complaint to her mother. The next day the mother took the girl to a physician. The latter testified that he saw evidence of a recently perforated hymen.

During the course of the mother’s testimony the trial judge, no less than eight times had to admonish her against volunteering answers. Thus, we find:

“Q. Okay. Do you recall — do you recall Lynn going out that night?
“A. Yes, sir. I can’t forget it.”
[R. 114]
******
“Q. Okay. Now, when Lynn came back in in the early morning hours, about what time was it?
“A. It was pretty close to 5:00.
******
“Q. Were you awake, or asleep?
“A. I was awake.
“Q. All right. Do you — what recollection do you have, if any, of that time?
“A. I remember every car that stopped.”
[R. 115]
******
“Q. All right. Immediately prior to seeing her there at 5:00 o’clock in the morning, what, if anything, did you see, or hear? “A. Lynn came in, and she was real upset.”
[R. 116]
******
“Q. All right. When she came inside, did she make a complaint to you?
“THE COURT: He didn’t ask you what she said, now. He asked you did she make a complaint to you.
“A. Right away. I noticed—
******
“I am just asking you, did she make a complaint?
“Yes, or no.
“A. Yes, she sure did.”
[R. 118]
******
“Q. You have driven there and looked at a camper, haven’t you?
“A. Yes, sir. I have stood out in front of his home lots of nights.
“I sure did.”
[R. 123]
******
“Q. Did you know a young man by the name of Mike Childress at that time?
“A. My son, he took boys back and forth—
“Q. Did you, please ma’am, know Mike Childress, or not?
“A. I knew of him.
“Q. You did not know him, did you?
“A. I only stopped my son from—
“THE COURT: Let me tell you something: You are about to cause me to have to declare a mistrial in this case, and, if you do I can assure you that I will have to discipline you,—
******
“THE COURT: — and the question could be answered without your trying to spew that venom into the trial of this case.
“THE WITNESS: I’m sorry.
“THE COURT: Gentlemen, that has nothing — what that woman said — that witness said has nothing to do with the trial of this case.
“I instruct you not to consider it.
“Is there any one of you that thinks you cannot do it in passing on the issues involved in this case, that it might, in some way, poison your minds, or might bias you?
“Is there anyone that can’t?
“If there is anyone of you that can’t disregard what she said, will you please raise your hand?
“All right, thank you. No one raised his hand.
“I assume that no one — that you all feel like you can go ahead and not be biased, or prejudiced, by this remark.”
[R. 127-128]
“Q. Did you call before you went down there the first time?
“A. Yes, sir. That is the reason I went down there.
“Q. I am not asking you the reason.
“A. Yes, sir, I did.
“Q. Did you call before you went down the first time?
“A. Yes, sir.
“Q. Did you call there between the first time and the second time you went down there?
“A. Yes, sir. I wanted to see if they got a lane.
“THE COURT: You know—
“MR. REDDEN: We move to exclude that, if it please the Court.
“THE COURT: I do exclude, and instruct you — he didn’t ask you why you called.
“He said, ‘Did you call’?
“He is asking these times, and the answer is either yes, or no, or I don’t remember.
“THE WITNESS: Yes, sir.
“THE COURT: And it is not what you want to do, or why you wanted to do it.
“THE WITNESS: Yes, sir.”
[R. 135]
******
“A. And, then, I went to the door, and I looked out, and, as he was going around the curve—
“He had just gotten in front of the church and I seen just the back part, and it was a camper.
“I knew that she didn’t leave in a camper, and I didn’t think at first—
“THE COURT: Don’t add all that other stuff.
“MR. REDDEN: May it please the Court—
“THE COURT: You were describing about the truck and how it went, and that was fine, but now you are blurting out, talking real fast about what you knew and didn’t know, and that sort of thing.
“That’s what I told you not to do.
“THE WITNESS: I didn’t mean it was her, because—
“THE COURT: Just don’t explain what you mean.”
[R. 137]

After the last quoted instance and with the jury withdrawn, appellant moved for a mistrial based on the cumulative effect of the witness’s manner of testifying. The trial judge had misgivings:

“I will say that if it continues it could very well create a atmosphere to where I will have to grant a mistrial, and, in the course of doing it, whether I have to grant a mistrial, or not, it is not completely based on that.
“So, if this witness does not continue to do it, I will have to tell you, Mrs. McDonald, that I do have contempt powers, and I will, if you continue to do that which I admonished you not—
“(Court Reporter’s Note:
“Thereupon, the witness drowned out the Court, with the result that further remarks of the Court and the remark of the witness was incomprehensible.)”
[R. 143-144]

II

During the cross examination of a defense witness the prosecutor, without any previous clue, asked, “Did you know at the time that Knaffl was married?”. She answered in the negative before objection was interposed.

Ordinarily a belated objection to a question fails to protect a point for appellate review and likewise a negative answer renders an objectionable question harmless. In addition, in this case, the trial judge gave a strong prompt admonition for the jury to disregard the question. The defendant’s motion for a mistrial was overruled.

III

In closing argument the assistant district attorney, at one point, said, “Her mother called the police immediately, and she then went to see Dr. May.” [R. 216]

The transcript of the testimony fails to show that the girl’s mother notified the police. Argument should be confined to the evidence and the reasonable inference therefrom.

IV

No indictment was preferred until a year had gone by. We are not advised as to why the State chose to charge Knaffl with common law rape rather than the less onerous statutory offense of carnal knowledge of a girl over twelve and under sixteen. Code 1940, T. 14, § 399. The latter carries a less severe sentence.

We are fully aware that the credibility of the girl’s testimony was for the jury. Lee v. State, 31 Ala.App. 91, 13 So.2d 583. Though going upstairs into a bedroom with a man may seem proper, even though after eleven at night, yet going with. another couple who admittedly copulated in a bedroom just across the hall from the room where Knaffl had intercourse with the pros-ecutrix, strains credulity on the issue of consent.

The prosecutrix was in the presence of at least three other persons (the other couple and Knaffl’s mother) and was in circumstances where she did not explain why she made no effort to complain or escape, except she did say that in the camper the appellant showed her a tombstone and told her unless she yielded it would be hers.

Be that as it may, we are at the conclusion that this record calls for the application of the cumulative prejudice doctrine applied in Blue v. State, 246 Ala. 73, 19 So.2d 11. Particularly do we rely on the instances of “venom” set out in Part I hereof. Although the defense did not object to questions eliciting another offense (crime against nature) we mention it to convey the atmosphere of the trial.

Rape is a heinous crime and this was a particularly bad rape, if the prosecutrix’s testimony is credited beyond a reasonable doubt. The jury made such a finding, but strangely fixed punishment at the least time allowable under Code 1940, T. 14, § 395.

“The worst wretch that walks the earth is entitled to a fair trial, for the law is superior to all persons. As much as we may regret some results of the law, the law must be preserved if this constitutional democracy is to survive.” Watts v. State, 282 Ala. 245, 210 So.2d 805
“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942

Sometimes it might be tempting to view a procession over the Bridge of Sighs and console oneself with the thought these unfortunates are heading for their just deserts. In this case, however, we are compelled to reverse the judgment and remand this cause for a new trial.

REVERSED AND REMANDED.

HARRIS and BOOKOUT, JJ., concur in result.

TYSON and DeCARLO, JJ., dissent.

DeCARLO, Judge

(dissenting).

I do not believe the various incidents recited above, standing alone or considered together, created an ineradicable bias or prejudice. A review of those occurrences shows they were not the kind of statements condemned in Blue.

In each instance the trial judge sustained objections when interposed and on the other occasions when no objections were made, he gave the witness corrective instructions.

At the completion of this testimony, in an effort to insure that the trial atmosphere was cleansed of all bias and prejudice, the judge admonished the jury in this language:

“THE COURT: All right. Ladies and gentlemen, it is almost time to go to lunch, and I am going to instruct you that these last unresponsive remarks made by this witness — not to regard them, because they have nothing to do with the trial of this case, and after this witness answers a question she is rushing ahead and saying a whole lot of things about what she knew and didn’t know, by way of explanation.
“Those are not things. You — the law just doesn’t let witnesses go into a whole lot of undisclosed mental operation, because there is no way in the world of authenticating a thing like that.
“It would lead to all sorts of problems in the trial of cases.
“We try to try cases on facts, and what we are trying to arrive at is the truth. “And if we let witnesses come up here and give their opinions about things and state emotions and guess at what somebody else did and what so and so meant, then you, the jury, have been circumvented.
“You are not trying a case on the facts. Somebody else has already made up their mind how you are supposed to decide it, and they are telling you all these sorts of things to try to influence you, rather than just giving you true, pure facts. “Now, a lot of people, I know — I am not saying — a lot of laymen don’t realize why we have rules of evidence.
“Sometimes these rules of evidence appear to be a little too highly technical, or picky.
“Now, the trial judge doesn’t make these rules, because these rules of evidence have been arrived at through the years by cases being tried, and someone who didn’t agree with the decision appealing the case to the appellate court, and the appellate court judges sitting down and reading the entire testimony of the evidence and determining what type thing did or did not improperly influence, or should not have come into evidence in the trial of a case.
“In some cases, when they do that, they write these rules of evidence. I call them that to you people. I call them that to you people because they say what the law is, and, over the years, we accumulate a great volume of law, known as common law, that we have to try these cases by. “What I am trying to do, as a judge, is to rule on these matters of evidence in accordance with these things that have been determined by judges bigger and wiser than I am as being proper rules to go by.
“And when a witness — I have no feeling of animosity towards any person that comes into this courtroom, whether it be a witness, a juror, or a defendant, or anyone, but the law puts on me a definite burden and responsibility to see that a case is properly and fairly tried according to the law and according to the evidence. “And that is. what I am trying to do here. I am not trying to make anybody uncomfortable.
“You can see that I have had a great deal of difficulty with this witness in attempting to make the witness just answer the questions and not rush ahead and say' what she wants to say, and I have admonished her not to do that.”

The trial judge was in the best position to determine whether his corrective measures had a curative effect on the jury. He was there and heard the tone of voice, observed the shades of expression by the witness and saw any visible reaction on the jury.

In my judgment it was a commendable display of judicial skill in guaranteeing this appellant a fair trial.

I respectfully dissent.

TYSON, J., concurs in the above.

      . “My uncle used to say that the jury served the great purpose of ridding the neighborhood of its sons of bitches. Men have been convicted even of murder in a jury’s exercise of this function, but the penalty does not often run so high. * * * ” Curtis, Trial Judge and Jury, 5 Vand.Law Rev. 150 at 155.


text:
    In re Charles Paul KNAFFL v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1681.
    Supreme Court of Alabama.
    July 30, 1976.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Asst. Atty. Gen., for petitioner.
   HEFLIN, Chief Justice.

Petition of State of Alabama ex rel. Attorney General for writ of certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court, 58 Ala.App.-, 335 So.2d 400.

In denying this writ this court does not wish to be construed as approving or disapproving all of the language contained in the opinion of the Court of Criminal Appeals.

WRIT DENIED.

BLOODWORTH, JONES, SHORES and BEATTY, JJ., concur.


author: HARRIS, Judge.

text:
    Thomas Earl BROOKS v. STATE.
    3 Div. 554.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Jerry L. Cruse, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at 10 years imprisonment in the penitentiary. At arraignment, attended by counsel, he pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The evidence is undisputed that about 8 o’clock on the night of October 1, 1974, two men entered Mallett’s Coliseum Pharmacy and robbed the owner and his employee at gunpoint. One of the robbers was armed with a shotgun and the other bandit had a pistol. Mr. Mallett and his employee, David Erickson, were ordered to lie on the floor and their hands and feet were tied. While they were tied, the robbers took each of their wallets. Both robbers were wearing ski masks and neither Mallett nor Erickson was able to identify ' them. While both men were on the floor, the robbers filled a canvas bag with hard drugs from the prescription department and went out the door to a waiting car to make good their escape. Erickson stated he had $140.00 in his wallet.

Appellant did not testify but offered the testimony of witnesses to prove his claimed alibi.

Mr. Mallett testified that all drugstores are given a number to dispense all controlled drugs and no stores have the same number. He stated his number was AMO476-603. He further testified that some weeks after the robbery Detective J. D. Foster brought a sack of drugs to see if he could identify them. He stated there was one bottle that had his number— AMO476-603 — stamped on it and this bottle contained Coricidin with codeine in it. He saw a number of other bottles but the numbers had been scraped off and this was the only bottle that he could positively identify as being taken from his drugstore on the night of the robbery.

Teresa Wickham drove to Mallett’s Pharmacy on the night of the robbery to make a purchase for her mother. She was accompanied by her sister, Jackie Wick-ham. The time was about 8 o’clock on the night of October 1, 1974. Teresa parked in front of the drugstore and noticed a man sitting in a light blue car about four parking spaces from her but this car was parked at an angle in front of the store. The place outside the drugstore was well lighted, so well lighted that a person could sit in a car and read a newspaper. The man in the car was not disguised and she got a good look at him in the face before she entered the drugstore. Once inside the store she saw two men wearing ski masks behind the counter and realized a robbery was in progress. She acted as if nothing was happening and waited for the men to leave. After the men left, she returned to her car and went home and reported the robbery to her mother who called the police department.

A short time after the robbery she was shown individual photographs at police headquarters and viewed a lineup. At the lineup she identified the man in the car as Arnold Jones. After looking at mug books several times, she identified a mug shot of Arnold Jones.

Jackie Wickham testified that while waiting in the car for her sister to return, she observed the man parked at an angle in front of the drugstore and this man kept staring at her. She could not understand why this man kept staring at her and she kept looking at him and got a full view of his face. She later identified this man at a police lineup. She saw appellant and another white male come out of the drugstore and as they were coming out the door, they were pulling off their ski masks. One was carrying a canvas bag from which drugs were spilling. The men got in the waiting car and sped from the scene. After the men pulled off their ski masks, she got a good look at both men. On December 6, 1974, after viewing a lineup which did not include appellant, she was shown a mug book and positively identified appellant as one of the robbers. She also made a positive in-court identification of appellant as one of the two men who robbed the drugstore on October 1, 1974.

Detective J. D. Foster showed Jackie the mug books and after she identified appellant on December 6, 1974, he procured a warrant for appellant’s arrest. The officers went to appellant’s house to serve the arrest warrant but they were unable to locate him. They made several trips to his home and his wife told them she did not know where he was. Acting on a tip Foster and Detective Lynch went to a house trailer in the Central Community of Elmore County on December 20, 1974, and arrested appellant. A female named Dorma was at the trailer with appellant when the officers arrived.

Immediately after placing appellant under arrest, the officers went to a pond behind the trailer and found a bag under some straw which contained several bottles. The officers carried the bag to Mr. Mallett and upon examining the bottles he found one bottle that had the number of his drugstore — AMO476-603—on it. Also on this bottle were the initials, “MCP,” which Mr. Mallett testified denoted his drugstore— Mallett’s Coliseum Pharmacy. This bottle was introduced into evidence.

Following the presentation of the above evidence the State rested and appellant moved to exclude the State’s evidence on the ground the State had failed to prove a prima facie case. This motion was overruled and denied.

As above stated appellant did not testify. The crux of his defense was an alibi. A Mrs. Laura Faye Miller and her eleven-year-old son testified they were with appellant from 5:30 p. m. to 10:00 p. m. on the night of October 1, 1974, thus making it impossible for him to have committed the robbery at 8:00 p. m. on that date.

Mrs. Miller further testified that she was married to a railroad man and that he was out of town on October 1, 1974. That she was a good friend of appellant though she had never met his wife. She stated appellant called her from a store on the Mobile road to come pick him up. She carried her two children to the home of a baby-sitter and picked up appellant at 5:30 p. m. That they rode around for a while and went to the Downtown Club and other places and then she picked up her children and they all went to her home. That at 10:00 p. m., she drove appellant to a truck stop on the Southern Bypass where he got in a car with a girl named Dorma. That the last time she saw appellant was early in December, 1974, and she did not know the officers were looking for him.

Alibi testimony, like all other conflicting evidence in a criminal prosecution, is an issue to be determined by the jury. The jury resolved this issue against appellant. Brown v. State, 229 Ala. 58, 155 So. 358; Gillis v. State, 242 Ala. 550, 7 So.2d 563; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613.

In Willcutt v. State, 284 Ala. 547, 226 So.2d 328, 330, the Supreme Court said:

“The scintilla rule does not apply in criminal cases. There must be substantial evidence tending to prove all the elements of the charge. Ex parte Grimmett, 228 Ala. 1, 152 So. 263. The burden is on the State to prove beyond a reasonable doubt that the crime has been committed and that the defendant was the person who committed it. Jarrell v. State, 251 Ala. 50, 36 So.2d 336. The weight of the evidence, the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone. Byrd v. State, 213 Ala. 333, 104 So. 830.
“We cannot say in the instant case that there was not enough evidence to allow the jury to draw the inference that the defendant was the person who committed this robbery. The defendant presented a strong case in support of his alibi. The testimony of his witnesses was in direct conflict with the testimony of the State’s witness. Yet the State’s witness made a positive identification of defendant as the person who robbed and burned him. The State presented substantial evidence and the jury had before it an adequate basis for drawing inferences and conclusions against the defendant. It is for the jury, not the trial court or this court, to find the facts and to determine guilt or innocence. The State presented sufficient evidence upon which the jury could base its verdict.”

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Court held:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden-tification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, [18 L.Ed.2d 1199], and with decisions of other courts on the question of identification by photograph.”

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

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


text:
    Terry L. DAWSON v. STATE.
    3 Div. 435.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Jasper B. Roberts, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This appeal is from a conviction of robbery and a penitentiary sentence of twelve years.

Mrs. Carol Click testified that on August 30, 1975, while she was working at Diplomat Coiffures, she was robbed by a masked individual wielding a pistol and wearing rubber gloves. She said that he also robbed a customer of hers; that the robber used adhesive tape and towels to blindfold and cord to tie up the two victims; that he obtained a First Alabama Bank bag containing money and checks from the Coiffure shop and left. On the trial she positively identified defendant as the robber.

Without going into unnecessary details, we set forth the above summary of some of the evidence as sufficient to show that the jury was fully justified in finding defendant guilty. Defendant offered no evidence in his behalf.

The only insistence upon a reversal is based upon the action of the court in overruling defendant's motion to suppress the fruits of the search of defendant’s room at the Fleur de Lis across the highway from the Diplomat Inn in which the Diplomat Coiffures was located. The items were a toy pistol, rubber gloves, a mask, adhesive tape and a First Alabama Bank bag, which were identified by Mrs. Click as having been used by the robber. Only the adhesive tape was obtained the evening of the robbery; the other items were obtained the next morning on a search made under a warrant. Appellant does not question the sufficiency of a showing of probable cause for the issuance of the search warrant, but contends that the action of the officers the evening of the robbery and the search the following day were both in violation of defendant’s right of security against unreasonable searches and seizures, as guaranteed by U. S.Const. Amend. IV, in that the action the evening of the robbery constituted an unreasonable search and seizure that poisoned the fruit of the search made under the warrant the next day.

The issue between the parties seems to narrow to whether the action of the officers the evening of the robbery constituted an unreasonable search and seizure.

The parties agree that if defendant voluntarily consented to the entry of his room on the evening of the robbery, there was no violation of his constitutional rights. A person’s motel room is protected against unreasonable search and seizure of articles therein. The State contends that defendant voluntarily consented to an entry of his room on the afternoon of the robbery. Defendant-appellant contends that he did not, that although he did express permission for the officers to enter his room, such permission was exacted or extorted from him against his volition, by fraud. There is no disagreement as to the principle:

“In order to constitute a waiver it must be clearly shown that consent given to an otherwise illegal search was voluntary, that is, that it was free from coercion, duress, or fraud, and not given merely to avoid resistance. 79 C.J.S. Searches and Seizures § 62.”

The witnesses on the motion to suppress were Officers Hamilton and Li-taker; Mr. Charlie Marshall, desk clerk at the Fleur de Lis, and defendant.

According to the officers, the customer at the Diplomat Coiffures who was also robbed joined the officers at the Fleur de Lis in an interview with defendant. The customer was not able to identify defendant as the robber. At that time defendant was not dressed as the robber was dressed, and, of course, he did not have on a mask. Officer Hamilton testified that he asked defendant what he was doing in Montgomery and whether he had any identification on him and defendant replied that he did not. He asked defendant whether he had anything in his room to identify him. The defendant said that the desk clerk had told defendant that the officers needed a search warrant to search his room. Officer Hamilton said that he told defendant that they needed to find some identification to prove who he was and asked the defendant “Well, do you have any objection to us looking in your room for any identification ?” and he said, “I don’t have any objection; I don’t care if you see it.” Then defendant unlocked the door of the room and stopped near the door and the officers went by and looked in the room, at which time Officer Litaker noticed an open paper bag with a roll of adhesive tape in it, and said, “Look at this, Charlie,” at which time defendant bolted from the room, and the officers gave him chase for a considerable distance. No officer had arrested defendant at the time. They made it plain to him that they were merely investigating and that they would like for him to be identified.

The desk clerk testified that on the evening of the robbery a detective came to him and asked him as to the identity of the occupants of several rooms, including the room occupied by defendant. He gave the officer the names of some of the people, but he was unable at the time to tell him some of the others. After the officer left, defendant came to him and asked, “What was the trouble.” The witness noted the effort of the customer in the Diplomat Coiffures to identify defendant; the police used no force against defendant. After they talked with defendant about identification, defendant told them that they could look in his room. At one point defendant said, “I will take you over there.” The witness said, “and the next thing I knew was him running.” Appellant takes great comfort out of the following testimony of Mr. Marshall elicited by defendant on cross-examination:

“A. He said that if he asked him — This is what he said, ‘Do I have to have a search warrant to go in the room ?’ ‘Well, if we have to have a search warrant we will get one.’
“Q Meaning that if he insisted on a search warrant they would get one ?
“A Yes, sir.
“Q Then he said it was unnecessary, ‘You can go in my room’ ?
“A Yes, sir.”

Appellant takes the position that by the last quoted portion of the witness’ testimony it was shown that the officers made a misrepresentation to defendant of a material fact, to the effect that they could procure a valid search warrant, when as a matter of fact, according to appellant, there was no justification, by reason of a lack of probable cause, for the issuance of a search warrant. Appellant further contends that the quoted portion of the testimony of the witness Marshall was uncon-tradicted. Although it appears that neither officer was asked by either side categorically whether he made the statement quoted from Mr. Marshall’s testimony, their testimony as a whole furnishes a basis for a conflict in the evidence on the point. They were examined by both the State and defendant. They purported to testify in full as to the conversation among them and defendant, in the presence of Marshall, as to permission from defendant to enter defendant’s room. The testimony of neither contains in substance the quoted portion of Marshall’s testimony.

Even if it could be correctly said that the quoted portion from Marshall’s testimony was uncontradicted, we are unable to agree with appellant that it constituted such a misrepresentation of a material fact as to vitiate the consent given by defendant to an entry to his room. The statement, “If we have to have a search warrant we will get one,” may be subject to the inference that it carried the implication that they had sufficient factual information to make a showing of probable cause to warrant the issuance of a search warrant, but not necessarily so. There could as well have been the implication that if denied access to the room, it was their intention to attempt to obtain a search warrant. To construe it as subject to the implication only that they were assuring defendant of the certainty of the prompt issuance of a valid warrant by which they could enter the room is to restrict it unduly as evidence for the State or flex it unduly as evidence for defendant, or both.

It is to be noted also that in defendant’s testimony on the motion to suppress, it is not shown that he heard what Mr. Marshall says was stated to him by the officers, or one of the officers. If he did not hear it, he did not rely upon it, which is a requisite to actionable fraud. He did testify that Officer Hamilton said to him just before he walked over to his room, “We could go ahead and arrest you for investigation of the robbery.” According to defendant, it was this statement that caused him to conclude, “I don’t have any other choice.” Officer Hamilton was asked if he told defendant that he would place a charge against him, and he replied, “No, sir.”

That express consent was given by defendant for the officers to enter his room is without dispute and without a possible inference to the contrary. The evidence perhaps permits an inference that his consent was not voluntary, that is, that it was induced by a misrepresentation, but such an inference is not necessary, and the reasonableness vel non of such an inference was for the trial court. We can well see that the trial court justly concluded that defendant would have preferred that the officers not enter his room but that he thought that the better way for him out of his predicament at the time was for him to allow the officers to enter the room, in the probable belief on his part that they would see no incriminating evidence in his room, that they would not make a search thereof without a warrant, and that upon such a view of the room at the time, he for the time being would be let alone and given enough time to dispose of the evidence against him. It was an extraordinary fortuity, the observance of tape with hair on it in an open bag, which he could not readily have anticipated, that foiled his plans. That the officers after observing the telltale tape with hair on it did not make a search of the room without a warrant, even after defendant had fled, is indicative of the probity of the officers as to their dealing with defendant on a matter involving his constitutional rights that is incon-sonant with any claimed coercion or fraud on their part.

The trial court did not err in admitting in evidence the items by which the uncon-tradicted evidence shows defendant committed the robbery charged. We have searched the record for any and all error prejudicial to defendant and have found none. The judgment 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.

All the Judges concur, except CATES, P. J., who was not sitting.


author: LEIGH M. CLARK, Supernumerary Circuit Judge. LEIGH M. CLARK, Supernumerary Circuit Judge.

text:
    Herman DANIELS v. STATE.
    4 Div. 426.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Rehearing Denied June 15, 1976.
    John B. Crawley, Troy, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

The only question presented by appellant relates to the fact that he, tried, convicted, and sentenced for a felony charged in an indictment, was never given a preliminary hearing.

Defendant was arrested on May 29, 1975, on a warrant issued the same day by the clerk of the Inferior Court of Pike County. The next day he made bond and was released from custody. He was indicted for the alleged offense on June 26, 1975. He appeared for arraignment on July 8, without counsel, and asked for a continuance, which was granted, to July. 25 to employ counsel; another continuance was granted; on August 11, he appeared with his retained counsel and pleaded not guilty. On August 14, he filed a Motion to Dismiss, which was heard and denied on August 18. On September 9, he was tried and convicted.

The Motion to Dismiss alleges that prior to indictment “the Inferior Court of Pike County did not hold a preliminary hearing as required by Title 15, Section 133, Code of Alabama. The defendant did not waive the holding of said preliminary hearing.” The motion further alleges that the failure to conduct a preliminary hearing was prejudicial to the defendant’s proper preparation of the case for trial and violated his right to due process of law. Testimony was taken on the hearing of the motion, which showed that defendant never demanded a preliminary hearing but that he never expressly waived a preliminary hearing. Appellant insists that the denial of defendant’s Motion to Dismiss was erroneous and that “defendant’s sentence should be reversed and the case rendered with an order of this Court discharging defendant from further proceeding against him.”

Code of Alabama 1940, Title 15, provides :

“§ 133. The magistrate before whom any person is brought, charged with a public offense, must, as soon as may be, examine the complainant and the witnesses for the prosecution on oath, in the presence of the defendant; and after the testimony for the prosecution is heard, the witnesses for the defendant must be sworn and examined.”
“§ 139. If upon the whole evidence it appears to the magistrate that no offense has been committed, or that there is no probable cause for charging the defendant therewith, he must be discharged.”
“§ 140. If it appears that an offense has been committed, and that there is probable cause to believe that the defendant is guilty thereof, he must be discharged, if the offense is bailable, upon giving sufficient bail, but if sufficient bail is not given, or if the offense is not bailable, he must be committed to jail by an order in writing.”

In Queor v. State, 278 Ala. 10, 174 So.2d 687 (1965), it was stated:

“Point is made that appellant had no preliminary hearing. As to this, the record is silent. But even if there was no preliminary hearing, such fact would have no bearing on the validity of the indictment and subsequent proceedings incident thereto, i. e., the arraignment and trial. See: Mills v. State, 277 Ala. 455, 171 So.2d 844, 845; Aaron v. State, 271 Ala. 70, 122 So.2d 360; Green v. Bomar, 6 Cir., 329 F.2d 796; Latham v. Crouse, 10 Cir., 320 F.2d 120. As said in Green v. Bomar: ‘Assuming the appellant was not given a preliminary hearing, his constitutional rights were not violated. This does not constitute a denial of due process of law. . . .’”

Although the quotation from Queor was not necessary to a decision in that case, Mr. Justice Harwood, after obvious exhaustive study of the subject, spoke for the court as it held that where defendant had been indicted by a grand jury, there was no violation of any constitutional right to a preliminary hearing in the failure of the magistrate, or other judicial authority, to afford him a preliminary hearing. Ex Parte Campbell, 278 Ala. 114, 176 So.2d 242; Ex Parte Flanigan, 278 Ala. 432, 178 So.2d 825, Aldridge v. State, 278 Ala. 470, 179 So.2d 51. To the same effect are Manning v. State, 43 Ala.App. 182, 185 So.2d 145; Coleman v. State, 44 Ala.App. 429, 211 So.2d 917, cert. denied 282 Ala. 725, 211 So.2d 927; Grace v. State, 44 Ala.App. 682, 220 So.2d 259; Patterson v. State, 53 Ala.App. 567, 302 So.2d 540. In Grace we find:

“The constitutional rights of an accused are not violated in not giving him a preliminary hearing.”

In Patterson, it was stated:

“Quite frankly, in this instance, under these facts, we cannot think of any other rights of the defendant that are violated by a preliminary hearing not being held. See Braden v. State, 45 Ala.App. 186, 227 So.2d 816.”

The right of a defendant to a preliminary hearing in a felony case is with reference only to his status at the time. He is then in custody or under bond. He has the right to a reasonably prompt hearing. The purpose thereof is to afford him an opportunity to test the validity of his confinement, or of his subjection to bond, by a judicial determination of the question of probable cause, which, if favorable to him would entitle him to discharge from the particular proceeding, not absolution, however, from the alleged crime. It so happens that at such a preliminary hearing a defendant obtains some information, and sometimes tremendously valuable information, as to evidence that is likely to be presented against him on the trial of his case. This, however, is merely a legitimate by-product of the process that is not embraced within the policy providing for it. A preliminary hearing is not a prerequisite to a valid indictment. The committing magistrate, or other judicial officer conducting a preliminary hearing, and the grand jury act independently of each other. Even if the judicial officer conducting the preliminary hearing finds there is no probable cause and discharges defendant, the grand jury may theretofore or thereafter lawfully find probable cause and return an indictment as to the same alleged crime. Neither a preliminary hearing nor a failure to conduct a preliminary hearing impairs an indictment; nor does either substantially affect the course of a prosecution based upon an indictment.

The trial court was not in error in denying defendant’s Motion to Dismiss, and we find no error in the record prejudicial to appellant. The judgment appealed from 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.

ON REHEARING

LEIGH M. CLARK, Supernumerary Circuit Judge.

Impressed by the obvious sincerity of appellant’s contention, on application for rehearing, that our opinion herein is in conflict with State v. Bush, 12 Ala.App. 309, 68 So. 492, and Ex parte Simpson, 3 Ala. App. 222, 57 So. 518, we reexamine said cases.

In Bush, a justice of the peace issued a warrant commanding an officer to bring Bush before the circuit court. The justice of the peace had no such authority. The court on appeal from a denial of habeas corpus held the warrant absolutely void and ordered petitioner discharged — from the particular invalid proceeding. There is nothing to indicate that the prosecution was held to be precluded from instituting a valid proceeding against defendant for the same offense.

In Ex parte Simpson, the county court, acting in its capacity as magistrate by whom a warrant of arrest for a felony had been issued and to whom it was returned, had not conducted a preliminary hearing. The proceeding was still pending in the county court when the grand jury investigated the matter and found no bill, but recommended that the matter be referred to the next grand jury for investigation, and the solicitor obtained an order of the city court (then possessing the jurisdiction of a circuit court), directing that defendant “be held * * * to answer any indictment by the next grand jury.” It was held that the recommendation of the grand jury, as distinguished from an indictment, gave the city court no jurisdiction over defendant. It was held that the county court still had jurisdiction for the purpose of conducting a preliminary hearing. In Ex parte Simpson, it was stated:

“The mere recommendation by a grand jury to a trial court can certainly confer upon such court no jurisdiction to do anything or make any order in a case over which it has no jurisdiction.”

In the opinion it was also stated:

“Grand juries, in cases like the present, can confer jurisdiction upon a court by returning an indictment, and in no other way.”

In Bush, supra, and m Ex parte Simpson, supra, it was definitely held that defendant was entitled to a preliminary hearing in a proceeding pending before a magistrate, but a preliminary hearing is not a prerequisite to an indictment, and after a grand jury indicts, there is then no occasion for a preliminary hearing.

The application for rehearing is overruled.

APPLICATION OVERRULED; OPINION EXTENDED.

All the Judges concur.


text:
    Howard Lester HATCHET v. STATE.
    6 Div. 8.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.

      George M. Van Tassel, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery, and the jury fixed his punishment at imprisonment in the penitentiary for a term of 12 years. Prior to arraignment the Court determined that appellant was indigent and appointed counsel to represent him. He pleaded not guilty. After conviction and sentence he gave notice of appeal and was furnished a free transcript. This Court appointed counsel to represent appellant on appeal..

At the time counsel was appointed to represent him at trial appellant was 17 years of age, and he made application to be treated as a Youthful Offender. His application was referred to a probation officer to conduct an investigation and file his report. The probation report revealed that appellant had four felony convictions in Walker County and one felony conviction in Jefferson County. His application for Youthful Offender status was denied.

Appellant attacked the sufficiency of the indictment by a motion to dismiss. The proper mode of reaching defects in an indictment is by demurrer and not by a motion to quash or dismiss. Duncan v. State, 278 Ala. 145, 176 So.2d 840; Flippo v. State, 49 Ala.App. 138, 269 So.2d 155.

The indictment in this case was not subject to demurrer. It was in Code form. Harris v. State, 44 Ala.App. 449, 212 So.2d 695.

The evidence for the State is not disputed. Appellant did not testify or offer any evidence in his behalf.

Mrs. Frances Elizabeth Densmore testified that on October 4, 1974, she owned and operated a grocery store located at 4100 North 29th Street in Birmingham, Jefferson County, Alabama. She stated that around 11:00 a. m. on that date two black males entered the store and robbed her of $900.00. In the store at the time of the robbery were her mother and an elderly gentleman who was a customer. She further testified that one of the men held a pistol on her mother and told her to get down on the floor. Her mother was old and was not able to get on the floor without help. She went to her mother and helped her to the floor. The man with the pistol opened the large cash register and took all the money from it. The other robber, who was the smaller of the two, went to the small cash register and took all the money from this register. She could not tell whether the small man was armed or not. She made a positive in-court identification of appellant as one of the robbers who got the money from the small cash register. Mrs. Densmore stated that appellant and the other robber came in her store the day before the robbery and just looked around the store. She said when appellant got the money from the cash register, he took the currency and rubbed his fingerprints off the register.

On cross-examination Mrs. Densmore stated that appellant was wearing dark • clothes and a dark hat. That the man with the pistol was about six feet tall and had a heavy beard. She stated that it took about five minutes for these men to complete the robbery and the man with the pistol made her, her mother and the customer get on the floor during the robbery. She stayed on the floor a few minutes after the robbers left the store and then she called the Police Department. She further testified that she got a good look at the men for five minutes during the robbery.

Mrs. Bessie Slaughter, the mother of Mrs. Densmore, testified that she was present in her daughter’s store when the robbery occurred; that she was sitting behind the counter when the men came in the store; that one of the robbers pointed a pistol in her face and said, “Lie down, old woman,” and she told him, “I can’t lie down. I can’t get up.” The man with the pistol said, “Don’t make me kill you, old woman, lie down.” Her daughter came to her and said, “Mother, don’t make him kill you, don’t make him kill you,” and helped her to the floor. While she was on the floor, the man held a gun on her. She made an in-court identification of appellant as one of the robbers. At the conclusion of her testimony, the State rested. Appellant offered a motion to suppress the State’s evidence.

On the motion to suppress appellant called Detective Paul Thomas Hurst who testified that he participated in the investigation of the robbery on October 4, 1974. He seated that acting on information received in a telephone call from Mrs. Dens-more he went to 2422 38th Avenue North. He saw appellant enter the house and arrested appellant and advised him he was a suspect in a robbery. He was carried to the City Jail and was later placed in a lineup. He testified as to the description of the men in the lineup as to name, age, height, dress and other characteristics. This description was as close to the description of the suspects as possible. The appellant was read his rights from a “Miranda” card. He further testified that Mrs. Densmore viewed the lineup and identified appellant as one of the robbers. Following the lineup appellant was placed under arrest for the robbery of Mrs. Dens-more’s store on October 4, 1974. He further testified that some photographs of appellant were taken, but he stated that the identification of appellant was not made from any pictures. He stated that he conducted only one lineup. He further testified that some photographs were shown to Mrs. Densmore but appellant was not in any of the pictures shown the victim of the robbery.

Mrs. Densmore testified on the motion to suppress and she said she viewed two lineups but that appellant was not in the first lineup. She stated that he was in the second lineup and she recognized him at the moment she saw him.

There was a conflict in the testimonies of appellant and the co-defendant as to what occurred relative to the lineups. Appellant testified that he was placed in two lineups and that he saw Mrs. Densmore at one of them. The co-defendant testified that he was placed in three lineups and that appellant was in all three of them.

Appellant’s motion to suppress was overruled. He made a motion to exclude the State’s evidence on the ground the State failed to make out a prima facie case. This motion too was overruled and denied.

Robbery is the felonious taking of goods or money from the person of another, or in his presence, against his will by violence or by putting him in fear, and such violence must precede or accompany the stealing. Tunstill v. State, 33 Ala.App. 460, 34 So.2d 857; Hardis v. State, 28 Ala.App. 524, 189 So. 216.

If an in-court identification is established by clear and convincing evidence based upon observations of the accused, then prior identification without counsel’s presence does not constitute reversible error. In this case the in-court identification stemmed from an independent origin, a view of appellant at close quarters in broad daylight for at least five minutes at the time he and the co-defendant, at gunpoint, took $900.00 from two cash registers. She observed them take the currency and rub their fingerprints from the registers. Moreover, she saw them in her store the day before and there can be no question of mis-identification. We hold that this is a clear case of an independent origin. Han-non v. State, 48 Ala.App. 613, 266 So.2d 825; Houston v. State, 49 Ala.App. 403, 272 So.2d 610.

An accused is not entitled to counsel at a pre-indictment lineup. Houston v. State, supra; Kirby v. Illinois, 406 U.S. 682,92 S.Ct. 1877, 32 L.Ed.2d 411.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court said:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

We have carefully searched the record and have found no reversible errors. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.