text:
    Eugene TYNER v. STATE.
    6 Div. 387.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied May 3, 1977.
    Arthur Parker of Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

This is an appeal from the judgment of the Circuit Court of Jefferson County denying appellant’s petition for a writ of habeas corpus. He was in the custody of the Sheriff of Jefferson County under a rendition warrant issued by Honorable George C. Wallace, Governor of Alabama, at the request of Honorable Dan Walker, Governor of Illinois.

The rendition warrant recites that appellant is charged by Transcript in the County of Cook in said state, with the crime of “convicted of murder — paroled and absconded from parole supervision.” The rendition warrant fails to comply with the requirements of Title 15, Section 52, Code of Alabama 1940. It is necessary for the issuance of a warrant in such cases that the accused is “lawfully charged by indictment or by information filed by a prosecuting officer and supported by affidavit as to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of crime in that state and has escaped from confinement or broken his parole.” Beasley v. State, 43 Ala.App. 247, 187 So.2d 806; Watson v. State, 30 Ala.App. 184, 2 So.2d 470; Smith v. State, 45 Ala.App. 125, 226 So.2d 668; Lofton v. State, 46 Ala.App. 229, 239 So.2d 901.

Title 15, Section 54, Code of Alabama 1940, requires that “the warrant must substantially recite the facts necessary to the validity of its issue.”

The return of the Sheriff recites:

“Comes now Melvin Bailey, as Sheriff of Jefferson County, Alabama, and in response to the writ issued herein, produces in court the body of the petitioner, Eugene Tyner, together with the cause of his detention, which is, to-wit:
“A warrant issued by the Governor of the State of Alabama dated August 31, 1976, directing the arrest of the said Eugene Tyner and his delivery to a duly authorized agent of the State of Illinois, on a charge of convicted murder — paroled and absconded from parole supervision, a copy of which Governor’s warrant is attached hereto and made a part hereof.
“Premises considered, Respondent Melvin Bailey, as Sheriff of Jefferson County, Alabama, moves the Court to dismiss the petition and writ issued herein and return the said Eugene Tyner to his custody as Sheriff of Jefferson County, Alabama, to be delivered to the agent of the State of Illinois.
“This the 29th day of October 1976.”

Title 15, Section 50, Code of Alabama 1940, provides as follows:

“Form of demand. — No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found or by an information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.” (Emphasis supplied.)

When the rendition warrant is defective, as here, and there are allied papers in evidence, we look to them to determine their legal sufficiency to justify the issuance of the rendition warrant. Aldio v. State, 44 Ala.App. 303, 208 So.2d 212; Lofton v. State, supra; Harris v. State, 257 Ala. 3, 60 So.2d 266.

In 1975 there was an abortive attempt to extradite appellant. At a habeas corpus hearing it was discovered that the parole violation warrant was not signed. Thereupon the hearing was halted on motion of the District Attorney so that he could return the papers to the Governor of Illinois to begin new proceedings to extradite appellant.

The first requisition from the Governor of Illinois was dated August 7, 1975, and the first rendition warrant issued by the Governor of Alabama was dated August 21, 1975. In the first requisition the Governor of Illinois designated one Lamont Knazze as the agent to receive and return appellant to the State of Illinois. When the requisition was returned to the Governor of Alabama the Governor of Illinois changed the name of the agent from Lamont Knazze to Fred Avendorph, but the date of the document remained unchanged. In other words, the Governor of Illinois merely substituted the name of Fred Avendorph for Lamont Knazze as the agent of the State of Illinois to receive and return appellant to that state. When the requisition was returned to Alabama Governor Wallace again issued the rendition warrant but this warrant was dated August 31, 1976. The same allied papers were attached to this warrant as were attached to the first requisition except the parole violation warrant was properly signed by the Director of the Department of Corrections of the State of Illinois, and the Supervisor of the Apprehension Unit, under the official seal of that Department.

The other allied papers attached to the requisition include the following:

1. A petition from the Warden of the Illinois State Penitentiary to the Governor of Illinois reciting that appellant was convicted of murder January 27, 1965 and was paroled on April 23, 1973 and violated his parole by fleeing the State of Illinois and finding refuge in Jefferson County, Alabama.

2. Affidavit of the Warden in Aid of Extradition reciting that appellant had been convicted of murder and sentenced for a term of not less than 20 years nor more than 35 years, in the Illinois State Penitentiary, and that he escaped while on parole as a fugitive from justice in the State of Illinois.

3. A copy of the Indictment charging appellant and another with murder committed in the State of Illinois on the fifteenth day of January, 1961.

4. A copy of the Judgment Entry showing that appellant was convicted of murder and sentenced to not less than 20 nor more than 35 years in the Illinois State Penitentiary.

5. An official Statement of Facts concerning the murder for which appellant was convicted made by the State’s Attorney for Cook County, Illinois.

6. A copy of the Parole Agreement signed by appellant in which he agreed to all the terms and conditions of a parole from the Illinois State Penitentiary.

7. A Waiver of Extradition signed by appellant in which he agreed that if he left the state, that he would voluntarily return with any agent of the Illinois State Penitentiary for the purpose of serving his unexpired sentence, all without a request from the Governor of Illinois.

8. A copy of the Order paroling appellant under date of March 6, 1973.

9. A request for Warrant signed by the Parole Officer of the Illinois State Penitentiary reciting that appellant had violated the terms and conditions of his parole and that his maximum sentence expires on October 22, 1979.

10. The Parole Violation Warrant as above mentioned.

The requisition from the Governor of Illinois recites:

“Whereas, it appears by the papers hereunto annexed, which I certify to be authentic and duly authenticated in accordance with the laws of this State, that Eugene Tyner stands charged with the crime of murder, convicted thereof, paroled and absconded from paroled supervision which I certify to be a crime under the laws of this State, committed in the County of Cook in this State and it having been represented to me that he was personally present in this State when committing this crime, has fled from the justice of this State and has taken refuge in the State of Alabama.”

This requisition was signed by the Governor of Illinois and attested by the Secretary of State, all under the Great Seal of the State of Illinois.

In 78 R.L.R. page 420 we find the following:

“The general rule seems to be well settled that either a convict who escapes, or one who is released from prison on parole and violates the .terms of his parole, may be extradited from another state in which he is found, as a fugitive from justice, on the ground that he is a convict whose time has not expired, and who, therefore, is ‘charged with crime’ under the United States Constitution.”

Cases supporting the above quotation are cited with approval by this Court in Johnson v. State, 45 Ala.App. 40, 222 So.2d 370.

We have carefully reviewed the request from the Governor of Illinois for extradition and the allied papers and find that the Governor of Alabama had before him necessary jurisdictional matters to issue his rendition warrant in conformity with the pronouncement made by the Supreme Court of Alabama in Harris v. State, 257 Ala. 3, 60 So.2d 266, wherein it is said:

“We think, then, the rule in Alabama should be consonant with the weight of authority to the effect that if the rendition warrant is defective but is accompanied by allied papers, either on the return to the writ of habeas corpus or introduced on the trial, which when taken together with the warrant, show that the executive of the asylum state did in fact have before him the necessary jurisdictional matters, viz., the documents required for the issuance of the warrant, then the prisoner is not illegally restrained. 89 A.L.R. [595], supra. This annotation reveals that many jurisdictions have adopted an even more liberal rule than is here urged. See Ross v. Crofutt, 84 Conn. 370, 80 A. 90; Kingsbury's Case, 106 Mass. 223; State ex rel. Burnett v. Flournoy, 136 La. 852, 67 So. 929; Ex parte Devine, 74 Miss. 715, 22 So. 3.”

Appellant contends that the requisition warrant and the allied papers were in some manner changed or altered and that the requisition warrant and the supporting papers were not re-dated and re-notarized and they were, therefore, illegal. It would have been more proper if the requisition warrant and the supporting papers had been re-dated and re-notarized but we hold that the failure to do so does not render them illegal.

For the reasons above stated we feel that the judgment of the Circuit Court of Jefferson County in denying appellant’s petition for writ of habeas corpus was correct and the judgment in this base should be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Eugene TYNER.
    SC 2583.
    Supreme Court of Alabama.
    June 3, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    Edward Thomas COCOMISE v. STATE.
    1 Div. 768.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.
    Edward Thomas Cocomise, pro se.

      William J. Baxley, Atty. Gen. and Joseph G. L. Marston III, Asst. Atty. Gen. for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant appeals from a denial of his petition for a writ of habeas corpus, filed in the circuit court of Mobile County. The denial of the petition was adjudicated on September 30,1976. Appellant was an indigent. He was represented at nisi prius by appointed counsel. Appellant appears pro se on appeal. No motion was filed by appellant asserting indigency on this appeal and requesting appointed counsel. The brief filed here by appellant pro se was well prepared and indicates its author had legal training.

It appears from the record on this appeal and other records of this court (of which we have taken judicial notice) that appellant was indicted in the circuit court of Mobile County for robbery and by consent of defendant a count was added thereto charging him with grand larceny. Defendant, so the judgment shows, entered a plea of guilty to this added count.

Since the added count undertook to amend the indictment, we will not consider it as an information filed pursuant to T. 15, Article 8, §§ 260-266, inclusive, p. 507, Recompiled Code 1958.

A count stating an offense not included in the indictment may not be added to the indictment even with the consent of the defendant. Such an added count has no legal efficacy. Twitty v. State, 50 Ala.App. 246, 278 So.2d 247; Rickard v. State, 44 Ala.App. 281, 207 So.2d 422; Crews v. State, 40 Ala.App. 306, 112 So.2d 805(5); Alabama Digest, Vol. 12, Indictment and Information, 191(9). T. 15, § 253, Recompiled 1958, does not authorize substantive amendments.

It is to be noted that the count added to the indictment was not a substantive departure or variance from the indictment. It was already embraced in the indictment charging the defendant with robbery. The added count was just a repetition of the embraced charge of grand larceny. This added count was referable to the charge of grand larceny in the robbery count. The plea of guilty to the added count was likewise referable to the existing accusation of larceny. Defendant suffered no injury by pleading guilty as he did. Rule 45, Alabama Rule of Appellate Procedure. The effect of what he did was to plead guilty to larceny included in the robbery count and unnecessarily duplicated in the added count.

We note in conclusion that defendant appealed the original judgment of conviction. The judgment of conviction was affirmed by this court without an opinion. Cocomise v. State, Court of Criminal Appeals Ms., 1 Div. 503, October, 1974.

The judgment of the court denying appellant’s petition for a writ of habeas corpus is affirmed.

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

AFFIRMED.

All the judges concur.


author: HARRIS, Judge.

text:
    Donnie BUTTS v. STATE.
    4 Div. 528.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.

      Scott Q. Kirkland, Alton & Leavell, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for the possession of marijuana. At arraignment, with counsel present, he pleaded not guilty. When his case was called for trial appellant and his counsel made known to the Court that appellant desired to withdraw his not guilty plea and plead guilty to the charge laid in the indictment. The Court accepted the guilty plea and sentenced appellant to four years imprisonment in the penitentiary. His application for probation was denied.

No contention is made that appellant’s guilty plea was not knowingly, voluntarily and intelligently made and that he had competent counsel representing him at the time his guilty plea was accepted by the trial court. Sentence was imposed on March 9, 1976. Appellant did not question the legality of the indictment by demurrer prior to pleading guilty and he did not raise any constitutional issues with respect to the statute under which he was indicted.

Appellant filed a petition for writ of ha-beas corpus on October 27,1976, in which he made the following contentions:

“That he was convicted under a statute, to-wit Title 22, Section 258(47)(a) which is void for vagueness and overbroad and thus in violation of the 14th Amendment of the Constitution of the United States, in that it:
(a) mentions ‘any person who possesses’ a controlled substance, including marijuana, when speaking of a felony and mentions ‘any person who possesses any marijuana for his personal use only is guilty of a misdemeanor’ so that any person charged thereunder for ‘possession of marijuana’ would be incapable of knowing whether he is charged with possession for his own personal use or possession not for his own personal use, and thus said statute is unconstitutionally and imper-missibly vague.
(b) sweeps too broadly by failing to distinguish between possession which might or might not be for someone’s own personal use when speaking to the felony, thus enabling the conviction for a felony of a person who might have the marijuana for his own personal use, and thus the statute is overbroad and unconstitutional.
(c) lacks any adequate standard or criteria for determining whether possession is for personal use or not, and thus is void for vagueness and unconstitutional.
(d) has not been so construed or narrowed by the Alabama courts to save it from a determination of vagueness and overbreadth in violation of the 14th Amendment to the United States Constitution.”

Succinctly stated, appellant contends that the penalty provisions of the Alabama Uniform Controlled Substances Act, Title 22, Section 258(47), Code of Alabama 1940, violate both the Equal Protection Clause and the Due Process Clause of the Constitution of the United States as respects the possession of marihuana (marijuana). He claims that an indictment under this section is deficient and unconstitutional in that it fails to apprise appellant whether he is charged with a felony or a misdemeanor.

In the following cases this Court has held that an indictment charging possession of marihuana, a felony, embraces the lesser offense of possessing marihuana for personal use only, a misdemeanor. Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760; Powers v. State, 49 Ala.App. 690, 275 So.2d 369. Haynes v. State, 54 Ala.App. 714, 312 So.2d 406; Thomas v. State, Ala.Cr.App., 342 So.2d 405, certiorari denied, Ala., 342 So.2d 407.

The indictment to which appellant pleaded guilty reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment, Donnie Butts, whose name is to the Grand Jury otherwise unknown, did have in his possession marijuana, contrary to law, against the peace and dignity of the State of Alabama.”

The indictment in the Thomas case, supra, is identical with the indictment in the Butts case. In Thomas this Court said:

“Examining appellant’s contention that the indictment failed to apprise him as to whether he is charged with a misdemean- or or a felony, our courts have held that the misdemeanor offense of possession of marijuana for personal use only is a lesser included offense under a felony indictment charging possession of marijuana. (Citing Van Nostrand and Powers, supra). Thus, the indictment apprised appellant that he was charged with possession of marijuana, a felony, which included the misdemeanor charge of possession of marijuana for personal use only. We hold therefore that the indictment is sufficient and that the constitutional necessity of clearly informing an accused as to the nature of the charge against him is satisfied by the indictment returned against appellant. Alabama Constitution of 1901, Article 1, Section 6.”

In Hanes v. State, 56 Ala.App. 711, 325 So.2d 219, certiorari denied, 295 Ala. 404, 325 So.2d 221, this Court held:

“A plea of guilty purges the record of error unless the appellant proves clearly that his plea of guilty was extorted by duress, fraud, intimidation or deception.”

The judgment of the trial court in denying appellant’s discharge and remanding him to the custody of the proper authorities is affirmed.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Donnie BUTTS.
    SC 2597.
    Supreme Court of Alabama.
    June 10, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    Richard Louis SMITH v. STATE.
    6 Div. 265.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    James S. Garrett for Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at fifteen years in the penitentiary. Appellant was formally arraigned on August 15, 1975, in the presence of his Court-appointed lawyer, and pleaded not guilty. His case was set for trial on September 9, 1975, and was passed from time to time to May 10, 1976, for trial. After sentence was imposed notice of appeal was given but there was no request that the sentence be suspended pending appeal. He was furnished a free transcript and his trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment is as follows:

“The grand jury of said county charge that, before the finding of this indictment, RICHARD LOUIS SMITH alias LEWIS RICHARD SMITH alias LARRY JOE WILLIAMS, whose name is to the Grand Jury otherwise unknown, feloni-ously took ONE HUNDRED FIFTEEN DOLLARS of the lawful currency of the United States of America, a more particular description and denomination of which is otherwise unknown to the Grand Jury, one man’s watch of the value of THREE THOUSAND DOLLARS, one two door Buick automobile of the value of ONE THOUSAND TWO HUNDRED DOLLARS, and one silver service of the value of FOUR THOUSAND DOLLARS, the personal property of Melvin Bruce Sullivan, from his person and against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

The evidence presented by the State made out a clearcut case of aggravated robbery. Appellant offered alibi evidence.

Between the hours of 8:00 and 8:30 on the night of May 28, 1975, the home of Dr. Melvin Bruce Sullivan, 4308 Corinth Drive, Mountain Brook, Jefferson County, Alabama, was burglarized by three white males armed with pistols. In the sitting or garden room at the time the men entered the house were Dr. Sullivan, his wife, mother, sister, brother-in-law, and one of his three daughters, Barbara. The bandits told them, “This is a holdup, get on the floor, face down, and if you aren’t good we are going to blow your heads off.” All of the persons in the garden room got on the floor on their stomachs and the bandits tied their hands behind them and tied their feet together with Dr. Sullivan’s neckties. The bandits asked if there was anyone else in the house and were told by Dr. Sullivan that his other two daughters were upstairs in their respective bedrooms. Two of the robbers went upstairs and, at gunpoint, forced the two girls to go to the room where the other members of the family were tied up. The bandits tied these two girls in the same manner as the others were tied.

The bandits then started ransacking the entire house. They removed the rings and watches from the arms and fingers of the helpless victims. They took Dr. Sullivan’s wallet containing $115.00 and his fishing license. They also took a silver service and a Buick automobile and other items of personal property.

According to the testimony of the victims, two of the bandits were masked. One had on a black curly wig and a purple piece of cloth that practically covered his face and left exposed a part of his nose and forehead. His eyes were not covered. The second bandit had a stocking over his head and face. None of the robbery victims saw the third robber because of the positions in which they were lying on the floor and bound.

Only one of the victims, Barbara, testified that she could identify appellant. She stated that she identified him by his eyes and voice at a lineup that was conducted two days after the robbery. She also made an in-court identification of appellant as one of the bandits.

All of the property taken in the robbery was subsequently recovered, identified by the respective owners and admitted into evidence. The Buick automobile was recovered subsequent to the robbery by another police officer and returned to the owner.

George Hannah testified that he lived at 210 Vetavia Street in Irondale, in Jefferson County, Alabama. He stated that he had lived at this address for eight years and that on May 27, 1975, appellant, Henry Mays and Frank Black came to his house and that Henry Mays was the only one of the trio that he personally knew. He said these men arrived at his house in a 1968 Dodge automobile which broke down at his house. He further testified that Mays returned to his home the next day, May 28, 1975, around 1:00 p.m. and he was driving a green Ford; that he ate lunch and returned home at 4:30 p.m. and appellant, Mays and Black were in his driveway working on the green Ford. He stated that between 7:30 and 8:00 p.m. this trio left in the green Ford and returned to his house around 11:00 p.m. that same night and they all came in his house carrying jewelry, silver, rings and watches. He said the three men made several trips to the green Ford and brought different items in his house. He further stated that he saw them with folding money.

Hannah further testified that he asked appellant, Mays and Black where they got all the items they brought in his home and their response was that “they said they hit a bargain somewhere.” Hannah stated he did not ask the men to leave his home that night because they were all armed, and he saw five pistols. He said the only people in his home on the night of the robbery besides the trio were his uncle, Lewis Clark, his niece and her two small children. He said that no one left his home that night except his uncle who left at about 1:00 a.m. to get some food. Clark did not return to Hannah’s home after leaving ostensibly to get food.

This witness further testified that the next morning a whole bunch of law officers came to his home and arrested all the occupants, except the children, and carried them to jail. The officers took the items of property that appellant, Mays and Black brought in his house the night of May 28, 1975. Hannah and his niece were subsequently released from jail and no charges were lodged against them. This witness said when he was released he told Sergeant Richard C. Watkins of the Mountain Brook Police Department that he would testify against appellant, Mays and Black.

Sergeant Richard C. Watkins testified that on May 28, 1975, he investigated the robbery which occurred that night at the Sullivan home in Mountain Brook and that following that investigation he had occasion to go to Hannah’s house at 210 Vetavia Street in Irondale, Alabama, shortly after daylight on May 29, 1975. He was armed with a search warrant issued by Judge E. C. Herron of Irondale.

On a voir dire hearing out of the presence and hearing of the jury Watkins testified that he made an affidavit before Judge E. C. Herron that he had received information from “a reliable informer who has given me information on at least two former occasions which was correct told me today that he was present at the above address (210 Vetavia Street) when these items were brought into the house by three white males.” Watkins stated that Judge Herron signed the search warrant in his presence. The trial judge held the search warrant was valid and denied the motion to suppress. Appellant’s counsel asked that the affidavit and search warrant be marked for identification as defendant’s Exhibit # 1 and defendant’s Exhibit # 2 and the Court Reporter complied with this request. These exhibits were not introduced into evidence by either the defense or the State and, thus, are not before us for review as to their legality vel non.

Before the jury Officer Watkins testified that he and the other officers entered the house at 210 Vetavia Street, Irondale, and found appellant, Mays and Black among the people inside the house. In the course of the search of the house they found the radio with Barbara Sullivan’s name on it, which was introduced as State’s Exhibit “D”. They also found the following items: a lady’s watch in the shirt pocket of Henry Mays which was introduced into evidence as State’s Exhibit “P” another lady’s watch in Mays’ pocket introduced into evidence as State’s Exhibit “M”; a man’s watch was found on a hutch or china cabinet and became State’s Exhibit “K”; a man’s watchband was found on Mays’ arm and was introduced into evidence as State’s Exhibit “O”; a lady’s ring was found in the pocket of Mays and introduced into evidence as State’s Exhibit “J”; State’s Exhibit “N” was a piece of silver found in this house and was introduced into evidence; State’s Exhibit “L” was a billfold found on top of the hutch with the initials MBS on it and on the inside of the billfold was a fishing license issued to “M. B. Sullivan”; and State’s Exhibit “C” was a purple cloth found in an overnight bag on the kitchen table at the same address and it, too, was introduced into evidence.

Officer Watkins further testified that at 210 Vetavia Street was a green 1969 Ford automobile and an old Dodge car; that the officers searched the Ford automobile and found a black curly wig inside the car in plain view. In the trunk of the green Ford car the officers found 122 pieces of silver. The officers ascertained that the green Ford car belonged to Mays’ wife. The wig and the pieces of silver were introduced into evidence over appellant’s objections. The Court ruled that he did not have standing to question the search of the automobile that belonged to someone else and in which he did not have any interest whatsoever.

At the close of the State’s case appellant made a motion to exclude the evidence on the ground the State failed to prove the corpus delicti and moved to exclude all the property recovered pursuant to the search warrant. These motions were overruled and denied.

Appellant and two supporting witnesses testified that he was in Atlanta, Georgia, until approximately 3:00 p.m. on May 28, 1975, and that he did not arrive at the residence of George Hannah until about 10:00 p.m. that night and, therefore, he could not and did not take part in the robbery at the Sullivan home.

On rebuttal the State called Russell M. Cunningham, Jr., who testified that he lived at 3621 Country Club Road in Mountain Brook and that appellant and another man were at his home on May 28, 1975, at approximately 1:00 p.m.

Conflict in the testimony between defendant’s alibi and that of the State in a robbery prosecution presented a jury question. Paige v. State, 56 Ala.App. 121, 319 So.2d 740; Simms v. State, 56 Ala.App. 156, 320 So.2d 89.

The uncontradicted testimony in this case shows that appellant had no proprietary or possessory interest in the green Ford automobile from which articles were taken by the officers. It was undisputed that the Ford ear belonged to Mays’ wife. Therefore appellant had no standing to object to the search of this car. Cassady v. U. S., 5 Cir., 410 F.2d 379; Russell v. State, 47 Ala.App. 612, 259 So.2d 298.

We have carefully searched the record in this case and find no reversible error.

AFFIRMED.

All the Judges concur.


author: TYSON, Presiding Judge.

text:
    Warren HARRIS, Jr., alias, v. STATE.
    6 Div. 742.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.

      Robert C. Barnett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The appellant was charged in a two-count indictment with the grand larceny of, and buying, receiving, or concealing, $395.00, the personal property of John T. Bonasera. The jury found the appellant guilty of grand larceny, as charged, and fixed the value of the stolen property at $395.00. The trial court entered judgment in accordance with the verdict and set sentence at two years imprisonment in the penitentiary.

John T. Bonasera testified that on September 28, 1972, he had been working for ten years at Ousler’s Sandwich Shop in Birmingham, Alabama. A part of his duties was to make bank deposits, and on this date he had a blue bank bag containing $395.00 in cash and some checks totaling $508.00, and was walking toward a truck on the parking lot at 201 42nd Street, South, when he saw a black man crawling on his hands and knees. Just as Bonasera opened the door to the truck, the man shoved him against the side of the truck, grabbed his bank money bag, containing the deposit, then got up and ran. Bonasera began chasing him on foot for about two blocks. He stated that the man looked back several times and he got a good look at his face. He stated that the man got into an automobile, that Bonasera’s supervisor at the Sandwich Shop picked him up in a truck and they began to give chase. He stated that the man got in on the righthand side of the car at the end of the alley on 43rd Street, and that when they got within fifty feet of the car he wrote down the tag number. Bonasera described the car as a blue and white 1964 Pontiac with a Jefferson County tag, No. 1-16674. He stated that the automobile doubled back and almost hit the truck in which he was riding, that the vehicle was lost in traffic near 43rd and 3rd Avenue, South, in Birmingham. He stated that he gave a description of this individual to Sergeant Hill of the Birmingham Police Department and advised him that he had been headed for the Exchange Security Bank on 3rd Avenue, South, at the time of the incident.

On cross-examination Mr. Bonasera testified that Mrs. Christine Elmore was the owner of the Ousler’s Sandwich Shop, and that the proceeds belonged to her, though they were in his possession at the time the money bag was seized from his hand. He testified that while he wore glasses, his vision was 20-20, and that in the process of chasing the appellant on foot, he had a good look at the man’s face as he kept looking back every few feet while running.

Mr. Bonasera stated that he selected the appellant’s photograph from some sixteen photographs of individual blacks which were brought to him by Sergeant Hill, and that he did not view the appellant at a lineup, though he subsequently saw him at a preliminary hearing in Judge Gwin’s court. Bonasera made a positive in-court identification of the appellant and of the tag number as he wrote it down while giving chase in the pickup truck. He testified there were two other black men in the Pontiac automobile which picked up the appellant. He described the appellant as having an Afro hairdo and a mustache at the time of the incident.

Charles L. Daniels, Jr. testified that he was the Office Manager for Woods Chevrolet, located at 228 South 19th Street in Birmingham. He testified that his company maintained copies of the “G.M.A.C. Contract” when automobiles were purchased, and that on July 18, 1972, his company sold a 1964 blue and white four-door Pontiac Catalina sedan to Warren Harris, Jr., the appellant, who at that time resided at 1508 17th Street, Southwest, in Birmingham. He testified that his company had purchased the car on a trade-in from Mr. Willard G. Wynn, and that the salesman who sold the car to the appellant was Mr. Cruce. He testified that the license tag number at the time of the sale was 1-16674.

Glen Cruce testified that for twenty years he had been employed as a salesman at Woods Chevrolet in Birmingham. He testified that the buyer of the contract, dated July 18,1972, was Warren Harris, Jr., the appellant, that the automobile he purchased was a 1964 four-door Pontiac Catalina sedan with a Jefferson County license tag, No. 1-16674. Mr. Cruce testified that he typed this contract, that he remembered the appellant making the purchase, that it was a cash sale, and that the contract bore appellant’s signature.

Edmun K. Steedman testified that he was custodian of the records for tag registration in the Department of Revenue, Jefferson County, Alabama. He testified that the Alabama license tag for 1964, No. 1-16674, was originally registered in the name of W. G. Wynn of 1120 Columbiana Road, Birmingham, Alabama, and on July 21, 1972, was transferred to Woods Chevrolet Company. He testified that this tag was subsequently transferred to Warren Harris, Jr., of 1508 17th Street, Southwest, in Birmingham, and that the registration indicated this was for a 1964 Pontiac Catalina four-door sedan.

On cross-examination Mr. Steedman indicated that the transfer from Woods Chevrolet Company to the appellant on his office records was dated November 15, 1972.

Christine Elmore testified that she was the owner of Ousler’s Sandwich Company on September 28, 1972. She testified that shortly after 1:30 p. m., Mr. Bonasera left the building, and walked across the parking lot to take a deposit to the Exchange Security Bank. She said that there were about three others walking in the parking lot just prior to Mr. Bonasera’s going out there, and that she saw a black man shove Mr. Bonas-era against the side of the truck and grab the money bag, then start running. She stated that Mr. Bonasera started running after him, that she and the others followed on foot, that one of the drivers got into a truck, passed them, and picked up Mr. Bo-nasera, then gave chase to the blue and white Pontiac car, which subsequently got away from them in traffic. She said that Mr. Bonasera had run about one-half a block when he was picked up. She stated that there were three black men in the Pontiac when they doubled back and passed them, then got away in traffic. She stated that a Mr. Elgin Reeves was driving the truck when they attempted to pursue the car. Mrs. Elmore further stated that she could not positively identify the man who grabbed the money bag from Mr. Bonasera.

Gerald R. Hill testified that he was a sergeant with the Birmingham Police Department on September 28, 1972. He stated that he went to Ousler’s Sandwich Shop at 201 42nd Street, South, and talked with Mr. Bonasera and Mrs. Elmore. He stated that he was given a description of a black male by Mr. Bonasera, and that on October 3, 1972, he returned with sixteen black and white photographs of black males and placed them face up, five or six in a row, for Mr. Bonasera to check. He testified, that Mr. Bonasera had described his assailant as being a black male in his twenties and around six feet two inches tall, weighing approximately 173 pounds, that he was “slender built, medium complected, light mustache and semi-Afro hairdo.” Sergeant Hill stated that Bonasero also identified the 1964 Pontiac blue and white, four-door, with a Jefferson County license tag, No. 1-16674. He stated that without hesitation Mr. Bonasera selected the photograph of the appellant, Warren Harris, Jr. The several police photographs were placed in evidence. Sergeant Hill testified that they did not conduct a police lineup, but that Mr. Bonasera, upon examination of the photographs, and also at the preliminary hearing in Judge Gwin’s Court, identified the appellant. Further, from the record (R. 85):

“Q. I will [ask] you whether or not Mr. Bonasera made the statement to you that the only time he saw this Defendant was when he was running away from him?
“A. Not that I recall.
“Q. You don’t recall him saying that?
“A. That he saw him running away from him, no. He told me he chased the man.
“Q. I will ask you whether or not you recall Mr. Bonasera saying the only time he saw this party that took his money was when he was running away from him, and he saw the back of his head and as he looked around at him.
“A. I don’t recall that. He told me he saw the man take his money, and he chased the man.
“Q. What you are telling us is that without hesitation he picked out Warren Harris out of those pictures; is that correct?
“A. I’m saying he went through those 16 pictures and said this is the man that took my money, yes, sir.
“Q. How long did it take him to do that?
“A. I don’t know. I guess he looked at the pictures five to eight minutes, I reckon.”

Sergeant Hill also stated on cross-examination that he saw the appellant, Warren Harris, Jr., driving the 1964 Pontiac sometime the month following the incident in question.

The appellant’s motion to exclude the State’s evidence was overruled.

Phillip Edward Crane testified that he owned Phil’s Barber Shop at 320 17th Street, North, between 3rd and 4th Avenues in Birmingham. He testified that he had known Warren Harris, Jr., just about all his life, and that on Thursday, September 28, 1972, the appellant had come by his shop that morning and gotten a haircut. He stated that he left the shop after making a telephone call sometime between 12:00 and 12:30. Crane stated that he gave the appellant a “low medium haircut,” and that the appellant was not wearing a mustache. Crane also stated that he had been dating the appellant’s sister for sometime, and that he had never known the appellant to wear an Afro wig. Crane also stated that he knew the appellant had purchased a 1964 Pontiac during the summer of 1972, but that sometime between Labor Day and the middle of October, the car was parked in front of the appellant’s home, and that the appellant was driving a 1966 or 1967 blue Ford.

On cross-examination Crane stated that he had been cutting the appellant’s hair for about five years, and that they were real good friends, having been reared together in Titusville. Crane further stated that he had been to appellant’s home numerous times as he dated his sister. Crane could not give any other date that he specifically recalled the appellant being in his barber shop, and that he had last gotten a haircut about three weeks prior to September 28. He also stated that they had gone to Carver High School together.

Carolyn Parham testified that she was employed by the R. L. Pope and Company which got out the City Directory, that prior to that time she had worked for the Department of Revenue for the State of Alabama. She testified that she had been going with the appellant, and in fact lived with him as husband and wife for about two years, though they were not actually married. She testified that in September, 1972, the appellant was living at 1508 17th Street, Southwest, with his mother, Katie Harris, and that she, too, had lived there with the appellant. She testified that the 1964 blue and white Pontiac which the appellant had purchased in July had transmission trouble around Labor Day, and that the appellant did not have it fixed until October, that during September the appellant was driving a 1966 Ford and worked at Wilson’s Service Station on Graymont. She testified that the Ford belonged to one Willie Witcher, and that it was navy blue.

On cross-examination Carolyn Parham testified she was presently under the care of Dr. Potts.

Phillip Crane was recalled and testified that on November 14,1968, while serving in the Armed Forces, he was convicted of robbery and sentenced to five years in the penitentiary, that he had also been convicted on August 23, 1966, for larceny and sentenced to fourteen months at Ft. Leavenworth, Kansas.

The appellant then in rebuttal recalled Mr. Steedman of the State Revenue Department and sought to place in evidence the owners of Jefferson County vehicles and describes them as follows: Tag No. 1-16674, issued to Warren Harris (transferred to him) for a 1964 Pontiac Catalina; Tag No. 1-16634 for a 1969 Pontiac Tempest; Tag No. 1-16677, a 1964 Pontiac automobile and Tag No. 1-16679, a 1963 Pontiac automobile.

After argument the trial court, other than allowing the vehicles to be identified as a 1969 Pontiac Tempest, a 1964 Pontiac Starehief, and a 1963 Pontiac Bonneville, sustained the State’s objection to any additional information with reference to these vehicles.

I

The appellant contends that the trial court erred to reversal by not allowing him to place in evidence the ownership and additional description of the several automobiles as rebuttal testimony. As heretofore noted, the appellant did not attempt to place these matters in evidence when the case was with him, but waited until after the State’s rebuttal to attempt to introduce this testimony. Mr. Justice Thomas, in Scott v. State, 246 Ala. 545, 21 So.2d 703, indicated:

“The time and manner of introducing and closing the evidence in a suit are necessarily within the judicial discretion of the presiding judge. So where a witness was allowed to be examined in a suit by a defendant after the plaintiff had closed his rebutting testimony, on the ground (as expressed by the court) that new facts had been disclosed, such decision held not revisable on error. Hutchins v. Childress & Baker, 4 Stew. & Port. 34; Gayle v. Bishop, 14 Ala. 552. The court may in its discretion decline to permit the defendant to introduce evidence after the plaintiff has closed his evidence in rebuttal. Borland v. Mayo, 8 Ala. 104.”

The late Judge W. J. Haralson, in writing for this Court in Green v. State, 51 Ala.App. 654, 288 So.2d 191, stated the rule in this manner:

“Admission of testimony in rebuttal is largely in the discretion of trial court. See numerous cases cited in Volume 6A, Alabama Digest, Key No. 683, et seq. This rule has been held to apply especially to testimony which properly should and could have been offered in chief. Authorities, supra."

We cannot say that the rulings referred to are error. It is within the trial court’s discretion to allow in rebuttal testimony which more properly should have been offered as part of the case in chief. Blackwell v. State, 264 Ala. 553, 88 So.2d 347; and Veith v. State, 48 Ala.App. 688, 267 So.2d 480. There was no attempt here to offer the evidence with reference to the description and ownership of the other vehicles until after the State had placed its rebuttal testimony before the jury. Such testimony as was here attempted by the appellant on rebuttal was based on conjecture and speculation and shed no light on the positive identification by Mr. Bonasera of the appellant. Moreover, there was here a full and searching cross-examination conducted by appellant’s counsel of both Mr. Bonasera and Sergeant Hill. Thus, no error is here shown. Burt v. State, 54 Ala.App. 1, 304 So.2d 243, cert. denied, 293 Ala. 749, 304 So.2d 246; Logan v. State, 291 Ala. 497, 282 So.2d 898.

We have carefully examined this record and find same to be free from error. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: PER CURIAM: BOWEN W. SIMMONS, Retired Circuit Judge.

text:
    Jimmy CAMERON v. STATE.
    3 Div. 614.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.
    Jimmy Cameron, pro se.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   PER CURIAM:

AFFIRMED, without opinion.

All the Judges concurred.

ON REHEARING

BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant was indicted for carnal knowledge against the order of nature. He was convicted and sentenced to ten years imprisonment. He appealed and the cause was affirmed by this court without an opinion on April 19, 1977.

It appears from the record that defendant, an indigent here and below, was represented at nisi prius by an appointed attorney who was diligent in representing him, but the jury was convinced beyond a reasonable doubt of his guilt. This attorney gave notice of appeal and procured and filed a free transcript covering about 175 pages. He also filed a petition (signed by the attorney) for appointment of counsel to represent appellant on this appeal.

The appointment was never made, we presume, because the defendant wrote a letter to the circuit clerk, wherein he directed:

“And I do not want Mr. B. F. Lovelace fileing (sic) my appeal! I’ll do it myself. I will appreciate your help and your answer soon.”

Now, on April 22, 1977, appellant has filed an instrument pro se which purports to be an application for a rehearing, which we will so treat, although it is not designated as such.

He contends that he was never advised that he would be tried in the State court. We know of no law which requires that defendant be advised. Petitioner contends:

“. . . that a resent (sic) Supreme Court Ruleing (sic) say (sic) that a disciplinary of and (sic) inmate cannot be brought to court and used against a (sic) inmate in a free world court.”

We presume that petitioner refers to his fellow convicts or prisoners being used against him. We know of no such law in Alabama.

Next, petitioner complains:

“That the State did have a copy of petitioner (sic) disciplinary in court, wavering (sic) it around in front of the Jury, and there was an argument concerning the confession right in front of the Jury (Transcrip (sic) page 130) Every Jury’s (sic) overheard every word that was said about the disciplinary (confession) and that alone give (sic) petitioner a (sic) unfair trial . .

We have examined the transcript, page 130, and find that the attorney for the State obtained permission of the court to approach the bench. Whereupon, a whispered conversation outside the presence and hearing of the jury occurred. There is nothing in the record that indicates the jury heard any part of the conversation. The record does not show the subject of the conversation.

Petitioner now requests that counsel be appointed to represent him; that he has no funds.

We decline. Appellant elected to represent himself on this appeal; we will not disturb this election. However, we have carefully searched the record for any error that was prejudicial and have found none.

We think this application for a rehearing is without merit. It is overruled and denied.

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

APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


text:
    Nathaniel YOUNG v. STATE.
    1 Div. 771.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied May 24, 1977.

      Peter J. Palughi, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary. Throughout the trial proceedings appellant was represented by court-appointed counsel and at arraignment he pleaded not guilty. He is in this court with a free transcript and trial counsel was appointed to represent him on appeal.

On February 28,1976, around 3:00 or 3:30 a. m., two black females, Diane Pettaway and the deceased, Annie Ruth Holcombe, were walking on Stone Street in the City and County of Mobile, Alabama, when a white 1968 model Ford automobile occupied by two men passed the women. One of the men in the car asked the women what was going on and the deceased asked the men to give them a ride to the Amvets Club. The man driving the car turned around and picked up the women. The women got in the back seat. The deceased got in the car first and Diane got in behind her. It was a four-door automobile and the women sat close to each other behind the passenger in the front seat. The passenger who was later identified as the appellant turned around and asked the girls in the back seat if they wanted a reefer, and Diane responded that they did not smoke. The driver kept driving and the passenger turned around to the girls and said something to them and at this time Diane got another look at the passenger’s face and a side view of his profile. It soon became obvious that the men were not going to carry the women to the Amvets Club and they told the driver to stop the car. The driver was meeting another car and said he would stop as soon as the other car passed. When the approaching car passed the driver did not stop and the girls opened the car door on the passenger’s side and jumped out of the moving car and started running. The man on the passenger’s side got out of the car and started chasing the deceased, Annie Ruth Holcombe. Diane ran to the corner of Chinquepin Street and knocked on the door, but no one came to the door. She looked back and saw that the man chasing the deceased was overtaking her. Diane heard one shot as she was running to the next house. The last house was vacant and Diane ran into a field and lay down until she heard the Ford leave. She stated the car had a loud muffler and she could tell when it left the scene. She also stated that the car had bucket seats and there was a white stick between the bucket seats. She asked the men what the stick was for and they said they had to use it to keep the hood of the car raised up.

After the white Ford left the scene, Diane went to the Amvets Club to get Annie Ruth Holcombe’s brother and she told him what had happened. Diane and the brother of the deceased went back to the scene and found a hat that Diane said looked like the one the male passenger was wearing at the time he turned around to talk to the two girls in the back seat of the car. When they got back to the scene, they could not find Annie Ruth Holcombe. Diane made a positive in-court identification of appellant as the man riding on the passenger’s side of the car before the girls jumped out of the car. Diane heard the shot but she did not see who fired the shot. Diane attended a lineup a few days later and identified appellant as the man who got out of the car and chased Annie Ruth. Appellant was the number six (6) man in the lineup.

Diane further testified that there were two other men in the lineup that she had seen previously but she did not know their names. Diane was subjected to a thorough and vigorous cross-examination but she was not shaken in her identification of appellant as the man who was chasing the deceased at the time she heard a shot and the last time she saw Annie Ruth alive. Diane did not tell the officers who conducted the lineup that there were two men in the line that she had previously known. She positively identified appellant and left.

Ms. Shirley Evans testified that she lived at 1364 Chinquepin, Apartment 2, on February 28, 1976. She said that around 3:30 to 4:00 on that morning she was in bed and she heard some noises and got up. She went to the kitchen and looked out the window and didn’t see anything and started back to her bedroom when she heard a shot. She went back to the kitchen window and saw a woman running and a man behind her, and she heard a shot. She heard a woman saying, “Don’t hit me again,” and the girl made this statement after she heard the shot. Later she heard another shot. She further testified that she observed the woman stop running and that is when she was shot. There was only one man present with this woman. She stated that a few minutes later someone in a small white Ford automobile drove up and she thought it was a 1968 Galaxie and that the right taillight was out. She said that after the man shot the woman she fell and he stood over her straddling. As soon as the white Ford approached the place where the woman was lying the man who had shot her picked her up and put her in the back seat of the Ford and they left the scene of the shooting. She further testified that she noticed that the car had a loud muffler. She did not know who the girl was, nor did she recognize the man that shot her.

Charles Benning, Sr., testified that around 4 o’clock on the morning of February 28, 1976, he was in the bathroom of his home located on Chinquepin Street and he looked out the bathroom window and saw a man and woman standing in the street. He heard a gunshot and the woman fell. He further testified that at this time a white 1968 Ford with a loud muffler came around the corner. The man who shot the woman put her in the back seat of the car and the car left the scene. He also testified that the taillight on the right rear of the Ford was out.

Another witness Ms. Venessa Ball testified that on the morning of February 28, around 4:00, she was in bed asleep; that she lived at 1303 Morgan Street, Apartment B, in the City of Mobile. She stated that she was awakened by a lady knocking on the window saying, “Help, I have been shot.” She got out of bed and got her brother and sister up and then her mother woke up and asked what was going on. She said the woman that was knocking on the window and hollering for help, that she had been shot, had her hands on the window and her hands were sliding down and she fell outside the window. She said she did not get a good look at her face but she knew she had on a black blouse. She further testified that Morgan Street was about a mile from Chinquepin and Titi Streets. After being convinced that the woman had been shot they called the Police Department.

Mrs. Lillie Bea Ball testified that she lived at 303, Apartment B, Morgan Street in the City of Mobile which was approximately one mile from Chinquepin and Titi Streets and that in her judgment it would take about ten minutes driving time to reach Morgan Street from Chinquepin and Titi. She said her daughter waked up and told her that there was a woman knocking at the window saying she had been shot and she was dying. She got up and saw the woman and called the Police Department. She was shown State’s Exhibits 9 and 10 which were photographs of the deceased woman and she identified these photographs as the woman who was knocking on her window. These photographs were admitted into evidence over objection of appellant. Mrs. Ball identified the deceased woman as being Annie Ruth Holcombe.

John Joseph Wynne testified that he worked for the Police Department of the City of Mobile and that in the early morning hours of February 28,1976, he was sent to Morgan Street to investigate a report that a person had been shot. He testified that when he arrived at the address on Morgan Street he observed a person lying on the ground just outside the window, that he pulled his car in the drive and put his headlights on the person and it was a black female in her twenties, in his best judgment. He stated that her pants and underclothing had been pulled down to her ankles and he thought off one leg. He testified that he was not sure about the top half of her clothing; that he observed what appeared to be a hole in her left chest that was a small hole.

Officer Wynne was shown State’s Exhibits 9 and 10 and stated that he recognized these photographs as being of the woman that he found outside the window on Morgan Street with a bullet hole in her left chest.

He stated that the woman was not dead when he arrived at the scene as she was moving a little. He stated that he summoned the ambulance and rode to the hospital in the ambulance with the woman but he thought that she was dead before the ambulance arrived. He further testified that there appeared to be powder burns in the area of the bullet hole in the woman’s left breast.

Officer Billy McGill of the Mobile Police Department testified that on February 28, 1976, at 4 o’clock in the morning he received a call to go to Morgan Street and that when he arrived there he saw a black female between 27 and 29 years of age; that he asked the people in the house to get him a blanket to put over her. He felt her pulse and her pulse was very weak. He said that he knew she was alive at that time but she was in extremis.

Officer McGill asked her who shot her and she tried to tell him but she couldn’t make a sound. He said the only thing that he could understand her to say was that she was dying.

Ike Clemons testified that he owned a 1968 four-door Ford Custom automobile. He identified State’s Exhibits 3, 4 and 5 as being photographs of his car. He said he knew one Ralph Creer and had seen Creer and appellant together four or five times. He stated that on the day in question he went to Ralph Creer’s house. This was on the night of February 27; that from Creer’s house he and Creer and one George Rem-bert got in his car and drove back to Clemons’ house. They sat around Clemons’ house and drank beer before he had to go to work; that Creer asked him if he could use his car and he told him he could use it, provided he brought it back at the time he got off work; that he got off work at 2:00 a. m. on February 28, but Creer did not bring his car back until between 10 and 11 o’clock the next morning. When he got his car back, he found a woman’s shoe in the back seat and he stated that Creer threw that shoe in a ditch. He further testified that there was a short in the right rear taillight and that when he would put a new light bulb in, it would burn for a few seconds and then go out. He stated that there was a stick that he kept in the car which was necessary to hold the hood up when he needed to look at the motor; that this white stick was kept between the bucket seats in his car. He stated that when he bought the car, it did not have bucket seats but he put bucket seats in the car. He further testified that he found a silver earring on the front floorboard of the car after Creer returned it and that he took it and threw it in the back seat of the car where it was later found by the police officers. He further testified that he had not seen Creer since he returned his car to him on February 28 and that he had not seen Rembert since the preliminary hearing that was had in this case.

Joe Connick testified that on February 28, 1976, he was a Detective Sergeant with the Mobile Police Department and that he arrested appellant on March 9, 1976. He said that he and his partner, Officer Bell, were investigating the death of Annie Ruth Holcombe, and in the course of their investigation they found George Rembert and they questioned him about the death of Annie Ruth Holcombe, and Rembert suggested to the officers that they locate appellant and talk to him and that Rembert carried the officers to the home of appellant. He further testified that when he arrested the appellant at home, he gave him the Miranda rights and warnings and that when they got to the Police Headquarters, appellant signed a consent form to be placed in a lineup. He was advised that he could have an atto’"iey present at the lineup but he signed a waiver stating that it was not necessary for an attorney to be present and to go forward with the lineup. This witness further testified that he had not seen Rembert since the preliminary hearing conducted in this case.

Dr. Earl Wert testified that he was a licensed medical doctor and was Coroner for Mobile County and that he had been practicing his profession since 1940. He further testified that during the time he had been Coroner he had performed autopsies on roughly 400 bodies a year. He identified State’s Exhibits 9 and 10 as being the woman on whom he performed an autopsy on the 28th day of February, 1976. He testified that he noticed a bullet hole in the left chest of the deceased and that this was made by a small caliber bullet that entered the left lung and went through the vertebra in the back. He stated that the cause of death was attributed to a gunshot wound in the left lung and vertebra with severe hemorrhage.

On cross-examination Dr. Wert stated that the bullet was lodged in the fracia which is a gristle-like material of the muscle and bone beneath the skin of the back and that it had penetrated the lung and the vertebra. He stated that in his opinion the victim had been shot from the side and not from the rear.

It is not clear from Dr. Wert’s testimony that he recovered the spent bullet from the body of the deceased though there is a strong inference from his testimony that he did so recover the bullet. However, if he did recover the bullet the record does not show to whom he gave the spent bullet.

When the State rested, appellant moved to exclude the State’s evidence on the ground that there was not sufficient evidence to submit the case to the jury on the question of guilt vel non of appellant. He further stated in his motion to exclude that the State’s main witness and only witness as to identification of appellant was in the back seat of the car and it was night and she did not get a clear view of the face of appellant and that her identification was very weak. The motion to exclude was overruled and denied by the trial court.

Appellant did not testify but he offered his mother as a witness in support of his alibi. She testified that she did not know what time her son left home on the afternoon or evening of the 27th of February, 1976, but she knew that he came home between 2:30 and 3:00. She did not see him when he came home but she heard him talking to the other children in the house. She stated that she was positive that it was between 2:30 and 3:00 when he came home and that she heard that this woman had been killed at 4:00 that morning, and she knew her son was not involved because he was in her home.

She said that the next time she saw her son was at 6 o’clock on the morning of February 28, when she awakened him.

We agree with appellant that the testimony of Diane Pettaway was extremely weak but the jury believed her testimony. The trial judge heard and observed her testify on the motion to suppress and on the trial in chief. When appellant filed his motion for a new trial, he made a strong argument on the weakness of her testimony. The trial judge felt that her testimony was strong enough to submit the case to the jury and that the verdict of the jury should not be disturbed.

The trial judge and the jury also heard the alibi testimony of appellant’s mother and decided that Pettaway’s testimony was much more credible.

We have held many times that in reviewing the refusal of a motion for a new trial this Court will indulge every presumption in favor of the correctness of the ruling of the trial court and a decision thereon rests largely within the discretion of the trial court. Clark v. State, 54 Ala.App. 217, 307 So.2d 28; Green v. State, 56 Ala.App. 229, 320 So.2d 742.

Conflicting testimony is for the jury and a verdict rendered thereon will not be disturbed on appeal. Waters v. State, 55 Ala.App. 646, 318 So.2d 342 Pugh v. State, 51 Ala.App. 164, 283 So.2d 616.

It is not within the province of this Court to pass judgment on the truthfulness or falsity of conflicting evidence. Snipes v. State, 50 Ala.App. 139, 277 So.2d 413.

Where there is legal evidence from which the jury can by fair inference find the accused guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Rider v. State, 56 Ala.App. 137, 319 So.2d 756; Simms v. State, 56 Ala.App. 156, 320 So.2d 89.

The totality of the circumstances surrounding the pretrial lineup was not so unduly suggestive as to render evidence of lineup and in-court identifications inadmissible. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Havard v. State, 50 Ala.App. 147, 277 So.2d 421.

In this case the mere fact that Diane Pettaway saw the faces of two men that she had seen some time in the past, and she did not know their names, and more importantly she did not tell the officers that she had previously seen these two men before, did not render the lineup identification so unduly suggestive as to violate any of appellant’s constitutional rights. She identified appellant in the lineup based upon the fact that she saw his face on two occasions while riding in the automobile with him. Her identification of appellant was prompt and unequivocal.

Appellant contends that the trial court committed reversible error in denying him a new trial on the ground of newly discovered evidence.

In Taylor v. State, 266 Ala. 618, 97 So.2d 802, the Supreme Court held:

“To establish his right to a new trial on the ground of newly discovered evidence the defendant must meet the following requirements: (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue.- and (5) that it is not merely cumulative or impeaching.”

At the hearing on the motion for a new trial appellant’s counsel made the following statement to the Court in the form of a showing as to Police Officer Sam McLarty:

“Officer McLarty informed me that at the time the case was tried — and it was not known to us, and I do not think it was really made available to the District Attorney, I am not sure- — they had located and found the murder weapon in this case and the murder weapon was a gun— hand gun, and that ballistics tests had been run on the gun and it had been identified as the gun that killed Annie Holcombe. The gun was found by an officer who was either suspended or is not on the force at this time — I am not sure (unintelligible), in a nightclub in the area or vicinity in which this crime occurred behind a juke box, and further with that had found a hat similar to the kind identified and described by the State’s witness.”

The record shows that appellant was found guilty on June 23, 1976, and the motion for a new trial was filed on July 15, 1976, and was continued from time to time until November 4, 1976, at which time the motion was overruled and denied.

It thus appears that appellant’s counsel had more than three months after appellant’s conviction to locate the death weapon and trace the chain of possession from the officer who allegedly found it to the ballistics expert who test-fired the weapon and made a comparison with the slug, if any, removed from the body of the deceased, and rendered his opinion that the slug from the body of the deceased was fired from that particular weapon. And, too, there was time to determine if the death weapon had any fingerprints pointing to the slayer. Absent any fingerprints of someone other than appellant there would have been no evidence that appellant did not fire the fatal shot and hide the weapon himself. All of this could have been adduced in the form of testimony on the hearing of the motion for a new trial and this was the time to have done so.

We agree with the trial judge that in the present state of the record the motion for a new trial was properly overruled.

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

The State’s evidence was sufficient to support the judgment of conviction and the ease is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Howard TATE v. STATE.
    2 Div. 191.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.

      William H. Traeger, III, Demopolis, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the offense of rape. Pursuant to the verdict and punishment fixed by the jury, the trial court entered judgment accordingly and sentenced the appellant to a term of fifty years imprisonment. The appellant was found to be indigent and counsel was appointed to represent him both at trial and on appeal.

On the night of Friday, September 3, 1976, Mrs. Ann Faulkenberry was traveling, with her sixteen month old son, from Montgomery to Toxey, Alabama. She was traveling on Highway 64 and passed through the town of Thomaston to arrive in Maren-go County a little past nine o’clock that night.

In traveling along Highway 64, right before she entered Thomaston, she noticed a gold or beige pickup truck. The truck passed her several times and she passed the truck several times. The truck ran Mrs. Faulkenberry off the road striking her automobile and damaging her left front fender.

After being struck by the pickup truck, she regained control of her automobile and returned to the highway where she stopped. Mrs. Faulkenberry testified that she got out of her car to talk to the occupants of the pickup truck for insurance purposes. The truck stopped right in front of her.

As she approached the truck a young man got out on the passenger’s side and another young man got out of the driver’s side with a rifle with a black telescope in his hand.

Upon seeing the rifle, Mrs. Faulken-berry attempted to return to her automobile. As she was getting in her car and trying to close the door, the young man without the rifle grabbed her arm and told her in the most crude and vulgar language that he wanted to have sexual intercourse with her. He then pulled her out of the car and dragged her across the highway where he threw her into a ditch and raped her. It is not necessary to recount the details of the physical act of rape. Suffice it to say that the testimony shows that it was accomplished not only by force but by brutality and was more than sufficient to satisfy the legal elements and requirements for the crime of rape.

After having ravished Mrs. Faulkenberry, her assailant dragged her over to a fence where the appellant had moved the car and the truck. Again, omitting the heinous details, the evidence is more than sufficient to show that Mrs. Faulkenberry was raped again. At trial, she identified the appellant as the second man to rape her. While the appellant defiled Mrs. Faulkenberry, his accomplice held his hand over the mouth of the small child to stifle his cries.

After the appellant and his companion had satisfied their lustful desires, they searched Mrs. Faulkenberry’s automobile. They took all the money she had and in addition stole a xerox copy of her typewritten resume. They questioned her about the various items they found in her automobile, threatened her, and shined a “short and red” flashlight in her face. The appellant and his accomplice siphoned almost all of the gas out of her automobile.

They then told her to get in her car and “drive normal”; that they would be behind her with a gun pointed at her head and she was not to stop. Mrs. Faulkenberry testified that she just kept driving and eventually stopped where she saw a light in a house.

She ran into the house and its occupants telephoned the sheriff of Choctaw County. She was taken to the emergency room in Butler, Alabama, that night and examined by Dr. Clark. Based on this examination Dr. Clark determined that there was a “rather heavy” deposit of sperm in the vagina of Mrs. Faulkenberry.

While at the hospital she was interviewed by Chief Deputy Bridges of the Marengo County Sheriffs Department. After Deputy Sheriff Bridges took her statement, she took him back to the location in Marengo County where she had been raped.

On Wednesday, five days after the crime, Mrs. Faulkenberry viewed two line-ups at the Marengo County Jail and positively identified the appellant as being one of her assailants. Mrs. Faulkenberry also identified her first assailant, Ralph Crear, in the first line-up. On that same day, Mrs. Faulkenberry identified the pickup truck that the appellant and his companion were-driving. This truck was selected from among a number of trucks without any assistance from any law enforcement officer. She had previously described the truck as being a fairly new truck with “wooden planks” on the back like a homemade cattle body.

Robert Wesley was the Chief of Police of Thomaston, Alabama. Two days after Mrs. Faulkenberry was raped, he observed a black Chevelle with a Wilcox County tag backing into the shadows of a store in Thomaston, Alabama. He followed the Chevelle after it pulled away from the store and then stopped it. As he got out of his car and began to approach the Chevelle, the vehicle took off at a high rate of speed. He observed that there were two occupants in the Chevelle although he could identify neither one.

A high speed chase ensued. When Chief Wesley got close enough to the Chevelle to stop it again, he encountered gunfire directed at him and coming from the vehicle. After the shots were fired, the Chevelle managed to elude Chief Wesley.

This same vehicle was found in Wilcox County late Sunday night on a dirt road. A Criminal Investigator for the State of Alabama, George H. Jones, examined the automobile for evidence and found thirteen SO-SO caliber rifle hulls and a long green hose. The hose had a strong odor of gasoline in it.

Investigator Jones continued his investigation the following day and Monday morning in “a continuing search” found two pickup trucks concealed in a wooded area. The two trucks were located in an area about two and one-half to three miles from the spot where the Chevelle was found. One of these vehicles was a white over gold 1975 Chevrolet pickup truck with a cattle bed on it. Three yearlings were in this truck. Jones noticed that the right front corner of this vehicle was damaged. He also found a lens cover for a telescopic rifle sight lying near the other truck.

Investigator Jones placed a stakeout on these two vehicles. Subsequently, two subjects approached the vehicles but ran when inadvertently alerted to the presence of law enforcement officers. The appellant was positively identified as one of these men. Dogs and helicopters were immediately called to aid in the capture of the two men. The following day, Tuesday, September 7, 1976, Ralph Crear and the appellant were arrested in a pasture some two and one-half miles from the scene of the stakeout.

The Sheriff of Marengo County, Billy Smith, also aided in the investigation and eventual apprehension of the appellant and his accomplice. While searching the interi- or of the gold pickup truck he found the resume of Mrs. Faulkenberry under the driver’s seat.

Sheriff Smith testified that he first saw Ralph Crear running across a dirt road carrying a rifle. Crear began shooting at the Sheriff and other law enforcement officers engaged in the search. Crear made his way down through a creek and was arrested only ten to fifteen yards from a little slough or pond. A rifle was found in this pond of water which Crear had come out of.

The appellant was arrested some thirty minutes after Crear was apprehended. Upon his arrest, a red flashlight was taken from the appellant.

A criminalist for the State of Alabama, Department of Toxicology and Criminal Investigation examined both the rifle recovered from the pond and the hulls found in the Chevelle. From his examination he was able to determine that the hulls were fired from that particular rifle to the exclusion of all other weapons.

An examination of the hose found in the Chevelle revealed that it smelled of gasoline. Scratches and markings on the hose were characteristic of a hose which had been used as a siphon. The lens cover found near the gold pickup truck physically fit the scope on the rifle.

The criminalist also removed some blue paint from the damaged area of the gold pickup truck. Paint from the victim’s automobile was also examined. The criminalist concluded that both paint samples were translucent blue paint of the same color.

At trial, the appellant subpoenaed Ralph Crear to testify in his behalf. However this witness refused to testify on the basis of his attorney’s advice and on the grounds that it would incriminate him.

Against the advice of counsel, the appellant took the witness stand and testified in his own behalf. He testified that the first time that he ever saw Mrs. Faulkenberry was on September 7, 1976, when she came to the Marengo County Jail to view him in a line-up. He denied any knowledge or participation in the rape.

The appellant further testified that he had never seen Ralph Crear before he was arrested for the rape charged against him. Crear took the witness stand and corroborated this point.

The appellant stated that on September 3, 1976, the day of the rape, he was in Jefferson County. He maintained that he did not arrive in Marengo County until the following Sunday morning. He stated that he hitchhiked from Jefferson County and was arrested while he was walking to his aunt’s home in Linden.

On rebuttal, the state produced Juanita Crear, the stepmother of Ralph Crear. She testified that she had seen the appellant at her home with Ralph on the third Saturday in August of 1976.

I

The first argument advanced by the appellant is that the trial court allowed into evidence facts relating to two subsequent crimes committed by the appellant. It is the contention of the appellant that the evidence as to the black Chevelle and its occupants shooting at the police chief in Thomaston (occurring two days after the rape) and the evidence of the two pickup trucks (occurring three days after the alleged rape) constituted totally irrelevant evidence and was highly prejudicial to the appellant. The appellant complains that in addition to being tried for rape, he was also tried for assault with intent to murder a police officer and cattle theft. There is no evidence before this court that the appellant is or has ever been charged or indicted with assault or cattle theft. There is absolutely no evidence in the record that the appellant was apprehended in the act of stealing cattle. The record does reveal the presence of cattle in the two pickup trucks but nothing further with regard to any charge or act of rustling.

It is a general rule of evidence that evidence of separate and distinct criminal acts other than the offense charged in the indictment is inadmissible. 6 Alabama Digest, Criminal Law, 369.1 et seq. However, there are well-recognized exceptions to this rule and one of paramount importance is the “identity exception”. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457, cert. denied, 292 Ala. 743, 294 So.2d 462 (1974).

“But this general rule is not to be followed blindly and evidence rejected on the sole ground that it does show the commission of another crime. If evidence is relevant and competent it should be admitted regardless of its incidental effect. Accordingly it is held that evidence of another crime is admissible where it tends to identify the accused.” Wilkins v. State, 29 Ala.App. 349, 197 So. 75 (1940).

We are not concerned with similar acts or transactions to show the commission of the charged crime. Indeed, proof of the subsequent acts would not show merely a tendency or disposition of the appellant to commit the crime with which he is charged. Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966).

Both subsequent incidents tended to show the flight of the appellant and his accomplice. Evidence of flight is admissible even though it is weak or inconclusive or if several days have passed since the commission of the crime. Pierce v. State, 51 Ala.App. 166, 283 So.2d 618 (1973).

Mrs. Faulkenberry testified that the appellant and Crear siphoned gas from her car. A length of garden hose was found in the trunk of the Chevelle. The hose smelled of gasoline and the scratches and markings on it indicated that it had been used to siphon gas.

Thirteen 30-30 caliber hulls were also found in the Chevelle. When Crear and the appellant were arrested, a rifle was found in that same general area. Although Crear had been seen with a rifle and had been shooting at law enforcement officers, no other firearm was found. Expert examination and testimony revealed that the hulls were fired from the rifle. Mrs. Faulk-enberry identified the rifle as being similar to and “looking like” the rifle she had seen the night of the rape. Therefore, the presence of the appellant in the Chevelle is relegated to a question for the jury. Certainly there is circumstantial evidence that he was in the Chevelle fleeing from Chief Wesley.

We now turn to the finding of the pickup trucks. Both trucks were found abandoned in the woods near Thomaston. Mrs. Faulk-enberry described the truck driven by the appellant and Crear as being gold in color with wooden planks on it like a cattle body.

One of the trucks found matched this description. Additionally, found inside this truck was the resume of Mrs. Faulkenberry which she testified the appellant and Crear had taken from her the night of the rape. Also found near this truck was a lens cover which physically fit the telescopic scope on the rifle previously discussed.

Finally, the appellant was positively identified as one of the two individuals who walked down the road toward the abandoned and concealed pickup trucks. He ran when he realized law enforcement officers were present. When apprehended, the appellant had in his possession a flashlight which Mrs. Faulkenberry testified was the same flashlight the appellant and Crear kept flashing in her face the night of the rape.

Any testimony tending reasonably to establish the probability or improbability of a fact in controversy is admissible. Holland v. State, 25 Ala.App. 147, 142 So. 112 (1932). The test of probative value or relevancy of a fact is whether it has any tendency to throw light upon the matter in issue even though such light may be weak and fall short of its intended demonstration. McCain v. State, 46 Ala.App. 627, 247 So.2d 383 (1971). Considering the evidence in this case and the issues as framed by that evidence, the one major fact in issue was the identity of Mrs. Faulkenberry’s attacker. That was the major issue in the case.

Facts which naturally lead the human mind to a conclusion connecting the defendant with the crime charged are always relevant; the law of evidence being the essence of common sense. Jones v. State, 18 Ala.App. 626, 93 So. 332 (1922). Here the testimony as to the subsequent actions of the appellant was properly admissible because it tended to reasonably establish the probability of a fact in controversy. Hunter v. State, 38 Ala.App. 351, 83 So.2d 737 (1956); see also Weems v. State, 236 Ala. 261, 182 So. 3 (1938) where in prosecution for rape, prosecutrix testified that group who raped her, including accused, took a white-handled knife and fifty cents from her, and deputy sheriff was allowed to testify that he found a white-han-died knife and fifty cents on one of the group other than accused. The testimony was properly admitted despite the fact that it revealed the commission of subsequent crimes by the accused.

II

The second argument of the appellant is that the trial court erred in refusing to allow the appellant to waive his right to counsel and conduct the remainder of the trial without counsel and by representing himself.

After three witnesses had testified for the state, the appellant stated to the court that he did not want to be represented by his court appointed attorney. The basis of the appellant’s demand appears to be that his attorney was “not representing certain facts,” was not “bringing out the issues”, and had not properly investigated his case.

A colloquy between the trial court and the appellant revealed that at the arraignment the appellant informed the court that he did not want to be represented by any attorney from Marengo County but wanted instead to be tried in Mobile. The trial court appointed an attorney to represent the appellant despite this. The appellant made no objection to this appointment until after the state had presented the testimony of three witnesses.

It affirmatively appears from this colloquy that the appellant did not want to represent himself but was dissatisfied with the performance of his court appointed attorney. Moreover the trial court stated that on arraignment, the appellant was given ample opportunity to obtain the attorney of his choice and furthermore that the appellant was not able to represent himself and that it would constitute an “injustice” to allow him to attempt such.

Any defendant has a constitutional right to conduct his own case without the aid of counsel. Article 1, Section 6, Constitution of 1901, Code of Alabama 1940; Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied, 294 Ala. 764, 318 So.2d 341 (1975). While an indigent defendant has an absolute right to counsel, he has no right to designate which attorney the court is to appoint. United States v. Sexton, 473 F.2d 512 (C.A. 5 1973). A defendant’s freedom of choice of counsel may not be manipulated to subvert the orderly procedure of court or to interfere with the fair administration of justice. Sexton, supra. Fisher v. State, Ala.App., 346 So.2d 4 (1977). The trial court found that the appellant’s court appointed attorney was a very able and capable lawyer who did everything he could to assure the appellant proper and adequate representation. We concur in that finding and hold that the trial court did not commit error in refusing' to discharge the trial counsel of the appellant.

Ill

The final argument of the appellant is that the line-up was so unnecessarily suggestive and so conducted as to result in a basic unfairness to the accused. It is claimed that because the appellant was four inches shorter than the other men in the line-up the line-up was suggestive.

Whether a line-up is so suggestive and illegal as to require exclusion of a witness’s in-court identification of the accused is to be determined from the totality of the surrounding circumstances. Jackson v. State, 56 Ala.App. 276, 321 So.2d 243 (1975). The circumstances here show a fair and nonsug-gestive line-up. The fact that there was some slight discrepancy in height does not make the line-up suggestive. Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976); McCay v. State, 51 Ala.App. 307, 285 So.2d 117, cert. denied, 291 Ala. 788, 285 So.2d 122 (1971). Contained in the record on appeal is a color photograph of the individuals in the line-up. We have carefully reviewed that picture together with the testimony in this case and find that the line-up was conducted according to proper constitutional safeguards and standards.

This court has conscientiously scrutinized the record on appeal as required by law. Finding no error, we are of the opinion that the judgment of the trial court is due to be and is hereby

AFFIRMED.

All Judges concur.


text:
    Lorenzo MARTIN v. STATE.
    3 Div. 642.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, a minor, was indicted for assault with intent to murder Randall Hall.

He applied for and was granted the benefits of Youthful Offender Treatment under the laws of Alabama.

Upon arraignment defendant entered a plea of not guilty and not guilty by reason of insanity. The trial court after hearing the evidence entered a judgment of guilt and sentenced defendant to thirteen months imprisonment.

Defendant offered considerable evidence of his mental instability all of which the court considered and decided that the evidence was insufficient to establish this plea of insanity, the burden being on defendant. Title 15, Section 422, Recompiled Code 1958. One question and answer indicating defendant knew right from wrong is as follows:

“Q. Do you know it’s wrong to take a gun and shoot someone?
“A. Yes, sir.”

The trial judge, sitting without aid of a jury, heard the witness, observed his demeanor on the stand, weighed his mental reflexes to questions, and was in position to judge his mental operations, whereas this court does not have such advantages. We will not disturb the court’s judgment.

We might say that the provocation arose over an accusation by defendant or a suspicion that one of the two persons he shot (one of them being this victim) got his pocketbook.

The judgment of conviction is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Julian DAVIS, alias v. STATE.
    3 Div. 706.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Solomon S. Seay, Jr., for Gray, Seay & Langford, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment.

The evidence is substantially the same as that narrated in Robinson v. State, Ala.App., 335 So.2d 420, cert. denied, Ala., 335 So.2d 426 (1976) and, after a reversal and another trial and another appeal in ■ the same case, in Robinson v. State, 342 So.2d 1331, (Ala.Cr.App.1977). Appellant herein is referred to by name in the opinion in the first case of Robinson as one who had joined with others, including their leader, Arthur X. Lewis, to go downtown in Montgomery, loaded with “guns, shells and other explosives, looking for trouble.” Upon arriving at Dexter Avenue, they immediately made trouble. Arthur Lewis there cut a 78 year old man with a sharp blade of a ma-chette. Thereupon appellant, Lewis and Robinson ran across the street toward their automobile. Police Officer Manferd E. Furr was summoned to the scene, where he was shot at close range by Arthur X. and killed. Then Arthur X., Robinson and appellant took off in the parked automobile, but were intercepted by a police car. The three then fled on foot and went to a radio station bearing their arms. During the flight of the three black men, gunfire was exchanged between them and the police. In the radio station they attempted to rally support for their cause, but when the attempt failed, they surrendered to the police. It follows necessarily, without any need for elaboration, that we should hold, as we did in Robinson, that “sufficient evidence was adduced from which the jury drew a reasonable inference that he [this appellant as well as Robinson] was an accomplice and equally guilty as a principal with the one who fired the fatal shot” that killed Officer Furr, with whose murder appellant was charged in this case. The trial court was correct in overruling defendant’s motion to exclude the testimony.

Defendant filed a motion for a change of venue, which was overruled. We find nothing in the record that even tends to support the motion, other than the bald conclusion, expressed in the motion itself, to the effect that the slaying of Officer Furr had received widespread publicity and created intense excitement and resentment, hatred and prejudice on the part of a large part of the residents of Montgomery County. There is nothing to indicate that any of the publicity was false or misleading to any extent. There is nothing to indicate that defendant could not have obtained a fair and unprejudiced jury in Montgomery County. The trial court was acting well within its discretion in overruling defendant’s motion for a change of venue.

Defendant also moved for a continuance of the case and based his motion on the same grounds as his motion for a change of venue and the additional ground that there had been a recess of court the day before on account of a funeral of a police officer. No evidence was presented on the motion. It apparently was assumed by counsel for both sides that the trial judge was fully aware of circumstances relative to the recess of the court the previous day for the funeral of the police officer who, according to the statement of counsel for defendant, was killed in line of duty. However, it seems clear that there was no other relation whatever between the death of that officer and the case for which appellant was tried. Five months had elapsed since the commission of the crime charged in this case. The statement was made by counsel for defendant that police officers at court the day of the officer’s funeral were wearing mourning shields, but there is no indication in the record, other than in argument of counsel, that any of the venire summoned for the week were impressed thereby or were aware of the cause of the death of the officer for whom the funeral was conducted. Appellant agrees that in accordance with Dorsey v. State, 36 Ala.App. 376, 56 So.2d 390 (1952) and McCleskey v. State, 28 Ala.App. 97, 179 So. 394 (1938), the granting or refusal of a motion for continuance rests in the sound discretion of the trial court. There was no abuse of that discretion.

As shown by the evidence in instant case and in the opinions in Robinson, supra, after appellant, Arthur X. Lewis and Robinson fled to the radio station, they took charge of the station, Station WAPX, commandeered its agents and its broadcasting equipment, under the leadership of Arthur X. Lewis, and broadcast appeals by Robinson for blacks within hearing thereof to join them in their revolution. Mr. John Rutherford, a State’s witness, who ran a radio-television sales and service business, testified that he had his radio on that morning tuned in on Station WAPX, that upon hearing the unusual type of broadcast emanating therefrom, he made a tape of the broadcast on a cassette tape recorder. The tape was admitted in evidence over the- objection of defendant. Appellant now argues that as Mr. Rutherford did not identify the individuals who were conducting the broadcast and that there was some evidence to the effect that the tape did not show all of the material that was broadcast, it was error for the court to admit it in evidence. Appellant argues that it does not meet the test required of a magnetic tape recording as set forth in Fikes v. State, 263 Ala. 89, 98, 81 So.2d 303, 311, rev’d on other grounds, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, that, “a magnetic tape recording may be used as evidence when it is of matters otherwise legal, and provided the proper safeguards are shown to have been used so as to protect the recording against error” or spoliation and the speakers as recorded “[are] properly identified and adequate safeguards taken to insure authenticity.” We think the tape meets that test. Defendant’s counsel, at his request, was given an opportunity to audition the tape, which he exercised, and made no suggestion whatever of any error prejudicial to defendant in the tape or any “spoliation” of the tape. Although the speakers were not identified by Mr. Rutherford, they were identified, principally Robinson, by Alfonso Dixon, an employee of Station WAPX, who testified as a witness for the State that Lewis and Robinson, whom he positively identified, and a third man used the facilities of the radio station and at the direction of Lewis, Robinson made most of the broadcasts. Although he did not positively identify appellant as the third member of the group, other witnesses positively identified defendant as one of the three who entered the station and one of the three who came out of it. The tape was properly admitted in evidence.

We have considered all the assertions of error made by appellant and have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945. The judgment of the court below is hereby

AFFIRMED.

All the Judges concur.