text:
    Charles RANDOLPH v. STATE.
    8 Div. 926.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.
    Robert L. Potts, Potts & Young, Florence, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

This is an appeal from a second conviction of defendant under a two-count indictment for murder in the first degree and robbery. On the previous appeal, the judgment of conviction and sentence was reversed by reason of the prejudicial error in allowing the State to impeach the testimony of one of its witnesses. Randolph v. State, Ala.Cr.App., 331 So.2d 766, cert. denied, Ala., 331 So.2d 771 (1976). There was evidence that appellant and Ronald Ghol-ston killed and robbed Willie Washington, a taxi driver, in Russellville. Gholston was convicted and his conviction was affirmed in Gholston v. State, 338 So.2d 454 (Ala.Cr.App.1976). Most of the material evidence was narrated in the opinion in each of such cases. We see no necessity to narrate the evidence in the case now on appeal other than to focus attention upon some significant differences between it and the evidence in the previously reported cases.

Appellant raises a serious question as to the sufficiency of the evidence to support the conviction from which this appeal is taken. We recognized the seriousness of the question in Randolph, supra, but in view of the necessity for a reversal on another ground, we elected to “pass to another day a determination” thereof. In Gholston, supra, we held the evidence sufficient. In Gholston, however, there was considerable difference between the evidence and the evidence on each of the two trials of Randolph. Furthermore, there is considerable difference between the testimony in the proceeding under review and the evidence on the trial when this appellant was previously convicted. We note some of such differences.

As in both of the cited cases, Josephine Harrison was the principal witness relied upon by the State on the trial involved in this appeal to prove the identity of the persons who killed and robbed Willie Washington. On each of the three trials Josephine was a chameleonic witness. On each trial, she was called as a witness by the court, but testified differently from previous statements in which she had positively identified Gholston and Randolph as persons so related to the time, the scene and the victim of the crime as to point persuasively to their guilt. On each of the other trials, the State was allowed to impeach her testimony, wherein she weakly identified the two, by her previous statements and testimony wherein she strongly declared their identity. In that respect, her evidence on the other trials is different from her testimony in the case sub judice, wherein the witness did not identify, even weakly, either Gholston or Randolph, as the persons who the evidence shows almost conclusively killed and robbed Washington. Her testimony on that subject was as follows:

“Q Now, would you please tell the Ladies and Gentlemen of the jury who those’ two fellows are?
“MR. POTTS: We — excuse me, I withdraw the objection.
“Q If you recognized them and who they were?
“A I didn’t recognize them.

Thereafter, the witness was interrogated intensively as to previous statements and testimony by her wherein she had identified the two. Notwithstanding the confrontation of her by her previous statements and testimony, she cleaved to her testimony that, “I didn’t recognize them.” On further examination of her by the State, her testimony was as follows:

“Q Miss Harrison, would you please tell the Ladies and Gentlemen of the jury right now your present judgment as to who the two fellows were, do you have an opinion as to who the two men were that you saw run back up southward along St. Clair there and pass your van?
“MR. POTTS: We object to that; she has already stated her testimony at this trial and we feel that this is repetitious.
“THE COURT: Overruled.
“A Like I told you, I wasn’t sure who it was.
“Q Do you have an opinion as to who it was? Do you think you recognized them?
“A No.”

Thus it is to be seen that this important witness’ testimony on the trial now reviewed was materially different from her testimony on the other two trials. We cannot say as we did in Gholston, supra:

“In her testimony, before any attempt to impeach her was made, she identified defendant as one of the persons. The fact that she did not positively identify him does not vitiate her testimony as to his identity. The hesitancy of a witness in identifying a defendant is a matter for consideration of the jury in passing upon the weight of such testimony.”

Insofar as the State’s case is dependent upon the testimony of Josephine Harrison, instead of having her testimony on the last trial as it was on the other two trials, we have it in the hypothesis stated in Gholston, supra:

“If the witness had testified that neither of the persons she saw running from the cab toward the house of Sue Hamm was defendant, if her testimony were blank on the question whether defendant was one of such persons, the State’s case would fail, even though the State was able to show by the witness that she had made previous statements, some in the form of testimony, wherein she positively identified defendant as one of the persons. . . . ’’

To uphold the verdict there must be substantive evidence of defendant’s guilt. As to this the State relies upon two items of evidence not presented on either of the other two trials: (1) the testimony of one Arthur Burr, as to a statement by Randolph to the effect that he had killed a cab driver and thrown away the knife, and (2) some evidence that defendant had attempted to flee when he saw the police officers who were looking for him about a week after the murder.

To determine whether these two particular items of evidence are sufficient, when considered with the evidence as a whole, to support the conviction, due regard must be had for the general principle that the weight of testimony is for the trier of the facts, not for the court on appeal. On the other hand, attention must be given to whether the particular testimony constitutes substantial evidence of defendant’s guilt. There is much to be said on both sides of that issue. We forego a determination of it by reason of the conclusion hereinafter reached which is dispositive of this appeal.

Among the fifty-six written charges requested by defendant and refused by the court were the following:

“5-D. I charge you, ladies and gentlemen, that the evidence which has been received in this case for impeachment purposes, that is, evidence received to show that a witness’s previous statements prior to this trial were inconsistent or different from the testimony given by that witness here, can only be used by you to judge the credibility of that witness or his or her testimony given at this witness or his or her testimony given at this trial, and cannot be used by you as substantive evidence of the facts stated on the prior occasion, or to prove or disprove the innocence or guilt of the defendant, Charles Randolph, of the offenses alleged in the indictment.
“6-D. I charge you members of the jury that evidence that the State of Alabama offered at the trial of the case to impeach the testimony given by Josephine Nance [sic] and any other witness sought to be impeached by prior inconsistent statements, cannot in any manner be considered by you as tending to prove the guilt of the defendant, Charles Randolph, but can only be considered by you in deciding in what weight to give the testimony given in the courtroom by the witness so impeached.
“7-D. I charge you, members of the jury, that statements or testimony received into evidence during a trial which were admitted to show that a witness had made previous statements inconsistent with that he or she made from the witness stand in this trial, or in other words, impeachments evidence, is not usable by the State as substantive evidence of the facts stated in the previous statements.”

In its oral charge to the jury, the court said:

“Now, there has been testimony in this case, Ladies and Gentlemen, and evidence offered in the nature of impeachment.That is, testimony offered to show that some witness or witnesses have made a different statement or a prior inconsistent statement than that testified by the witness from the stand. Statements previously made by the witness or a witness given before a Grand Jury or at a preliminary hearing or to other persons that differed from that they testified from the stand. And you are authorized, Ladies and Gentlemen, to take this testimony in considering what weight you will give to the testimony of that particular witness. It was admitted for your consideration for this limited purpose on the question of credibility.”

Nothing further on the question of the effect of such impeaching testimony was stated by the court until after the case was submitted to the jury and the jury had deliberated thereon for about an hour and a half, at which time it was reported that the jury desired further instruction. The jury was called back into the courtroom and the following occurred:

“THE COURT: Ladies and Gentlemen, you have a note here asking for certain— for the Court to go back over some of the matters that were covered yesterday by the Court in the Oral Charge concerning burden of proof and reasonable doubt and the impeachment testimony and alibi and then you asked for some testimony to be read. . . . ”

Thereupon, as shown by six pages of the transcript, the court charged the jury orally as to the matters about which inquiry had been made, which included the following as to testimony in the nature of impeachment testimony:

“And you were told also, Ladies and Gentlemen, that some testimony was presented in the nature of impeachment and that you were authorized to take that testimony and you should consider it, that is the testimony offered to show that some witness or witnesses have made different statements or a prior inconsistent statement than that testified to by that witness on the stand here before you. And you were told that testimony of that nature was permitted for your consideration on the limited question of credibility.”

After having some testimony read to the jury and an ascertainment by the court that there had been compliance with the request of the jury, the jury returned to the jury room to continue its deliberation. Just before doing so and in the presence of the jury, the following occurred:

“MR. POTTS: Yes, Your Honor. We would like you to charge the jury additionally to the fact that impeachment testimony cannot be used as substantive evidence of guilt, which if the Court would—
“THE COURT: Well, of course, the jury was told that.
“MR. POTTS: It was in one of our requested instructions.
“THE COURT: Of course, the jury was instructed on the use of it, of that evidence and that it was offered for the limited purpose of impeachment.”

The jury was returned to the jury box again within a few hours with a note stating, “May we have the same testimony of Josephine Harrison repeated again?” Thereupon the “requested testimony was read to the jury, and before the jury retired to go to lunch and thereafter resume its deliberations, counsel for defendant approached the bench and stated:

“MR. POTTS: Judge, we would like to request you to instruct the jury that the only substantive testimony—

The court informed counsel that it would let counsel continue his statement after the jury was excused to go to lunch. When the jury was excused to go to lunch, the following occurred:

“THE COURT: Now, Mr. Potts, I didn’t give them any instructions and they didn’t ask to be — for any instructions. I gave them exactly what they asked for.
“MR. POTTS: My position—
“THE COURT: And you can state your position if you like at this time.
“MR. POTTS: My position is that obviously they are focusing on the testimony of Josephine Harrison. The only substantive testimony of Josephine Harrison was, T didn’t recognize them.’ The other testimony is in the nature of impeachment. And we feel that since this is the case, that the jury should be instructed according — along the same lines as we requested in our instructions which were refused, to the effect that — that impeachment evidence cannot be used in any manner except to determine whether or not the statement, T didn’t recognize them,’ is to be given credence or not. And we feel like that’s not clear from the Court’s instructions, that even though there was some mention of the impeachment being used only for the limited question of credibility, we feel like it doesn’t make it clear enough to the jury about the rule against impeachment evidence as being substantive evidence and respectfully request the Court to instruct the jury further in that regard.
“THE COURT: Mr. Potts, I know some lawyers that don’t know what the word substantive means, and I am of the opinion that the jury having been twice charged concerning credibility of the witness is meaningful and they being in their deliberations, I am seeking to provide for them that which they request. And I am not going any further with it.
“MR. POTTS: We respectfully except.”

Notwithstanding the strongly expressed minority view to the contrary, and our profound respect for its proponents, the principle is settled at the present time in Alabama, by uniform decisions, that the self-contradictory statement of a witness who is not a party, whether testified to by him on cross-examination or proved by others, is not substantive evidence of the facts asserted; and that the statement operates only to discredit the witness and cannot be made the basis of a finding of a fact necessary to the establishment of liability or defense. The rule is stated in McElroy, Law of Evidence in Alabama, (2d ed.) § 159.02(1), which was quoted in Gholston, supra. In support thereof, Judge McElroy cites, Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530; Ferlesie v. Cook, 201 Ala. 571, 78 So. 915; Thomas Furnace Co. v. Carroll, 204 Ala. 263, 85 So. 455; Lynn v. State, 37 Ala.App. 400, 69 So.2d 485, Syl. 4; Lawson v. State, 36 Ala.App. 438, 57 So.2d 643, Syl. 4; Anno: 133 A.L.R. 1455, to which we add the cases of Cloud v. Moon, 290 Ala. 33, 273 So.2d 196 (1973) and Isbell v. State, 57 Ala.App. 444, 329 So.2d 133 (1976).

The State does not take issue with the proposition that the majority rule is the law in Alabama. It was obviously so understood by the parties and the judge on the trial under review and applied by this Court in Randolph, supra, and Gholston, supra.

Appellant urges that the trial court should have given defendant’s requested charges 5-D, 6-D and 7-D. Appellee replies by quoting from the court’s oral charge precisely what we have quoted above as constituting all the court said on the subject of impeachment testimony, and relies upon the principle that requested written charges are properly refused when they are fully covered in the oral charge. The principle is sound, but we cannot subscribe to the view that the instructions called for in the written charges were fully covered by the oral charge.

According to the majority view, including the view in Alabama, the principle as correctly and adequately stated, is both inclusive and exclusive. It states what impeachment evidence is and what impeachment evidence is not. The principle may be, and often is, stated variously, but almost without exception it is so stated as to comprehend the purpose or effect of the evidence and what is not its purpose or effect.

In McElroy, supra, it is stated:

“And the trial court should give a requested written charge instructing the jury that the self-contradictory statement is proper to be considered only for impeachment and not as evidence of the truth of the matter stated. [Emphasis supplied] Thomas Furnace Co v Carrol, 204 Ala. 263, 85 So. 455, Syl. 10 (charge J); Engel v Davis, 256 Ala. 661, 57 So.2d 76, Syl. 8 (charges 22-A, 23 and 24).”

In the cited case of Thomas Furnace Co. v. Carroll, the judgment was reversed for the failure to give the following written charge:

“J. The court has permitted the witnesses Quinn and Williams to testify to an alleged statement claimed to have been made to the witness Hill as to the giving of the signal upon which the car was pulled out of the mine. This testimony cannot be considered as evidence of the truth of such statements, but such evidence was admitted solely for the purpose of impeaching the testimony of the said Will Hill.”

In Engel v. Davis, supra, in upholding the admission of testimony impeaching the testimony of a certain witness by proof his out-of-court statement inconsistent with his testimony, it was stated at 256 Ala. 665, 57 So.2d 79:

. .A proper predicate had been laid for the impeaching evidence. The court expressly limited the evidence to the capacity of impeaching testimony. Furthermore the court instructed the jury in writing in Charges 22-A, 23 and 24 expressly and positively that the testimony was admitted for the purpose of contradicting or impeaching the witness Byers and ‘is not evidence against the defendant William Engel.’ There was no error in this ruling. . .

Somewhat, but not altogether, like the difference between defendant’s counsel and the trial court in this case was the difference between defendant’s counsel and the trial court in Slade v. United States, 267 F.2d 834 (5th Cir. 1959). There, the trial court rejected a request of defendant to charge the jury that the impeachment testimony could not be used as “proof of the facts therein stated.” In reversing the case for the trial court’s failure to distinguish adequately between evidence affecting credibility and evidence “to establish the stated fact,” the court on appeal at 839-840 said:

“This distinction should be delineated sharply in terms readily understandable by the jury. It is not done by simply stating that it is to be used ‘as a matter of impeachment going to his credibility’ or the further suggestion that it is to be used to determine whether Hardy ‘was telling the truth when he was first called on the stand or not.’ Note 6, supra. Assuming the jury understood what was ‘impeachment going to his credibility’ the instruction did not advise the jury what they were to do if, as the charge permitted, they determined that the ex parte statement showed Hardy was untruthful on the witness stand. Nothing forbade its further use to establish the critical facts at issue and therein stated categorically. ‘[Wjhile the court stated that they were offered for impeachment [purposes] only, this was all that was said, and the jury was allowed to take the whole matter without explanation or instructions as to what was meant by “for impeachment purposes only.” ’ Young v. United States, supra, 97 F.2d 200, at page 207.”
“As to this distinction ‘we think the trial judge should have drawn it carefully and explicitly in his charge to the jury by an explanation more detailed than the brief charge given’ here. Dowell, Inc. v. Jowers, 5 Cir., 1948, 166 F.2d 214, 219, supra. And in these circumstances that is done only if the court clearly ‘instructs the jury that the impeaching evidence is not admitted as evidence in the offeror’s favor but merely to destroy the credit of the witness, to remove the damage caused by the surprise * * *’ and suitably cautions ‘* * * the jury that the contradictory statements could have no legal tendency to establish the truth of their subject matter.’ Culwell v. United States, 5 Cir., 1952, 194 F.2d 808, 811. Young v. United States, 5 Cir., 1938, 97 F.2d 200, 205, 207, 117 A.L.R. 316, 323, 325.”

Under the established law of Alabama at the time of the trial of this case, testimony of a witness’ self-contradictory statement admitted for impeachment purpose only was not substantive evidence of the truth of the matter asserted in the witness’ self-contradictory statement, and the jury should have been so instructed. No such instruction was given by the trial court ex mero motu, and there was error in its refusal to give at least one of defendant’s requested Charges 5-D, 6-D and 7-D.

The ease w.as tried on the theory both of the State and the defendant that impeaching testimony can be considered for impeachment purposes only. The testimony was admitted for such purposes only — not as substantive evidence, — not only on the second trial of defendant, but also on his first trial (Randolph v. State, supra) and on the trial of Gholston v. State, supra. Such was the law of the case upon which defendant and his attorney had the right to rely, not only on the first trial but also on the second trial. Notwithstanding what is hereinafter stated, the judgment must be reversed for the error indicated.

We have been tremendously impressed by the accentuation by the facts in this case of the issue as to the logical validity vel non of the rule of unsubstantiveness of impeaching testimony as recognized by Alabama and a majority of the courts of the United States, as compared with the minority rule to the contrary.

Eminent critics of the traditional rule have vigorously pressed for its repudiation or relaxation. Champions of the cause of the minority include Professors Wigmore, McCormick and Morgan and Judges Learned Hand, Swan and Friendly. 3A Wigmore (Chadbourn Rev.) Evidence, § 1018(b)(1970); McCormick, “The Turncoat Witness: Previous Statements As Substantive Evidence” 25 Tex.L.Rev. 573 (1947); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Har.L.Rev. 177, 193 (1948); Judge Learned Hand in Di Carlo v. United States, 6 F.2d 364, 367-368 (2 Cir. 1925), cert. denied 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925); Judge Swan in Ng Kee Wong v. Corsi, 65 F.2d 564 (2d Cir. 1933); Judge Friendly in United States v. De Sisto, 329 F.2d 929 (2d Cir. 1964), cert. denied 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964).

The invectives inveighed against the traditional rule have not weighed heavily with us, but the cold reasoning of its learned critics has convinced us that the issue should be re-examined, and the facts of the instant case convince us that now is the time. Now a situation is presented wherein a principle, as to which there is serious question, has enabled a defendant to have a judgment of conviction reversed a second time largely because a witness has changed her testimony from what it was on the preliminary hearing from what it was on the first trial of this case and from what it was on the trial of appellant’s co-defendant. Without the testimony of that witness in Gholston v. State, supra, Gholston’s conviction could not have stood. Judicial procedure has been stymied, and the soundness of the judicial process has been made subject to serious question, by the action of the witness in changing her testimony from that which convicted Gholston to that which tends to free Randolph. The fiasco is compounded when we consider the established principle that if the witness were dead, or not available to testify, her previous testimony in the same case could be used by the State against appellant as substantive evidence.

That there is no violation of the Confrontation Clause of the Sixth Amendment to the Constitution of the United States by the admission, as substantive evidence, of the prior testimony in the same case of a subsequently unavailable witness, which has long been the practice in Alabama, was definitely resolved by the Supreme Court in 1895 in Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 39 L.Ed. 409, 411. In reaffirming Mattox in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Supreme Court could see no reason for a different conclusion as to the Confrontation Clause in a case where the evidence under consideration consists of pri- or inconsistent testimony of the same witness, in the same case, offered on cross-examination of him on the trial of the proceeding under review.

It was held in Green, supra, that the admission in evidence of the previous testimony of a witness or evidence of the truth of the matter stated in such testimony, including particularly testimony on a preliminary hearing of the defendant, where defendant had the opportunity at the time the previous testimony was given of cross-examining the witness by counsel, does not collide with the Confrontation Clause. However, the Supreme Court reserved for future determination, as “not ripe for decision,” the issue whether a witness’ apparent lapse of memory affected an accused’s right to cross-examine him to such an extent that the Sixth Amendment right to Confrontation, applicable to state judicial procedure by the Fourteenth Amendment, is violated by the admission of out-of-court statements of the witness.

As to trials in Federal Courts, the divergent views relative to the matter now before us have been largely composed by the adoption of the Federal Rules of Evidence, as approved by Pub.L. 93-595, § 1, January 2, 1975, 88 Stat. 1938, “effective one hundred and eighty days thereafter.” The enactment represents the fruition of thirteen years of intellectual labor of distinguished professors, judges, lawyers, and Congressmen, beginning with the appointment by the Chief Justice of the United States of a committee to study the feasibility of developing uniform rules of evidence, which was followed, after a favorable report by the committee, by the appointment of an Advisory Committee on Rules of Evidence for the purpose of drafting rules of evidence, to be submitted to the Supreme Court. After this committee completed its work, the Supreme Court promulgated a Code of Evidence in February 1973, subject to disapproval by Congress, which removed the deadline for disapproval and made express approval of the Congress a requisite to the effectuation of the rules.

After many amendments in the House, a bill was passed and sent to the Senate, where it was passed with substantial amendments, which required submission to and report by the Conference Committee. Along with the many controversial positions taken with reference to the content of the proposed rules, there were vigorous protests by eminent legal scholars and prestigious organizations of trial attorneys to a codification of rules of evidence. Many compromises of views are to be found in the final product, including a “give and take” result as to adherence to the traditional rule and advocates for the minority rule as found in the following pertinent part of Fed. Rules Evid., Rule 801:

“The following definitions apply under this article:
“(a) Statement. A ‘statement’ is (1) an oral or written assertion or (2) non-verbal conduct of a person, if it is intended by him as an assertion.
“(b) Declarant. A ‘declarant’ is a person who makes a statement.
“(c) Hearsay. ‘Hearsay’ is a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
“(d) Statements which are not hearsay. A statement is not hearsay if—
“(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) ■ • •”

The bill to enact rules of evidence as first passed by the House, Rule 801(d)(1)(A), included a requirement that the prior inconsistent statement by the witness must have been “given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition.” (Emphasis supplied). The Senate dropped such requirement. Emerging from that disagreement between the two bodies, was the Conference Report as embodied in the rules as finally enacted by Congress as shown above, whereby the scope of self-contradictory statements of a witness as evidence to prove the truth of the matter asserted in the statement is as that which the witness stated previously “under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition,” which, being without the requirement of prior opportunities of cross-examination, includes testimony before a grand jury.

It seems that the Federal Rules on the particular point under consideration are now largely in accord with the view of judge Friendly, as expressed in United States v. Cunningham, 446 F.2d 194, 197-198 (2d Cir. 1971), wherein the Second Circuit Rule, as opposed to the traditional rule, is limited to previous testimony (sworn statements) of a witness, contextually declared as follows:

“ . . . . While, beginning with United States v. De Sisto, 329 F.2d 929, 933 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964), we have allowed certain prior inconsistent statements of a witness available for cross-examination to be received as affirmative proof, we have rigorously limited this to sworn testimony at a former trial or before a grand jury. United States v. Mingoia, 424 F.2d 710, 713 (2 Cir. 1970); United States v. Insana, 423 F.2d 1165, 1170 (2 Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970). The risk of going further is illustrated by this case where, in addition to the dangers against which the hearsay rule is meant to protect, the issue whether the declarant ever made the statement requires resolution of a swearing contest between himself and the police.”

The court held in Cunningham that the admission of self-contradictory unsworn statements of a witness would fall within the ban of Bridges v. Wixon, 326 U.S. 135, 150-154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945).

None of the Alabama reported decisions relative to the use or non-use of a witness’ prior inconsistent statements as substantive evidence dealt with a prior inconsistent statement made under oath while testifying as a witness on a former trial on which the defendant was afforded an opportunity to cross-examine the witness. This leaves us, we feel, without restraint to make the following observations, in fairness to both parties in this case, as to what we would hold in a case squarely presented to us on the point whether the testimony of Josephine Harrison as given by her on the first trial of the appellant herein and on his preliminary hearing, if adequate opportunity was afforded him through counsel to cross-examine her, is substantive evidence of her recognition of him and Gholston as the persons in the taxicab and at the scene of the crime at the time it occurred, if inconsistent with her testimony on the trial of the case under review. In doing so we find no alternative to the conclusion that there would be an impasse in the course of reason to say that such testimony would be substantive evidence in the absence of such witness as unavailable, but that it would not be substantive evidence when she is on hand and subject to cross-examination by the party against whom such testimony is given. It may be that we would go further in qualifying the traditional rule, but as we see it now, we should limit our statement to what we are convinced is not in conflict with what the Supreme Court of Alabama has held or with what the Supreme Court of the United States has held, or would hold, as impinging upon any Constitutional rights of defendant.

Our decision removes some of the reasons for opposition to the principle that prior inconsistent statements of witnesses constitutes substantive evidence. It does not impair any constitutional or other substantial rights of the party against whom such evidence is admitted. Solid and cogent reasons for using as substantive evidence a prior statement of a witness (inconsistent with his present testimony) made while testifying under oath on a former trial, with the opportunity for cross-examination are:

(a) the prior statement was made nearer in time to the occurrence, event or other matter to which it relates, and therefore when the witness’ recollection would be fresher and better, and

(b) the prior statement is less likely to have been influenced by pressure arising from the controversy, including the cajolery or corruption of, or other tampering with, the witness.

If the question is pressed as to why such an indicated holding is not dispositive favorably to the State of the main issue on this appeal, the answer is that the case was tried on a different theory, without a note of dissent, agreed upon impliedly at least among both parties and the trial court. That agreed upon theory necessarily served as a guide to both parties in their handling of the case throughout, and to hold now that the law by which he was tried is not the law by which his case should be reviewed would be a gross injustice to any defendant, be he ever so guilty. In addition, it is to be noted that there were self-contradictory unsworn statements of the witness that were also admitted in evidence, which we are not prepared now to say constitute affirmative evidence, but if we were, justice requires, we think, that such a change in the settled procedural law of this state should not be made so as to affect one’s rights on a trial that precedes the change. In all of this, we especially invite applications for rehearing and review of whatever ruling we make thereon by petition to the Supreme Court of Alabama for a writ of certiorari.

Other questions are raised by appellant which we do not find necessary to pass upon at this time. Some of them arose in the “rough and tumble” of heated clashes in the court room, aggravated by encounters between the District Attorney and the witness Josephine Harrison during out-of-court discussions of the case between him and her. We trust that on another trial all concerned will generate more light than heat on the issues between the parties, to the end that a true verdict according to the law and the evidence may be rendered. As a matter of record, it should be stated that the position was taken by defendant that the witness Josephine Harrison had been influenced by fear to make her previous statements and give her previous testimony wherein she positively said in effect that appellant was one of the men who killed and robbed deceased. On the other hand, there was strong evidence to support the contention of the prosecution that her previous statements, sworn and unsworn, constitute the truth and substantial variance therefrom is false. As to such issue, an impartial jury is in a better position than anyone else to arrive at a correct result.

The judgment of the trial court should be reversed and the cause remanded for a third trial.

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 reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.

      . It should be noted that Judge McElroy expresses no opinion of his own as to the merits of the rule, but merely, with his wonted exactitude, states the well established rule in Alabama, and a consequential principle, and supports his statement with cited authorities.

      . In addition, appellee quotes from the oral charge as follows:
      “You would also consider whether or not the witness, as I say, has been impeached in giving the testimony and if so, what weight you would give to the testimony of that witness. And, of course, Ladies and Gentlemen, if you find that some witness has been impeached in giving his testimony, then, you would be authorized to disregard the testimony of that witness in its entirety. You would not be bound to do so, and you may not capriciously do so, but you would be authorized to do so in your judgment if you chose to do so or to determine what weight you would give to that witness’s testimony you have found to have been impeached.”
      This part of the charge refers to the testimony that has been impeached, or sought to be impeached, not to the impeaching testimony, which is the matter here involved.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2698.
    Supreme Court of Alabama.
    Aug. 19, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Melvin Archie TUBERVILLE v. STATE.
    1 Div. 781.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.
    Rehearing Denied June 28, 1977.
    Willis W. Holloway, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: ten years imprisonment.

The State’s evidence is to the effect that the appellant was looking for one Frank Robertson. He wanted to fight Robertson for making a derogatory statement about appellant’s sister. On the night in question, Jimmy Warren, Frank Robertson and Wayne Robertson drove to the home of appellant’s sister and Wayne Robertson went inside. Shortly thereafter, appellant came out of the house and approached Frank Robertson and Jimmy Warren who were standing beside their automobile. From this point on, the evidence is in conflict.

Evidence most favorable to the State would show that the appellant, on reaching the automobile, cursed Frank Robertson and offered to fight him. Robertson declined due to an injured arm. Appellant then cursed Jimmy Warren and lunged at him. Warren grabbed the appellant around the neck, and appellant cut him with a knife, leaving Warren’s intestines “hanging out” and his .whole body bloody.

«> Evidence for the appellant was to the effect that appellant told Frank Robertson that he wanted to talk to him about calling appellant’s sister “a name.” Robertson cursed appellant and said, “if you want me, come and get me.” Appellant stated that he did not want to fight Robertson. After some discussion, Jimmy Warren grabbed appellant around the neck and they began wrestling. Prank Robertson then allegedly stabbed appellant with a knife. Warren released appellant, and appellant then cut Warren.

Appellant’s case rested largely on self-defense. The trial judge gave a full and extensive oral charge to the jury on the law relating to self-defense. The conflicting testimony clearly presented a question for the jury. The jury chose to believe the evidence presented by the State which we find to be legally sufficient to support their verdict.

I

Appellant contends that the trial court erred in refusing to give the following written requested charge to the jury:

“I charge you when an assault is committed by means in a manner that is calculated to produce death, and death does not ensue, intent to murder does not arise as a necessary consequence of the assault.”

Appellant contends that such a charge was approved in Harmon v. State, 23 Ala.App. 468, 126 So. 896 (1930).

The former Court of Appeals in Harmon held that the appellant was entitled to that charge only because the court’s oral charge was inadequate. The court did not give that charge an unqualified and blanket approval, but instead stated:

“. . As an original proposition this charge might have been misleading, but not so when the court has given instructions which are in need of modification.

It appears to us that the Court of Appeals had determined that the trial court’s oral charge had erroneously placed the burden of proof on the defendant to disprove murderous intent. Since no exception to the oral charge was taken, no reversible error resulted, however that court reversed the conviction for failure to give what would otherwise have been a misleading charge. We will not extend the former Court of Appeals’ somewhat questionable reasoning in this regard. Had the trial court’s oral charge in this instance included the verbiage, “the burden is on the defendant of proving that the assault was not with such intent [to murder],” then appellant’s point may have been well taken. Instead, we find that the trial court’s oral charge in the instant case did not wrongly place the burden of proof on the appellant. We, therefore, will not put the trial court in error for refusing the requested charge. Pendley v. State, 34 Ala.App. 453, 41 So.2d 205 (1949).

II

Appellant next complains that the trial court erred in failing to instruct the jury that assault with intent to murder includes the lesser offense of assault and battery. The record clearly shows that the appellant’s exception to the court’s oral charge on this ground came after the jury had retired and outside their presence.

It is well settled in Alabama that an exception to the oral charge of the trial judge must be made in the presence of the jury before it retires from the courtroom. Strickland v. State [1977] Ala.Cr.App., 348 So.2d 1105; Owens v. State, 53 Ala.App. 553, 302 So.2d 240, cert. denied 293 Ala. 769, 302 So.2d 243 (1974). For a multitude of eases on this point, see: 6A, Alabama Digest, Criminal Law, &wkey;841.

III

Appellant contends that the court reporter’s transcript of the evidence failed to show that the trial court had asked the appellant, “if he had anything to say as to why the sentence of law should not be imposed upon him.”

While the transcript of the evidence fails to show the aUocutus, the judgment entry does recite it:

“Thereupon in open court on this day the defendant being asked by the court if he had anything to say why the judgment and sentence of the law should not be passed upon him, replied, ‘he had not’

In a felony case the judgment entry must show the allocutus. McCray v. State, 46 Ala.App. 588, 246 So.2d 475 (1971). The judgment entry in the instant case satisfies that requirement of the law.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Melvin Archie TUBERVILLE.
    SC 2707.
    Supreme Court of Alabama.
    Aug. 19, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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


text:
    Jimmy Earl HALL v. STATE.
    4 Div. 504.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.

      Jack W. Smith, Smith & Smith, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: eight years imprisonment.

Appellant was charged in a two count indictment with (1) assault with intent to murder David Havard and (2) assault with intent to maim David Havard. The jury found appellant guilty on count one only, and the State nol-prossed count two.

This case arose from a barroom brawl between two off-duty undercover policemen and certain customers of the 1890 Lounge in Dothan, Alabama. Agent David Havard, a Mobile police officer, was on loan to the Dothan Police Department Narcotics Squad as an undercover agent. On the evening of June 3, 1976, appellant was arrested for selling marijuana, based on the undercover work of agent Havard. Appellant was booked around 9:00 or 9:30 P.M. at the Dothan Jail in Havard’s presence. After going off duty around 10:30 P.M., Havard and Dothan police officer Wendell White went to Havard’s motel with two other officers and discussed the marijuana case until around midnight. Havard and White then went to the Flamingo Club and had one drink. After the Flamingo closed, the two officers went to the 1890 Lounge.

Appellant had made bond earlier that evening on the marijuana charge and had been released. The State’s evidence showed that the appellant and a co-defendant, David Robinette, entered the 1890 Lounge, and as Robinette passed the table where Havard and White were sitting, he cursed Officer White. Robinette rounded a partition into a game room, and White and Ha-vard followed him. Havard testified that Robinette grabbed White as they rounded the partition and at about the same time, he was grabbed from behind by the appellant. A brawl ensued among the four men. Ha-vard testified concerning the assault by appellant as follows:

“ . . . We hit the floor, and when we hit the floor, the subject started kicking me about the head and ribs. Jimmy Earl said that he was going to kill me, that I would never testify against him in Court; that he was going to blind me. He kept trying to dig my eyes out, and hitting me. . ” (Emphasis supplied.)

Agent Havard, unable to see the assailant because of blood running from his eyes, was struck twice upon the head with a pool cue. The attack upon the officers was so severe that they were forced to roll under a pool table and fire Havard’s pistol into the ceiling to stop the brawl and cause the appellant and his companions to leave the club.

Officer White’s testimony was essentially the same as Havard’s, except for its corroboration of Robinette’s assertion that White grabbed Robinette as he “wheeled” toward White, rather than Robinette grabbing White first. White testified that he also was hit with a pool cue by someone and had his eyes gouged by the appellant before he dove under the pool table with Havard.

Officer Havard was hospitalized for four or five days, and received twenty stitches in his head, twenty stitches in his left eyeball, and seventeen stitches in his right eyeball. Photographs of his battered face were put into evidence to show the severity of the attack.

Robinette testified that he neither spoke to White nor saw him in the lounge until he wheeled around and White grabbed him and the brawl ensued. Robinette stated that White grabbed him, knocked him down, and bit a hole in his ear. He said that he got up, took White’s gun and threw it over a partition away from the brawl. A picture depicting a serious bite in Robi-nette’s ear was put into evidence. Robi-nette testified that he never used a pool cue against anyone in the brawl and that he never saw appellant do so.

Appellant testified that just as the disturbance began, he turned and was hit in the mouth with a pool cue by agent Havard. He testified that Havard pushed and tackled him and that he fell on top of Havard. Appellant stated that he hit Havard four or five times with his fist only. He said that he never spoke to Agent Havard during the affray.

I

Appellant contends that the trial court erred in denying his motion to exclude the evidence on the grounds that the State failed to prove the requisite intent to murder. The State contends that although the evidence indicates that Robinette did the hitting with the pool cue, both appellant and Robinette were involved in the assault. Hence, intent to murder on the part of the appellant may be inferred from Robinette’s use of the pool cue as a deadly weapon. The State also argues that because of Ha-vard’s temporary inability to see who attacked him with the pool cue, the evidence does not clearly show that it was not the appellant who wielded the weapon. We are unimpressed with this latter argument of the State. Where the State’s evidence is unclear as to who committed an assault, the burden is never upon the defendant to prove that he did not commit the assault, absent proof of a conspiracy.

In an assault with intent to murder, punishable under Title 14, § 38, Code of Alabama 1940, the word “murder” is read to mean as it did at common law, the killing of a rational human being with malice aforethought. Both malice and intent must be proved to the satisfaction of the jury. Jackson v. State, 94 Ala. 85, 10 So. 509 (1892); Tolliver v. State, 50 Ala.App. 654, 282 So.2d 92 (1973); Douglas v. State, 42 Ala.App. 314, 163 So.2d 477 (1963) cert. denied 276 Ala. 703, 163 So.2d 496, reversed on other grounds, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). Thus, assault with intent to murder requires evidence of assault with an intent to take life under circumstances which, if successful, would result in murder in either degree. Horn v. State, 98 Ala. 23, 13 So. 329 (1893); Bowen v. State, 32 Ala.App. 357, 26 So.2d 205 (1946). But like malice, intent to take life may be inferred by the jury from the character of the assault, the use of a deadly weapon, and other attendant circumstances. Jackson and Bowen, supra. Intent, being a mental purpose or state of mind, is rarely susceptible of direct proof. Intent, then, may be inferred by the jury from the evidence presented at the trial. And, if the evidence which raises the inference of such intent to take life with malice aforethought is proved to the jury’s satisfaction beyond a reasonable doubt, it is their solemn duty to convict. Horn, supra,

The State’s evidence was sufficient here to raise a question for the jury as to existence of an intent on the part of appellant to take agent Havard’s life. The evidence of the ferocity and of the brutal nature of the attack; the nature and severity of the injuries suffered by Havard; and the surrounding circumstances of the brawl, were sufficient facts from which the jury could infer malice and an intent to take life. Likewise, the jury had every right to believe the assault was committed by the appellant with the intent to kill Agent Ha-vard, from Havard’s testimony that “Jimmy Earl said that he was going to kill me.

The evidence raised an inference of a concert of action on the part of appellant and Robinette. Although it is unclear whether blows struck with pool cues were inflicted by appellant or Robinette, or by both, the jury could have reasonably inferred from the evidence that, “by prearrangement, or on the spur of the moment,” the appellant and Robinette entered into a common enterprise or adventure, the purpose of which was to assault the two officers and kill them if they could. Morris v. State, 146 Ala. 66, 41 So. 274 (1906); Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976); Walton v. State, 54 Ala. 317, 307 So.2d 713 (1975).

If a deadly weapon is used, and a conspiracy is found by the jury, it makes no difference in law which assailant wielded the weapon because both are principals. Howell and Walton, supra. The law infers an intent to kill or do grievous bodily harm from the use of a deadly weapon. Williams v. State, 251 Ala. 397, 39 So.2d 37 (1948). A deadly weapon is not necessarily an instrument from which a blow would ordinarily produce death, but one from which, as it was used, death would probably result. The manner of its use and the subject against whom it is wielded, as well as the actual results of its use are to be considered. “ . . . [A] deadly weapon is not only a weapon with which death may be easily and readily produced, but one which is likely to produce death or great bodily harm from the manner in which it is used.” Williams, supra. A pool cue is not ordinarily thought of as a deadly weapon. However, the jury was entitled to pass upon whether or not the pool cue, as wielded here, was used as a deadly weapon. Many implements of sport, though not designed to be used as deadly weapons, may nevertheless be used in such manner that would cause death, such as a baseball bat, a golf club, horseshoes, etc.

At common law, one could be guilty of assault with intent to murder where no deadly weapon was used. Bowen, supra. Our cases state that our statute is a codification of the common law. The statute does not create the offense or the constituents of the offense, it merely elevates the crime from a misdemeanor to a felony. Smith v. State, 88 Ala. 23, 7 So. 103 (1890); Lawhon v. State, 41 Ala.App. 577, 141 So.2d 205 (1962). This Court has held a written charge to be improper which stated that an accused could not be convicted of an assault with intent to murder if he used only his fists in the difficulty. Kirkland v. State, 21 Ala.App. 348, 108 So. 262 (1926). Evidence as to appellant’s violent assault with his fists therefore presented a jury question as to the existence of a murderous intent, in-ferable from the character of the assault and attendant circumstances. If there is an assault endangering life, in the absence of facts excusing it, or sufficient provocation, and it is directed against the particular individual named in the indictment, the offense is complete. Meredith v. State, 60 Ala. 441 (1877).

The reconciliation of conflicting testimony is a jury function. Roberts v. State, 49 Ala.App. 729, 275 So.2d 709 (1973). We are of the opinion that the State’s evidence as to appellant’s intent to take the life of Officer Havard clearly presented a question for the jury, and that it was within the jury’s province to ascertain the true facts. The jury could have found that the two off-duty policemen provoked the fight and that the appellant and his companion were defending themselves, and thus not acting in concert in assaulting the officers with intent to kill them. However, they chose to believe the State’s evidence instead, which they had a right to do pursuant to the evidence presented.

II

Appellant next contends that the trial court erred in denying his motion for a new trial on the ground that the appellant failed to receive a fair and impartial trial because of improprieties on the part of one of the jurors.

When the jury was qualified at the beginning of the trial, juror Walter H. Hamrick did not respond to the question as to whether any jurors knew the appellant. At the hearing on the motion for a new trial, Steve Hamrick, the juror’s son, testified that he talked with his father at a Zippy Mart on the afternoon of September 20, 1976, and that his father said he would find the appellant guilty because the appellant’s father owed him money on a bill. The son then corrected his testimony, stating that he had the conversation with his father at the Zippy Mart on September 25, 1976, and not on the date of the trial, September 20, 1976. He also testified that one James Ray Snow overheard the conversation with his father. Snow testified that while he was in the company of Steve Hamrick he overheard the conversation at the Zippy Mart between Steve Hamrick and his father, Walter Ham-rick, on or about September 20, 1976. He testified that Walter Hamrick told Steve that he did not like the appellant at all; that he was on the jury at the time; that appellant’s father, whom he knew well, owed him money; and that he was going to find appellant guilty because he did not like him as a person.

Juror Walter Hamrick testified in rebuttal that the conversation with his son at the Zippy Mart occurred a week and a half or two weeks prior to the trial of the appellant. He testified that he never knew the appellant beforehand. On cross-examination he denied saying that the appellant’s father owed him a bill, or that he was going to find the appellant guilty.

Mullins v. State, 24 Ala.App. 78, 130 So. 527 (1930) cert. denied 222 Ala. 9, 130 So. 530 (1930), dealt with a motion for a new trial which involved, as a ground of misconduct, the conversation of one of the jurors with a third party in a barber shop after completion of arguments by counsel. Rice, J., in that case wrote:

“ . . . nothing more is presented for review here than a discretionary action in passing on this ground of the motion for a new trial. The trial court heard the evidence pro and con, and, indulging the presumption in favor of the court’s decision, we must hold that there was no error in overruling the motion for a new trial on this ground.”

The evidence pertaining to the misconduct of the juror Hamrick, submitted at the hearing on the motion for a new trial, was in conflict. It was the duty of the trial judge to exercise his reasonable discretion in weighing the evidence presented and to reach a decision thereon. His ruling will not be disturbed in the absence of a showing of abuse of discretion, and this Court will indulge in every presumption in favor of the correctness of the ruling of the trial judge. Williams v. State [1977] Ala. Cr.App., 348 So.2d 1113; Clark v. State, 54 Ala.App. 217, 307 So.2d 28 (1975); Adams v. State, 32 Ala.App. 367, 26 So.2d 216 (1946). Although the testimony was conflicting, we find that the trial judge’s exercise of discretion in making his determination was reasonable, and we therefore will not disturb the trial court’s decision. Williams, supra.

In an effort to impeach the jury verdict, the appellant’s attorney twice took the witness stand and attempted to testify as to a conversation between himself and a juror. The trial court sustained the State’s objections to that testimony.

Affidavits or testimony of third persons concerning statements made to them by jurors, which tend to impeach the jury’s verdict, are inadmissible, not only because they are hearsay evidence, but because they invade the protective privilege of secrecy attached to jury deliberations. Harrison v. Baker, 260 Ala. 488, 71 So.2d 284 (1954); Weatherspoon v. State, 34 Ala. App. 450, 40 So.2d 910 (1949). In certain narrow circumstances, evidence of jury deliberations may be admitted where a juror fraudulently undertakes his position as jur- or. However, it is clear that such proof is dependent upon establishment of extraneous facts adequate to show a prima facie case of fraudulent jury service sufficient to satisfy the trial judge that light should be let in upon the jury deliberations. Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1933); Alabama Fuel and Iron Company v. Powaski, 232 Ala. 66, 166 So. 782 (1936). We cannot say from the record before us that the trial court’s refusal to admit the attorney’s testimony falls within the rule of the Clark case, supra. No reversible error is shown in the action of the trial judge in denying the motion for a new trial in this instance.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Jimmy Earl HALL.
    SC 2766.
    Supreme Court of Alabama.
    Aug. 19, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Richard Earl FINNEY v. STATE.
    8 Div. 944.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.
    Robert Straub, Decatur, C. E. Carmichael, Jr., Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for forgery. The trial court fixed sentence at ten years in the penitentiary. The appellant has been represented by retained counsel at all stages of the proceedings both at trial and before this court.

This appeal presents two questions for our consideration: (1) In a prosecution for forgery of a check must the state prove that the accused was not authorized to sign the name that appears on the check and (2) what is the proper predicate for the admission of a bank signature card into evidence.

The facts are not in dispute. On June 28, 1976, the appellant wrote a check for eight dollars and forty-eight cents to Campbell’s Outlet Factory, Muscle Shoals, Alabama, for a pair of bluejeans. The check was on the account of Mr. and Mrs. Wesley N. Nixon. The appellant signed the name of Wesley Nixon to the cheek.

The state proved that the appellant actually wrote the check signing it “Wesley Nixon”. The state also produced the operations manager of Central Bank, Quad City Operation Center, who testified that the signature (“Wesley Nixon”) on the check and the account signature card (“Wesley N. Nixon”) were not the same because of the absence of one initial.

Wes Nixon did not testify and the state offered no proof to show that the defendant was not authorized to sign the name of Wesley Nixon on the check. The appellant did not testify nor offer evidence on his behalf.

I

The initial argument of the appellant is that the crime of forgery was not proved because there was absolutely no testimony or other evidence to show that the defendant was not authorized to sign the name of Wesley Nixon on the check.

In general the essential elements of the offense of forgery are: (1) A writing of 'such a nature that is a possible subject of forgery; (2) which writing is false; and (3) was made with the intent to defraud. Perkins, Criminal Law 341 (2nd Ed. 1969).

The essence of forgery is an intent to injure or defraud when the act is done. McDonald v. State, 83 Ala. 46, 3 So. 305 (1887); Hall v. State, 31 Ala.App. 455, 18 So.2d 572, cert. denied, 245 Ala. 671, 18 So.2d 574 (1944).

The appellant’s motion for a directed verdict was due to be given.

“Forgery is not established by the bare fact that one man has signed the name of another to a writing having apparent legal significance because the signing (1) may have been authorized, in which case the writing is not false, or (2) though unauthorized may have been in the bona fide belief in the existence of such authority, in which case, although the writing is actually false, it was prepared without an intent to defraud.” Perkins at 352.

See also: 2 Wharton, Criminal Law (1957) Sections 624-626, pp. 400-403. Because the state, in a prosecution for the forgery of a check, failed to prove that the check was false by not offering any evidence that the accused was not authorized to make the check, this case is due to be reversed. The absent proof may be supplied by the testimony of Wesley Nixon that he did not authorize the appellant to write or sign the check. In a criminal ease the burden of proof is upon the state to establish every element of the crime charged. The burden is never on the defendant to establish his innocence.

The appellant was indicted for forgery in that he did, “with intent to injure or defraud, alter, forge, or counterfeit a certain check” or “with the intent to injure or defraud, did utter and publish as true the said falsely altered, forged or counterfeited check, knowing the same to be so altered, forged or counterfeited”. The jury returned a general verdict finding the defendant “guilty as charged”. In a prosecution for uttering a forged check the burden is upon the state to establish the fact that the defendant was not authorized to make or sign the check. Owens v. State, 16 Ala.App. 413, 78 So. 423 (1918). Thus the evidence was insufficient to support a conviction of forgery or uttering of forged instrument.

We pretermit a ruling on the propriety of the admission of the signature card as a handwriting exemplar as this issue is not likely to arise on the retrial of the appellant when Mr. Nixon’s testimony is presented.

For the stated reason this case is

REVERSED AND REMANDED.

All Judges concur.


author: EMBRY, Justice.

text:
    Ex Parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2768.
    Supreme Court of Alabama.
    Aug. 19, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    William James TURK v. STATE.
    6 Div. 1.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of murder in the first degree and a sentence to life imprisonment.

No contention is made, and no reasonable contention can be made, that the evidence was insufficient to support the verdict of the jury. ■ In many respects the evidence was substantially the same as narrated in Alexander v. State, 337 So.2d 99 (Ala.Cr. App.), wherein appellant had been convicted of murder in the first degree of the same person, Mr. Olmstead Copeland, Jr., a fireman for the City of Tuscaloosa.

The major difference between the testimony in Alexander and the testimony in this case is that in Alexander, defendant admitted being present with James Turk and another man when Turk shot Copeland. He claimed he protested the action of Turk but indicated that he was afraid of injury or death at the hands of Turk if he reported the incident. In contrast, defendant in this case testified that he was not with Alexander and another man when they went to Tuscaloosa the night of Mr. Copeland’s death, but that afterwards that night Alexander came to Turk’s home and prevailed upon Turk to keep for him a pistol, with which the evidence shows that Copeland was killed, as well as other items linked with the homicide of Mr. Copeland and the homicide of Mr. John Harbin in Birmingham the same night. The pistol with which Mr. Copeland was killed was found on the console of an automobile being driven by Turk about two weeks after Mr. Copeland’s death.

Other evidence not presented in Alexander consisted of the testimony of the woman with whom Turk was living and that of her brother. Each testified that defendant admitted that he had been to Tuscaloosa the night of Mr. Copeland’s death and had “shot a wrecker driver” in the head with a pistol.

The evidence shows that at the time of Mr. Copeland’s death, he had been using his truck with a wench on it to extricate an automobile from a median in 1-59 south of Tuscaloosa.

The only insistence on a reversal is based on the action of the trial court in overruling defendant’s motion for a change of venue. It is shown by the following:

“MR. BURROUGHS: The defense would move for a continuance due to the fact forty-three out of fifty-nine jurors said that they had read an account of the slaying or the death of the deceased in this case, Olmstead Buddy Copeland, Junior, and the defense feels like even though no one answered in the affirmative that it would affect their decision in this case, that subconsciously it would have to have an effect, or it would have an effect on their decision.
“THE COURT: Your motion is overruled.
“MR. BURROUGHS: The defense respectfully excepts.
“And at this time the defendant moves for a change of venue on the same grounds just stated. Further that he cannot get a fair trial in this County because of the widespread publicity and publication given to the case, and the sensationalism attached to the case, and as exhibited by the number of jurors that read of the case and have knowledge of the case.
“THE COURT: You are respectfully overruled on your motion for change of venue.
“MR. BURROUGHS: We respectfully except, Your Honor.”

The foregoing is exhaustive of the record as to defendant’s efforts to obtain a change of venue.

The record does not show any of the published material upon which defendant’s motion for a change of venue was based. In his brief appellant attempts to buttress his contention that a change of venue should have been granted, by assertions of the number of times the local newspaper “carried . . . stories about this case” and as to the front page position of the story. He also asserts in his brief that the newspaper coverage was “so emotional, biased and prejudicial as to deny” the defendant his right to a fair trial.

For an appellate court to reverse a trial court for its failure to grant a motion for a change of venue, there must be some showing, other than the assertions of appellant in his brief, to the effect that defendant could not have a fair and impartial trial in the county in which the case is pending. An appellate court is bound by the record and cannot consider contentions in defendant’s brief that are not supported by the record. Dockery v. State, 269 Ala. 564, 114 So.2d 394 (1959); Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); Williams v. State, 52 Ala.App. 207, 290 So.2d 668, writ denied, 292 Ala. 758, 290 So.2d 672 (1973); Boyd v. State, 50 Ala.App. 394, 279 So.2d 565 (1973); Thomas v. State, 49 Ala.App. 537, 274 So.2d 93 (1973); Magouirk v. State, 49 Ala.App. 420, 272 So.2d 625 (1973); Lucy v. State, 340 So.2d 840 (Ala.Cr.App.), cert. denied, 340 So.2d 847 (Ala.1976).

No effort is made, except in insinuations in appellant’s brief, to show that the publicity was injurious to defendant or that it would tend to prevent his obtaining a fair trial. The existence of widespread publicity does not in and of itself constitute a ground for a change of venue. Mathis v. State, 280 Ala. 16, 189 So.2d 564, cert. denied, 386 U.S. 935, 87 S.Ct. 963, 17 L.Ed.2d 807 (1966); Hurst v. State, 54 Ala.App. 254, 307 So.2d 62, cert. denied, 293 Ala. 548, 307 So.2d 73 (1974); Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert. denied, 288 Ala. 748, 265 So.2d 192, cert. denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (1972).

In the absence of some showing of prejudicial influence on a jury, the trial court will not be held in error for refusing to grant a motion for a change of venue or a continuance based on pretrial publicity. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835, cert. denied, 293 Ala. 745, 309 So.2d 844 (1974).

We have searched the record for error prejudicial to defendant and have found none. The judgment below should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . Turk v. State, Ala.Cr.App., 347 So.2d 588 (1977).


text:
    Steven Carl RADFORD v. STATE.
    6 Div. 185.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.

      Lawrence B. Sheffield, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

This case results from the brutal, coldblooded murder of Debra K. Dabbs immediately after she had been savagely raped and beaten. The victim was last seen alive around 11:00 P.M. on March 5, 1975, when she was being led out of the Watergate Lounge in Birmingham by four black men. Her nude, mutilated body was found early the next morning behind Tuggle School in north Birmingham. There were three bullet holes in the head, a stab wound in the chest, and some eighteen knife slashes on the back and side of the body. Spermatozoa was found in the oral, anal and vaginal orifices. Expert testimony established the cause of death as being from any one of the three gunshot wounds to the head.

Willie Joe Sistrunk testified, under grant of immunity, that on the night of the crime that he, Alfred Holt, Luther Bell, and the appellant were at the Watergate Lounge. When they started to leave, Sistrunk went to the car and got in the back seat. He saw the other three leading Debra Dabbs to the car. They all got in and drove to a nearby hill. Holt stated that he was going to rape the victim. Sistrunk got out of the car and refused to have any part of the affair, according to his version of the incident. He saw Holt rape the victim and saw the appellant and Holt take turns beating her, “like a dog.” He said that the appellant also raped the victim, however, he did not personally see him.

After being ravished and beaten into a state of helplessness, Debra Dabbs was thrown naked from the car. Alfred Holt then got out with a gun saying, “I gonna kill this bitch.” Sistrunk interceded on the victim’s behalf, but Holt threatened to kill him also, and the witness got back in the car. Holt then fired “a hail of bullets” into the head of Debra Dabbs.

Sistrunk said he next saw the appellant and Holt slashing the victim with knives. Both got back in the car and began arguing over which had actually killed the girl:

“ . . . Steven Radford told Alfred he missed that bitch. Alfred said, ahh, I shot that bitch in the head. Steven Rad-ford said I got that bitch in the heart.”

Appellant testified that he had been with Holt, Bell and Sistrunk at a local gymnasium earlier in the afternoon of the day of the crime. He saw Holt give Bell a knife and some sunglasses. Bell put them in the glove compartment of his car, which also contained a pistol. Appellant said that after drinking some wine with Bell, he left the group and went to his mother’s house. The appellant, his sister and his mother testified that he was at his mother’s home at the time of the killing and knew nothing about the incident.

At the end of the testimony of the third witness at trial, the defense made two oral motions: (1) that “the indictment be quashed based on systematic exclusion of black folks from the jury. . . . ” because, of twenty-seven prospective jurors, the only six blacks on the venire were all peremptorily challenged by the prosecution; and, (2) that part of the testimony of an assistant pathologist, pertaining to cause of death, be excluded because the witness was not qualified to express an expert opinion.

At the end of the testimony of the fourth witness at trial, defense counsel orally moved that the case be dismissed and the indictment quashed on the ground that the defendant was denied a speedy trial. After some discussion, the motion was overruled.

Appellant is represented on appeal by different counsel than at trial.

I

A. Systematic Exclusion

Because the victim was an eighteen-year-old white girl and her killers were black men, the charge of racial discrimination in the conduct of the trial was inevitable. We find no such discrimination. We find that appellant was not denied any of his constitutional rights (state or federal) by the prosecution striking all six blacks from the venire.

We discussed this same point of law in detail in Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied, Ala., 335 So.2d 688 (1976) wherein we reached the same conclusion as we do here, based upon Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). This case is significantly weaker than that presented in Liptroth. There, the defense (after striking the jury but before trial) presented several attorneys as witnesses, attempting to show that the striking of blacks from juries was systematic in Jefferson County. In the instant case, appellant merely makes a verbal motion and offers no evidence on the question of systematic exclusion of blacks.

Likewise, the appellant waited until after the jury was empaneled and sworn and jeopardy had attached before making the motion which he could have easily made before the trial commenced. Counsel for appellant were given every opportunity to raise this point at the proper time, but did not do so. The record shows clearly that after striking the jury, counsel for appellant announced that the defense was satisfied with the jury.

During the selection process, one of appellant’s attorneys started to make some objection or statement, but was told by the trial judge to wait and do so outside the presence of the jury. When the jury was selected, but before being sworn, the following occurred outside the presence of the jury:

"THU COURT: Now, Mr. Tucker, do you want to make an objection?
“MR. TUCKER: No.
“THE COURT: I thought you wanted to make an objection? You just wanted to make it in front of the jury, is that what you wanted to do?
“MR. TUCKER: No, sir. I started to make a statement and you said wait ’til later .
“THE COURT: I assumed you wanted to make an objection to the State striking blacks.
“MR. TUCKER: Perhaps you could have assumed wrong.
“THE COURT: Well, you may make a statement now, whatever statement you wish to make.
“MR. TUCKER: No.”

It is clear that the appellant’s motion, after the completion of the testimony of three witnesses, came too late. In any event, the motion was to quash the indictment. The composition of the petit jury has absolutely no relationship to the validity of the indictment whatsoever, and this alone would sustain the ruling of the trial court.

B. Motion to Exclude Testimony of Expert

Appellant’s motion to exclude the testimony of the assistant pathologist, as to cause of death, came too late. Counsel for appellant sat through the entire testimony of witness Jay Glass and never objected to his qualifications as an expert witness. The defense questioned him extensively on voir dire and on cross-examination. The State finished its redirect examination, and the witness was excused. Trial was adjourned for the night, and it was not until the next day that counsel for appellant challenged the witness’ qualifications.

A very recent decision of our Supreme Court on this point is Chatom v. State (1977) Ala., 348 So.2d 838. In a concurring opinion to that plurality decision, Justice Beatty aptly stated:

“ . , , A defendant cannot speculate on what a witness will say, and when the answer is responsive but unfavorable move to have that answer excluded. Tanner v. State, 37 Ala.App. 256, 66 So.2d 827, cert. granted, 259 Ala. 306, 66 So.2d 836 (1953); Matson v. State, 27 Ala.App. 896, 173 So. 612, cert. den., 234 Ala. 74, 178 So. 617 (1937); Ala. Dig., Crim. Law, ®*»696(5) , , .

The question of qualification of a person as an expert witness rests within the sound discretion of the trial judge. We find no abuse of discretion in this instance. Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied, 294 Ala. 764, 318 So.2d 341 (1975).

II

After the fourth witness had completed his testimony, counsel for appellant moved to dismiss the case and quash the indictment on the ground that appellant was denied a speedy trial. We are at a loss as to why counsel waited until that stage of the trial to make his motion.

The record discloses that appellant was arrested and jailed on the indictment on May 20, 1975. The instant trial began January 26, 1976. Appellant had previously made written motion for a speedy trial on August 6, 1975, which was set for hearing, but the record is silent as to whether a hearing was ever held or a ruling rendered on the motion. No testimony was offered on the motion. From argument between opposing counsel and earlier testimony of James Brown, it appears that Brown, a vital State’s witness, was serving with the Army in Germany at the earlier term of the circuit court which was the main cause for the delay until January 1976. Appellant filed for a continuance on October 13, 1975.

In Broadnax v. State, 54 Ala.App. 546, 310 So.2d 265 (1975) we set out fully the requirements necessary to properly raise the speedy trial issue and the factors to be considered pursuant to Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We will not state again, in this opinion, each of those factors. It is sufficient to point out that length of time from arrest to trial is not the only factor to be considered. The State’s reason for delay may be given consideration. Prejudice to the defendant’s rights are considered also.

Where appellant’s counsel files a motion for speedy trial which he allows to lay dormant without pursuing a hearing or ruling; and where he files a request for a continuance shortly after making his speedy trial motion; and where he fails to bring the speedy trial issue to the attention of the trial court until after four witnesses have testified during the trial, we would certainly say he has waived his motion. Likewise, considering the reason for the State’s delay, to obtain a vital witness, we find no constitutional violation in the delay here.

III

Appellant assigns as error the trial court’s ruling on the following voir dire examination of the venire by one of appellant’s counsel:

“MR. NEWTON: Would each of you give, these three people’s testimony the same weight that you would give the testimony of the police officers or any other person who sits in this witness chair that you would give to any other witness and would you not be prejudiced toward them because they are relatives of this defendant?
“Mr. JOHNSON: I object to the form.
“THE COURT: Sustained as to the form. Many things influence people’s opinions, you may ask them right now, not knowing what they’ve testified to or anything, would they automatically disbelieve them. You may ask that.
“MR. NEWTON: Would you ladies and gentlemen, because these people that you have been introduced to are relatives of the defendant, would you disbelieve them for the sole reason that they are relatives?
“MR. JOHNSON: I object to that.
“THE COURT: Sustained. This is a factor which may enter into someone’s judgment.
“MR. NEWTON: We except.”

Title 30, § 52, Code of Alabama, states:

“In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.” (Emphasis supplied.)

The trial court instructed counsel as to what form he would allow the question to be asked. Counsel propounded the question in different phraseology than dictated by the court, and after the State’s objection was sustained a second time, the matter was abandoned. All counsel had to do was to repeat verbatim the question as styled by the judge, but he failed to do so. The extent and scope of examination of prospective jurors is a matter within the sound discretion of the trial judge, and his conduct of the examination, absent abuse of discretion, will not result in reversible error. Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678 (1976); Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied, 293 Ala. 746, 309 So.2d 850 (1974).

Our late and much esteemed Presiding Judge Cates wrote in Ward v. State, 44 Ala.App. 229, 206 So.2d 897, cert. denied, 281 Ala. 650, 206 So.2d 922 (1967):

“In § 52, supra, we find two ‘rights’ of examination: (1) as to qualifications, interest or bias affecting the trial; and (2), under the court’s direction, as to any matter which might affect the verdict.
$ * * * # %
“Carefully analyzing the operation of § 52, supra, as construed by cases such as New York Times v, Sullivan, 273 Ala. 656, 144 So.2d 25, and Aaron v. State, 273 Ala. 337, 139 So.2d 309, we consider that our Supreme Court has avulsed the mandatory ‘shall have the right' twice used in § 52 into a mere precatory adjuration to the humane instincts of the trial judge. The question of the voir dire examination of would be jurors allowed or disallowed below is not subject to review on appeal. Rose v. Magro, 220 Ala. 120, 124 So. 296 (hn. 10). (Italics added.)”

Since the question was an indirect inquiry as to what weight, if any, the jury might give to the testimony of a relative of the defendant, it appears to be encroaching upon an area normally reserved to requested charges or to the oral charge of the trial judge. As an analogy, the court instructed the jury that the testimony of the defendant should not be arbitrarily rejected simply because he was the defendant; however, his interest in the outcome of the case could be considered in determining the weight to be given his testimony. Had counsel for the appellant attempted to examine the venire on the weight they might give to the testimony of the appellant, we doubt that a trial judge would be reversed in any court for refusing to allow such inquiry. The question asked in the instant case appears to us to fall within that area over which the trial court has considerable discretion. We find no abuse of that discretion.

There was no motion to exclude the State’s evidence at the end of its case in chief, no requested charges, no exception to the court’s oral charge, and no motion for a new trial. The sufficiency of the evidence is therefore not in question. Hunter v, State, Ala.Or.App., 331 So.2d 406 (1976).

AFFIRMED.

All the Judges concur.

      . Although peremptory challenges apply only in civil cases, the term is commonly used in reference to the struck jury method of selecting a jury in criminal cases in Alabama.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re Louis SCHONBRUN.
    No. 50341.
    Supreme Court of Florida.
    July 28, 1977.
    James P. Hollaway, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Louis Schonbrun, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Leave to Resign pursuant to Rule 11.08 of the Integration Rule of The Florida Bar.

On the 8th day of March, 1976 The Florida Bar served its Complaint against Respondent alleging as follows:

1. The Respondent, Louis Schonbrun is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
3. On or about September 5, 1972, Respondent drafted a will for Albert Haber.
4. On or about September 5, 1972, Respondent delivered the aforementioned will to Albert Haber.
5. Albert Haber died on January 24, 1975.
6. On or about January 29, 1975, Respondent discovered that Albert Haber had not executed the aforementioned will in the presence of two witnesses.
7. On or about January 29, 1975, Respondent directed Albert Haber’s widow, Betty Lou Haber, to have two people sign Albert Haber’s will of September 5, 1972 as witnesses.
8. Respondent informed Betty Lou Haber that he could not become involved in obtaining the necessary signatures of the two persons who were to sign Albert Haber’s will.
9. Subsequent to Respondent’s discovery that the will lacked the signatures of two necessary witnesses, and subsequent to his directions to Betty Lou Haber to obtain two signatures as purported witnesses, Betty Lou Haber secured the signatures of Barbara Jean Graham and Zeffa Mae Staples.
10. Thereafter, on or about January 30, 1975, Barbara Jean Graham, in the company of Respondent’s son, attested to her signature on Albert Haber’s will of September 5, 1972.
11. The September 5,1972 will of Albert Haber, with the purported witnesses’ signatures, was filed for probate on February 7, 1975.
12. By reason of the foregoing conduct, Respondent has violated Disciplinary Rules 1-102(A)(2), 1402(A)(3), 1= 102(A)(4), 1-102(A)(5), 1-102(A)(6), 7-102(A)(2), 7-102(A)(4), 7.402(A)(5), 7= 102(A)(6), 7-102(B)(l) and 7-102(B)(2) of the Code of Professional Responsibility.

Pending disposition of these charges Respondent filed a Petition for Leave to Resign.

The Petition for Leave to Resign is panted on the following conditions: 1. Petitioner shall pay the costs of the proceedings in the amount of Five Hundred Forty-Five Dollars and Twenty Cents ($545.20); 2. Confidentiality is hereby waived; and 3. Petitioner is hereby required to prove rehabilitation as contemplated by Rule 11.11 of the Florida Intepation Rule and Bylaws thereunder requiring successful completion of The Florida Bar examination.

It is so ordered.

ADKINS, Acting C. J., and BOYD, ING-LAND, SUNDBIRQ and HATCHITT, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Samuel A. PRICE, Respondent.
    No. 51862.
    Supreme Court of Florida.
    July 28, 1977.
    Elinor P. Smith, Asst. Staff Counsel, Tallahassee, for The Florida Bar, Complainant,
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

The petition filed by The Florida Bar sets forth as follows:

1. During the summer of 1976, Respondent, Samuel A. Price, represented a Mr. T. J. Tucker in a mortgage foreclosure action.
2. The plaintiff-mortgagee, against the advice of his own attorney, talked directly with Mr. Tucker about a “deal” — -a portion of the mortgaged property would be voluntarily signed over to the plaintiff and Mr. Tucker would retain the rest, borrowing from the Small Business Association to pay the plaintiff.
3. Mr. Tucker and the plaintiff insisted that Respondent prepare an agreement reciting the deal. When Respondent attempted to call plaintiff’s attorney and found him unavailable, he prepared the agreement.
4. Mr. Tucker signed the agreement, as did the plaintiff, despite Respondent’s advice to see his own attorney.
5. In February of 1976, plaintiff’s attorney filed a motion for summary judgment. Respondent’s partner informed the court of the agreement at that time, but the court entered a summary judgment and Mr. Tucker’s property was bought by the plaintiff at the foreclosure sale.
6. Respondent’s neglect in failing to file any pleadings or affidavits prior to the summary judgment hearing on the defense of the agreement prejudiced his client’s interest.
7. During September of 1975, Respondent represented a client, Mary Fowler, in the purchase of an apartment building.
8. The sellers eventually decided not to sell to Ms. Fowler.
9. The broker for the realty company handling the property then approached Respondent about buying the property and deeding it to Respondent’s client. After much pressure from the broker, Respondent finally agreed to the proposition.
10. Just before the closing, the sellers discovered that Respondent had several judgments entered against him. One of these judgments was for a suit on a promissory note given by the Central Bank of Palm Beach.
11. Respondent was again pressured, this time to borrow money to pay off the judgments.
12. Respondent was able to borrow enough money for some, but not all of the judgments.
13. On September 19, 1975, Respondent signed and entered a false satisfaction of judgment for the suit on the promissory note.
14. Shortly after the false satisfaction of judgment was discovered by Central Bank, Respondent paid the judgment. A valid satisfaction of judgment was entered on October 2, 1975.
15. Pursuant to complaints filed by Mr. Tucker and counsel for Central Bank, investigative proceedings were held on May 28, 1976, by the Fifteenth Judicial Circuit Grievance Committee “C.”
16. On September 20, 1976, Committee 15C found probable cause in both complaints justifying further disciplinary proceedings against Respondent. The committee also found several factors in mitigation of Respondent’s unethical conduct.
17. In the Tucker complaint, the committee found that Respondent’s neglect was mitigated by the client’s failure to comply with the agreement and the irresponsible attitude of both Respondent’s client and the plaintiff in not working through their attorneys.
18. Mitigating both of the complaints was Respondent’s many personal problems at the time. His practice was failing, as was his marriage, he was in poor health and his child had just died. Respondent began seeing a psychiatrist for the emotional stress caused by these problems.
19. On September 23, 1976, Respondent filed a statement of intent to file a conditional guilty plea for a private reprimand in the Tucker complaint and a 30-day suspension in the complaint by Central Bank.
20. At its March 1977 meeting, the Board of Governors of The Florida Bar found probable cause in both cases against Respondent. Rather than accepting the tendered plea of a Board level private reprimand in one case and a 30-day suspension in the other, however, the Board authorized staff counsel to accept a consent judgment for a 30-day suspension on the consolidated cases. A copy of staff counsel’s letter to respondent’s attorney, offering a consent judgment is attached hereto as EXHIBIT “1.” See following illustration.
21. Thereafter, staff counsel submitted a conditional guilty plea for consent judgment to Respondent. The original conditional plea for consent judgment, executed by Respondent, juugmciii/, OAcuutcu kjy xvgojl/vjuu.cíiu, is attached hereto as EXHIBIT “2.” See following illustration.

The conditional guilty plea for consent judgment is hereby approved by the Court and Respondent, Samuel A. Price, is hereby disciplined by public reprimand to be published in the Southern Reporter; a thirty (80)-day suspension to begin September 1, 1977 (with automatic reinstatement); and with Respondent giving notice to his clients pursuant to Rule 11.10(6) of the Integration Rule of The Florida Bar.

Costs in'the amount of One Hundred Fifty-One Dollars and Ninety Gents ($151.90) are hereby taxed against Respondent, said sum to be paid within thirty (80) days from this date.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and KARL, JJ., concur.