text:
    David OWENS, alias v. STATE.
    5 Div. 326.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.

      Baker, Lester & Wilkes, Opelika, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was charged with obtaining personal property by false pretense, a crime made punishable as if it were larceny. Code of Alabama 1940, Tit. 14, § 209. The indictment substantially followed the language prescribed by Tit. 15, § 259, Form 60. The value of the property, several items of clothing, was alleged in the indictment and shown by the evidence to have been four-five times twenty-five dollars, the minimum requirement in value for grand larceny, which is punishable by imprisonment in the penitentiary for not less than one nor more than ten years. Code of Alabama, Tit. 14, § 331.

Upon return of a verdict of guilty, the court sentenced defendant to imprisonment in the penitentiary for ten years.

Evidence for the State was that defendant obtained the items of merchandise alleged in the indictment and charged them to Barbara Owens; that defendant signed the charge slip, which had on it (in printed handwriting, not that of defendant), “David Owens” and in parenthesis “Barbara.” The salesman, the owner and operator of the establishment known as “Parkers,” which has a store in Auburn, the city of the alleged offense, and another store in Opelika, testified that defendant “said he wanted to charge them to David Owens and we looked up the account and there is no David Owens in the accounts and he told me to — it’s in the name of ‘Barbara Owens.’ ”

Barbara Owens did have an account at Parkers; she testified she did not know defendant.

There was other incriminating evidence, including testimony of a sales clerk at the Opelika store of Parkers that on a previous occasion, about ten days before, defendant had purchased merchandise from her and told her to put it on the account of Barbara Owens, which she did, and testimony of a police officer that after apprehension of defendant at Parkers at Opelika, three days after the alleged crime and after a full explanation to defendant of his rights, defendant stated that he “and Barbara Owens were cousins” and that they had a joint account at Parkers.

In defendant’s testimony, he admitted purchasing the goods, taking them home with him, but he denied that he had requested that they be charged to anyone other than himself. His testimony was, “I requested them to charge them to myself, not to no one else, not to Barbara Owens, to my own.” He further denied that he had told the police officer that he and Barbara were cousins and that he and she had an account at the particular commercial establishment.

The direct conflict in the evidence as to what took place in connection with the purchase of the merchandise alleged in the indictment on which defendant was tried presented a jury question as to the guilt of defendant. If they believed defendant’s testimony, he was not guilty. On the other hand, if they disbelieved his testimony as to what he said and did, and believed the testimony of the owner of Parkers, another salesman of Parkers and the testimony of the police officer, the jury could find therefrom that defendant falsely pretended, with intent to defraud, that he was authorized to charge the purchase of merchandise to the account of Barbara Owens and that by means of such false pretense he obtained the merchandise. It is not contended otherwise on appeal.

On direct examination of defendant, he was asked the following question: “State whether or not on any of these three times that you were in Parker’s, that it was your intention to injure or defraud someone in order to obtain these goods?” There was an objection by the State, but defendant answered, “No, sir.” before there was a ruling on the objection. However, the court sustained the objection, and upon motion of the State excluded the answer. To this action of the court defendant’s counsel expressly excepted and urges on appeal that the same constituted reversible error.

A correct decision of the particular question requires a consideration of the rule once obtaining in Alabama to the effect that a witness could not testify on direct examination as to his uncommunicat-ed state of mind, and the recent overruling of cases that so held, in Starr v. Starr, 293 Ala. 204, 301 So.2d 78, and subsequent cases following the lead of Starr v. Starr. In the highly regarded opinion in that case, it was stated:

“We now hold that a witness, on direct examination, may testify as to his intention, motive or other physically unexpressed mental state, provided that the testimony is material to the issues in the case. This is another area where the sound discretion of the trial judge will come into play. Thus we will not review the court’s ruling in either admitting or excluding such evidence in the absence of abuse. To the extent Low v. Low [255 Ala. 536, 52 So.2d 218], and other cases conflict with this point, they are hereby overruled.” (2d emphasis supplied)

We take this statement as our Polaris in this case. We have applied it in Roynica v. State, 54 Ala.App. 436, 309 So.2d 475; Thornton v. State, 55 Ala.App. 462, 316 So.2d 710; Armstead v. State, 57 Ala.App. 459, 329 So.2d 150.

Starr v. Starr and Tolbert v. State, 294 Ala. 738, 321 So.2d 227, are now working in tandem in that order. Appellant argues that a defendant “should be free to testify as to his intent and mental process to rebut the evidence offered by the State or any inferences drawn therefrom, and cites Tol-bert in support of the argument. Tolbert did not so hold. It was stated therein:

“Thus, a defendant is free to testify as to his intent and mental process to rebut any presumption arising from the prima facie section of the Worthless Check Act. [Act No. 2479, Vol. 5, p. 3958, Oct. 1, 1971].”

The court was distinguishing Goolsby v. State, 213 Ala. 351, 104 So. 901, which held the then bad check law unconstitutional, in creating a presumption of fraudulent intent but leaving defendant, under the then extant rule of evidence, unable to testify as to his intent. The court in Tolbert logically concluded that what was held in Goolsby as to the bad check law no longer applied to a similar bad check law for that the reason for the holding was a rule of evidence that no longer applied, as held in Starr v. Starr. In order for such a law to be constitutional, defendant must be free to testify as to his intent and mental process to rebut any presumption arising from the particular law.

On the heel of Tolbert came Grimes v. State, 56 Ala.App. 439, 322 So.2d 729, cert. denied 295 Ala. 403, 322 So.2d 733, in which it was held that the trial court committed reversible error in sustaining the State’s objection to a question asked defendant on direct examination, on trial for assault with intent to murder his wife, “Did you intend to murder her?” The court did not overlook, but quoted from Starr to the effect that whether one should be allowed to testify on direct examination as to his unexpressed intention or the like was in the area of a trial court’s discretion and “Thus we will not review the court’s ruling in either admitting or excluding such evidence in the absence of abuse.” An analysis of the particular situation resulted in the conclusion that defendant’s intent “was an outstanding and material issue before the jury” and that under the special circumstances of that case the action of the court constituted prejudicial error.

In the instant case, whether there was fraudulent intent was an issue raised by defendant’s plea of not guilty, but the transcendent issue of fact was as to what defendant did and said. If he did and said what the owner of the store, a saleslady, and a police officer, testified, as stated above, he could have been found not guilty, but there could have been little reasonable contention that he was not guilty. On the other hand, if their testimony was not true in this respect, if defendant’s testimony to the effect that he did not request that the items be charged to the account of anyone other than himself, he was not guilty. That issue was the battleground and there was no other area of genuine contest. Defendant’s categorical answer to the question propounded to him would hardly have been of much value, as defendant’s answer in Grimes would probably have been. To be consistent with both Starr and Grimes, we must say, that, although there are situations in which the trial court is required to admit in evidence on direct examination of a witness his uncommunicated state of mind, such a situation is not presented here, and the trial court was acting within its area of discretion, without abuse, in sustaining the State’s objection. It should be noted also that the question was broader than any possible issue in the case, in including the third occasion defendant was in a Parkers store, as to which there was no contention that there was any effort of defendant to commit any crime. There was neither error nor prejudice to defendant in the particular ruling of the court.

Of the twenty-seven written charges requested by defendant, the court gave nine and refused eighteen. Appellant seeks to predicate error upon the refusal of each of seven requested written charges.

Charge 15 mistakenly referred to “statements made by the accused to” a person other than the one to whom the alleged false pretense was made. It was inapplicable and properly refused.

Charge 13, in hypothesizing a belief of the jury, did not qualify the belief as one arising from, or based upon, the evidence. It was properly refused. Locklear v. Nash, 275 Ala. 95, 152 So.2d 421; Shadle v. State, 280 Ala. 379, 194 So.2d 538.

Charges 10 and 12 requiring a false or fraudulent representation as to an existing fact were substantially covered by portions of the court’s oral charge to that effect. The same is true as to charge 14.

On the authority of Gilmore v. State, 99 Ala. 154, 13 So. 536, in its treatment of charges 3 and 6 therein, which were held to have been erroneously refused, defendant urges the trial court was in error in refusing the following charge:

“Ladies and Gentlemen of the Jury, the Court instructs you that the evidence against the Defendant is partly circumstantial, and his innocence must be presumed by the Jury until the case against him is proved in all its material circumstances beyond a reasonable doubt, then you must continue to presume that the Defendant is innocent, and failure of the State of Alabama to prove the alleged offense in all of its material circumstances beyond a reasonable doubt, requires you to return a verdict of not guilty.”

The charge contains some of the language of the charges held to have been erroneously refused in Gilmore. A close reading of the charge reveals that it is different from such charges, that its meaning is different from that intended in the preparation of it and that it is involved and misleading. The trial court cannot be put in error for refusing written charges that are not free from involvement and misleading tendencies. Guenther v. State, 282 Ala. 620, 213 So.2d 679, cert. denied 393 U.S. 1107, 89 S.Ct. 916, 21 L.Ed.2d 803; Kemp v. State, 278 Ala. 637, 179 So.2d 762; Lowe v. State, 54 Ala.App. 280, 307 So.2d 86.

Appellant complains also of the trial court’s refusal to give the following written charge requested by defendant:

“17. Ladies and Gentlemen of the Jury, the Court charges you that the intent to defraud is a necessary ingredient of the offense of false pretenses. Intent to injure without an intent to defraud is not sufficient to constitute the crime of false pretenses. If you should find that the defendant, David Owens, did not possess an intent to defraud, then it is your sworn duty to return a verdict of not guilty.”

The court, in various instances in its oral charge, stated that “intent to defraud” was an element of the crime. In one of the instances it said:

“Now, you will note that intent to defraud is a very important element of obtaining property by false pretense. The Court has told you that there are five elements and I have enumerated those five elements. Well, intent is one of those elements and a very important element.”

The statute proscribing the particular offense (Code 1940, Tit. 14, § 209) includes the element, “with the intent to injure or defraud.” Chief Justice Stone in Carlisle v. State, 76 Ala. 75 (1884) noted the difference between the language of the statutory crime and the language of the Code form (Form 48, Code of 1870, p. 996) and stated:

“The only injury that can be inflicted, ‘by any false pretense or token,’ by which one person ‘obtains from another any money or other personal property,’ is the deception which imposes on the confidence of that other. This is a fraud; and we cannot think the Legislature, in employing the word ‘injure,’ intended to express, or, considering the connection, could express more or less than is implied in the word ‘defraud.’ ”

Carlisle held that it was error for the trial court to refuse a written charge to the effect that the intent to defraud was a necessary ingredient of the offense, and the holding was followed in Hope v. State, 5 Ala.App. 123, 59 So. 326. The prescribed Code form in Tit. 15, § 259, (Form 60) states, “with intent to defraud.” The indictment in this ease followed the Code form and did not contain the words “injure or.” In the court’s oral charge the words “injure or defraud” are employed at times in defining or explaining the offense. The language “injure or defraud” is used in three or four instances in written charges given at the request of defendant. Defendant in the instant case asked for more than did defendant in Carlisle and Hope. In asking that the jury be instructed that the intent to defraud is a necessary ingredient, he was asking for no more than that to which he would ordinarily have been entitled, but which had been substantially given in the court’s oral charge. In asking for a distinction between intent to injure and intent to defraud, defendant would have been asking for a proper distinction if the words “fraud” and “injure” had been used in contrast, but when, as here, the words had been used synonymously, without protest and in fact at the solicitation of defendant, the distinction was without a difference, and the giving of the charge would have been confusing and without value to defendant. The position taken by defendant throughout the trial was that he said and did nothing by which he intended to defraud or injure. There was no contention that what he said or did was, or that it could have been, with an intent to injure but without intent to defraud. Following the language and the reasoning of Chief Justice Stone in Carlisle, “We cannot think” that the jury thought that the court, “. in employing the word ‘injure’ intended to express, or, considering the connection, could express more or less than is implied in the word ‘defraud.’ ” Charge 17 was refused without error prejudicial to defendant.

We have considered all questions raised by appellant and have fully reviewed the record in a search for any error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

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


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Ex parte David OWENS.
    SC 2207.
    Supreme Court of Alabama.
    Dec. 17, 1976.
   BLOODWORTH, Justice.

WRIT DENIED, Ala.Cr.App., 340 So.2d 860.

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


author: HARRIS, Judge.

text:
    Robert PIKE v. STATE.
    5 Div. 353.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.

      L. H. Walden, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of violating the Alabama Uniform Controlled Substances Act and the Court sentenced him to six years imprisonment in the penitentiary. Appellant was represented at arraignment and trial by counsel of his own choice. He pleaded not guilty. After conviction he gave notice of appeal and his bond was fixed at $10,000.00, and he is free on bond pending this appeal.

The evidence presented by the State made out a clear case for the jury on the issue of appellant’s guilt vel non of the possession and sale of marihuana. The thrust of appellant’s defense was that he was entrapped into the commission of the offense by the Sheriff of Coosa County, Alabama. Appellant did not testify in his defense.

The first witness called by the State was Mr. Fred Taylor Noggle who testified that he was employed as a Toxicologist with the State Department of Toxicology and Criminal Investigation at Auburn, Alabama. Mr. Noggle stated his education, experience and qualifications. His qualifications were not disputed or questioned by the defense. He said that during the five years as a Toxicologist he had conducted several thousand tests to determine the contents of articles and material submitted to him for examination and analysis. He further testified that on January 28, 1976, around 2:35 p. m., Sheriff Jasper Fielding personally delivered to him a “sealed plastic evidence envelope which contained six clear plastic sandwich type bags each containing a green-brown vegetable matter,” and that a laboratory analysis of the vegetable matter revealed the “presence of marijuana.” He further testified that State’s Exhibit Number 1 contained the six sandwich type bags and the substances found were all the resins contained in the marihuana plant including tetrahydrocannabinol and other cannabinol substances. He stated that State’s Exhibit Number 1 was in the same condition as it was when he received it from Sheriff Fielding, “with the exception of the identification marks which I put on it and a portion of the material which I removed in the examination.”

Sheriff Jasper Fielding testified that he was serving his sixth year as Sheriff of Coosa County and that Danny Holman was one of his Deputies on January 23, 1976. He stated that he knew Billy Browning and that Browning had no connection with the Sheriff’s Office. He further testified that on the night of January 23,1976, he was at a ball game in Goodwater and he got a radio call that someone wanted to meet him on Highway 40 in a log truck. He drove on Highway 40 and met Billy Browning around 8:00 p. m. between Rockford and Goodwater and had a conversation with him. They parted and the Sheriff returned to the jail in Rockford and had the officers pick up Browning and bring him to the jail where he had another conversation with him. As a result of this particular conversation the Sheriff turned over to Browning and Deputy Holman a shotgun and two pistols to carry to appellant’s home to exchange the weapons for marihuana. Shortly before midnight the Sheriff met Holman and Browning at a prearranged place and received from them six lids of marihuana which he locked in an evidence drawer and later delivered to Noggle at the Toxicology Laboratory in Auburn. The Sheriff never saw the guns again.

The Sheriff further testified that when he turned the weapons over to Holman and Browning he was aware that on information he had received from Browning earlier that night, that if he had some guns, he could acquire some marihuana from appellant. He told Holman and Browning to take the guns and get all the marihuana that appellant would swap for the weapons. The Sheriff identified State’s Exhibit Number 1 as the marihuana he received from Holman and Browning on the night of January 23, 1976. He stated that he did not make any promises, threats, or offer any rewards to Browning to get him to go to appellant’s house on the night of January 23, 1976, to swap the guns for marihuana.

On cross-examination the Sheriff said he knew there was a charge of burglary pending against Browning before he went to appellant’s house, but that he made him no promises whatsoever to get him to go to appellant’s home and swap the guns for marihuana. He stated that the reason that Browning had not been indicted for the burglary was because the man who owned the lake cabin didn’t want to press charges.

Billy Browning testified that he lived in Sylacauga, Alabama, and that appellant was his uncle by marriage and he had known him six or seven years. He further stated that he and Danny Holman met Sheriff Fielding around 11:00 or 11:30 p. m. on January 23, 1976, and that the Sheriff gave them some guns. He said they took the guns to appellant’s home that night and appellant offered them $75.00 for the guns. Browning reminded appellant about the deal they had made that afternoon, and asked him if he would trade marihuana for the guns. Appellant agreed and there were some negotiations as to the quantity of marihuana. Holman wanted eight lids and appellant said he would give them six. Holman then suggested seven lids and appellant stood pat on six and said they could either take six or $75.00 and they traded the three guns for six lids of marihuana. Browning further testified that when they got ready to leave, the appellant said, “I’ll take a thousand dollars worth of guns at the same price.”

Browning identified State’s Exhibit Number 1 as the marihuana he and Holman received from appellant in a trade for the weapons. He stated that he and Holman gave Sheriff Fielding the six bags of marihuana shortly after leaving appellant’s house. He further stated that the exchange of weapons for marihuana was pursuant to an agreement he made with appellant earlier on January 23, 1976.

Browning further testified that prior to going to appellant’s home on January 23, 1976, the Sheriff had not promised him any help or pressured him or threatened him in any way to get him to go to appellant’s home and take Danny Holman with him. He stated that the Sheriff did not give him six lids of marihuana to take to appellant’s home and plant the marihuana on him. He further said that he did not know of his own knowledge where appellant got the six lids of marihuana. Browning admitted that he had recently told a different story from his testimony and that this conflicting statement had been tape-recorded.

On cross-examination he testified that he did not want to testify against appellant and he went to look for him. He saw him on the streets of Sylacauga and appellant asked him to go to a lawyer’s office and tell him that the Sheriff had set him up. Browning told appellant that he wished he could just leave town and appellant said, “Well, Little Bill, I will give you $200.00 just to get out of town.” Browning hesitated and appellant told him, “I will even do better than that. If you will come in here and tell Lawyer-that Jasper Fielding tried to set me up I will give you $500.00.”

Browning further testified that the Sheriff did not give him marihuana to carry and place in appellant’s house. At this point counsel for appellant moved the Court to permit the tape-recorded statement that Browning gave appellant’s lawyer to be played to the jury. After much argument of counsel the Court finally ruled that the statement could be played to the jury. The tape-recorded statement covers 17 pages of the transcript and we do not see the necessity of setting it out in this opinion.

Suffice it to say that the tape-recorded statement given by Browning to appellant’s attorney in the presence of appellant and his wife contradicted the testimony Browning gave on direct examination. In substance the statement is to the effect that the Sheriff gave Browning the marihuana to carry to appellant’s home and later that night the Sheriff turned over a shotgun and two pistols to Browning to take to appellant’s home and swap them for the marihuana that the Sheriff had given to Browning to take to appellant’s home. The statement on the tape indicated that the Sheriff would help Browning on the burglary charge pending against him and would also try to help him on a case against him then pending in the State of Florida.

After the tape was played to the jury, Browning was further questioned by appellant’s counsel and he testified that what he said on the tape was what appellant told him to say. He further testified that the Sheriff had not tried to get him to carry any marihuana over to appellant’s house. He further stated that he had not been threatened by the Sheriff of Coosa County, that if he did not carry the marihuana to appellant’s house that he was going to be indicted for burglary and that he did not feel like that he was in a crack about the pending charge against him.

On redirect examination he testified that he stole a portable television set and carried it to appellant’s house and sold it to him for $20.00 and after the tape was made, he said that appellant paid him $170.00 and that he left Alabama and went to Longview, Texas, and decided that he would just come back to Alabama because he realized that if he did not come back, that appellant was going to get out of the marijuana charge and that he was going to prison and he did not know how long he was going to have to serve but he did not want to see appellant get out and walk away. He further testified that appellant told him he was going to give him $500.00 to testify that the Sheriff had set him up but he never got the $500.00.

Mr. John Daniel Holman, also known as Danny Holman, testified that he was a Deputy Sheriff of Coosa County; that on January 23,1976, the Sheriff turned over to him and to Billy Browning a shotgun and two pistols and they carried the weapons to appellant’s home for the purpose of swapping the weapons for marijuana. He stated that when they arrived at appellant’s home, it was around 11:30 p. m. on January 23, 1976, and a conversation took place in regard to the guns in which appellant said he would take the guns and he asked appellant to make them an offer. Appellant told him in the presence of Browning that he would give them six lids of marijuana in exchange for the weapons and that he told appellant that they would take eight lids. Appellant said he could not do that. Then Holman asked if he would make it seven and appellant replied that he couldn’t do that but that he would give six lids of marijuana or $75.00 in cash or just to go on and forget about it; that Holman then told him he would take the six lids. That all of this conversation took place in the kitchen of appellant’s home. He said the shotgun was lying on the counter top bar in the kitchen and Browning had the two pistols in his pocket; that Browning took the pistols out and appellant looked at them and they were laid down on the counter by the shotgun and appellant put six plastic bags of marijuana down on the counter by the weapons. Holman further testified that he took three lids or bags of marijuana and Browning took the other three. Holman identified State’s Exhibit 1 as containing the six bags of marijuana that appellant gave them in exchange for the weapons. That after this transaction had taken place, he and Browning left and that after they got in the truck, he put the three bags of marijuana that he had in his possession in a paper sack and took the three plastic bags that Browning had and put them in the same paper sack.

He further testified that they then met the Sheriff shortly before midnight and turned the six bags of marijuana over to him. He identified State’s Exhibit Number 2 as the shotgun and the two pistols that he and Browning had carried to appellant’s home and which were traded for the six bags of marijuana.

Sheriff Jasper Fielding was recalled as a witness by the State and testified that in February of 1976, appellant came to his office and had a conversation with him, that prior to this conversation the Sheriff advised him of his constitutional rights and that there were no threats or promises or other inducements made by him to appellant to get him to make a statement, that appellant told him that he knew that the Sheriff had him, saying, “I know what was going on, you done caught me and I want to get out of it the easiest way I can.” Appellant admitted that the marijuana was his. At this point the State rested its case and there was no motion made by appellant’s counsel to exclude the State’s evidence.

Appellant offered the testimony of Frank Browning who was a brother-in-law of appellant. He testified that he was at appellant’s home on January 19, 1976, and that he saw Billy Browning there; Billy had a portable television. He testified that when Billy saw him, he picked up the television and started to run. He further testified that he went in the kitchen and saw two brown paper bags on the breakfast bar and that one of the bags had M & M’s candies in it, and the other bag had what appeared to be marijuana in it. He was shown State’s Exhibit 1 and testified that these were the plastic bags and one of the brown paper bags that he saw in appellant’s kitchen on the night of January 19. He further testified that he did not know who the six bags of marijuana belonged to that he saw in the kitchen of appellant’s home on January 19.

Appellant offered the testimony of other members of his family who corroborated substantially the testimony of Frank Browning and they assumed that the marijuana was brought to appellant’s home by Billy Browning but they were not certain about that.

Appellant’s wife testified in his behalf and stated that Billy Browning brought the marijuana to their home on the night of January 19, 1976, and that the marijuana was left in their home. She further testified that she was present in the car with appellant and his lawyer at the time that Billy Browning made his statement that was put on tape and that there was no mention of money and no money was passed in her presence. She said that Billy Browning stated that he would make a statement in front of a lawyer as to what he had done to get appellant into trouble because he felt the Sheriff was going to turn around and indict him and he wanted to help appellant out and that’s the reason he made the tape-recording; that Billy Browning further stated that he tried to get appellant caught so that he could get himself out of trouble.

In sum, the testimony offered on behalf of the appellant was designed to impeach the testimony of both Billy Browning and Danny Holman.

The State produced evidence to show that before appellant entered into the agreement to trade the marihuana for the weapons he turned on a police monitor or scanner to determine the location of the law enforcement officers. He heard the officers transmitting messages that they were in the Equality Community of Coosa County and being satisfied that no officers were in the vicinity of his home he went to the kitchen of his home with Browning and Holman where the trade was completed.

The rule is that extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial court to determine whether or not a confession is voluntary and unless it so appears, it should not be admitted. Myhand v. State, 259 Ala. 415, 66 So.2d 544; Phillips v. State, 248 Ala. 510, 28 So.2d 542; Hines v. State, 260 Ala. 668, 72 So.2d 296; Duncan v. State, 278 Ala. 145, 176 So.2d 840. Womack v. State, 281 Ala. 499, 205 So.2d 579; Bass v. State, 55 Ala. App. 5, 312 So.2d 576; Botsford v. State, 54 Ala.App. 482, 309 So.2d 835.

Prior to talking to appellant, who voluntarily came to the Sheriff’s Office, the Sheriff read him his constitutional rights and appellant said he understood his rights. The State introduced evidence to show that no threats were made against the accused; that he was not physically mistreated; no promises of any kind were made to him; that no reward was offered or held out to him to get him to confess, and no inducements of any kind were made to him. No evidence was offered by the defendant to the contrary. We hold that appellant’s confession that the marihuana belonged to him was properly admitted into evidence for the consideration of the jury. Luschen v. State, 51 Ala.App. 255, 284 So.2d 282.

In McCarroll v. State, 294 Ala. 87, 312 So.2d 382, the Supreme Court said:

“The defense of entrapment is not available to a defendant who denies that he committed the offense charged. Rodriquez v. United States, 227 F.2d 912 (1955, CA 5th Cir., Texas). The defense rests on the defendant’s admitting the deed but disclaiming the thought. Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716 (1960).
* * * * * *
“While the defense of entrapment may be raised when a defendant pleads not guilty, the assumption is that the act charged was committed. Rodriquez. In this case, one of the bases of the defense of entrapment — admission of the sale of heroin — was absent. Therefore, entrapment was not available to McCarroll as a defense.”

In Warren v. State, 52 Ala.App. 35, 288 So.2d 817, this Court held that in the light of the fact that defendant’s evidence showed there was no sale of marihuana there could not have been an entrapment.

Notwithstanding the lack of evidence showing a sale of marihuana by appellant the trial court fully charged the jury on the law of entrapment. The Court also gave the following written charge requested by appellant:

“The Court charges you ladies and gentlemen of the jury that if you find from the evidence that Sheriff Fielding originated the idea of suggesting to the defendant Pike that he sell or trade the marijuana, as charged in the indictment, and that such idea or scheme originated entirely with said Sheriff in an effort to catch Robert Pike in the act of selling marijuana or the attempt thereof, you must find the defendant not guilty.”

Conflicting evidence presents a question for the jury as to the defendant’s guilt. The jury resolved this issue against the appellant. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Miller v. State, 39 Ala. App. 584, 105 So.2d 711.

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

The judgment of conviction is affirmed. AFFIRMED.

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


author: JONES, Justice.

text:
    Ex parte Robert PIKE.
    SC 2196.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   JONES, Justice.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: DeCARLO, Judge.

text:
    Jim COOPER v. STATE.
    6 Div. 109.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.
    Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

This is an indigent appeal from a denial of a petition for writ of error eoram nobis.

On September 25, 1975, a hearing was held on appellant’s petition and it was subsequently denied on October 3, 1975.

There is only one insistence of error in this appeal. It is that during the course of the trial and after the jury was sworn, the defendant was not asked his consent for a jury separation.

Briefly, the facts are that the appellant, Jim Cooper, was placed on trial on a charge of violating the Alabama Uniform Controlled Substances Act. During the course of that trial and after the jury was sworn a brief recess was called. The jury was asked to retire and it was during their absence from the courtroom that the judge made the following inquiry:

“THE COURT: All right. Now, Jim Cooper, raise your right hand.
“Do you swear that the testimony you will give will be the truth, the whole truth and nothing but the truth, so help you God?
“MR. COOPER: Yes, sir.
“THE COURT: Do you consent to a separation of the jury?
“MR. TARTAR: Yes, sir. I have discussed the matter with my client and he agrees to a separation of the jury and he has discussed it with me and informed me that he has been through this once last week and he understands what is going on.
“THE COURT: Well, let the record show that he understands that the jury can be separate during their recesses, their lunch, and at night under the proper instructions of the Court and that the defendant and his counsel have agreed to it, along with the attorneys for the State.”

It is contended that although the record shows the defendant was asked for his consent to a jury separation, he clearly did not respond to the question. Counsel insists the consent of the defendant is mandatory and submits that the Supreme Court of Alabama has held in Nelson v. State, 253 Ala. 246, 43 So.2d 892, that the consent of the defendant is mandatory and cannot be supplied by defense counsel.

Appellant also maintains he did not consent to the separation of the jury and therefore the provisions of T. 30, § 97(1), Code of Alabama 1940, Recompiled 1958, has no application.

Title 30, § 97(1), supra, provides:
“If the accused and his counsel and also the prosecuting attorney, in any prosecution for felony, whether capital or non-capital consent thereto in open court, the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not. . . . ”

Further, appellant alleges that the record clearly indicates that the trial court did allow the jury to separate and the State failed to rebut the presumption of prejudice. He maintains he is now entitled to a new trial and in support of this contention he cites Pratt v. State, 48 Ala.App. 341, 264 So.2d 571.

We have searched the record as required under Code of Alabama 1940, Recompiled 1958, T. 15, § 389, and have found no ruling on this point raised in the trial court. No objection, motion for a mistrial or motion for a new trial was ever made. The original appeal from the lower court’s conviction on this charge was also examined and we found no contention raised on this point. Cooper v. State, 55 Ala.App. 576, 317 So.2d 543.

Any prejudice resulting from a jury separation cannot be raised for the first time by appeal. Turner v. State, 54 Ala. App. 467, 309 So.2d 503.

Under the facts in this case there is nothing presented to this court for consideration. The jurisdiction of this court is appellate only and review is limited to matters upon which rulings at nisi prius were invoked.

Also it appears the contention raised by appellant in the case at bar was known to him and could have been raised in the original trial and appeal to this court.

In Seagroves v. State, 53 Ala.App. 481, 301 So.2d 245, this court stated that a writ of error coram nobis could not be used as a delayed appeal but was to be used only for the review of certain matters which were not known or could not have been reasonably discovered during the time for taking a direct appeal.

Based on the foregoing, the court’s action in denying the petition was correct.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Jim COOPER.
    SC 2211.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   JONES, Justice.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    Joseph ARNOLD, Jr., a/k/a Sulayman A. Rahman v. STATE.
    7 Div. 464.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.

      J. Wilson Dinsmore, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   PER CURIAM.

The Grand Jury of Shelby County, Alabama returned an indictment against the appellant, Joseph Arnold, Jr., as follows:

He was found guilty as charged in the indictment and sentenced to three years imprisonment in the penitentiary.

The appellant is now, and was represented by counsel of his own choice at all stages of the proceedings in the trial court. This appeal was submitted to this Court on briefs. In appellant’s brief he complains of several adverse rulings by the trial court to reverse his conviction. We shall consider these complaints in the order set out in appellant’s brief.

First, the appellant contends that State’s Exhibit No. “1” varies materially from the indictment. State’s Exhibit 1 purports to be a doctor’s prescription alleged in the indictment to have been forged by the appellant, and is set out in the indictment. From a careful inspection of the record in this cause, it was apparent that it was necessary that the Court have sent up to this Court the original indictment, and the original of State’s Exhibit No. “1” for inspection.

Upon inspecting the prescription set out in the original indictment, and the original of State’s Exhibit 1 we find them to be identical. We hold that this Court has a right to have sent up to this Court for inspection an original document or exhibit when requested. Rule 13, of Appellate Procedure. State’s Exhibit 1 and the instrument set out in the indictment being identical there is no material variance.

Appellant’s next contention is that the State did not prove that the alleged forged prescription was for a controlled narcotic drug.

State’s witness, Linton Porter, testified that he lived in Alabaster, was and had been for 25 years a Licensed Pharmacist, that he owned Porter’s Drugstore in Alabaster, that on May 11,1974 State’s Exhibit 1 was presented to him with a request that it be filled, that he did not fill it, that he put his initials and the date on the piece of paper and handed it back to the customer, that he had filled other prescriptions like it, that it was for a cough syrup containing two antihistamines plus 10 milligram of co-dein per teaspoonful, that it is a schedule 5 drug, that there is a schedule set up by the Bureau of Narcotics from 5 down to 1, that the further you go down from 5 to 1 the more potent the drug is, this would be of the weaker, but it is classed as a controlled drug. That he had never filled a prescription for the doctor who signed his name to the prescription, and that he did not know a doctor in this area by that name.

Appellant insists that codein is not a controlled narcotic drug as defined in Title 22, Section 258(37) Code of Alabama, as last amended, because there it is spelled codeine, and in the record before us it is spelled codein.

There are words spelled in different ways having the same meaning. It so happens codeine is also spelled codein, and cod-eia. Webster’s New International Dictionary.

We consider the evidence sufficient to sustain a finding by the jury that the prescription was for a controlled substance as defined in Title 22, Section 258(37) Code of Alabama, as last amended.

The appellant insists that the trial court erred in overruling his motion to exclude the evidence of State’s witness Charles Ray Vance.

Vance testified in substance that he was and had been Assistant Administrator of Lloyd Nolan Hospital for the past 6 years, that the hospital had a closed staff of physicians, that he knew them all, that he was familiar with State’s Exhibit No. 1, that he did not know a Doctor Sol Bernsteine. That he did not know of a Doctor Bern-steine ever practicing at Lloyd Nolan Hospital.

The evidence offered by witness Vance was proper to go to the jury to be considered along with all the other evidence in the case on the question of a forgery by signing a fictitious name. If the name signed to State’s Exhibit No. 1 was fictitious, then it was forgery. The weight to be given the evidence was a matter for the jury to consider. Williams v. State, 126 Ala. 50, 28 So. 632; Overby v. State, 24 Ala.App. 254, 133 So. 915.

The next error insisted on by appellant in his brief is that the State failed to prove a forgery.

In addition to the testimony of State witnesses Porter and Vance the State’s witness Earnest Moore testified that he lived at Smithville in Birmingham, that he had been acquainted with the defendant about 3 years, that defendant came by Moore’s house on the morning of May 11, 1974 in defendant’s Chevrolet car. That Moore owned a 1959 Model Black Pontiac, that the defendant and Moore left Moore’s house in Moore’s car with the defendant driving and went to Ensley, Hoover and then to Big ‘B’ Drugstore in Pelham. That defendant stopped the car in the Big ‘B’ parking lot. That Moore went in the drugstore to get the prescription filled. That State’s Exhibit No. 1 is the prescription. That he did not get it filled. That before he went to Big ‘B’ Drugstore the defendant gave Moore the prescription. That it was attached to a pad of blank prescriptions. That when he left Big ‘B’ Drugstore they went on down the street a little further to Porter’s Drugstore. Moore went in Porter’s Drugstore and presented the prescription to the druggist. That Moore did not receive the drug that he requested through the prescription. Moore further testified that when defendant came to Moore’s house on the morning of May 11, 1974 that defendant said to Moore, “well, just wanted to go get some syrup.’’ That syrup is cough syrup that’s drunk, some syrup to get high on. That when they left Porter’s Drugstore they drove toward Alabaster, that the police got them in Alabaster. When the police got after them, Moore threw State’s Exhibits Nos. 1 and 2 under the car. That State’s Exhibits 1 and 2 are the pieces of paper he threw under the car when the police stopped them. That he, Moore, did not write the prescription. That he is now in prison for selling heroin, barbiturates, possession of marihuana, buying and receiving, and burglary. That the defendant was driving the car when the police stopped them.

Deputy Sheriff Cosby, a witness for the State, testified that he was at the scene of the arrest of defendant on May 11, 1974, that he saw the defendant after he had stopped the car, that the defendant was driving, that Earnest Moore was in the car when he stopped it. That the prescription forms are now in the same condition as when he got them at the scene of arrest. They were wrinkled and in mud under the car.

Officer Oliver, an Alabaster Policeman, testified that on May 11,1974 he stopped an old black Pontiac car, that Earnest Moore was on the right side and was opening the door, getting out. That Moore grabbed some prescriptions and threw them under the car. That Oliver got the prescriptions from under the car and gave them to Officer Cosby.

The appellant did not testify on the trial below. He only offered Defendant’s Exhibits 1 and 2. Defendant’s Exhibit 1 is a record in a ease in Shelby County against Earnest Moore for violating the Alabama Uniform Control Substance Act in which he was sentenced to the penitentiary for 3 years. Exhibit No. 2 is a record of a case in the same court against Earnest Moore for possession of forged prescription in which a nolle prosequi was entered.

The evidence of State’s witnesses, Porter, Vance, Moore, Cosby, and Oliver, together with State’s Exhibits One and Two, is sufficient to prove a forgery by signing a fictitious name.

This Court holds that under the evidence it was a question for the jury to determine whether or not the name signed to State’s Exhibit 1 was fictitious. If the name was fictitious, and the appellant was in possession of it, and uttered it, the jury could, in the absence of satisfactory explanation of his possession, infer that the appellant forged it or was privy thereto. Williams v. State, supra; Overby v. State, supra; St. John v. State, 55 Ala.App. 95, 313 So.2d 215; Spratlin v. State, 36 Ala.App. 463, 58 So.2d 900.

The indictment in this case charges the defendant with an attempt to obtain a controlled substance by the forgery of a prescription. This is a felony. Title 22, Sec. 258(37), (47).

An attempt to commit a crime is defined, as follows:

“An attempt to commit a crime consists of three elements: (1) The intent to commit the crime; (2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission. In other words, in order that there may be an attempt to commit a crime, whether statutory or at common law, there must be some overt act in part execution of the intent to commit the crime, but which falls short of the completed crime; the difference between attempt and commission being that the act or step fails to produce the result intended.”

Broadhead v. State, 24 Ala.App. 576, 139 So. 115; B. F. Moseley, alias v. State, 53 Ala.App. 272, 299 So.2d 317.

We hold that there is sufficient evidence in this record to sustain the jury verdict, finding the defendant guilty as charged in the indictment.

The appellant insists in his brief that the trial court erred in allowing the jury to separate during the trial. In the absence of an objection in the record to the trial court allowing the jury to separate during the trial, or a motion for a mistrial, or new trial, on those grounds the matter is not before this Court. The question was not presented to the trial judge for his ruling. Williams v. State, 44 Ala.App. 599, 217 So.2d 551; Thompson v. State, 44 Ala.App. 414, 211 So.2d 505; Wade v. State, 49 Ala. App. 601, 274 So.2d 626; Turner v. State, 54 Ala.App. 467, 309 So.2d 503.

There being no other .rulings of the trial court complained of in appellant’s brief, we have examined carefully the entire record, including:

(a) The indictment;
(b) The Court Reporter’s certificate;
(c) The Circuit Clerk’s certificate;
(d) The judgment entry;
(e) All the evidence; and
(f) The actions of the trial judge.

We find from such examination that there is no error in the record prejudicial to the appellant.

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

Affirmed.

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


text:
    Ex parte Joseph ARNOLD, Jr., a/k/a Sulayman A. Rahman.
    SC 2214.
    Supreme Court of Alabama.
    Dec. 17, 1976.
   BLOODWORTH, Justice.

WRIT DENIED, Ala.Cr.App., 340 So.2d 873.

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


author: J. EDWARD TEASE, Circuit Judge.

text:
    Robert Daniel SULLIVAN v. STATE.
    7 Div. 477.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.

      Cary F. Smith, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.
   J. EDWARD TEASE, Circuit Judge.

Defendant was convicted by a Calhoun County jury for the offense of burglary in the second degree and sentenced by the Court to five (5) years in the penitentiary.

I

The evidence tends to show that on November 23, 1975, Defendant was discovered by Mr. Hugh Borden in a building used by Mr. Borden as an apartment and a bait shop. When Mr. Borden returned from a short trip, he entered through the rear entrance of the building and the Defendant and a son exited through a front entrance of the building. Mr. Borden followed the Defendant into the front yard and fired several shots either into the air or in the general direction of the fleeing Defendant. However, Defendant escaped. The Ohat-chee Police were called and later on that same day apprehended Defendant in the same general vicinity of the building.

II

Defendant first contends that the trial Court erred in not sustaining Defendant’s motion for directed verdict, motion to exclude State’s evidence, and motion in arrest of judgment on two grounds: (1) That there was a fatal variance in the pleading and the proof inasmuch as Defendant contends the indictment alleges breaking into the “Rio Vista Bait Shop” and the evidence shows the breaking was into the apartment or residence of Mr. Hugh Borden. (2) That there was no evidence from which the jury could find the Defendant entered any building with an intent to steal.

The indictment in this case charges that the Defendant broke into and entered a “shop, store, warehouse or other building of Hugh Borden, to wit: Rio Vista Bait Shop . . . ” A careful reading of the record reveals that the building of Hugh Borden was used as a bait shop and as an apartment for Mr. Borden. There was open access from one area to the other. We find no fatal variance between the indictment and the proof at trial in regard to the building broken into.

As to ground (2) above, the question of intent is a question for the jury. Such intent of the Defendant must be inferred by the jury from a due consideration of all of the material evidence and the Defendant cannot declare his intent. Code of Alabama 1940, Recompiled 1958, Title 14, Sections 85, 86. See Hawkins v. State, 247 Ala. 576, 25 So.2d 441 (1946).

III

Defendant next contends that the Court erred in allowing into evidence testimony that the Defendant had in his possession certain currency (change), there being no showing that such currency was connected with the alleged burglary or that the currency itself was that of Hugh Borden, the owner of the building. The testimony revealed that certain change (or currency) had been taken from a cash register in the building and further that the Defendant had in his possession some thirteen (13) dollars and four (4) cents in change when he was arrested in the general vicinity of the building a short time after he was discovered therein. Such evidence was a proper and relevant circumstance to be considered by the jury and was properly admitted by the trial Court. Wiggins v. State, 31 Ala. App. 50, 12 So.2d 756 (1943).

IV

Defendant next contends that the Court erred in admitting into evidence a statement which Defendant had given to Ohat-chee Police Officers investigating this burglary. Defendant offers two grounds in support of that contention: (1) That Defendant had been told by the police officers that it would be in his best interest if he confessed and (2) that the police officers had not advised the Defendant that he was entitled to an attorney nor that an attorney would be appointed to represent him if he could not afford one.

The evidence is in conflict as to both points. Defendant testified that the officers had told him it would be in his best interest to make such a statement. However, Officer Hurston Dodgen testified that he had not told the Defendant it would be in his best interest to make such a statement.

In addition, the record reveals that Officer Hurston Dodgen testified on page 76 of the transcript, “and if he couldn’t afford an attorney, that one would be appointed for him by the Court.” In addition to the Defendant being informed by the police officers of his “Miranda” rights, the written statement which Defendant signed included a written warning of such rights. Witness Dodgen testified that he read the statement back to Defendant and that the Defendant signed the statement.

Extra-judicial statements are prima facie involuntary and inadmissible, and the duty rests in the first instance on the trial Court to determine whether or not a confession is voluntary and unless it so appears it should not be admitted. Lokos v. State, 278 Ala. 586, 179 So.2d 714; Sanders v. State, 278 Ala. 453, 179 So.2d 35.

“The true test is whether, under all the surrounding circumstances, a confession has been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor. If so, whether true or false, such a confession must be excluded from the consideration of the jury as having been procured by undue influence.” Guenther v. State, 282 Ala. 620, 213 So.2d 679, cert. denied, 393 U.S. 1107, 89 S.Ct. 916, 21 L.Ed.2d 803; Womack v. State, supra [281 Ala. 499, 205 So.2d 579],

This Court has previously recognized the fact it is not unusual for the voluntariness inquiry to present conflicting evidence. Edgil v. State, 36 Ala.App. 379, 56 So.2d 677. When such conflict occurs and the trial judge finds that the confession was voluntarily made, great weight must be given to his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Emerson v. State, supra; Harris v. State, 280 Ala. 468, 195 So.2d 521; Edgil v. State, supra. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only to be supported by substantial evidence and not to a moral certainty. Minirth v. State, 40 Ala.App. 527, 117 So.2d 355, cert. denied, 270 Ala. 288 [228], 117 So.2d 360.

V

Defendant next contends that the Court erred in allowing into evidence, over Defendant’s objection, a pistol which had been taken from the Rio Vista Bait Shop. Defendant assigns two grounds: (1) That the chain of evidence had been broken and (2) that such pistol was seized as a direct result of the illegal seizure and use of Defendant’s automobile.

A reading of the transcript reveals that the chain of evidence was complete, in that there was no missing link in the chain of possession. Powell v. State, 47 Ala.App. 582, 258 So.2d 923.

As to ground (2) above, the records show that while one of the police officers was driving the automobile of the Defendant, the Defendant appeared on roadside and pulled the pistol on the police officer. At this point, the police officer pulled his own pistol and disarmed the Defendant. Such seizure of the pistol was altogether reasonable under the circumstances and is in no way connected with possession or use of Defendant’s automobile by the police officer.

VI

We have considered the entire record under Code 1940, T. 15, Section 389, including the following:

a) The clerk’s certificate;
b) The court reporter’s certificate;
c) The statement of the organization of the court;
d) The indictment (caption, charge, conclusions, and required endorsements);
e) Judgment entry (arraignment, presence of counsel, empanelling of the jury, verdict, adjudication of guilt, allo-cutus, sentence and notice of appeal);
f) Proceedings on the motion for new trial; and
g) Each ruling of the trial judge adverse to the appellant.

From this examination we conclude that error is not made to appear.

The foregoing opinion was prepared by Hon. J. Edward Tease, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

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


text:
    Ex parte Robert Daniel SULLIVAN.
    SC 2238.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   JONES, Justice.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: NEILSON, Circuit Judge.

text:
    Thurman Clinton MOORE v. STATE.
    8 Div. 765.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Nov. 16, 1976.
    David L. Thomas, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   NEILSON, Circuit Judge.

The appellant was convicted of possession of heroin and sentenced to seven years imprisonment in the penitentiary.

I

The defendant, Thurman Moore and his cousin, Henry Moore, came to Huntsville from Ohio for a visit. The defendant bought six ounces of quinine, a substance frequently used to cut or dilute heroin, at a drugstore in Huntsville for $145.00. Moore testified that the quinine was bought solely to treat three calves he and his father-in-law, Nathan Small,' owned in Harvest, Alabama. Pat Edwards, a Deputy Sheriff, observed Moore exit the drugstore, while carrying a package, and enter an automobile; whereupon another agent followed Moore to the home of his father-in-law in Harvest.

Acting upon these observations and upon information received from the pharmacist of the drugstore and from a confidential informant, the police obtained a search warrant to search the home of Nathan Small, Thurman Moore, individually, and the automobile of Thurman Moore. When the search of Small’s home began, Moore was in the den and then was moved to the living room; whereupon, he sat on the couch. Beneath a cushion of the couch on the end where Moore was sitting, a glass vial containing a brownish powder was found by the officers. There were 5.5 milligrams of this powder and an undetermined proportion thereof was later determined to consist of heroin. In the defendant’s shirt pocket a top which fit the vial was found. Attached to this top was a spoon; however, this spoon was smaller than that which is ordinarily used to dissolve heroin. A syringe was found in the rear bedroom of the home, and in the glove compartment of the defendant’s car, another syringe was found. Also six bottles of quinine were found in the defendant’s car.

“Track marks” were present on the defendant’s arms at the time of the arrest, but they do not appear to have been present at the trial. Henry Moore, the cousin of the defendant, also had “track marks” on his arms and he testified that he had used heroin.

II

The first claim of error is that the evidence was entirely circumstantial and insufficient to exclude to a moral certainty every reasonable hypothesis but that of guilt of the appellant. After review of all the evidence, the appellant’s contention is a fruitless one because the jury verdict is well supported by the evidence.

Ill

The major issue of this appeal concerns the sufficiency of the search warrant. The question for determination is whether evidence establishing probable cause was presented to the issuing magistrate. The sole evidence upon which the warrant was issued is contained in the affidavit. The affidavit states:

“On several occasions my confidential informant has given me information concerning illicit drug activities and persons involved in illicit drugs. On each occasion my confidential informant has been found to be reliable after I had checked all information given me by my confidential informant. On 3 July 1975 my informant contacted me by telephone at about 11:40 A.M., and advised that Thomas Moore who would be driving a maroon over white 2-door Buick Electra Ohio Lie #691860 would go Elliott Drug Store, North Parkway, Huntsville, Ala. and purchase Quinine Monohydrochloride. From personal surveillance I observed the above described vehicle go to Elliott Drug and a subject enter the drug store from the vehicle whom I know as a subject who is known as Thomas Moore, at about 2:30 P.M. 3 July 1975. I later observed the same subject exit the drug store with a small package and return to the above vehicle which, which was operated by another male not known to me. I followed the above vehicle to the above address at Rt #1, Harvest, Ala. Further information received by this office is such that a subject, Thurman Moore, who owns and operates a vehicle as described above comes into Huntsville Ala. and Madison County, Ala. several times a year bringing with him “uncut” Heroin. Heroin to be cut in Madison County, Ala. with Quinine purchased by one of the above subjects. That Thurman Moore has no set or known schedule for visiting Madison Co., Ala. and therefore continuous surveil-lence could not be placed on all individuals known to be associates of Thurman
Moore. The confidential informant further advised me on 3 July 1975 at 11:40 A.M. that Thurman Moore usually visits a house on Old Rail Road Bed Rd. in Harvest, Ala. when Thurman Moore transports Heroin to Madison Co., Ala.”

Appellant contends that the affidavit is conclusory and insufficient to support issuance of the warrant and the contraband should be excluded from evidence. Brandies v. State, 44 Ala.App. 648, 219 So.2d 404 (1968); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The test for determining whether a search warrant is sufficient when based upon hearsay information is found in Aguilar, supra; Clenney v. State, 281 Ala. 9,198 So.2d 293; and Davis v. State, 286 Ala. 117, at page 119, 237 So.2d 640, at page 642 (1970); wherein it is stated that to show a substantial basis for giving credit to an informer’s hearsay as the basis for the issuance of a search warrant the magistrate must be informed of “(a) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (b) some of the circumstances from which the officer concluded that the informant was ‘credible’ or his information ‘reliable’ ”.

So long as there appears a substantial basis for crediting the hearsay, an affidavit is not to be deemed insufficient. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Bates v. State, 51 Ala.App. 338, 285 So.2d 501 (1973).

Applying the test set forth in Aguilar, supra, to the case at hand, there is no problem in ascertaining that the second half of the test has been met, because sufficient reliability on the part of the informant is shown in that the officer alleged that the informant had proven to be reliable several times in the past and that he had checked his accuracy. Mathematical tests are not required and an informer need not be shown to be reliable any particular number of times. Bates, supra, at 51 Ala. App. 342, 285 So.2d 501.

In Davis, supra, the court approved a warrant which stated that: “ ‘Information from a person whose record of reliability for correctness has been good.’ ” . “The United States Second Circuit Court of Appeals has approved a statement very similar to the one in the instant case where the informant was simply characterized as ‘an informant of previous reliability.’ United States v. Freeman, 358 F.2d 459, (2 Cir. 1966); Contra, United States ex rel. Palladino v. Gable, 281 F.Supp. 69 (E.D.Pa. 1968).”

As to the other half of the test, the court held in Davis, supra, 286 Ala. at 119, 237 So.2d at 643: “As we read Aguilar and Spinelli, they do not require anything more than a showing of circumstances necessary to enable the magistrate to determine the validity of the informant’s conclusion that the narcotics are where he says they are. This may be by an independent corroborative observation of the officer himself or it may be from information received from the informant himself.” See: Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. “It is important for the magistrate to have information before him on which he can determine that the informant’s conclusions are reasonable ‘so that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld.’ . ” Davis, supra, at 286 Ala. 120, 237 So.2d 643.

In the case at hand there was more than the mere statement of the informant that the appellant transported heroin into the State and brought it to the home of Nathan Small. The officer had received information of a large purchase of quinine to be made and he personally observed the appellant exit from the drugstore with a package and enter the automobile described previously by the informant. Additionally, another officer observed the appellant immediately drive to the home of Nathan Small as the informant had also stated. Consequently, it appears that the magistrate acted reasonably from the facts presented and that there was a sufficient basis for the issuance of the warrant because the affidavit is based upon more than the hearsay of the informant. If the officer had not personally observed the appellant at the drugstore and followed the vehicle to the home, a different result would be reached. The officer verified a portion of the information provided by the informant prior to the execution of the affidavit.

IV

The appellant’s third contention that he was a mere visitor not named in the search warrant and evidence pursuant to the warrant would not be admissable, is wholly without merit. Both the affidavit and search warrant state the name of the appellant therein and the warrant directs the sheriff to search the person of Thurman Moore.

V

After examination of the entire record we conclude that error is not made to appear.

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

The judgment below is hereby

AFFIRMED.

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


author: SHORES, Justice.

text:
    Ex parte Thurman Clinton MOORE.
    SC 2202.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   SHORES, Justice.

WRIT DENIED.

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


author: WILLIAM C. SULLIVAN, Circuit Judge.

text:
    Johnny SHARPE v. STATE.
    6 Div. 900.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Rehearing Denied Oct. 26, 1976.

      Robert R. Bryan, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Stephen M. Langham, Asst. Atty. Gen., for the State, appellee.
   WILLIAM C. SULLIVAN, Circuit Judge.

Appellant was found guilty of the offense of assault and battery, by a jury, and was assessed a fine of $500.00; the trial judge added six months additional hard labor for the county.

I

Appellant had been indicted and tried under an indictment charging the defendant with a violation of Title 14, § 374(20), Code of Alabama 1940, which makes it a felony to commit an assault with a deadly instrument upon a peace officer or other law enforcement officer of this state engaged in the active discharge of his lawful duty or duties.

The evidence produced by the state, if believed by the jury, would substantiate that the Appellant, while under arrest by the officer allegedly assaulted and while in the custody of said officer, in the booking area of the city jail, struck the officer across the back with an aluminum chair weighing four pounds.

II

The first claim of error is that the offense of assault and battery is not a lesser included offense under an indictment charging the defendant with a violation of Title 14, Section 374(20). Counsel for Appellant must certainly have thought so during the progress of the trial as he not only made two motions that the charge be reduced to assault and battery as the result of the failure of the state to prove the use or existence of a deadly weapon, but also by a written requested charge likewise requested the trial court to charge that the offense of an assault was a lesser included offense. Both the Appellant and the State relied on the case of Lowe v. State, 54 Ala.App. 280, 307 So.2d 86, to substantiate their respective positions in this regard.

The opinion in Lowe, supra, we believe, is correct, if in fact the instrument used be one which can be readily determined to be a deadly instrument as a matter of law. Thus, the misdemeanor section of Title 14, Section 374(19), Code, supra, would have no application. Lowe, supra.

However, the issue here is a factual one, namely, the use by the appellant of a chair across the back of an officer. We cannot say as a matter of law that the chair as so used is per se a deadly instrument. We are of the opinion that this issue is a matter of fact for the jury to determine under all the evidence in this case.

Where all elements of an offense separate from offense charged are present in or included among elements of charged offense, such separate offense is a lesser included offense for which defendant may be convicted, though acquitted of the offense charged. To be necessarily included in the greater offense, the lesser must be such that it is impossible to commit the greater without first having committed the lesser.

Title 15, Section 323, Code of Alabama 1940, provides:

“When the indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, or of an attempt to commit the offense charged; and the defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony, or a misdemeanor.”

The offense of assault while masked or while face was hidden or partially concealed for purpose of concealing identity, though a felony, necessarily included therein the lesser offense of a simple assault, and, hence, jury was authorized to find defendant who was indicted on the felony charge guilty only of the lesser offense of a simple assault. The offense charged in this indictment though a felony, necessarily and as a matter of law included therein the lesser offense of a simple assault. Todd v. State, 35 Ala.App. 356, 46 So.2d 567.

We hold that under the facts of a particular case, an assault, an assault and battery or the offense denounced by Title 14, Section 374(19), may all be lesser included offenses under an indictment charging the offense prescribed. Title 14, Section 374(20), Code, supra.

A jury could and did consistently find that an assault and battery was committed on the alleged victim named in the indictment without finding that it was committed with a deadly instrument.

An instrument or weapon used in inflicting injuries upon the person of another may or may not be esteemed deadly, according to the manner of its use and the subject on which it is used. 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 v. State, 251 Ala. 397, 39 So.2d 37; Davis v. State, 57 Ala.App. 543, 325 So.2d 543, cert. denied 295 Ala. 398, 325 So.2d 546. If the jury concluded, under the circumstances of the case, that the weapon used was not a deadly weapon or instrument, it could nevertheless find that an assault and battery was committed.

III

The Appellant next claims that the trial court committed reversible error by sustaining the State’s objections to questions asked the Appellant’s brother who testified in his behalf. The questions were obviously intended to elicit from the witness’ testimony concerning the witness’ pri- or difficulties with other members of the police department to show bias on the part of the officers or department against the witness and the Appellant, his brother. There was no evidence that the assaulted officer even knew the Appellant or his brother prior to the incident complained of. Likewise, there was no offer of proof that there was ever any prior difficulty between the assaulted officer and the Appellant or his brother. Likewise, when the victim testified, there was no predicate laid by the Appellant to determine any bias or lack of same on the part of the witness that could be rebutted by the type testimony sought to be elicited by the questions to which objections were sustained. Under this state of the record the trial court very properly sustained objections to the questions asked Appellant’s brother about his relationship with other members of the police department as being irrelevant and immaterial.

IV

Appellant’s final contention of reversible error on the part of the trial court concerns a remark made by the trial judge to Appellant’s brother while being cross-examined by the State. The record reveals the judge’s remarks to be:

“THE COURT: I wish you wouldn’t try to anticipate and picture how your answers are going to sound and tell a whole lot of other stuff.
We are going to be here all weekend with you on the witness stand, arguing with him, because you won’t answer the question and quit talking.”

The cross-examination of this witness had covered thirty pages of the transcript prior to the time the remarks complained of by the trial judge were made. A complete reading of the cross-examination of this witness by the State reveals the patience of the trial judge and shows the statement complained of more in context. There had been considerable bickering between the witness and the prosecuting attorney and on prior occasions the court had found it necessary to instruct the witness, thusly:

“THE COURT: You are not permitted to argue with him.
THE COURT: Just answer the question.
THE COURT: Let me say this: We have gotten to the point now where this is getting past the point of cross-examination, bickering. I am going to have to ask both the questions and answering be done in a more orderly manner.
We give all the latitude, both to the defense and to the prosecutor that is necessary in cross-examination to arrive at the truth, but when we get to the point where we are sort of bickering and so on that is not good.”

It is obvious that the trial judge was simply endeavoring to move the trial along as quickly and orderly as possible and that such comment in no way was intended, nor did it reflect on the credibility of this witness. In Patterson v. State, 191 Ala. 16, 67 So. 997, on the cross-examination of a defense witness, following a simple question propounded to him, the trial judge commented that a man of the witness’ intelligence should be able to answer the question asked. The Court, in holding that the comment was not error, held that “the evident purpose of the trial judge was to reprimand the witness for failure to answer the question asked and to promote the orderly, prompt taking of the testimony on the trial.” The statement of the court had no bearing or effect upon the credibility of the witness or upon the credence to be accorded or that might be accorded the testimony the witness had given or should thereafter give. The statement was addressed to the witness, not to the jury, and was within the court’s function to control, within proper limits, the examination of the witnesses. In any event the trial court subsequently charged the jury that the weight and sufficiency of the evidence was in the exclusive province of the jury.

V

We have considered the entire record as required and from this examination we conclude that error is not made to appear.

The foregoing opinion was prepared by the Honorable WILLIAM C. SULLIVAN, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Title 13, Section 38, Code of 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

CATES, P. J., and TYSON and BOOK-OUT, JJ., concur.

HARRIS and DeCARLO, JJ., dissent.


author: ALMON, Justice.

text:
    In re Johnny Wayne SHARPE v. STATE of Alabama. Ex Parte Johnny Wayne Sharpe.
    SC 2167.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Robert R. Bryan, Birmingham, for petitioner.
    None for the State.
   ALMON, Justice.

Petition of Johnny Wayne Sharpe for Certiorari to the Court of Criminal Appeals to review and revise the judgment,and decision of that Court in Sharp v. State, 340 So.2d 885.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


author: KENNETH P. INGRAM, Circuit Judge.

text:
    William Jimmy SMITH v. STATE.
    8 Div. 822.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Rehearing Denied Nov. 16, 1976.

      William Lowe Chenault, III, Decatur, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State, ap-pellee.
   KENNETH P. INGRAM, Circuit Judge.

Appellant was convicted of robbery and sentenced to fifteen years in the penitentiary. Counsel was appointed at the arraignment. His counsel represented him at the arraignment and throughout his trial. The appellant’s plea at arraignment was not guilty and not guilty by reason of insanity.

After conviction, the Court appointed his trial counsel to represent him on appeal and ordered a free transcript of appellant’s trial.

The facts of the offense were not in conflict. They were stated in the victim’s testimony.

The victim was Bobby Jean McNutt. She testified that some few minutes before 11:00 p. m., on November 6, 1974, she was robbed at her place of employment at Billy’s Mini Market in Decatur, Morgan County, Alabama. She was working as a clerk at the cash register at the time the robbery occurred. She testified that the man who robbed her was wearing a blond “afro” wig and that his face was blackened. He had a brown paper sack in his right hand and a gun in his left hand. He walked into the store, approached Mrs. McNutt and ordered her to open the cash register and put the money into the sack. He told her that if she did not, he would blow her brains out. She did as she was told. She placed the money in the sack. He told her to lift the tray in the cash register and give him the money under there. She told him there was nothing there but checks. He then ordered her to turn around and walk toward the back of the store and not to look around. The robber then left the store. Mrs. McNutt immediately called the Decatur Police.

She testified that she could not identify the robber and that all she could remember about the robber was that he had a gun, was wearing a blond “afro” wig and his face was blackened. She could not identify the defendant, William Jimmy Smith, as the man who robbed her.

Detective Wayne Kyker of the Decatur Police Department testified that shortly before 2:00 a. m., on November 8, 1974, the defendant, William Jimmy Smith, was arrested at his residence which is located at 1101 10th Avenue, Southeast, in Decatur, Morgan County, Alabama. The arrest was made by officers of the Decatur Police Department. Appellant was taken to the police department. At approximately 2:10 a. m., on this same day, Detective Kyker advised appellant of certain constitutional rights prescribed by the United States Supreme Court in the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He read the following statements to the defendant concerning these rights:

“Before we ask you any questions, you must understand your rights.
“You have the right to remain silent. “Anything you say can be used against you in Court.
“You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
“If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.
“If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
“A lawyer will also be provided for you now, if you wish.”

The printed form used by the officer contained a waiver of these rights.

Detective Kyker testified that appellant refused to sign this waiver. He stated that appellant said he understood the rights read to him, but he said he didn’t want to sign the waiver. He did not at any time ask to see a lawyer. He never said that he did not wish to make a statement.

He testified that neither he nor anyone in his presence threatened, coerce.d, intimidated or offered any reward or hope of reward to appellant in order to get him to make a statement.

The State offered appellant’s statement. At his point, the Court excused the jury in order to conduct a voir dire examination of this witness and other witnesses outside the presence and hearing of the jury so as to determine the voluntariness of his statement.

On voir dire, Detective Kyker testified that after appellant refused to sign the waiver of his rights form, that he and appellant started talking. They talked about some general matters and then they talked about robberies that had occurred in the Decatur area.

It is not clear whether appellant gave his oral statement of his involvement in the robbery to Detective Kyker during the early part of their conversation about robberies or after this conversation. Kyker stated that he told appellant at approximately 2:30 or 2:45 a. m. that two young women, Cynthia Keel and Margaret Jones, were in custody. Cynthia is appellant’s girl friend and Margaret Jones is his former wife.

They were soon after brought to the room where Kyker and the appellant were talking. His testimony indicates that the women were shown to appellant before his statement was reduced to writing by Detective Kyker. He also testified that appellant admitted his involvement in the robbery in this case before the women were brought in for appellant to see.

He testified that neither he nor anyone else told appellant that if he would sign a confession that these two women would be released. He also stated that appellant never said, at any time, that he did not want to talk to the officers anymore. Appellant did tell Detective Kyker at one time during their conversation that he was undecided about a statement and that he didn’t know what to do.

Appellant’s statement was completed at approximately 3:30 a. m. and reduced to writing by Detective Kyker. It was then read to appellant and handed to him for him to read. After hearing his statement read to him and reading it himself, appellant signed it. This was at approximately 4:45 a. m., on this same day.

Appellant was then called by his counsel to testify on voir dire as to the voluntariness of his statement and as to his consent to search his apartment.

He testified that he refused to sign the waiver of his rights, and he told the officers that he didn’t want to make a statement. He further testified that Cynthia Keel is his girl friend and Margaret Jones is his former wife. He further testified that Detective Kyker told him that the two women had been booked for robbery. He told them he did not believe it. It was at this time that the officers brought Cynthia and Margaret into the room where appellant was with Detective Kyker.

Appellant stated that he was signing something at the time the two women were brought into the room with him and Detective Kyker. After he signed the statement, he also signed a consent to search the apartment where he and Cynthia Keel resided. He said the officers told him they would not release Cynthia and Margaret until he signed the consent to search the apartment. Appellant said the officers also told him that he had to sign the consent to search or they would get a search warrant. Appellant testified that the signature on the consent to search was his.

Appellant stated that during some of this discussion with Detective Kyker a young police officer walked into the room, pulled a pistol from his holster and told appellant that he could have been killed to which appellant said he replied, “Really?” He further testified that the officers told him that they had other ways of getting confessions out of people. He told the officers he did not want to waive his rights or make a statement.

During cross examination by the State, appellant could not recall whether or not he testified at a previous trial of this case that he had been threatened or coerced by the police.

Cynthia Keel testified on voir dire that a lot of threats were made to her when she was first arrested. She said the officers told her the appellant had signed a confession and that it was all right for her to sign a consent to search form for police to search her apartment. She testified that she was told by the officers that if .she did not sign the consent to search she would have to remain in custody until a search warrant was obtained by the police. The State’s testimony on this point is in contradiction to that of the witness. Cynthia Keel gave her consent to search and signed the form. She was released from custody and she drove her automobile to the apartment and was present when the officers searched her apartment.

Further testimony on voir dire by Detective Kyker was that Cynthia signed the consent to search form in his presence and that he did not threaten, coerce, intimidate, offer any reward, or hope of reward to her to get her to sign the consent to search the apartment which she shared with appellant. He also stated that he did not tell her that she and Margaret Jones would be released from custody if she signed the consent, or that they were being detained until a search warrant could be obtained.

The voir dire examination of all the witnesses was lengthy and interspersed with conflicting statements. At the conclusion of the voir dire, the court ruled that the statement of the appellant was sufficiently voluntary to be admitted into evidence for consideration by the jury. The court returned the jury to the courtroom. The court admitted into evidence that portion of appellant’s statement which was his confession to the robbery of Billy’s Mini Market. All references to other robberies were excluded by the court from the six page statement. The court accomplished this by allowing a photographic copy of the statement which excluded all parts of the statement which were not related to the subject of the indictment in this case. This was done after the court examined the original statement. Appellant’s admitted statement is as follows:

“Voluntary statement, under arrest, date, 11-8-74; time, 3:25 a. m.; place, Decatur Police Department. I, William Jimmy Smith, am twenty-three years of age and my address is Route 1, Box 281, Decatur, Alabama. I have been advised and duly warned by Wayne Kyker, who has identified himself as a Detective with the Decatur Police Department, of my right to the advice of counsel before making any statement, and that I do not have to make any statement at all, nor incriminate myself in any manner. I hereby expressly waive my right to the advice of counsel, and voluntarily make the following statement to the aforesaid person, knowing that any statement I make may be used against me on the trial or trials for the offense or offenses concerning which the following statement is herein made. I declare that the following statement is made of my own free will without promise of hope or reward, without fear or threat of physical harm, without coercion, favor or offer of favor, without leniency or offer of leniency, by any person or persons whomsoever.”
“On November 7, 1974 after thinking about it for several days I decided to rob Billy’s Mini Market. I got an Afro wig and some bronze makeup that I had bought for the reason of darkening my face. I put the makeup on and the wig on and left the house. I walked down the alley beside Billy’s so I could see when there wasn’t anybody there. After about five minutes there wasn’t anyone there so I took the gun out of the paper sack I was carrying and walked across to the front door. I had the gun in my right hand and the sack in my left. I cross my arms so that the people at the traffic light couldn’t see the gun. I told the woman to give me the money out of the drawer and I want the twenties too. I told her don’t try for a gun and you won’t get hurt. She gave me the money and I told her to lift the drawer up and there wasn’t any money under it but she gave me some food stamps and a few checks. I then told her to walk to the back of the store and as she started toward the rear of the store I walked out and after I got to the alley I started running. I then went back to 1101 10th Avenue, Southeast, and counted the money. There was about $440.00. Believe it or not, I have already blew it all. I took some soap and water and washed the makeup off my face.”
“I have read this statement consisting of six of six pages and I affirm to the truth and accuracy of the facts contained therein.”

Presentation of evidence with the jury present was resumed with additional testimony from Detective Kyker. He testified that the consents to search were signed by the appellant and Cynthia Keel at approximately 5:00 a. m. and he, two other officers and the appellant proceeded to the apartment located at 1101 10th Avenue, Southeast, Decatur.

Detective Kyker stated that while in the police car en route to the apartment, the appellant voluntarily made a statement. His statement was that he would bet the officers that they would not be able to find the money and the other items in the apartment. When they arrived at the apartment, the appellant once again made a voluntary statement that he would show the officers the room that the money and other items were in and they still would not be able to find them.

When the search began the officers, appellant and the two women were present. Once again appellant stated, voluntarily, “It’s in the bathroom.” The officers searched the bathroom but failed to find the items. The appellant then walked over and lifted the lid on the commode revealing the items which were the subject of the search. Kyker further testified that no threat, coercion or intimidation was made to appellant, nor was any offer of reward or offer of leniency made to him to get him to make a statement on any of these occasions either while in the police ear or in the apartment.

At this point in the trial, the consent to search forms signed by Cynthia Keel and the appellant, William Jimmy Smith, were allowed into evidence.

The officer’s search of the apartment revealed a gray box in the bedroom containing paint accessories. It also revealed a plastic bag in the commode and inside the bag they found $1192.00 in cash, $322.00 in cash stuffed into a red wallet. The wallet bore Cynthia Keel’s name. They also found a .38 caliber Smith and Wesson blue steel revolver and 6 rounds of .38 caliber ammunition. On top of these items they found a brown “afro” wig. They found checks and food stamps in a brown paper bag in the kitchen. The paper bag contained $148.50 in food coupons and $127.16 in insufficient fund checks. There were 18 checks in all. The checks were made payable to Billy’s Mini Market. After these items were admitted into evidence by the court, the State offered a pillow case. It was also found in the apartment. The court refused to admit the pillow case and promptly instructed the jury that it was not in evidence that they could not consider it.

Appellant’s first contention is that the trial court erred in allowing appellant’s confession admitted into evidence. We do not agree. Our evaluation of the evidence on this point is in accord with the trial court. The trial court heard and considered the evidence presented by both sides of the case. There appears no inference from the evidence that appellant was mistreated. Nor was he placed in a state of fear as to coerce him into making a statement. This seems clear to us as it obviously did to the trial court who had greater opportunity to evaluate the testimony and the weight he would give to it. He is entitled to consider the conduct and demeanor of the witnesses in his assessment of the evidence. In this regard, he is both judge and jury. He matches the facts with the law and his resulting determination of the question of the voluntariness of the confession and the consent to search is entitled to great weight on appeal and will not be disturbed unless it appears to be contrary to the great weight of the evidence or unless manifestly wrong. Vernon v. State, 239 Ala. 593, 196 So. 96; Fewell v. State, 259 Ala. 401, 66 So.2d. 771.

Appellant’s next contention is that the trial court committed error to reversal by admitting articles recovered as a result of a search consented to by Cynthia Keel.

While we agree that there is conflict in the testimony of Detective Kyker and Cynthia Keel, we cannot hold that the trial court was in error in his finding that the consent to search was voluntary. The United States Supreme Court has held that the voluntariness of a consent to search is a question of fact to be determined by the trial court. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. We believe there was substantial evidence to support the trial court’s holding that the consent to search was voluntarily given.

The next contention of appellant is that the trial court erred in admitting a photographic copy of only a portion of the appellant’s statement. This Court previously addressed itself to the question of the admission into evidence of offenses contained in a defendant’s statements other than the offense for which that defendant was being tried, and we held that under the evidence in the case, it must be excluded. William Jimmy Smith v. State, 56 Ala.App. 384, 321 So.2d. 724. The evidence in the instant case shows that the trial court had the original statement before it; that the statement contained references to other offenses not admissible here, and that the trial court properly allowed only those portions of the statement involved in the instant case to be admitted into evidence. All else was excluded from the jury by its being removed from the admitted copy.

Appellant claims the trial court committed error in allowing evidence of prior offenses to be admitted into the evidence in this case. We conclude, after consideration of the record here, that no clear reference of prior offenses is presented; therefore, this claim is without merit. It is true that the State attempted to introduce a pillow case; however, the trial court sustained appellant’s objection to the offer of this item and promptly and adequately instructed the jury not to consider it as part of the evidence.

Our review of the record pursuant to the provisions of Title 15, Section 389, Code of Alabama, 1940, fails to reveal any prejudicial error therein.

The foregoing opinion was prepared by Honorable KENNETH F. INGRAM, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code of Alabama, 1940, as amended. The Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte William Jimmy SMITH.
    SC 2209.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   SHORES, Justice.

WRIT DENIED.

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