text:
    OPINION OF THE JUSTICES.
    No. 214.
    Supreme Court of Alabama.
    July 2, 1975.
   The House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs:

We are in receipt of House Resolution 87, adopted June 10, 1975, which is, in part, as follows:

“H.R. 87.
“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the honorable Chief Justice and the Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions on the following important constitutional questions which have arisen concerning the pending bill, H.B. 306, a bill which amends and reenacts Act No. 1056, S. 1, Regular Session 1973- (Acts 1973, page 1699) the act establishing the present Ethics Commission.
“1. Will H.B. 306, if enacted, delegate a part of the legislative power of the State in contravention of Section 44 of the Constitution of Alabama, which provides: ‘The legislative power of this State shall be vested in a legislature, which shall consist of a senate and a house of representatives’ ?
“2. Will said H.B. 306, if enacted, contravene Section 53 of the Constitution of Alabama, which vests in each house of the legislature the power to punish its members for contempt or disorderly behavior in its presence and to protect its members against offers of bribes or corrupt solicitations ?
“3. If H.B. 306 is not enacted does Act No. 1056, S. 1 of the Regular Session 1973, in its present form, also contravene the above mentioned sections 44 and 53 of the Constitution of Alabama.”

We have examined H.B. 306 with care and note that it is for the most part identical to Act No. 1056, S. 1 of the Regular Session 1973, except for certain changes that do not affect our decision herein.

We take notice of the fact that Act No. 1056 has been challenged on several occasions in the circuit courts of Montgomery County and that at least one such case has be,en certified for appeal to this court. We are of the view that we should address the constitutionality of Act No. 1056 in this up-coming adversary proceeding unfettered by an advisory opinion rendered without benefit of briefs or arguments of counsel. While an advisory opinion is not binding upon the court or the justices who deliver it, still such an opinion would be persuasive and may prejudice the rights of litigants who were given no opportunity to present arguments to the justices of the court prior to the rendering of their opinions.

The justices of this court were faced with a similar set of facts when they were requested by the legislature to give an opinion on the constitutionality of a proposed bill almost identical to the “Unfair Cigarette Sales Act,” already enacted, which was being challenged in pending litigation. Declining to advise the legislature, the justices wrote in Opinion of the Justices, 266 Ala. 370, 371, 96 So.2d 752, 753 (1957):

“Under a long prevailing view, the provisions of § 34 et seq., Title 13, Code 1940, have been considered as privileging —but not requiring- — the individual Justices of the Supreme Court to give advisory opinions at the request of the Governor or’ either House of the Legislature on important constitutional questions. These opinions are usually given in deference to the executive and legislative departments of the state in order to guide them in the proper dispatch of their duties and to protect the officers and departments of the state in the performance of their duties under enacted legislation or under stipulations of proposed bond issues, etc.
“We think it appropriate at this time to again invite attention to the fact that while as individual Justices the members of this court, within permissible limits of the statute, are privileged to give their individual opinions on constitutional questions properly submitted to them, yet the court of which they are members is a court of appellate review and the constitutionality of existing statutes should be tested by appropriate adversary proceedings when available or when at all possible. The end result of such proceedings would be of binding force, whereas the opinions promulgated under Title 13, supra, are not.”

We further take notice that the House of Representatives has acted upon a subsequently proposed bill numbered H.B. 240 which would repeal the State Ethics Law, abolish the Ethics Commission, and require only the filing of financial disclosure statements. H.B. 240, as acted upon by the House of Representatives, appears to conflict with the provisions of H.B. 306 which has been presented for our opinion. In view of this fact it appears that the House of Representatives, from which this request for opinion emanated, has, in effect, already discarded H.B. 306, and its consideration is no longer effectively pending before that body.

Respectfully submitted,

(s) -

Howell T. Helflin Chief Justice

(s) -

Pelham J. Merrill

(s) -:-

James N. Bloodworth

(s) -

Hugh Maddox

(s) -

James H. Faulkner

(s) --

Richard L. Jones

(s) -

Reneau P. Almon

(s) -

Janie L. Shores

(s) -

Eric Embry Justices.

H.R. 87 REQUESTING AN ADVISORY OPINION OF, THE JUSTICES OF THE SUPREME COURT RELATIVE TO H.B. 306. AND ACT NO. 1056 OF 1973 REGULAR SESSION.

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the honorable Chief Justices and the Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions on the following important constitutional questions which have arisen concerning the pending bill, H.B. 306, a bill which amends and re-enacts Act No. 1056, S. 1, Regular Session 1973, (Acts 1973, page 1699) the act establishing the present Ethics Commission.

1. Will H.B. 306, if enacted, delegate a part of the legislative power of the State in contravention of Section 44 of the Constitution of Alabama, which provides: “The legislative power of this State shall be vested m a legislature, which shall consist of a senate and a house of representatives” ?

2. Will said H.B. 306, if enacted, contravene Section 53 of the Constitution of Alabama, which vests in each house of the legislature the power to punish its members for contempt or disorderly behavior in its presence and to protect its members against offers of bribes or corrupt solicitations ?

3. If H. 306 is not enacted does Act No. 1056, S. 1 of the Regular Session 1973, in its present form, also contravene the above mentioned sections 44 and 53 of the Constitution of Alabama.

RESOLVED FURTHER, That the Clerk of the House is hereby directed to send nine true copies of the pending bill, H.B. 306, and nine true copies of Act No. 1056, S. 1 of the Regular Session 1973 to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon the adoption of this Resolution.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Bernard Elmer WALKER, Jr. v. Mary Ann WALKER.
    Civ. 586.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1975.

      Benjamin E. Pool, Montgomery, for appellant.
    D. Coleman Yarbrough, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

Appellee-wife sued for divorce in the Circuit Court of Montgomery County on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage. Appellant-husband counterclaimed for divorce alleging adultery. Testimony was taken ore tenus.

The trial court entered a final decree dissolving the bonds of matrimony between the parties as prayed for by the appellee-wife, and denying the counterclaim of appellant-husband. The decree also awarded to the parties their separate bank accounts, the automobiles then in their possession, and the personal property which was theirs before the marriage; gave the homeplace to the wife, with the requirement that she assume the first mortgage thereon and that the second mortgage thereon be the joint obligation of both parties; further awarded certain realty in the State of Florida and certain cemetery lots to the husband, and made a division of various other personal property.

Appellant-husband contends through able counsel that the trial court erred to reversal in that the final decree of divorce was contrary to the evidence, was inadequate and unfair to the husband and contrary to the weight of the evidence, and that the trial court abused its discretion by not granting to the husband a greater award than it in fact made.

The evidence indicates that the parties were married for some nine years, during which time both of them contributed their efforts and respective income to the joint marital enterprise. The marriage was the second one for appellee and the third for appellant. Appellee had two minor children by her first marriage. The home-place was the property of appellee-wife prior to the marriage, while the Florida realty and the cemetery1 lots were acquired by the parties during the marriage. Appel-lee made $475 per month take-home pay and had some $20 in savings, while appellant, a disabled veteran, received approximately $900 monthly from disability and other sources and had a $1,500 savings certificate.

It is appropriate to initially note that where a judgment or decree is entered by the trial court after a hearing tire tenus, it is presumed to be correct and will be reversed on appeal only if the reviewing court, after consideration of all the evidence and all reasonable inferences to be drawn therefrom, concludes that it is plainly and palpably wrong. Hicks v. Hicks, 52 Ala.App. 586, 296 So.2d 180; McDonald v. McDonald, 280 Ala. 299, 193 So.2d 519; Harrison v. Harrison, 279 Ala. 675, 189 So.2d 471. It is also settled that a division of property does not have to be an equal one, but only one which is graduated according to the circumstances of the case. Hicks v. Hicks, supra; Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159; Pope v. Pope, 268 Ala. 513, 109 So.2d 521.

Applying the above cited principles to the instant case, it is clear that no palpable error has been committed by the court below. There was sufficient testimony regarding the abusive and threatening behavior of appellant-husband, and his intemperate use of alcohol, to justify the finding of incompatibility by the trial judge, as defined by this court in Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71. There was also no error committed by the trial judge in refusing to find that appel-lee-wife had committed adultery, as the evidence in this regard is for all practical purposes nonexistent; no useful purpose would be served in detailing this testimony.

Certainly, no error can be found in the property division when the only significant award to the wife was the home-place. As noted heretofore, this home was the wife’s prior to her marriage to appellant. It is equally clear the trial court did not abuse its discretion in requiring the appellant-husband to assist in making the second mortgage payments on the home. To this court, not only is it manifest that there has been no error to the prejudice of appellant in relation to the division of property, but rather the decree appears to this court to be imminently fair to both parties.

Counsel for the wife has requested an attorney’s fee for his representation of the wife on this appeal. Such an award is discretionary with this court. See Colombaro v. Colombaro, 54 Ala.App. 157, 306 So.2d 23.

Appellee’s counsel suggests approximately $500 as a reasonable attorney’s fee for his services. Considering all relevant factors, we agree. Appellant is hereby directed to pay $500 to appellee for her attorney’s services on this appeal.

All assignments of error having been considered, the judgment is due to be affirmed.

Attorney’s fee on appeal awarded; affirmed.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    STATE TENURE COMMISSION of the State of Alabama v. ANNISTON CITY BOARD OF EDUCATION.
    Civ. 579.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1975.

      William J. Baxley, Atty. Gen., and William A. Golinsky, Asst. Atty. Gen., for the State Tenure Commission of the State of Ala.
    Merrill, Porch, Doster & Dillon, Annis-ton, for appellee.
   HOLMES, Judge.

The Anniston City Board of Education did not renew the contract of a teacher employed in the city school system. The teacher appealed to the State Tenure Commission. The Tenure Commission made a decision from which the Anniston Board of Education filed a petition for mandamus in the Circuit Court of Calhoun County, and that court set aside the action of the Tenure Commission.

Thereupon, the State Tenure Commission appealed the decision of the circuit court to this court.

The appellee-Board of Education has filed in this court a motion to dismiss the appeal in that the appeal was not timely filed. This court has no alternative but to grant appellee’s motion.

The record reveals that the judgment of the circuit court appealed from was rendered on March 11, 1975. The appeal was perfected on April 14, 1975, by the filing of the notice of appeal with the circuit clerk and the filing that same day by the Attorney General of this state of an election to make no bond securing the payment of costs.

The law is clear that there is a thirty day time limit on appeals from final judgments in proceedings .for mandamus. See Tit. 7, § 1074, Code of Ala.1940; Mayfield v. Court of County Commissioners, 148 Ala. 548, 41 So. 932; Ex parte Campbell, 130 Ala. 171, 30 So. 385. A former attorney general, in a written opinion, stated that where a right is sought to be enforced by mandamus, the party having an adverse judgment has thirty days in which to appeal. Failing to do so within the time prescribed by statute the judgment of the court becomes final and effective. Quarterly Report of the Attorney General, July-September 1940, Vol. XX, p. 127.

It is equally clear that this court has no alternative but to dismiss the appeal. As our Presiding Judge Wright stated in Mears v. Nail, 54 Ala.App. 610, 311 So.2d 435:

“The time prescribed by statute for taking an appeal is jurisdictional. An appeal not timely taken will be dismissed on motion or ex mero motu.”

The appeal in this instance, not being taken within thirty days as required by law, is due to be dismissed.

Appeal dismissed.

WRIGHT, P. J., and BRADLEY, J., concur.


author: HARRIS, Judge.

text:
    Thomas EASLEY v. STATE.
    8 Div. 648.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.

      Nancy S. Gaines, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted for violating the Alabama Uniform Controlled Substances Act and sentenced to a term of six years and six months in the penitentiary. Prior to arraignment appellant was found to be indigent and counsel was appointed to represent him. He pleaded not guilty. He was furnished a free transcript and new counsel was appointed to represent him on this appeal.

The grand jury of Madison County returned a two count indictment against appellant which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charge, that before the finding of this indictment, Steve Emig, Don O’Clare, Thomas Easley and Clausa Bundtrock, whose names respectively are unknown to the Grand Jury other than as stated, did unlawfully possess a controlled substance as listed in the Alabama Uniform Controlled Substances Act of 1971, subsequent to the passage of said Act, to-wit: Ten thousand five hundred fifteen (10,515) tablets containing Lysergic Acid Diethylamide, against the peace and dignity of the State of Alabama.
COUNT TWO: The Grand Jury of said County further charge, that before the finding of this indictment, Steve Emig, Don O’Clare, Thomas Easley and Clausa Bundtrock, whose names respectively are unknown to the Grand Jury other than as stated, did unlawfully sell, furnish or give away a controlled substance as listed in the Alabama Uniform Controlled Substances Act of 1971, subsequent to the passage of said Act, to-wit: Ten thousand, five hundred fifteen (10,515) tablets containing Lysergic Acid Diethyl-amide, against the peace and dignity of the State of Alabama.”

The evidence for the state is uncontra-dicted. Appellant did not testify and offered no testimony in his behalf.

Mr. Floyd M. Pirtle was employed by the Huntsville Police Department as an undercover agent using the assumed name of Allen Welsh. He lived in Huntsville but established an address at Route Lynch-burg, Tennessee. He testified that he first met appellant on August 14, 1974, at a house located at 2108 Shady Lane in Huntsville and was taken to this house by a Don O’Clare around 8:15 p. m. on that date.

Upon entering the house he saw two males and one female in the front room, one of whom he later learned to be Richard Judnik from Detroit. This witness and O’Clare then entered a bedroom where one Steve Emig was. Appellant came in shortly afterwards. Officer Pirtle stated that at that time, “Mr. Emig asked did I have the money for the LSD. I told him I did and Mr. Easley had a metal box and said he had the stuff if I had the money.” That appellant produced a large plastic bag containing five smaller bags with pills or tablets. Appellant left the room and returned in a few minutes with five more bags containing approximately the same number of tablets. Officer Pirtle produced $5,000.00 and gave it directly to appellant in payment of the ten bags and he saw appellant put the money in his pocket at that time. The officer asked for a larger bag and he put the ten bags in the one large bag and left the house. Outside the house he had a conversation with O’Clare and went back in the house to buy some different type pills. Upon re-entering the house he saw appellant give a portion of the $5,000.00 to Richard Judnik from Detroit, Michigan.

Officer Pirtle further testified that he went back outside and O’Clare and appellant drove him to his car. During this trip appellant voluntarily told the officer that “he could get a quantity’ of LSD, 40,000 hits, and said if I had the contacts and could come up with the money, he could get me large quantities of heroin, cocaine or marihuana.” He said this statement was made within five or ten minutes after they left the house. Appellant’s attorney moved that this testimony be stricken as not being material or relevant to the case and he further moved for a mistrial. Both motions were overruled and denied.

The officer further testified that when he reached his car, he had the large bag containing the ten plastic bags of pills in his hand and was met by two other officers. He carried the bag to the Narcotics Unit office and sealed the bag in a large manila envelope and put his initials on the seal and gave the envelope to Officer Jerry Wheeler of the Huntsville Police Department.

This witness stated the next time he saw appellant was about ten days later. He went back to the house where the meeting and drug transaction took place. He said appellant fled but later that night he found him in an automobile at the Haystack Apartments in Huntsville. He told appellant to get out of the car and that he was under arrest for possession and sale of LSD. At this time he gave him his constitutional rights by reading to him from a “Miranda” warning card. After reading the “Miranda” card, appellant told the officer that he understood his rights.

Mr. Jerry Wheeler testified that he was an officer of the City of Huntsville Police Department and was assigned to the Criminal Intelligence Unit dealing with narcotics. That in the performance of his duties he took charge of all drugs purchased by agents. He further testified that he received the drugs purchased by Officer Pir-tle and placed the sealed manila envelope in a metal box with a lock and carried it home with him and turned it in the next morning to the State Toxicologist office. He said he kept possession and control of the box containing the drugs and personally delivered it to Dr. Van Pruitt the following morning. He stated that.when he delivered it to the Toxicologist, he was present when the number “C 108 117” was placed on it.

Mr. Allen Adair testified that he was employed by the Alabama State Department of Toxicology and Criminal Investigation, Huntsville Division. He stated he was employed as a drug analyst and recited his educational background and his qualifications for that work. He said he had been with the Department of Toxicology for over three years and had vast experience with drugs, including LSD. He identified State’s Exhibit 1 as an envelope he received from Dr. Van Pruitt on the morning of August 19, 1974, numbered C 108 117. He testified that it contained a large plastic bag containing ten small plastic bags, each of these containing approximately 1,000 purple tablets. That he analyzed the pills by taking a random sample from all ten bags before running his analysis and that he analyzed two hundred tablets in all. He stated that he ran four separate tests on the tablets and that in his opinion the tablets contained lysergic acid diethylamide commonly known as LSD. He testified that while none of the four separate tests were conclusive when considered alone, that together they were conclusive. The tablets were admitted into evidence and the state rested.

Appellant moved to exclude the state’s evidence on the ground that a sufficient chain of custody had not been shown. The court overruled this motion.

There was no motion for a new trial; there was no request for the affirmative charge, and no exceptions reserved to the oral charge to the jury.

In determining whether the trial court erred in overruling the defendant’s motion to exclude the state’s evidence, this court must take the evidence in the light most favorable to the prosecution. Womack v. State, 34 Ala.App. 487, 41 So.2d 429.

In Daniels v. State, 49 Ala.App. 654, 275 So.2d 169, this court held:

“In a prosecution for unlawful possession of narcotics it is not necessary to prove manucaption but constructive possession may be shown, and where such possession is relied upon the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Spruce v. State, 43 Ala.App. 487, 192 So.2d 747. See cases in 16 Alabama Digest, Poisons, ^9.
Such guilty knowledge may be established by circumstantial evidence and guilt does not necessarily depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761.”

The state’s evidence as to the custody and possession of the narcotics in this case unequivocally shows there was no missing link in the chain of identification. Identification and continuity of possession were sufficiently established, affording ample assurance of the authenticity of the pills or tablets and the analyses conducted by the Toxicologist. Powell v. State, 47 Ala.App. 582, 258 So.2d 923; Green v. State, 42 Ala.App. 439, 167 So.2d 694; Aaron v. State, 271 Ala. 70, 122 So.2d 360; Dennison v. State, 259 Ala. 424, 66 So.2d 552; Oury v. State, 53 Ala.App. 240, 298 So.2d 661.

The trial court did not commit reversible error in overruling appellant’s motion to strike his voluntary statement made to Officer Pirtle while on the trip to Pir-tle’s automobile to the effect that he could get a quantity of LSD and other drugs if Pirtle could get up the money. This statement was not in response to any requests made by Pirtle.

The rule is that the acts, declarations and demeanor of the accused, before or after the offense, whether a part of the res gestae or not, are admissible against him, but unless a part of the res gestae are not admissible for him. O’Neal v. State, 53 Ala.App. 133, 298 So.2d 62. Alabama Digest, Criminal Law, numbers 345, 351(1), 412(1), 413(1).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

Affirmed,

All the Judges concur.


author: CLARK, Supernumerary Circuit Judge.

text:
    George JOHNSON v. STATE.
    5 Div. 304.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Tom R. Ogletree, Sylacauga, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

Appellant was convicted and sentenced to imprisonment for life for murder in the first degree of Mrs. Orlean McCord.

The victim, an elderly lady, was living alone at Goodwater. On September 1, 1974, she was expected for a noon meal at the home of her son and family, who also lived in Goodwater. Upon her failure to arrive for the meal by about 12:30 P.M., her son and wife became concerned and telephoned a young man to meet them at the victim’s home, where they promptly went, accompanied by one of their neighbors. The front and back door of the victim’s residence were locked. Neighbors of the victim, becoming alerted to the sitúation, were on hand. The young man who had been called arrived, obtained a step ladder from a neighbor of the victim and entered the house through the only open window therein. There was a screen missing from the window. He unlocked the doors, through which the concerned friends of the victim, and afterwards law enforcement officers, entered. According to their testimony, Mrs. McCord was then a cold corpse, lying on the floor near her bed. She was dressed in pajamas upon which were blood smears across the shoulder, back and bottom. Blood stains were on the pillows of the bed. A vase in the room had been broken, and pieces of it were found on the floor and on the bed.

The body was taken by ambulance to Auburn, where it was examined by a toxicologist of the State of Alabama. He found bruises and contusions, the left sixth rib fractured, two fractures of bones in the neck area and hematoma of the sub-scalp area. He concluded that her death was the result of manual strangulation.

The screen that was missing from the window through which the entry was made into the house was found under the house of Charles Smith, a life-time acquaintance of appellant. Finger prints were obtained from the frame of the screen by a criminologist employed by the Department of Toxicology and Criminal Investigation, who compared them with finger prints of appellant. He testified there were matching characteristics. He said, “In my opinion both prints were made by the same finger.”

Charles Smith, whose home is located about a hundred yards from that of Mrs. McCord, testified as a witness for the State. He said appellant stayed at his home from sometime on the afternoon of August 31, 1974, until about 3:30 A.M. on the morning of September 1. During that time they had looked at television. He said that appellant was away from the house from about 3:30 A.M. until about 4:30 A.M. Upon his return appellant told the witness that he was going to sleep outside in the car. The witness said he saw appellant again about 10:00 A.M. that morning. He said appellant was wearing a red shirt, “a black pair of pants and black shoes,” that he was with the witness from the afternoon of August 31, 1974, until about 3:30 A.M. the following morning, but that he had changed clothes when he was seen at 10:00 A.M. that morning, at which time he had on a “blue and white shirt, a blue pair of pants and a black pair of shoes.” The' witness said he did not put under his house the screen that was found thereunder and that he had never seen it prior to September 1, 1974.

Three witnesses for the State testified as to conversations with appellant in the Coosa County Jail in March, 1975. One said appellant told him that he had gone to Mrs. McCord's home to “rip her off,” that there was someone else with him, but that he did not tell this to his lawyer. Another said that appellant stated that he killed Mrs. McCord and “busted her across the head with a jar.” The third witness as to a conversation with appellant said that he stated that “he killed Mrs. McCord along with another fellow named Charles.”

Appellant did not take the stand.

There were two pleas in the case, not guilty and not guilty by reason of insanity.

We have no difficulty in concluding, and no insistence is made to the contrary, that there was ample evidence to support the verdict of the jury as to the issue raised by the plea of not guilty.

As to the issue raised by the plea of not guilty by reason of insanity, we hereinafter summarize testimony not narrated above.

Expert testimony on the subject of insanity was largely in favor of defendant, but there was some conflict. In October following the death of Mrs. McCord, upon joint motion of the State and defendant for an investigation as to the sanity of defendant, he was sent to the Superintendent of the Alabama State Hospitals and there he was examined and considered by two psychologists, a licensed physician with training in psychiatry and two psychiatrists. All but one of the psychiatrists, agreed substantially in the determination that defendant was moderately mentally retarded, that according to the Binet Test he had a mental age of approximately six years, that according to the Leitner International Test he had approximately the same mental age and that according to the Ammons Picture Vocabulary Test, (considered as a less valid test, because “it tests pretty much rote memory”) he had a mental age of about nine years. They rated his IQ as between 35 and 50. They were in general agreement that he did not know right from wrong. One indicated that he probably acted from an irresistible impulse.

The non-concurring psychiatrist was not as positive in his views. He said that he considered that defendant had mild mental retardation, but that he did not see anything psychotic about him, that he was probably fearful and under some pressure, but that he knew right from wrong.

Appellant was 26 years of age at the time of the crime. The only evidence as to his school record was that he had been a “slow learner”; that he had “progressed as far as the ninth grade, but he hadn’t done very well, and his reading was barely adequate to make it that far.”

The lay testimony on the issue of defendant’s insanity was all in favor of the State, but it was limited to testimony by the sheriff of Coosa County, the chief of police of Goodwater and a policeman of the Goodwater Police Department. Each testified that he considered defendant sane. The sheriff had observed him in jail, while he was making long distance phone calls, playing cards and looking at magazines. The Chief of Police of Goodwater had observed defendant playing pool and on the streets; he had known him for four and one-half years and had seen him nearly every week; he had never observed any abnormal or unusual behavior by defendant. Officer Strong of the Goldwater Police Department had known defendant about twenty years; he had worked at a sawmill with defendant while defendant was stacking lumber and running the chipper; he had talked with defendant on many occasions, had visited in his home and defendant had visited in the witness’ home; he had never seen him acting abnormally.

Notwithstanding the changes in some other jurisdictions, and the many suggested changes in substantially all jurisdictions, of the rule that sets forth the mental capacity to commit a crime, the Alabama rule is still that M’Naghten’s Case, 8 Eng.Rep. 718 (H.L.1843) as supplemented by Parsons v. State, 81 Ala. 577, 2 So. 854 (1886), that a person of requisite age is mentally capable of criminal conduct unless his mind is so diseased that either he cannot distinguish between right and wrong as to the particular offense in question or he cannot resist an impulse to commit such offense if solely produced by his mental disease. We are not authorized to change that rule. Applying it here, the verdict of the jury was well within its province. Even if we were disposed to reach a different determination, which we are not, such action would be out of harmony with the established legal policy that has been frequently and uniformly followed in Alabama since Parsons v. State, supra, recently cited with approval in the majority and dissenting opinions in Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970) and more recently in Smith v. State, 54 Ala.App. 237, 307 So.2d 47 (1975) and Cunningham v. State, 54 Ala.App. 514, 310 So.2d 235 (1975). In Smith v. State, the court quoted from Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 as follows:

“ ‘[C]ourts should be careful not to invade the province of the jury in cases of this character. Although the evidence may be offered only by the defense, and all tend to one conclusion, yet in view of the presumption of sanity, if the evidence is inconclusive, and reasonable inferences may he drawn that the act was that of a sane man as defined by law, the affirmative charge should be refused.’ ”

In Boyle v. State, is contained almost all the testimony of then prominent physicians and is much stronger for defendant than testimony in the case before us. Unlike Boyle, we see no “grave question presented on this appeal . . . whether the defendant was due an affirmative instruction on his plea of ‘not guilty by reason of insanity.’ ” Like Boyle, we are affected by the same statute now codified as Code of Alabama 1940 Title 15, Section 422 as follows :

“Every person over fourteen years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.”

Our review of the record pursuant to the provisions of Title 15, Section 389, Code of Alabama 1940, fails to convince us that there is any prejudicial error therein. We note, however, the possibility of reasonable ground to doubt the sanity of accused so as to make applicable Code of Alabama 1940, Title 15, Section 426, mandating, in that circumstance, a separate jury determination of his mental competence to stand trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; Pierce v. State, 52 Ala.App. 422, 293 So.2d 483; Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556. Whether a determination was made by the trial judge as to the question of the existence of a reasonable ground to doubt defendant’s sanity, the record leaves us without a compass. The record is completely silent on the subject. As hereinbe-fore stated, the court granted a joint motion for an inquisition, which was conducted, but whether the result thereof was brought to the attention of the court other than by depositions introduced on the trial, we are uninformed. Neither in the record proper nor in the transcript of the evidence and proceedings is there any contention that a determination should have been made of the question of defendant’s mental ability to stand trial. We are convinced that we should not reverse the judgment below. Conceivably, there could be a basis for a remandment for a jury determination of the issue of competency to stand trial as ordered in Edgerson supra, or for a determination by the trial court whether there was reasonable ground for doubting the sanity of defendant, or both. In the absence of any light on what consideration was given by the trial court of the question of defendant’s capacity to stand trial other than that reflected in its order granting the motion for an investigation as to his sanity, we do not consider a remandment appropriate at this time. We will welcome the views of the parties on the question, if and when any application for rehearing is presented.

The judgment of the trial court should now be affirmed.

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

Affirmed.

All the Judges concur.

      . A valuable treatise on the subject is Professor M. Gardner’s Criminal Responsibility and Exculpation by Medical Category — an Instance of not Taking Hart to Heart. 27 Ala.L.Rev. 55 (1975).


author: TYSON, Judge.

text:
    Lee SMITH v. STATE.
    6 Div. 862.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, J., Asst. Atty. Gen., Birmingham, for the State.
   TYSON, Judge.

The indictment charged the appellant with the robbery of one Vincent Lovetto by unlawfully taking $75.00 in currency, and one thirty-eight caliber Smith and Wesson pistol from his person. The jury found the appellant guilty as charged, and fixed punishment at twenty-five years imprisonment. The trial court then set sentence in accordance with this verdict. Appellant’s motion for new trial challenging the weight and sufficiency of the evidence was overruled following a hearing with counsel present.

Vincent Charles Lovetto testified that on February 17, 1973, he was employed at the One-Stop Beverage Store, located at 704 Third Avenue North in Birmingham. He testified that at about 8:30 on that evening he was in the store with his wife, Mary Jo Lovetto, that his son had come by earlier that evening and taken some proceeds to his home for safekeeping. He stated that about 8:30 the appellant, Lee Smith, and one David Dillard, walked into the store and ordered a package of Kool cigarettes and some matches. From the record:

“Q Who is Mr. Dillard?
“A Mr. Dillard is one of the people that was involved.
“Q You mean there was somebody other than Lee Smith present when the incident occurred ?
“A Yes sir.
“Q Who else was present ?
“A My wife.
“Q Who is your wife ?
“A Mary Jo Lovetto.
“Q Who else other than you and your wife and Mr. Smith?
“A Mr. Dillard.
“Q Please tell the gentlemen of the jury what happened next after he came in the store?
“A After he ordered the pack of cigarettes and the two-cent box of matches he throwed fifty-five cents up on the counter. My cigarettes were forty-eight cents and the matches were two cents, so I gave him a nickel back. In the meantime there was a green Chevrolet with a green vinyl top pulled up on the outside, and Lee Smith got out and went around, I’ve got a gondola in the middle of the store, and he went around and got behind my wife and put a pistol to my wife’s head.”

Mr. Lovetto further testified that Dillard asked how to open the cash register, and that the appellant told him if he raised up, he was dead, that he would shoot. He testified that the appellant reached into the cash register and began putting the money into a sack. He stated that the two men asked why he had no more money in the store, and he told them that his son had come by earlier and taken the proceeds home. He stated that the two men found a thirty-eight caliber Smith and Wesson pistol near the cash register and took it. They also took $75.00 of U.S. currency from the cash register. He stated that the two men directed him and his wife to lie on their stomachs on the floor, and that they then left the premises. Mr. Lov-etto made a positive in-court identification of the appellant, Lee Smith.

On cross-examination, Mr. Lovetto stated that the two men drove up in a green four-door Chevrolet with a vinyl top, that the appellant was wearing a khaki jacket and a wide-brimmed hat. He stated that the men were in the store a little over five minutes.

Mrs. Mary Jo Lovetto testified that she was present at the One-Stop Beverage Store, operated by her husband and herself on the evening of February 17, 1973, when about 8:30 p. m., the appellant and his companion, David Dillard, entered the store. She testified that she was sitting in the back of the store reading a newspaper, that she was not paying too much attention, but when she looked up, appellant had a gun pointed at her head. She testified he grabbed her by the back of her coat, put the gun to the back of her head, and told her to walk around the counter where the cash register was, near her husband. She stated that the appellant then directed them to lie on the floor, and told them if they lifted up their heads they would be dead. She stated that the two men began putting the money in a paper sack, then asked why there was not more money there. She stated that her husband told them that their son had come by earlier that evening and taken the proceeds home. She stated that the two men then took a pistol, and that the appellant asked Dillard if he had taken her husband’s wallet. Mrs. Lovetto made a positive in-court identification of the appellant.

On cross-examination, Mrs. Lovetto testified that she had originally identified the appellant from seven or eight photographs brought by the store for her to view by Sergeant Watkins of the Birmingham Police Department. She stated that the appellant’s photograph was in the second set of pictures which was brought out several days after the robbery for her to examine. She further testified that the appellant wore a green Army khaki jacket and a hat with a wide brim.

Mrs. Mary Smith testified that she was the mother of the appellant, Lee Smith, and that her son was seventeen years old on February 17, 1973. She testified that at this time her son had very long, thick hair, that he wore it in that fashion because he had been injured, and had been in the hospital in January.

On cross-examination, Mrs. Smith was asked if she knew a David Dillard, Jr., and she said she did because his parents were friends of hers. She testified that Dillard was a grown man, that her son was a teenager, and other than knowing him, they were not friends, and did not go around together.

Helen G. Watley testified that she was a neighbor of the appellant, and that his reputation in the community, as of February 17, 1973, was good.

David Dillard, Jr., took the stand to testify that he was presently an inmate at At-more Prison Farm in Atmore, Alabama. He testified that he had been represented by counsel, and entered a plea of guilty to the charge of robbing Mr. and Mrs. Lovetto on the night of February 17, 1973. He testified that he drove a green 1971 automobile to the store that evening, and that he was accompanied by one William Phillips, Jr., who was the owner of the Chevrolet. He stated that he went into the store and asked for some cigarettes, and pointed a gun at Mr. Lovetto. He stated that he also had a pocket knife in his hand, that his companion also had a knife, that they directed the couple to lie on the floor, that they did so, that they then opened the cash register and took the proceeds. He stated that the appellant, Lee Smith, .was not with him on this occasion.

On cross-examination, Dillard admitted to a burglary conviction ■ on December 7, 1967, and a robbery conviction on November 8, 1973. He also was asked about being with the appellant, Lee Smith, on February 23, 1973, and he denied being with him at a business located at 5303 First Avenue North at about 7:00 p. m.

Lee Smith, Jr., testified that he was seventeen years of age. He testified that he lived with his mother at 1509 Fourteenth Street Southwest, West End, in Birmingham. He testified that he was not with David Dillard, Jr., and a William Phillips on February 17, 1973, that he had ridden in a green 1971 automobile belonging to William Phillips because Phillips knew his older brothers. He testified that he had been injured in 1973, and that he had been taken to the hospital. He denied, on cross-examination, being present with David Dillard at the One-Stop Beverage Store on February 17, 1973, and further denied being present with Dillard at about 7:00 p. m. on February 23, 1973, at 5303 First Avenue North in Birmingham. He denied going into the store operated by Mr. and Mrs. Lovetto, or knowing anything about the robbery of this store.

As a rebuttal witness, the State of Alabama was permitted to call one Robert Humphries, who testified that he was present on February 23, 1973, at a Jiffy Stop Store on First Avenue and Third Street, and was buying some items when the appellant and one David Dillard, Jr., came into the store.

The trial court did not permit any details of the event which occurred on February 23, 1973, to be placed in evidence except to permit Mr. Humphries to identify the appellant and his companion, David Dillard, Jr., as being together in the Jiffy Stop Store on this occasion. Mr. Humphries positively identified the appellant as being present at the Jiffy Stop Store on this occasion.

I

The appellant first submits that the trial court erred in permitting Mr. Hum-phries to testify as to the appellant and Dillard being present in the Jiffy Stop Store on February 23, 1973. The court’s ruling in this respect in essence is as follows :

“MR. HOWARD: Your Honor are you saying you’re gonna permit this man to identify, I mean to testify to all these details ?
“THE COURT: I’ll just say this, I don’t want to go into the details of what happened, just the fact that they were there together and that they came in and did what they said and then I want it stopped there.
“MR. HOWARD: They haven’t testified that they did anything at that place.
“THE COURT: The testimony of the defendant is that they weren’t together and I told you if the testimony didn’t show that they were together it wouldn’t come in.”

As heretofore mentioned, the appellant and Dillard both had denied being together on February 23, 1973, at the Jiffy Stop Store, or that they in fact knew each other very well. The appellant’s mother also testified that they were only “casual acquaintances.” In light of this testimony and the fact that the appellant’s identity was very much an issue here, the trial court properly permitted this rebuttal testimony. Worthington v. Gwin, 119 Ala. 44, 24 So. 739. See also Hogue v. State, 54 Ala.App. 682, 312 So.2d 86, and authorities therein cited.

II

In the course of the closing argument by the State’s attorney, the following occurred:

“MR. JOHNSON: Right now there are a lot of people in Jefferson County and some of them are potential robbers.
“MR. HOWARD: We object to that Judge.
“THE COURT: I don’t see the relevance.
“MR. JOHNSON: I’m speaking with reference .
“MR. HOWARD : We object to it.
“THE COURT: Overruled.
“MR. HOWARD: We except.
“MR. JOHNSON: They’re considering the odds.
“They’re considering the odds of what will happen to them if they get caught in a robbery.
“MR. HOWARD: Your Honor please, that is highly improper. He’s talking about what he thinks some unknown bunch of people are thinking out here in the public somewhere, and how we could get that in this case I don’t know.
“THE COURT: What other people may be thinking, let’s leave that out.”

Specifically, the appellant urges reversal because of the statements of the prosecutor, “Right now there are a lot of people in Jefferson County and some of them are potential robbers,” and “They’re considering the odds of what will happen to them if they get caught in a robbery.”

It is apparent that the district attorney was here pointing out matters of evidence and arguing their legitimate inferences. It is only when a statement is of a substantive outside fact, stated as a fact, and which manifestly bears on a material inquiry before the jury that the court should interfere and arrest discussion. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353, and authorities therein cited.

As noted by Mr. Justice Harwood, then Harwood, P. J., of the former Court of Appeals, in Bullard v. State, 40 Ala.App. 641, 120 So.2d 580, the rule covering the situation presented by this record was stated as follows:

“Of necessity a wide discretion must be allowed the trial judge in regulating the argument of counsel. Trials are adversary in nature. Vigorous prosecution and defense is to be expected. Neither defense counsel nor the prosecutor should be too closely hampered by niceties of speech if he is to be effective, but should be permitted to say his say in his own style. This of course does not mean that unfair and prejudicial argument is to be condoned for one instant. All argument of counsel is to be measured in the background and atmosphere of courtrooms. And as stated in Arant v. State, 232 Ala. 275, 167 So. 540, 544, ‘Such statements are usually valued by the jury at their true worth * * * and not expected to become factors in the formulation of their verdicts.”

It therefore follows that the trial court’s ruling in the case at bar was correct. Thomas v. State, 50 Ala.App. 227, 278 So.2d 230; Barnett v. State, supra.

Ill

In the trial court’s oral charge, we find the following [R. p. 169] :

“Now, good character alone, standing by itself gentlemen, is never enough to create a reasonable doubt of the defendant’s guilt. Standing alone it is never enough. But, good character, when proven to your satisfaction, and when taken into consideration with all of the other evidence in the case, it may generate a reasonable doubt as to the defendant’s guilt, whereas without proof of good character there would have been no proof or no reasonable doubt.”

At the conclusion of the charge, we find this exception [R. p. 171]:

“MR. HOWARD: The defendant would take exception to that portion of the charge where the Court stated that good character may not create reasonable doubt.”

The trial court’s oral charge is a correct statement of law with respect to the testimony of the good character of the accused. Garrison v. State, 217 Ala. 322, 116 So. 705.

IV

There were no other exceptions to the trial court’s extensive oral charge, and the trial court then gave one written requested charge. The trial court then denied some twenty-six written requested charges.

We have carefully examined each of these and determined that they were either fully covered by the trial court’s oral charge, and the given charge, or were abstract, or not properly predicated on the evidence in the case at bar, or were misleading, or incorrect statements of applicable rules of law, hence, their refusals were proper. Title 7, Section 273, Code of Alabama 1940; Cannon v. State, 53 Ala.App. 509, 301 So.2d 272; Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied 292 Ala. 743, 290 So.2d 213; Shouse v. State, 36 Ala.App. 614, 63 So.2d 722, cert. denied 258 Ala. 499, 63 So.2d 728.

The trial court properly denied the motion for a new trial. Young v. State, 283 Ala. 676, 220 So.2d 843.

We have carefully examined this record, as required by law, and find same to be free from error. The judgment is therefore due to be and the same is hereby

Affirmed.

All Judges concur.


text:
    James BLEVINS, alias v. STATE.
    8 Div. 642.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.
    Rehearing Denied July 29, 1975.
    Wesley M. Lavender, Decatur, Michael E. Sparkman, Hartselle, for appellant.
    William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Blevins was put to trial upon a three-count indictment charging (1) burglary, (2) grand larceny, and (3) buying, receiving and concealing stolen property. Prior to his arraignment he was found to be indigent and two lawyers were appointed to represent him. He pleaded not guilty. After conviction he was furnished a free transcript and trial counsel was appointed to represent him on appeal. He received an eight-year sentence in the penitentiary.

The facts are not in dispute. Appellant did not testify nor offer any evidence in his defense.

He did not make a motion to exclude the state’s evidence. He did request the affirmative charge as to all counts in the indictment and make a motion for a new trial raising the sufficiency of the evidence to sustain the judgment of conviction. This compels us to a recital of the state’s evidence.

On October 15, 1974, the home of Mrs. Becky Morrow Watwood in the Westpoint Community, Somerville, Route 2, of Morgan County, Alabama, was broken into and several articles of household furniture were taken out of the house. She testified she left home that morning at 11:30 and secured her home by locking all doors. She did not return home until around 10 :00 the next morning and found a number of officers at her home. Upon inspecting her home, she found the back door had been broken open and the front door opened. Upon entering her house, she discovered the following items missing: an antique table and four chairs, a big basin bowl and pitcher, a saddle, cider mill, butter dish, a blacksmith’s blower, and a number of other things. According to her testimony the missing property was worth well over $1000.00. As a matter of fact she stated the saddle alone cost $300.00.

She further testified that she knew appellant and had been around him on two occasions while she was visiting a Mrs. Ruby White but never more than twenty or thirty minutes. She identified him in court.

Mrs. Waltraud Hollein Westbrooks, who married a G. I. in Germany, had been living in Morgan City, Morgan County, for about seven months prior to October 15, 1974. She testified that appellant came to their home about 8:00 A.M. on the date of the burglary. He told her husband, Rayburn Westbrooks, that he had to get up some money to pay a speeding ticket. He asked Rayburn to drive him to the home of Ruby White. Rayburn and appellant got in Rayburn’s pick-up truck and left. They did not return until 1:00 P.M.. Appellant told the Westbrooks that he had to get up something to sell so that he could pay his speeding ticket fine. Appellant requested Rayburn to carry him to the Westpoint Community, but Rayburn told him he had lost his license and he might be stopped by the Highway Patrol and he refused to drive him. Appellant asked him if “Donna” (Mrs. Rayburn Westbrooks) could carry him and Rayburn agreed saying, .“I don’t want any foolishness and not to put anything in his truck.”

Mrs. Westbrooks drove the pick-up truck carrying her four-year old son with them. The boy stood up on the seat of the truck between her and appellant. Appellant directed Mrs. Westbrooks to drive him to the home of Mrs. Becky Morrow Watwood and to pull into the front yard. She stopped the truck in the front yard and appellant got out and went on the porch and knocked on the door. No one came to the door and appellant walked around the house toward the back of the house. In a few minutes appellant came out the front door carrying a saddle and put it in the back of the pick-up truck. Mrs. West-brooks protested and told appellant to put the saddle back; that Rayburn had told him not to take anything and put it on his truck. Appellant laughed at her and told her to stay there and to keep her mouth shut. He then returned to the house and got the other articles of furniture above described and put them in the back of the pick-up truck. Appellant covered the articles with a bedspread and a blanket and instructed her to drive him to the home of Mrs. Hazel Phillips in Hartselle, Alabama, giving her the directions. When they arrived at the Phillips home, appellant got out of the truck and had a conversation with Mrs. Phillips. Mrs. Phillips got a key and told appellant to follow her. Appellant got back in the truck and told Mrs. Westbrooks to follow Mrs. Phillips. Mrs. Phillips drove to an old store building and appellant told Mrs. Westbrooks to back the truck to the door of the store building so the truck could be unloaded. Appellant and Mrs. Phillips unloaded the stolen property from the truck and placed them in the store building. Mrs. Westbrooks never got out of the truck either at the time the property was loaded on the truck or at the time it was unloaded and put in the store building. After the truck was unloaded, appellant made the statement that he was going to get $100.00 for the table and chairs.

Mrs. Westbrooks, appellant and Mrs. Phillips went to the home of Mrs. Phillips where Mrs. Phillips made a telephone call in their presence.

From the record:

“Q. Now, when you got to her house, what was said about a phone call ?
“A. She made a phone call to some woman and told her she had the table and chairs already there and for her to have the money ready; and when she hung up the phone she told Jim it wouldn’t be until after 5 :00 o’clock when they get the money because she had to close the store at 5:00 o’clock. She said a woman was going to make out the check to her because he couldn’t cash it. She was going to cash it at the San An Store down there at Phillips’ Station.
“Q. All right. What then if anything did you all do ?
“A. I was sitting there drinking coffee and him and Hazel went in the garage and talked. I don’t know what about.
“Q. All right. Then what happened?
“A. When they come back she said she meet (sic) him on the mountain at 7 :00 o’clock and bring him the money.
“Q. What else?
“A. So we left. He went back in the truck and we went home to my house.
“Q. Were you in the truck also? Were you driving ?
“A. I was driving.
“Q. So, you and Chick (appellant) went back in the truck to your house ?
“A. That’s right.”

Her husband was not at home and she figured someone had carried him to the Pink Pussycat Club in Madison County just across the Whitesburg bridge. She and appellant went to the club to get her husband. She went in the club and told her husband everything that appellant had done. While she was talking to her husband, appellant walked up and told Mr. Westbrooks that everything went smoothly and that he was going to get some money and split it with him. Mr. Westbrooks told appellant that he didn’t want any of the -money.

Mr. and Mrs. Westbrooks walked outside the club with Mr. Westbrooks carrying his four-year old son in his arms. Appellant came outside and Mr. Westbrooks told him that he didn’t like what he had done in using his wife and truck to steal things after he had told him not to do so. Appellant then hit Mr. Westbrooks knocking him to the ground. The Westbrooks got in the truck and went home. Immediately upon arriving home Mr. Westbrooks called the Sheriff’s Office and reported the burglary and theft and where the stolen property was stored.

Mrs. Westbrooks further testified that she had known appellant since he got out of prison and he worked with her husband. Appellant and her husband often drank together and when they were drinking they were very mean to her. She said that she was afraid of appellant as he had broken her thumb on one occasion. She admitted on cross-examination that she had been charged with the same offenses as appellant and was on bond during appellant’s trial.

Two deputies responded to the call from Mr. Westbrooks and interrogated Mrs. Westbrooks. She told them the whole story from beginning to end and signed a statement. After the statement was signed, Mrs. Westbrooks went with the officers to the old store building where the officers were able to see the stolen property without entering the building. The officers sent for a truck from the jail and loaded the stolen property. Mrs. Watwood came to the jail and identified the property as the same that was in her house prior to the burglary and the property was released to her.

The officers arrested appellant at the home of Mrs. Phillips on the night of October IS, 1974, between 11:30 and 12:00 P. M. They were asked to explain the circumstances of the arrest and replied:

“A. Yes sir. We asked Mrs. West-brook (sic) where Mr. Blevins could be located. She said that she had left him in Huntsville and that we could check with Mrs. Phillips. I went to the Phillips’ home that night around 11:00 o’clock and knocked on the door and Mrs. Phillips came to the door and opened it. Deputy McAbee and I were standing on the porch and she invited us in. I asked Mrs. Phillips if Jim Blevins was there. She didn’t answer me. I asked her if I could look and she said go ahead. I looked into the kitchen, one bedroom and a bathroom. I then entered the bedroom on the north end of the house. I searched it and beneath the bed in that bedroom I found Mr. Blevins.
“Q. How was he dressed at that time?
“A. I believe Mr. Blevins was dressed in a pair of shorts and undershirt.
“Q. Uh huh. Now, what happened after that ?
"A. I told Mr. Blevins to get dressed. That he had to go with me.
“Q. Did you arrest him at that time?
“A. Yes, sir.”

Appellant was given the Miranda rights and warnings. He denied any knowledge of the burglary and theft.

Mrs. Audrey Barker was the last witness to testify for the state. In sum, she testified that Mrs. Watwood was her neighbor and lived about a half of a mile from her on October 15, 1974. She got off work about 1:30 to keep an appointment which required her to go home and change clothes. On her way home she came upon a pick-up truck being driven by a woman with a little boy standing up in the seat and a man on the passenger side. She observed the man as being tall and thin. She followed the truck for about a mile and saw the man constantly turning his head toward the driver and talking. During this mile, the truck was going at a very slow speed and she got a good look at the man in the truck. She was asked to look around the courtroom and see if she recognized that man. Without the slightest hesitation, she identified appellant as the passenger in the pick-up truck traveling in the direction of the home that was subsequently burglarized.

In Wyatt v. State, 51 Ala.App. 226, 283 So.2d 675, we stated the law to be in cases of this kind as follows:

“In Slayton v. State, 234 Ala. 9, 173 So. 645, in dealing with the question of corroborative evidence of an accomplice, the court said:
“ ‘It should be kept in mind that corroborative evidence of an accomplice is of two kinds. One includes facts and circumstances ascertained in checking up on his version of the affair, matters tending to support the truth of his testimony, or vice versa. The competency of this class of circumstantial evidence does not turn on whether it tends to connect the defendant with the crime. The other class, one essential to conviction, is corroborative evidence which does tend to connect the defendant with the crime. This latter class must be proven beyond a reasonable doubt. As to the other, the jury may not believe the evidence of the accomplice beyond a reasonable doubt with respect to details, but still believe his evidence on the facts essential to a conviction beyond a reasonable doubt, and, if corroborated as the law requires, a conviction should follow.’
“Under the statute requiring corroboration of the testimony of accomplices to authorize conviction of a felony (Title 15, § 307, Code of Alabama 1940), the corroborative evidence need not be strong, nor sufficient of itself to support the conviction, the criterion being that it legitimately tends to connect the accused with the offense. 23 C.J.S. Criminal Law § 812(5), p. 125 (1961); Moore v. State, 30 Ala.App. 304, 5 So.2d 644.
“Nor need such corroborative evidence directly confirm any particular fact stated by the accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776.”

In 23 C.J.S. Criminal Law § 812(3), p. 109, the rule is stated to be:

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

The testimony of an accomplice as to the defendant’s part in the burglary was sufficiently corroborated by the testimony of Mrs. Audrey Barker who saw the accused in the pick-up truck in close vicinity of the home that was burglarized. Segars v. State, 19 Ala.App. 407, 97 So. 747; DeGraaf v. State, 34 Ala.App. 137, 37 So.2d 130; Ross v. State, 74 Ala. 532.

Both the state and appellant treated. Mrs. Westbrooks as an accomplice to the crime for which appellant stands convicted. From the record before us we are not in accord with such conclusion. Due to the particular circumstances in this case, we conclude she was no more than a pawn or robot in the hands of an ex-convict of whom she was afraid. She had no idea appellant was going to break into a home and steal items therefrom. When she saw appellant emerge from the Watwood home with a saddle in his hands and place it in the back of the pick-up truck, she protested his actions and reminded him of her husband’s instructions not to put anything on his truck. She tried to get appellant to take the saddle back in the house, but he laughed at her and told her to stay there and to keep her mouth shut. Her sole role was that of an eye-witness to the commission of a crime of which she wanted no part. She was a war bride from Germany and could not read or write the English language and had difficulty in speaking the English language.

Assuming, without the. necessity to decide, the non-accessorial status of Mrs. Westbrooks, there was ample evidence to connect appellant with the commission of the crime for which he was convicted. Goodman v. State, 52 Ala.App. 265, 291 So.2d 358; Seawright v. State, 52 Ala.App. 286, 291 So.2d 376.

No reversible error was committed in bringing appellant to court handcuffed prior to his trial. Boswell v. State, 290 Ala. 349, 276 So.2d 592.

Under the evidence in this case there was no error in refusing the affirmative charges. Neither was there error in overruling and denying appellant’s motion for a new trial. Clark v. State, 54 Ala.App. 217, 307 So.2d 28; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

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.

TYSON, DeCARLO and BOOKOUT, JJ., concur.

CATES, P. J., not sitting.


author: SHORES, Justice.

text:
    In re James BLEVINS v. STATE. Ex parte James Blevins.
    SC 1401.
    Supreme Court of Alabama.
    Sept. 11, 1975.
    Wesley M. Lavender, Decatur, Michael E. Sparkman, Hartselle, for petitioner.
    No appearance for the State.
   SHORES, Justice.

Petition of James Blevins for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Blevins v. State, 56 Ala.App. 115, 319 So.2d 734.

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


author: CATES, Presiding Judge.

text:
    Alton SANDERS, alias v. STATE.
    3 Div. 374.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    John W. Davis, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Appellant appeals from a conviction of receiving stolen goods. Code 1940, T. 14, § 338. The trial judge sentenced hiijn to seven years imprisonment.

In July, 1974, someone broke and entered the store of J. V. Guest, five miles west of West Point,, Mississippi. Mr. Guest testified that about 300 cartons of cigarettes, a “whole bunch” of stereo tapes, twenty rifle cartridges, a number of wrist watches and pairs of panty hose were missing. Also taken were some blank checks.

Later appellant came to Montgomery and was present at the residence of one John Coley. Earlier that day the Montgomery Police chased a truck which the driver wrecked and abandoned. In the wreckage were a number of cigarettes bearing Guest’s name. Also, there was a black bag with letters addressed to appellant and two sets of blank checks imprinted “Mr. or Mrs. J. V. Guest.” A detective testified that he took a wrist watch from appellant.

I

The State made no proof of value of any of the goods. The charged offense rests on the following statute:

“Any person who buys, receives, conceals, or aids in concealing any personal property whatever, knowing that it has been stolen, or having reasonable-grounds for believing that it has been stolen, and not having the intent to restore it to the owner, shall, on conviction, be punished as if he had stolen it; and such offender may be tried and convicted, although the person who stole the property has not been tried and convicted.” § 338, supra.

The punishment rests on that prescribed for larceny. We have in Alabama two degrees of larceny, grand and petty. Ordinarily, the value line is $25.00. See Code 1940, T. 14, § 331, as amended, and § 334. Conviction of grand larceny requires a penitentiary sentence for not less than one nor more than ten years. Petty larceny is a misdemeanor which carries a maximum jail or hard labor sentence of one year. § 334, supra.

It is elemental in larceny (and in receiving) that the State prove (a) that the stolen property has value and (b) the value in monetary terms. The appellant’s affirmative charge here requested in writing should have been given. Padgett v. State, 44 Ala.App. 548, 216 So.2d 187; Nelson v. State, 56 Ala.App. -, 320 So.2d 714, this day decided.

II

The appellant’s motion to quash the indictment because of the alleged exclusion of ex-convicts from the jury roll in Montgomery was properly overruled for lack of proof, if for no other reason.

For the refusal of the affirmative charge the judgment below is reversed and the cause is remanded for a new trial.

Reversed and remanded.

All the Judges concur.


text:
    Howard PAIGE v. STATE.
    3 Div. 361.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.

      Carl O. Pilgrim, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment by the grand jury of Butler County, Alabama, charged the appellant with the robbery of one Sally Dortch. The jury’s verdict found appellant “guilty of robbery as charged in the indictment,” and fixed punishment at ten years imprisonment in the penitentiary. The trial court then entered judgment, setting sentence in accordance with this verdict.

Sally Dortch testified that she was ninety-seven years old and lived in Chapman in Butler County, Alabama. She stated on the evening of March 21, 1974, she ate dinner, locked the door, and went to bed early at which time she was the only person in the house. Mrs. Dortch testified that she was later awakened by someone running their hand over her mouth, that she flipped a light switch by her bed and saw the appellant, Howard Paige, whom she positively identified in court. She added that she had known the appellant since he was born. Mrs. Dortch said there were several other men in her room with the appellant, and one of them quickly turned the light off while appellant and the others grabbed her “notion belt” which was tied around her waist beneath her nightgown; that she tried to stop them but the appellant had his hands around her neck and was trying to choke her. The witness stated that she was unsure of the exact amount of money in her “notion bag,” that she thought it was $37.00, but was positive that it had contained a five dollar bill. After taking the money, the men tied her head, hands, and feet with cord, clothing, stockings, and a sweater that they found in the room and then left.

Mrs. Dortch stated that the first people she saw the next morning were Alice McMeans and a Mr. Morgan, that the cord was so tight that Mr. Morgan had to cut it. She said that her son, Alfred Marshall, arrived “up in the day.” After talking with Alfred, she spoke with a police officer but did not at that time identify the appellant as one of her assailants. However, when the officer returned on the following morning, she told him that three men had broken into her house and robbed her and that one of the men was the appellant whom she had known “all of his days.” Mrs. Dortch stated that after she had talked with Alfred and the policeman, some people took her to the doctor.

On cross-examination Mrs. Dortch testified that the robbery occurred between 9:00 p. m. and midnight, because sometime after the men left, she heard the chickens crow for the first time, which would have been around midnight. She also stated that she had worn glasses for five or six years but did not have them on at the time the men were in her room. Mrs. Dortch also testified that on the morning after the robbery she told no one but her son, Alfred Marshall, who the men were that attacked and robbed her the night before. She said that her son swore out the warrant against the appellant.

Irvin Branch testified that on the morning of March 22, 1974, pursuant to his duties as Deputy Sheriff of Butler County, Alabama, he went to Sally Dortch’s house in Chapman, Alabama. Upon his arrival, he found Sally Dortch with bindings around her neck, arms, and legs, some of which were so tight that they had to be cut away, leaving deep impressions in her arms where the cord had been. He said that during his investigation he asked Sally to bolt her door as she had before going to bed the night before; that he was able to slip a pocket knife through a crack in the door, lift the “two by four” used to bolt the door up and out through the crack, and walk through the door all within thirty seconds.

On cross-examination, Officer Branch testified that he arrived at Sally Dortch’s house around 10:00 or 11:00 a. m., on March 22, 1974, the morning after the robbery. He said that Sally’s son, Alfred Marshall, and daughter, Ethel Owens, were both there, but neither of them told him who committed the robbery. Branch stated that Sally was crying and very unstable, that her only response to his inquiry as to the identity of the robbers was “Mutt’s boy and Pepperhead,” and that she was afraid they were coming back. He said that on the morning of March 22, he was informed that $37.00 had been taken from the waist of Sally Dortch, and that at a later date he learned that there had also been $5.00 taken from an insurance packet above the victim’s bed.

Officer Branch testified that he dusted Mrs. Dortch’s house but uncovered no fingerprints. He also stated that the victim’s money belt had never been found. Branch said that he arrested the appellant after the victim identified him, and that Alfred Marshall subsequently swore out a warrant. He concluded by stating that Sally Dortch said that she scratched one of the men in the face, but that when he arrested the appellant, his face was unmarked.

Alfred Marshall testified that he went to his mother’s house on the morning of March 22, 1974, after receiving word that she had been found tied up in her room. He stated that he knew the appellant, Howard Paige, and his wife Kathryn, that Kathryn’s mother’s nickname was “Mutt.” Marshall said that when he reached his mother’s house on the morning after the robbery, his mother was upset and crying and he took her to the doctor.

On cross-examination, Marshall testified that on the morning after the robbery, his mother told him that the appellant, “Pep-perhead,” and Johnny Lee Preyer had done it, that he thought he passed this information on to Officer Branch the same morning, but it could have been another morning. He said that he swore out a warrant for the appellant’s arrest on the same morning that he gave Branch the three men’s names.

Appellant called Euell Downey, Jesse Scott, and Robert L. Austin to the stand, each of whom testified to the appellant’s good reputation for truth and veracity. In addition, Austin, Principal pf Middle School in Georgiana, Alabama, testified that he had known Sally Dortch for thirty years, and her reputation for truth and veracity was bad. On cross-examination, Austin stated that one of appellant’s attorneys, Richard P. Hartley, was Chairman of the Board of Education, but on redirect said that he, Austin, was covered by tenure.

Appellant, Howard Paige, denied taking any part in the robbery of Sally Dortch. He testified that he was thirty-three years old and married to Essie Boyd’s daughter, Kathryn. Appellant stated that on March 21, 1974, he worked for Mr. Greely, a carpenter, but that he did not go to work on that day because the weather was bad. He said that he and his wife lived with Maggie Howard in her house in Chapman, that between 4:30 and 5 :00 o’clock on the afternoon of March 21, 1974, he caught a ride with Early Boggan to Georgiana where he visited several friends and relatives before walking over to his brother’s, Ollie Paige’s, house around 8:00 p. m. Appellant stayed there for a while and then Ollie and his wife, Christine, drove him the three miles back to Chapman, and dropped him off in Maggie Howard’s front yard, at approximately 9:30 p. m. He entered the house, passed through a room in which his wife, Maggie Howard, and Johnny Preyer were watching television, went into the kitchen, ate dinner, and then walked back into his room and went to sleep. The appellant explained that he did not get up that night, that he did not leave his room after he went to bed. He said that he knew Sally Dortch’s son, Alfred Marshall, that the two of them once had.a few words over a sum of money owed for whiskey.

Ollie Paige, the appellant’s brother, testified that he was thirty-six years old and lived in Georgiana, Alabama. He stated that the appellant arrived on foot at his house at around 8:00 p. m. on the night of March 21, 1974. Ollie Paige said that he and his wife left sometime after 9:00 p. m. to drive his brother home, that they let him off at Maggie Howard’s house in Chapman, and that when he and his wife got back to their house in Georgiana, the ten o’clock news was on television.

On cross-examination, Ollie Paige testified that he and his wife let the appellant off in front of Maggie Howard’s house at 9:30 p. m. on March 21, 1974, and that he did not see his brother again that night.

Maggie Howard testified that she was sixty-one years old and lived in Chapman, Alabama, about a block away from Sally Dortch. She stated that Howard and Kathryn Paige lived in her house with her, that she had raised Kathryn as an adopted child, but that Essie Boyd was her real mother. Mrs. Howard stated that she saw the appellant come in around 9:30 vp. m., on the night of March 21, 1974, that he passed through her room, where she and Kathryn were watching television, and walked back into the kitchen. She said that the appellant ate dinner and then went to bed, that his room was in the rear of the house with the kitchen between it and her room.

On cross-examination, Maggie Howard testified that on the night of March 21, 1974, Johnny Lee Preyer, and both Ben and “Pepperhead” Boyd were at her house, as was her son, Jackie Bailey, and that the three of them were back in Jackie’s room. She said that there were two rooms in the back of her house behind the kitchen, that one of them was the appellant’s, the other was her son’s, and that it would be possible to go from the appellant’s room through her son’s room, and out the front door without entering her room. Mrs. Howard further stated that there was a bad storm the night of the robbery. On redirect, she said that as far as she knew the appellant did not go into her son’s room where the other men were.

The last witness to be called was appellant’s wife, Kathryn Paige. She testified that she was raised by Maggie Howard, but that her real mother was Essie Boyd, whose nickname was “Mutt.” Mrs. Paige said that her husband did not work on the day of the robbery, that he left home for Georgiana that day around 3:30 or 4:00 p. m., and returned at approximately 9:30 p. m. She stated that when her husband came in, she was in Maggie’s room watching television with Maggie and Johnny Lee Preyer. Mrs. Paige continued by explaining that her husband came in, ate dinner, and went straight to bed, that she went to bed later, around midnight. She said that she did not see or hear her husband leave his room at any time before or after she went to bed.

On cross-examination, Mrs. Paige stated that she could not see into the back room where her husband was sleeping from the room in the front of the house where she was watching television. She also said that there were windows in the room her husband was sleeping in, that there was a two-hour period of time after he went to bed, and before she did, that she did not see her husband, that when she did go to bed, her husband still had his clothes on.

On redirect, Mrs. Paige testified that Ben and “Pepperhead” Boyd did not leave Maggie Ploward’s house until midnight, that she went to bed shortly thereafter and found the appellant asleep in bed.

The appellant’s request for the affirmative charge was refused.

I

By virtue of appellant s request m writing for the affirmative charge, the weight and sufficiency of the State’s evidence is now before us for review.

In Tarver v. State, 53 Ala.App. 661, 303 So.2d 161 (1974), Judge Harris, in speaking for this Court, observed:

“The three essential elements of the crime of robbery are: (a) felonious intent, (b) force, or putting in fear as a means of effecting the intent, and (c) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. Douglass v. State, 21 Ala.App. 289, 107 So. 791; Hardins v. State, 28 Ala.App. 524, 189 So. 216; Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382.”

In the instant case, the State’s evidence was to the effect that several men broke into the home of a ninety-seven year old woman in the dead of night while she was sleeping, and forcefully removed her money belt from around her waist as she struggled to defend herself. In court, the victim positively identified the appellant as one of her assailants and further testified that she had known him “all of his born days.” We are of the opinion that the State here presented a prima facie case of robbery. Raybon v. State (1975), 55 Ala.App. 143, 313 So.2d 570, and authorities therein cited.

II

A conflict in the testimony between the appellant’s alibi and that of the State presented a question for the jury. McColston v. State, 20 Ala.App. 591, 104 So. 347; Raybon v. State, supra.

We have carefully examined this record and find no error therein. The judgment of the trial court is due to be and the same is hereby

Affirmed.

All the Judges concur.