author: HOLMES, Judge. HOLMES, Judge.

text:
    John VICK et al. v. Solomon TISDALE et al.
    Civ. 575.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1975.
    Rehearing Denied Nov. 26, 1975.

      James M. Prestwood, Andalusia, for appellants.
    W. Sidney Fuller of Tipler, Fuller & Barnes, Andalusia, for appellees.
   HOLMES, Judge.

This is an appeal of a jury verdict and judgment thereon from the Circuit Court of Covington County. Damages of $5,090 for the wrongful cutting of plaintiffs’ trees were assessed against the defendant-appellants.

The dispositive issues on this appeal are whether there is evidence to support the jury’s finding as to the fair market value of the trees and whether the cutting was willfully and knowingly done in violation of Tit. 47, § 272, Code of Ala. 1940.

The tendencies of the evidence as revealed by the record indicate the following:

Defendant-appellant Ray Hitson was instructed by the other appellants to cut timber in a thinning out operation on land which was ostensibly the property of the Dixon Lumber Company. Defendant Hit-son was also instructed by the other appellants to use an ownership map, known as an Espy map, found on the wall of the Dixon Lumber Company’s offices to guide him as to where he should cut. The same map was also to be found on the wall of the Covington County Tax Assessor’s office where it was extensively used by the citizens of Covington County. The map was made prior to the instant cutting operation and under one view of the evidence was approximately three years old.

Defendant Hitson did not inquire of the personnel of Dixon Lumber Company concerning their ownership of the land on which he was to cut, nor did he examine any recorded deeds or plats. Relying solely on the Espy map, he proceeded with the cutting operation. It developed that the map was erroneous and that the trees felled by Hitson were in fact located on land owned by the plaintiffs.

The plaintiff-appellees instituted this action, claiming compensatory damages of $2,500 for the loss of the trees, and $10,000 as a statutory penalty under Tit. 47, § 272, Code of Ala. 1940. The defendants prosecute this appeal from the aforementioned adverse verdict of $5,090.

. The fact of the cutting being admitted by defendants, the only issues in the cause below, as agreed by the parties and stated in the pretrial order of the court, were the fair market value of the trees and whether the cutting was willfully and knowingly done in violation of Tit. 47, § 272, of the Code.

We initially note that the testimony regarding the number of trees cut and their fair market value was in dispute. Numbers varying from 409 to 509 were advanced, as were values ranging from $320 to $2,500. The resolution of conflicting evidence is the province of the jury. Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875. There is evidence to support the jury finding the fair market value of the cut timber to be $2,500 as prayed for in appellee’s complaint.

Inasmuch as only $2,500 compensatory damages were sought by appellees, the remainder of the $5,090 verdict is an award of the statutory penalty pursuant to Tit. 47, § 272, Code of Ala. 1940.

Appellants specifically contend that the court below erred to reversal in denying their motion for a directed verdict, in that there is no evidence that the cutting was willfully and knowingly done as required by the statute. For reasons which we shall now state, we agree.

Tit. 47, § 272, Code of Ala. 1940, states as follows:

“Damages for destruction, injury, or removal of trees. — Any person who cuts down, deadens, girdles, boxes, or destroys, or takes away, if already cut down or fallen, any cypress, pecan, oak, pine, cedar, poplar, walnut, hickory, or wild cherry tree, or sapling of that kind, on land not his own, wilfully and knowingly, without the consent of the owner of the land, must pay to the owner twenty dollars for every such tree or sapling; and for every other tree or sapling not hereinbefore described, so cut down, deadened, girdled, boxed, destroyed, or taken away by any person, he must pay to such owner the sum of ten dollars. Actions under this section may be joined with actions for trespass, for cutting, injuring, or removing timber.”

The pivotal consideration in the instant case is the construction to be placed upon the statutory language “wilfully and knowingly.”

It is indeed a hoary maxim of statutory construction that penal statutes, as is § 272, are to be strictly construed. Postal Telegraph Co. v. Lenoir, 107 Ala. 640, 18 So. 266; White, McLane & Morris v. Farris, 124 Ala. 461, 27 So. 259. The terms “wilfully” and “knowingly” are said to denote an intention to produce the result which actually comes to pass, and to be mutually exclusive with the term “negligence.” Words & Phrases, Vols. 23A and 45. The case law history of § 272 is consonant with this construction. Russell v. Irby, 13 Ala. 131; Postal Telegraph Co. v. Lenoir, supra; Glenn v. Adams, 129 Ala. 189, 29 So. 836. In Russell, supra, the court said, with reference to a similar New Hampshire statute:

“ ‘The general tenor of the statute is such, as wholly to preclude the idea that it was designed to apply to unintentional trespasses.’ This latter remark applies with equal justness to our statute.” (13 Ala. at 135)

Russell was the first case to construe what is now § 272, and it has been quoted with approval since its rendering in 1848.

We further note that the imposition of a penalty would seem to be addressed to conduct more opprobrious than mere negligence, which is remedied by compensatory damages alone.

If, then, one does not in fact intend to cut the trees of another without his consent, it follows that there would exist a defense to § 272. Glenn v. Adams, supra; Ellard v. Goodall, 203 Ala. 476, 83 So. 568; Long v. Cummings, 156 Ala. 577, 47 So. 109. The court in Ellard stated that, “Honest belief, honestly entertained, in cutting, etc., timber, is inconsistent with the design of the cited statute, rendering it inapplicable and avoiding its penalty.” (203 Ala. at 479, 83 So. at 571).

Able counsel for appellees cites the cases of Allison v. Little, 85 Ala. 512, 5 So. 221; and Louisville & Nashville Railroad Co. v. Hill, 115 Ala. 334, 22 So. 163, in support of the proposition that negligently obtaining information from third parties as to where to cut will support imposition of the § 272 penalty. In these cases, the defendants intended to cut the plaintiffs’ trees, credulously assuming that third parties could authorize them to do so. These defendants had, under the circumstances of these cases, no reasonable basis for their belief that their cutting was authorized.

The lack of a reasonable basis for one’s belief that cutting is authorized, whether that belief be in the existence of a privilege to cut the trees of another or in the assumption the trees are in fact one’s own, may suffice to impose the § 272 penalty. However, if the basis for good faith cutting be unreasonable, but only insofar as to constitute ordinary negligence, § 272 can have no application in view of the plain meaning of its language and its' case law history, as discussed, supra. On the other hand, if the basis for a belief that the cutting is authorized be so patently unreasonable as to constitute a reckless disregard for the ownership of the trees, we deem § 272 would be applicable.

Reckless conduct can be considered as sufficiently reproachful to place it within the intent of the penal statute, and as such it is constructively willful and knowing. There can be no meaningful distinction between him who intentionally cuts the trees of another without his consent and him who cares not whose trees he cuts. To hold that such a distinction exists would be blatantly unreasonable and would except from the ambit of the statute’s deterrent power conduct which manifestly belongs within it. For a discussion of the mental attitude required by such statutes, see Anno. 111 A.L.R. 79 at p. 82.

In stating that reckless conduct would be addressed by § 272, we answer in the affirmative the following quaere posed in Russell v. Irby, supra, and left unanswered in the ensuing 127 years:

“Whether negligence so gross as to indicate an entire recklessness, or indifference to the rights of another, would be a substitute for actual knowledge, or authorize its implication, need not be considered. . . .” (13 Ala. at 135)

However, we find here no evidence in this instance that the defendant-appellants willfully and knowingly, or recklessly, cut the trees of plaintiff-appellees. There is certainly no evidence that appellants intended to cut appellees’ trees. The reliance upon a map of general use and notoriety in the county, even though out of date, without inspecting deeds and plats, indicates at best negligence on the part of defendant-appellants, but not of the magnitude sufficient to bring their actions within the statute. Accordingly, we hold that the learned trial judge erred in not granting the defendant-appellants’ motion for directed verdict.

In view of the above, it is unnecessary to discuss other matters raised in appellants’ brief.

The case is therefore due to be reversed.

Reversed and remanded.

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

ON REHEARING

HOLMES, Judge.

Able and distinguished counsel for appel-lees, in a well-reasoned brief supporting his application for rehearing, charges this court with ignoring the principle set forth in Givens v. Kendrick, 15 Ala. 648. For the following reasons, we do not agree.

Givens, supra, stands for the proposition that if one intends to cut certain trees without their owner’s consent, but mistakenly cuts trees owned by another, he is then liable for the penalty imposed by Tit. 47, § 272, Code of Ala.1940, to the owner of the trees he in fact cut. Learned counsel contends that it was defendant-appellants’ task to prove that they hacl permission 'to cut the trees which they intended to cut. He further contends that their failure to do so renders Givens, supra, applicable here.

Such is not the case. Lack of consent to cut the trees which appellants intended to cut is an element of plaintiff-ap-pellees’ cause of action for the statutory penalty. Specifically, the statute requires that for a claimant to recover the statutory penalty the cutting must be done knowingly, willfully, and without the consent of the owner. To recover in this instance, under the Givens rationale, the requirements of the statute, to wit, lack of consent, must be proved by the party asserting the claim. The record does not reveal that such was proved. Givens accordingly does not apply in this instance.

Able counsel requests this court to order an affirmance conditioned upon a re-mittitur of damages over $2,500, inasmuch as ample evidence exists to support the jury’s finding that the fair market value of the timber cut was $2,500 as prayed for in appellees’ complaint. While we are not unsympathetic to counsel’s request, which is based upon considerations of judicial economy and expense to the parties involved, we cannot issue such an order. As our original opinion points out, the evidence was conflicting as to the number of trees actually cut and their fair market value. It therefore cannot be ascertained how to apportion the $5,000 general verdict between compensatory damages and statutory penalty. Accordingly, the remittitur requested by counsel is too speculative to be granted.

Opinion extended. Application for rehearing overruled.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    E. C. DOTHARD, as Director of the Department of Public Safety v. Richard Charles BELSER.
    Civ. 652.
    Court of Civil Appeals of Alabama.
    Oct. 22, 1975.
    Rehearing Denied Nov. 12, 1975.

      William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellant.
    Richard C. Belser, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from decree of mandamus.

On April 8, 1975, Richard Charles Belser filed in the Circuit Court of Montgomery County a pleading styled “Bill for Declaratory Judgment and Injunctive Relief,” against E. C. Dothard, Director of Public Safety of the State of Alabama. It was alleged therein that on August 14, 1973, a conviction for driving while intoxicated was entered against Belser; that on April 2, 1975, notice was received that his driver’s license was revoked for a period of six months from April 17, 1975, under authority of Title 36, Section 68, Code of Alabama (1940). Other matters were alleged not material to this appeal. It was requested that the Director be directed to answer the bill and that after hearing an order be entered directing that the revocation of the driver’s license be set aside and the license be restored.

With the petition, a motion was made for a speedy hearing under Rule 57, Alabama Rules of Civil Procedure. In response, the court ordered that hearing on the merits of the bill be set for April 17, 1975.

Without filing responsive pleading, counsel for the Director appeared at the time set for hearing and orally said as follows:

“Judge, we have not filed any response. We will at this time make an oral motion to dismiss the bill on the grounds it shows on its face it .ought not to be granted. We would make that motion.”
The Court: “Motion overruled.”

After this motion and ruling, without further pleading or objection, the hearing proceeded with evidence submitted by Belser and his father. The Director presented testimony from a Lt. Stewart. Judgment directing the Director to promptly return the license to Belser was entered on April 18, 1975.

The Director on April 24, filed motion for rehearing or new trial, stating therein that he was not allowed the proper time to plead to the complaint prior to the hearing. He further stated that had he been given the time allowed by the Rules to plead, he would have filed a motion to dismiss or a motion for a summary judgment. He exhibited in the motion the pleading he would have filed had he been given sufficient time. We find no ruling by the court on the motion. The Director filed notice of appeal on May 21,1975.

On appeal, Director first attacks the action of the court setting the hearing on the merits only nine days after the filing of the petition.

Every defendant has 30 days after personal service of the summons and complaint within which to file his answer. Rule 12(a) ARCP. There is nothing in Rule 57, ARCP which changes or affects Rule 12(a). However, it has always been acceptable for a defendant to waive his right to 30 days for filing an answer or other pleading. Bush v. Robinson, 44 Ala. 328. We have previously stated that the Director appeared by counsel and made no objection to a hearing on the merits at a time only nine days after service. Appearance and participation without objection waived his right to 30 days for answer. Beshear v. Weinzapfel, 474 F.2d 127 (7th Cir. 1973).

Director contends error in the overruling of his oral motion to dismiss. We have set out hereinabove the motion as it appears of record. Without considering whether such motion is required to be in writing by Rule 12(b), we find the motion lacking in particularity to be sufficient to advise the court of the matter complained of. The wording of the motion amounts to no more than that of a general demurrer under common-law pleading. Under pre-ARCP rules the overruling of a general demurrer was not considered error on appeal. Title 7, Section 236, Code of Alabama (1940). If the motion were intended to be the defense that the complaint failed to state a claim upon which relief could be granted, it was overruled without prejudicial error. A complaint should not be dismissed on such a defense unless it appears beyond doubt that the plaintiff can prove no state of facts in support of his claim which would entitle him to relief. Forbush v. Wallace, D.C.Ala.1971, 341 F.Supp. 217, affirmed 405 U.S. 970, 92 S.Ct. 1197, 31 L.Ed.2d 246.

After making the oral motion to dismiss, the hearing proceeded without further objection from the Director. There was considerable testimony concerning events occurring after the appearance of Belser in the Municipal Court of the City of Montgomery. However, the only pertinent testimony was that Belser did not enter a plea to the charge, a plea of not guilty was not entered for him, and no evidence was taken oh the charge. The record of the judg.ment was not presented in evidence by the Director. There was no rebuttal of the evidence that no plea was entered nor trial held. With such undisputed evidence there could be but one finding by the trial court. There can be no trial on the merits nor judgment entered in a criminal case without a plea to the charge. Title 15, Section 276, Code of Alabama (1940).

A judgment of conviction in a criminal case must affirmatively show that the defendant pleaded to the complaint or indictment or that the court entered a plea of not guilty for him. McClendon v. State, 44 Ala.App. 558, 216 So.2d 302.

Even though a judgment is shown valid on its face, if facts are admitted or are shown without objection which show it to be void, the rule against collateral attack does not apply. Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725. Under the facts and posture of this case our decision in Dothard v. Ridgeway, 54 Ala.App. 429, 309 So.2d 468 is not applicable.

Finding no error in the record, judgment of the trial court is affirmed.

Affirmed.

BRADLEY, J., concurs.

HOLMES, J., not sitting.


author: PER CURIAM.

text:
    In re E. C. DOTHARD, as Director of the Department of Public Safety v. Richard C. BELSER. Ex parte STATE of Alabama, the DEPARTMENT OF PUBLIC SAFETY of the State of Alabama and E. C. Dothard, Director of Public Safety.
    SC 1568.
    Supreme Court of Alabama.
    Dec. 18, 1975.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
    None for respondent.
   PER CURIAM.

Petition of the State of Alabama, the Dept, of Public Safety of the State of Ala., and E. C. Dothard, Director of Public Safety, for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Dothard, as Director of the Dept. of Public Safety v. Belser, 56 Ala.App. 569, 324 So.2d 284.

Writ denied.

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


text:
    John D. SIBLEY and Charles J. Smith v. Willard E. ADAMS, Sr. and Brenda H. Adams.
    Civ. 546.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1975.
    Rehearing Denied Oct. 8, 1975.

      Wade H. Morton and Bryant A. Whit-mire, Birmingham, for appellants.
    Madison W. O’Kelley, Jr., Birmingham, for appellees.
   WRIGHT, Presiding Judge.

Defendants appeal from a verdict and judgment in favor of plaintiffs for damages resulting when trees were cut from plaintiffs’ land.

Plaintiffs own approximately three acres of wooded land in Jefferson County. Defendant Sibley is the owner of an adjoining tract. In 1972, defendant Sibley leased his land for strip mining to the Hallmark Coal Company, reserving the right to remove timber from the land prior to mining.

As part of his duties with Hallmark, defendant Smith, along with a surveyor for Hallmark, marked the boundary line dividing the Adams and Sibley tracts. Smith then notified a nearby woodyard, which dispatched cutters to cut the timber from the Sibley tract. The woodyard paid Sibley four dollars per cord for wood cut from his land. Smith later discovered that not all of the timber had been removed. He then secured Stone to complete the cutting, accompanied him to the Sibley tract and showed him where to cut.

Apparently, it was during the second cutting that the trees were cut from the plaintiffs’ property. Some 52 large pine trees were cut from the lower one-third of plaintiffs’ tract.

Samuel Hays, father of plaintiff Brenda Adams, first discovered that trees had been cut from the Adams tract. He testified as to a conversation between himself and Smith wherein Smith stated that Stone cut for “me and Mr. Sibley.” Hays also testified to a telephone conversation between himself and Sibley in which Sibley said that he had a woods foreman who knew where the line was and that this foreman was Charlie Smith.. Smith testified that one of his duties with Hallmark was to “help Mr. Sibley in any manner that I could.”

Although the complaint was filed February 23, 1973, trial was held after the rules went into effect and the rules therefore governed procedure in this case. Rule 86, Alabama Rules of Civil Procedure. The complaint consisted of two counts: Count One being in the Code form for trespass to land, and Count Two for the statutory penalty for cutting trees. The complaint was later amended to add a third count for conversion of the trees. At the conclusion of the evidence, the court struck Count Two, the statutory penalty for cutting trees. The court instructed the jury regarding punitive damages, and further instructed on this issue during deliberations when requested to do so by the jury. The jury returned a verdict in favor of plaintiffs and assessed damages at $6,000.

In their motion for directed verdict, and again in their motion for judgment notwithstanding the verdict, defendants contended that plaintiffs had failed to prove their case because of a lack of proof that the defendants Sibley and Smith directed, authorized, participated in or ratified the acts of their agents, servants or employees. Defendants’ theory is based on several cases following City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389, holding that there could be no recovery in an action in trespass against the master for the intentional tort of his servant without proof that the master directed, authorized, participated in or ratified the act.

However, this court recognized in Roberson v. Harris, 45 Ala.App. 537, 233 So.2d 96, that Title 7, Section 217(1), Code of Alabama (1940) nullified City Delivery v. Henry, Supra. Section 217(1), as interpreted by Aggregate Limestone Co. v. Robison, 276 Ala. 338, 161 So.2d 820 removed the common law distinctions between trespass and case, both as to pleading and proof, in cases involving the doctrine of re-spondeat superior, though retaining the right to plead the applicable statute of limitations. Under Section 217(1) it is permissible in any case to aver that defendant committed an act and at trial prove that the act was committed by or through an agent, servant or employee acting within the line and scope of his employment. Aggregate Limestone Co. v. Robison, Supra clearly construed Section 217(1) to overrule the substantive law that in order to establish liability of the master for the trespass of his servant, the master must be shown to have actually participated in, authorized or ratified such trespass. Such construction is evident from the following statement:

“The plain meaning of this is that where proof that an agent committed an intentional, wanton, or negligent act while in the line and scope of his employment, liability for such act would be imputed to the principal, regardless of the actual participation of the principal in the intentional, wanton or negligent act or omission under the doctrine of re-spondeat superior. This act, of course, sets up a new statutory form of action.”

In the instant case the complaint sought damages from the defendants for trespass to land. The proof offered was that the act was committed by a servant or employee of the defendants while acting within the line and scope of employment. Such pleading and proof is permissible under Section 217(1).

Further, the Alabama Rules of Civil Procedure abolish the forms of action and the procedural distinctions between them. Rule 2, Alabama Rules of Civil Procedure. The rules only require that a claimant set out a “short and plain statement of the claim that will givethe defendant notice of what the plaintiff’s claim is and the grounds upon which it rests . . . ” Rule 8, ARCP; Lowes of Muscle Shoals, Inc. v. Dillard, 53 Ala.App. 669, 304 So.2d 12. Count One gave the defendants ample notice that the plaintiffs were suing for damage to their land caused by the cutting of trees therefrom. Under the rule plaintiffs were entitled to any relief shown by the evidence, regardless of the technical form of action set out in their complaint. Lyons, Proposed Rules of Practice, 33 Alabama Lawyer, page 285; Vol. 2, Moore's Federal Practice, Section 2.06, pp. 355—56.

Defendants contend there was insufficient evidence to support the verdict that Stone was their agent, servant or employee while cutting the trees. They maintain that their relationship with Stone was that of an independent contractor.

As previously stated the jury had before it the testimony of Hays that Sibley admitted Smith was his woods foreman. Hays further testified that Smith said Stone cut for “me and Mr. Sibley.” Smith later testified that part of his job with Hallmark was to assist Sibley. This testimony, together with the reasonable inferences that could be drawn from the evidence that trees were being cut from Sib-ley’s land, that Smith located the lines, pointed them out to the cutter and took affirmative action to complete the cutting was sufficient to support a find that Smith was the agent or employee of Sibley and that Stone was the servant or employee of Smith. Under the doctrine of respondeat superior both Sibley and Smith could be determined responsible for the actions of Stone. Harris v. Bell, 234 Ala. 679, 176 So. 469.

Defendants further maintain that if Stone was their servant or employee, he was not within the line and scope of his employment when he cut the trees. However, as a servant or employee, Stone was authorized to cut trees on Sibley’s land. When Stone was engaged to cut the trees the risk that he would stray onto adjoining land was present, so that such a diversion was incident to the authorized cutting. Where the evidence, either directly or by reasonable inference, tends to show that the wrong is committed by the servant while he is undertaking to execute the duties assigned to him the servant is acting within the line and scope of his employment. Solmica of Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638. If the evidence tends to establish that the act was incident to carrying out the duties assigned to him by his master, the master may be held responsible even though he did not authorize the agent to resort to such means in rendering the services for which he was employed. United States Steel Co. v. Butler, 260 Ala. 190, 69 So.2d 685.

Defendants argue that there was insufficient evidence to support the court’s charge on punitive damages. Plaintiff responds that there is no showing that the punitive damages charge influenced the jury, attributing the verdict to compensatory damages. However, error in an instruction is ground for a reversal, unless it affirmatively appears that it was not prejudicial. Peck v. Henderson, 218 Ala. 233, 118 So. 262, and cases collected at 2A Ala. Dig., Appeal & Error, § 1031(6).

“It is only where a trespass is attended by rudeness, wantoness, recklessness or an insulting manner, or is accompanied by circumstances of fraud and malice, oppression, aggravation or gross negligence that a jury is warranted in awarding punitive changes.” Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974); Ramos v. Fell, 272 Ala. 53, 128 So.2d 481 (1961).

There was evidence that the area to be cut was clearly marked by the surveyor and that the cutter was shown the marked area. Such evidence and the inferences to be reasonably drawn furnish more than a scintilla that the cutting of trees outside the marked area was intentional and deliberate or was done with gross negligence.

We consider the charge of the court on punitive damages proper under the evidence.

Finding no error in the record, judgment is affirmed.

Affirmed.

BRADLEY and HOLMES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    In re John D. SIBLEY and Charles J. Smith v. Willard E. ADAMS, Sr., and Brenda H. Adams. Ex parte John D. Sibley and Charles J. Smith.
    SC 1516.
    Supreme Court of Alabama.
    Nov. 20, 1975.
    Wade H. Morton and Bryant A. Whit-mire, Birmingham, for petitioner.
   BLOODWORTH, Justice.

Petition of John D. Sibley and Charles J. Smith for writ of certiorari to the Court of Civil Appeals to review and revise judgment and decision of that Court in Sibley, etc. v. Adams et al., 56 Ala.App. 572, 324 So.2d 287. The petition for certiorari is sought on a “conflict” basis and that “a material question requiring decision is one of first impression in Alabama.” Rule 39. Writ is denied.

Petitioners contend that the decision of the Court of Civil Appeals, which affirmed a judgment in trespass against the master where the proof fails to show that the master participated in, authorized, directed, or ratified, the trespass, is in conflict with our decisions — principally Osborn Contracting Company v. Alabama Gas Corporation, 273 Ala. 6, 135 So.2d 166 (1961). It is charged that the latter decision “has not been overruled or modified.” Osborn followed this Court’s decision in City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389 (1903). Since doubts appear to linger as to the viability of City Delivery Co. v. Henry, supra, and its progeny, we have undertaken to write this short opinion to indicate our agreement with the Court of Civil Appeals’ opinion.

In 1964, Mr. Justice Simpson authored for the Court the opinion in Aggregate Limestone Co. et al. v. Robison, 276 Ala. 338, 161 So.2d 820 (1964), which held Act 624, [Tit. 7, § 217(1)] to be constitutional. The opinion added that “It may be well to advert to § 176(1) et seq., Tit. 7, Code of Ala. as amended (§§ 1 to 6, inclusive, Act No. 544, Gen.Acts 1957).” Justice Simpson refers the reader to Atlantic Coast Line R. Co. v. Kines, 276 Ala. 253, 160 So.2d 869 for a discussion of that statute. Then he adds:

“We think the excrescences with reference to the common law action discussed in City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389, and later cases, should have been long ago removed and that they have been by said § 217(1).”

In 1970, the Court of Civil Appeals, in Roberson v. Harris, 45 Ala.App. 537, 233 So.2d 96 (per Wright, J.) restated the holding that § 217(1), Tit. 7, was valid, following Aggregate Limestone Co. v. Ro-bison, supra.

Moreover, since the advent of A.R.C.P. we have added reason to support these conclusions. See Rules 1, 2, 8, 18, 20, Appendix II, A.R.C.P.

Writ denied.

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


author: DeCARLO, Judge.

text:
    Paul D. YANCEY, alias v. STATE.
    7 Div. 301.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.

      Phillips & Watson, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Frank L. Thiemonge III, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Manslaughter, first degree; 10 years.

The indictment charged that:

“. . . Paul David Yancey, alias unlawfully and with malice aforethought killed Joseph Cook by shooting him with a pistol . . .”

In support of this indictment the State presented the following evidence:

Wanda Cook testified that on September 23, 1972, she and her husband, Joe Cook, went to the V.F.W. Club in Piedmont, Alabama. It was about 8:30 P.M. when they arrived, accompanied by Kenny, Rosalie, Jerry and Joyce McFry. They were seated at a table on the left of the entrance. Around midnight an argument erupted between Fain McFry and his brother, Jerry, and it continued for about fifteen minutes. She did not see appellant before or during the argument.

The lights were turned on in the ballroom and her husband walked toward the entrance where Fain and Jerry were arguing. As Joe walked into the foyer, Paul Yancey pushed him into a corner. They grabbed one another, and Joe hit the appellant. Joe freed himself and walked with Wanda and Mr. Baker, the manager, to the outside of the building. Mr. Baker then returned to the foyer. In a few minutes Joyce McFry opened the foyer door and said, “Joe, come get Jerry.” Joe turned and ran back into the building and Wanda followed. When they re-entered she tried to get him to go back outside. He shoved her into the corner where appellant was standing, and she saw appellant holding a gun. As he fired, she looked around and saw her husband fall.

She stated Joe did not have anything in his hand and was just a few steps from the doorway when he was shot.

The autopsy of the deceased revealed he had been shot in the mouth with a .25 caliber bullet. The projectile had lodged in the back of his mouth, and blood from the wound had gone into his windpipe. In the opinion of Dr. Robert Johnson, the State toxicologist, death was the result of shock and hemorrhage.

A blood specimen revealed deceased had 0.17 percent alcohol content in his blood. Dr. Johnson stated this would make the victim high but not sloppy drunk. Further, a subject with this amount of alcohol in his blood would know where he was but probably not care.

Dr. Johnson stated he test-fired the death weapon and tiny traces of powder were observed up to 18 inches away. Past this point, no powder or residue was detected.

Sergeant Cecil Parris of the Piedmont Police Department, arrived at the V.F.W. Club about 1:00 A.M. and saw Jerry, Fain and Kenny McFry arguing in front of the building. On entering the club, he found the body of Joe Cook lying facedown in the hall. He searched the foyer and found a broken ashtray. In the back part of the building he saw Paul Yancey, who appeared to be sober. At that time appellant gave him the pistol.

Janice McFry testified that on the night in question, she and her husband, Fain, were seated at the table with Joe Cook and his wife. Around midnight her husband and Jerry began to argue. The argument continued and the two proceeded into the foyer. About that time she saw Joe and Wanda Cook walk out of the building with Mr. Baker.

In a few minutes, Joe re-entered the room and looking in appellant’s direction, threw up his hands, saying, “There’s not anybody going to jump on Jerry.” Janice then ran to Joe and grabbed his wrists. Stepping back, she turned and saw appellant, who was about seven feet away, shoot Joe. Nothing was said between the two men before she saw the shooting, and Joe did not have anything in his hands.

Mr. Baker, manager of the V.F.W., testified the club usually closed about 1:00 A.M. Prior to turning the lights on he heard loud arguing at the McFry’s table which was located on the opposite end of the building from appellant’s. He went to the McFrys in an effort to get them to leave and noticed that Joe Cook was not involved. After the lights were turned on, he began to walk the McFrys in the direction of the main entrance. He then turned to Joe Cook and, along with Mrs. Cook said, “Joe, let’s walk outside.” Shortly, Mr. Baker returned to the club and locked the door as he entered the building. The argument was still in progress and he informed the McFrys he was going to call the police. After making the call, he heard a shot. In about 30 or 40 seconds, he reached the foyer and saw Joe Cook lying on the floor. The victim had nothing in his hands and Mr. Baker did not see anything near the body. He did notice a broken ashtray in the corner. About three minutes elapsed from the time he left the victim outside and his call to the police.

Fain McFry testified that after he started arguing with his brother, Mr. Baker came over and asked them to leave. The appellant was not in the foyer when they entered but walked in after Jerry pushed Fain into a table. About that time, the door opened and Joe stepped in. He did not say anything to appellant or make any move, other than throw his hands up, saying, “I wasn’t going to jump on Jerry.” Fain’s wife grabbed Joe’s wrists momentarily, and when she stepped back the shot was fired.

The State rested*and the defense called Johnnie Baggett.

Mrs. Baggett testified she and her husband were in the appellant’s party at the V.F.W. Club. She recalled the disturbance between the McFrys and that she walked over to her cousin, Kenny, to ask that he not get involved. He pushed her into a corner of the foyer, and Paul Yancey came over to her. While they were in the corner, Joe Cook came in the door. He called Paul Yancey a s.o.b. and told him to come outside. Mrs. Baggett saw something shiny in Joe’s hand, and as she and her husband moved toward the ballroom, Joe threw whatever it was. The object hit the wall and as she turned, Joe was shot. Mrs. Baggett stated Joe “looked plumb wild.”

Paul Yancey, a former policeman, testified that after the disturbance began, he walked to the entrance where a number of people had gathered. His wife followed and as he entered the foyer, Joe Cook grabbed him. They scuffled and Joe hit appellant in the jaw. Mrs. Cook and the manager intervened and took Joe outside. Within minutes, Joe reappeared and someone said, “Watch out, Paul, he has something.” Cook then remarked, “Come on, mother -, and get me,” and threw an ashtray at appellant. At that moment someone hit Yancey with a chair, knocking him to his knees. Appellant came up with his pistol and shot Joe Cook.

Yancey stated he had been threatened by the deceased and the last time occurred about two months before the shooting.

Mrs. Yancey testified Joe Cook grabbed her husband by the neck, and she tried to separate them. She left to get help and while she was gone, heard the shot.

Jerry Baggett testified that after Joe Cook went outside, he went to the corner where his wife and appellant were. Almost simultaneously with a banging on the door, Bobby McFry started toward them with a folding chair and Baggett told him to put it down. The door subsequently opened, and Joe Cook came in hollering, “Yancey, you mother-, come on.” Cook threw an ashtray at Yancey and appellant shot him.

I

On or about January 7, 1974, counsel for appellant requested that the case now on appeal not be called until Thursday, January 17, 1974. The request was granted, and the trial did not begin until that day.

Originally, the case had been set for January 14, 1974. On that day the regular and special venires were organized and sworn into service for the upcoming week. Some of the prospective jurors were excused at that time.

Appellant insists that he did not waive his right to be present, and the excusáis were error.

No objections were made to the ve-nire, and this matter cannot be raised for the first time on appeal. Ex parte Charles R. Campbell, 278 Ala. 114, 176 So.2d 242.

“It follows that this matter must be deemed as waived in the absence of any objection prior to trial and is not now to be considered.” Ex parte Campbell, supra.

Excusals of jurors in defendant’s presence is not required. Dean v. State, 54 Ala.App. 270, 307 So.2d 77.

In this case the defendant was present while the jury which heard and decided his case was qualified and chosen. This is the basic right which the law seeks to insure, and in the present case this right was not abused.

II

After the trial began and while the first witness was being examined, a special prosecutor entered the case. Defendant objected on these grounds:

“. . . [T]hat the special prosecutor was not present when the jury was being qualified and the defendant did not have the opportunity to examine the prospective jurors as to any relationship with the special prosecutor .
“. . . [T]he special prosecutor, was not a licensed attorney in the State of Alabama and had not taken the necessary steps under Alabama law to appear specially in the case . . .”

The trial court overruled the objections, and defendant assigned substantially the same grounds in his motion for a new trial. The motion was overruled, and appellant now insists the trial court’s ruling was error.

In reference to the contention that the special prosecutor was not qualified before the trial jury, we observe that appellant did not request a re-examination of the jurors nor was any inquiry made of the special prosecutor as to any acquaintance or connection he might have had with members of the jury.

Under these circumstances we do not find the ruling improper. Any prejudice that might have resulted from the special prosecutor’s appearance was waived. Owens v. State, 40 Ala.App. 36, 109 So.2d 141.

Regarding the second ground of this insistence, appellant argues that this court in Paul v. State, 48 Ala.App. 396, 265 So.2d 180, set out the rule for admission of nonresident attorneys. It reads:

“‘ADMISSION OF NON-RESIDENT ATTORNEYS PRO HAC VICE
“ ‘Any Member of the Bar of another State or jurisdiction, actually engaged in any cause or matter pending in any Court of this State, may be permitted by such Court to appear in and conduct such cause or matter while retaining his residence in another State without being subject generally to the rules regarding admission to the Bar of this State, provided that he first be introduced and recommended to such Court by a member of the Board of Commissioners of the Alabama State Bar, such introduction and recommendation to be either in person or by a written communication, otherwise such attorney may not appear as an attorney in any Court of this State.’ ”

The purpose of this rule is to insure that there will always be within the jurisdiction of our courts a responsible representative of the action upon whom papers might be served and whom the court might call at. any time for information.

We do not construe this rule to mean that where a duly elected district attorney is actively engaged in the presentation of a case and a non-resident attorney appears as a special prosecutor, it is necessary that a formal recommendation be made beforehand.

The district attorney is charged under the Alabama Constitution with the responsibility of prosecuting the offense, and in the instant case he was present during the entire trial. The prosecution was conducted under his supervision, and the appearance of the special prosecutor was under his auspices. The district attorney was available to the court and the defendant’s attorney throughout the trial.

This appellant’s fundamental right to a fair trial was in no way jeopardized by the appearance of this non-resident attorney as special prosecutor. The court’s action was proper.

Ill

The evidence recited above was sufficient to make a prima facie case, and the motion for a new trial was properly overruled. Young v. State, 283 Ala. 676, 220 So.2d 843.

No error appears in the record.

Affirmed.

TYSON, HARRIS and BOOKOUT, JJ., concur.

CATES, P. J., not sitting.


author: FAULKNER, Justice.

text:
    In re Paul D. YANCEY v. STATE. Ex parte Paul D. Yancey.
    SC 1551.
    Supreme Court of Alabama.
    Dec. 18, 1975.
    John R. Phillips, Anniston, for petitioner.
    None for the State.
   FAULKNER, Justice.

Petition of Paul D. Yancey for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Yancey v. State, 56 Ala.App. 577, 324 So.2d 292.

Writ denied.

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


author: BOOKOUT, Judge.

text:
    Theodore JOHNSON v. STATE.
    6 Div. 884.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Ralph C. Burroughs, Public Defender, Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Second degree murder: sentence, thirty years imprisonment.

The record shows the appellant to have been eighteen years of age at the time of trial and seventeen years of age at the time of the offense. He was indicted on a charge of first degree murder on August 28, 1974, and tried, found guilty of second degree murder and sentenced on January 17, 1975. The record does not reflect that the trial court called to his attention the provisions of the Youthful Offender Act (Title 15, § 266(1)-(6), Code of Alabama 1940, Recompiled 1958).

The question was presented squarely to the Supreme Court of Alabama as to whether it is mandatory for the trial court to call the Youthful Offender Act to the attention of the defendant. The Supreme Court held that such was mandatory. Clemmons v. State, 1975, 294 Ala. 746, 321 So.2d 238.

To quote the Alabama Supreme Court:

“In the present case, the defendant has been tried by a jury and found guilty. He has been sentenced to the penitentiary. He was never apprised of the fact that he might be treated as a youthful offender under the statute. Therefore, on remand, the trial court should bring the defendant before it, should inform him of the provisions of the Youthful Offender Act, and that, if he desires, he may consent to an investigation and examination. If the defendant does not consent to the investigation, the judgment of conviction stands. If he does consent, the trial judge should initiate such investigation as he deems necessary. Upon completion of the investigation, he should then proceed to examine the defendant. If, in his discretion, he determines that the defendant is entitled to youthful offender treatment, the sentence imposed in the murder case should be set aside, and the defendant should be afforded youthful offender treatment under the provisions of the statute. If, after the investigation and examination, the court determines that the defendant is not entitled to youthful offender treatment, the judgment of conviction and the sentence imposed stand.
“If, by reason of failure of the defendant to consent to the investigation and examination, or by reason of the trial court’s finding, after such investigation and examination, that he is not entitled to youthful offender treatment, the defendant has the right to renew his appeal in the Court of Criminal Appeals, which has retained jurisdiction of the cause, for a decision on the points not heretofore reviewed in that court on the original appeal.” (Footnotes omitted.)

This cause is hereby remanded to the trial court for proceedings in conformity with the above instructions.

Remanded with directions.

TYSON, HARRIS and DeCARLO, JJ„ and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


text:
    Theodore JOHNSON v. STATE.
    6 Div. 884.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.

      Ralph C. Burroughs, Public Defender, Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Murder in the Second Degree. Sentence : thirty (30) years.

Initially on appeal this case was remanded with directions because the record did not reflect that the trial court called to the appellant’s attention the provisions of the Youthful Offender Act (Title 15, § 266(1)-(6), Code of Alabama 1940, Recompiled 1958).

On August 15, 1975, the trial court filed a supplemental transcript in answer to our order on remandment showing that a hearing was held on August 8, 1975, wherein the appellant Theodore Johnson stated that he and Mr. Chandler after talking with the Judge concerning the Youthful Offender Act, decided not to file under the Youthful Offender Act. This Court will now review the case on its merits.

Theodore Johnson, appellant, was arrested and charged with Rape and Murder in the first degree. Appellant was indicted by the grand jury of Tuscaloosa County. He was arraigned and after being found indigent, was appointed a public defender. Appellant entered a plea of not guilty, was tried for murder in the first degree, and found guilty of murder in the second degree. Appellant gave notice of appeal and requested and was granted a “working appeal.”

On Saturday morning, June 22, 1974, Al-etha Haygood, a thirteen year old black girl was found raped and murdered in her foster parents’ apartment in the Woodmont housing project, in the Holt area of Tuscaloosa County. The appellant was questioned by investigators later in the afternoon. He was given the Miranda warning, arrested, charged, taken in custody, and placed in the Tuscaloosa County Jail that same afternoon. The following Tuesday or Wednesday, the appellant was questioned by Investigator Shirley Fields.

Robert Johnson, a toxicologist with the State Department of Toxicology, was called as the state’s first witness. He testified that in his opinion, “this subject died as a result of strangulation, probably manual throttling of hands applied ábout the neck.” He testified further that a sample of Aletha’s blood was taken for analysis along with a pair of jockey shorts, a piece of cloth with embroidered lace, and a piece of cloth taken from the fly of a pair of green pants.

Rebecca Layton testified that she was the aunt of the deceased and that Aletha, the deceased, had been living with them for some nine and a half months. She testified that Aletha had'asked if she could spend the night with a neighbor, Linda Bonner, since the Layton family would be away for the night.

Tommy Jones, a neighbor and friend of Aletha testified that on the Friday night of Aletha’s death, Linda Bonner, Aletha, and he were riding on his bike when they were met by Theodore Johnson, the appellant, somewhere around 10:00 p. m. Jones testified further that Theodore Johnson said, “You take Linda and I take Aletha.” Theodore Johnson, the appellant, again said, “I’ll take Aletha.” At that time he pulled her from the bicycle and over to a car. They remained there for about five minutes and then the witness took Linda and Aletha home.

Linda Bonner testified that she was a friend and neighbor of Aletha Haygood. She testified as to the bicycle incident, stating that the appellant told Aletha to get off the bicycle and when she did not, he pulled her to the car. She also gave a description of what appellant was wearing. Aletha was able to jerk away and run down the street with Linda behind her. Linda testified that around 11:35 p. m. Al-etha decided to go home, across the street. Linda stayed up until 12:30 a. m. and that at that time she saw the television set still on at Aletha’s.

Jesse Johnson, mother of the appellant, testified as to a pair of trousers (State Exhibit 8) and a pair of undershorts (State Exhibit 5) as'being worn by her son on the night of June 21. Mrs. Johnson stated that her son came home late. She testified further that she awoke around 5 :00 o’clock the next morning and that she found the appellant asleep on the sofa in the den.

On June 22, Joyce Dawson, a friend of Aletha Haygood, found Aletha lying dead on the floor of the Layton apartment. On cross-examination she stated that she found the deceased at “something until nine” that morning. Death was established in later testimony to have occurred around midnight.

Adolph South, a detective with the Tuscaloosa County Homicide Unit, testified that he received the appellant’s blood sample and sent it to Bill Landrum of the toxicology lab in Auburn. Mr. South further testified that he was off that Saturday when the body was found and that he went to the scene and assisted Investigator Shirley Fields.

Larry Wood, a patrolman with the Tuscaloosa Police Department, testified that he arrived at the scene around 9:15 a. m. Mr. Wood identified several pictures of the deceased Aletha Haygood. Appellant objected to these pictures on the ground that they were inflammatory, but the objection was overruled.

Mr. Shirley Fields, an investigator with the Tuscaloosa Police Department, investigated the homicide of Aletha Haygood. Fields identified numerous exhibits which were introduced into evidence. Fields first saw the appellant at 1:30 p. m. on June 22, 1974. He testified that he read appellant his rights from a card which met all Miranda requirements and then asked appellant if he still wanted to talk, to which appellant said yes. The appellant denied seeing Aletha the night before. After appellant gave a statement, Mr. Fields asked him if he could see the clothes he was wearing the night before. The appellant then went next door and brought back a green pair of pants, a black shirt, and some brown shoes. Mr. Fields examined the pants and stated that he found what appeared to be blood on the fly of the pants. Mr. Fields also observed what appeared to be stains (semen) on the appellant’s jockey shorts. After denying having any sexual intercourse, the appellant later explained this by stating that he had had sexual intercourse with his girl friend the night in question. The appellant was then placed under arrest.

Mr. Fields testified that he talked to the appellant again at the homicide office on a Tuesday or Wednesday following the Saturday of the appellant’s arrest. The appellant was not advised of his rights again but Mr. Fields asked him if he was still aware of his rights prior to talking to the appellant. The appellant stated that he was aware of his rights. The appellant stated that he could not explain the blood stains on his pants and that he had been to a party that night with Frances May Jones until 3:00 a. m. on June 22, 1974. Detective Fields testified that he had blood samples taken of the appellant’s girl friend and the appellant, which samples were sealed in an envelope and turned over to Detective South to be taken to the lab in Auburn.

On cross-examination Detective Fields testified that he took all the .photographs of the deceased at the scene. Detective Fields also identified some defense exhibits which were introduced into evidence.

William Landrum, a criminologist for the State of Alabama, Department of Toxicology and Criminal Investigation, testified that he was primarily a serologist, explaining that serology entailed the study of antigens, antibodies, blood, and blood groupings. Mr. Landrum testified that he ran tests on the blood samples and on objects that had blood stains. He stated that the blood type or blood grouping of Aletha Haygood was group or type “B”, that the same type or group was found on the blouse in evidence, as well as on rug fibers in the deceased’s home. Mr. Landrum testified further that the blood stains found on appellant’s pants were type or group “B”, as were the- stains on his jockey shorts. Mr. Landrum stated that the test on the shorts also revealed the presence of human semen. Further testing of blood samples revealed that the appellant’s girl friend, Frances May Jones, had blood type or group “O", and the appellant’s blood was type or group “AB”. Mr. Landrum also testified as to the various methods and procedures used in typing and grouping blood samples.

The appellant presented four witnesses in his defense. Zolar Jones, the brother of Frances May Jones, the appellant’s girl friend, testified that the appellant was at his house in Woodmont from 11:30 Friday, June 21, until around 3:00 in the morning of June 22nd.

Frances Jones testified that she saw the appellant at a party around 10:00 o’clock Friday night and that he stayed at her house from 11:30 Friday night until 3:00 o’clock Saturday morning. She -testified that during that time she had sexual intercourse with the appellant. However, Miss Jones also stated that when Detective Fields asked her whether or not she had sex that night with the appellant, she had said no. On cross-examination it was revealed that at the preliminary hearing she also denied having had sex with the appellant on the Friday night or Saturday morning in question.

Theodore Johnson, the appellant, testified in his own behalf that he was at his girl friend’s house from 11:00 p. m., June 21, to 3:00 a. m. on June 22, and that he had sex with her at approximately 2:30. He stated also that referring to the Friday night bicycle incident, that he did not pull Aletha off the bicycle, he turned loose of her arm after being over by the car for a few minutes, and she got back on the bicycle with Tommy Jones and went home.

I

Appellant submits that it was error for the trial court to admit a statement obtained from the appellant on a Tuesday or Wednesday following his arrest when his Miranda rights had been given on Saturday. Appellant submits that he should have been given his Miranda rights again before the interrogation and that the custodial statement by Detective Fields, “are you aware of your rights,” falls short of the requirements of Miranda.

The case of Jones v. State, 47 Ala.App. 568, 258 So.2d 910 (1972) in overruling Davis v. State, 44 Ala.App. 145, 204 So.2d 490 (1967) held it unnecessary for a defendant to be given Miranda warnings before each separate interrogation. Judge Almon speaking for this Court in that case stated:

“Whether the Miranda warning should be given before each interrogation must depend upon the circumstances of each case. The length of time and the events which occur between interrogations are relevant matters to consider.”
“In support of our conclusion see In re Steven C., 9 Cal.App.3d 255, 88 Cal.Rptr. 97; People v. Hill, 39 Ill.2d 125, 233 N.E.2d 367; Miller v. United States, 396 F.2d 492 (8th Cir.); Tucker v. United States, 375 F.2d 363 (8th Cir.), cert. denied 389 U.S. 888, 88 S.Ct. 128, 19 L.Ed. 2d 189.
“In People v. Hill, supra, the court stated : ‘It should be made clear that once Miranda’s mandate was complied with at the threshold of the questioning it was not necessary to repeat the warnings at the beginning of each successive interview. To adopt an automatic second warning system would be to add a perfunctory ritual to police procedures rather than providing the meaningful set of procedural safeguards envisioned by Miranda.’ ”

See also McBee v. State, 50 Ala.App. 622, 282 So.2d 62 (1973).

The United States District Court for the Southern District of California held that even though three (3) days had passed since the appellant was given his Miranda warnings by an officer, it was not mandatory that he be fully apprised or advised of those rights again before interrogation. Maguire v. United States, 396 F.2d 327 (9th Cir. 1968) cert. denied 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792 (1969). Where the Miranda warning was given two days before the questioning, see Puplampu v. U. S., 422 F.2d 870 (9th Cir.1970).

Allen v. State, 53 Ala.App. 66, 297 So.2d 391, cert. denied 292 Ala. 707, 297 So.2d 399 (1974) (relied on in appellant’s brief) states adequately the need of an appellant to be advised again of his constitutional rights where delay between the warning and questioning was excessive. In the Allen case, supra, Supernumerary Circuit Judge Clark states:

“As held in Jones v. State, 47 Ala.App. 568, 258 So.2d 910, relied upon in McBee v. State, 50 Ala.App. 622, 282 So.2d 62, Miranda warnings are not required to be given before each separate interrogation of a defendant after a valid waiver of his right has been made. Even so, the reasons that require Miranda warnings before an in-custody interrogation logically apply to an interrogation that takes place such a long period of time after warnings and waiver that under the circumstances it is to be reasonably concluded that defendant was not impressed thereby in making a confession. Intervening circumstances in various cases are necessarily variant, but three weeks confinement in jail under the circumstance shown in this case would seem to deprive the warnings and waiver of their previous efficacy.” (Emphasis supplied).

The circumstances enumerated in Allen clearly distinguish it from the instant case. In the instant case the appellant, Theodore Johnson, was arrested Saturday afternoon and taken to jail. He was read his Miranda rights from a card on Saturday. The record states that he was questioned again on a “Tuesday or Wednesday” with Detective Fields asking him (appellant) if he was aware of his rights to which the appellant answered yes. We are of the opinion that in the instant case there was not such a lapse of time as to require the giving of Miranda rights again before the interrogation on that Tuesday or Wednesday after his arrest 6n Saturday. Nor were there any extraordinary circumstances which would merit the giving of those rights again.

II

The appellant contends that where the defense offered to “admit” to anything a colored photograph (State’s Exhibit 30) would show, that was relevant to the case, there would be no material fact in issue, and therefore the photographs would be inadmissible as inflammatory and prejudicial.

However, we conclude that the nude photographs taken of the deceased at the scene of the crime were admitted into evidence by the trial court without error. The photographs were introduced into evidence for the purpose of proving the nature of Aletha Haygood’s death and to show that she died as a result of violent means.

In Snow v. State, 50 Ala.App. 381, 279 So.2d 552, cert. denied, 291 Ala. 798, 279 So.2d 558 (1973), Judge Harris, writing for a unanimous cou^t, said:

“There was no error in admitting photographs of the deceased and of the locus in quo where the proper predicate was laid. It has been held many times that gruesomeness is not ground for excluding evidence consisting of photographs if it has a reasonable tendency to prove some material fact in issue or shed some light upon some material inquiry, and if it illuminates the issues in any way, even though possessing a tendency to inflame the minds of the jury . . . Such photographs are admissible as shedding light upon the character and location of the wounds on the body of the deceased though they constitute cumulative evidence upon a matter not disputed. . . . ” (Citations omitted).

In courts today, the fact that a photograph is gruesome is alone no ground for excluding it from the evidence being presented. Palmore v. State, 283 Ala. 501, 218 So.2d 830 (1969). See also Hall v. State, 50 Ala.App. 666, 282 So.2d 104 (1973); McHugh v. State, 53 Ala.App. 473, 301 So.2d 238 (1974). A photograph is admissible in evidence if it tends to shed light on, strengthen, or illustrate the truth of other testimony or evidence. Baldwin v. State, 282 Ala. 653, 213 So.2d 819 (1968). Also in Cook v. State, 52 Ala.App. 159, 290 So.2d 228 (1974), Judge Harris, speaking for this Court stated:

“The fact that such evidence is cumulative does not affect its admissibility so long as it sheds light upon a material inquiry, illustrates the transaction at issue, or tends to elucidate the material facts under inquiry, and has a tendency to illustrate the severity of the assault. Swindle v. State, 27 Ala.App. 549, 176 So. 372; Wilson v. State, 31 Ala.App. 21, 11 So.2d 563; Reedy v. State, 246 Ala. 363, 20 So.2d 528; Grissett v. State, 241 Ala. 343, 2 So.2d 399.”

Ill

Appellant contends that it was reversible error of the trial judge to exclude a witness’s answer to the defense attorney’s question of whether or not appellant looked normal, and then to state that such was an illegal question.

However, from the record it appears that counsel was seeking to have the witness describe the appellant’s appearance by asking did he appear “normal.” The witness said, “yes,” and the state obj ected and the court excluded the answer. After the objection was sustained, counsel then went right back into the appellant’s appearance by asking the witness, “And did you notice what his appearance was?” Then the witness’s following testimony was received as evidence without objection:

“Q. All right. And did you notice what his appearance was ?
“A. Just like I said, just like it is now ' — he didn’t look like he was mad or nothing like that. He just looked common, just looked like hisself. (sic)
“THE REPORTER: You say he did not look mad ?
“THE WITNESS: I say he just looked common, you know, like he is looking right now.
“MR. CHANDLER: He looked common?
“THE WITNESS: Yes, sir.
“THE COURT: She said he looked common, just like he looks now, is what she said.”

The above testimony put squarely before the jury the answer the defense was seek-irig; that appellant appeared normal. Likewise, earlier in the trial the appellant’s mother testified in essence that he appeared normal when he came home the night of the murder:

“Q. In other words, when you got up and let him in the door, did you observe his appearance ?
“A. Well, he didn’t look no different from me when he came in, from when he went out — if that is what you mean. I mean, he did not seem upset or nothing; he just was hisself. (sic)
“Q. Okay. And did his clothes appear to be unusual in any way ?
“A. No, sir.
“Q. They looked like just when he went out, right ?
“A. That’s right.”

We find no prejudicial error therefore in excluding the first reply where, in substance, the same answer was then admitted into evidence. Alabama Supreme Court Rule 45, Title 7, Appendix, Code of Alabama 1940, as amended.

We can find no reversible error where the trial judge commented that the question asked by appellant’s counsel was an illegal question.

Appellant cites several authorities in his brief for the proposition that the trial court’s remarks were prejudicial and thus reversible. However we find many cases which do not support appellant’s contention. The Alabama Supreme Court in the 1908 case of Watson v. State, 155 Ala. 9, 46 So. 232, held that it was not prejudicial for the trial court to have instructed a witness that, “you need not answer that question,” and then say to defense counsel:

“ T don’t like to hear as intelligent counsel as represents the defendant ask such a question. They know, or should know, that the mere fact that the witness has been indicted for assault with intent to murder in no way impeaches said witness, and such evidence is not relevant.’

Nor was there error committed by the trial judge in Myers v. Town of Guntersville, 21 Ala.App. 559, 110 So. 52 (1926) by admonishing and rebuking defense counsel by saying:

“. . . You have a'sked that enough; you just want to drag them around from first one thing to another.”

In conclusion, the trial court in Vaughn v. State, 236 Ala. 442, 183 So. 428 was not held to be in error for telling the defense counsel, “I don’t want to hear from you any more on that subject;” for ordering counsel to sit down; for voluntarily again stating to counsel not to go further into a matter; and for later threatening counsel with punishment if he did not stop going into that subj ect.

The trial court’s comment that an attorney’s question is “illegal” is hardly reversible error pursuant to a long line of decisions in Alabama bearing upon permissible comments by trial judges. We find nothing improper in the use of the trial judge of the term “illegal question.” In Butler v. State, 55 Ala.App. -, 316 So.2d 348; cert. denied 294 Ala. -, 316 So.2d 355 (1975) we held it not to be reversible error where the tri.al court told the defense attorney to, “proceed with something that’s legal,” and when counsel commented he was trying to do that, the trial court stated, “[w]ell, I haven’t seen any evidence of it yet.”

We have searched the record for error prejudicial to the appellant and find none.

Affirmed.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Theodore JOHNSON v. STATE. Ex parte Theodore Johnson.
    SC 1537.
    Supreme Court of Alabama.
    Dec. 4, 1975.
    Ralph C. Burroughs, Public Defender, and Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for petitioner.
    No appearance for the State.
   SHORES, Justice.

Petition of Theodore Johnson for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Johnson v. State, 56 Ala.App, 582, 324 So.2d 297, entered after remand, 56 Ala.App. 583, 324 So.2d 298.

Writ denied.

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


author: HARRIS, Judge.

text:
    Jerry McDANIEL v. STATE.
    6 Div. 857.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Rehearing Denied Nov. 18, 1975.

      Philip P. Nelson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and David L. Weathers, Asst. Atty. Gen.,' for the State.
   HARRIS, Judge.

Under an indictment for murder in the first degree appellant was convicted of murder in the second degree and sentenced to thirty years in the penitentiary. He was represented by retained counsel who also represents him on appeal. At arraignment he pleaded not guilty.

There was no motion for a new trial and no request for the affirmative charge, hut there was a motion to exclude the state’s evidence which puts us to a summary of the evidence.

According to the state’s evidence the deceased was shot three times in the back by appellant on the night of September 8, 1972, outside a place called Saxton’s Place in the Bradford Community of Jefferson County, Alabama. All parties involved were Negroes. Saxton’s Place was known as a “shot house.” It was owned and operated by John Saxton who sold alcoholic beverages including whiskey, wine and beer. He also sold soft drinks, potato chips and other like items. There were fifteen to twenty people at this place on the night of the shooting, some on the inside and some on the outside.

Sandra Alisa Blakely testified that she went to Saxton’s that night with some girl friends. She sat with one Andy Jackson some fifteen to twenty minutes. She did not drink anything except a Sprite drink which Jackson bought her. After drinking the Sprite she moved back to her table.

She further testified that she had known the deceased all of her life. That she had known appellant, Jerry McDaniel, and his brother, Jessie, for several years. She stated that appellant and his brother were not at Saxton’s when she arrived but the deceased was there sitting at a table. Around 9:00 o’clock she went outside fo the car to.get a package of cigarettes out of the glove compartment of the car she came in. When she got outside, she saw appellant, his brother and one Jeffrey Griggs standing and talking. She did not see the deceased at this time. After getting her cigarettes, she heard the deceased and Jessie McDaniel arguing. The only thing she heard the deceased say to Jessie McDaniel was, “Do you have anything?” Jessie McDaniel replied that he did not have anything and raised his hands in the air for a few seconds. She saw appellant standing behind the deceased with a gun in his hand. When Jessie McDaniel raised his hands, Jerry McDaniel shot twice and then a third time. She stated she did not see a pistol in the hands of the deceased and did not see any muzzle flashes or anything that looked like the deceased was shooting a pistol. She said the deceased did not say or do anything to appellant before appellant shot him three times. That after the third shot appellant ran behind the building and the deceased ran after him. She went inside Saxton’s Place and told the people that Jerry McDaniel had shot Calvin Joe Tart. She and the others came out of the building and found the deceased on the ground. She did not see any weapon around the body. She and the other people put the body in a car and carried it to his mother’s house and then to the hospital.

Jeffrey Griggs testified that he went to Saxton’s on the night of September 8, 1972, in a car with Jessie and Jerry McDaniel. He said when they arrived, they went inside and talked to a few people. That he saw the deceased and Sandra Blakely on the inside of Saxton’s when they arrived. He stated that he knew Andy Jackson but could not recall seeing him that night. That some time later he, Jessie McDaniel, Jerry McDaniel, and Calvin Joe Tart went outside the building and were just standing around talking. That he recalled Sandra Blakely come out and that was three or four minutes before the shooting. He did not see Sandra go back in the building. That the deceased started arguing with Jessie McDaniel about a package of cigarettes. The deceased was leaning with hands across the trunk of a car. He saw Jessie McDaniel’s hands go up in the air for a second or two and after that appellant shot the deceased three times and he saw fire come from appellant’s gun. That the deceased did not do anything until the last shot was fired. After that the deceased stood up and turned around and looked at appellant and appellant started running behind the building and the deceased started running after him. He further testified that he did not see anything in the hands of the deceased and he did nothing to appellant that night. He stated three shots were fired and no more from behind the building when the deceased was chasing appellant.

Deputy Sheriff J. R. Horton and his partner Deputy Frank Murray went to Saxton’s Place on September 8, 1972, in response to a radio dispatch to investigate a shooting. They arrived at the scene of the shooting at íl :20 p. m. and talked to John Saxton and got his version of the shooting. The victim had been carried to the hospital prior to their arrival. They got from Sax-ton the names of the persons who probably witnessed the shooting. They were Jeffrey Griggs, Jessie McDaniel, Jerry McDaniel and Sandra Blakely. Saxton showed them where they found the body of the victim. They did not find a weapon around where the body was found or anywhere near the scene. They called Detectives Don Haynes and Tom Swatek and turned the investigation over to them along with the names of the witnesses. He went with Sergeant Haynes to talk to Sandra Blakely and another person. They found out the address of Jerry McDaniel and drove to his house-. Appellant’s mother and father met them at the door and they asked if Jerry was there and they said yes and let them in the house. They found appellant in bed asleep. They got him out of bed and placed him under arrest. Detective Tom Swatek actually made the arrest. After the arrest appellant rode with the detectives to Sax-ton’s Place and attempted to show the officers where he lost the weapon. The weapon could not be found and appellant then told the officers the pistol was at Willie Woods’ house. Woods was appellant’s cousin. They went to Willie Woods’ house which was seven or eight miles from Sax-ton’s Place and got the pistol. It was a .38 caliber pistol, serial number 18025, and it was nickel plated. When appellant was arrested, he was given his constitutional rights by reading a Miranda card. After reading the Miranda card appellant told them he lost the weapon behind the building when he was running from the scene of the shooting. After the officers recovered the death weapon, appellant was placed in jail and charged with murder.

Mr. Charles C. Robey, a Deputy Coroner of Jefferson County, testified that he had worked for the Coroner’s Office a little over two years. He described his duties as investigating all types of violent deaths and homicides, suicides, accidental deaths and sudden and unexplained deaths. That he was Deputy Coroner in September of 1972 and received a call from University Hospital at 11:20 that night and he arrived at 11:50 p. m. He viewed the body of the deceased and found he was dead. He made an examination of the body. He noticed several bullet wounds. There were two entrance wounds in the back. The first wound was a superficial wound and entered in the front area. The second wound entered the back and was three inches to the right of the middle line of the body and twenty-two inches down from the head. Wound number three entered the back and was four inches to the left of the middle line of the body and twenty-two inches down from the top of the head.

He further testified that he signed the death certificate, that the cause of death was the result of multiple gunshot wounds in the back. He stated that some of the bullets struck vital organs. He said bullet number three went through the liver, hit a bone, bounced back through the liver tearing the liver. He stated that bullet number one was not calculated to cause death but that the other two would cause death. He was asked to give his opinion as to the cause of death and appellant’s counsel objected based on the failure of the witness to be qualified as an expert.

Thereupon the court asked the witness how many bodies had he examined and what courses he had taken. The witness replied that he had examined many bodies and that in preparing himself for the Coroner’s Office, he studied several textbooks in order to take the Civil Service Test. That he had several years on-the-job training with the Sheriff’s Office and a year and a half with the'Tarrant Police Department.

He further testified that an autopsy was performed on the body of Dr. John Simmons, Assistant Pathologist and it was performed under the direction of Dr. Crawford, a practicing pathologist, and that he worked with Dr. Simmons in performing this autopsy. He was then asked if he and Dr. Simmons reached a conclusion as to the cause of death. There was an objection and a request for a voir dire examination.

On voir dire:

“Q (BY MR. NELSON) What is the date this examination was made ?
“A It was on the 9th and 8th, ’72. That’s September the 8th.
“Q And how long had you been in the Coroner’s Office at that time?
“A Two months.
“Q And how many bodies had you examined at that time ?
“A Many.
“Q How many?
“A I don’t have an estimate.
“Q Twenty?
“A I don’t have an estimate.
“Q Was it less than twenty?
“A You will have to look at our records, of course. We keep a record of that.
“Q Well, was it a hundred ?
“A I don’t have any estimate.
“THE COURT: Give us your best judgement at that time.
“A I would say it would probably be less than a hundred and probably more than twenty.
“Q What training had you had at this time?
“A The training that was required by the Civil Service in order to take the Coroner’s Exam and be appointed a Deputy Coroner.
“Q What training is that ?
“A That is a three year — at least three years investigative experience in the law enforcement field. And—
“Q No, sir. I’m asking you what training you had. I’m not asking you what the requirements were for Civil Service. What training did you actually have ?
“A Well, the training and requirements would be the same.
“Q What formal training did you take ? Did you attend any schools ?
“A I have trained — you mean attended law enforcement schools?
“Q No, sir. Have you had any formal training in investigation of causes of death, formal training in a school ?
“MR. TUCKER: Your Honor, may I say that we just offer his opinion not as a doctor. We understand he is not a doctor and we understand that he is not a pathologist. He’s simply a Deputy Coroner. But he is trained to give to give his opinion, for whatever its worth, as to the cause of death. And that is for the jury to determine, may it please the Court, how much credance they will give to this man’s opinion. And that’s all we offer it for.
“THE COURT: All right. Proceed Mr. Nelson.
“MR. NELSON: Your Honor, if it please the Court, I don’t have any more questions on voir dire. But if it please the Court, this man is not qualified to give that.”

The objections as to the testimony of the Coroner were overruled and he said:

“In my opinion the cause of death was multiple gunshot wounds to the back.”

A bullet was removed from the body of the deceased and photographs were made of the body and introduced in evidence. Also photographs were made of the scene of the shooting and were introduced in evidence.

The pistol and the bullet recovered from the body of the deceased were personally delivered to Robert B. Johnson, Assistant State Toxicologist in charge of the Birmingham Division. He testified that he test-fired the pistol to make a comparison with the known bullet removed from the body of the deceased. He testified that the evidence bullet was similar in all gross respects but the pistol was so old that he could not say the evidence bullet came from that particular gun. He further stated there was nothing inconsistent but he could not tell for certain that the evidence bullet came from the pistol that appellant used to kill the deceased.

He further testified that he examined a specimen of blood from the deceased and found he had an alcohol level of .018 percent, which is considered to be intoxicated.

The mother of the deceased was recalled and testified her son was five feet, nine inches tall and weighed 130 pounds.

The state rested at this point and appellant’s counsel moved to exclude the state’s evidence on the ground the state failed to prove its case against the defendant and failed to make out a prima facie case. This motion was overruled.

Appellant testified in his behalf and offered the testimony of his brother and Andy Jackson.

. The testimony of Andy Jackson was in direct conflict with Sandra Blakely as to the actual shooting. He admitted being in Saxton’s Place on the night of the shooting a.nd also that Sandra sat at the table with him for about twenty minutes. He further stated that Sandra asked him for a cigarette and he got up to go outside for that purpose. That when he got to the door he heard shooting on the outside and Sandra was still inside the building at that time. That he never saw Sandra outside the building where the shooting was going on. He stated he heard about five shots but did not witness the shooting.

Jessie McDaniel testified that he and his brother, Jerry, appellant, Everett Lawson, ■and Robert Roberson went to Saxton’s Place on the night of September 8, 1972, between 8:00 and 9:00 o’clock. They went in Lawson’s car. He said Jeffrey Griggs was already there when they arrived. That he told Griggs he was going to buy him a beer because Griggs bought him one the last time they were there. He testified that he gave Griggs the money and Griggs was going to send him back a pack of cigarettes by Andy Jackson. When he did not receive the cigarettes, he asked Griggs about them and was told a man by the name of Robert Threadgill had his cigarettes. He said he went to the car where Threadgill was and asked about his cigarettes. That the deceased was present and told Threadgill not to give him the cigarettes and started using profanity. Jessie said when this happened, he turned and walked away. That the deceased walked back inside the building and the next thing he knew the deceased came out the door and threw a pistol in his face. That when the deceased threw the gun in his face, appellant hollered out, “Don’t do that, man.” That the deceased turned and he and appellant started shooting at each other, both were shooting at the same time and in his judgment the deceased fired four or five times. He then stated, “After the shooting he chased my brother behind the house.” He further said he did not run away until after the shooting.

On cross-examination he testified:

“There were about fifteen or twenty people at Saxton’s Place that night. I don’t know exactly how many shots were fired, but there were several of them. Calvin Jóe Tart fired four or five times, but I don’t know how many Jerry McDaniel fired. They were having a gun battle. My brother, Jerry McDaniel, fell down twice and as Tart was shooting, he fell down twice.”

Appellant testified that he was at Sax-ton’s Place on the night of September 8, 1972, and saw the deceased there and spoke to him. He stated the deceased was inside the place when he first arrived. A few minutes later he went outside where his brother and Jeffrey Griggs were talking. That his brother and the deceased started arguing. The deceased threw a gun in his brother’s face and he hollered and told him not to do that. The deceased turned and shot, “and I shot at the same time. The deceased fell and then shot again. Then Tart chased me behind the building and he was still firing at me.”

On cross-examination he was shown the pistol which the state introduced in evidence and stated, “That is my gun, but I did not shoot him.”

On re-direct examination appellant said he did shoot the gun on September 8, 1972, but he didn’t know if he hit anyone or not. He stated that from the time the first shot was fired until the last one, about ten seconds elapsed.

Appellant contends this case should be reversed on two grounds, (1) the court erred in permitting the Deputy Coroner to testify as to the cause of death, and (2) the failure to give a written charge to the effect that the verdict must be unanimous.

We will treat these contentions in the order in which they appear.

In Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, this court said:

“It has been said that a person who is a coroner does not per se qualify him to express an opinion as to the cause of death. However, where experiential qualifications are shown, a person who is a coroner or undertaker may be qualified to testify to the cause of a particular person’s death. Page v. State, 41 Ala.App. 153, 130 So.2d 220; Jordan v. State, 40 Ala.App. 693, 122 So.2d 545; Ward v. State, 44 Ala.App. 229, 206 So.2d 897.
In Kozlowski v. State, 248 Ala. 304, 27 So.2d 818, the Supreme Court said:
‘Whether or not the qualification of a witness to state his opinion is sufficiently established is a matter resting largely in the discretion of the trial court and its ruling thereon * * * ordinarily will not be disturbed on appeal unless there is a clear showing of abuse. If the witness has some qualifications, he should be permitted to testify.’
Certainly, this witness had some qualifications over and beyond the experience and knowledge of the ‘average run’ of layman, and there was no abuse of discretion in permitting him to testify as to the cause of death.”

We find no error in the ruling of the court on the point here under discussion. See King v. State, 266 Ala. 232, 95 So.2d 816; DeSilvey v. State, 245 Ala. 163, 16 So.2d 183; Gettings v. State, 32 Ala.App. 644, 29 So.2d 677; Ward v. State, 44 Ala.App. -, 324 So.2d 305.

As to the second contention we take the following excerpt from the court’s oral charge to the jury:

“And of course, it must be a unanimous verdict.”

In addition to the above the jury was polled and each separate juror told the court, in the presence of appellant, that the verdict rendered was the verdict of the twelve jurors.

We have carefully examined 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.


text:
    In re Jerry McDANIEL v. STATE. Ex parte Jerry McDaniel.
    SC 1581.
    Supreme Court of Alabama.
    Dec. 18, 1975.
    Philip P. Nelson, Birmingham, for petitioner.
    None for the State.
   BLOODWORTH, Justice.

Petition of Jerry McDaniel for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in McDaniel v. State, 56 Ala.App. 591, 324 So.2d 305.

Writ denied.

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


text:
    James Henry JACKSON v. STATE.
    6 Div. 895.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.

      James H. Hard, IV, Birmingham, for appellant.
    William J. Baxley,-Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

This is an appeal in forma pauperis from a judgment entered pursuant to a conviction for rape. The jury fixed punishment at 25 years.

The alleged offense was consummated in an isolated area. The genesis of the offense was a parking area in a shopping center of Jefferson County. The victim returned to her parked automobile with an armful of sundry merchandise. As she approached her motor vehicle a black male asked her the time of the day which she did not know. He came nearer the automobile with an open knife and commanded her to get in the automobile. She climbed over the console, between the two front seats of the car, from the driver’s seat to the passenger side. The rapist then got in the driver’s seat and drove to an isolated area. The victim, at the rapist’s command, kept her head with face down on the console.

The driver commanded her to get out when they had reached the isolated area. He forced her with threats of fatal injury to get in the back seat (the car had only two doors), but permitted her to get out when she complained of discomfort. He commanded her to get on top of the automobile hood. Prior to this he covered his penis with a prophylactic and made her put it in her mouth. She gagged and that ordeal was discontinued. While on the back seat she began to menstruate and got his shirt bloody. This made him mad; she apologized, and the sexual insertion of his penis took place on the hood.

While the res gestae of the offense at the isolated area was underway, she got a good look at the defendant’s face and other physical features. She was able later to identify the defendant as her assailant. She identified a photograph of defendant. She recognized him in a group at a preliminary hearing; also, she made an in-court identification.

It is true that the victim’s physical description of defendant to the police varied in some details from his actual measurements, and some other minor details.

Such variance was for resolution of the jury. The record supports a positive recognition of the assailant which impressed the jury that defendant was the guilty person. We are unwilling to disturb.

We note here that the defendant, did not take the stand. We also note that the details of the rape are very revolting. We have limited a recitation of these details.

The record indicates that appointed counsel who appear on this appeal diligently and faithfully represented the defendant at nisi prius.

Appellant’s counsel correctly assert that the only real issue was the identification of defendant as the perpetrator of the crime. At a preliminary hearing some four months after the rape she saw defendant in a crowd and picked him out. This view of him in person confirmed her suspicion that a photograph that she had seen was a likeness of her assailant. She was not positive about the picture until she saw him in person.

On cross-examination, counsel for defendant asked the victim if defendant was handcuffed at the preliminary. The court sustained the State’s objection to the question.

The scope and extent of cross-examination is addressed to the sound discretion of the trial judge. Title 7, § 443. Recompiled Code, 1958; Diamond v. State, 49 Ala.App. 68, 268 So.2d 850(4). We will not revise on appeal unless the exercise of such discretion has been abused. Jordan v. State, 267 Ala. 361, 102 So.2d 4(3).

We do not think the trial court abused its discretion in sustaining the State’s objection. It does not appear the victim’s identification was dependant on the defendant’s being handcuffed vel non, or was influenced thereby. She got a good look at him at the time of the rape.

• The next contention of error is addressed to the argument of the District Attorney wherein he told the jury: “These people try to muddy the water and confuse things.” The prosecutor was referring to defense counsel.

One purpose of cross-examination is to elicit conflicts of the witness’ evidence and thereby show that the witness is confused in his evidentiary assessment of facts. This confusion of the witness and the conflicts of his own testimony is colloquially referred to as “muddying the waters” or confusing the jury’s evaluation of the testimony. This argument was free of any insinuation that counsel for defendant was guilty of any moral wrong in his representation of his client. We do not charge this argument with prejudicial error. George v. State, 54 Ala.App. 90, 304 So.2d 908(3).

We hold that the trial court’s rulings were free of error to reverse. We affirm the judgment of guilt.

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

Affirmed.

All the Judges concur.