author: TYSON, Presiding Judge. BOOKOUT, Judge,

text:
    Luther J. HASSELL and David C. Hassell v. STATE.
    2 Div. 189.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      Richard H. Poellnitz, Greensboro, for Luther J. Hassell, appellant.
    Nicholas H. Cobbs, Jr., Greensboro, for David C. Hassell, appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State, ap-pellee.
   TYSON, Presiding Judge.

The Grand Jury of Hale County returned two three-count indictments, charging each appellant with grand larceny, bringing stolen property into the State of Alabama, and buying, receiving, or concealing a 1966 Rambler station wagon. The appellants were tried jointly, and the jury found both of them guilty of bringing stolen property into the State as charged in count two of each indictment. As punishment for this offense, the trial court imposed an eight year penitentiary sentence on both appellants.

On the afternoon of April 20, 1975, State Trooper R. S. Spence, while on routine patrol down U.S. Highway 80 near Gallion, noticed a 1966 Rambler station wagon parked beside the road in an abandoned service station parking lot. Trooper Spence did not stop to investigate at this time, but upon observing a person’s foot protruding from the vehicle’s window on his return trip up U.S. Highway 80, he pulled in behind the parked automobile to see “if somebody was sick or something of that nature.” Trooper Spence got out of his patrol car and walked up to the vehicle in question wherein he observed two men “apparently asleep.” Trooper Spence then ran a registration check on the car with NCIC (National Crime Information Center) which informed him that the 1966 Rambler, tag number ADV — 477, had been reported stolen in Albuquerque, New Mexico, on April 4, 1975, by its owner, Rex V. Allender. Trooper Spence then called a Sergeant Bozeman to assist him in making an arrest, and upon Bozeman’s arrival at the scene, the two officers approached the car where they found the appellants sound asleep. The officers awoke the two men, placed them under arrest, and took them to the Hale County Jail in Greensboro. Shortly thereafter, Trooper Spence along with a Lieutenant Jones of the Department of Public Safety returned to the parked vehicle and conducted a warrantless search throughout the automobile. From the car’s glove box, the officers obtained the following:

(1) One sale invoice and three New Mexico certificates of registration bearing the names of the car’s joint owners, Rex V. and Barbara A. Allender.
(2) One blank personalized printed check of appellant “David Hassell,” which named the University National Bank of Galveston, Texas, as drawee.
(3) One book (23 checks) of blank personalized printed checks of the appellants, “L. J. or D. C. Hassell,” which named the Arizona Bank of Phoenix, Arizona, as drawee.
(4) One blank personalized printed check of “Tom Pougue Studios” which authorized one of the appellants, David Hassell, to sign as drawer and named the American National Bank of Mobile, Alabama, as drawee.
(5) One blank “counter check” which named the First National Bank of Mobile, Alabama, as drawee.
(6) One deposit receipt showing a credit of $650.00 with the National Bank and Trust Company of Columbus, Georgia, on September 16, 1974. .
(7) One deposit receipt showing a credit of $500.00 with the Citizens National Bank of Pascagoula, Mississippi, on July 26, 1974.
(8) One (four-page) Holiday Inn of Pasca-goula, Mississippi, Motel bill receipt with the name of one of the appellants, David Hassell, written thereon and dated July 24-28, 1974.
All of the above-mentioned items were offered into evidence against the appellants by the State. The appellants presented no defense.
I
Appellants contend that the trial court erred in denying their motion to dismiss the charges for lack of speedy trial.

A stipulation of facts with respect to the motion was substantially as follows:

(1) That the appellants were arrested on April 20, 1975, and were confined in the Hale County Jail;

(2) that the appellants were indicted by the Hale County Grand Jury on April 28, 1975;

(3) that appellants’ trial was originally set for the June 2, 1975, session of Hale County Criminal Court, but their trial was continued on the motion of the prosecution due to the absence of the owner of the automobile in question, Rex V. Allender, who was a resident of Albuquerque, New Mexico;

(4) that from April 20, 1975, until the ultimate trial date of September 8, 1975, the appellants were confined in the Hale County Jail.

Before ruling on appellants’ motion, the trial court took judicial knowledge of the fact “that [on] June eighteenth, nineteen seventy-five, the Honorable Virgis M. Ash-worth, Presiding Judge of this Circuit, met his death; and that since that time the Governor of Alabama has not seen fit to appoint a replacement for Judge Ashworth; that the present state of this court is that he is doing the work of three judges and there is no physical way there could have been an earlier session of court to try these defendants.” (R. 10)

In Kircheis v. State, 56 Ala.App. 526, 323 So.2d 412, Harris, J., observed:

“Some of the factors to be considered by appellate courts in determining whether an accused has been denied a speedy trial are set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. These factors are: (1) length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. . . . ”

After balancing these factors, it is our assessment that the delay, as shown by the stipulation, did not in any way cause prejudice to the appellants by the delay from one term to the next. The denial of the motion to dismiss the prosecution was free of error. Moulden v. State, 47 Ala.App. 573, 258 So.2d 915; Hamilton v. State, 52 Ala.App. So, 289 So.2d 663; Giles v. State, 52 Ala.App. 106, 289 So.2d 673.

II

Appellants contend that the trial court erred in allowing into evidence “detailed testimony concerning checks, deposit slips, and other documents found in the automobile in which appellants were apprehended . . . .” (Appellant’s Brief, page 13) Appellants insist that the sole purpose of such “detailed testimony” was to imply to the jury that they had committed bad check offenses, crimes for which they were not charged with in the indictment. The record at page 100 reveals the following:

“Q. What all is that, Lieutenant?
“A. It’s primarily blank checks from several different banks.
“Q. Will you take them out and tell us what they are one at a time and I will hold them for you?
“A. This is a book of checks for L. J. or D. C. Hassell for the Bank of New Mexico, Albuquerque, New Mexico.
“Q. Bank of New Mexico, Albuquerque, New Mexico?
“A. Yes, sir.
“MR. POELLNITZ: I have no objection to this, but this man is charged with taking an automobile out of New Mexico and they testified that these things were in the car; now we’re going through the different banks. I think that is just a little bit beyond what the trial of this case is about.
“THE COURT: No, sir, Mr. Poellnitz, I think it is relevant and I would so instruct the jury it would be relevant to show that these defendants at some point in time had a connection with Albuquerque, New Mexico, the place where the automobile was stolen from.
“MR. POELLNITZ: We wanted the jury to know everything, Your Honor.
“MR. COBBS: Could we ask a question or two on voir dire to see about the cardboard box he took these out of?
“THE COURT: All right.
“Q. (BY MR. MORROW — cont’d:) Would you tell us what were some of the items that are in there that you got out of that car? What was this one again, let’s get that clear first, what is that one there (indicating)?
“A. It’s a box containing cheek books, some of them used and some new, to L. J. Hassell or D. C. Hassell, fifty-three forty-seven Minnaugh (phonetic) Northeast, Albuquerque, New Mexico.
“Q. Albuquerque, New Mexico, L. J. or D. C. Hassell, is that correct?
“A. Yes, sir. This is a check on Tom Pogue Studios, Mrs. Jo Hanna Hassell and Mr. David Hassell, twenty-one fifty-one Government Street, Mobile, Alabama, American National Bank and it has a signature on it, Jo Hanna Hassell.
“Q. Any other signatures on there?
“A. No, sir. Two other checks: number three hundred and three hundred and one, the same place with the word “Jo,” the word “H” on one of them and just the letter “J” on the second one. Here is a bank deposit dated October twenty-ninth, Nineteen seventy-three, First National Bank, Tuscaloosa. Here is a deposit slip to the Arizona Bank, dated October fourteenth, Nineteen seventy-four.
“Q. What is the amount on that?
“A. One thousand dollars. Here is a receipt on the Holiday Inn of Pascagoula, Mississippi, in the name of D. Hassell— registration slip and receipt.
“Q. What is the date on there?
“A. July twenty-sixth, Nineteen seventy-four. Here is a deposit slip on the National Bank and Trust Company of Columbus, Georgia, dated September seventh, Nineteen seventy-four, fifteen hundred dollars.
“MR. COBBS: Your Honor, I don’t know what their purpose is, but this is completely and totally irrelevant. They keep mentioning amounts on these things.
“MR. POELLNITZ: I don’t see why they — what this has got to do with the law suit.
“MR. COBBS: I believe it is improper and I think it calls for a mistrial and I would like to so move at this time.
“THE COURT: No, sir, I don’t think it’s prejudicial to these defendants as to what they are charged with, but I fail to see the relevancy of all the other parts. Now, the part of Albuquerque, New Mexico, I do see.
“MR. MORROW: If I may point out the relevancy to the Court: From the time of the theft, which is going to be April fourth to April twentieth, is some sixteen days. I think I have established a pattern of these defendants about how they travel and I think these papers do it. I want to establish, not for any guilt or innocence for this crime, but just for their modus operandi — how they operate across the country and I think these are the papers that indicate this.
“MR. COBBS: I think that is entirely improper, Your Honor.
“MR. MORROW: Motive, method of operation, intent and design of someone are not improper, Your Honor.
“THE COURT: I don’t see where depositing of funds in several different places around the country has anything to do with the taking of an automobile, or bringing of a stolen car into this state, or buying, receiving or concealing stolen property as they are charged in this indictment. I am going to sustain the objection.” [Emphasis supplied]

An essential element in the offense of bringing stolen property in the state is that defendant “knew [that the property] was stolen elsewhere . . . .” See Title 14, Section 337, Code of Alabama 1940.

The testimony complained of by the appellants concerned items of evidence found in the automobile along with three New Mexico certificates of registration which bore the names of the car’s joint owners, Rex V. and Barbara A. Allender. Although such evidence may have implied to the jury that the appellants were guilty of bad check offenses, that circumstance does not render the evidence inadmissible since the evidence tended to establish the guilty knowledge and identity of the appellants. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457, cert. denied 292 Ala. 743, 294 So.2d 462; Robinson v. State, 40 Ala.App. 101, 108 So.2d 188; Baggett v. State, 45 Ala.App. 320, 229 So.2d 819; Weatherspoon v. State, 36 Ala.App. 392, 56 So.2d 793.

Ill

Appellants contend that the trial judge committed reversible error in that he made a direct comment on the weight of the evidence. The error complained of occurred during the trial judge’s explanation to the jury as to why the appellants lacked standing to object to the introduction of items taken from a stolen automobile.

However, a review of the record discloses that these comments were not objected to by either of the attorneys representing appellants in this case (R. 45, 106). Inasmuch as no objection was made or other ruling invoked in the trial court, the error complained of cannot be raised for the first time on appeal. Rudolph v. State, Ala.Cr.App.,344 So.2d 790 (1977).

We have carefully considered the entire record as required by Title 15, Section 389, Code of Alabama 1940, and find no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge,

concurring specially:

The check on American National Bank of Mobile, Alabama; the bank deposit on the First National Bank of Tuscaloosa dated October 29,1973; the Arizona Bank deposit slip dated October 14, 1974; the receipt from the Holiday Inn of Pascagoula, Mississippi, dated July 26, 1974; the deposit slip on the National Bank and Trust Company of Columbus, Georgia, dated September 7, 1974; and other instruments not connecting appellants with Albuquerque, New Mexico, have absolutely no relevance in this case.

I concur in the result of this opinion on this point only because, when objection was finally made, the trial judge stated that such evidence had no bearing on the offense charged and sustained the objection. That was a favorable ruling to the appellant and results in no error.

      . Items of a similar nature were found in a box located on the rear seat of the station wagon, i. e., “checks on about six different banks.” (R. 98-101) These items were also offered into evidence by the State.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    George GULLEY v. STATE.
    3 Div. 476.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      Donald R. Harrison, Montgomery, for appellant.
    wi]liam j. Baxleyj Atty. Gen., and Jack M CurtiS) Asst. Atty. Gen., for the State,
   BOWEN, Judge.

The appellant was indicted and convicted for the rape of Nona Mae Jones, a twenty-one year old female on June 4, 1975, in Montgomery County. The appellant received a sentence of thirty years in the penitentiary. His court appointed trial counsel represents him on this appeal.

Appellant has assigned four grounds for reversible error: (1) Insufficiency of the evidence, (2) remarks of the trial judge were prejudicial, (3) the remarks by the prosecutor about excluded evidence should have been stricken, and (4) a new jury ve-nire should have been drawn after the appellant was seen in handcuffs.

At the close of the state's case, the appellant made an oral motion to exclude. Therefore this court will briefly review the evidence.

On June 4, 1975, Nona Mae Jones was in the Greyhound Bus Station, Montgomery, Alabama, waiting for her bus to leave for Birmingham where she was a student at Daniel Payne College. The appellant approached her, identified himself as an undercover agent for the F.B.I. and showed her a badge. A bus driver confirmed the fact that F.B.I. agents work undercover at the bus station.

When Mrs. Jones left to board her bus, the appellant told her to keep walking or he would shoot her. She never saw the gun. They left the bus station and walked for a “long time”. The appellant threatened to shoot Mrs. Jones if she attempted to escape.

They crossed some railroad tracks and went under “a bridge thing” where the appellant told Mrs. Jones to take her pants off or he would shoot her. They began fighting and the appellant tore her underclothes off. Mrs. Jones was knocked unconscious. When she awoke the appellant was “in” her.

The appellant then made Mrs. Jones go with him to a boxcar where he raped her a second time. The appellant fell asleep and when Mrs. Jones heard a man talking outside the boxcar she escaped.

Mrs. Jones was screaming and hollering when she ran up and grabbed James Pugh, an employee of L & N Railroad who was working in the train yard that night. Mr. Pugh noticed that Mrs. Jones’ face was “really messed up” like “somebody had really beat her bad”. Mr. Pugh notified the police and saw the appellant in a boxcar.

Officer Richard Thornell of the Montgomery Police Department investigated the rape and ascertained that it occurred behind the train station near the state dock on the waterfront. Officer Thornell found the appellant in a boxcar, frisked him and found a pocket knife and a badge in the appellant’s pocket. Officer Thornell testified that Mrs. Jones told him she was raped twice on the rocks by the waterfront.

Mary Wisdom, State toxicologist, testified as to the physical condition of Mrs. Jones following the rape. From smear slides taken from the victim, Ms. Wisdom found numerous nonmotile or dead sperm cells. She also found fresh blood on Mrs. Jones’ panties. From her examination, Ms. Wisdom testified that she could only tell that sexual intercourse occurred sometime within the past twelve hours. Ms. Wisdom examined Mrs. Jones at approximately 6:20 A.M., that morning.

Detective H. C. Norton of the Montgomery Police Department testified that Mrs. Jones said she was raped on the rocks under a bridge. However, when she pointed out the place where the rape occurred to the police officers, the bridge turned out to be the river boat landing.

Another detective for the Montgomery Police Department, Lawrence Rutland, testified that the appellant, after being advised of his constitutional rights, made an oral statement that he did carry Mrs. Jones to the railroad yard where he had sexual intercourse with her. However, the appellant told the detective that he paid Mrs. Jones $5.00.

The appellant testified that while he was on his way to see a friend, Mrs. Jones ran up and grabbed him, putting her arms around him. He noticed her face was swollen and asked her what was the matter. He asked her for a “date” (to go to bed with her) and she agreed for $5.00. They then went to a grassy spot near the railroad tracks and had intercourse. The appellant testified that he found the badge right before he saw Mrs. Jones.

I

The appellant argues that the state failed to show that a rape was committed or where the rape occurred. There is no merit to this contention. Rape is the unlawful carnal knowledge of a woman by a man forcibly and against her will. Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976). The victim herself testified that the appellant had sexual intercourse with her and that such intercourse was accomplished by force and against her will and consent. This, if believed by the jury, was sufficient to sustain a conviction for rape. Williams v. State, Ala.Cr.App., 335 So.2d 249 (1976). Here there was conflicting testimony as to the number of times the victim was raped and the structure, be it a bridge or a boat dock, where one of the vile acts was committed.

Where there is legal evidence from which the jury can by fair inference find the accused guilty, this court has no right to disturb the verdict. The weight and probative value of the evidence presented a jury question. Moore v. State, 57 Ala.App. 668, 331 So.2d 422 (1976).

“On appeal, an appellate court is not required, and it would be beyond its province, to determine whether there was proof beyond a reasonable doubt of defendant’s guilt. Such a requirement would impair, if not destroy, the jury trial process.” West v. State, 57 Ala.App. 596, 329 So.2d 653, cert. denied, 295 Ala. 427, 329 So.2d 658 (1976).

Here there was substantial evidence tending to prove all the elements of the charge and the trial court was justified in overruling the motion to exclude. Conflicting and contradictory evidence always present a jury question and the verdict rendered thereon will not be disturbed on appeal unless the evidence palpably fails to make out a prima facie ease. Bonner v. State, 57 Ala.App. 462, 329 So.2d 152 (1976); Welden v. State, 57 Ala.App. 379, 328 So.2d 630 (1976). Any conflict as to where or how many times the victim was raped went to her credibility as a witness and therefore was for the determination of the jury. Chafin v. State, Ala.Cr.App., 333 So.2d 599, cert. denied, Ala., 333 So.2d 609 (1976).

II

The appellant contends that the remarks, conduct and attitude of the trial judge deprived him of a fair and impartial trial. In particular two instances are complained of.

Immediately after the state had rested its case, the following occurred:

“THE COURT: The State rests. Whom do you have, Mr. Wakefield?
“MR. WAKEFIELD: We have a motion to make.
“THE COURT: Very well. Read it into the record.
“MR. WAKEFIELD: Well, your Honor, I would like to make the motion outside the presence of the jury. It won’t take but just a minute.
“THE COURT: All right, let the jury go to the jury room.”

The appellant contends that from this remark it was obvious that the court had no intention of seriously considering his motion and was merely having it read into the record so that procedural requirements would be met. This court fails to see the impropriety of this remark. It is devoid of even potential prejudice to the appellant.

During direct examination of the appellant by his attorney, the trial court interrupted the examination twice to ask the prosecutor if he objected.

“Q. Did you rape her?
“A. No, sir.
“THE COURT: Do you object to that?
“MR. PRICE: Yes, I object to it.
“THE COURT: That’s a matter for the jury to determine. Don’t consider that last question, whether or not he raped her.”
“Q. Now, when you got in the boxcar, what did you all do?
“A. Just laid there and talked, that was all, me and her. I told her I was from Tuskegee and everything, that I worked there in Tuskegee, for Mr. James Hopkins there in Tuskegee, the Clerk’s office there in Tuskegee, and I worked in the Sheriff’s office down there in Tuskegee, too.
“THE COURT: Do you object to that?
“MR. PRICE: I object to that.
“THE COURT: Don’t consider that voluntary statement.”

Three times on cross-examination of the appellant the trial judge cautioned the witness that his remarks were not responsive.

The appellant argues that although these comments do not show an open hostility of the court toward the appellant, they certainly tended to prejudice the jury against the appellant’s witnesses.

It is the court’s duty to confine the evidence to the points in issue in order that the attention of the jury may not be distracted, or that their minds may not be withdrawn from the main issue and directed to matters which are foreign or of questionable or doubtful relevancy. Jones v. State, 17 Ala.App. 394, 85 So. 830 (1920); Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1920) at 287 Ala. 562; Butler v. State, 55 Ala.App. 421, 316 So.2d 348 (1975) and cases cited therein at 55 Ala.App. 427, giving examples of non-prejudicial comments by the trial judge. The trial judge has a duty to move the testimony expeditiously along. In light of the above quoted authorities, we find that the conduct and remarks of the trial judge lack the bias and prejudice attributed to them by the appellant. Moreover, even if it could be claimed that the trial judge was in error with regard to such statements, nothing is presented to this court for review. Appellant made no objections and invoked no ruling from the court. Lambert v. State, 55 Ala.App. 669, 318 So.2d 364 (1975).

Ill

During the state’s direct examination of one of the investigating police officers, the following occurred:

“Q. (By Mr. Price) What was the purpose of your frisk, sir?
“A. The gentleman was frisked for a weapon.
“Q. For a weapon. Okay, now, let me ask you, sir, did you have occasion to find a weapon on this Defendant?
“A. There was a pocket knife.
“MR. PRICE: Mark this State’s Exhibit No. 6, a pocket knife.
“Q. I show you what has been marked State’s Exhibit No. 6, and I ask you, sir, is this the knife that you found on the Defendant?
“MR. WAKEFIELD: Judge, we are going to object, because there has been no testimony whatsoever that any knife was used, and this is strictly to show to prejudice the Jury, and there has been no evidence.
“THE COURT: What would be the purpose of that?
“MR. PRICE: Your Honor, I’ll withdraw it, but the only purpose is that Officer Thornell said that he frisked the Defendant for a weapon, and the knife is a weapon, and this is the weapon that was found.
“THE COURT: I don’t see the relevancy of that. I’ll sustain the objec-tion_
“MR. PRICE: Surely — in fact, I will withdraw it. This exhibit, the knife, is withdrawn. It is shown as the weapon found, but I’ll withdraw it.”

The appellant argues that the remarks of the prosecutor were unduly suggestive and constituted an attempt on the part of the state to implant in each juror’s mind the fact that there was something said about the knife being used in the rape. Placing the remarks in context, we cannot give them the construction urged by the appellant.

Moreover, the appellant has preserved nothing for review. Although objection was made and sustained to the actual introduction in evidence of the knife itself, no objection was ever interposed to any testimony or comment concerning the knife. The fact that a knife was found on the appellant was already in evidence without objection before the jury when the state attempted to introduce the knife itself. As such, the complained of remarks were not of a fact not in existence and unsupported by legal evidence. We cannot say that these remarks had a natural tendency to influence the finding of the jury or prejudice the appellant to such a degree as to constitute reversible error. Madison v. State, 55 Ala.App. 634, 318 So.2d 329, cert. denied, 294 Ala. 764, 318 So.2d 337 (1975) and cases cited therein at 55 Ala.App. 641. Additionally, we point out that the prosecutor’s remarks were made in response to a question by the court to explain relevancy.

While the appellant argues that it is absurd to label a pocket knife as a weapon, we direct his attention to Thomas v. State, 31 Ala.App. 1, 9 So.2d 150 (1942) where a penknife was held to be a deadly weapon.

IV

The appellant’s final argument is that the trial court erred in not drawing a new jury venire since the venire from which the petty jury was struck saw the appellant in handcuffs in the custody of a Sheriff’s deputy. The venire apparently saw the handcuffed appellant as they were being lead into the courtroom. The appellant concedes that this observation “might have occurred by mistake”.

Before reaching the merits of this argument we point out that no objection was made on this point until after the petit jury had been struck and duly sworn. As such, the objection was untimely. Furthermore, the appellant’s counsel, as well as that for the state, had already announced that they were satisfied with the jury. By announcing “satisfied” the appellant waived any complaint or objection he might have had against the jury venire. Mackey v. State, 186 Ala. 23, 65 So. 330 (1914).

No reversible error was committed in bringing the appellant to the courtroom handcuffed prior to his trial. Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1972); Blevins v. State, 56 Ala.App. 115, 319 So.2d 734, cert. denied, 294 Ala. 753, 319 So.2d 739 (1975); Moffett v. State, 291 Ala. 382, 281 So.2d 630, cert. denied, 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 114 (1973).

Having carefully reviewed the entire record and finding no error prejudicial to the appellant, we are of the opinion that this case is due to be

AFFIRMED.

All Judges concur.


text:
    Gregory BROWN v. STATE.
    3 Div. 563.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      R. Howell Dean, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of assault with intent to murder Richard Stubbs and sentenced to imprisonment for twenty years.

The facts, as shown by the evidence, are almost identical with those narrated in Brown v. State, Ala.Cr.App., 339 So.2d 125, and Brown v. State, Ala.Cr.App., 338 So.2d 1050. In case No. 559, the appellant was the same as appellant in this case, Gregory Brown; in case No. 563, the appellant was Zane Brown, a younger brother of appellant in this case.

As in the other two cases, the evidence showed that the said Gregory Brown, Zane Brown and their brother Leroy Brown robbed Richard Stubbs, the attendant at a gasoline station, thereafter compelled him to get into the automobile driven by one of the robbers, took him into the country on the outskirts of Montgomery and there shot him in the head and left him as if dead. Stubbs survived and was able to testify and definitely identify the three Brown brothers as the felons.

The principal points raised on this appeal are (1) that the trial court erred in overruling defendant’s pre-trial motion to suppress evidence taken from the automobile used by the robbers and searched by the officers, and (2) that the in-court and lineup identifications by Stubbs of defendant and his brothers were tainted in the process of showing Stubbs photographs, and that the court was in error in allowing testimony by Stubbs as to his identification of defendant and his brothers. We adhere to what we held in the other two cases as to both points.

Appellant contends the trial court was in error in overruling defendant’s objection to a question seeking the repetition of facts already stated by the witness and relies upon Smith v. Dillard, 291 Ala. 96, 278 So.2d 358, holding that it was not error for the trial court to sustain an objection to such question. It is also true that the trial court is not to be put in error for overruling an objection to a question on the sole ground that it calls for repetitive testimony. Whether testimony of a witness is to be repeated is wisely left to the discretion of the trial court. Penry v, Dozier, 161 Ala. 292, 49 So. 909; Curtis v. State, 44 Ala.App. 335, 208 So.2d 245.

While counsel were interrogating Richard Stubbs, as a witness, out of the presence of the jury, as to his identification of photographs of appellant and his brothers, the trial court also asked some questions of the witness. Appellant urges that such action was error. It is clear to us that there was nothing in the trial court’s questions that would subject its action to any exception to the general rule that it is the trial court’s right, and sometimes its duty, to propound questions to witnesses. Jones v. State, 292 Ala. 126, 290 So.2d 165; Franks v. State, 45 Ala.App. 88, 224 So.2d 924.

In the light of our duty to search the record for any error prejudicial to appellant, we note the possibility of some question whether the prior conviction of appellant for robbery constitutes former jeopardy. It does not. The robbery for which defendant has been previously convicted was complete long before the victim was shot. The shooting was no part of the robbery. As inexplicable as the shooting was, without any testimony by defendant and the testimony of Stubbs pointing to its unprovoked cold-bloodedness, it forms no part of the other crime so as to place it within any group of cases in which it has been held that two or more related offenses constitute but a single crime. In applying Code 1940, T. 15, § 287, we held in Poe v. State, Ala.Cr.App., 338 So.2d 1029 that a convicted robber could not effectually claim double jeopardy in a case in which he was tried and convicted for assault with intent to murder a police officer who drove up to the scene of the robbery after the robbery had been committed. Through the Presiding Judge Cates, we said:

“Here the robbery, in legal contemplation, was complete by the time McLain drove up. Hence, Poe’s claim of double jeopardy was properly denied in the circuit court.”

We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All Judges concur.


author: TYSON, Presiding Judge.

text:
    Thomas HARVEST v. STATE.
    3 Div. 661.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State, appellee.
   TYSON, Presiding Judge.

The indictment charged the appellant with the grand larceny of two ladies’ blouses of the value of $5.50 each, the aggregate value of $11.00, the personal property of J. C. Penney Company, a corporation. The jury found the appellant “guilty as charged,” and the trial court entered judgment, setting sentence at eighteen months imprisonment in the penitentiary.

The appellant’s motion for a new trial, challenging the weight and sufficiency of the evidence, was duly overruled following a hearing.

Chris Bodine testified that he was a security guard for the J. C. Penney Company at the Montgomery (Alabama) Mall store. Bpdine indicated that he was on duty on the evening of March 3,1976, and was standing in an observation window above the Junior Sportswear Department when he observed the appellant, Thomas Harvest, and a female companion, Gwendolyn Parks, walk over and look at some blouses. He stated that he was five or six feet above this department and could look directly down in this section of the store. Bodine indicated that the appellant and his companion left the store and came back later that evening, that they returned to the Junior Sportswear Department, which was located in the back corner of the store. Bodine stated that he saw the appellant reach on the rack and hand Gwendolyn Parks two blouses, the first one being orange in color, and the second one yellow. He stated that she rolled them up and put them inside her purse. From the record:

“A. He was looking in both directions.
“Q. Looking back and forth?
“A. Yes, sir.
“Q. What did she do?
“A. She took the blouses off the hanger from the rack after he handed them to her and she rolled them up and put them in her purse and immediately walked out the door this way.
“Q. Both of them together walked out?
“A. Yes, sir.
“Q. What did you do?
“A. I got down out of the observation window and stopped them in the Mall.
“Q. You arrested them and carried them back in the office?
“A. Right, sir.
“Q. And that is J. C. Penney Company, Incorporated?
“A. Right, sir.”

Bodine testified that he followed the appellant and Gwendolyn Parks as they left the store and arrested them. He testified that he retrieved both blouses from the purse of Gwendolyn Parks. Bodine further stated that he had gone through the procedure of checking in merchandise and examining store records, and that the value of each blouse was $5.50, or a total of $11.00 for the two. He indicated this occurred about 7:40 in the evening.

In the cross-examination of Bodine, we find the following:

“Q. Are you testifying from memory what happened or are you testifying from memory of what you read?
“A. Memory of what happened.
“Q. Mr. Bodine, these price tags that we have got on here, are these the purchase price or the sales price?
“A. This is the sales price.
“Q. And how do you distinguish whether this is J. C. Penney at the Mall or J. C. Penney Mobile?
“A. Well, first off no store uses the same kind of tag. No store uses the same kind of tag. This is our lot number here to our store. I can’t say exactly what distinguishes it except that no other company uses this type of tag. The date that it came in the store won’t be the same. This 25D is the week that they came into the store, and no other store uses the same date. You see this 25D here?
“Q. Yes. Now, where are those price tags prepared?
“A. Prepared?
“Q. Yes.
“A. These are made in the stock room upstairs.
“Q. Stock room upstairs?
“A. Yes.
“Q. You say you went back and checked those prices out?
“A. Yes, sir.
“Q. How many blouses came in in that lot, Mr. Bodine?
“A. I don’t recall. They are packed in dozens and I don’t recall how many came in.
“Q. And they were each $5.50?
“A. Right.”

At the close of his testimony appellant made a motion to exclude and asked for a directed verdict of acquittal. This was denied.

Gwendolyn Parks testified that she lived at 2422 Council Street in Montgomery, and that she had gone to the J. C. Penney store at the Montgomery Mall on 'March 3, 1976. She indicated that Thomas Harvest accompanied her. She stated that they had gone looking in three stores before going into J. C. Penney’s. She stated that Harvest was looking through a rack of pants while she was looking at blouses, and that she took the two blouses and put them in her purse. She stated that Harvest had his back to her when this occurred. She stated that she rolled up the blouses to put them in her purse. She further stated that as they were leaving the store the security guard stopped them and took them upstairs to the office of the store, and from there he took them to the city jail.

Thomas Harvest testified that he accompanied Gwendolyn Parks on March 3, 1976, to the J. C. Penney store at the Montgomery Mall. He stated that he had gone into several other stores, went into Penney’s store, then left and later returned. He stated that he was looking through some pants racks while Gwendolyn Parks looked through some women’s blouses. He stated that he did not see her put any blouses into her purse, and that he did not take any off the rack and hand them to her.

I

The appellant contends the State failed to prove a prima facie case.

When by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act. Stokley v. State, 254 Ala. 534, 49 So.2d 284.

Larceny is the felonious taking and carrying away the personal property of another, with the fraudulent intent to convert it to the use of the taker, or to deprive the owner thereof. Higgs v. State, 113 Ala. 36, 21 So. 353.

Under the evidence presented the trial court correctly denied the appellant’s motion for a directed verdict, and his motion to exclude. Moulden v. State, 47 Ala.App. 573, 258 So.2d 915.

II

The appellant excepted to the trial court’s refusal to charge the jury on petty larceny.

The only evidence of value was Mr. Bodine’s testimony that the two blouses were worth $11.00. Where, as here, there is no evidence tending to prove the commission of the lower offense, a failure to instruct the jury on the lower degree of the offense is not error. Whitehead v. State, 206 Ala. 288, 90 So. 351; Ward v. State, 19 Ala.App. 398, 98 So. 208, cert. denied 210 Ala. 366, 98 So. 210.

Inasmuch as there was no evidence offered as to the value of the stolen property other than Mr. Bodine’s testimony, the trial court’s charge was clearly correct. Presley v. State, 26 Ala.App. 280, 158 So. 765.

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

AFFIRMED.

All the Judges concur.


text:
    Wayne BOLDING v. STATE.
    3 Div. 669.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    C. Collier Carlton, Jr., Carlton & Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State, appellee.
   TYSON, Presiding Judge.

The indictment charged Wayne Bolding with buying, receiving, concealing, or aiding in concealing, 158 cartons of cigarettes, 22 stereo tapes, 10 gold watches, and 3 silver watches, the personal property of J. E. Guest d/b/a Guest Stop and Shop Grocery. The jury found the appellant guilty as charged, and the trial court set sentence at four years imprisonment.

The appellant’s motion for new trial, challenging the weight and sufficiency of the evidence, was overruled.

James E. Guest testified that he operated the Guest Stop and Shop Grocery on July 11, 1974, near the Alabama-Georgia line. He testified that he had closed the store on the evening before, and when he came back to open the store on the early morning of July 11, 1974, he discovered that over 158 cartons of cigarettes, valued at $3.50 each carton, were missing; also over 20 stereo tapes, valued at $3.00 each, and a large number of gold watches, and some less expensive silver watches were missing. Mr. Guest testified that a day or two prior to the break-in, he saw the appellant, Wayne Bolding, come in his store and pay for $1.00 worth of gasoline. He said he remembered this occasion because the appellant had a mustache. He said that the aggregate value of the items that were missing from his store was over $1000.00.

On cross-examination Mr. Guest testified that also missing were some items of furniture and some personalized checks on two different banks, the Clay County Bank, and the First National Bank.

Cecil Humphrey stated that on July 12, 1974, he was working with Detective Fisher of the Montgomery Police Department on the burglary detail. He stated that he saw the appellant, Wayne Bolding, whom he knew, in a small delicatessen just off of Fairview Avenue on Gaston Street in Montgomery. He testified that he and his partner saw the appellant seated with his stepfather, one John Coley, and that they walked over to the table and asked the men what type of vehicle they were driving. He said that John Coley replied, “a 1966 Pontiac.” He stated that he and the other officer went outside, drove around the parking lot, but did not see a Pontiac automobile. He stated that they did see a red and white pickup truck bearing a Mississippi tag. They observed Bolding and Coley get into the pickup truck and drive down Fairview Avenue, then onto the Interstate. He testified that they gave pursuit and finally pulled the truck over, that John Coley got out of the truck and came over to talk with them. He stated that he and Detective Fisher got out of the police vehicle to talk with Coley, and Captain Lynch, another officer accompanying them, remained in the car. At this point, he saw the appellant slide over under the wheel of the truck and take off. Captain Lynch gave pursuit, and the pickup truck was next discovered wrecked at the ramp of Heron and Holt Streets leading from the Interstate. He testified that the truck was impounded and that they found inside the truck 158 cartons of cigarettes, 22 stereo tapes, 10 gold watches and 2 silver watches, a metal basket type rack, and a black bag which contained 25 personalized checks with the name of Mr. and Mrs. J. E. Guest on them. Mr. Humphrey also identified some photographs of the truck with the contents therein.

On cross-examination Officer Humphrey testified that he had known the appellant for several years and he positively identified him as being in the delicatessen and getting in the pickup truck with John Coley.

Officer R. E. Lynch testified that he was a Captain with the Montgomery Police Department on July 11-12, 1974. He stated that on July 12, he was in the company of Officers Cecil Humphrey and R. E. Fisher, and that he saw the appellant seated in a delicatessen located on Gaston Avenue, just off Fairview Avenue. He testified that he observed the appellant get into a red and white Chevrolet pickup truck and drive with one John Coley down Fairview Avenue, then turn into the Interstate at I 65. He testified the officers gave chase, stopped the truck, and as they did so, Coley got out of the truck and came over to talk with the officers. Lynch stated that Bolding then slid under the wheel of the pickup truck, took off, and that he gave chase in the police car. This ended at Heron Street at the exit of I 65 where he saw the appellant wreck the truck, get out, and jump over the fence at the Interstate. He testified that he attempted to cut off the appellant, but that he got away.

On cross-examination Officer Lynch stated that he had known the appellant for several years, and he positively identified him as driving the pickup truck.

Montgomery Detective R. E. Fisher corroborated Officer Humphrey’s and Captain Lynch’s testimonies. Further, he stated that they did not see a 1966 Pontiac parked outside the delicatessen, but they did see the red and white pickup truck with a Mississippi tag, and that they pursued it. He testified that later that day, after impounding the truck, he went to the home of John Coley, and that his wife and two men, John Hall and Alton Sanders, were there. He observed a wristwatch in the possession of John Hall, which was the same brand name as others found in the pickup truck.

J. E. Guest was then recalled and identified the cigarettes, tapes, and watches as being among those missing from his store. He also identified the checks found in the black bag as being his property.

The appellant’s motion to exclude was overruled.

At this time the trial court gave the appellant a ten-minute recess to confer with his attorney before presenting his case.

Wayne Bolding testified that in July, 1974, he had been accompanied by one Alton Sanders and had driven to West Point, Mississippi to get a man by the name of John Hall. He stated that he had stopped at the Guest Stop and Shop store and bought $1.00 worth of gasoline and some transmission fluid for his automobile. He testified that he subsequently returned to Montgomery and obtained his stepfather’s automobile to go back and tow his car to Montgomery. He stated that John Hall accompanied him at this time. Upon his return to Montgomery, he stated that he was' seated in a delicatessen with his stepfather, John Coley, when Officers Lynch, Humphrey, and Fisher came in. He stated that he drove a Pontiac car to the delicatessen alone. He testified that while he was in the delicatessen his stepfather and another man came over and asked him if he wanted to move some stolen merchandise for them, and he told them, “No,” that he had just been released from prison and he did not want to get involved. He stated that he left the delicatessen alone in the Pontiac, drove to his mother’s home, where he picked up his wife, and then went to Auburn, Alabama. He admitted that he had a conviction in Arizona, Alabama, and Tennessee for burglary, drug abuse, and escape, that he had entered guilty pleas on these. He stated that the man with his stepfather in the delicatessen was one Abraham Gross and that he did not get into the pickup truck and leave with them.

On cross-examination Bolding stated that he had had a previous run-in with Detective Lynch. He admitted being at Mr. J. E. Guest’s store and buying the gasoline a day or two prior to July 11, 1974. He also testified that he knew there was a truck in Montgomery with some items from the burglary, but that he had nothing to do with it.

Detective R. E. Fisher was recalled and testified that he saw Donald Wayne Bold-ing in the delicatessen on July 12, 1974, with his stepfather, John Coley, and upon inquiry Coley replied that he was driving a 1966 Pontiac. He stated that a few minutes thereafter he saw the two men leave together and get into the red and white pickup truck. He stated that Coley was driving when they first followed the truck, and Bolding was seated on the passenger side. He also stated that Bolding took off in the pickup truck after they first stopped the vehicle.

Detective Cecil Humphrey was recalled. He stated that he was in the delicatessen and saw Bolding seated with his stepfather, John Coley. He stated he saw the two men come out and get in the red and white pickup truck together, and that Coley was driving when they entered the Interstate. After stopping the vehicle, he saw the appellant slide over and drive off in the truck.

I

In Johnson v. State, 41 Ala.App. 351, 132 So.2d 485, Judge Price stated:

“To establish the offense of buying or concealing stolen property it must appear that the property was stolen; that accused bought, received or concealed it knowing that it had been stolen; and that she had no intention of returning it to the owner. Moore v. State, 26 Ala.App. 607, 164 So. 761; Trail v. State, 39 Ala.App. 467, 103 So.2d 833.
“The corpus delicti may be proven by circumstantial evidence as well as by direct proof. Coates v. State, 36 Ala.App. 371, 56 So.2d 383; Wright v. State, 17 Ala.App. 621, 88 So. 185.
“To meet the burden of proving that the property was stolen, it is necessary only that the state offer sufficient legal evidence to show a severance of the possession of the owner and an actual possession of the wrongdoer. It is immaterial how short the distance moved, or the length of time he exercised dominion over it. It may constitute larceny if there was a severance of the possession of the owner and an actual possession and removal by the wrongdoer. Phelps v. State, 6 Ala.App. 58, 60 So. 537; Molton v. State, 105 Ala. 18, 16 So. 795; Blakeney v. State, 244 Ala. 262, 13 So.2d 430; Arthur v. State, 38 Ala.App. 490, 93 So.2d 793.”

Judge Cates, in Stanley v. State, 46 Ala.App. 542, 245 So.2d 827, stated the trial court “in a receiving case approved inferring the requisite scienter from recent possession of stolen goods.”

This Court is of the opinion that the facts above set forth show the material elements of the offense charged, and that the evidence being in conflict, the trial judge properly submitted this matter to the jury for their determination. Paul v. State, 48 Ala.App. 396, 265 So.2d 180, cert. denied 288 Ala. 747, 265 So.2d 185; Johnson v. State, supra; Coe v. State, 53 Ala.App. 457, 301 So.2d 223; Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218; Carroll v. State, Ala.Cr.App., 338 So.2d 432.

II

Appellant contends that the trial court abused its discretion by allowing him only a ten minute recess before the appellant took the stand to testify.

We are of the opinion that where, as here, counsel had been appointed sometime prior to trial and was familiar with the testimony offered, no abuse of discretion is here shown. There was no question involved here concerning the right to interview witnesses prior to trial. We are of the opinion that no abuse of discretion was here shown.

We have carefully examined this record, as required by law, and find no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.

      . The officers stated that a confidential informant told them,to be on the lookout for a red and white pickup truck which contained some missing merchandise.


author: MOORE, Retired Circuit Judge.

text:
    Wash ELLIOTT, alias v. STATE.
    4 Div. 488.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      John E. Byrd, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.
   MOORE, Retired Circuit Judge.

The appellant was indicted, tried and convicted for the offense of burglary in the second degree. Final judgment was entered by the trial court and his punishment was fixed by said judgment at imprisonment in the penitentiary of Alabama for ten years. Hence, this appeal.

The appellant filed a motion for a change of venue. That motion was heard on June 11,1976, prior to the trial on its merits. On that hearing the appellant offered the testimony of two witnesses. Bob Howell was the first of said witnesses and he testified, in substance, that he was the news director of WTVY Television in Dothan, Alabama; that on September 3, 1975, he broadcast the following:

“Three Dothan men have been arrested with a string of recent burglaries and robberies. A spokesman for the Dothan Police Department identified the three as 19 year old Alonzo C. Brooks, 24 year old Wash Elliott and 25 year old Johnny Jackson. The spokesman said the arrest solved at least eight burglaries, three robberies and two auto thefts. The investigation is continuing and it is expected that more cases will be cleared as a result of the arrest. Several of the cases, middle-aged housewives were tied up after entry to their homes was gained and their homes were ransacked. The investigation is being conducted by personnel in all divisions in the department.”

witness testified that broadcast was made at 6:00 o’clock, 10:00 o’clock and at two other times between 12:00 midnight and 6:00 o’clock the next morning; that each broadcast ran for about 20 seconds; that on March 9,1976, he also gave a broadcast about the appellant’s cases as follows:

“In Judge White’s courtroom today a jury is hearing a case against Wash Elliott, who is charged with robbery. In addition to robbery charges, Elliott has one grand larceny and four second-degree burglary charges against him on the Court Calendar.”

This witness testified further that on March 10, 1976, he broadcast the following:

“Houston County Circuit Court Jury has convicted Wash Elliott and sentenced him to forty years in prison. This brings to a total of 75 years of charges against Elliott on robbery cases. He was convicted of robbing a Dothan woman on North Denton Street.”

This witness also testified those were the only three statements broadcast.

The second of said witnesses, Jack Budd, a reporter for the Dothan Eagle, testified that he wrote two articles for said paper concerning the cases against appellant in the Circuit Court of Houston County, Alabama, which were published in said paper. He testified, in substance, that one of those articles was published March 10, 1976, and he gave the substance of said article as follows:

“Elliott was convicted for robbery of Mrs. H. G. Fletcher of 301 South Denton Street on August 28. Mrs. Fletcher, who thought she was opening her door for a workman who was coming to install burglary bars on the windows, was confronted by a robber pointing a pistol at her. She testified in Court yesterday that she was tied up and robbed of practically everything in the house except the furniture. She said the robber spent three hours and fifteen minutes ransacking the house, searching every drawer and corner for loot, she said. At one point he took a break and went into the kitchen for a snack, the victim testified. Mrs. Fletcher said that she had been expecting a workman but was still in bed when the doorbell rang. I jumped up and went to the door, she recalled, she called the name of the workman she was expecting and a male voice on the other side of the door said yes, and she opened the door. There stood a negro man with a mask on his face and holding a pistol, she testified. He pushed me on in and said do as I tell you and you won’t get hurt. She said he tied her up and made her lie on her face in the floor and later forced her to go from room to room as he ransacked the house. She said he went through each dresser, every drawer, all the furniture, piled all the loot in the back door. He just took and took, she later recalled. Mrs. Fletcher said she was tied with an electric cord, and her hands and legs were tied to a coffee table and her mouth was taped. Elliott was one of three persons arrested in September in a series of robbery and burglary arrests. And, in December, he was sentenced to thirty years in prison on a robbery case. An appeal is pending in that case. A grand larceny and four second-degree burglary were continued today.”

This witness testified that article was written from notes he took in open court and from information in his file.

He also testified, in substance, another reporter, Mrs. Merkle, had written an article for said paper about the time of appellant’s arrest, in which she told about three black men being arrested in connection with series of robberies and burglaries and car theft and were booked at the jail; that she quoted Chief Williams as saying the arrest solved at least eight burglaries, three robberies, and one automobile theft; that it mentioned the name of Wash Elliott; that Tom Sorrell (the District Attorney) said he would petition the court for no bond in the robbery cases, these guys are fantastic; that police said Elliott would be charged with robbery of Mrs. Chester Harm, Mr. and Mrs. Ralph Daughtery and Mr. H. G. Fletcher. Elliott would also be charged with burglary of a house in the 700 block of Arlington Avenue, and the theft of a Volkswagen from Sears’ parking lot, Williams said. And, that police said Elliott had lived in Georgia, but came to Dothan from Panama City a few months ago; that police said he had numerous arrests in Florida and Georgia for burglaries and firearms violations; and that articles recovered were identified as taken from the robberies and burglaries of both Mrs. Fletcher and Mrs. Hartman, who were tied up and held hostage in their homes while the robber ransacked their houses; that Mrs. Hartman was also gagged; that Mr. and Mrs. Daugh-tery returned home and she went into the house while he stayed outside and she discovered a burglar in the kitchen and was struck on the head with a pistol; that a second man drew a pistol on Daughtery and ordered him into the house; that when he refused to go the two robbers ran.

That article was published September 3, 1975. It was headed, “CHIEF SAYS BURGLARIES SOLVED, TOO”. A clipping of the article was introduced into evidence and we have the entire article before us as it appears in the record. There are a few other statements in the article not quoted above.

This witness testified that he wrote a second article which was published in said paper on April 16, 1976, and a clipping thereof was introduced into evidence. The article, insofar as it applies to appellant, stated:

“Wash Elliott, 25, of 611 Linden St., Do-than, was convicted by a Houston County Circuit Court Jury Wednesday of grand larceny and was sentenced to ten years in prison. Yesterday was the last day of court.
“Circuit Clerk Julia Trant said Elliott was sentenced in previous convictions in other cases to 45 and 30 year prison terms. Appeals are pending in those cases and his attorney filed notice of appeal of this conviction to the Alabama Court of Criminal Appeals.
“He was convicted Wednesday of grand larceny of a $2500.00 car from Hamac Corp. There are four house burglaries pending against him and were continued by Judge Jerry White.”

That article also states matters concerning other cases against defendants other than the appellant.

The State offered no evidence in rebuttal. The trial Judge denied said motion.

When the case came on for trial on its merits on July 27, 1976, the motion for a change of venue was again presented and heard. Julia L. Trant, the Circuit Clerk, and also the clerk of the jury commission for Houston County, Alabama, was called as a witness for appellant on said hearing and testified, in substance, that she had been so employed since 1973; that at the December 8, 1975 session of court, the appellant had two robbery cases and a grand larceny case on the court docket or calendar; that there were 71 jurors on the striking list for that week of court and that she assumed that 80 or 90 were called for the week; that in March 1976, the appellant had a grand larceny case, a robbery case and four burglary in the second-degree cases on the calendar for that week; that there were 70 jurors on the striking list for the week and probably 15 or 20 more were called; that at the April session 1976 of said court, appellant had a grand larceny case which was tried and four burglary in the second degree cases that were continued on the calendar; that there were 59 jurors on the striking list for that week and some others that were called; that at the June sessions of said court, 1976, the appellant had case on the calendar for trial; that 67 jurors were on the striking list for that week and others were called that did not serve and were not present as jurors for one reason or another; that she had not seen or heard anything on the television about the appellant but had seen some articles in the newspaper; that she had not read an article about him the night before, and that the appellant had had three trials in Houston County prior to the date of her testimony; that none of the jurors serving now have served previously during the other trial; that none of the jurors that have served since she has been in the Clerk’s office have been returned to the jury box but that names have been added to the jury box during said time, and that in her opinion appellant could get a fair trial in Houston County. The testimony of this witness was all the evidence offered on said hearing. The testimony and exhibits taken on said motion on June 11, 1976, were not again offered or in any way presented on said hearing held on July 27, 1976. The trial Court again on July 27, 1976, denied appellant’s motion for a change of venue.

On the trial on its merits V. L. Todd, a witness for the State, testified, in substance, that he and his wife left his home in Dothan on July 25,1975; that when he left the home the doors and windows to the home were all closed and locked; that he returned to his home, which was located at 718 Arlington Avenue, Dothan, Alabama, on July 27, 1975, the doors were open and things in the house were in disarray and his pistol, which he had left in the house on July 25, 1975, was missing; that the next time he saw the pistol, Detective Wachob had it at police headquarters; that when he discovered the house had been broken into, he called the police and they came to his home and investigated; that he gave the police a description of the pistol that had been taken along with its serial number; that the pistol shown to him while he was testifying was his pistol and the one in question; that the serial numbers had been removed from the pistol between the time it was taken from his home and before the police got it into their possession; that he could and did identify the pistol by the fact that after he became the owner of the pistol he placed V T with a scriber in the bottom of the handle; that to see them, one-half of the handle had to be taken off; (he showed the jury those initials on the handle) that those marks were inside the handle; and, that his home was uninhabited at the time it was broken into. He also testified other items of personal property were missing from the home when he returned on July 27, 1975.

Policeman James Wachob testified, in substance, that he investigated the burglary and went to the Todd home on the 27th day of July, 1975, and that the missing pistol was described to him as a .38 caliber Smith and Wesson, nickle plated, snub-nosed pistol; that during the investigation, he got the pistol in question from Richard Tharp. On cross-examination by counsel for the appellant, this witness testified that Paul Rex Johnson told him that he had sold the pistol to Richard Tharp and that he had received it from Wash Elliott. On redirect examination, this witness testified that from the time the pistol was first obtained from Richard Tharp until the date of the trial the pistol had been in police custody and in a vault and that the gun there in court was the gun taken from Richard Tharp.

Paul Rex Johnson testified, in substance, that Wash Elliott showed him the pistol, a .38 snub-nosed, nickle plated, and it had the numbers on the back of the stock scratched off; that the pistol shown to him in court was the same pistol; that he sold the pistol to Richard Tharp for $60.00 and split the money with Elliott.

Richard Tharp testified that he received the pistol from Paul Rex Johnson and at the same time gave him $60.00; that he turned the pistol over to the police; and that the pistol shown to him in court, in his judgment, is the same pistol.

Sergeant Harold Locke, a criminal investigator for the Police Department of Do-than, testified, in substance, that he obtained the pistol in question from Richard Tharp; that the pistol shown to him in court was the pistol he got from Tharp; that he talked to appellant on September 2, 1975, in the presence of James Wachob and advised him of his constitutional rights; (his testimony at this point shows that he gave to the appellant a full and complete Miranda warning) that the appellant said he understood his rights; (his testimony further shows that any statement made by appellant at the time was a voluntary statement and willingly made); that the appellant made a statement which the witness wrote down. The witness read the statement to the Jury as follows:

“I ask him what did he have. A. Pistol. What kind of pistol? I don’t know what kind it was. Where did it come from? Out of the other house. Was it silver or a blue steel pistol? Silver. You took it out of the other house? Yes. Where was the other house located? He said I don’t remember Streets. I ask him what was the first house he broke into? Let’s see, I think it was last month. What happened to that house? Didn’t nothing happen. Well how did you get in? Through the door. Did you pick the lock? Yes, sir. I asked him can you pick locks? Some of them. Was anyone at home? No, sir. Did anyone come in while you were there? Answer: No. Did anyone come in the back door? No, sir. Tell me what you took from the house? Something to eat, some money and a little silver pistol. What kind of pistol was it? I don’t know what kind it was. Was it black or silver? I think it was silver.”

This witness further testified that the next afternoon he took the appellant to the residence of Mr. V. L. Todd, 718 Arlington Avenue and asked him if he broke into that house and he said, “Yes, sir”.

The State rested and the appellant moved to exclude the evidence on the ground that the State had not made out a prima facie case. He also moved to exclude the statement that was allowed into evidence based on the fact that the overall statement was involuntarily given. Those motions were denied by the trial court.

The appellant in his brief contends that the trial Court is in error for refusing his requested written charges No. 2 and No. 4 and he makes a second contention that reversible error exist because of the trial Court’s denial of his motion for a change of venue. We shall consider those contentions in the order stated.

Those two charges are as follows:
Defendant’s Requested Charge No. 2 The Court charges the jury that it is the duty of the State to show, beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis, every circumstance to show that the Defendant is guilty, and unless the State has done that, you the jury, should return a verdict of not guilty.
Defendant’s Requested Charge No. 4 The Court charges that unless the State proves, beyond a reasonable doubt, that the goods, merchandise, articles or things of value involved in this crime were the same goods, merchandise, articles or things of value that were in the possession of V. L. Todd and were the same goods, merchandise, articles or things of value that were removed from the house of Y. L. Todd and further that these were the same goods, merchandise, articles or things of value that were in the possession of the Defendant, you must acquit this Defendant.

In Wilson v. State, 243 Ala. 1, 8 So.2d 422, the following charge was requested and refused by the trial Court:

“The court charges the jury that the burden is upon the State, and it is the duty of the State to show, beyond all reasonable doubt, and to the exclusion of every other reasonable hypothesis every circumstance necessary to show that the defendant is guilty; and unless the State has done that in this case, it is your duty, gentlemen of the jury, to render a verdict of not guilty.”

That charge was approved by our Supreme Court in that case. It may well have been disapproved because of the phrase, “beyond all reasonable doubt” instead of beyond a reasonable doubt. But that is not important in the case before us. Attention is directed to the phrase in said charge, namely, “every circumstance necessary to show that the defendant is guilty” in contrast to the phrase in charge No. 2 in the case before us, to-wit: “every circumstance to show that the defendant is guilty”. The limiting word “necessary” does not appear in said charge No. 2. The door is thrown open for the jury to consider circumstances other than those that are necessary to show that the defendant is guilty.

In Richardson v. State, 43 Ala.App. 412, 191 So.2d 251, a case cited by appellant, the charge approved used the phrases “beyond a reasonable doubt” and “every circumstance necessary to show the defendant is guilty”. There the limiting word “necessary” is used. That word restricts the jury to consider only such circumstances as are necessary to show guilt and it limits the burden placed on the State to prove only such circumstances as are necessary to show guilt.

Said charge No. 2 is an incorrect statement of the law and was properly refused.

The appellant’s requested charge No. 4 when applied to the evidence in the case before us, requires the jury to acquit the appellant if the State failed to show the appellant had the pistol in question in his possession or if the State failed to show the pistol was the pistol removed from the house. The evidence shows without contradiction that the home in question was broken into and entered with an intent to steal and that a pistol and other property was taken from the home. That is full and complete proof of the corpus delicti. That coupled with the appellant’s admission made to the police that he did burglarize the home of V. L. Todd located at 718 Arlington Avenue, Dothan, Alabama, was sufficient to sustain a conviction for burglary of that home without any proof of the appellant having possession of the pistol shown in court or that it was the exact pistol that came from the home. The tracing of the chain of possession of the pistol exhibited in the trial is but a circumstance in the case and only adds to the proof of guilt, but it is not a circumstance that was absolutely necessary to be shown in order for the jury to convict. Said charge was correctly refused.

We now come to a consideration of the trial Court’s denial of appellant’s motion for a change of venue. This court in Beddow v. State, 39 Ala.App. 29, 96 So.2d 175, cert. denied, 266 Ala. 694, 96 So.2d 178, with reference to a motion for a change of venue said:

“Also there was certified to us a transcript of the hearing held on Beddow’s motion for a change of venue, which was based on prejudice against him because of newspaper articles. Beddow was a Birmingham police officer at the time of the alleged offense and complained that the press was giving undue notice to his arrest. He further claimed he was being given too speedy a trial in the circumstances. His motion was overruled and an exception granted.
“We have before us the testimony of six witnesses, exhibits, and a record statement by the court below. The exhibits consist of clippings from the Birmingham newspapers narrating the charges against, and arrest of the defendant and Hunter. We note the testimony that at that time (November 9, 1953) Jefferson County had a population of 500,000 or upwards, and the judge stated that there were over 40,000 men whose names were in the jury box. See 56 Am.Jur., Venue, Section 70, n. 11.
“We find nothing in the clippings of an inflammatory character. The reports were in narrative form and purported to be interviews with the police officials. Newspaper articles, without more, are not evidence here; their effect must be shown. The testimony of the six witnesses did not meet the burden of persuasion. Moreover, the trial Court, though denying the change of venue, passed the case for four weeks.
“Altogether, considering the size of the jury box, the four-week continuance, and the defendant’s right through putting the veniremen on the voir dire to challenge for cause anyone who admitted being biased, we, in accordance with second sentence of Section 267, Title 15, Code 1940, adjudge the motion for a change of venue was properly overruled. Patton v. State, 246 Ala. 639, 21 So.2d 844.”

In Patton v. State, 246 Ala. 639, 21 So.2d 844, the court stated:

“The burden is upon the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot reasonably be expected, in order to achieve the right to a change of venue. Godau v. State, 179 Ala. 27, 60 So. 908. The mere belief of the defendant or of his witnesses that he cannot receive such a trial is not enough. Lee v. State, Ala., [246 Ala. 343] 20 So.2d 471.
“The defendant rested his right to a change of venue upon the following facts, as distinguished from mere conclusions: (1) Extraordinary public interest in the case and supposed public indignation against defendant, as evidenced by a posse of citizens who joined in the search for the defendant; (2) his incarceration in an out-of-county jail; (3) publication in The Greensboro Watchman, a local newspaper, of an article in which it is claimed erroneous statements of fact were embraced, having a tendency to inflame the public mind; (4) the presence of several State Highway Patrolmen in and around the courthouse at the trial to aid the local constabulary in maintaining order and in searching persons for weapons who entered the courtroom; (5) presence on the 75-juror venire of nineteen jurors who were residents in and around Moundville, the neighborhood of the crime; and (6) appointment of two out-of-county attorneys who, it is alleged, were not as well acquainted with the personnel of the ve-nire as local counsel might have been. “Upon a careful consideration of the question, we are not reasonably satisfied that defendant could not obtain a fair and impartial trial before fair and impartial jurors in Hale County.”

The newspaper article published in The Greensboro Watchman in the Patton case, supra, is set out in the report of the case. It states more details than the articles and broadcasts in the case before us.

It is ordered and adjudged by this court that we are not reasonably satisfied that the appellant could not obtain a fair and impartial trial before a fair and impartial jury in Houston County, Alabama, and that the trial Court is not in error because of its denial of said motion.

There was substantial evidence of the appellant’s guilt and the motion to exclude the evidence was correctly overruled.

We have searched the record for error and have found none that would justify a reversal. It is, therefore, ordered and adjudged by this court that the judgment of the trial Court be and the same is affirmed.

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

The judgment is hereby

AFFIRMED.

TYSON, P. J., and HARRIS, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., concurs in result.


author: HARRIS, Judge.

text:
    Tommy CARLTON v. STATE.
    4 Div. 503.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      Randy C. Brackin, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted for the offense of selling marijuana and the Court sentenced him to imprisonment in the penitentiary for nine years. He was represented at arraignment and trial by retained counsel. He pleaded not guilty. After sentence was imposed, he gave notice of appeal and his sentence was suspended pending appeal. His retained attorney represents him on this appeal.

Police Officer David R. Havard of the Mobile Police Department was assigned to work with the Dothan Police Department as an undercover agent in the narcotics division. Havard arrived in Dothan on March 28, 1976, and worked until June 4, 1976. During this period of time he made around 20 cases for drug violations. He was still on the payroll of the Mobile Police Department and received no extra compensation for his undercover work in Dothan. The City of Dothan furnished him money to make drug purchases.

Havard further testified that he met appellant on several occasions prior to May 21, 1976, and on that date Havard was driving north on Highway 231 when appellant, who was a passenger in another automobile, recognized him and flagged him down and stated he wanted to talk to him. Havard pulled into a parking lot of a local bank and the vehicle in which appellant was riding pulled over near the officer’s car. Appellant got out of the car and produced a cellophane package containing a black, tarry substance, which he represented to be opium and asked the officer if he wanted any of it. The officer told appellant he wanted some of it and bought a small piece for five dollars. Appellant then told the officer that he had some real good marijuana at his house and the officer told appellant he wanted to buy some and asked if he could drive him to his house. Havard further stated that he and appellant were accompanied by one Hatfield Wilder to appellant’s home at 308 Oglethorpe Street.

Havard further testified that when they reached the house appellant got out of the car and went in the house telling him to wait in the car. Appellant returned shortly with a large black cellophane bag of green plant material and asked the officer how much he wanted. The officer asked how much he wanted for the bag and appellant stated that he did not want to sell the whole bag but would sell him enough for two joints. The officer took some of the green vegetable material and put it in a matchbox and paid appellant four dollars. The officer said that he had seen marijuana many times and that in his best judgment the substance was marijuana. The officer then stated they took the original cellophane bag and left appellant’s residence to go to Hatfield Wilder’s house where appellant and Wilder tried to burn the substance represented to be opium. They put the substance on the tip of a knife and struck a match and tried to burn it, but were unable to get it to burn. Appellant and Wilder rolled two cigarettes of marijuana and passed them around to be smoked. The officer testified that appellant and Wilder smoked the marijuana but he only simulated smoking the cigarettes when they were passed to him so that they would think that he, too, was smoking along with them.

Officer Havard further testified that he took the substance back to his house, locked it in his brief case, and the following morning he gave it to Officer Bob Sorrells of the Dothan Police Department. He said it was in the same condition when he turned it over to Sorrells as it was when appellant sold it to him.

On cross-examination Havard was reminded that at the preliminary hearing he had testified differently as to the time and place where he purchased the marijuana and readily admitted the discrepancies as to times and places but not as to the actual purchase of marijuana from appellant.

Ms. Melinda Long, Toxicologist employed by the State of Alabama, testified that her main job with the Department of Toxicology was to analyze drugs. She stated that she received a sealed package from Sergeant Robert Jackson of the Dothan Police Department and that she analyzed the substance and found it to be marijuana. She stated that the substance she determined to be marijuana was in a matchbox.

Officer Robert Sorrells of the Dothan Police Department testified that he was assigned to the narcotics division and knew Officer David Havard of the Mobile Police Department. He stated that he received a telephone call from Officer Havard on May 23, 1976, and went to the place where he was staying where he was given a matchbox containing green vegetable material. He said he ran a Yaltox test on the substance and the reaction was positive. He stated that he locked the matchbox in a locker in the narcotics office after sealing it and putting the name of the seller, the number and his initials on the container. He further testified that he gave the package to Officer Robert Jackson to personally deliver it to the Enterprise Crime Laboratory.

Officer Robert Jackson testified that he delivered the package to the Crime Laboratory in Enterprise and gave it to Ms. Melinda Long on May 24, 1976. He stated that he did not open the package at any time.

Appellant was the only witness in his behalf. He testified that he remembered meeting Officer Havard and had known him for about three months. That during this period of time he saw the officer four or five times and that each time he saw him, the officer would ask him for drugs, and that the officer called him on the telephone wanting to buy drugs, but that on each occasion he told the officer he did not have any drugs, and did not know where to get any. Appellant further testified that he did not sell any type of drugs, and that he did not make any representations to Officer Havard about selling any type of drugs and did not sell any type of drugs on any occasion.

It is interesting to note that on direct examination appellant testified that he did not sell any marijuana to any person other than David Havard, and that he never furnished any marijuana or other drug to David Havard or to anyone else.

The sufficiency of the evidence is not presented for review. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; there was no motion for a new trial, and no exceptions were reserved to the oral charge of the Court. Jones v. State, 55 Ala.App. 466, 316 So.2d 713; Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613.

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

Appellant raises two issues on this appeal, which he claims constitute reversible error: (1) the sentence of nine years was excessive, and, (2) the Court erred in permitting the officer to state that the material he purchased appeared to be marijuana. We will answer these contentions in the order presented.

The trial court, in certain offenses, has the prerogative to assess punishment within the legal limits, as sound discretion should dictate. Goolsby v. State, 283 Ala. 269, 215 So.2d 602.

Where a sentence is within statutory limits, as here, the appellate courts do not have revisory powers as to the severity of the sentence. Moore v. State, 54 Ala.App. 463, 309 So.2d 500.

Officer Havard testified that he had training and experience as a narcotics officer in the handling of marijuana. He stated that he had been assigned to narcotics for the last nine months, and “We have had lectures, books we have read, and we have been taught to recognize marijuana, since I have been on the police force for the past six years.” He further testified that he had seen marijuana many times.

An expert witness is one who can enlighten a jury more than the average man in the street. Woods v. State, 54 Ala.App. 591, 310 So.2d 891; Rupert v. State, 54 Ala.App. 578, 310 So.2d 501; Jenkins v. State, 46 Ala.App. 719, 248 So.2d 758.

The trial court did not err in allowing Officer Havard to testify that the substance he purchased from appellant “appeared to be marijuana.” Ms. Melinda Long, the Toxicologist, whose qualifications were not questioned, testified the material she examined and analyzed in the matchbox was marijuana.

We have carefully searched the record and have found no reversible errors.

AFFIRMED.

All the Judges concur.


text:
    Artis POOLE v. STATE.
    5 Div. 375.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      William D. Latham, Clanton, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon a two-count indictment charging (1) burglary in the second degree, and (2) grand larceny. Prior to arraignment appellant was found to be indigent, and counsel was appointed to represent him. He interposed a plea of not guilty and his case was set for trial at a later date.

When his case was called for trial, he appeared in open court with his attorney and made known to the Court that he desired to withdraw his not guilty plea and to plead guilty to the indictment. The Court conducted an in-depth colloquy under Boy-kin so that appellant would be fully informed of all his constitutional rights and to determine whether his guilty plea was voluntary. Appellant told the Court that he fully understood his constitutional rights and that he realized that he was giving up all of these rights by pleading guilty. It was shown that he was not induced to plead guilty because of any promises, threats, rewards or other inducements. The Court asked him how he pled to the indictment and he replied, “guilty.” Thereupon, the Court asked appellant to tell him what happened and appellant replied that he did not know anything about the burglary and did not know anything about the theft of any guns. In the light of appellant’s denials the Court refused to accept his guilty plea and put appellant to trial. The jury returned a general verdict of guilty as charged in the indictment and the Court sentenced appellant to five years imprisonment in the penitentiary. After sentence was imposed appellant gave notice of appeal. Sentence was suspended pending appeal and appellant was furnished a free transcript and new counsel was appointed to represent him on this appeal.

Mr. Jerry Netherland testified that on June 5, 1976, he was the store manager of Gibson Products, Inc., a corporation, located in the city of Clanton, Chilton County, Alabama and that on that date he closed and locked the store at about 6:10 p.m. He further testified that when he returned to open the store the next morning he found that the front glass had been broken out and 17 guns, including a Winchester .22 rifle, model 190, were missing. He read the serial numbers to all of the stolen guns and the retail price of each gun. He stated the aggregate value of the stolen property was $1,833.03.

David W. McDaniel testified that he lived in Mountain Creek, Alabama, and that he had not known appellant before the burglary of Gibson Products Store. He stated around 2:00 a.m. on June 6, 1976, he was driving his ear on a street in Clanton with a passenger by the name of Bubba Walker when he was stopped by appellant and one Butch Browder. That appellant and Brow-der asked him to give them a ride and he picked them up. That appellant directed him to drive to an old railroad track location not too far from Gibson Products. When they arrived at this point, appellant got out of the car and went across the railroad tracks to some bushes and picked up a number of guns and put them in his car. Appellant asked McDaniel to drive him to the west end of the town of Clanton to the home of James Houle, where a number of men took the guns out of his car. Appellant gave him a shotgun which he put in Peter Robinson’s car at a place known as Cleve Austin’s. McDaniel was stopped by some officers who questioned him about the burglary and he told the officers the whole story and about the shotgun in Robinson’s car.

Deputy Sheriff Billy Joe O’Bryan testified that he got the shotgun out of Robinson’s car where McDaniel told him he had put it. At trial O’Bryan identified the shotgun and it was introduced into evidence without objection. It had the serial number as testified to by Mr. Netherland.

Michael Ray Smitherman testified that he was a Deputy Sheriff of Chilton County during June of 1976. He and a number of other officers went to appellant’s home armed with a search warrant. Appellant was at home and he was shown the search warrant and told the officers there were no guns in his house. In the loft of appellant’s home the officers found a Winchester .22 rifle, model 190, and at trial it was identified by this witness and introduced into evidence as State’s Exhibit No. 2, without objection. This weapon also had the same serial number given by Mr. Netherland during his testimony.

Mr. Benny Eugene Mims testified that he was an investigator for the Chilton County Sheriff’s Department and that he had two conversations with appellant concerning the burglary of Gibson Products Store. The first conversation was on June 5, 1976, in the Chilton County Jail. Appellant was given the Miranda rights and warnings and told Mr. Mims that he understood his rights. On this occasion appellant told Mr. Mims that he had purchased the rifle from McDaniel. On June 6, 1976, Mims had a second conversation with appellant in the presence of Chief of Police Ed Thornton. This second conversation took place in the same room at the County jail and appellant was again given the Miranda rights and warnings. Appellant changed his first statement and told the officers the following story:

“He said that he and Raymond Robinson, David McDaniel and a Walker boy got together about 12 midnight at Cleveland Austin’s place. They were talking about going in Gibson’s and getting some guns. They asked him if he wanted to go along. All four of the boys got in the car and went and parked behind Gibson’s Store. Raymond broke in the window — broke the window out and Raymond, David and the Walker went in the store, handed me the guns out — they came out of the store and we put the guns in the car. We took the guns to James Houle’s house. I got one rifle, the other boys got a 30.30 rifle and a shotgun and I left the rest of the guns at James Houle’s house.”

Before the above-quoted statement was related to the jury the proper predicate was laid to show that no promises, rewards, threats or other inducements were made to appellant to get him to make this statement.

Mr. Mims further testified that appellant denied that he broke into Gibson’s or ever entered the store.

Only two persons were charged with these offenses — appellant and James Houle.

Appellant introduced some evidence in the nature of an alibi. James Houle, who was advised by the trial court that he could not be compelled to testify since he was under indictment for the same crime, elected to testify. He stated that he had known appellant for about eighteen months and that he arrived at Houle’s house around midnight on June 5, 1976, and he did not bring any guns with him and that appellant left about 2:30 a.m. and did not carry any guns with him.

Butch Browder testified that he lived with James Houle. On June 5, 1976, appellant came to the house around midnight and did not bring any guns with him. This witness further stated that McDaniel came to their house shortly after midnight and that he and appellant went out of the house to transact some business. When appellant came back in the house he had a .22 rifle with a scope on it. This rifle was identified as State’s Exhibit No. 2. He stated when appellant left around 2:00 a.m., he said he was taking the rifle home with him.

Appellant testified that he did not go to Gibson’s Store on- the night of June 4th or 5th and had not gotten together with anyone who had been to the store. He admitted going to Houle’s house in the late evening hours of June 4, 1976, just to pay a friendly visit and played checkers for a while. He stated that while he was there McDaniel arrived and said he had some guns he wanted to sell. Appellant was asked if he had any money and when he replied that he had money McDaniel invited him outside. He further stated that when he got outside that McDaniel showed him some guns in his car where Bubba Walker was sitting at the time. He said McDaniel gave him a .22 rifle in exchange for a $10.00 loan but that Mr. McDaniel never returned to redeem the loan and appellant carried the rifle home and put it in the loft to keep his children or anyone else from seeing it.

Appellant admitted that he had previously been convicted for burglary and grand larceny and had also been convicted for buying and receiving stolen property. He further testified that he did not tell the officers there was no gun in his house when they came with a search warrant to search his home.

On rebuttal the State re-called Billy Joe O’Bryan who testified that appellant stated to the officers conducting a search of his home that there was no gun in his home.

The sufficiency of the evidence is not presented for review on this appeal. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; no exceptions were reserved to the oral charge of the Court; there was no motion for a new trial, and there were no adverse rulings on the admission of any evidence which contained any merit. Fincher v. State, 55 Ala.App. 676, 318 So.2d 371; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Stokes v. State, 54 Ala.App. 112, 305 So.2d 387.

The attorney appointed to represent appellant on this appeal filed with the Clerk of this Court a no merit letter stating that he had made a diligent examination of the transcript and that in his opinion there is no merit in this appeal and no error in the record. Counsel further certified that he mailed a copy of this letter to appellant and that he talked to him on the telephone and told him there was no merit in the appeal. Counsel made an appointment with appellant to discuss this matter in person with him on January 11, 1977, but appellant did not keep the appointment.

We, too, have carefully searched the record and are compelled to agree with appellant’s counsel that there is no reversible error in this record.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    McArthur HERROD v. STATE.
    6 Div. 95.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.

      William M. Dawson, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

On the night of April 18,1975, at approximately 11:00 P.M., eighty year old Sidney Bryant was shot and killed at the back door of his home. The assailant had made a previous visit to Bryant’s home around dusk the day of the murder. The purpose of the last visit was to locate a girl friend. The appellant was identified by Geraldine Dudley, Bryant’s boarder, as the man who killed Bryant and also as the man who visited Bryant around dusk. Wilbert Cody, Bryant’s neighbor, also identified the appellant as the man who visited Bryant around dusk.

The only issue raised in the appellant’s brief was that the verdict was contrary to the weight of the evidence. However, a reading of the record and of the argument in the appellant’s brief reveals that the only issue is whether or not Geraldine Dudley and Wilbert Cody misidentified the appellant as the assailant. The factors which must be considered when evaluating the likelihood of misidentification are set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and Childers v. State, Ala.Cr.App., 339 So.2d 597, at p. 598, cert. denied Ala., 339 So.2d 601:

“. . . the opportunity of witnesses to view the criminal at the time of the crime, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description of the criminal, the level of certainty demonstrated by the witnesses at the confrontation, and the length of time between the confrontation and the crime.

Ms. Dudley had more than ample opportunity to view the assailant at the time of the crime and on his previous visit. Her degree of attention was great at the time of the crime. Her description of the assailant accurately fit the appellant, except for a height discrepancy. Ms. Dudley was certain as to her identification both at trial and at a lineup. The lineup which was properly conducted occurred about two hours after the murder. The appellant contends that the fact that Ms. Dudley was arrested in order to secure her appearance at a preliminary hearing makes her identification of the appellant suspect. Ms. Dudley adequately explained at trial that the arrest grew out of a misunderstanding and not from her reluctance to testify. We do not find that it is likely that Ms. Dudley misidentified the appellant as the assailant.

All the factors in Childers, supra, point to an unlikelihood of misidentification on the part of Cody except that his first opportunity to make an identification was at trial after a lapse of five months. The appellant contends the confused nature of Cody’s testimony suggests a likelihood of misidentifi-cation. Admittedly Cody’s testimony was confused. The confusion resulted from Cody’s utter lack of knowledge concerning courtroom procedures; from confusing and repetitious questions on cross-examination; and Cody’s apparent inability to estimate distances. The confusion did not result because of any likelihood of misidentification.

The appellant rested without presenting a defense. We have searched the record, and we fail to find error prejudicial to the appellant.

AFFIRMED.

All the Judges concur.