author: EMBRY, Justice. MADDOX, Justice JONES, Justice BLOODWORTH, Justice

text:
    In re Johnny Daniel BEECHER v. STATE of Alabama. Ex parte Johnny Daniel Beecher.
    SC 1054.
    Supreme Court of Alabama.
    July 10, 1975.
    Rehearing Denied Sept. 4, 1975.

      U. W. demon, Birmingham, Elaine R. Jones, NAACP Legal Defense & Educational Fund, Inc., Jack Greenberg, New York City, for petitioner.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   EMBRY, Justice.

Petition for writ of certiorari was granted and we here review the Court of Criminal Appeals’ decision in Beecher v. State, 56 Ala.App. 212, 320 So.2d 716, 8 Div. 426 (1974), which upheld the third conviction of petitioner for murder in the first degree.

The former trials resulted in reversals on appeal. Beecher v. State, 280 Ala. 283, 193 So.2d 505 (1967), rev’d 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); Beecher v. State, 288 Ala. 1, 256 So.2d 154 (1971), rev’d 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972). These cases fully report the overall facts. We will discuss only those pertinent to review of the alleged errors occurring during the third trial. Those errors are said to consist in: (1) A remark made by the prosecutor in final argument was impermissible comment on defendant’s failure to testify, (2) Blacks were systematically excluded from the jury venire. We find that Const, of Ala., 1901, § 6, mandates reversal, therefore we remand for new trial.

I

Petitioner’s first contention is that a remark made in final argument by the District Attorney was impermissible comment on defendant’s failure to testify. To decide if the remark was impermissible we must look to the testimony of Deputy Sheriff Kenneth Ray Phillips who related to the jury an extrajudicial self inculpato-ry admission of defendant Beecher.

“DIRECT EXAMINATION
“BY MR. BLACK:
“Q. Mr. Phillips, what is your full name, please, sir?
“A. Kenneth Ray Phillips.
“Q. And where are you at the present time?
“A. In Quantico, Virginia.
“Q. And what are you doing up there ?
“A. I am going through the National F.B.I. Academy School.
“Q. And where do you live ?
“A. Centre, Alabama.
“Q. And what is your occupation?
“A. I am a Deputy Sheriff.
“Q. And in what county, please ?
“A. Cherokee County.
“Q. And how long have you been a Deputy Sheriff of Cherokee County, Mr. Phillips?
“A. Six and a half years.
“Q. Do you know the Defendant over there, Johnny Daniel Beecher, sitting by his Attorney, Miss Jones?
“A. Yes, sir.
“Q. I will ask you if you were present in Cherokee County during his last trial in February of 1969 ?
“A. Yes, sir.
“Q. Do you recall seeing the Defendant, Johnny Daniel Beecher, while the jury was deliberating during his last trial?
“A. Yes, sir.
“Q. And what was your official capacity at that time ?
“A. I was working as an officer of the court as Bailiff.
“Q. And did you have him in your custody at that time?
“A. Yes, sir.
“Q. Where did you have him in custody?
“A. In a witness room.
“Q. All right. Now, at this time, Mr. Phillips, did you talk with him about his case?
“A. No sir.
“Q. Did you make any statements at all about the trial that had just started and the jury now had?
“A. No, sir.
“Q. Did you ask him any questions at all about the trial ?
“A. No, sir.
“Q. About any of the witnesses ?
“A. No, sir.
“Q. Did any law enforcement officer ask you to question the Defendant, Johnny Daniel Beecher?
“A. No, sir.
“Q. Did the Sheriff of Jackson County ask you to?
“A. No, sir.
“Q. Did any of the State Investigators ?
“A. No, sir.
“Q. Did the District Attorney, did I or Mr. Latham ask you to question the Defendant, Johnny Daniel Beecher?
“A. No, sir.
“Q. Did Sheriff Garrett or anybody else?
“A. No, sir.
“Q. Now, during the time that you had him in your custody, where were you, Mr. Phillips?
“A. In the courthouse in the witness room.
“Q. Did he make a statement to you?
“A. Yes, sir.
“Q. Now, was this — did you ask him for a statement?
“A. No sir.
“Q. Did you make a question prior to the statement that he made to you ?
“A. No, sir.
“Q. And who, if anybody else, was present at this time?
“A. No one, just Johnny and myself.
“Q. Had you all been talking about other matters prior to that time ?
“A. We had been talking, yes.
“Q. But not about, his case ?
“A. Not about the case, no, sir.
“Q. Now, what did he state to you at this time?
“A. He said, ‘Man, I am scared of that electric chair. I don’t deserve to walk the streets, because I am a guilty man.’
"Q. Now, did you make any response to that statement?
“A. No, sir.
“Q. Did you reply to him in any way?
“A. No, sir.
“Q. Now, who, if anyone, did you tell that the Defendant, Johnny Daniel Beecher, had made that statement to?
“A. Sheriff Garrett.
“Q. And when did you tell him ?
“A. It was two or three days after the trial.
“Q. Do you recall how many it was?
“A. No, sir, two or three or four or something like that.
“Q. Something like that ?
“A. I don’t recall just how many.”

At the end of the State’s case, petitioner rested without offering any evidence. Pursuant to directions by the trial court, the final arguments were not reported, except for objections and rulings made during the arguments. At the close of arguments petitioner moved for a mistrial. The grounds for the mistrial were established by petitioner’s attorney in the following manner:

“MR. CLEMON: Your Honor, at this time we move to have this Court to declare this trial a mistrial because of the District Attorney’s comment on the Defendant’s presence to take the stand — on the Defendant’s failure to take the stand. We objected to it heretofore and the objection was overruled and we took exception, but we did want to make it clear for the record that formally we are requesting this Court to declare a mistrial because of the prejudicial comment on the failure of the Defendant to take the witness stand, a right guaranteed to him by the United States Constitution.
“THE COURT: I don’t construe the statement as a comment on the failure to take the stand. As I understood it, it was that the — the statement was unde-nied, and that has been held to be not a comment on the statement.
“MR. CLEMON: Your Honor, may we just have the Court Reporter to read back the statement?
“THE COURT: Yes.
“MR. CLEMON: As I recall it, the statement was that no one took the stand.
“THE COURT: All right. Let’s—
“MR. PETTUS: If the Court please, I would like to say this—
“THE COURT: Well,—
“MR. PETTUS: When they made the objection, they did not state any words or language used.
“MR. CLEMON: At this point the Judge said ‘Overruled’, and we said ‘Except.’ We didn’t have an opportunity to state any words or language used.
“THE COURT: Well, I don’t believe that you were denied an opportunity. I didn’t intend to, but you might have thought so and I am not going to—
“MR. BLACK: It’s been upheld by the Supreme Court to not comment on that.
“THE COURT: Let’s just stop arguments and hear at this time what — go back and see what—
“THE COURT REPORTER: Judge, he objected—
“THE COURT: Yes, sir.
“THE COURT REPORTER: — and you overruled the objection and they excepted. It was not stated, or I did not hear it stated, what the objection was.
“THE COURT: All right.
“MR. DIVENS: Did you get the motion for a mistrial ?
“THE COURT: All right. As you remember, Mr. District Attorney, Mr. Black, what was it that you said ?
“MR. BLACK: I said the testimony —I got it down here sonewhere [sic]— was undisputed. The testimony of the State was undisputed.
“MR. DIVENS: Did you get the motion for a mistrial ?
“MR. CLEMON: Did you get the motion Mr. Black made before we objected? I mean the statement that Mr. Black made before we objected? Do you have that ?
“ELAINE JONES: Are you taking the arguments ?
“THE COURT REPORTER: No, ma’am.
“MR. CLEMON: Oh. Okay. Well I want to take the stand.
“THE COURT REPORTER: I am not taking the arguments down,'just the objections and exceptions.
“ELAINE JONES: I see. You are not taking it down. Oh, yes, we misunderstood.
“THE COURT: Well, the Court heard the thing, and I will let you state what you said, as you remember it. I think I understand it, but I am going to give each one of you an opportunity.
“MR. BLACK: Well, Judge, if you can, if you want to just dictate in there, I am sure we will both agree on it.
“MR. DIVENS: Mr. Black, you were not reading from that paper ?
“MR. BLACK: No. Oh, no.
“THE COURT: All right, let’s just make a statement. As an officer of the Court, I will let you make a statement as to what you think it was.
“MR. CLEMON: Well, I want to be sworn as a witness.
“THE COURT: Well, if you would like to be sworn, I will be glad to do it.
“(WHEREUPON MR. CLEMON WAS SWORN BY THE COURT IN THE FOLLOWING MANNER)
“THE COURT: Do you solemnly swear that the evidence that you give will be the truth, so help you God. And you can stand where you are if you like.
“MR. CLEMON: Yes, sir. For the record, my name is U. W. Clemon. I am an attorney at law licensed to practice in the State of Alabama. During the oral arguments of Mr. Black to the jury, I heard him state, quote, ‘No one took the stand to deny it,’ unquote.
“MR. BLACK: That’s right.
“THE COURT: All right, I will— that wasn’t necessarily referring to your —We hear these arguments all the time, and this is not a novel argument, but this has been before our courts many times, and the law of this state, and I perceive the law of the Federal Courts is not different. But you cannot say that evidence is uncontradicted, and if it is un-contradicted, then you cannot say that no witness took the stand to deny this. You are not prohibited from — on either side from making that statement. And so I will overrule your motion now.
“MR. CLEMON: Yes, sir. We except.
“THE COURT: I will just overrule it, because the Court finds that this was not a reference to the failure of the Defendant to take the stand.
“MR. DIVENS: Your Honor, for the record, we would like to state that Mr. Black, when making that statement, was referring to the testimony of Ken Phillips.
“THE COURT: Well, call the jury back. Hold on there just one minute. I want to finish — tell them to hold on just one minute, because I got to finish one of these possible verdicts that I had started, and let them keep them out there until I finish that.”

Alabama Constitution, § 6, declares:

“That in all criminal prosecutions, the accused * * * shall not be compelled to give evidence against himself jfc :j< %

Code of Ala., Tit. 15, § 305, states:

“On the trial of all * * * criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness; and his failure to make such a request shall not create any presumption against him, nor be the subject of comment by counsel. * * * ”

Our statute goes further than the comparable federal statute, 18 U.S.C., § 3481. In Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court held that a prosecutor’s comment on the failure of a defendant to testify was violative of U.S.Const., Amends. V, XIV. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), raised the possibility that such comments would not require automatic reversal when such a comment was harmless beyond a reasonable doubt, i.*e., that the matter complained of could have in no way contributed to the conviction. More recently, however, the Supreme Court has raised the possibility that such prosecutorial comment may achieve the status of requiring automatic reversal.

In the following case, although it did not deal with the prosecutor’s comment on the failure of a defendant to testify, the matter of comment by the prosecutor about defendant (and counsel for him) made during final argument was the subject of review. The statement of the Supreme Court in that case is instructive:

“This is not a case in which the State has denied a defendant the benefit of a specific provision of the Bill of Rights, such as the right to counsel * * * or in which the prosecutor’s remarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right. * * * When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them. * * * ” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431, 436-37 (1974). (emphasis added)

Where there has been direct comment on defendant’s failure to testify, and the trial court has not promptly acted to cure such a statement, the conviction must be reversed. Lamberth v. State, 54 Ala.App. 233, 307 So.2d 43 (1975).

More difficult questions arise where indirect reference is made to defendant’s failure to testify. In Padgett v. State, 45 Ala.App. 56, 223 So.2d 597 (1969), the prosecutor remarked “Did anybody tell you under oath from the stand that John Allen Padgett didn’t put that lock up there * * *This was held to be an impermissible comment on the failure of the defendant to testify since he was the only one who could have refuted the State’s testimony. In Padgett, supra, and King v. State, 45 Ala.App. 348, 352, 230 So.2d 538, 541 (1970), it was said:

“Under Washington v. State, 259 Ala. 104, 65 So.2d 704; Welch v. State, 263 Ala. 57, 81 So.2d 901, and Taylor v. State, 279 Ala. 390, 185 So.2d 414, § 305 is read literally, i. e., covert references are construed against the defendant. In other words, no matter what the jury might infer, there must virtually be a direct identification of the defendant alone as the individual who has not become a witness. Earlier cases to the contrary apparently must be viewed askance. See Williams v. State, 43 Ala.App. 343, 190 So.2d 556, and the border line case of White v. State, 44 Ala.App. 312, 208 So. 2d 222.”

Presumably had there been someone other than Padgett who could have refuted the State’s evidence, the decision in Padg-ett would have, resulted in affirmance. See Street v. State, 266 Ala. 289, 96 So.2d 686.

The difficulties of the virtual identification doctrine are illustrated by Welch v. State, 38 Ala.App. 239, 81 So.2d 897, rev’d 263 Ala. 57, 81 So.2d 901 (1955). A defendant’s right not to testify must be preserved inviolate. But where the case presented by the prosecutor stands uncon-tradicted, should he not be allowed to comment on that fact to the jury in a situation where the defendant has not testified, offered no other evidence, nor elicited contradictions in the case of the State by cross-examination of witnesses for the State.

This presents competing principles which require accommodation. Before finding such accommodation we should discuss present construction placed on Code of Ala., Tit. 15, § 305. The appellate courts of this State have construed that statute strictly. As was said in Padgett, supra, it must be found that the prosecutor’s comment is virtually a direct identification of the defendant alone as the person who has not testified. See Cates, Closing Arguments In A Criminal Case, 33 Ala. Law. 87, 212 (1972). In so construing Code of Ala., Tit. 15, § 305, our earlier cases have not given sufficient emphasis to Const, of Ala. of 1901, § 6. It has long been held regarding the introduction of illegal evidence, such as coerced confessions, that the test is not whether the illegal evidence did influence the jury, but whether it might have influenced it in arriving at the verdict. Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968), vacated in part 408 U.S. 934, 92 S.Ct. 2851, 33 L.Ed.2d 747 (1972). See also Chapman, supra, and Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Under Const. of Ala. of 1901, § 6, there is no valid basis for using a different test for improper prosecutorial comment. Thus we hold today that where there is the possibility that a prosecutor’s comment could be understood by the jury as reference to failure of defendant to testify, § 6 is violated. We specifically disapprove any contrary cases which construe Code of Ala., Tit. 15, § 305, as requiring reversal only when there is virtually a direct identification of the defendant as the one who did not testify. Such a construction of Code of Ala., Tit. 15, § 305, is not countenanced by the constitutional protections afforded under Const. of 1901, § 6.

The rule of Alabama constitutional law which we adopt today may make it appear that a prosecutor could never impress the jury with the fact that his case, or any facet of it, is uncontradicted. Where the State’s evidence does stand uncontradicted, the prosecutor does have the right to point this out to the jury. In that circumstance the prosecutor could say: “There has been no refutation of any of the evidence presented by the State,” or more simply, “The State’s evidence stands uncontradict-ed,” or other appropriate comment to like effect.

But it is concomitantly the duty of the prosecutor not to, in any manner, comment on the failure of the defendant to testify. Thus if there exists the possibility that the prosecutor has commented in such a manner that the jury may understand it as a comment on the defendant’s failure to testify, it is for the trial court to cure this violation of prosecutorial duty by prompt and vigorous instructions to the jury informing them of defendant’s right not to be compelled to testify and that they may draw no presumption from his decision not to testify. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974), and cases cited therein. In this regard we note that some comments can be so prejudicial as to be ineradicable. Stain v. State, 273 Ala. 262, 138 So.2d 703 (1961); McLemore v. International Union, 264 Ala. 538, 88 So.2d 170 (1956) (noncriminal case).

Under the specific facts of this case, we have no doubt that even under the rule enunciated in Padgett, supra, reversal is required. Our interpretation of the record leads to the conclusion that the “it” in “No one took the stand to deny it" could only refer to the testimony of Deputy Phillips. The jury could well have understood this as reference to Beecher’s failure to testify. The trial court took no action to cure the effect of the prosecutor’s comment. In this posture we cannot say that Beecher received the fair and impartial trial, free of constitutional infirmity, to which he and all other persons are entitled.

II

Since there must be a new trial we deem it appropriate to consider on this record Beecher’s contention that blacks were systematically excluded from the jury ve-nire. As to this contention and on this point our decision does not differ from that of the Court of Criminal Appeals in this case, 56 Ala.App. 212, 320 So.2d 716 (8 Div. 426, 10-1-74). The decision of that court and the recommendation contained therein is very well stated in the words of Judge Wright, the author of that opinion.

“We do not consider the evidence in this case to make out a prima facie case of invidious discrimination under the Fourteenth Amendment. However, in view of the presence of reasonable basis for the question of discrimination being presented in this case, we strongly recommend to the Jury Commission of Lawrence County that every effort be promptly made to fill the jury roll with the names of all citizens of the county found to be qualified under Title 30, Sec. 21, Code of Alabama so that no colorable foundation for challenge upon grounds of discrimination may ever again be available. Such is the duty imposed by the law of the state upon the Jury Commission in every county.”

We would add the following comments: Mere statistical disparity between the number of blacks presumed eligible for jury duty and the number actually included in the jury roll does not of itself establish a primary inference of invidious discrimination. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). This is not to say that substantial disparity would not do so. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). ' These cases illustrate that each case must be considered on its own peculiar facts. Alexander, supra, does indicate that where there is opportunity for discrimination then this, coupled with statistical disparity, may be enough to establish the rebuttable inference of impermissible exclusion.

Once a movant has by proof created a primary inference of discrimination, the burden shifts to the State to show there was no discrimination. This burden is met only by a clear and convincing showing that the selection process utilized was racially neutral. It is apparent from Alexander, supra, that if opportunity for discrimination is present, we cannot consider that resort was not had to it. Thus if a trial judge is confronted by evidence which shows, at least, opportunity for discrimination and blacks were excluded from the venire then the primary inference arises. The burden then falls on the State to prove that in the process of venire selection, no consideration whatsoever was given to race. Affirmations of good faith alone, in the selection process, is insufficient to rebut the primary inference. Alexander, supra. The Const, of Ala. of 1901, § 6, guarantees that jury selection shall be free of discrimination and imposes a duty on officials who make such selection to insure that this guarantee remains inviolate. Brand v. State, 13 Ala.App. 390, 69 So. 379 (1915). See also Finnett v. State, 12 Ala.App. 237, 67 So. 768 (1915).

Reversed and remanded.

SHORES, J., and CATES, P. J. (sitting specially) concur.

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

MERRILL, BLOODWORTH and FAULKNER, JJ., dissent in part and concur in part.

MADDOX, Justice

(concurring specially.)

I think that the prosecutor’s statement in this case was a direct comment on the defendant’s failure to testify. Consequently, I think this case must be reversed. I disagree, however, with that portion of the opinion which reads as follows:

“Thus we hold today that where there is the possibility that a prosecutor’s comment could be understood by the jury as reference to failure of defendant to testify, § 6 is violated. We specifically disapprove any contrary cases which construe Code of Ala., Tit. 15 § 305, as requiring reversal only when there is virtually a direct identification of the defendant as the one who did not testify. Such a construction of Code of Ala., Tit. 15, § 305, is not countenanced by the constitutional protections afforded under Const, of 1901, § 6.”

I concur in part two of the opinion which holds that there was no showing of systematic exclusion of blaqks from the Lawrence County jury venire.

JONES, Justice

(concurring specially).

I concur with the majority opinion reversing and remanding this cause. I further agree with the rationale for its holding. I disagree with that portion of the opinion dealing with the “prompt and vigorous instructions to the jury informing them of defendant’s right not to be compelled to testify . . . ” I believe that the constitutional guarantee of the right against self incrimination is of such quality that its violation is incurable by any attempt on the part of the trial court to disabuse the minds of the jury with respect thereto. This is a bell once rung which cannot be unrung. In all other respects, I agree with the opinion.

HEFLIN, C. J., concurs.

BLOODWORTH, Justice

(concurring in part, dissenting in part).

I concur in Part II of Mr. Justice Embry’s opinion for the Court (affirming the Court of Criminal Appeals) and holding there was no showing of systematic exclusion of blacks from the Lawrence County jury venire from which the jury was chosen to try Beecher.

I dissent from the holding as to Part I because I do not think the “it” in “No one took the stand to deny if1 is sufficiently identified so that it could be said to refer to the inculpatory statement testified to by Deputy Sheriff Phillips as having been made by Beecher to him. I would not go so far as the majority do and hold that “where there is the possibility that a prosecution’s comment could be understood by the jury as reference to failure of defendant to testify, § 6 [Alabama Constitution] is violated.” I would affirm the Court of Criminal Appeals’ decision in this regard.

MERRILL and FAULKNER, JJ., concur.

      . John T. Black, Esq., District Attorney, Ninth Judicial Circuit. The State was also represented by Thomas C. Pettus, Esq., District Attorney, Thirty-Sixth Judicial Circuit.

      . It is not ¿required that final arguments be reported. Code of Ala., Tit. 13, § 262. We think the better practice in criminal cases, however, is for the trial court to require that final arguments be reported.

      . Defendant Beecher was represented by U. W. Clemon, Esq., Elaine R. Jones, Esq., and Thomas J. Divens, Esq.

      . In all candor we point out that prior cases on this question are bottomed on § 305 rather than § 6 of Const. of 1901; obviously § 305 is a legislative enactment of the principle involved which is contained in § 6 of Const. of 1901. Chamberlain v. State, 46 Ala.App. 642, 247 So.2d 683.

      . As distinguished from comment by the trial court in its instruction to the jury. Pierson v. State, 39 Ala.App. 346, 100 So.2d 47.


source: Caselaw Access Project

license: Public Domain

text:
    Johnny Daniel BEECHER v. STATE of Alabama.
    8 Div. 426.
    Court of Criminal Appeals of Alabama.
    July 10, 1975.
   After remand by Supreme Court: Reversed and remanded on authority of Ex Parte Beecher, 1975, 294 Ala. —, 320 So.2d 727.


author: CATES, Presiding Judge.

text:
    Garey Wade SMITH, alias v. STATE.
    6 Div. 973.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Hanes & Hanes, Michael F. Bolin, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   CATES, Presiding Judge.

Smith appeals from a judgment of conviction of robbery with a consequent sentence of ten years imprisonment.

I

One Bibby (sometimes called “Paul” and sometimes “Douglas”) robbed a clerk in Price’s Drug Store in Pinson of $146.00 and also took some demerol and dilaudid from one of the pharmacists. A deputy sheriff chased and caught the getaway car which was being driven by Smith, the appellant.

Smith’s evidence was that Bibby had borrowed the car. Smith testified that he knew nothing of the robbery and was unaware of Bibby’s jettisoning a pink pillow case holding the loot.

This was a classic case for a jury to decide.

After the State rested counsel for appellant moved to exclude the State’s evidence with the implied corollary that the defendant be discharged. This motion was overruled.

II

Appellant claims error in the holding of the hearing of this oral motion in the presence of the jury.

Since the occasion of the ruling below is rather succinct we quote:

“MR. PICKARD:. State rests.
THE COURT: State rests?
MR. BOLIN: Your Honor, we would like to make a motion that had better be made—
THE COURT: Well, I assume it is a motion to exclude, and as a courtesy, I usually grant it, but, since we just had the jury out, I will let you make it in the presence of the jury.
MR. BOLIN: All right. We feel that it is a motion that might need to be made before the Court only.
THE COURT: You know, I have always wanted to make some law on that point, so I will deny your motion to do it in the absence of the jury and make some law.
MR. BOLIN: All right, sir.
THE COURT: So far as I know, I am the one that started excluding them around here, when the motion was to be made, some eighteen years ago, and I don’t think it has ever been ruled on.
MR. BOLIN: Judge, we would make this motion to exclude the State’s case, and we would assert two grounds for it: * * * »

Before analyzing this ruling we think it needful to go into the nature of the motion to exclude. First, in civil cases it is of doubtful utility because of 50 Ala. Rules Civ.Proc. Second, in criminal cases it is broader in scope than a motion to suppress since it raises the entire validity of the probata to balance the allegata. It is not equivalent to a demurrer to the evidence. Hainsworth v. State, 136 Ala. 13, 34 So. 203.

Appellant would have us apply the principle of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. That doctrine arose from the need to keep a jury from possibly hearing an involuntary confession. While such a practice of having the jury leave the box no doubt makes the jurymen curious yet short of making pre-trial motions to suppress mandatory we see .no way to circumvent the withdrawal of the jurors, particularly where the defense insists. See Brown v. State, 277 Ala. 108, 167 So.2d 291(7); Duncan v. State, 278 Ala. 145, 176 So.2d 840(24).

We see no prejudice to the defendant because of the argument of the motion in the presence of the jury. They had already heard the evidence; the trial judge made no comment on the effect of the evidence; and the argument was neither extensive nor persuasive.

Perhaps the power of the Federal trial judges to sum up evidence prompted Wright, Fed.Prac. & Proc. § 462, to state that United States v. Coke, 339 F.2d 183, 2 Cir., lays down a binding practice of withdrawing the jury under Fed.R.Cr.Proc. 29 when a defendant moves for acquittal at the close of the government’s case.

However, in fairness to appellant’s contention we note that Kansas which does not allow trial judges to comment on the weight of the evidence considered that its adoption of the Federal rules may have carried the Coke rule into that State’s practice. State v. Rambo, 208 Kan. 929, 495 P.2d 101. Perhaps other appeals may dictate a stricter view to us in the future, but we have not as yet adopted the Federal Rules of Criminal Procedure.

We have examined the entire record under Code 1940, T. 15, § 389 and consider the judgment below is to be

Affirmed.

All the Judges concur.

      . Rex v. Anderson, (1929) 21 Cr.App. R 178.


author: BOOKOUT, Judge.

text:
    Betty COUGHLIN v. STATE.
    6 Div. 956.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.

      George W. Harris, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Birmingham, for the State.
   BOOKOUT, Judge.

The appellant was charged in the Criminal Court of Jefferson County with violation of Section 47, Act No. 516, Acts of Alabama 1949, approved August 30, 1949 [Title 36, Section 58 (47) Code, Recompiled 1958]: “Obedience to police officers. No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control, or regulate traffic.”

She was found guilty, fined $50 and costs and appealed to Circuit Court for a jury trial de novo which resulted in a verdict of guilty and assessment of a fine of $1 by the jury.

The appellant gave notice of appeal to this court and filed a motion for a new trial in the trial court. On March 14, 1975 the trial court overruled the motion for a new trial and assessed a hard labor sentence of ten days for failure to either pay the fine or to confess judgment and post sufficient security therefor. In addition the court found the cost to amount to $101.50 and sentenced the appellant to an additional 23 days at hard labor to pay such costs.

The testimony establishes that on July 27, 1974, a work crew from the Jefferson County Engineering Department was sent to do some work across the street from the appellant’s residence. They were digging a ditch with a backhoe machine to lay some drain pipe ■ when the appellant informed them that their work would change the flow of drainage and severely damage her property. She informed them of the existence of a Circuit Court injunction forbidding the changing of the water flow in the neighborhood. Such injunction was never introduced in the trial; neither did the trial judge take judicial notice of it as an official record of the Circuit Court.

The workmen discontinued the project temporarily while the backhoe operator called his supervisor. Two employees of the County Engineering Department, who were also specially deputized by the County Sheriff, arrived at the scene a short time later. One of them, Mr. W. D. Ragland, ordered the work to continue. The appellant then jumped into the ditch to prevent the continued digging. She was ordered by Mr. Ragland to go in her house and let the work continue, when she refused and was arrested.

The backhoe operator testified that, “I was sent out to install a drain pipe for a man on Mann Drive. I don’t recall his name. I had orders to install the pipe for him.” The work was being done on the county’s right-of-way about three feet from and parallel to Mann Drive.

W. D. Ragland testified that he was employed at that time by the County Engineering Department and his duties were to weigh trucks and, “go around and do other duties that the County Commissioners ask us to do.” In relation to traffic he said his duty was to weigh trucks and “. . . work traffic where the county works, and all other things like that.” On cross examination he said he was not responsible to Sheriff Mel Bailey but rather to a member of the County Commission.

Specifically Mr. Ragland stated: “And I instructed her to go back in the house and let him go ahead and continue with his duties. And she said she would not.”

A. J. Miller testified that he arrived at the scene with Mr. Ragland, his partner, that he was deputized but his duties were as a truck weight inspector for the County Engineering Department. He testified in part as follows:

“Q Okay. Did Mr. Ragland have some conversation with her ?
“A He asked her, he ordered back in the house.
“Q Okay. Did you hear that, were you right there?
“A Yes, sir'.
“Q. Okay. What did she do?
“A She said no, sir, she wasn’t going in the house.
“Q What happened then ?
“A He told her that she would have to go in the house or he would place her under arrest.
“Q What did she say ?
“A She said no sir, that I wasn’t.
“Q Was she placed under arrest ?
“A Yes, sir.”

On cross examination he said: “We ordered her to go back in the house.”

Mr. Bobby Whatley, a truck driver for the County Engineering Department, testified concerning the project in question as follows:

“A Well, we were laying pipe for the man across from Mrs. Coughlin, and leveling the yard up to make it look nicer, easier to mow and everthing, put in drain pipes.”

No state’s witness testified that there was any traffic congestion or traffic problem connected with the project. There was no evidence that the appellant was in any way an obstacle to traffic or that her actions impeded the flow of traffic. There was no scintilla of evidence that the alleged “deputy sheriffs” were in any way directing, controlling or regulating traffic at the scene of the work project. And indeed, there is no evidence that the digging in question was a bona fide county project, other than the mention that the ditch was on county right-of-way.

I.

Appellant contends that Messrs. Ragland and Miller were not official police officers pursuant to Act No. 516, supra, and had no authority to issue their order to her. The Attorney General argues that the two county employees were duly deputized and acting in accordance with the law. We here note that on April 28, 1975, the Attorney General issued a letter opinion to Jefferson County Sheriff Mel Bailey to the opposite effect, advising Sheriff Bailey that the County Commission had no authority to appoint special agents, commissioned as Deputy Sheriffs, to weigh trucks, effect arrests and perform other law enforcement related activities. That opinion further advised that the Sheriff of Jefferson County could only appoint deputies pursuant to the County Civil Service law and concluded that, “it is not legal and proper for you to commission these special agents hereinabove mentioned as special deputies for the Jefferson County Commission.”

We agree with the argument of the Attorney General in the instant case that the above opinion is advisory only and not legally binding. It does however raise doubt as to the legality of the use of such special deputies. Although this court has grave doubt as to the authority of the two special deputies, it is not necessary that we pass on this issue in disposing of this appeal.

II.

The case should be reversed on the failure of the state to establish that the order given the appellant was a “lawful order.” This matter was properly brought to the trial court’s attention in the appellant’s1 motion for a new trial, which was overruled. The motion should have been granted. Phifer v. City of Birmingham, 42 Ala.App. 282, 160 So.2d 898 (1964).

Act 516, supra, was enacted as a traffic control measure and as a comprehensive amendment to that body of law commonly known as “Rules of the Road.” Section 47 was not intended to, does not, and cannot give police officers unbridled power to arrest for refusal to obey any order they may choose to direct at a citizen. The title of Act 516 is as follows:

“To regulate further the use of the highways of the State by pedestrians and vehicles ; prescribing equipment of certain vehicles and further prescribing rules and regulations governing traffic and the operation of vehicles on the highways ; providing the method of enforcing this Act; and prescribing penalties for violations hereof.”

Each Act of the legislature must have but one subject which is clearly set out in its title. An Act may contain a number of minor subjects provided they are capable of being combined as to form only one major or comprehensive subject. Article 4, Section 45, Constitution of Alabama 1901; Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973). Thus we must attempt to give Section 47 a field of operation in relation to the purpose and intent of Act No. 516, or else it is constitutionally obnoxious. We therefore must construe the meaning of the Act in such a manner so as to give it a constitutional field of operation, if possible.

It is the opinion of this court that Section 47, supra, relates to the direction, control or regulation of traffic and thus for an order of a police officer to be “lawful” pursuant to that section, such order must be directly related to the direction, control and regulation of traffic.

There was no evidence that the order of the special deputies was related to the direction, control or regulation of traffic. In fact, the incident took place in a ditch some three feet off the roadway. It should also be noted that Mr. Ragland testified that his order was for the appellant to “go back in the house,” which was clearly connected in no way with traffic control. Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Cruikshank v. City of Birmingham, 43 Ala.App. 1, 178 So.2d 230 (1965); Smith v. City of Birmingham, 42 Ala.App. 467, 168 So.2d 35, (1964); Phifer, supra.

Reversed and remanded.

All the Judges concur.


author: HARRIS, Judge.

text:
    Lawrence GREEN v. STATE.
    4 Div. 358.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.

      I. Edwin Moore, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the second degree and sentenced to thirty years in the penitentiary. He was represented by retained counsel at arraignment and the trial in chief. He pleaded not guilty. After conviction he filed a motion for a new trial. Before this motion could be heard, new counsel was retained and he filed an amended motion for a new trial. No evidence was presented at the new trial hearing and the motion was overruled. Only legal arguments were made at the hearing and many of such, arguments were dehors the record. At the conclusion of this hearing, it developed that appellant was indigent and the court ordered the court reporter to furnish him a transcript at the state’s expense. Appellant’s family made known to the court that they had arranged to pay counsel to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment : Lawrence Green. Whose name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforthought (sic) killed Robert Lowery, Jr., by cutting or stabbing him with a knife or other sharp instrument, a better discretion (sic) of which is to the Grand Jury unknown, but without premeditation or deliberation, against the peace and dignity of the.State of Alabama.”

Audrey Lowery, wife of the deceased, testified that on November S, 1973, she and her husband were living in Ansley, Route 2,. in the Shellhorn Community of Pike County, Alabama. She was at her mother’s home around 4:00 p.m., when appellant, Willie James Green, and Lee Edward Williams came to her mother’s house. They sat and talked for a while. They decided to go to a nearby store and buy some beer. Audrey rode in the car with appellant and Willie James Green. As. they were going across the railroad tracks, they met her husband riding in a car driven by one William James Teague. They went to the store and bought a six-pack of beer and returned to her mother’s house. Her mother told her that her husband had been there and gotten their little girl and left word for her to come home.

A short time later her husband arrived carrying a .22 rifle. She was in the car with appellant. Her husband walked up to the car and told her to get out. She got out of the car and her husband slapped her. Appellant carne back and asked Audrey if her husband was angry because he had carried her to the store. Her husband and appellant started arguing. While they were arguing, Willie James Green and Lee Edward Williams came out and got in the argument. Appellant, Willie James and Lee Edwards all had open knives and they started backing the deceased down the road. They got the deceased down on the ground and started cutting or stabbing him. While the three men were down on the deceased, he managed to raise the rifle and fired one time. The shot killed Lee Edward Williams instantly. They got the rifle from the deceased who then walked into the woods. Audrey went into the woods trying to find her husband. She called him several times but he did not answer. She looked for him five to ten minutes and returned to her mother’s house as the officers had arrived.

Mr. Presley Davis, the Sheriff of Pike County, testified that he got a call to go to the residence of Clara Berry in the Shell-horn Community around 8:00 o’clock that night while he was on his way home. He turned his car around and went to the Berry home. When he arrived he met the wife of the deceased and two men in a car. He was told that the deceased had shot and killed the Williams boy and had run into the woods. He called the coroner to come out and examine the body of Williams. He then called for the dogs the State owned. When the dogs arrived, they were let out the truck and found the body of the deceased about fifty yards from the truck. He called the coroner back to examine the deceased. When the coroner arrived, he put the body in an ambulance and carried it to Harrison’s Funeral Home.

Dr. Richard A. Roper of the State Department of Toxicology and Criminal Investigation performed an autopsy on the bodies of both men who were killed on the night of November 5, 1973. His qualifications were proved and he testified that he had examined in excess of three hundred dead bodies. With respect to the body of Robert Lowery, Jr., he testified as follows:

“A On examining the body of Robert Lowery Jr., I found a total of five clean-cut wounds. These consisted of a slit like — slit type of wound which was an inch in length on the front of the left shoulder and five inches left of the center line of the body, and an inch and a half below the shoulder which would put it in this area here on the body. The second was a clean slit like wound one half inch long and three and seven-eighths inches below the comminemim (sic) line and two and a half inches left of the mid line which would put it in approximately this area here on the body. The third was a superficial clean cut laceration one inch in length on the left side of the neck seven inches above the com-minenim (sic) line and an inch and a half left of the mid line which would put it in the general vacinity (sic) here. The fourth wound was a clean cut laceration which measured three and a half inches in length by one inch in width. This was on the left side of the body six and one quarter inches left of the center line of the body of this line down here and four and a half inches above the comminenim line (sic) which would put this wound in this general area of the body. The fifth wound was a clean cut slit like wound about three eighths of an inch in length on the lower mid back, three eighths of an inch to the right of the center line of the back and thirteen inches below the top of the shoulder which would put it in the mid back approximately in this area here.
Q How deep were those wounds? I think you said some of them were penetrating type wounds ?
A Yes, Sir.
Q Would you be able to determine the penetration ?
A The last three wounds which I described did not involve any major arteries or.organs so, they just penetrated through the skin to the underlying muscles.
Q Now, how about the other two?
A After examining the body internally, I performed a disection (sic) of the chest and abdominal areas to examine the internal organs of the body. In doing this, I found a moderate of blood in the left side of the chest and a larger quantity of' blood in a structure known as the pericardial sac which is just in essence a bag like thing which encloses the heart and separates it from the rest of the chest cavity. I found a hemmorhagic path to extend into the body cavity from the wound in the lower anterior of the chest cavity. The wound here entered the chest cavity into the pericardial sac and into the chambers of the right ventrical into the opening of the right side of the heart. The second path was traced from the first wound which I described, the wound in the left shoulder, this wound went into the muscles tissue of the shoulder and into the — the sub-clavical artery which is the artery which goes across the shoulder and into the arm.
Q All right. Based on your examination of the body of Robert Lowery, Jr., and on your findings at that examination, did you arrive or do you have an opinion as to the cause of death ?
A Yes, Sir. I do.
Q What is that Sir?
A Based on my examination, I concluded the death resulted from hemmor-hage and shock associated with multiple stab wounds of the body in which the body and heart were penetrated.
Q Dr., were these wounds — you said multiple stab wounds, could you determine yourself from the examination what the weapon was that was used to inflict those wounds ?
A Based on my belief and opinion to the type ?
Q Yes, Sir. Would you state that please ?
A I concluded that the instrument used was a knife or knife like object.
Q A knife like object? Would that be a sharp instrument? Is that what you are saying in essence ?
A Yes, Sir.”

Sgt. B. J. Gatland who was employed as a State Criminal Investigator with the Alabama Department of Public Safety, testified that he arrived in Troy, Alabama, on November 5, 1973, at approximately 8:30 p. m. and went directly to Harrison Funeral Home; that on November 6, 1973, he interviewed appellant at the Sheriff’s office in the courthouse. Present at this interview were appellant, Sheriff Davis and Deputy Sheriff Ed Taylor. At this point a voir dire examination was conducted out of the presence and hearing of the jury.

At this hearing Gatland testified that he gave appellant the Miranda rights and warnings, that he gave him a waiver of counsel form and appellant read it and said he understood it. To be sure appellant understood the contents of the form Gatland read it to him again and he said he understood his rights and signed his name to the waiver form. He then told Gatland he wanted to make a statement. Gatland wrote the statement down just as the appellant related his participation in the killing of Robert Lowery, Jr. Gatland further testified that neither he or anyone in his presence or hearing offered appellant any hope or reward or promises or any inducement to get him to make a statement, that no one threatened him in any way, or physically abused him in any way to get him to make a statement.

Appellant testified at the voir dire hearing but not during the trial in chief before the jury. He testified that he was twenty-six years of age and went to the sixth grade and that he could read and write. He admitted he read the waiver of counsel form and that Mr. Gatland also read it to him and he signed it. He said he understood most of the language in the form but there were some words that he did not understand.

At the conclusion of his hearing, the court ruled that appellant knowingly and understandingly executed the waiver of counsel form and voluntarily signed it with full knowledge of its contents.

The jury was returned to the courtroom and after the proper predicates were laid, the Miranda card was read to the jury and the waiver of counsel form was introduced in evidence, and the statement that appellant gave Mr. Gatland was read to the jury. This statement is as follows:

“On Monday, November 5, 1973, at about 4 o’clock p. m., I went to Clara Berry’s house. My brother Samual Green brought another car and followed me over there. We went inside and drank some beer with Clara, Audrey Lowery, and Bobo Cannon. ' About 20 minutes after we got there, another brother, Willie James Green and Lee Edward Williams, my brother-in-law, Jimmie Foster, drove up to Clara’s house. About 20 minutes after that came, me and Willie James took Audrey Lowery to the store that used to be Adam’s store, for some beer. On the way to the store we saw Audrey’s husband, Robert Lowery. I asked Audrey if she wanted to go back. She said no. Go on to the store. We went on the store where Audrey bought a 6-pack of beer. We then went back to Clara’s house. About 15 minutes after we got back to Clara’s house Audrey asked me to take her home. We both went to my car and got in when Robert walked up with the rifle. It was pointed down at the ground. I asked him what he meant. I haven’t did nothing. He did not say anything to me. He walked to the other side of the car, got Audrey out and started slapping her. Me, Willie James and Lee Edward Williams started at him. He started backing down the road. I had my knife out. I don’t know if Lee Edward or Willie James had their knife out or not. We backed him down the road about 40 feet when he shot Lee Edward Williams. He then started running. Me and Willie James cought (sic) him, took the rifle away from him and I know I stuck him at least once with my knife in the chest. Willie James was hitting him, but I don’t know if he had a knife or not. Audrey was close enough to us to see us whipping him. I don’t know if she saw us whipping him or not.. Signed Lawrence Green and Presley Davis.”

Appellant did not testify nor did he offer any evidence in his behalf. The evidence for the state was-uncontradicted.

There was no motion to exclude the state’s evidence; there was no request for the affirmative charge; no exceptions were reserved to the court’s oral charge to the jury and though a motion for a new trial was filed, absolutely no testimony was offered at the hearing on such motion. In this state of the record the sufficiency of the evidence is not presented to this court for review.

A verdict of guilty of murder in the second degree was not so contrary to the great weight of the evidence as to put the trial court in error for refusing to grant a new trial. Colvin v. State, 39 Ala.App. 355, 102 So.2d 911.

A decision on motion for a new trial rests largely within the sound discretion of the trial court and, in reviewing that decision, the Court of Criminal Appeals will indulge every presumption in favor of the correction thereof. Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Hamm v. State, 38 Ala.App. 423, 87 So.2d 863, affirmed, 264 Ala. 366, 87 So.2d 865.

The corpus delicti may be proved by circumstantial as well as by direct evidence, and where there are facts introduced from which inferences of guilt may be legally drawn, it is a question for the jury as to whether the corpus delicti has been proved. Zeigler v. State, 52 Ala.App. 501, 294 So.2d 468.

In Bridges v. State, 284 Ala. 412, 225 So.2d 821, the Supreme Court said:

“The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Stewart v. State, 38 Ala.App. 365, 84 So.2d 658; Evans v. State, 39 Ala.App. 404, 103 So.2d 40, cert. denied 267 Ala. 695, 103 So.2d 44; Jones v. State, 40 Ala.App. 419, 114 So.2d 575.”

We cannot say that the verdict in this case is so patently against the weight of the evidence as to convince us that it was wrong and unjust.

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

This case is affirmed.

Affirmed.

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