text:
    Joseph Eldred SMITH, Jr. v. Mabel Geesling SMITH.
    Civ. 2328.
    Court of Civil Appeals of Alabama.
    Aug. 20, 1980.

      Stan Downey, Jr., Birmingham, for appellant.
    Jake V. Bivona and Arthur Green, Jr., Paden, Green & Paden, Bessemer, for ap-pellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The appellant contends that the amount of $160 bi-weekly for child support is an excessive amount for him to pay for his two sons, who were then five years of age and two and one-half years of age; and that the child support is especially unreasonable since he was additionally ordered to pay for their medical and hospital insurance and any excess charge not covered by insurance, including dental expenses. He was also ordered to pay the family debts, except the house mortgage, which the appellee must monthly defray.

The wife nets $78 per week at her employment, while his net was computed to be $918.66 per month. Some of her expenses for herself and the two boys were: $170 per month for house mortgage payments; $40 per week for food; $50 per month for utilities, exclusive of telephone charges; and child care of $80 per month. She testified that she needed her wages and an additional $600 per month from him in order to survive. He testified that he did not know what it would cost him to live, but his monthly payments on debts, exclusive of the mortgage, then amounted to $183.37.

Both of the children are in excellent health. A pay statement for the appellant was before the lower court which apparently listed his payroll deductions, but such statement is not included in the transcript before us. We, thus, are unaware of the cost of medical and hospital insurance for the boys since the premium therefor is paid by payroll deduction.

The trial was held personally before the circuit judge. Therefore, we cannot disturb the decision of the lower court unless the amount of the award was so unsupported by the evidence as to be unjust and palpably wrong. Pruett v. Pruett, Ala.Civ.App., 333 So.2d 580 (1976); 8 Ala. Digest, Divorce 312.6(3).

The needs of the children and the financial ability of the father to contribute to such needs must be considered in determining the amount of child support. The ordered child support amounts to thirty-eight percent of his salary.

No set formula to determine child support has been established in Alabama, but, to the contrary, every case is considered to be different and unique in itself. While established formulas provide for certainty and ease of decision, we have the best system where each decision is tailor-made for the facts in every individual case. Hence, a trial judge must, of necessity, be granted discretion in ascertaining child support amounts.

Here, we cannot declare that the trial judge failed to balance the equities according to the evidence in exercising his judicial discretion. The support judgment, though high, was not palpably wrong. Accordingly, we must affirm the judgment of the circuit court.

The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Ella Ann WILSON v. STATE.
    6 Div. 73.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Rehearing Denied April 22, 1980.

      Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of murder in the first degree of Rose Dover Johnson and fixed her punishment at imprisonment for life, the only punishment the law prescribes for such crime. She was sentenced accordingly.

The evidence shows conclusively that one Alton Wilson, the recently divorced husband of defendant, was killed during the same incident that resulted in the death of Rose Dover Johnson. In the testimony in general, the middle name of the victim was omitted, and we will do likewise. As she was the only victim alleged in the indictment, we will endeavor in our references hereinafter to the victim to limit them to Rose Johnson.

An issue presented by appellant is whether the trial court erred “in failing to grant the defendant’s motion for a new trial based on the grounds that the overwhelming weight of evidence was against the jury verdict.” In arguing this issue, appellant limits consideration to the question of defendant’s alleged insanity as presented by her plea of not guilty by reason of insanity in addition to her plea of not guilty, which included the defense of self-defense.

A large part of the testimony presented by both parties was devoted to the matter of the mental condition and related problems of defendant. Undoubtedly she had had a hard life, physically, mentally, and economically. According to the undisputed evidence, her mother passed away when she was eight years old; her father married about eight months thereafter; she then lived with her stepmother for about a year until treatment by her stepmother became unbearable. She lived with her stepmother’s sister until she was thirteen, then she married and had four children by a profligate drunkard and wife-beater for her husband. She divorced him in October of 1959 and married Alton Wilson (the other person that was killed in the same incident that resulted in the death of the victim alleged in the indictment). Their married life consisted of one calamity after another. She said that she loved him in spite of her repeated charges of recurring periods of infidelity. A divorce was obtained a short time before the alleged crime, but she said that they had attempted a reconciliation and had again engaged in conjugal embraces in anticipation of a resumption of the marital status. During this time, according to her testimony, Rose Johnson became an obstacle. She testified that she learned that Rose had been illicitly intimate with Alton, that she was pleading with Alton to desist from that relationship. She testified also that she- had discussed the matter with Rose, who was working at the Holiday Inn in Jasper, and pleaded with her not to interfere with the relationship between defendant and Alton.

Defendant further testified that on the day of the fatal incident, she went to the home of Rose to discuss with her the mentioned tripartite situation, which seemed to her to be further complicated by the claim by Alton that he was no longer involved with Rose. She had a pistol in her purse as she drove up at the home of Rose. Her testimony continued as follows:

“So, I drove up there and Al’s car was there. I pulled into the driveway .
“Q. You said Al’s car was there and you pulled in the driveway. Then what happened?
“A. I tooted the horn a little bit and Al came over to the car and he said, ‘Ann, is something wrong?’ I said, ‘No, I thought you were supposed to be at the motel.’ I said, ‘You weren’t there.’ He said, ‘Go on back to the motel and I will be there in about fifteen minutes.’ By that time Rose was walking up to the car. She said, ‘Ann, get out. We’re fixing to have a barbecue.’ I said, ‘Who is going to have a barbecue?’ She said, ‘Me and Al.’ I said, ‘Just you and Al?’ She said, ‘Yes, everybody else has gone fishing and I’m baby sitting.’ She said, ‘Get out.’ I said, ‘Well, I didn’t intend to get out.’ I said, ‘Has Al been seeing you this past three weeks?’ She said, ‘Yeah.’ I said, ‘Well, I think we need to have that talk.’ I said, ‘I think I will get out.’ So, I got out and we walked up in front of the cars and I started telling her that Al had been using her, lying to her and lying to me and telling me he wasn’t seeing her. She told me, ‘Ann, I can’t believe he has been seeing you.’ She said, T see him every night.’ She said when she would get off work at the Holiday Inn she would go down to the motel and spend most of the night with him.
“Q. What motel?
“A. P. M. Motel in Carbon Hill.
“Q. Go ahead, after she said that what? After she had told you she had been going and spending part of the night with Al what did she say?
“A. I told her I had been seeing Al every Friday afternoon. And, that we had been spending the afternoon at the motel there. She said she didn’t believe me. I said, T didn’t see him yesterday because he had to work all day.’ I said, ‘He called me and told me he had to work.’ I said, ‘But, the Friday before that I had seen him.’
“My daughter had just told me that Al had been making passes at her when they would be left alone in the house. He was trying to get her to go to bed with him. I told Rose, I said, ‘Rose, you can’t trust Al. I understand you have a young daughter.’ I said, ‘You might come home some time and catch Al in the bed with your daughter.’ I said, ‘He is that kind of a guy.’ Al got violent. He jerked my purse. He like to have wrung my arm off. I believe there is pictures here for the fact that there was a bad bruised place .
“Q. Was there a bruise on your arm?
“A. Yes, he jerked my purse.
“Q. You say he jerked your purse?
“A. He jerked my purse and I run and I heard the gun fired two or three times. I run.
“Q. Where did you run?
“A. I run around behind the car and come up on the back side on the driver’s side. He come running this way.
“Q. Where were you going when you went around the car and come up on the back side?
“A. I was going to get to the door to get away from there because he was shooting at me. I thought he was shooting at me.
“Q. You heard a gun fire?
“A. Yes.
“Q. Was there a gun in your purse?
“A. Yes. He had took my purse away from me.
“Q. Was it in your purse when he jerked it?
“A. Yes, it was.
“Q. And, you started getting in the car. What happened?
“A. There was a little scuffle or hustle around there on who was going to get in the car. I got in the car and I don’t know if he stumbled and fell back on the car but anyway there was a jar on the door and my hand got caught in the door. He put his hands in through the window and said, ‘You ain’t going nowhere.’ He said, ‘I’m going to kill you.’ He started choking me and everything started turning black. I reached to get something to defend myself and I don’t know how it happened. I never had my hand on no trigger or nothing and I come up with it and it went off.
“Q. What happened to A1 after it went off?
“A. He got hit.
“Q. All right. Did he fall there?
“A. Yes.
“Q. Where was Rose when that was going on?
“A. I didn’t see her any more til I .
“Q. Do you know where she was standing at that time?
“A. No.
“Q. Do you know whether you shot Rose or not?
“A. No, I didn’t.
“Q. Did you have your purse when you were running around the back of the car and coming up to the door?
“A. No, no, he had my purse. He took my purse away from me.
“Q. Do you know what happened after that? Did you stay there or leave there?
“A. I left.
“Q. As you left there do you know where Rose was?
“A. Yes. When I looked out I saw they were both on the ground.”

If the circumstances narrated above as a background to the fatal encounter were not enough to have tremendously upset defendant, we add that the undisputed evidence shows that she had been under treatment for diabetes, arteriosclerosis and neurosis and that she had contracted cancer of the uterus, had had a hysterectomy and surgery as to her gall bladder and a cataract operation.

Defendant presented considerable lay testimony of members of her family and others as to defendant’s mental as well as physical condition, some of it constituted strong evidence of insanity; some of it fell short of an establishment thereof.

Dr. T. Malcolm Blake testified that he had been treating defendant for several years. He said that she was mentally unsound when he saw her and that unsound mind and insanity are approximately the same thing. On the specific question as to her sanity, Dr. Blake’s testimony is summarized by appellant in brief as follows:

“Dr. Blake further testified that a person suffering from the problems that the defendant was suffering from, and being upset like she was, they might not know right from wrong, and if they did know right from wrong, then it might still be impossible for them to have made a conscious choice between the two, and they would not have been able to resist doing what they did.”

In rebuttal the State called Dr. V. Delane O’Rear, a practicing physician at Jasper. His testimony is summarized in appellant’s brief as follows:

“Dr. O’Rear testified that he graduated from Medical College in Birmingham, Alabama, in 1961, and that he was qualified and licensed to practice psychiatry in the State of Alabama. Dr. O’Rear examined the defendant and determined that in his opinion she was sane at the time of the alleged homicide.”

Notwithstanding the overwhelming weight of the evidence as to defendant’s mental problems and stress and the natural appeal for sympathy that it presents, it cannot be said that the overwhelming weight of the evidence was to the effect that defendant met the burden required of her as to a plea of not guilty by reason of insanity.

“Every person over 14 years of age charged with [a] crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.” Code of Alabama 1975, § 15-16-2.

A verdict of guilty concludes the issue of insanity at the time of the commission of the offense unless a preponderance of the evidence indicates palpable error. Orforda v. State, Ala.Cr.App., 339 So.2d 1038, cert. denied, 339 So.2d 1042 (Ala.1976).

Although no issue is raised by appellant as to the sufficiency of the evidence to show that defendant with premeditation and deliberation and with malice aforethought intentionally killed the alleged victim, it should be herein stated perhaps that the daughter-in-law of the alleged victim, who was living with her on the day of the alleged homicide, testified that she was there when defendant arrived and heard defendant tell the alleged victim that Alton had been guilty of a gross wrong and that the victim told defendant to go home and sober up, and she would talk with her when she sobered up. She further testified:

“Q. And, when you got to the front door did you have occasion to see Al and Rose?
“A. Yes.
“Q. And, the defendant?
“A. Yes.
“Q. Did you see a car out there?
“A. I saw hers.
“Q. O.K. Did you hear them say anything at that time? Either of them say anything?
“A. No. A1 just opened the door for her.
“Q. Opened the door for her. And, when A1 opened the door for her what did she do?
“A. She got in and he closed it.
“Q. And, then?
“A. Then he was reaching inside the car and that is when she shot him and he fell back out.
“Q. All right. What did Rose . Let me ask you this. When A1 was shot where was Rose, when A1 was shot?
“A. She was standing at the head of the car.
“Q. Standing at the head of the car. And, did you hear Rose say anything after the first shot was fired?
“A. She was running toward A1 saying, ‘AT or ‘Ouch.’
“Q. Did you hear any other shots?
“A. Yeah.
“Q. All together how many shots in your best judgment that you heard?
“A. It sounded like about five or six.
“Q. And, when you got back to the front door did you see the defendant, Ella Wilson?
“A. Yes, sir.
“Q. Where was she?
“A. She was backing up and then she turned around and was looking toward the house.
“Q. Were you able to see what she did then?
“A. She backed up and pulled straight out in the driveway.
“Q. After she left did you see Al and Rose again?
“A. Yeah. I went out and checked them.
“Q. You checked them. Did A1 appear to be alive or to be dead?
“A. He was breathing a little bit but he was already .
“Q. Did he say anything to you?
“A. No.
“Q. Did Rose appear to be alive or appear to be dead?
“A. She was dead.
“Q. Did you see any gun or any knife of any kind laying around Al?
“A. No.
“Q. Did you see any gun or any knife or any weapon of any kind laying around Rose Johnson?
“A. No.”

A neighbor of the alleged victim testified that shortly after she heard five rapid gunshots, defendant appeared at her door and told her that she had just shot and killed her husband and his girl friend. The defendant then made some telephone calls and afterwards talked with the witness and told her that she had gone to Rose’s home in search of her husband, who had told her to come back when she was sober. Defendant then told her that she pulled out her .38 and shot him and she also said that when she shot him, Rose Johnson said, “Oh, you shot him,” and that “she would have shot them again if she had not run out of shells.”

On the morning of the second day of the trial, defendant moved for a mistrial on the ground that the two jury bailiffs, a man and a woman, both deputy sheriffs, had been sitting in the jury room with the jury at recesses. After hearing evidence to the effect that during such time there were no discussions in the jury room as to the case in any way, the court overruled defendant’s motion for a mistrial. Such action was proper. See, King v. State, 266 Ala. 232, 238, 95 So.2d 816 (1957) and cases there cited. Furthermore, the same matter was presented and considered on defendant’s motion for a new trial, at which time nothing was presented to indicate that there was any impropriety in the bailiffs’ talking with jurors while in the jury room as to matters without any relation whatever to the case being tried. Positive and undisputed testimony taken on the hearing on the motion for a new trial disclosed affirmatively that nothing improper occurred.

The insistence by appellant that the fact that bailiffs were also deputies of the sheriff and that other deputies of the sheriff were witnesses for the prosecution and that such fact had an influence upon the jury to the injury of defendant is based upon speculation only and is definitely refuted by the undisputed evidence.

At the beginning of the trial during which it was understood that the jury was to be sequestered, defendant moved that the jury not be sent to the Holiday Inn for their lodging, contending that as the alleged victim had been employed at the Holiday Inn there was danger of contact between the jurors and personnel of Holiday Inn that would be prejudicial to defendant. It appears that the trial court carefully considered the motion and took into consideration that on a previous trial of the defendant, in which there was a mistrial by reason of her having a heart attack during the trial, the jurors had stayed at another motel but had done so contrary to objections and persistent telephone calls by members of the families of the jurors, which had come to the attention of the trial court. In ruling against defendant on its motion, the trial court indicated that it had no real choice but to lodge the jury at the Holiday Inn, but gave strict precautions against any incident that could have involved any contact between personnel of the Inn and jurors. No jurors were permitted to eat at the restaurant at the Holiday Inn; all phone calls were to be screened by the bailiff and the jurors were not allowed to go in the motel lobby. The management was informed that no employee was to attempt to contact the jury. The question was again considered by the trial court on defendant’s motion for new trial, where it was shown that the jurors were placed in rooms which faced away from the restaurant and the major complex of the motel. We find no error and no injury to defendant in the action of the trial court as to providing that the jury should stay overnight at said motel.

In defendant’s motion for a new trial, there was a ground that the court erred in overruling a motion for a continuance on the ground that a material witness for defendant, who had been subpoenaed, was unable to attend court because of illness. It appears that the absent witness was a brother of defendant, who at the time of trial was ill in Florida. It was claimed by defendant that he would have been of great help to defendant in the trial of the case and that he would testify as to defendant’s insanity. Although the record as a whole is very vague as to any definite contribution the particular witness would have made to the defense of the case, it appears that the trial court duly considered the matter in its ruling on it against defendant. There is little, if anything, to indicate that his testimony would have added significantly to the testimony of other witnesses for defendant, including members of her family, one of whom was another brother of defendant who lived in Florida. It was not claimed that the absent witness was present at the time of the alleged homicide. It is claimed that he saw some finger marks on her neck when he visited her at the jail. The record as a whole fails to show an abuse of the usual discretion vested in the trial court on a motion for a continuance.

The absence of any likelihood of prejudice of the jury toward defendant may well be reflected by the trial court’s summation on overruling defendant’s motion for a new trial:

“With regard to the preponderance of evidence of sanity, of course this I feel was very clearly presented, very clearly and ably presented by defense side and also by the State’s side. Very clearly presented and the jury determined it. It was not a matter that they could not find Mrs. Wilson not guilty by reason of insanity. I can tell you quite frankly I as the Judge was very sympathetic toward Mrs. Wilson, personally. But, the jury did not feel that way and I don’t feel that there are any legal grounds or mistakes that the Court has made that would merit granting a new trial.”

As a final contention appellant says that the trial court erred in refusing thirty written charges requested by defendant. No discussion is made as to them other than in bulk and this without reference to any particular proposition of law involved. We have considered the refused charges, along with the court’s oral charge and fourteen given charges requested by defendant, and conclude that each of the refused charges was either substantially covered by the oral charge, or one or more of the given written charges, or that it did not contain a correct principle of law applicable to the issues and evidence in the case. We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Ella Ann WILSON. (Re: Ella Ann Wilson v. State of Alabama).
    79-559.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   TORBERT, Chief Justice.

Writ denied. No opinion.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: TYSON, Judge.

text:
    Jan McCART, alias v. STATE.
    4 Div. 796.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Rehearing Denied May 27, 1980.

      L. Joel Collins of Smith, Smith & Collins, P. C., Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., J. T. Simonetti, Jr., Asst. Atty. Gen., Montgomery, for appellee.
   TYSON, Judge.

Jan McCart, also known as Valoría J. Martin, was charged with the sale of Marijuana on May 11,1979, contrary to law. The jury found her “guilty as charged,” and the trial court set sentence at eight years imprisonment in the penitentiary.

Howard Eugene “Gene Exline, Jr., testified that, in May and June, 1979, he was employed as a deputy, working in the undercover operations of the Sheriff’s Department in Russell County, Alabama. Exline indicated that he reported directly to Captain Tommy Boswell and was working with a confidential informant on May 11, 1979, when he and the informant drove to a house in Phenix City, located at 1011 16th Street, arriving there at approximately 5:20 that afternoon. Exline stated that, prior to driving there, he searched the informant and found that he only had a $20.00 bill, which was furnished to him by Exline, and had no other funds, nor did he have any kind of narcotics or drugs on his person. Upon arrival at this address, the informant got out of the car and walked to the porch where Exline observed him in conversation with the appellant, Jan McCart, also known as Valoría Jan Martin. Exline stated that a black male was seated in a chair on the porch and that he observed the informant hand the $20.00 bill to the appellant, then return to the automobile. He stated that they had been directed to drive to Columbus, Georgia, where the appellant would meet them at the corner of 14th Street and Broad within thirty minutes.

Exline stated they drove to Columbus and stopped at the location as directed. Within thirty minutes a black over white Ford with the appellant riding on the passenger’s side pulled up behind them and stopped. Exline watched the informant get out, walk back to the Ford car, lean on the window, and within just a few moments return with a clear plastic bag containing a green leafy substance. Exline indicated this was the same Ford automobile that he had seen parked at the appellant’s residence earlier that afternoon.

Exline stated that he took the plastic bag, placed it in a manila envelope, initialed it, and turned it over to Captain Thomas Boswell of the Russell County Sheriff’s Department about 7:30 that evening. He stated that he met Boswell near the State Docks about two hours after his informant handed the plastic bag containing the marijuana to him.

On cross-examination, Exline indicated that he did not hear the conversation either at the appellant’s home or later in Columbus, Georgia, when they met the appellant and the informant received the plastic bag of marijuana.

Russell County Sheriff’s Captain Thomas F. Boswell stated that the Sheriff’s Office was working with the Russell County District Attorney’s Office in May and June, 1979, investigating drug and narcotic sales in the county. Boswell indicated that Deputy Exline was working undercover with a confidential informant and that Exline was instructed to contact him and make delivery of any drug purchases. He stated that Exline wore blue jeans, had a beard, and was driving a Grand Prix Pontiac automobile which was borrowed from a used car lot in Phenix City. Boswell stated that he met Exline about 7:30 p. m. near the State Docks off Brickyard Road on the evening of May 11, 1979. Exline then handed him an envelope which contained a clear plastic bag. Inside this bag was a green leafy plant material. The two officers then initialed the envelope and sealed it. Boswell kept this in an “evidence box” in the trunk of his car until May 15, 1979, when he placed it under lock and key in the District Attorney’s evidence locker in the Courthouse. Captain Boswell stated that, on May 17,1979, he removed the envelope containing the plastic bag, again initialed it, and delivered it to Mr. Tellis D. Hudson, criminalist with the Alabama Department of Forensic Sciences. Boswell stated that he was one of two persons who had a key to the evidence locker and that the envelope had not been touched or disturbed since he placed it in the District Attorney’s locker two days before.

Tellis D. Hudson, criminalist with the Alabama Department of Forensic Science stated he worked in Auburn, Alabama, and that he ran tests on items which were sent to his department for examination. He testified that, on May 17, 1979, he had gone to the Russell County District Attorney’s Office on business and there received a manila envelope from Captain Boswell of the Sheriff’s Department which was sealed and contained his own initials and those of Captain Boswell. Hudson indicated that he opened the packet at the other end and made an examination of the green leafy plant material. Hudson stated that he ran three separate tests on the material and determined the green leafy plant material to be marijuana, 11.9 grams of same. Hudson also indicated the portion of the manila envelope which he tore in order to open same and the original packet were marked Exhibits One and Two, and these items were admitted into evidence.

The appellant made a motion to exclude the State’s evidence and also made a motion to dismiss because the State had not presented a prima facie case, and that there was a break in the chain of possession of the prohibited substance, and further that the act commenced in Alabama and ended in Georgia. These motions were overruled.

Allie Mae McCart testified that she resided at 1011 16th Street in Phenix City, and was at home the afternoon of May 11,1979, when one Mike Wash came to her front door. She stated that she saw Wash speak to her daughter, the appellant, and said, “Jan, here is twenty dollars that Buddy Berdoux borrowed, and he asked me to bring it to you” (R. p. 56). Mrs. McCart said that Wash had gone to school with her daughter. She said that Wash asked her daughter if she knew where he could sell some pot, Mrs. McCart stated the appellant told Wash that she knew where he could get rid of it and told him he should go to Paula’s Bar and Lounge. The appellant told Wash that, if he would meet her in fifteen or twenty minutes at the filling station just across the river bridge on 14th Street, she would show him where Paula’s was located. As Wash was leaving, she heard her daughter’s husband, Dennis Martin, come out of the bathroom, and heard her daughter call to him. Mrs. McCart stated that her daughter handed her the $20.00 bill and said, “Mama, this is the twenty dollars I let him have-Buddy Ber-doux have-that I was going to give to the baby. You take it and keep it and give it to the baby.”

The appellant’s husband, Dennis Martin, was called as a witness for his wife, and indicated he was willing to testify, though he was under indictment for a transaction not involved with the present case.

Norman Dennis Martin testified that he was at his mother-in-law’s home in Phenix City, Alabama, when Mike Wash drove up on the late afternoon of May 11, 1979. He saw Wash get in a Grand Prix car and drive off just as he, Martin, got out of the shower. Martin stated that his wife told him that Wash had returned the $20.00 which Buddy Berdoux had borrowed, and that neither he nor his wife gave Wash any marijuana then, nor did they later when they met Wash and Deputy Exline at the intersection of 14th Street and Broad in Columbus, Georgia. Martin indicated that they pulled into this corner, which was a used service station no longer in service, and that Mike Wash got out of the car and came over and spoke to them. Wash stated that he wanted to get rid of some marijuana, that he had one-half pound. He stated that his wife, before her marriage to him, was known as Jan McCart, but they had been married for a couple of years, and she used the name of Valoría Jan Martin. He stated that he knew Mike Wash, and that he also knew Deputy Exline when he saw him. He stated that he recognized them when they met them in Columbus and Wash asked for directions to Paula’s Grill. Martin also testified that his wife had called a Columbus police officer, named Ricky Boren, before they left home, but that they had not been able to get in touch with him. He stated that neither he nor his wife handed any package whatever to Mike Wash, but his wife simply gave Wash the directions to get to Paula’s Grill and Lounge.

Valoría Jan McCart Martin testified that she was at her mother’s home shortly after 5:00 p. m. on May 11,1979. She stated that a Grand Prix automobile drove up and Mike Wash got out, walked up on the porch, and asked her if she knew where he could get rid of some pot. She told him the only place she knew was Paula’s Bar and Grill. She stated that she had done some undercover work with a Mr. Ricky Boren of the Columbus Police Department, and that after Wash left her mother’s home she telephoned Columbus Police Headquarters and tried to get in touch with Ricky Boren. The appellant indicated that her husband had just gotten out of the shower and that he drove their Ford over to Columbus where they met Wash and his companion at the intersection of 14th Street and Broad. She stated that they ’ stopped for a few minutes and that Mike Wash came over to the car and asked her the location of Paula’s Bar and Grill. She stated that she gave him the directions and he got back into the Grand Prix automobile with his companion and drove off. The appellant insisted that neither she nor her husband gave any kind of package or plant material, or any other item, to Mike Wash or anyone else on the date in question.

On cross-examination, the appellant admitted a conviction of grand larceny on June 13,1979, in Russell County based upon a plea of guilty.

I

The appellant contends that her motion to exclude should have been granted because her testimony at trial clearly established that, if an offense were committed it was consummated in Columbus, Georgia, so that the Circuit Court of Russell County, Alabama, lacked jurisdiction and venue to try the case.

Section 15-2-3, Code of Alabama 1975 (Title 15, Section 93, Code of Alabama 1940), reads as follows:

“Same-Offense commenced in state and consummated elsewhere.
“When the commission of an offense commenced in the state of Alabama is consummated without the boundaries of the state, the offender is liable to punishment therefor in Alabama; and venue in such case is in the county in which the offense was commenced, unless otherwise provided by law.” (Citations omitted.)

It is clear under the evidence presented by the State that a $20.00 bill was handed to the appellant by the undercover informant, Mike Wash, at the home of the appellant’s mother in Phenix City, Alabama. Prior to going there, Deputy Exline testified that he had searched the informant and made certain that he carried no other money except the $20.00 bill in his wallet. He also searched him to be sure that he had no drugs or narcotics of any kind on his person.

Under the statute above quoted, the offense in question commenced in Phenix City, Alabama, at the home of the appellant’s mother at 1011 16th Street at about 5:20 in the afternoon.

Pursuant to instructions given the informant, Deputy Exline drove them to the corner of 14th Street and Broad in Columbus, Georgia, where, in less than thirty minutes, the two men saw the appellant and her husband drive up. The informant got out of the car and walked to the side of appellant’s black and white Ford automobile where he received a clear plastic bag containing some green leafy plant material. This substance was determined to be 11.9 grams of marijuana.

As may be seen from the evidence set forth above, it is clear that venue was sufficiently proven under the statute above quoted, and Green v. State, 66 Ala. 40, so that venue and the jurisdiction over the offense was properly shown to be in Russell County, Alabama. The trial court therefore properly ruled on appellant’s motion to exclude and motion to dismiss. West v. State, 54 Ala.App. 647, 312 So.2d 45, cert. denied, 294 Ala. 775, 312 So.2d 52.

II

Appellant contended that there was a break in the chain of custody of the marijuana in question because two officers had keys to the evidence locker in the District Attorney’s Office.

The evidence at trial, however, from both Captain Boswell and Criminalist Hudson, clearly established that Boswell removed the manila envelope from the locker and that such had not been opened and contained his initial and the date. Boswell and Hudson then initialed the packet, and it remained sealed until Hudson returned to his offices in Auburn, Alabama, where he opened same and made his examination. Clearly, there was no break in the chain of possession of the marijuana at issue. Hill v. State, 56 Ala.App. 369, 321 So.2d 708, cert. denied, 295 Ala. 405, 321 So.2d 713.

Ill

Appellant’s counsel calls attention to an instance which occurred during the examination of the appellant when the District Attorney asked her on cross-examination, “Isn’t it a fact, Mrs. Martin, that your husband is also charged with the sale of marijuana?” (R. p. 80).

At the outset the record discloses that the question was not answered, but that the trial court immediately sustained defense counsel’s objection and instructed the jury to disregard the question. He also asked them to put it out of their minds and asked if each of them could follow his instructions (R. pp. 80-83).

The trial court then admonished the District Attorney and the defense that indictments against persons not on trial could not be shown as a matter of law and overruled the motion for a mistrial, these rulings being had outside the presence of the jury (R. p. 83).

In Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312, this Court stated:

“. . . The witness had not answered, hence only a question was in the record. Ordinarily a mistrial is too drastic a penalty in such a posture.
“A mistrial only springs into being upon ‘a manifest necessity * * * or when the ends of justice would otherwise be' defeated.’ Code 1940, T. 30, § 100. Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501; Harnage v. State, 290 Ala. 142, 274 So.2d 352.” See also, Kendricks v. State, Ala.Cr.App., 378 So.2d 1203 (1979) and Kuczenska v. State, Ala.Cr.App., 378 So.2d 1182, cert. denied, 378 So.2d 1186 (1979).

We have carefully searched this record and find same free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Jan McCart MARTIN. (In re Jan McCART, alias v. STATE of Alabama).
    79-683.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   SHORES, Justice.

Writ denied. No opinion.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Robert Bryan SASSER, alias v. STATE.
    4 Div. 783.
    Court of Criminal Appeals of Alabama.
    April 22, 1980.
    Rehearing Denied May 27, 1980.
    Michael Crespi, Headland, George H. Jones, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant-defendant was tried on an indictment charging him with committing an assault with a deadly instrument to-wit, a rifle, upon Deputy Sheriff Bill Shaw while engaged in the active discharge of his lawful duty or duties. Defendant had pleaded not guilty and not guilty by reason of insanity. A jury found him guilty as charged in the indictment, and the court fixed his punishment at imprisonment for twelve years and sentenced him accordingly.

The cardinal issue presented by appellant is as to the sufficiency of the evidence to support the verdict, which was raised in the trial court by written request for the general charge in favor of defendant, which the trial court refused, and by a motion for a new trial that the trial court overruled.

The issue as to the sufficiency of the evidence is divided into two parts. One is whether there should have been a verdict, under the direction or instruction of the court, of not guilty, and the other as to whether there should have been a verdict, under the direction or instruction of the court, of not guilty by reason of insanity.

There is no merit, in our opinion, in the first phase of the issue presented by appellant. According to the undisputed evidence, on the morning of December 31, 1978, defendant came to the apartment of Randy Cooper, located behind the Townline Motel Restaurant in Andalusia, Alabama, and told Mr. Cooper that “the sheriff or the law was after him. And, I [Mr. Cooper] had better not let them have him.” About that time, approximately 6:30, there was a knock at the apartment door, and Mr. Cooper answered the knock and saw Deputy Sheriff Bill Shaw at the door, who asked if the defendant was there. The answer of Mr. Cooper was that “he was not there.” Officer Shaw then left the apartment. Mr. Cooper then left his apartment to make a phone call and upon his return defendant had left. Missing from the apartment at that time was a .22 250 Remington rifle, owned by Mr. Cooper. The rifle was loaded “with five rounds.” While in the apartment defendant drank five or six glasses of wine, from a bottle of wine he had with him. He stated while there that he was attempting to sell wine to the restaurant.

About 11:30 on the same morning, according to the testimony of A. A. Joseph, who lived in an apartment at the Townline Motel, he saw defendant in front of the motel; at that time defendant had a rifle in his hand with a scope on it, which was established by the evidence to have been the rifle that had been removed from Mr. Cooper’s apartment. Defendant was in the “grass area by the road” at the intersection of Highway 29 and another road in front of the motel. Defendant “would stop so often and point it [the rifle] down the road and look through the scope, aim it down the road.” A “police car” was “down the road” at the time. Soon thereafter Mr. Joseph heard some shots fired; then defendant came in the restaurant with the rifle and told Mr. Joseph “to get out of it,” which he did. Defendant told Mr. Joseph that if he let anyone into the restaurant, he would blow Mr. Joseph’s “head off.”

Mr. Earl Windham, manager of the Townline Motel, testified that between 11:00 A.M. and 12:00 Noon on December 31, 1978, while he was in his office, he saw defendant out on an island of the by-pass at the intersection of Highway 29 in front of the motel, with a rifle in his hand. He heard a shot and looked again at defendant and saw him shoot the rifle three times. It looked “like he was shooting right down the highway.” A truck drove up in front of the office, and people started getting out and running. Mr. Windham managed to get most of his customers back into their rooms in the motel. He heard sirens blowing. He saw defendant get in Mr. Windham’s truck, place his hands on the dash and find the key; defendant then drove off in the truck and went south on Highway 29. Defendant had not been registered at the motel on that occasion.

Deputy Sheriff Bill Shaw testified that on the morning of December 31, 1978, he went to the Townline Motel with a warrant for the arrest of defendant. He went to Mr. Cooper’s apartment and was informed by Mr. Cooper that defendant was not there. Deputy Shaw then returned to the jail. At approximately 11:30 A.M. he received a telephone call and returned in a “marked patrol unit” of the Covington County Sheriff’s Department. Soon after driving through the intersection, a bullet came through the door of the automobile he was driving. He further testified:

“Q. Where did it go after it came through the door?
“A. It came through right above the arm rest and struck me there (indicating), in the leg or a fragment did.
“Q. Anyway, something came through the door?
“A. Yes.
“Q. At that time, whereabouts on here were you, or your car, now? (indicating diagram)
“A. Just at the intersection there, you show a loop, I was in between, right in that area there.
“Q. Somewhere in this area here? (Mr. McGill indicating on the diagram).
“A. Right.
“Q. When this hit the car, what did you do, at that time?
“A. I tried to push the accelerator through the floorboard.
“Q. Which direction did you go?
“A. Back down the by-pass, back toward Rose’s.
“Q. All right. After you turned around and got out of the car, could you see Bobby Sasser?
“A. I could.
“Q. Where was he?
“A. In the middle of the highway.
“Q. Was he walking, running, or what was he doing?
“A. Well, he was moving around, like shuffling, like with his feet.
“Q. All right. And, at that time, what did you do?
“A. Reached around and turned on the public address system on my radio and tried to talk to him.
“Q. Did you talk to him?
“A. I considered myself talking to him.
“Q. What did you say?
“A. I said, Bobby, this is Bill Shaw. You know me. Put your gun down.
“Q. All right. What did he do, when you told him that?
“A. I didn’t get any response.
“Q. When did you next see him?
“A. Let’s see . . . When the truck was coming out from behind the motel.
“Q. When the truck came out from behind the motel, what did you do?
“A. I hollered at Trooper Fowler, motioned for him. He was below me and I motioned for him to come up this way.”

Deputy Shaw further testified that they proceeded to follow defendant in the truck, fired at him and caught up with him after defendant had wrecked the truck in which he was traveling.

As to the phase of the issue presented by appellant pertaining to the question whether there should have been a verdict, on direction or instruction of the court, that defendant was not guilty by reason of insanity, we find that there is no substantial dispute in the evidence. Defendant’s evidence on the question consisted of the testimony of Dr. Virupaksha Kothandapani, a staff psychologist at Searcy Hospital, Mount Vernon, Alabama, since 1976, who first observed and tested defendant at Sear-cy Hospital upon his admission there on October 26, 1976. He was admitted on a “probate commitment.” He testified to extensive tests and treatment of defendant at that time and on the three other occasions of three other admissions to the Searcy Hospital, including the admission soon after he was arrested for the alleged crime in the instant case. He diagnosed appellant’s illness as manic-depressive psychosis, manic type. During his lengthy testimony, he said, inter alia.:

“Psychosis is essentially characterized by loss of contact with reality, and the person is not able to think critically when he is going through psychosis. And, he is not able to act adaptively and the loss of controls are there to prevent [present] problems about his functioning. In other words, he does not function effectively. The main element of psychosis is loss of touch with reality.
“Q. Does that include the ability to distinguish between right and wrong?
“A. The person suffering from psychosis will not be able to distinguish right from wrong.
“He is acting simply on the basis of his impulse, and he is likely to go and do things to suit his own thinking which could be delusional. The delusion can take the form of grandiosity, a feeling that he is somebody like Napoleon or that he is a general or something like that.
“That is what happens in the manic phase. The person suffering from mania or manic phase is likely .to make judgments so irrational and unrealistic that a common man would be able to see that as crazy.
“Q. Now, Mr. Cook asked you during his cross-examination of it was possible that Bobby Sasser could have been acting violent on December thirty-first of last year, not because of his psychosis but because of other factors. Doctor, do you have a professional judgment as to whether it is probable that he was acting violent due to other factors, other than psychosis?
“A. I have given some considerable thought to this, and my opinion is that he was manic during that episode, alleged episode.
“Q. Is this sort of violence consistent with an ex-marine acting out his combat experience?
“A. It fits very well with the psychological picture.”

Dr. William H. Rudder, a psychiatrist engaged in private practice in Mobile and practicing two days a week at the Searcy State Hospital, said that his diagnosis of defendant was “manic depressive illness, manic type.” That diagnosis never changed. A part of his testimony was as follows:

“Q. Doctor, do you have an opinion, based on your knowledge of this case, as to whether on December thirty-first, 1978, Bobby Sasser was insane?
“A. I have an opinion, yes.
“Q. All right. What is your opinion?
“A. It is my opinion that he was insane at that time.
“Q. All right. Now, during the period of December thirty — first of 1978, until January the fifth 1979, in your opinion, could Mr. Sasser distinguish between right and wrong?
“A. You want an opinion?
“Q. Yes.
“A. I do not think he could distinguish between right and wrong.
“Q. On none of those days?
“A. Well, you asked me, you know, if we are going to have a hypothetical question we are going to have to apply it all the way across.
“Q. Okay.
“A. I couldn’t tell you that I think he could, because I don’t.
“Q. All right. That is your opinion. None of those times that he could distinguish between right and wrong?
“A. I couldn’t say that there is not a single moment, that all of that time that he wouldn’t know the difference between right and wrong, but if the Court would let me, I would like to say that .
“Q. In his mind, do you think that Bobby Sasser knew that this rifle would kill a man, if he shot the man with it and hit him in a vital spot?
“A. I think that he would probably know that fact, but he probably wouldn’t be able to correlate it and abstractly relate it to a human being, being dead or hurt.
“Q. Now, on December the thirty-first, 1978, you testified, I believe, on cross-examination that it is possible that this act, this act of shooting off the gun like that could be the conduct of violence of just a violent nature. Is it probable that it was that rather than a manifestation of the manic phase, manic depressive psychosis?
“A. Well, I have known this man now for three years. I think, it was highly probable that it was his illness.”

The evidence shows that while defendant was under treatment at Searcy Hospital his medication included Lithium, which at times would cause an improvement in his condition, such an improvement that he could be released from the hospital in custody, on one occasion, of his father and on another occasion of legal authorities.

In addition to the testimony of Dr. Ko-thandapani and Dr. William H. Rudder, on the question of defendant’s mental condition, there are more than eight hundred transcript pages, some of them typed on both sides, constituting the hospital record of defendant at Searcy Hospital. Much of it is repetitive. Our attention has been called to none that is inconsistent with constant diagnosis of manic-depressive psychosis, manic type. The record shows that to some extent this condition could be controlled and caused to improve by Lithium and other drugs, but the conclusion seems inescapable that during such times as defendant was not being properly medicated by the specific medicine prescribed, his condition would revert to manic-depressive psychosis, manic type, rendering defendant insane, suffering from a mental disease that would render him incapable of discernment between right and wrong.

The beneficent effect of medication administered by physicians and nurses at Sear-cy Hospital is vivified by the fact that the trial court had determined that defendant should be evaluated as to his mental competence to stand trial on the indictment in the instant case, and other felonies, and had ordered his transfer to Searcy Hospital for that purpose and thereafter he was found to be mentally competent to stand trial. The report of Dr. Noble Harrison, Ph.D., Unit Director, Unit IV, of the Alabama Department of Mental Health, Searcy Hospital, on March 22,1979, furnishes the most concise narrative of defendant’s mental condition and treatment to be found in any part of the record. We quote it for a better ready understanding of defendant’s mental condition and treatment:

“Mr. Robert Sasser is a 31 year old white male from Covington County who was Probate Court Committed to Searcy Hospital on 1-5-79. In addition to his Probate Commitment he has pending Circuit Court charges in Covington County, Alabama. This patient was first admitted to Searcy Hospital on Probate Court commitment from Tuscaloosa County on October 26, 1976. At that time he had reportedly taken his five year old daughter from his ex-wife’s home and had planned to travel to New York with her, had attempted suicide and believed that very important figures in his home county were against him. He was determined to embark on a one man mission to correct all of the political corruption in his home county. He was very grandiose, very hyperactive and at that time, was given a psychiatric diagnosis of Manic Depressive Illness, Manic Type. He was discharged in substantial improvement on medication and was released from the hospital on a trial visit status on April 8, 1977 and was instructed to continue to take his medication which was Lithane 600 mg. t. i. d. and to report for regular serium lithium blood levels to help regulate the medication. He was eventually discharged from the hospital on October 8,1977 after being on trial visit status for six months. His second admission was on January 5,1978 again on a Probate Court commitment from Covington County, Ala. At that time he reportedly was threatening to harm other people in his community, was destroying property, and had destroyed various fixtures in the county jail where he had been held prior to being sent to Searcy Hospital. He was seen several times by the consulting psychiatrist during this second hospitalization and was given a diagnosis of Manic Depressive Illness, Manic Type. He was placed on psychotrophic medication and after achieving a good remission on medication was again trial visited to the care of his father on April 3, 1978. He was again instructed to continue to take his medication including Eskalith, 600 mg. t. i. d., Artane, 5 mg. b. i. d. and Navane, 20 mg. q. i. d. It was recommended that he continue follow-up counseling sessions at the mental health center. The present admission followed a rather bizarre series of events, including his reportedly firing a rifle at the Deputy Sheriff and a car chase with the patient trying to evade the police in a pick-up truck and the police following him and Robert’s subsequent wrecking of his pick-up truck. This incident followed reports that Robert’s behavior had been deteriorating significantly since about Thanksgiving of 1978. He reportedly attempted to break out of jail whenever he was in the Cov-ington County Jail and was brought to this hospital with instructions to supervise him very closely as he was a high elopement risk. On his first admission to the hospital, it was necessary to keep the patient in seclusion for a period of time due to his hyperactivity, grandiosity, and his aggressiveness and hostility on the ward. He was treated quite aggressively with psychotrophic medication including Navane and Lithium Carbonate and has resulted the medication and his management on the ward, his mental condition has quite substantially improved. At the present time, he has achieved a point in remission that the staff at the hospital is seriously considering recommending that he return to court to have his day. He is not considered an elopement risk at the present time, and he is not considered a threat to the safety of himself or others. Due to the fact that his mental condition and behavior has improved remarkably, it would be the recommendations of the staff at Searcy that with the court’s permission he might be transferred from the maximum security unit to a section where less restrictive conditions for his treatment might be instituted. I would appreciate any response from the court in regard to this suggestion.”

Appellee relies heavily upon Code of Alabama 1975, § 15-16-2:

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

The cited section of the Code is to be found unchanged in each successive Code since 1896. Appellee also relies upon and quotes from Talbert v. State, 140 Ala. 96, 37 So. 78 (1904), in which it is said:

“. . . That the defendant was ‘subject to spells of insanity from time to time,’ raises no presumption in favor of the defendant that he was insane at the time of the commission of the alleged homicide, to the extent of shifting the burden to the state to prove his sanity.Porter v. State, 135 Ala. 51, 56, 33 So. 694. ...”

The instant case is not one which can be accurately described as one of “spells of insanity.” It is a case in which, according to the undisputed evidence, defendant was constantly insane except during periods in which his mental illness was controlled or made better by proper medication. The only evidence on the subject is to the effect that at the time of the alleged crime in the instant case he was not under proper medication and he was insane.

It is true, as argued by appellee, that a jury may reject all expert testimony even though it is without conflict. Christian v. State, Ala., 351 So.2d 623 (1977). However, the rule stated in Christian, and some other rules stated therein, yield to an exception. As stated in Herbert v. State, Ala.Cr.App., 357 So.2d 683, 689, cert. denied, 357 So.2d 690 (1978):

“The one exception to these rules is found in those cases where the proof of insanity is overwhelming and uncontradicted.
“ ‘Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.’
“Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934).
“A review of the case law in this state reveals that on only two occasions has this exception been invoked by an appellate court and a judgment of conviction reversed because a jury verdict was contrary to the preponderance of the evidence on the issue of insanity. Those cases are Christian, supra; and Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954). Boyle, supra, although speaking to this issue, was reversed on other grounds. After careful consideration and long deliberation, we are of the opinion that the overwhelming evidence presented by the appellant has amply overcome the presumption of sanity.”

There could well be argument on both sides of any question as to the weight of the testimony of insanity in Herbert as compared with the weight of such testimony in the instant case, but in this case, as well as in Herbert, there is no evidence by which the testimony of two unimpeached and unimpeachable experts, to the effect that defendant was insane at the time of the alleged crime, may be disparaged. The history of the same mental illness and behavior, previous commitments of defendant as insane by reason of the same mental illness, his bizarre behavior that caused all persons concerned to treat defendant on the entire morning of the alleged crime as a crazy man, rather than as a sane criminal, are supportive of the testimony of the experts who took the stand.

We repeat and apply here what was said in Herbert, supra, at 357 So.2d 690:

“The appellant’s conviction can only be sustained on the bare presumption of sanity prevailing as to every accused and afforded by statute. That presumption, being a presumption is rebuttable by clear and sufficient evidence reasonably satisfying the jury of the existence of the claimed mental incapacity. However, we consider the undisputed and substantial evidence as to the appellant’s mental defectiveness to have overcome this presumption.
“The verdict and judgment being contrary to the evidence and the legal principles applicable, this cause must be reversed for the failure of the trial judge to give the affirmative charge.”

The conclusions hereinabove reached make it unnecessary for us to attempt to resolve other issues presented by appellant.

We are not unmindful of the fact that the result of a judgment of reversal in such a case as this leaves much to be desired in the field of a proper solution of the proliferating special problems pertaining to dangerous persons, who, after being held “not guilty by reason of insanity,” are at some time thereafter released from treatment and custody and then rob and rape and kill again. Whatever the province of the judiciary as to such problems, it is definitely not the function of judges, either appellate or trial, in cases hinging upon whether one is guilty of a particular crime or not guilty by reason of insanity, to permit any such problem to sway them from the course that the law has set for them, which they themselves have uniformly declaimed as the course for triers of fact to follow. Speaking to the point nearly a half century ago, the Supreme Court of Alabama said:

“Clearly the sole question in this connection was whether defendant was ‘not guilty by reason of insanity.’ What might happen if he were sent to the insane asylum, instead of the penitentiary, should not have been thrown into the case to influence the verdict.
“Maybe the law should provide some greater safeguards, such as a judicial inquiry, before persons found not guilty of murder by reason of insanity should be discharged from the hospital for the insane; but this should not be allowed to influence juries in trials like this. [Let us now add, ‘or judges on appeal.’]. State v. Johnson, 151 La. 625, 92 So. 139.” Boyle v. State, 229 Ala. 212, 225-226, 154 So. 575, 587 (1934).

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the ■provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment below is hereby reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., not sitting.


text:
    Ex parte Robert Bryan SASSER. (Re: Robert Bryan Sasser, alias v. State of Alabama).
    79-661.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   SHORES, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: Robert Bryan SASSER, alias v. STATE of Alabama).
    79-694.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   SHORES, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Charles Garlon BARTON v. STATE.
    6 Div. 138.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied May 27, 1980.

      Roderick Beddow, Jr., of Beddow, Fullan & Vowell, P. A., Fred Blanton, Birmingham, for appellant.
    Charles A. Graddick Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of murder in the first degree of his ex-wife, Cathy Barton, and fixed his punishment at imprisonment for life. A judgment of conviction and sentence was rendered accordingly. He had pleaded not guilty and not guilty by reason of insanity.

The undisputed evidence shows conclusively that defendant killed the alleged victim with a pistol with which he was armed on the occasion of his returning two minor children of the defendant and the victim while the victim was living at the home of her mother and father. He had driven a truck there on May 21, 1978, and shot her twice with the pistol after a brief argument between the two. The first shot brought her to the ground. The second shot was fired with him standing over her. The bullet entered her skull and brain causing her death immediately. The mother of the victim who endeavored to intervene was also shot by defendant. Thereafter, the father of the victim attempted to kill defendant by shooting at him three times with a shotgun and apparently hitting him twice.

The major issue contested on the trial was as to the plea of not guilty by reason of insanity. The only contentions for a reversal relate to that issue.

Defendant presented considerable substantial evidence tending to show insanity. It came from defendant’s mother, brothers and a personal friend. It was strong evidence, clearly sufficient to make a serious issue as to the question of his sanity, even though there was no testimony of an expert to support it. Dr. V. Delane O’Rear, then engaged in the practice of medicine in Jasper, Alabama, who had been on the faculty of the Department of Psychiatry at the University Medical Center in Birmingham, conducted an examination of defendant soon after the alleged crime and testified on the trial that defendant was sane and that in his opinion he was sane at the time he shot and killed Cathy.

There was sufficient evidence to support the verdict of the jury, on the issue raised by the plea of not guilty and on the issue raised by the plea of not guilty by reason of insanity. There is no contention to the contrary.

Appellant says that the trial court was in error in refusing each of the following charges requested by defendant:

“No. 8. The Court charges the jury that you are not bound by the opinion of experts, or by the apparent weight of evidence, but you may draw your own conclusions.
“No. 10. I charge the jury that the opinion of an expert witness is not binding on the jury. You are not bound to accept it. You have the right to reach your own conclusions from all the evidence in the case and entirely disregard any opinion of an expert.”

With the exception of the immaterial difference between the use of the word, “draw,” and use of the word, “give,” No. 8 above and Charge 20 in Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942) are identical. In that case, Charge 20 was held to have been properly refused as misleading.

Charge 10 herein contains some of substantially the same language as Charge 20 in Wilson, supra, as well as some language in charges 18, 20, 21, 22, 23, 24, 25, 26, 27 and 28, in the same case, which were held to have been properly refused as misleading. In accordance therewith, we hold that the trial court was not in error in its refusal of either No. 8 or No. 10.

“. . . In making its determination, the jury may reject all expert testimony though it is without conflict. Hockenberry v. State, 246 Ala. 369, 20 So.2d 533 (1945); George v. State, 240 Ala. 632, 200 So. 602 (1941); Parrish v. State, 139 Ala. 16, 36 So. 1012 (1903). However, opinion testimony, even of experts in insanity cases, must be weighed by the jury and may not be arbitrarily ignored. Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954); Boyle v. State, 229 Ala. 212, 154 So. 575, 575 (1934).” Christian v. State, Ala., 351 So.2d 623, 624 (1977).

Appellant also complains of the court’s refusal of each of the following charges requested by defendant:

Charge No. 5:

“If, by a preponderance of the evidence, the jury are satisfied that, at the time of the fatal encounter, defendant was afflicted with a mental disease, and that by reason of the duress of such mental disease he had so far lost the power to choose between right and wrong (although he may have known right from wrong as applied to the killing), and the alleged killing was so connected with such mental disease in the relation of cause and effect as to have been the product of it solely, the jury should acquit the defendant.”

Charge No. 6:

“If the jury believe from the evidence that defendant, at the time he fired the fatal shot, was acting under the duress of mental disease which destroyed his free agency, so that his power to resist killing the deceased was at the time lost, and the killing was the offspring of such mental disease solely, they should acquit the defendant.”

Charges 5 and 6 were substantially covered by the following portions of the court’s oral charge:

“. . . If he did have such knowledge [know right from wrong] he may nevertheless be not guilty or not legally responsible if the following two conditions occur first. If by reason of duress of the mental disease he has so far lost his power to choose between right and wrong and to avoid doing the act in question or that his free agency was at the time destroyed and second, if at the time of the alleged crime, the alleged crime was so connected with such mental disease that the relation of cause and effect, as to have been the product of it solely.
“The inquiry submitted to the jury in this ease where the Defendant is not guilty by reason of insanity . . .let me reiterate these. First, was the defendant at the time of the commission of the alleged crime, as a matter of fact, afflicted with a disease of the mind, so as to be either idiotic or otherwise, insane? Second, if such be the case, did he know right from wrong as applied to the particular act in question? If he did not have such knowledge, he is not legally responsible. Third, if he did have such knowledge, he may nevertheless not be legally responsible if the two conditions occurred.
“If by reason of duress of such mental disease, he so far lost the power to choose between right and wrong and to avoid doing the act in question, or that his free agency was at the time destroyed; and, if the alleged crime was so closely connected with the mental disease that the relation to cause and effect had to have been the product of it solely.”

Refused charge 11 requested by defendant is substantially the same as, if not identical with, defendant’s requested given charge 12.

Neither the refusal of defendant’s requested charge A nor the refusal of his requested charge B was error. Each precludes consideration of whether the crime was the product “solely” of a mentally diseased condition.

“Insanity is an affirmative defense and puts the statutory burden upon the defendant to clearly prove to the reasonable satisfaction of the jury that he was so afflicted by disease of the brain when the offense was committed as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong; and the crime must have been the product solely of such mentally diseased condition. Lokos v. State, 278 Ala. 586, 179 So.2d 714; Knight v. State, 273 Ala. 480, 142 So.2d 899.” Davis v. State, Ala.Cr.App., 354 So.2d 334, 338.

We have reviewed all issues raised by appellant. In addition, we have searched the record for error prejudicial to defendant and have found none. It follows that the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving, as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte Charles Garlon BARTON. (Re: Charles Garlon Barton v. State of Alabama).
    79-681.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   TORBERT, Chief Justice.

Writ denied-no opinion.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: BOWEN, Judge.

text:
    Michael Joseph VOUDRIE v. STATE.
    6 Div. 776.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied June 17, 1980.

      Robert R. Bryan and Roger C. Appell of Bryan & Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Evans Campbell, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of his wife. A jury convicted him of murder in the second degree and fixed sentence at ninety-nine years’ imprisonment.

I

At trial the State introduced statements made by Mrs. Voudrie, the defendant’s wife, to the police after she had been shot. The defendant contends that this testimony did not qualify as a dying declaration because Mrs. Voudrie exhibited “no settled hopeless expectation of impending death.”

The uncontradicted evidence shows that on February 2, 1977, the defendant and his wife were divorced. Early Sunday morning, March 21, 1977, the defendant shot Mrs. Voudrie with a .25 caliber semiautomatic pistol. Mrs. Voudrie sustained at least five but not more than seven separate gunshot wounds. The actual cause of death was shock and hemorrhage due to these multiple gunshot wounds.

The approximate time of the shooting was never definitely established by direct testimony. However, almost immediately after the shooting, the defendant telephoned the operator and requested emergency services. While the defendant was trying to help his wife she told him, “Oh, my God, please don’t let me die.” The defendant responded, “Kay, I am doing everything I can for you, honey.” There is no showing of the exact amount of time that elapsed from the time the defendant telephoned the operator until the police arrived. However, there is no contention that this delay was significant.

Officer Dexter Ray Alexander of the Homewood Police Department received a radio dispatch at approximately 2:15 that Sunday morning. About two minutes later he arrived at Mrs. Voudrie’s home. Approximately two minutes after that Mrs. Voudrie told him, “Don’t let me die, please don’t let me die.” Officer Alexander, who was trained as a paramedic, stated that Mrs. Voudrie was “very upset.” He tried to calm her down and comfort her in order to prevent her from causing further physical damage. He told her that they were doing everything they could and that help was on the way. After she “calmed down somewhat” he asked her what had happened. Officer Alexander testified:

“She told me that her ex-husband had given her a gun to use for her protection; that he had come back and he had asked to have the gun back and that she didn’t want to give it to him but she was afraid of him; that’s why she stayed married to him as long as she did. She finally gave him the gun and the bullets and he started counting out the bullets and she asked him why he was counting out the bullets; and he said because I am going to shoot you and then she said he shot her.”

After Mrs. Voudrie made this statement, the fire department arrived and Officer Alexander let them take over.

Officer David William Slimp of the Homewood Police Department arrived at the scene at approximately 2:17 A.M.-the same time as Officer Alexander. As he approached Mrs. Voudrie she said, “Help me, don’t let me die.” When asked by defense counsel on cross examination to describe Mrs. Voudrie, Officer Slimp stated: “She was hurt. She was afraid she was going to die.” Slimp tried to help and console her. He testified, “I told her I wasn’t going to let her die. That she would feel bad in the morning but that I was going to pull her through.” In response, Mrs. Voudrie “just kept asking me not to let her die.” Officer Alexander and Harold Cooley were also present and she was talking to them: “not to let her die-she didn’t want to die.” She repeated this “five or six times at least.”

Dr. Michael Garnet Stultz first saw Mrs. Voudrie at 3:00 on Sunday morning at the University Hospital Emergency Center in Birmingham. He stated that she had been critically injured, was in a profound state of shock and required immediate surgery. In the operating room, Mrs. Voudrie suffered a cardiac arrest. Attempts were made to resuscitate her for a period of two hours. She was pronounced dead at 5:47 A.M.

The medical records from University Hospital state that Mrs. Voudrie “arrived in the Emergency Room with profound shock minutes after sustaining multiple small caliber gunshot wounds to the right neck, left flank, mid torso level about the 10th rib and posterior axillary line and also both right and left anterior thighs proximal to the knees.”

A dying declaration is:

“a statement by a person who believes that his death will certainly occur soon. He must be gripped by that despair of life which is naturally produced by an impression of almost dissolution, a dissolution so near as to cause all motives of falsehood to be superseded by the strongest inducements to strict accuracy. It has been said that the declarant, when making the statement, must have been in settled, hopeless expectation of impending death.” C. Gamble, McElroy’s Alabama Evidence, § 248.01(1) (3rd ed. 1977).

In determining whether a statement qualifies as a dying declaration, the court must determine the state of the declarant’s mind when the declarations were made.

“The purpose of the court should be to arrive at the state of the declarant’s mind when the declarations were made, taking into consideration all that was said by him, and the surrounding circumstances of the case, including the nature of the inquiry which produced decedent’s death, and his probable appreciation of its fatal character. The inquiry is, were such declarations uttered under the sense of impending dissolution-under the solemnity of the conviction that death was near at hand, and that there was no hope of the declarant’s recovery? Was he fully conscious of the fact that he could not rally from the effects of his injury,-so that he entertained no expectation of ultimate recovery? If this be true, then what he said under this conviction,-this despair of recovery-touching the homicide and its attendant circumstances, which carried with it all the solemnity of a sworn declaration, is admissible, although in point of fact there was no rapid succession of death, and no apprehension of such event immediately following.” Hussey v. State, 87 Ala. 121, 127-8, 6 So. 420, 422 (1888).

The fact that witnesses tell the de-clarant that he is not going to die, does not render the dying declaration inadmissible.

“A statement by another person, usually a physician, to the declarant that he was not going to die would not necessarily support an inference that the declarant was not conscious of imminent death, where he has himself been shown, by his own words, his conduct, the seriousness of his injuries or of his condition, or by other relevant circumstances, to have entertained no hope of recovery when he gave his dying declarations.” Annot., 53 A.L. R.3d 1196, 1242 (1973).

In this state, the rule was stated in Hall v. State, 12 Ala.App. 42, 67 So. 739 (1915), relying on Hussey, supra. Compare with Shiflett v. State, 262 Ala. 337, 343, 78 So.2d 805 (1955).

“The fact that the physician attending deceased expressed to him a hope and belief that he would recover does not render the dying declaration inadmissible; provided the deceased believed himself to be in extremis, which he in fact was.” Hall, 12 Ala.App. at 43, 67 So. at 739.

“[According to the clear preponderance of authority if deceased had the slightest hope of recovery when the declarations were made they are inadmissible.” 40 C.J.S., Homicide § 290 (1944). See Ratliff v. State, 19 Ala.App. 505, 507, 98 So. 493 (1923) (“in the absence of all hopes of recovery”). However, “it is possible that, even where declarant expressed an opinion that he would recover, the circumstances may distinctly show that such was not his real belief.” 40 C.J.S., Homicide § 295 (1944).

Wigmore states:

“[T]he belief must be, not merely of the possibility of death, nor even of its probability, but of its certainty.”
* * * * * *
“The essential idea is that the belief should be a positive and absolute one, not limited by doubts or reserves; so that no room is left for the operation of worldly motives.” V Wigmore § 1440 (3rd ed. 1944).
‡ $ * $ *
“In ascertaining this consciousness of approaching death, recourse should naturally be had to all the attending circumstances.”
Hi * * * * *
“No rule can here be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances.” V Wigmore § 1442, quoted with approval and followed in Evans v. State, 209 Ala. 563, 565, 96 So. 923 (1923), and Parker v. State, 165 Ala. 1, 9, 51 So. 260 (1909).

See also Williamson v. State, 57 Ala.App. 113, 116, 326 So.2d 303 (1976).

Mrs. Voudrie’s plea was one that perhaps almost any person in her condition would have made. Those statements, in conjunction with the circumstances of this case, including the severity of her condition, are sufficient to show that she had a set-tied, hopeless expectation of impending death. See Commonwealth v. Spear, 2 Mass.App. 687, 319 N.E.2d 455 (1974) (“Please, officer, don’t let me die. Don’t let me die.”) The statements made by Mrs. Voudrie were properly admitted into evidence as dying declarations.

II

“It is well settled that the admission in evidence of the dying declarations of the person murdered is not an infraction of the constitutional or statutory right of accused to be confronted by the witnesses against him.” 40 C.J.S. Homicide § 287(c) (1944).

This principle was recognized in Green v. State, 66 Ala. 40, 47-8, 41 Am.Rep. 744 (1880).

III

In a homicide prosecution, “threats or hostile demonstrations by the accused toward persons not connected with the deceased are not admissible.” McGuff v. State, 49 Ala.App. 88, 91, 268 So.2d 868, 871, cert. denied, 289 Ala. 746, 268 So.2d 877 (1972). This rule was not violated when the State elicited testimony that the defendant asked David Lawrence Bates, who was dating the defendant’s ex-wife, to leave Mrs. Voudrie’s home on an occasion three days before her murder. The record reveals no threat. Bates was connected with the deceased and the testimony of this event was properly admitted to show a possible motive by the defendant to kill his wife, i. e., jealousy. Gregg v. State, 106 Ala. 44, 17 So. 321 (1895); Roberts v. State, 25 Ala.App. 477, 149 So. 356 (1933).

Any fact which tends to prove the real motive of the defendant for killing the deceased is relevant evidence. Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958). The prosecution may properly show jealousy and unrequited love as motives for a homicide. Roberts v. State, 171 Ala. 12, 54 So. 993 (1911); Walker v. State, 85 Ala. 7, 4 So. 686 (1887); George v. State, 240 Ala. 632, 200 So. 602 (1941); McMurphy v. State, 4 Ala.App. 20, 58 So. 748 (1912).

IV

The trial judge did not abuse his discretion by refusing to permit the jury to see the murder weapon test fired. This was a matter within his sound discretion. McEl-roy, § 81.01 and § 208.01. At trial it was undisputed that the pistol would fire as fast as one could pull the trigger and that it would fire rapidly. However, there was never any evidence at trial that the weapon had a hair trigger or that it was capable of firing as a fully automatic pistol.

At trial it was contended by the defense that “based upon experiments with the weapon, ... an entire clip of seven bullets could be fired by even a novice in 1.5 or 1.6 seconds.” (Appellant’s brief, p. 30). Initially this matter was injected into the trial through a hypothetical question asked by defense counsel of Dr. Ronald Rivers, the chief coroner-medical examiner for Jefferson County.

“Q. I will ask you whether also, hypothetically, if it were determined that the pistol which inflicted these wounds had a hair trigger and if it were, hypothetically, presented to you that even to a novice with guns, all seven shots could have been discharged in less than two seconds, say 1.5 seconds-is it possible that the deceased could have received all of these wounds within a very brief span of timé-is that possible, say within several seconds, if she was moving and the shots were going off real quickly?
“A. Yes, sir, it is possible that she could have received all of these shots within a short period of time.”

On cross examination of Officer Slimp, defense counsel inquired:

“Q. You are aware, are you not, through your investigation, et cetera, that I test fired it in the presence of certain Home-wood officers about two weeks ago?
“A. No, sir, I am not aware of that.”

On cross examination of Officer George R. Carr, III, defense counsel pursued this matter:

“Q. The day we were all on-February 23rd, at the police academy, do you recall that I fired that pistol twice on the firing range-well, two successive times. In other words I emptied two clips in the pistol, do you recall that?
“A. That’s correct.”
$ ‡ ‡ :jc ‡
“Q. Do you recall that the first time I fired the pistol, all seven shots were fired in approximately two seconds, bang, bang, bang, bang?
“A. As fast as you could pull the trigger.”
♦ * * * ‡ *
“Q. Again, do you recall that all seven shots went in approximately one and one-half or two seconds?
“A. Yes, sir.”

Officer Carr stated that he could not testify as to the “trigger pull” of the pistol as he had never fired the weapon.

On redirect examination, Criminalist Lauden Yates, Jr., testified that a “hair trigger” indicates a minimal trigger pull. He concluded: “I would consider that the trigger pull of this weapon would be within normal limits.” On recross examination, defense counsel asked:

“Q. Do you recall the first time that I fired that pistol that I discharged all seven shots in approximately two seconds?
“A. I noted that the firing was rapid. I don’t know how many seconds it took.
“Q. And do you recall the second clip that I fired being approximately 1.5 or 1.6 seconds or slightly less than two?
“A. I didn’t time it but I remember it being rapid.”

After this testimony defense counsel requested that “we be permitted to fire this pistol in the presence of the jury at the firing range at the police academy.” This request was denied and properly so. In order to determine whether the murder weapon had a “hair trigger” each juror would have had to personally fire the weapon. Allowing the jury to see the pistol fired would only demonstrate that the weapon could be fired rapidly-a point not disputed. Expert testimony may be used as evidence as to the manner or ease of firing a weapon. Annot. 63 A.L.R.2d 1150 (1959). It was not employed by the defense in this case.

At the hearing on the motion for new trial, defense counsel contended that the pistol “does not appear to be hair triggered unless it is loaded with a clip in it.” At trial there was no evidence of this. However, at trial the defendant did testify that the pistol would not stop firing after he pulled the trigger with the safety on. He stated that the pistol “was just going off like a tommy gun.” Defense counsel had himself placed under oath and testified that he test fired the murder weapon on February 23, 1978.

“It was a full clip. I pulled the trigger once and the entire clip was emptied in approximately two seconds. Immediately after that, I commented my surprise and shock that a hand pistol could be fired so quickly ... The second clip was completely emptied by me, firing, in approximately one and a half seconds. As quickly, just about as I can say now, bang, bang, bang, bang, bang, bang, bang, it was emptied. I only pulled the trigger once. I didn’t have to calmly pull it each time. If I had, it obviously would have taken much longer. This was the basis of my Motion during the trial that the jury should have been permitted to see anyone fire the pistol with a full clip . . It’s a very hair trigger type rapid firing pistol and it is obviously not hair trigger rapid firing when it is emptied.”
* * * * * *
“Obviously it is a hair trigger pistol from by observation, being a novice, having pulled the trigger one time and it discharging all bullets with one pull . Had the jury seen a demonstration, whether you, me, or Judge Jasper, anyone pulled that trigger, when its got a full clip, you pull that trigger, it goes like a machine gun. And, it may be a semiautomatic but because of whatever was wrong with it, it goes like an automatic.”

This argument does not sustain the granting of a new trial because this evidence was available to the defendant and known by his attorney during his trial. Jarrell v. State, 355 So.2d 747 (Ala.Cr.App.1978).

V

The defense contends that the evidence of insanity is so strong that the evidence is insufficient to support the jury’s-verdict of conviction. We do not agree.

To date only five convictions have been reversed by the appellate courts of this state because the weight of the evidence on the question of insanity was so clear and strong that the statutory presumption of sanity was overcome. Christian v. State, 351 So.2d 623 (Ala.1977); Sasser v. State, Ala.Cr.App., 4 Div. 783, 387 So.2d 237 (Ms. April 22, 1980); Woods v. State, 364 So.2d 1178 (Ala.Cr.App.), cert. denied, 364 So.2d 1186 (Ala.1978); Herbert v. State, 357 So.2d 683 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978); and Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954). None of these cases has been cited by the defendant on appeal. In this case, although the evidence would authorize the jury to find the defendant not guilty by reason of insanity, it does not compel such a finding.

Dr. Emil Spillman, M.D., is a hypnoana-lyst from Atlanta, Georgia. In his opinion the shooting was accidental and the defendant “didn’t even know he was firing the shots.” Dr. Spillman placed the defendant in a hypnotic trance and then used a special technique known as age regression in which the subject actually relives a previous event or experience in his life. According to Dr. Spillman, the defendant, under hypnosis, recalled and relived the shooting. Dr. Spill-man testified:

“His wife mentioned to him the fact that there was a gun which apparently he had bought for her; that she had put it in his car. That he became extremely agitated about this, screaming something to the effect that, don’t you know that if I get drunk and they catch me, I will go to jail. He went out to his car. He got the gun, he came in, was showing her the gun. At this time actually going through the motions in front of him as if he was handling the gun, was explaining to her how to unload the gun and load the gun and pointed his arm out to the side, showing her that the safety was on and suddenly the gun went off. And as the gun went off, he began to scream, the gun is going off, the gun is going off,and apparently at this time, became completely hysterical, not realizing he was firing the gun and as the gun came up into the air, he swung it through the air just like he had that night with the gun firing all the time. He was shouting and being completely in a highly hysterical state.”

Dr. Spillman testified that at the time the shots were being fired, the defendant was “dissociative” and “really didn’t even realize where he was.” Dr. Spillman stated that the defendant did not intentionally shoot his wife and thought that the first shot was fired accidentally: “I think he was trying to show her that the safety was on, but we couldn’t elicit that.”

Dr. Spillman’s testimony was based upon the facts supplied by the defendant-that the shooting was accidental. He was never questioned about the dying declarations of the deceased and the alleged fact that the defendant, said he was going to shoot his wife before he ever pulled the trigger.

The other expert called by the defense was a psychologist, Robin D. King. He stated that, in his opinion, the defendant was suffering from a mental illness which would have severely impaired his judgment. However, King’s testimony was inconclusive. He could only say that there was a “strong likelihood” that the defendant lost control at the time of the shooting.

“I have no data that would really answer the question of accident or non-accident. My data does suggest, however, that there was a strong likelihood that however the accident started or the episode started, that it is possible, and perhaps even probable, that Michael Voudrie was not in control of those actions as the result of being in a dissociative state.”

Dr. King’s testimony, although indicative, was not conclusive of the defendant’s legal insanity. Meredith v. State, 370 So.2d 1075 (Ala.Cr.App.), cert. denied, 370 So.2d 1079 (Ala.1979).

While the jury could have found the defendant not guilty by reason of insanity, this conclusion is not compelled in this particular case. The jury did not have to arbitrarily ignore expert testimony in order to convict the defendant. The jury had a clear although difficult choice. The State presented a case of intentional murder by a jealous and intoxicated defendant who had been rejected by his ex-wife. The defense presented a case of an accidental shooting by a defendant in a “dissociative hysterical state” who did not even know what he was doing. Under the facts of this ease, the issue of the defendant’s mental condition was for the jury and no other.

VI

The defendant contends that the jury was improperly allowed to view a jacket worn by the deceased at the time of her death. The jacket had bullet holes it it and bloodstains on it.

On three separate occasions the State attempted to introduce this jacket into evidence. On each occasion the trial judge sustained the general objection of defense counsel without giving any reason for his action. At the hearing on the motion for new trial, the trial judge stated that reason.

“The exhibiting of the jacket, the Court does not feel there is any prejudicial matters presented to the jury that tried this matter as to the jacket. And, the Court subsequently, sustained counsel’s objection to the admissibility of the jacket on the failure of the State to show a chain of evidence on the jacket.”

The rule is stated in Flannagin v. State, 289 Ala. 177, 180, 266 So.2d 643, 646 (1972).

“It is a long established rule of this State that demonstrative evidence, such as clothing worn by deceased at the time of the killing, is admissible if it tends to shed light on any material inquiry, even though such evidence is only cumulative of other evidence and tends to inflame the jury.”

Criminalist Yates testified as to his examination of the jacket and the results of his findings including the location of the bullet holes and bloodstains. There was never any objection or even suggestion that the jacket was tampered with. Under these circumstances we fail to see any prejudice to the defendant. Alabama Rules of Appellate Procedure, Rule 45.

VII

The photographs of the body of the deceased were admissible even though the photographs contained marks of the surgery performed on the deceased when she was taken to the hospital following the shooting.

“The general rule in Alabama is that photographs of a murder victim taken after the performance of surgery or an autopsy are admissible in evidence even though they show the marks of incisions made for the purpose of the autopsy or resulting from the surgery where these marks are sufficiently identified and pointed out to the jury.” Gilmore v. State, 346 So.2d 1193, 1196 (Ala.Cr.App. 1977).

This rule was not violated in this case.

VIII

The defendant contends that, once the trial court permitted Dr. Spillman to testify in detail concerning a mental examination he conducted on the defendant, the tape recording of the actual interview was admissible upon proper request. The defendant’s proposition is almost correct.

Generally, sound recordings are admissible as corroborative of oral testimony. Annot., 58 A.L.R.2d 1024, § 12 (1958). As was stated in Wright v. State,, 38 Ala. App. 64, 72, 79 So.2d 66, 73, cert. denied, 262 Ala. 420, 79 So.2d 74 (1954):

“If the parties who were present when the recording was made are available and testify as to the statements made, the recording, even though inaudible, in parts, should be admitted as corroborative of the testimony of the witness or witnesses testifying to the statement.”

However, sound recordings are admissible providing a proper foundation is laid for their admission. The rules for testing the admissibility of recordings have been outlined as follows:

“(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.” 58 A.L.R.2d at 1027-8.

Thus not only is a proper request necessary but a proper predicate is necessary before a sound recording can be admitted into evidence. At the hearing on the motion for new trial it was established that Dr. Spill-man had never listened to the particular tape that was offered into evidence. It was also shown that Dr. Spillman asked the trial judge not to allow the tape into evidence. Since defense counsel did not attempt to present a proper predicate, the trial judge was correct in not allowing the jury to hear the tape.

We have searched the record for error prejudicial to the defendant and have found none. The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.

      . The shooting occurred in Mrs. Voudrie’s home. The shots awoke the defendant’s two sons. The boys came out of their bedrooms and the defendant assured them separately that “it’s going to be all right” and placed them back in bed. The defendant testified that he did this as quickly as he could and took the “quickest route” to the telephone.


text:
    Ex parte Michael Joseph VOUDRIE. (Re: Michael Joseph Voudrie v. State of Alabama).
    79-751.
    Supreme Court of Alabama.
    Aug. 29, 1980.
   SHORES, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.