text:
    Jerry Gwin GODFREY v. STATE.
    6 Div. 927.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.
    Robert R. Bryan of Bryan & Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted of assault with intent to murder and sentenced to ten years in the state penitentiary-

The State’s evidence was sufficient to prove beyond any reasonable doubt that the defendant was guilty as charged. Around 8:30 on the evening of March 27, 1978, the defendant drove to the residence of Larry G. Brakefield in Jefferson County. Mr. Brakefield and his family were renting their house from the defendant’s ex-wife. The defendant had a' 25 percent interest in the house which he had acquired through divorce proceedings. The Brakefields had never met the defendant prior to that day.

The defendant began cursing Mr. Brake-field telling him to get out of his house. Brakefield, with a loaded .22 pistol in his hip pocket, went outside and walked toward defendant’s truck “trying to get close enough to tell what he was saying”. When Brakefield was approximately thirty feet away the defendant “reached down in the seat and picked up something. When he did, I just dove for the ground and two shots went over my head.” The two shots hit the house occupied by Brakefield’s wife and nine year old daughter. Brakefield fired six shots into defendant’s truck as it was “pulling off”. In the meantime Brake-field’s eighteen year old stepson, Billy Ray Pierce, retrieved his shotgun from inside the house and “shot up in the air” in defendant’s direction.

A few minutes later the defendant drove past the Brakefield’s house firing “at least three or four” shots. Mr. Brakefield testified: “I cut out all the lights in the house, got my. wife and little girl and put them in the pantry room . . . where the bullets wouldn’t penetrate.” Mr. Brakefield and Billy next went outside with their shotguns. Again the defendant drove by the house and “started shooting again”, firing four or five times. Brakefield and his son shot at the defendant: “He shot all the way by and we started shooting back.”

The defendant managed to elude the deputy sheriffs who gave chase as he was leaving the scene, but was soon apprehended at his trailer. At that time the defendant’s “(s)peech was slurred” and there was “a strong odor of alcoholic beverages about his breath”. It was the opinion of two police officers that the defendant was “intoxicated”.

The defendant testified that Brakefield was the aggressor and that he was simply driving down the road when he was fired upon by a man with a “long gun”.

I

The defendant alleges that the trial court abused its discretion in not granting a continuance requested in order to secure the presence of a material and necessary defense witness. We find no such abuse.

The desired witness was the defendant’s sister who lived in Florida. The testimony she would allegedly give was that although “she was not present at the scene,. . she was present when the victim’s landlady made a statement that she would have the defendant killed” (the victim being Mr. Brakefield, the landlady being defendant’s ex-wife). On the morning of trial defense counsel stated: “In going over the testimony this morning, it became known to me for the first time to myself that there is a witness, a sister of the defendant, who is presently residing in Florida who can offer testimony in this case which would give a basis or give credence to the fact that the, quote victim in this case was actually the aggressor.” (emphasis added)

In overruling the defendant’s motion the trial court stated: “I don’t see how it is admissible ... I think that is hearsay.” The court did point out, however, that if the defense wanted to attempt to introduce such testimony it had a full day to have the witness available. The court did not expect to conclude the defense evidence until the next day. “I don’t see why she can’t get up here.”

We note that the offense was committed on March 27, 1978. The defendant was arraigned in the presence of his attorney on May 5 and his trial did not commence until August 16.

The cases are legion that the matter of granting a continuance in the trial of a criminal cause is clearly within the trial court’s discretion and such exercise will not be disturbed unless there be a clear showing of abuse. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Hite v. State, 282 Ala. 497, 213 So.2d 229 (1968); Rogers v. State, 365 So.2d 322 (Ala.Cr.App.), cert. denied, 365 So.2d 334 (Ala.1978). Many times it has been held to be within the trial court’s discretion to grant a continuance in the absence of a particular witness. Hannon v. State, 284 Ala. 487, 226 So.2d 90 (1969); Sanders v. State, 181 Ala. 35, 61 So. 336 (1913); Hillyer v. State, 351 So.2d 646 (Ala.Cr.App.), cert. denied, 351 So.2d 648 (Ala.1977). A continuance is properly refused where the testimony sought is not material. Hite, supra; House v. State, 139 Ala. 132, 36 So. 732 (1904). Certainly it would serve no purpose to grant a continuance where the sought-after testimony was clearly inadmissible.

It is discretionary with the trial court to deny a continuance where the absent witness is not within the jurisdiction of the court. Ward v. State, 31 Ala.App. 415, 18 So.2d 103 (1944). It has been specifically held that a defendant is entitled to a continuance so as to have compulsory process for obtaining witnesses in his favor only when it appears that the witnesses are within the court’s jurisdiction; otherwise such process would be impotent and a continuance in order to grant it would be useless. Walker v. State, 117 Ala. 85, 23 So. 670 (1898); Curtis v. State, 9 Ala.App. 36, 63 So. 745 (1913).

The above standard of broad discretion in granting a continuance is applicable when the basis for the motion is that counsel has not had sufficient time to prepare and make defense and locate certain persons. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968). Counsel is expected to exercise diligence in preparing his case for trial and for procuring necessary witnesses. Reese v. State, 32 Ala.App. 449, 26 So.2d 723 (1946); Jones v. State, 21 Ala.App. 486, 109 So. 759, cert. denied, 215 Ala. 95, 109 So. 761 (1926). A continuance is likewise discretionary where lack of preparation is caused by the accused’s refusal to cooperate with counsel. Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973).

Applying the foregoing principles of law to the present facts, we are convinced that the trial court did not abuse its discretion in denying the continuance.

II

The defendant maintains that the trial court improperly considered his arrest record and hearsay information in fixing his punishment at ten year’s imprisonment; We disagree.

A sentencing, hearing was conducted on October 6, 1978, at which time the trial court had in its possession a “report of pre-sentence investigation”. This report was provided by the State Board of Pardons and Paroles and included the defendant's “criminal history”.

Spanning eighteen years, the defendant’s' “criminal history” reveals that he has been charged in four states on thirty separate occasions with a variety of criminal activity apart from the instant offense. The charges range from assault with intent to rob and grand larceny of an automobile in the felony categories, to simple assault, public drunkenness and driving while intoxicated in the misdemeanor categories. Seventeen different offenses were charged in all. Many of these charges involved the use of alcohol. Of the thirty total offenses charged, thirteen resulted in convictions. The assault with intent to rob conviction resulted in a five year prison sentence with the defendant being placed on probation. The other convictions resulted in fines. Considering only the defendant's convictions there is little wonder the trial court felt compelled to comment, “Mr, Godfrey, with a record like this I can’t do anything except do something pretty stiff”.

The Probation and Parole Supervisor who filed the presentence investigation report noted, in her report, that the defendant “lied . . . several times”. In her opinion, the defendant “would be a poor risk for probation”.

At the sentencing hearing, the defendant made no objection to the report of presen-tence investigation. Practically the only comment made by defense counsel at the hearing was:

“Judge, I’ll admit it is not a very flowery report. Nothing in there is of a serious nature. Most of them are drinking arrests and quite a few of those were brought about by his ex-wife through warrants she issued.”

A sentence imposed by a court has been held lacking in due process where the defendant was not represented by counsel and the sentence was imposed by the trial judge under the mistaken belief that the defendant was guilty of other crimes. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Smith v. United States, 223 F.2d 750 (5th Cir. 1955). Here there is no showing that the sentencing judge was under any mistaken belief or false impression. We specifically note that the dispositions of each charge appear in the criminal history.

Our Supreme Court has stated that in a capital case where only significant criminal history may be considered as an aggravating circumstance the trial judge may not consider a pending charge in deciding whether to sentence a defendant to death or life imprisonment without parole. Cook v. State, 369 So.2d 1251, 1257 (Ala.1978). This defendant was not faced with a “life or death situation” and the trial judge was not limited to a consideration of only “significant” criminal history. In United States v. Weston, 448 F.2d 626, 633 (9th Cir. 1971), it was noted:

“A number of courts, including this court, have frequently cited Williams [Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, (1949)] for the general proposition that evidence of other criminal conduct not resulting in a conviction may be considered in imposing sentence. We have done so a number of times: See United States v. English, 9 Cir., 1970, 421 F.2d 133 (dictum); Austin v. United States, 9 Cir., 1969, 408 F.2d 808; Ward v. California, 9 Cir., 1959, 269 F.2d 906; Taylor v. United States, 9 Cir., 1950, 179 F.2d 640. None, however, is inconsistent in its actual holding with the result we reach here. Other circuits have done the same! See Jones v. United States, 1962, 113 U.S.App.D.C. 233, 307 F.2d 190; United States v. Doyle, 2 Cir., 1965, 348 F.2d 715, 720-722; United States v. Cifarelli, 2 Cir., 1968, 401 F.2d 512, 514; United States v. Marcello, 5 Cir., 1970, 423 F.2d 993, 1013; United States v. Onesti, 7 Cir., 1969, 411 F.2d 783; United States ex rel. Long v. Pate, 7 Cir., 1969, 418 F.2d 1028. We would not repudiate this rule if we could. We do not desire to transform the sentencing process into a second trial, and we believe that other criminal conduct may properly be considered, even though the defendant was never charged with it or convicted of it. Its relevance to the problem before the judge, ‘what sort of person is this defendant, and what sort of sentence should she receive?’ is apparent.”

Consequently, we do not think that the trial judge erred in considering the prior arrests of the defendant which had not resulted in convictions where there is absolutely no indication that he was under any mistaken or erroneous belief that these mere arrests were actual convictions. Furthermore, we particularly note that trial counsel made no objection to the presentence report or the comments of the trial judge during the sentencing hearing. The motion for new trial filed by defendant’s appellate counsel makes no specific mention of this matter which on appeal is now found to be objectionable.

It appears that prior to the sentencing hearing the trial judge had received some hearsay information regarding the defendant’s conduct. At the hearing the judge commented:

“since your father came down and put that fifteen thousand dollar cash bond up, you have been like a wild man around here, I get people calling me back from hospitals and everything — the doctor called me from Lloyd Noland saying you had left the hospital.”

The defendant admitted leaving the hospital and not returning and offered some excuse for his actions in so doing.

Again, no objection of any type appears in the record which is all we may consider on appeal. Had counsel any objection to either the inclusion of the arrests in the presentence investigation report or the comment by the trial judge on the hearsay evidence he should have made it when the objectionable matter occurred. At the very least the matter should have been called to the attention of the trial judge at some time and not presented for the first time on appeal. We do not think that counsel should be permitted to benefit from any alleged errors which could have easily been corrected at trial had some objection been made.

Even though the judge did allude to hearsay information during the hearing, it is evident that he considered the defendant’s behavior at the time of the offense to-be of prime importance.

“I heard the testimony, too, and I thought the testimony was reprehensible, you going back and forth shooting into that house with a child in there and a woman in there and a husband in there. I mean it was like a battle out there. I can’t do anything more about it.”

Punishment for a conviction of assault with intent to murder is “imprisonment in the penitentiary for not less than two nor more than 20 [twenty] years”. Alabama Code 1975, Section 13-1-46. A sentence of ten years’ imprisonment for such conviction is not violative of Section 15 of the Constitution, which prohibits excessive fines or cruel and unusual punishment. Parnell v. State, 35 Ala.App. 532, 49 So.2d 919 (1950). We are convinced that the trial court did not abuse its discretion in fixing the defendant’s punishment. The defendant was provided due process and equal protection of the law throughout all the proceedings incident to this case.

We have considered each issue raised by the defendant. In addition, we have searched the record as required by law. Finding no error, the judgment of the Circuit Court is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Jerry Gwin GODFREY. In re Jerry Gwin Godfrey v. State of Alabama.
    79-490.
    Supreme Court of Alabama.
    May 23, 1980.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.


author: TYSON, Judge.

text:
    Jerry Louis TUCKER v. STATE.
    6 Div. 962.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      Frederick H. Heffler, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

The indictment charged Jerry Louis Tucker, alias Kenneth Shaw, with the unlawful assault with intent to murder one Lonnie Williams. The jury found the appellant “guilty as charged,” and the trial court set sentence at eight years imprisonment. The appellant filed a motion for a new- trial, challenging the weight and sufficiency of the evidence, which was duly overruled following a hearing. This appeal follows.

Adam D. Hays, a police officer with the City of Birmingham, testified that he responded to a call to investigate a shooting at 592 Forty-first Street, North, in the City of Birmingham, at about 7:30 on the evening of June 20, 1978. Upon his arrival, Officer Hays found that one Lonnie Williams had four gunshot wounds in his legs, that a tourniquet had been applied to his right leg, that he asked about calling an ambulance and was advised that Williams’ relatives would take him to the hospital.

John Collins testified that he worked with Jerome Beaman and Lonnie Williams for McWane Pipe Company in Birmingham. Collins stated that he and Beaman went to the home of Ida Mae Williams, the mother of Lonnie Williams, about 7:00 on the evening of Friday June 20, 1978. He stated that they had been there just a short time when they saw a black male approaching with a rifle in hand, walking into the back yard of Williams’ home. Collins stated that he was seated on a glider with Lonnie Williams at that time and heard the male approach Williams, stating that, “I told you I was going get you,” and that Williams did not reply. The party with the rifle then spoke a second time and began firing. Collins stated that he ran for cover and then heard the weapon fire six or seven times. When he returned he saw that Lonnie Williams had been shot three or four times and appeared to have a wound in his right thigh, another in his knee, and a third near the ankle, and a fourth wound in his left leg. He stated that he and Beaman took a belt and put it around the right leg, making a tourniquet in an effort to stop the bleeding. He stated that Birmingham police officers came a short time later, and soon thereafter Williams was taken to a local hospital.

On cross-examination, Collins, stated that he heard the party with the rifle say, “I told you I was coming back,” and, secondly, “You don’t believe I will shoot you.” He stated that thereafter the shots commenced. He stated that bullets were zooming over his head as he ran for cover. Collins stated that he and Jerome Beamon had come to the Williams’ home .after work on the evening in question.

Jerome Beaman testified that he, John Collins and Lonnie Williams were employed at McWane Pipe Company in Birmingham, but worked in different departments. Bea-man stated that he was a brother of Lonnie Williams, and that, after getting off work, he and John Collins went over to his mother’s home on Friday, June 20, 1978. He stated that Lonnie Williams lived there with their mother and shortly after they arrived at her home, which was about 7:00 that evening, they went into the backyard and built a fire in the barbeque pit to cook. He stated that fifteen to twenty minutes later the appellant, Jerry Tucker, appeared in the backyard with what appeared to be a .22 rifle and pointed it at his brother, Lonnie Williams, then stated, “I could kill you right now.” He stated that Jerry Tucker kept talking and then repeated, “I could kill you right now,” then commenced firing at Lonnie Williams. He stated that a number of these shots hit the barbeque pit, that he ran for cover, and saw that his mother, Ida Mae Williams, was attempting to come out the back door about this time. He stated that he crawled into the house and heard five or six shots. When the shooting stopped, Beaman went outside. He saw Lonnie Williams lying on the ground and he appeared to have been shot in the right hip and both legs. He stated that John Collins put a belt around Lonnie Williams’ leg to stop the bleeding, that they put Lonnie in his automobile and he drove him to- Carraway Methodist Hospital where Lonnie remained about ten days.

On cross-examination, Beaman stated that John Collins was seated on the glider in the backyard when Jerry Tucker approached with a rifle in hand, that he first threatened Williams, then began to shoot at him. He stated that Williams was unarmed at the time.

Lonnie Williams testified that he worked with John Collins and Jerome Beaman, his brother, for McWane Pipe Company in Birmingham. Lonnie Williams stated that he lived at home with his mother at 592 Forty-first Street, North, in Birmingham, Alabama, on Friday, June 20, 1978. Shortly after 3:00 on the afternoon of June 20, 1978, one of his nieces came inside the house and called to him, stating that someone was picking on his nephew a few doors down the street. Lonnie Williams stated that he walked down the street and saw the appellant, Jerry Tucker, “about five doors away.” He stated that his nephew was there and they were arguing. Williams stated that he asked Tucker why he was “jumping on his nephew,” and that Tucker “drawed a little old knife.” He stated that he kicked the knife out of Tucker’s hand and they began to tussle. He stated that a few minutes later Tucker’s older brother, Ernest, grabbed him from behind and some others grabbed Jerry Tucker, separating them. Later that afternoon, Ernest Tucker came over to his home to talk with him and his nephew, Maurice, that they shook hands, talked with his mother, and said they were friends. This was around 5:.00. Shortly after 7:00, John Collins and his brother, Jerome Beaman, came over and they started to build a fire in the barbeque pit. Lonnie Williams stated that he was seated in a glider with John Collins when Jerry Tucker walked up with a .22 rifle in hand. He stated that Tucker “aimed the rifle at him and said, “Hey, m_f_, you think you bad don’t you.” Williams stated that he replied, “I ain’t said no.” Then Tucker said, “You’ll answer this,” and started shooting. He stated that the first shot struck him in the right hip, and he was hit four more times, once in the right thigh, another in the right knee, and a third in the right leg. A fourth shot struck him near his left knee, damaging k nerve. Williams stated that he fell to the ground and Jerry Tucker ran away. He stated that John Collins and his brother, Jerome Beaman, came up and put a belt around his right leg to stop the bleeding. Williams indicated that his brother, Jerome Beaman, drove him to the Carraway Methodist Hospital for treatment. Williams stated on cross-examination that he was unarmed, that he had not really had a fight earlier that afternoon with the appellant, but they had argued, and that he had no criminal record.

Mrs. Ida Mae Williams testified that her son, Lonnie Williams, lived with her at 592 Forty-first Street, North, in Birmingham, Alabama. She stated that, on June 20, 1978, she heard her niece call through the front door, shortly after 3:00 in the afternoon that “someone was bothering Maurice,” whom they referred to as “Baba.” As she was talking on the telephone, Lonnie left the house. A few minutes later she looked out and saw that some people were keeping Jerry in a house and that Lonnie brought Maurice home.

She stated that later that afternoon Jerry Tucker’s oldest brother, Ernest, came over and talked with her and with Lonnie, and they shook hands and left as friends. She stated that later that evening, about 7:00 or 7:15, John Collins and her son, Stanley Williams, who is also known as Jerome Bea-man, came over and were sitting on the back porch near the barbeque pit. She stated that she was inside the house but looked out and saw John Collins sitting in the glider with her son, Lonnie. In a few minutes she heard some voices and looked out, then heard some “ping, ping, ping sounds hitting the barbeque pit.” She stated that Jerome Beaman crawled through the back door and when the shooting stopped they went outside and saw Lonnie Williams lying on the ground. She stated that neither Lonnie, John Collins, nor Jerome Beaman had any kind of weapon, that they were unarmed when Jerry Tucker shot her son, Lonnie Williams. Mrs. Williams stated that Jerry Tucker had a .22 rifle in his hand when he came up and began shooting.

Birmingham Police Sergeant Selman Morgan Knight testified that he was assigned to investigate a shooting incident which occurred on June 20, 1978, at the home of Mrs. Williams on Forty-first Street, North, in Birmingham, Alabama. He stated that he began looking for the appellant, Jerry Louis Tucker, and talked with several of his relatives. Approximately ten days later, he received a telephone call and found Tucker at the home of his girl friend at 114 Village Court where he arrested him for the assault on Lonnie Williams.

The appellant made a motion for a directed verdict and for the reduction of the charge, and also made a motion to exclude. These motions were overruled.

Lonnie Williams was recalled to the stand and testified that he did not ask Jerome Beaman to come over to help him that evening. He indicated that Jerry Tucker was a few feet away when he fired the rifle at him.

Anthony Dawson testified he lived at 588 Forty-first Street, North, in Birmingham and was employed at the Airport Motel. Anthony Dawson stated that, shortly after 3:00 on the afternoon of June 20, 1978, he was seated on his back porch with his little brother Jerry, a little cousin, and a friend in the neighborhood. He stated that he saw Jerry start playing with his little brother, his cousin, and the neighbor, Maurice, who were three fifteen year old boys. He stated that, in a few minutes, he saw Maurice run into the house and return with a kitchen knife in his hand. In a few minutes he saw. Maurice’s uncle, Joe Lonnie Williams, come down the street. He stated that Jerry Tucker was cut with a knife and that it was Maurice who had the knife, that it was a kitchen knife with a five to six inch blade. He stated that Jerry was trying to get to the one who struck him with the knife, and several people grabbed Jerry and Joe Lonnie, separating them. He stated that Jerry came in his house and Joe Lonnie Williams and his nephew, Maurice, went back to their house. He stated that Jerry Tucker had a deep cut in the center of his chest after the “tussle” and was bleeding. He stated he was not present later in the day when the shooting took place. He stated that he and his uncle, Michael Dawson, were the ones who, along with Ernest Tucker, broke up the fight.

On cross-examination Anthony Dawson testified that his brother’s name was Eric, that his cousin’s name was Arthur, and they were fifteen year old boys who frequently played with Maurice Williams. He stated that Jerry Tucker, the appellant, was about twenty years of age, and that he did not actually know who cut Jerry that afternoon, but he had talked with some policemen, then later with Jerry Tucker’s lawyers about what happened.

Arthur De Witt Dawson stated he was fifteen years old and attended Hayes High School where he was in the tenth grade. He stated that, together with Eric Dawson and Maurice Williams, he was sitting on the back porch of the home where Anthony Dawson lived. He said that Jerry Tucker came over and began playing with the three fifteen year old boys. He stated that the fight started because the three of them had picked some blackberries, that they were eating them when Jerry Tucker told them to throw them out. He said they began to play and Maurice ran home and came back with a knife. He said that by the time they got back that Anthony Dawson had broken up the boys and that Maurice looked like he was going to cut Jerry Tucker. He stated that later he saw Maurice cut Jerry with a knife, and a few minutes later Joe Lonnie Williams came up, and Jerry’s older brother, and separated them. He said that Jerry Tucker was not armed, and that he went into the Dawson’s house.

Arthur Dawson stated that he, Eric, and Maurice were all in the tenth grade in high school, and that “Jerry Tucker was bigger.” He said that later he saw blood and a cut on Jerry Tucker’s chest.

Eric Dawson testified he was in the tenth grade at Hayes High School and that he was the younger brother of Anthony Dawson. He stated that Arthur Dawson was his cousin, that Arthur was also fifteen years of age, and that on the afternoon of June 20, 1978, he, Arthur and Maurice Williams had picked a lot of blackberries. They had come back to the home of Anthony Dawson. He stated that Jerry Tucker came over and began playing with them and threw out some of the blackberries. Maurice Williams went home and came back with a butcher knife in his hand.

Eric Dawson stated that his brother, Anthony, pushed Maurice away from Jerry Tucker, and that Arthur was later talking with Joe Lonnie Williams. He said that suddenly Maurice cut Jerry Tucker with the knife. He stated that the cut was on his chest and that it bled. He also stated that a friend of Maurice’s named Calvin Moore, was involved. He said that later Anthony, Ernest Tucker, and Calvin Moore helped break up the “tussle,” and that Maurice went home with Joe Lonnie Williams. Eric stated that he did not see the shooting later that night..

Arthur De Witt Dawson was recalled and testified that, on the afternoon in question, he had overheard Joe Lonnie Williams tell Jerry Tucker that, “I will shoot you first” during the time of the argument.

On cross-examination he stated that the only weapon he saw was the knife which Maurice had.

Jerry Tucker testified that he went to the home of Anthony Dawson shortly after 3:00 on the afternoon of June 20, 1978. He stated that he saw Arthur Dawson, Eric Dawson, and Maurice Williams, that they had been playing together, and that they had picked some blackberries and eaten most of them. He stated that he and Anthony Dawson told the boys, “Ain’t no sense in eating yourself sick,” and then got the bowl and threw out the blackberries because the boys had not washed them. He stated that he was just playing and joking with them and that Maurice went in the house and came back with a kitchen butcher knife. He stated that he was standing near the clothesline talking with Anthony when Maurice came back and cut him across the chest. He stated that Joe Lonnie Williams and another fellow walked up and asked him why he had jumped on his nephew, then picked up a bottle and struck him across the face. Jerry Tucker stated that he asked Joe Lonnie what he was going to do with the bottle, and that Joe Lonnie then hit him across the face. He stated that as he turned Maurice cut him. He stated that Anthony Dawson and the younger boys, and his brother, Ernest, came up and separated them. He said that he wanted to fight, and that his older brother helped separate them. He then went into the Dawson’s house with Anthony. He stated that Joe Lonnie Williams left with Maurice, and a short time later he, Jerry, went for a ride in a car with a friend who let him have a rifle. He stated he was gone about thirty minutes in the car, and when he returned he took the rifle and walked over to where Lonnie Williams was seated near his back porch. He stated that as he walked up it looked to him as though Lonnie Williams was reaching for his pocket. He said to him, “Hold it. We can talk right there where you are. at.” Jerry said that he thought Lonnie Williams “was going to be a man and fight straight up,” and he then fired at Lonnie. He stated that he fired only as Williams was rising up, and then fired again, trying to shoot him near his feet. He said that he did not intend to kill Lonnie Williams.

On cross-examination, Jerry Tucker stated that he received the rifle from his friend who took him for a ride in a car, and that it was just before dark when he got to Williams’ home.

On cross-examination, Jerry Tucker admitted that he had lived in New York City for two years, but that he had not used the name of Kenny Shaw or Tommy Williams. He stated that he had not been drinking on the day of the argument and shooting.

At the conclusion of the oral charge, both sides announced, “Satisfied.”

I

The appellant first contends that the jury which tried the case was unlawfully impaneled as the appellant was required to use the “one for one” strike method in selecting the jurors for the trial of this cause. The appellant contends this is a violation of due process and equal protection of law.

This Court has several times passed upon the constitutionality of Section 714, Volume 14, Appendix, Code of Alabama 1940, as Recompiled 1958, and has determined that such statute does not violate either the due process or the equal protection clauses of the United States Constitution, nor does such offend the Constitution of the State of Alabama, 1901. Dixon v. State, 27 Ala.App. 64, 167 So. 340, cert. denied, 232 Ala. 150, 167 So. 349 (1936); Mallory v. State, 55 Ala.App. 82, 313 So.2d 203, cert. denied, 294 Ala. 765, 313 So.2d 208 (1975); Colston v. State, 57 Ala.App. 4, 325 So.2d 520, cert. denied, 295 Ala. 398, 325 So.2d 531 (1975); Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied, 335 So.2d 688 (1976); Whisenhant v. State, Ala.Cr.App., 370 So.2d 1080, cert. denied, 370 So.2d 1106 (1979); and Williams v. State, Ala.Cr.App., 377 So.2d 634, cert. denied, 377 So.2d 639 (1979).

This “one for one” strike method, applicable to Jefferson County, was not repealed by the adoption of the Code of Alabama, 1975. See § 1-1-10, Code of Alabama, 1975; and Williams v. State, supra.

II

The appellant contends that his motions for a directed verdict and motion to exclude the State’s evidence, as well as his motion for a new trial, should have been granted by the trial court.

In Helton v. State, Ala.Cr.App., 372 So.2d 390 (1979), Judge Bowen stated the following:

“To authorize a conviction for assault with intent to murder, the evidence must show an assault With intent to take life, under circumstances which would have constituted murder if death had resulted. Hamm v. State, 56 Ala.App. 632, 324 So.2d 345 (1975). An intent to take life is an essential element of the defense. Morgan v. State, 33 Ala. 413 (1859). . Both malice and intent to murder may be inferred from the character of the assault. Diamond v. State, 219 Ala. 674, 123 So. 55 (1929); Ray v. State, 147 Ala. 5, 41 So. 519 (1906).”

Also, the intent to take a human life may be shown by inference, via thé character of the assault, the use of a deadly weapon, and the other attendant circumstances. Tolliver v. State, 50 Ala.App. 654, 282 So.2d 92 (1973); Roberts v. State, 49 Ala.App. 729, 275 So.2d 709 (1973); and Baldwin v. State, Ala.Cr.App., 342 So.2d 940 (1977).

Under the evidence presented at trial, the question of whether or not Williams was armed at the time the appellant, Jerry Tucker, approached him in the backyard of the Williams’ home was a question for the jury under all of the attendant circumstances.

As to whether or not Tucker, the appellant, intended to kill Lonnie Williams likewise was a question for the jury under all the evidence presented at trial. We are unwilling to disturb this verdict as we believe the State presented a prima facie case thus, there was no error in denying appellant’s motions. Authorities herein cited.

III

The appellant contends that the district attorney was improperly allowed to cross-examine him in that he was asked on cross-examination whether or not he had ever used the name of Kenneth Shaw or Tommy Williams while he lived in New York City during 1977.

At the outset it should be noted that both of these aliases were averred in the indictment, therefore, the questions by the district attorney were proper. Moreover, the appellant answered each question in the negative, thus, no error is shown.

IV

Finally, the appellant asserts that he should have been allowed to be sentenced under a plea bargaining arrangement which had been agreed upon prior to trial.

There is no evidence in this record to support this contention, thus, this Court may not consider matters dehors the record.

There being no testimony or other evidence with reference to this matter contained in the record, we cannot pass upon such issue. Carden v. State, Ala.Cr.App., 382 So.2d 1158, 1980. Cert. denied 382 So.2d 1162.

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

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Jerry Louis TUCKER. In re Jerry Louis Tucker v. State of Alabama.
    79-489.
    Supreme Court of Alabama.
    May 23, 1980.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. .J., and FAULKNER, JONES and EMBRY, JJ., concur.


text:
    Dee Dee SCALONI v. STATE.
    3 Div. 27.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.

      Bob E. Allen, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., Montgomery, for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Dee Dee Scaloni, was convicted for unlawful possession of heroin, a controlled substance, and sentenced to fifteen years imprisonment, and she appeals to this Court.

The appellant was represented by counsel of her choice at all proceedings in the trial court, and is represented in this Court by the same counsel appointed by the- trial court. This appeal was submitted to this Court on briefs.

The appellant asserts in her brief that her conviction should be reversed because the trial court erred; by denying the appellant’s motion to suppress based on the ground of unreasonable search and seizure; by overruling her motion to dismiss on the ground that appellant was removed from the State of Alabama by Federal Authorities causing the State of Alabama to lose jurisdiction in the case; by the court’s refusal to grant appellant’s motion for a mis-. trial on the ground that a witness was allowed to testify that the appellant appeared to be high on drugs; by the court’s refusal to grant appellant’s motion for a mistrial on the ground that state asked questions concerning, and presented evidence of crimes that were not related to the charge before the court.

Appellant filed a motion to suppress any evidence obtained against her in a search, without a search warrant, of her motel room in Travel Lodge, Montgomery, Alabama, on or about May 18,1977 because the constitutional rights guaranteed to appellant, both under the Constitution of the United States of America and the Constitution of the State of Alabama, against unreasonable search and seizures, have been violated. On Wednesday, September 21, 1977, the court proceeded to hear the evidence on the motion to suppress. This evidence consumes approximately eighty-three pages in this record, and is fully set out in the opinions of this Court in the cases of Golden, alias v. State, Ala.Cr.App., 361 So.2d 1128 by Tyson, Judge; Certiorari Denied, Ex Parte Golden, Ala., 361 So.2d 1132, and the case of Consalvo, alias v. State, Ala.Cr.App., 372 So.2d 44 by Harris, Presiding Judge; Certiorari Denied, Ex Parte Consalvo, Ala.Cr.App., 372 So.2d 49. Appellant insists that the trial court erred to her prejudice when it overruled her motion to suppress. This question together with the identical facts with reference to the search without a warrant of the same premises on the same occasion have been presented to this Court on June 10, 1978 and on May 1, 1979 by the foregoing cases of Golden v. State, and Consalvo v. State, supra. We hold that the trial court did not err to the prejudice of appellant in denying her motion to suppress. The warrantless search of the room occupied by the appellant, together with Holly Golden, and Anna Consalvo, was justified because the evidence fully sustains the trial court’s holding that probable cause existed, coupled with exigent circumstances, the destruction of the evidence. Golden v. State, supra; Consalvo v. State, supra; Daniels v. State, 290 Ala. 316, 276 So.2d 441.

The appellant further complains that the trial court erred to her prejudice by overruling her motion to dismiss this charge against her because she was convicted of illegal possession of drugs on September 28, 1977, and was not then sentenced, pending a probation report, and that before sentencing could be carried out the Federal Government removed her from the custody of the State of Alabama without her consent, nor as far as she is aware, the consent of the State of Alabama, and that her attorney was not served with the request. That through no fault of the appellant she has been prohibited from filing an appeal in this cause because of the delay in sentencing, therefore the defendant moves to dismiss the charge. The motion was filed with the Clerk of the Circuit Court on June 19, 1978, submitted to the court on June 29, 1978 without evidence being presented to the trial court in support of the motion. The court overruled the motion on June 29, 1978. On November 9, 1978 the appellant being in open court with her attorney was duly sentenced to the penitentiary for 15 years, to run consecutive with any other sentence she was then serving. On November 21,1978 appellant filed notice of appeal, and petitioned the court for a free transcript and appointment of counsel for indigent defendants which petitions were granted on November 21, 1978.

On September 28, 1977 when the jury returned its verdict finding the appellant guilty as charged, the court asked the appellant to approach the bench and advised her that the jury had found her guilty and upon the jury verdict the court finds the appellant guilty; that the court was going to delay sentencing pending receipt of a pre-sentence report, and continued the case for sentencing. No objection was made to the continuance by appellant or her counsel.

The appellant argues that the fact that the appellant was removed from the State of Alabama by Federal Authorities caused the State to lose jurisdiction in this case.

After a verdict finding a defendant guilty has been returned in open court by a jury, the court has the power to continue the cause to a later time for the purpose of sentencing the defendant. The mere absence of a defendant from the state does not of itself cause the court to lose jurisdiction of the cause of action against the defendant. Charles, A Slave v. The State, 4 Porter 107; Code of Alabama, 1975, See. 12-11-4, 12-11-8; Ex Parte Beaird, 217 Ala. 355, 116 So. 367; Jacobs v. State, 23 Ala.App. 149, 122 So. 806; Certiorari Denied, 219 Ala. 511, 122 So. 806.

Next the appellant contends that the delay between the time of the return of the jury verdict and the time of the sentence violated her constitutional rights to a speedy trial. From the record it appears that the jury verdict finding the appellant guilty of illegal possession of drugs was returned September 28, 1977; that on December 19, 1977 a writ of Habeas Corpus Ad Prosequendum was issued returnable January 15, 1978; that on June 19, 1978 motion to dismiss was filed; that on June 29, 1978 motion to dismiss overruled, and defendant ordered brought before the court for sentencing with all deliberate speed; on November 9, 1978 defendant was in open court and was sentenced.

The record before us indicates that the request for a speedy trial was not made by the appellant on any official of the State of Alabama until 4 months and 21 days before the trial was completed. We hold that without proof of facts in support of appellant’s motion to dismiss, other than a delay of approximately 13 months and 13 days between the return of the jury verdict and the imposition of a sentence on the appellant, as shown by the record before us, when no request for a speedy trial was made until 4 months and 21 days before the trial was completed, the contention of appellant that her constitutional rights to a speedy trial have been violated is not well founded. In the absence of proof of facts that appellant’s constitutional rights to a speedy trial have been violated the trial court did not err when it overruled appellant’s motion to dismiss. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 101; Washington v. State, Ala.Cr.App., 370 So.2d 342; Andrews v. State, Ala.Cr.App., 370 So.2d 1070; Certiorari Denied, Ex Parte Andrews, Ala., 370 So.2d 1075; Woods v. State, 333 So.2d 178; Sellers v. State, 48 Ala.App. 178, 263 So.2d 156.

The appellant contends that the trial court erred to her prejudice by refusing to grant a motion for a mistrial based on the ground that a witness was allowed to testify that the appellant appeared to be high on drugs. We have searched the record and do not find that a witness was allowed to testify that the appellant appeared to be high on drugs, therefore appellant’s contention that the trial court erred when a witness was allowed to testify that appellant appeared to be high on drugs is not sustained by the record.

Appellant further complains that the trial court erred to her prejudice when it overruled her motion for a mistrial on the ground that state’s counsel asked appellant questions concerning, and presented evidence of crimes that were not related to the charge before the court. The appellant was on trial for unlawfully possessing heroin, and had testified that she had never seen heroin before, and did not know it was in the room or in her purse.

During the cross-examination of appellant the following occurred:

“COURT: All right. Ask that question again.
Q Miss Scaloni, I believe you have testified that you have never seen heroin before, is that not correct?
A I have never seen it before, no, sir.
Q You have never seen heroin before?
A In pictures.
Q But you have never seen it in person before?
A No, sir.
Q And you didn’t know there was any heroin in that room, is that correct?
A No, sir.
Q And is it your testimony that you have never been present when Anna Consalvo sold heroin?
A No, sir.
Q And is it your testimony that you have never sold heroin?
A I have never sold heroin.
Q Isn’t it correct that you and Anna Consalvo sold heroin in New York City on March 15th to Agent Gene McElroy of the Drug Enforcement Administration?
A I did not.
MR. ALLEN: We object to that question on the grounds that it goes to, if indeed any such thing was done, it goes to a separate crime. I am not aware of it. It was not alleged in any indictment and it simply is irrelevant as far as this case is concerned. If he has some record of conviction then he can certainly use that to prove that she is in error, that she is lying. But unless he has that we object to it and we think that the Court should not allow it in.
COURT: Let me inquire of counsel for the State. Does counsel propose to present impeachment testimony on this point?
MR: BELL: Yes, sir.
COURT: I am afraid precedence would require the Court to overrule your objection.
MR. ALLEN: Your Honor, we would further move, because we feel it’s so highly prejudicial to the Defendant, we would move for a mistrial.
COURT: Motion is denied.
MR. ALLEN: Thank you, sir.”

State’s evidence tended to prove that one Anna Consalvo, and one Holly Golden, and the appellant were present in a motel room when the officers entered the room; that Anna Consalvo and Holly Golden were in the act of disposing of heroin by flushing it through the commode and bathtub drains; that heroin was found in a side pocket of appellant’s purse in the room at the time. That there was recovered from the room, and the bathroom, commode, tub and sewer system, heroin of the street value of approximately $175,000.00 to $250,000.00.

The indictment against the appellant charges that she did unlawfully, willfully, and feloniously possess heroin. The burden of proof was on the state to prove that the appellant had knowledge that she possessed heroin. The evidence complained of was proper for the jury to consider in deciding whether or not the appellant had knowledge that the substance found in her possession was heroin.

The rule of law that on a trial of the person for the alleged commission of a particular crime, evidence of doing other acts, which itself is a crime, is not admissible, does not work to exclude evidence of proof of all prior acts or crimes, only such as are offered for the purpose of showing defendant’s bad character. If the defendant’s commission of other acts, crimes, or misdeeds proves an element of guilt, or tends to prove guilt otherwise than as tending to prove guilt by way of bad character, then proof of such other act, crime, or misdeed, is admissible. Evidence of the accused’s commission of other acts, crimes, or misdeeds, is admissible if his knowledge of certain facts tends to prove an element of the now-charged crime and his commission of such other crime was reasonably calculated to bring to him such knowledge.

We hold that the rule which excludes evidence of other criminal acts on the trial of a particular issue is, it is true, not without limitations or exceptions. When it becomes necessary to prove a guilty knowledge on the part of the defendant, evidence of other acts committed by him, though not charged in the indictment against him, are admissible to show guilty knowledge.

We hold the trial court did not err to the prejudice of the appellant when it overruled her motion for a mistrial. Pugh v. The State, 4 Ala.App. 144, 58 So. 936; McKenzie v. State, 250 Ala. 178, 33 So.2d 488; Wilkins v. State, 29 Ala.App. 349, 197 So. 75; McDonald v. State, 57 Ala.App. 529, 329 So.2d 583; McElroy’s Alabama Evidence, Sec. 69.-01(1) (3rd ed. 1977).

As provided by Alabama Code, 1975, Title 12-22-240, we have searched the record for any other errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Emil Dempsey GUNACA v. STATE.
    6 Div. 21.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.

      James F. Burford, III, L. Drew Redden of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

The defendant, Emil Dempsey “Rick” Gu-naca, was charged in a two-count indictment with grand larceny and buying, receiving, and concealing stolen goods. The indictment reads, omitting the formal parts:

“Emil Dempsey Gunaca . . . feloni-ously took and carried away one boat of the value of TWELVE THOUSAND DOLLARS, and one trailer of the value of ONE THOUSAND DOLLARS, the personal property of Barney Padgett Marine, Inc., a corporation,
“2nd: . . . Emil Dempsey Gunaca . did buy, receive, conceal or aid in concealing one boat of the value of TWELVE THOUSAND DOLLARS and one trailer of the value of ONE THOUSAND DOLLARS the personal property of Barney Padgett Marine, Inc., a corporation, knowing that they were stolen and not having the intent to restore them .to the owner . . .”

The defendant entered a plea of not guilty upon his arraignment. Trial was held on March 5 and 6, 1979, and the jury returned a verdict of “guilty of grand larceny as charged in the indictment and fixed the value of the stolen property at $13,-000.00.” Sentence was set at four years in the State penitentiary. The defendant gave an oral notice of appeal. The defendant was represented by counsel of his choice at arraignment and trial. Said counsel, James F. Burford, III, and the Honorable L. Drew Redden represent the defendant on appeal.

Horace W. Thrasher was the manager of Barney Padgett Marine, Inc., in Irondale, on May 20, 1978. The store is located at 1907 Crestwood Boulevard, which is in Jefferson County. On that day, Saturday, Thrasher left work between 6:00 and 6:30 p. m. after having checked all the locks and gates to the building and abutting fenced compound. Prior to his departure the boats on display outside the fenced compound were placed inside the compound.

The following Monday, May 22, 1978, Thrasher arrived at the store at approximately 8:00 a. m. When he arrived the person responsible for returning the boats to their display areas outside the fenced compound reported that his key would not unlock the front gate to the compound. Thrasher went to the gate and discovered that the gate was locked with a lock other than the one Thrasher had previously used to lock the gate. Thrasher’s key did not fit the lock. He called the police because he immediately noticed that a boat was missing. This boat was described as being a “. . . tan and beige or brown boat, Century, approximately twenty-one feet in length on a tandum Tennessee drive-on trailer.” The boat had an inboard-outboard Mercruiser propulsion unit. This large boat was usually the first boat taken out of the compound in the mornings and the last put back in at night and thus should have been located just inside the gate. When the police arrived they cut the lock from the gate and entered the compound. The boat in question was nowhere to be found.

Thrasher checked' his records and ascertained that the identification number for the boat was CEB 8R 191-M78-F and for the trailer, GH-001096, Model 3600-23. The boat and trailer were valued at $12,000 to $13,000 and $1,000 respectively.

Thrasher testified that he did not know Allen Eades, Eva Karen Tew, Emil Gunaca, or Rick Gunaca. He stated that he had never seen the defendant prior to May 19, 1978. Thrasher further testified that neither he nor anyone in his presence or to his knowledge had given anyone else permission to remove that boat from the compound.

On cross-examination Thrasher testified that when the boat disappeared there were no salesmen working for him, only “ . . . a mechanic and two boys in the back and none of them had keys.” He stated that he did not have a salesman by the name of Bill Gilbert nor had he ever heard of a Bill Gilbert. Thrasher testified that it was common for boats to be without a propeller unless they are “ . . ready for sale . . . fully servicable.”

Walter Wall is the manager of the Point Clear Marina in Baldwin County and was so employed on July 6, 1978. On that day a man who identified himself as Allen Eades of Jasper, Alabama, asked Wall about renting a slip for a boat that he wished to sell. Eades was accompanied by a female. Wall identified the defendant in court as the man who called himself Eades. Wall rented the defendant a slip on a day to day basis. The defendant filled out a card with his name and address which Wall later gave to the police department. The defendant stated to Wall that he intended to advertise the boat in the newspaper. The following day, July 7,1978, the defendant returned to put the boat in the water where it remained until the defendant was arrested.

Jerry Anderson is a sergeant with the Fairhope Police Department and was so employed on July 17, 1978. On that day Anderson went to the Point Clear Marina and after talking with Wall, he went to the boat stall where he saw a twenty-one foot Century boat. The boat was brown and tan with an inboard-outboard engine. Wall had pointed this boat out to Anderson. Anderson boarded the boat to look for the boat’s serial number. He could not find the number then but was able to do so after the marina police told him where to look. After calling the marina police, Anderson boarded another boat and pulled it around behind the boat in question where he found the number CEB 8R 191-M78-F near the water line. The number was located on the rear starboard side of the boat which was the side of the boat opposite the walkway. Anderson located the trailer which was in the parking area. The number on the trailer was GH001096.

After locating these serial numbers Anderson checked these numbers with the’ computer which indicated that these items were stolen from Irondale, Alabama. Anderson then contacted Horace Thrasher who gave him a general description of the boat stolen. The marina police went to the marina and disabled the boat after Anderson notified them of its location. The boat was registered by Eva Karen Tew. The defendant was arrested on July 20, 1978. Anderson first saw him on that day as the defendant stood in the parking area of the marina. The defendant and Miss Tew were taken to the police department and were placed under arrest there.

Elbert Tarver is a patrolman with the Fairhope Police Department and was so employed on July 20, 1978. On that day he went to the Point Clear Marina around 9:30 a. m. He went to the slip where the boat in question was docked and there he found the defendant and a female. Officer Tarver asked the defendant and the woman to get off the boat. After they complied, Tarver asked the defendant who owned the boat. The defendant replied “a friend.” Tarver asked him why he was on the boat and the defendant stated that he was just looking. Tarver asked for and received the defendant’s driver’s license. Shortly thereafter Tarver and Anderson took the defendant and Miss Tew to the police department.

The State rested its case at this point. The defendant moved to exclude the State’s evidence for failure to prove a prima facie case of either count of the indictment. The motion was overruled.

Stephen Frank Weller of Apartment 27, Bent Tree Apartments, Tuscaloosa, manages the cafe and lounge in Tuscaloosa named Solomon’s. He has known the defendant for the past eight or ten years. On May 20, 1978, Weller and the defendant were together at Weller’s property on Lake Tuscaloosa. They arrived around noon and left around dark, maybe 7:00 p. m. They fished some and generally cleaned up around a picnic table. Upon leaving the lake property Weller and the defendant proceeded back to the apartments. They stopped en route for some barbeque at Archibald’s in Northport, an establishment well known for its excellent food and its atmosphere. Weller and the defendant arrived at Weller’s apartment around 8:00 p. m. After they arrived Weller stated that Eva Karen Tew drove up with a boat in tow. He described the boat as being about twenty feet long, light in color with an inboard-outboard engine. Weller stated that the defendant “ . . . was, I think, sort of surprised, to see her pulling up with a big boat.” Tew drove up around 9:00 or 9:15 p. m. Later that night Weller said that the defendant and Tew came to Solomon’s where they stayed until after closing, some time after 1:00 a. m. When Weller returned to the apartment around 3:00 or 4:00 a. m., the boat and the couple were not there. They had left the boat there earlier in the evening before they came to Solomon’s.

On cross-examination Weller testified that Miss Tew stated that she bought the boat from someone in Birmingham. Weller never saw the boat again although he and the defendant talked about how nice it would be to go out in it. Weller stated that the defendant always referred to the boat as belonging to Miss Tew.

The defendant testified in his own behalf. He stated that he lives with his mother at 1901 Fifth Avenue, East, in Tuscaloosa and is married to Eva Karen Tew. They were married in September of 1978. He testified that he was with Weller on May 20,1978, at Weller’s lake property where they fished and cleaned up a bit. He stated that they left the lake at about dark, en route to the apartments. They stopped at Archibald’s, finally reaching the apartments between 8:00 and 9:00 p. m.

After the defendant and Weller arrived at the apartments Miss Tew drove up pulling a large boat, tan or cream in color, on a black trailer. The defendant stated that she was very excited. Miss Tew was uncertain where she would keep the boat and, after some consideration, she decided to take it to her mother’s home in Brewton. After she called her mother, the defendant and Miss Tew went to Solomon’s where they stayed until after closing time, 1:00 or 1:30 a. m. When they left Solomon’s, they got the boat and headed out in the darkness for Brewton. Proceeding slowly they arrived about 7:30 or 8:00 a. m., Sunday. The defendant stated that Miss Tew said that she bought the boat from a Bill Gilbert whom she met in Birmingham and that she paid almost $4,000 for it. At this time the boat did not have a propeller nor had it been registered.

The defendant testified that after leaving Brewton on Sunday afternoon he did not see the boat again until two or three weeks later when they returned to Brewton. In the meantime Miss Tew procured a propeller for the boat and asked the defendant to go with her to try out the boat. On or around July 6, 1978, the defendant stated that he and Miss Tew went to the Point Clear Marina looking for a place to store the boat. The defendant acknowledged meeting with Walter Wall but denied that he filled out any marina registration card. The defendant stated that Miss Tew introduced herself to Wall and then he introduced himself to Wall as Allen Eades. He did so because of domestic problems with his former wife. Defendant said:

“Well, I had been having domestic problems with my wife — my ex-wife I should say, and I have a son. He was seven years old then. He is eight years old now. And there are only two Gunacas in the phone book in Tuscaloosa. And I didn’t want a man, you know, didn’t have anything to do with, I wasn’t having any business dealings with him myself. I didn’t want him calling around there looking for me, because he might call my ex-wife’s house and she is pretty jealous.”

On cross-examination the defendant denied that he subsequently called Wall. He stated that Miss Tew called Wall instead. He denied discussing the sale of the boat, or the possible advertising of the boat. He denied that Miss Tew remained in the car and reiterated +hat she talked with Wall also. The defendant was shown State’s Exhibit 1 and the defendant acknowledged that the signature appearing thereon in the space provided for the owner’s signature was Miss Tew’s. Defendant stated that he was with her when she registéred the boat in Brewton and stated that she provided the information necessary to register the boat. The defendant testified that when Miss Tew acquired the boat she had taken a leave of absence from her job at the North River Yacht Club in Túscaloosa but was modeling “some” for Total-Corn, Incorporated. The defendant was also employed by Total-Corn, Incorporated. He testified that she told him she paid almost four thousand dollars for the boat which she bought from Bill Gilbert.

On cross-examination defendant acknowledged the presence of a pair of bolt cutters in Miss Tew’s car. Immediately thereafter he denied any knowledge thereof. The record reveals:

“Q. [by Mr. Colee for the State] When you all went down there the weekend you were arrested, that July 20, .1978, whose car were you in, please, sir?
“A. Miss Tew’s car.
“Q. Would that be a station wagon?
“A. Yes, sir.
“Q. And whose pair of bolt cutters were in the back seat — were they yours or were they hers?
“A. I don’t know whose bolt cutters they were.
“Q. There were some bolt cutters in the back of that car, were they not?
“A. I don’t know if there-were any bolt cutters in the back of that car.
“Q. Do you deny there being any bolt cutters in the back of that car?
“A. No, I don’t deny it. I said I don’t know.
“Q. They were the same bolt cutters you all used to cut the locks off out here at Barney Padget Marine, aren’t they?
“A. No, sir.
“Q. They are not the same bolt cutters—
“A. You are twisting words around here a little bit, sir.”

The defendant said that he had never known Miss Tew to use the name Vickie Lynn Johnson. He stated that he did not know if Miss Tew had registered the boat in Bay Minette under the name Vickie Lynn Johnson. He stated Miss Tew told him that she had a bill of sale which was in Tuscaloosa on July 20, 1978. When asked whether she had ever produced the bill of sale for inspection by the police, defendant stated that she had not produced it to his knowledge, “. . . because they haven’t asked for it.” He acknowledged that he had never lived in Jasper and that the fake name and address . . just popped up in my mind. . . . ”

At the conclusion of the State’s cross-examination of the defendant the defense rested and moved for the affirmative charge. The motion was overruled.

Defendant presents six issues for review.

Issue No. 1, “Was the evidence sufficient to support a conviction?”, and Issue No. 6, “Was the evidence sufficient to support a conviction under Count 1 of the indictment?”, will be addressed together in this opinion.

Issue No. 2. The defendant questions whether the evidence sufficiently proves the corporate existence and identity of Barney Padgett Marine, Inc., a corporation, as alleged in the indictment.

§ 12-21-201, Code of Alabama, 1975, is pertinent and states:

“In the trial of criminal cases it shall not be necessary for the state to prove the incorporation of any corporation mentioned in the indictment, complaint or information unless the defendant, within 30 days after indictment if the defendant is under bond or within'30 days after arrest on capias, denies the existence of such corporation by a sworn plea.”

A search of the record does not reveal any such sworn plea by the defendant. When § 12-21-201 is not complied with the State is relieved of the burden of proving a corporation and the defendant cannot complain of the state’s failure to prove its legal character. Klemmer v. State, 51 Ala.App. 383, 286 So.2d 58, certiorari denied, 291 Ala. 786, 286 So.2d 62 (1973), 416 U.S. 957, 94 S.Ct. 1972, 40 L.Ed.2d 308. Rupert v. State, 45 Ala.App. 84, 224 So.2d 921 (1969).

The defendant relies on Graham v. State, 46 Ala.App. 608, 246 So.2d 675 (1971), in support of his position. That case may be distinguished from this case. In Graham, the indictment laid the ownership of the property alleged to have been stolen in Weatherly Plumbing Co., Inc., a corporation. Hugh Weatherly, the owner and manager of “The Weatherly Plumbing Company,” testified for the state. The only reference to the corporation named in the indictment came when Mr. Weatherly testified on direct examination.

“Q. . . . Were any of these articles in any boxes or containers or cardboard containers or any kind of container with the name Weatherly Plumbing Company, Incorporated on them?
“A. Yes, sir. All of them were. They have my name on them when they are shipped in there.” [emphasis added]

Testifying further, Weatherly stated:

“A. . . . They had my name on them and they were the ones that were missing out of the box.”

Several other witnesses stated that the boxes of supplies in question, supra, were marked “Weatherly” or “Weatherly Plumbing Company.” The court held in Graham that the evidence fell short of establishing either the legal existence of the corporation or the ownership of the alleged stolen supplies in the corporation. This holding stems from the ambiguity of Weatherly’s testimony, His statement, “They had my name on them . . .”, does not clearly establish whether he was speaking as an individual or as the agent of the corporation.

No such ambiguity occurs in the instant case and clearly, in the absence of compliance with § 12-21-201, reversible error is not present.

Issue No. 3. The defendant questions whether the State’s evidence sufficiently proved that the boat allegedly stolen was the property of Barney Padgett Marine, Inc., a corporation.

The State’s evidence as presented by the testimony of Horace Thrasher, the manager of Barney Padgett Marine, Inc., is that the boat and trailer were in the possession of the marina and were used for display purposes. The identification number of the boat and of the trailer were kept as a part of the company’s records. Thrasher testified that neither he nor anyone in his presence or to his knowledge had authorized the removal of the property in question.

In Rupert v. State, supra, the defendant was charged with larceny of a safe belonging to the Fayette Housing Authority. The defendant in Rupert alleged on appeal that the State failed to establish the ownership of the property alleged to have been stolen and its value. The testimony of the State in regard to the ownership and value of the safe was summarized by the Court as follows:

“On the question of ownership and value, the State called Mr. Howard Stanley, who testified he was the Executive Director of the ‘Fayette Housing Authority,’ located on Spring Street in Fayette; that in his capacity as such Executive Director he bought all the equipment used in the ‘Housing Authority,’ subject to the approval of the board; that he saw the invoices on every item purchased, and based on such invoice for the safe he would say its value was $242.00; that the safe was used in the office of the Fayette Housing Authority and had a tag on it showing it was the property of the ‘Housing Authority of the City of Fayette’ and that when he saw it at the City Hall after the theft the tag was still on it.”

Against the argument that it appeared .from the evidence that the safe was purchased by Stanley and was his personal property, the Court held in Rupert that the import of his testimony was that he purchased the safe for the Housing Authority.

Clearly the import of Thrasher’s testimony is that the property belonged to “Barney Padgett Marine, Inc.”

In Gandy v. State, 35 Ala.App. 299, 46 So.2d 247 (1950), the defendant was charged in a two.-count indictment with larceny and receiving stolen goods. The property in question was a flight jacket valued at $19.22. The indictment laid the ownership of this personal property in “. . . H. G. Whigham and R. E. Whigham, partners, doing business as Palace Laundry and Dry Cleaners . . . ” At trial the defendant moved to exclude the State’s evidence on the ground that the indictment laid the ownership as previously described and that the proof indicated that the partnership did not own the jacket, but merely was in the possession of it. The trial court overruled the defendant’s motion, and on appeal the Court upheld the ruling of the trial court, saying:

“There is no merit to this position. In a larceny prosecution the ownership of the alleged stolen property is properly laid in the person who is in the rightful possession thereof at the time of the theft. Gullatt v. State, 24 Ala.App. 11, 130 So. 169, Fowler v. State, 100 Ala. 96, 14 So. 860, Leverette v. State, 18 Ala.App. 578, 93 So. 347, Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am. St.Rep. 22.”

The defendant’s motion was properly overruled and he suffered no prejudicial error thereby.

Issue No. 4. The defendant contends that the evidence was insufficient to prove that the property described in the indictment was in fact stolen. He urges this court to hold that the proof of non-consent was insufficient.

The defendant’s argument in chief is grounded upon McMickens v. State, 16 Ala.App. 78, 75 So. 626 (1917) as was reaffirmed in Eady v. State, 48 Ala.App. 726, 267 So.2d 516 (1972). In his brief, appellant states:

“In McMickens v. State, 16 Ala.App. 78, 75 So. 626 (1917), the defendant was convicted of larceny of some copper wire and brass. These items apparently were the property of Woodward Iron Company. An employee of the company identified it as being the property of the company. On appeal, the court found that there was no evidence from which the jury would be warranted in saying, beyond a reasonable doubt, that the defendant took the property from the possession of Woodward Iron Company, or if he did so, that such taking was felonious. The opinion contains the following quotation from 1 Mayfield, 579, § 242:
“ ‘Where non-consent is a principal ingredient in the offense, direct proof alone from the person whose non-consent is necessary can satisfy the rule. Other and inferior proof cannot be resorted to till it be impossible to procure this best evidence. Where the person who last had innocent possession of the property can be called as a witness, some sufficient reason why it is not done ought to be shown.’ ”

Terse statements of the law shed little light upon questions on appeal without a close examination of the facts to which these statements were applied. In McMickens, the defendant sold to Bumby, a Bessemer scrap dealer, about $100 worth of copper, wire, and brass, including some brass grip shoes and copper wire. These purchases were negotiated in broad daylight, without any indications of stealthiness by the defendant. The facts accompanying the opinion stated that these transactions took place in 1912 and that:

“One Crawford, an employee of the Woodward Iron Company, as its deputy sheriff, testified that the company claimed to have missed some brass during 1912; that he and another deputy went down to investigate, and found some brass and copper wire that looked like brass the company lost at Bumby’s scrap heap; there were three brass grip shoes and $7.50 worth of copper wire; that it was just like the brass and copper junk that had been piled near the washer; that witness could not say the property he found at Bumby’s was the property of the company; that there were no marks of identification on it.
“One Mims, another deputy sheriff employed by the company, testified that at the scrap heap of Bumby he and Crawford found some copper wire (but no brass shoes), which he identified as the property of the company.
“The defendant admitted selling Bumby 100 pounds of copper wire and scrap brass which he said he bought from a man named Whiskey Bill; that Sterle, the master mechanic for the company, had told defendant they had given Whiskey Bill some of this scrap brass . . .”

The court stated in regard to this evidence:

“There is no evidence . . . from which the jury would be warranted in saying, beyond a reasonable doubt that the defendant ever took the property . . or if he did it was felonious.
“The agent of the company having this property in charge might have been examined, or at least someone who knew that the property had been in the possession of the company and had been taken without its consent.” [Emphasis added.]

This last paragraph quoted above accurately describes the action taken upon the trial of this case. Horace Thrasher, the manager of Barney Padgett Marine, Inc., who supervised the business and conducted it without the assistance of other salesmen testified that the boat was in the possession of the company and that neither he nor anyone in his presence, or to his knowledge, had given anyone consent to remove the boat.

The defendant urges that the evidence, reflects that there is a living, breathing person Barney Padgett and that it was necessary to prove his non-consent. The only evidence in the record about this Barney Padgett occurs at pages 18 and 19, during cross-examination of Thrasher:

“Q. They have to come there — could you state that boat’s brand number again, please, sir, I’m not sure about the fourth number or letter, is that eight or A?
“A. CEB 84 191-M78F.
“Q. That fourth digit there, is eight?
“A. I believe so. I could not be positive without pulling the original invoice.
“Q. You don’t have the original records with you?
“A. No, sir, Barney Padgett has those. He has since he moved his location. If it is necessary, we can get the original invoice.”

To say that Barney Padgett’s non-consent is essential is purely speculatory. However the unequivocal, undisputed testimony is that the manager of the company did not consent to the removal of the boat. This is sufficient and the court below did not err.

Issue No. 5. The defendant contends that the evidence did not sufficiently prove that the boat recovered was the same boat allegedly stolen.

This contention is absolutely groundless. The boat taken from Barney Padgett Marine, Inc., was described as a Century make, twenty-one feet long, tan and beige in col- or, and powered by a Mercruiser inboard/outboard propulsion unit. The serial number of the boat was given as CEB 84 191 — M78-F. The boat was on a Tennessean tandum trailer with a serial number of GH-001096, Model 3600-23. The property recovered from the defendant is identical in every respect. A jury could reasonably infer from this evidence that the property recovered was the boat taken.

■Issues 1 and 6. The defendant contends that the evidence was insufficient to support a conviction under Count 1 of the indictment, grand larceny.

The corpus delicti in larceny consists of two elements: (1) that the property was lost by the owner, and (2) it was lost by felonious taking. Jones v. State, 51 Ala.App. 570, 287 So.2d 886; Pate v. State, 36 Ala.App. 688, 63 So.2d 223. The uncontro-verted evidence is that the boat and trailer in question were lost by the owner. Whether or not the loss of the property was by a felonious taking may be proved by facts and circumstances as well as by direct and positive evidence and, if the evidence affords an inference that a larceny has been committed, its sufficiency is for the jury and it is their duty to determine whether the corpus delicti has been proven. Jones, supra, Melson v. State, 38 Ala.App. 514, 88 So.2d 851. The circumstances of the removal Of the property are sufficient to warrant a reasonable inference that the taking was felonious.

The defendant was found in possession of the property taken from Barney Padgett Marine, Inc. It is a well established rule that the possession of recently stolen goods is a fact from which the jury can legally infer guilt. The reasonableness of the possessor’s explanation is for the jury. Klemmer v. State, 51 Ala.App. 383, 286 So.2d 58, certiorari denied, 291 Ala. 786, 286 So.2d 62; Dickey v. State, 32 Ala.App. 413, 26 So.2d 532.

The defendant states that the undisputed testimony for the defendant places the defendant’s first contact with the boat in Tuscaloosa and hence he could not have participated in its theft. This overlooks another well established rule that every person, who, with a guilty knowledge, aids and abets the carrying away is guilty of larceny. Jones, supra, Travis v. State, 32 Ala.App. 637, 29 So.2d 359.

Without dispute the defendant aided in the asportation of the stolen property and his conduct at the Point Clear Marina is sufficient to allow a jury to reasonably and legally infer his guilty knowledge.

The court did not err in overruling the defendant’s motions.

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

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jimmy Don CHUMLEY, alias v. STATE.
    6 Div. 181.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    J. Wilfred Tucker, Cullman, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction of robbery and a sentence of imprisonment for forty years.

Although defendant took the witness stand and stoutly denied his guilt, there was ample evidence to support the verdict of the jury. There is no contention on appeal to the contrary. The evidence was conclusive that the crime was committed. There was substantial circumstantial. evidence, but no direct evidence, that defendant was the one who committed the particular crime.

The only issue presented on appeal is stated by appellant as follows:

“Whether reversible error resulted when the trial judge overruled the defendant’s motion for a mistrial on. the grounds that the defendant was put in an untenable position by the judge when he was called upon for additional testimony or to perform an act, or make a demonstration, before the jury. ’ This having transpired after all the evidence was completed and final arguments having been made by both the state and the defense.”

The incident on the trial that is made the basis of the issue on appeal is now stated in full, as it appears in the record at the conclusion of the argument of attorneys for both parties, and immediately after the court had declared a short recess for the jury and before it left the jury box:

“(Whereupon, a Juror raises his hand to ask a question, and the following occurred.)
“THE COURT: Yes, sir.
“A JUROR: May it please the Court, could I see the Defendant take a pencil and write on a piece of paper?
“THE COURT: If you could do what?
“A JUROR: Give the Defendant a piece of paper and write on — a pencil and write on a piece of paper?
“THE COURT: Do you have any objections, Mr. Tucker?
“Well, I think now, Mr. Juror, from what you have asked you will have an Exhibit that the Defendant has testified concerning this and I am sure, not now but later you and the other Jurors, can discuss that. You will have the Exhibit with you, it will be one of the seven and if you recall all of the things that happened with that Exhibit, how it got into evidence, who put it in. The question if any that was asked the Defendant about it, do you think that will suffice for you?
“A JUROR: Oh, just forget it.
“THE COURT: All right. I have a peculiar problem with the question that you have asked and I know that in your mind it seems quite valid but as a matter of procedural evidence, we have a problem with it. I hope you understand. Is that all right, Mr. Tucker? Well, you go out if you will and try to rest a moment and I will talk to Mr. Tucker, about this. Get some coffee, just relax a little while.
“(Whereupon, the Jury retires to the Jury Room and the following occurred outside the presence of the Jury:)
“MR. TUCKER: I’d like to make a motion for a mistrial at this time. On the grounds that the Defendant is put in a intentable [an untenable] position by not only the Juror but the Judge. When he asked for additional testimony, hearing for an act or Exhibit from the Defendant in the presence, and the Court called upon us to do so. The Defendant was in the position that he could not defend himself or say anything, except you or, comply without embarrassing himself before the Jury.' He’s called on for testimony that he could not give and the Court puts him in a position after the question of the Juror and we ask for a mistrial.
“THE COURT: Motion denied. Before Mr. Tucker, yourself, or the Defendant responded to the Court’s inquiry, the Court had the conversation directly with the Juror. Explaining to the Juror that we couldn’t demand anything like this in effect, and referring the Juror and the Jury, to the evidence that had been introduced including the Exhibits involved.
“MR. TUCKER: I think before that conversation took place, the Court looked directly at the Defendant and asked if that was all right, Mr. Tucker, after he had asked for the Exhibit in writing.
“THE COURT: And you did not respond, nor did the Defendant right?
“MR. TUCKER: Correct.
“THE COURT: . All right, no response was made and before you or the Defendant, responded, the Court then directed its attention and statement to the Juror in his question, do you remember, is that correct?
“MR. TUCKER: Yes, sir.
“THE COURT: So, there was no response by the Defendant nor by the distinguished Defense Lawyer, to the Court’s inquiry concerning the request of the Juror, for the Defendant to write something sown [sic] is that right?
“MR. TUCKER: That is correct but the Defendant was in no position to make any response without prejudicing himself, before the Jury.
“THE COURT: I trust' Mr. Tucker, that you realize, the Court realized that it went on and then discussed the matter with the Juror before any response was made, I’ll deny your motion for a mistrial.
“MR. TUCKER: Yes, sir. Judge, I’d also like to make a motion [a motion unrelated to the matter just quoted] . . .”

The only authority cited by either party on appeal is Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972), rev’g 49 Ala.App. 563, 274 So.2d 333. The parties agree that the incident that occurred in Harnage, upon which the Court of Criminal Appeals based a reversal but the Supreme Court, by a majority opinion, ruled otherwise, is similar in many respects to the incident forming the basis of the issue in the instant case. They are in rigid disagreement, however, as to whether there is sufficient dissimilarity to require an affirmance on the point, in accordance with what was held by the Supreme Court, Heflin, C. J., and Coleman, J., dissenting.

Notwithstanding the statement in appellant’s brief that there “is no way that anyone can know exactly what the Juror had in mind when he made the request to see the Defendant write on a piece of paper,” it appears that his request was related to evidence in the case, particularly State’s Exhibit No. 7, which was a written.statement, signed by defendant and given to an officer a day or two after the alleged crime. That exhibit was admitted, in evidence without any objection from defendant, and as to it he was interrogated on cross-examination in an effort by the State to show a variation between portions of the statement and defendant’s testimony as to his whereabouts at or about the time of the alleged crime. He said, inter alia:

“Q. Well, did you, is that your writing?.
“A. Some of it.
“Q. You did sign it didn’t you?
“A. Yes, that’s my signature.
“Q. Well, are you saying that is or is not your writing, did you write that out or not?
“A. I wrote this right here.
“Q. All right. You didn’t write the top up here, did you?
“A. Right.
“Q. You wrote this right there that says, ‘Took wife to work at 7:00 A.M., then went to the Dairy Queen and sat to 7:30 to 8:00 A.M., to talk to Bobby, and he got in touch with his brother and went to Vinemont, got Ford I had sold to Bobby, and got a gun around 12:00’ you wrote that didn’t you?
“A. Right and that was the morning before.
“MR. BLAN: I introduce—
“Q. Beg your pardon?
“A. Instead of that morning.
“Q. That’s true, that was the morning before, this is dated the 20th?
“A. No that was the morning before the robbery, Becky had told me that was the day that Bobby hadn’t opened, it was the day before that.”

The facts relating to the similar incident in Harnage, supra, are fully set forth in the opinions of both courts therein. To reverse the instant case by reason of the incident involved would be inconsonant with the opinion of the Supreme Court in that case. Furthermore, the additional circumstances in the instant case, particularly the obvious satisfaction of the juror who made the inquiry, when he stated, “Oh, just forget it,” after the court had focused the attention of the jury upon an exhibit in which they would find thereon handwriting of the defendant that would dispense with any need or desire for a specimen of defendant’s handwriting, require the conclusion that the defendant’s rights were not “prejudiced under the circumstances; therefore, we will not disturb the trial court’s ruling in this regard.” Harnage v. State, 290 Ala. at 145, 274 So.2d at 355)

We find no error in the record prejudicial to the defendant. 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: LEIGH M. CLARK; Retired Circuit Judge.

text:
    Elmer FORD, Jr. v. STATE.
    7 Div. 699.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.

      Cary F. Smith, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK; Retired Circuit Judge.

A jury found appellant guilty of buying, receiving or concealing stolen personal property, “knowing that it has[d] been stolen, or having reasonable grounds for believing that it has[d] been stolen, and not having the intent to restore it to the owner,” in violation of Code of Alabama 1975, § 13-3-55. There was great dispute in the evidence as to the value of the involved property, a “homemade” automobile trailer, but there was no conflict in the evidence that it had a value considerably in excess of $25.00 which, according to the cited section of the Code, subjected appellant to punishment as if he had stolen the property. Punishment for grand larceny, which includes the theft of any personal property “of the value of $25 or more,” is punishable by imprisonment in the penitentiary “for not less than one nor more than 10 years.” Code of Alabama 1975, § 13-3-50. Appellant was sentenced to imprisonment for three years.

There was undisputed evidence that the trailer was taken from the premises of its owner under circumstances sufficient to show the corpus delicti, that is, that it had been stolen from its owner. There is no contention to the contrary.

According to the undisputed evidence, the trailer was in the possession and control of defendant a few days after it was stolen. According to an admission by defendant, which was introduced in evidence without objection by defendant, and according to defendant’s testimony in the case, he bought the trailer from one Bill Wallace for the sum of $125.00 and sold it within a few days thereafter to Jerry Denham for the sum of $150.00. A handwritten note, a purported bill of sale, as to each transaction was admitted in evidence.

Appellant insists that there was no substantial evidence to show that he knew that the trailer had been stolen or that he hdd reasonable grounds for believing that it had been stolen, which is an element of the crime charged. Appellant emphasizes the fact that his own written statement disavowing any knowledge that the property was stolen was introduced in evidence by the State and that it should preclude any finding of fact to the contrary. The answer to appellant’s contention is to be found in the established principle that possession of recently stolen property gives rise to a permissible inference of knowledge on the part of the possessor that the property had been stolen, unless the possession thereof is accounted for in a reasonable and satisfactory manner consistent with the circumstances of the possession. Stanley v. State, 286 Ala. 738, 245 So.2d 827 (1970); Character v. State, 51 Ala.App. 589, 287 So.2d 916, cert. denied, 291 Ala. 775, 287 So.2d 919 (1973); Rhone v. State, 53 Ala.App. 338, 299 So.2d 781 (1974). The reasonableness of the explanation given by one in possession of recently stolen property is to be determined from all of the circumstances, and, if reasonable people can come to a different conclusion on the subject, the question of whether the explanation is reasonable is one to be determined by the jury. Haynes v. State, 40 Ala.App. 106, 109 So.2d 738 (1958).

The possibility that defendant bought the trailer from a person representing himself to be Bill Wallace is not to be ignored, but there is sufficient basis in the evidence for a reasonable conclusion that no such person existed.

Detective Sergeant Robert D. Stewart of the Anniston Police Department testified:

“Q. Mr. Stewart, did you go to the location Mr. Ford told you this transaction took place at where he bought the trailer?
“A. Yes, sir.
“Q. Were you able to locate or find a Bill Wallace?
“A. No, sir. On three separate occasions I went up there at night where he said he frequented the place and asked the patrons of this recreation center.
“Q. Where is this recreation center?
“A. Lenlock Shopping Center, hangout for teenagers, dopers, and things.
“Q. Did you find Bill Wallace?
“A. No, sir; and I found no one that had ever heard of him.”

Jerry Denham, the person to whom defendant sold the trailer, testified:

“Q. Now, in the course of your conversation with Mr. Ford, did he tell you where he got this trailer?
“A. I asked Elmer where the trailer came from; and he told me it come from some place in Lineville.
“Q. Do you remember who, if anybody, he told you that he bought it from?
“A. No, sir, I don’t remember exactly who the fellow was that he said.
“Q. Did he mention a name?
“A. He mentioned the name of Steve Smith at one time at my house.
“Q. Did he ever mention the name of Bill Wallace?
“A. No, sir, he did not.”

Denham further testified that about two months before the trial in the instant case defendant came to him and said,

“I’m facing about two years in jail” and that defendant “was wanting me to come up here and tell that I knowed for a fact that he had bought the trailer from some guy.”

The evidence was sufficient to justify an inference that defendant knew the trailer was stolen or that he had reasonable grounds to believe that it was stolen. The trial court was not in error in denying defendant’s motion to exclude the evidence or in its refusal of the general affirmative charge in favor of defendant. We cannot say that the verdict was palpably wrong or unjust. This precludes a determination that the trial court should have granted defendant’s motion for a new trial on any ground therein relative to the weight of the evidence.

A witness who testified on call of the defendant was recalled by the State as a witness after defendant had rested his case, and the State was permitted, over the objection of defendant, to show by said witness that he had been convicted of grand larceny on December 10, 1973. Appellant argues that such evidence “was not in rebuttal of any evidence of the defendant and was not evidence that could have not properly been brought out on cross-examination.” No authority is cited for the position taken. It is not well taken. Code of Alabama 1940, Tit. 7, § 252, previously held to be applicable to both civil and criminal trials, is now codified in the same language in two separate sections, one relating to Civil Procedure and the other to Criminal Procedure, the latter being Code 1975, § 15-14-4 as follows:

“The court may, at its discretion, at any time before the conclusion of the argument, when it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe.”

It is within the discretion of the trial court to receive, in rebuttal, testimony which more properly should have been offered as part of the case in chief. Nichols v. State, 276 Ala. 209, 16 So.2d 619 (1964); Alexander v. State, 51 Ala.App. 267, 284 So.2d 292 (1973).

Appellant complains of the refusal by the trial court of fourteen written charges requested by defendant. Without particular discussion of any of them, he says the trial court erroneously refused all of them. Each of them pertained to the subject of the requirement of proof of defendant’s guilt “beyond a reasonable doubt” or “to a moral certainty.” Eight charges requested by defendant on the same subject were given. In the court’s oral charge, there was coverage of the subject, including:

“. . . This placed the burden of proof upon the State of Alabama to show from the evidence the guilt of the defendant of the offense charged in the indictment beyond a reasonable doubt and to a moral certainty if there is to be a conviction in this case.
“Though I have used the term reasonable doubt and the term moral certainty. These terms are synonymous. That is they'mean the same.thing. It means a real or substantial doubt growing out of the evidence or lack of evidence. It essentially means doubt for which a reason can be given.”

In one or more of the refused charges the necessity for unanimity of the jurors in returning a verdict was mentioned. It was also mentioned in the court’s oral charge, as well as in the following charge given at the request of defendant:

“The Court charges the jury that defendant cannot be convicted in this case unless each and every juror is not only reasonably satisfied from the evidence of defendant’s guilt, but if [is] satisfied from the evidence, and the evidence, alone, beyond all reasonable doubt, and to a moral certainty, of his guilt.”

We find no error in the court’s refusal of any of the written charges requested by defendant.

We do not find that appellant’s contention that the court “allowed the State to introduce hearsay testimony over the timely objection of the appellant” is supported by the transcript of the evidence. No specific ruling is cited by appellant, but it appears that probably the reference is to hearsay testimony by a witness in answer to a question that did not call for hearsay testimony. There was an objection to such question that was overruled by the court, to which ruling defendant excepted. Immediately thereafter, the witness proceeded in a long four-sentence narrative, which ended with his statement, “She said — .” Then defendant’s counsel said, “Object to all of this hearsay testimony.” The court then said, “Sustained.” As the ruling of the court as to any question raised by defendant as to hearsay testimony was in defendant’s favor, the court cannot be correctly charged by appellant with error in that respect.

We have found no error in the record prejudicial to defendant. 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.