author: TYSON, Judge.

text:
    Phillip Stanley HOPE v. STATE.
    5 Div. 488.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.

      Hewitt L. Conwill of Harrison, Conwill, Harrison & Justice, Columbiana, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Phillip Stanley Hope was indicted for the first degree murder of Louie Earl Jones. The jury found the appellant “guilty of murder in the first degree, as charged in the indictment” and fixed his punishment at imprisonment for life. The trial court set sentence accordingly.

On March 25, 1978, the remains of Louie Earl Jones were found floating in Waxa-hatchee Creek on the Shelby County, Alabama, line by James Robert Gaston and Benjamin Pemberton. The Shelby County Coroner, Ed Burdette, was summoned and he examined the body at the scene. He testified that he observed red marks and swelling around the eyes and mouth of the deceased but he did not notice any puncture wounds. The deceased was wearing blue jeans, a white T-shirt, and socks, but no shoes. Mr. Burdette stated that the body of the deceased was removed to a funeral home in Columbiana, Alabama, where he later reexamined it. He indicated that the body was in substantially the same condition at the funeral home as it was when he examined it at the creek.

Mr. Burdette also identified a striped, short-sleeved shirt which was given to him as evidence by a deputy sheriff at the creek where the body of the deceased was found. The shirt was received into evidence as State’s Exhibit Two. On cross-examination Mr. Burdette stated that the shirt was found in the same area as the body of the deceased.

Approximately a week later, a pair of shoes, identified as those of the deceased, was found by scuba divers in the same area of Waxahatchee Creek where the deceased’s body was found.

James Wyatt and James Nesbitt testified that they were camping near Waxahatchee Creek with two companions, Ernest and Bill Rivers, on the night of March 24, 1978. They testified that, at approximately 1:30 a. m., they were awakened by a disturbance in the water of the creek. They shined a spotlight in the direction of the disturbance and observed two white males in the water of the creek and another white male sitting on the bank. One of the figures in the water appeared to strike the other. James Wyatt and James Nesbitt both stated they heard one of the figures say, “Stay down,” and another say, “Please, Bill, I love you like a brother.”

After the light was shone on the figures in the water, one of the figures began pushing the other toward the bank and the disturbance ended. Approximately five minutes later, a car started and drove off with its headlights off.

The victim’s bother, Johnny Edward Jones, testified that, about two weeks before his brother’s remains were discovered, his brother had called him late at night and asked to be picked up at their aunt’s house. The witness recalled that when he picked his brother up his brother was “scared to death,” and “white as cotton.” The witness indicated that at that time his brother told him that the appellant and his brother, Bobby Joe Hope, had taken him to a dump to kill him.

Tammy Moulton Ratliff testified that she had a date with the deceased, Louie Earl Jones, on the evening of March 24, 1978. Mrs. Ratliff recalled that, after spending an hour at a nightclub, she and the deceased went to a hill overlooking the Shelby County boat launch. The appellant and Bobby Joe Hope arrived at the hill a short time later and began arguing with Louie Earl. According to Mrs. Ratliff, the appellant and Bobby Joe Hope told Louie Earl that, if he called the law again, they were going to “get him.” Thereafter, the appellant started hitting Louie Earl and shoving him around. Louie Earl broke away and ran down the hill and the appellant’s brother went after him.

At about that time Donnie Edge and Terry Moore drove up in a truck. They testified at trial that they heard the appellant and his brother arguing with Louie Earl when they drove up. Terry Moore testified that he heard the appellant say to Louie Earl Jones, “Louie Earl, I’ll beat you all the way to the river,” and Louie Earl replied, “I know you will Phillip, we’re friends.” Both witnesses testified that Tammy Ratliff was crying and upset and asked to be taken from the scene. Also, both witnesses stated that they left with Tammy and that Louie Earl remained with the appellant and his brother. Terry Moore recalled that when they left Louie Earl appeared to be scared.

The State Toxicologist, James M. But-tram, testified that he performed an autopsy on the remains of Louie Earl Jones on March 25, 1978, at the Bolten Funeral Home in Columbiana, Alabama. The autopsy revealed that the deceased died by drowning. The witness stated that the face of the deceased showed bruises around the mouth and eyes and that the bruises could only have developed prior to death.

On cross-examination the toxicologist indicated that the deceased was intoxicated at the time of his death and that death could have occurred at any time from 8:00 o’clock p. m. on March 24, 1978, to 4:00 o’clock a. m. on March 25, 1978.

Charles Barnett testified that he was a contractor and that the appellant and his brother had worked for him in March, 1978. Mr. Barnett related conversations he had with the appellant and his brother during the early part of that month. According to Mr. Barnett the appellant and his brother had had a dispute with Louie Earl Jones over some tools and Louie Earl had “called the law” on them. Mr. Barnett stated that the two brothers told him that “they were going to get their tools one way or the other or they would dump him in the river.” Mr. Barnett also related the following incident which occurred after the deceased’s body had been found (R.p. 285):

“A. Well, we was on the way to work and we was just all talking and I had the tapeplayer on and I reached over and pulled out the tape and Phillip and Bobby Joe was having a conversation and Bobby Joe had told Phillip, he said, ‘Well, we got rid of him, didn’t we,’ and they sort of looked at me funny and I just looked away, because I didn’t-I just looked away from them and went on to work.
“Q. He said, ‘We got rid of him,’ is that correct?

“A. Correct.”

Deputy Sheriff Charles Shaw testified that he investigated an altercation between Louie Earl Jones and the Hope brothers in the early part of March, 1978. Deputy Shaw indicated the three men were in a dispute over the ownership of some tools in the possession of Louie Earl Jones. The deputy recalled that Louie Earl told him that he was afraid that the Hope brothers were going to hurt him and kill him. The deputy ordered the Hopes to leave and they left.

Ronald Cox testified for the defense that he was at the lounge the night of March 24, 1978, and that Donald Edge came into the lounge with Tammy Ratliff and said, “We just killed a man.”

Randy Collum testified that he was also in the lounge on the night of March 24, 1978, and that he heard Donald Edge say, “We just drowned Louie Earl Jones.”

Paulette Horten, who was working at the lounge that night, testified that she heard Donald Edge say he had thrown Louie Earl Jones in the river.

Debra Busby testified that the appellant and his brother were with her from 12:30 a. m. until daylight on March 25, 1978.

The appellant did not testify at trial.

I

Appellant first contends on appeal that the trial court erred in overruling his motion to exclude the State’s evidence. Appellant argues that “the evidence presented by the State of Alabama .. . was entirely circumstantial” and thus insufficient to submit to the jury.

We have long held, however, that circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and if facts are presented from which the jury may reasonably infer the crime has been committed, the question must be submitted to the jury. Kontos v. State, Ala.Cr.App., 363 So.2d 1025 (1978), and cases therein cited; McDowell v. State, 238 Ala. 101, 189 So. 183 (1939).

In the present case the facts and circumstances presented by the State’s case in chief were sufficient to require submission of the case to the jury. We find the following facts and circumstances sufficient to support our ruling that the trial court did not err in denying appellant’s motion to exclude.

1. About two weeks prior to the victim’s death, the appellant, his brother, and the deceased had a dispute over tools (Deputy Shaw’s testimony).

2. As a result of the dispute, the appellant and his brother threatened to dump Louie Earl Jones in the river (Charles Barnett’s testimony).

3. The victim told his brother that the Hope brothers had tried to kill him (Johnny Edward Jones’ testimony).

4. The night before the victim’s remains were found, the appellant and his brother argued with and started hitting and shoving the victim near the Waxahatchee Creek (Tammy Ratliff’s testimony).

5. The victim was left alone and was last seen alive with the appellant and his brother (Edge and Moore’s testimony).

6. The toxicologist testified that the victim’s face was bruised and swollen and that his death was caused by drowning.

7. Appellant’s brother stated to appellant, “Well, we got rid of him, didn’t we?” This statement was made after the victim’s remains were found (Charles Barnett’s testimony).

Thus the trial court correctly submitted this case to the jury.

II

Appellant next contends that the trial court erred in not giving certain requested written charges at the conclusion of the oral charge to the jury.

The appellant’s requested charges were either covered by the trial court’s oral charge or other given charges or were abstract charges not properly predicated on the evidence in the case or were incorrect statements of the applicable legal princi-pies. Kuczenska v. State, Ala.Cr.App., 378 So.2d 1182, cert. denied, Ala., 878 So.2d 1186 (1979), and authorities cited therein.

Appellant’s requested charge on circumstantial evidence (R.p. 476) was properly refused.

“As we have held in previous cases on requested charges similar to those presently before us, where not all of the State’s case is derived from circumstantial evidence and where the requested charges do not call for consideration of all the evidence, such charges concerning circumstantial evidence are properly refused. Johnson v. State, 55 Ala.App. 581, 317 So.2d 548 (1975); Jones v. State, 54 Ala.App. 167, 306 So.2d 33 (1974). Also, the requested charges were not hypothesized on a ‘belief from the evidence’ and were defective for that reason. Thompson v. State, 369 So.2d 50 (Ala.Cr.App.), cert. denied, 369 So.2d 52 (Ala.1979); Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976).
Murrell v. State, Ala.Cr.App., 377 So.2d 1102, cert. denied, Ala., 377 So.2d 1108 (1979).

Ill

Appellant also argues that the testimony of the state toxicologist should not have been admitted because a proper “chain of evidence” was not established regarding the condition of the remains of the deceased.

The coroner of Shelby County testified that when the deceased was removed from Waxahatchee Creek he was wearing blue jeans, a white T-shirt, and socks. The coroner observed that the body was loaded into a hearse, and he followed the hearse in his car to the Bolten-Brown Funeral Home in Columbiana. He further stated that the body was in substantially the same condition when it arrived at the funeral home as when it was loaded into the hearse. The coroner left the funeral home before the state toxicologist arrived.

When the state toxicologist arrived to conduct an autopsy to determine the cause of death, it appears that the body was not wearing a T-shirt.

Appellant therefore claims that the testimony of the toxicologist should not have been admitted because the body had been tampered with. We disagree.

“In order for such testimony to be admissible it is not required that proof be made that the body was in the exact condition as it was when death occurred. The evidence was prima facie admissible if it is shown that the body had undergone no substantial change with regard to the matter under investigation; that there had been no illegal tampering with it or that any alteration from its original condition at death did not obliterate or change the condition which is sought to be shown. If, as here, the change was incidental and in no way affected the question at issue, the testimony was admissible . ... ” (Citations omitted.)
Dennison v. State, 259 Ala. 424, 429, 66 So.2d 552, 556 (1953).

In the present case, the “condition sought to be shown” was the cause of death of the deceased. The fact that the deceased’s T-shirt had been removed prior to autopsy was not such a substantial change in the condition of the body as would cause the testimony of the toxicologist to be thereby rendered inadmissible.

IV

Finally, appellant complains that the following exchange “was extremely prejudicial to the defendant and constitutes reversible error.” The matter arose after the appellant called Deputy Sheriff Bill Davenport as a witness (From the record, pp. 348, 349):

“Q. On the night of 24 of March, 1978, state whether or not Donny Edge told you what time he got up to that hill? “MR. VALESKA: We object to what Donny Edge told him. Donny Edge has testified in this case, in front of this jury, under direct and cross-examination. This witness cannot testify to what Donny Edge
“THE COURT: All right, just let the Court rule, I sustain the objection.
“Q. Didn’t he, in fact, tell you that he got up there after eleven o’clock?
“MR. VALESKA: And we object to that.
“THE COURT: I sustain the objection and ask Counsel not to phrase the question to the witness in an indirect manner as a cross-examination and to subvert the ruling of the Court.
“MR. CONWILL: Again, we would ask to have him treated as a hostile witness.
“THE COURT: I deny that request.
“MR. HARRISON: Is he permitted to ask him to state whether or not?
“THE COURT: That would be all right.
“Q. Did you ever go talk with Coleman Vanderslice about this?
“A. No, sir, I did not.
“Q. You gathered some information, during the course of this investigation, that Donny Edge had come back into Chuck and Betty’s and said, ‘I just threw Louie Earl off the bridge?”
“MR. VALESKA: Judge, you just told him not to do that.
“MR. CONWILL: May I ask my question.
“MR. VALESKA: No. Judge, I object, because you just told him not to do it.
“THE COURT: Yes, sir, Mr. Conwill, you are trying to cross-examine this witness.
“MR. CONWILL: Yes; sir, I am trying to cross-examine what I feel like is a hostile witness.
“THE COURT: And the Court said that he is not a hostile witness and the Court is not going to permit you to cross-examine this witness and get all that gobbley gook before the jury.
“MR. CONWILL: Judge, we object to calling our evidence gobbley gook.
“THE COURT: I will state to the court, in the presence of the jury, that your last question was gobbley gook and, in the judgment of the Court, intended nothing but to confuse the jury.
“MR. CONWILL: We would except to that and object to it, the Court’s statement to the jury.
“THE COURT: You are doing nothing but trying to cross-examine this witness and the Court has ruled that you cannot do it.
“MR. HARRISON: We want to get in all we can, Judge.
“THE COURT: Yes, sir, I know what you want to get in.
“MR. HARRISON: I know that and it is our job to do it.
“THE COURT: Do you have any further questions of this witness:
“MR. CONWILL: Yes, sir.
“THE COURT: All right, start asking them.”

After a close examination of the record, we are of the opinion that the remarks of the trial judge did not reflect partiality against the accused, but was directed toward eliminating unnecessary repetition in appellant’s questioning of his witness. Burke v. State, 44 Ala.App. 379, 209 So.2d 859 (1968).

The trial court had repeatedly sustained the prosecutor’s objections to the questions appellant’s counsel asked of the witness, yet appellant’s counsel repeatedly sought to ask the same questions.

“The comment of the judge would probably have been best left unsaid, but we do not believe appellant’s rights were prejudiced.” Mullins v. State, 56 Ala.App. 460, 323 So.2d 109, cert. quashed, 295 Ala. 412, 323 So.2d 116 (1975); Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218 (1973).

This record is free of error. Therefore, this case is due to be and is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    Ex Parte Phillip Stanley HOPE. (Re: Phillip Stanley Hope v. State of Alabama).
    79-857.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   TORBERT, Chief Justice.

WRIT DENIED-NO OPINION.

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


author: BOWEN, Judge.

text:
    D. Steven ANDERTON v. STATE.
    6 Div. 215.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.

      Carl E. Chamblee, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was charged by complaint with cruelty to animals under Alabama Code 1975, Section 3-1-12. After a nonju-ry trial, the trial court found the appellant guilty, fined him $500.00 and sentenced him to three months’ hard labor.

I

The defendant contends that the evidence is insufficient to support his conviction. There was no eyewitness to the crime and the State’s case was based upon circumstantial evidence.

Mrs. Diane Maddox testified that around 3:30 P.M. on August 13, 1979, she drove to her mother’s home in North Birmingham. Upon finding her mother not home, she went to the home of a neighbor, Mrs. Martin. Mrs. Martin’s daughter told her about a puppy they had found. Mrs. Maddox then went to an alley located behind and between Mrs. Martin’s home and the defendant’s residence. There she found three puppies which had been burned and were dead and one live puppy which smelled of gasoline. Mrs. Maddox removed the dead animals from under a piece of plywood, placed them in a brown sack, and returned to Mrs. Martin’s home with the puppies. Each of these four puppies had a long tail. Later that afternoon, Mrs. Maddox talked to the defendant’s younger brother, Chris Ander-ton, and afterwards observed the remainder of the litter from which the dead animals had come. This litter was located underneath the defendant’s residence. Mrs. Maddox stated that the three dead animals and the surviving puppy were of the same breed and age as those observed underneath the defendant’s residence except that the four puppies found in the alley had longer tails than the others. The only evidence of a fire that she observed was the burned bodies of the animals. The surviving puppy had been burned around one of its ears. Mrs. Maddox called both the Birmingham Police and Humane Society.

Mrs. Judy Uptain, a resident in the defendant’s neighborhood, testified that she and her mother heard a puppy crying and went to find it. In the alley behind the defendant’s residence they found, under a piece of plywood, three dead puppies and one live puppy. The animals had been burned and Mrs. Uptain could smell gasoline on the surviving puppy. She testified that she knew that the defendant’s dog had been pregnant. Shortly after finding the puppies, she observed the defendant’s dog and it appeared to have recently had her litter. Mrs. Uptain left the dead animals in the alley and was informed by her sister that Mrs. Maddox had removed them.

Deputy Bill Carter of the Animal Cruelty Division of the Jefferson County Sheriff’s Department testified that on the morning of August 14, 1979, he observed the dead animals in Mrs. Martin’s yard and photographed them. He stated that they had been burned and had the odor of gasoline about them. After further investigation, Deputy Carter had a complaint and warrant of arrest sworn against the defendant.

Chris Anderton, the defendant’s younger brother, was called by the State to testify as an adverse witness. He testified that in August of 1979, the defendant’s dog gave birth to seven puppies. On the morning of August 13th, Mr. Anderton had a conversation with the defendant concerning the litter. He stated that the conversation was general in nature with no mention of the physical differences of the animals or the possibility of killing some of them. They also discussed the condition of the mother dog and her inability to feed the puppies. However, Mr. Anderton admitted that, at the defendant’s trial in district court, he had testified that the defendant said he would drown some of the litter, although he did not mention which ones. He stated that when he talked to the defendant, he had seen the litter but had not seen the dead animals.

Mr. Anderton also admitted that at the defendant’s former trial he testified that he told Mrs. Maddox that defendant planned to kill the puppies with long tails. At trial Anderton denied that the defendant had made such a statement to him. He testified that he was extremely upset when he talked to Mrs. Maddox and did not realize that he had said such to her. He stated that, when he talked to Mrs. Maddox, he had not seen the dead animals.

Mr. Anderton testified that he saw the surviving puppy and noticed some burned areas on one of its ears. He stated that the unharmed portion of the litter had short tails. Mr. Anderton’s testimony concluded the presentation of the State’s case.

The State’s case is clearly based upon circumstantial evidence. In Cumbo v. State, Ala.Cr.App., 368 So.2d 871, 874, cert. denied, Ala., 368 So.2d 877 (1978), we stated:

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. . .. ”
(Citations omitted)

It is our duty upon appeal to determine whether any theory of the evidence exists from which the trier of fact could have excluded every hypothesis except guilt beyond a reasonable doubt. Since this case was tried without a jury, it was the trial judge’s duty to decide whether or not the circumstantial evidence tending to connect the defendant with the crime excluded to a moral certainty every reasonable hypothesis other than that of the defendant’s guilt. Cumbo, supra at 875.

The trial court had before it the following facts: (1) The defendant was the owner of an expectant dog, (2) the dog bore a litter of seven puppies, (3) the dead animals had long tails as opposed to the shorter tails of the unharmed puppies, (4) the dead animals were found in an alley behind the defendant’s residence and near his backyard fence, (5) the unharmed puppies were of the same breed as those killed, (6) the surviving puppy had been burned, had the odor of gasoline about it, and was of the same breed as the dead and unharmed puppies, and, (7) on August 13th, Chris Ander-ton told Mrs. Maddox that the defendant planned to kill the long-tailed puppies.

Clearly the trial court, as the trier of fact, had sufficient evidence before it to reasonably infer that the defendant committed the crime. Consequently, it properly overruled the motion to exclude the State’s evidence. See Scruggs v. State, Ala.Cr.App., 359 So.2d 836, cert. denied, Ala., 359 So.2d 843 (1978); Daniels v. State, Ala.Cr.App., 343 So.2d 566 (1977); James v. State, Ala.Cr.App., 339 So.2d 1047, cert. denied, Ala., 339 So.2d 1052 (1976); Bell v. State, Ala.Cr.App., 339 So.2d 96 (1976); and cases cited therein; 7 Alabama Digest Criminal Law 1159.2(8).

II

The defendant asserts that the complaint was vague, indefinite, did not provide a basis for a plea of former jeopardy and that his demurrer should have been granted.

Omitting the formal parts, the complaint reads:

“... Steve Anderton did torture, torment or inflict unnecessary cruelty upon animals to-wit: by pouring an inflammable substance upon four (4) dogs after which causing the ignition of said inflammable substance resulting in death or injury to the aforementioned animals contrary to Code of Alabama (1975), 3-1-12

The complaint substantially follows the language of the statute and approved in indictment form number five of Alabama Code 1975, Section 15-8-150. Under Section 15-8-23 this language is sufficient to apprise the defendant of the nature of the offense charged.

The instant complaint differs from that in Abercrombie v. State, 8 Ala.App. 326, 62 So. 966 (1913), in that although the indictment there substantially followed the language of a predecessor to Section 3-1-12 it failed to allege, as one of its alternative charges, that the animal was “cruelly” killed. That defect rendered the indictment void as no offense under the statute was charged. This error is not present in the instant ease as “cruelly” was specifically averred. See also Horton v. State, 124 Ala. 80, 27 So. 468 (1900); Pittman v. State, 18 Ala.App. 447, 93 So. 42 (1922).

The defendant was adequately apprised of the nature and cause of the offense with which he was charged. We find the complaint sufficient and the trial court’s overruling of the defendant’s demurrer to be without error.

Ill

The defendant contends that the trial court erred in allowing the State to impeach Chris Anderton by use of prior inconsistent testimony given at the defendant’s trial in district court.

The State called Mr. Anderton as a witness but requested that he be declared an adverse witness because he had stated to the prosecuting attorney that he would not testify against his brother. The defendant was not planning to call Mr. Anderton as a witness as he attempted to have him excused from testifying through a letter, admitted into evidence, from the witness’s physician indicating that Mr. Anderton suffered from hypertension and nervousness. The trial court granted the State’s request.

The prior testimony concerned the defendant’s August 13th conversation with the witness. In the district court proceedings, Mr. Anderton stated that the defendant told him that he planned to drown some of the puppies. However, at trial, Mr. An-derton testified that the defendant did not say anything about killing some of the puppies.

In order to resolve the issue before us, we must examine the nature of an adverse or hostile witness in a criminal setting. The word “adverse” was first used in reference to witnesses in the Common Law Procedure Act, 1854, 17 and 18 Viet., C. 125, § 22:

“A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall in the opinion of the judge, prove adverse, contradict him by other evidence, or by leave of the judge, prove that he had made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.” (Emphasis added)

In Greenough v. Eccles, 141 Eng.Rep. 315 (1859), it was held that the word “adverse” meant hostile rather than unfavorable (one who gives evidence opposed to the interests of the party calling him). The word applied not to the testimony of a witness but rather to the witness itself. Consequently, the word characterized the nature and manner of the witness and not his testimony. See also Simpson, The Characterization of One’s Witness for the Purpose of Their Impeachment, 50 Austl.L.J. 410 (1976).

It is apparent that the application of this adverse witness rule must be guided by the sound discretion of the trial judge, who, after hearing the particular facts and circumstances of the issue, could best ascertain whether a witness was adverse or merely unfavorable to the party calling him. See generally Alabama Code 1975, Section 12-21-138; Fed.R.Evid. 607; ARCP 43(b); 1 Underhill Criminal Evidence § 232(3) (6th ed. 1973); 2 Underhill Criminal Evidence § 290 (5th ed. 1956).

The practical effect of characterizing a witness as adverse is to allow the party calling that witness to consider him as the witness of his opponent for purposes of examination. This allows the party calling the adverse witness to examine the witness by use of the tools available to him on cross examination including contradiction and impeachment.

In the instant case the witness was the defendant’s younger brother, he resided at the same residence as the defendant, he did not wish to testify against the defendant and had indicated to the prosecuting attorney that he would not, and the defendant had attempted to have the witness excused from testifying and was not planning to call him as a witness. From the facts before us, we find no error in the trial court allowing the State to call Mr. Anderton as an adverse witness and to impeach his testimony by use of a prior inconsistent statement made at a previous trial of the same cause.

IV

The defendant asserts that the trial court erred to reversal in allowing two prosecuting attorneys to examine one witness.

The State was assisted in the presentation of the case by a law student intern working with the district attorney’s office. This intern was supervised by the assistant district attorney prosecuting the case. The defendant agreed to the intern’s participation in the trial but objected when the Deputy District Attorney prosecuting the case requested and was granted permission to conduct the redirect examination of the defendant’s brother after the intern had conducted the direct examination.

It is within the trial court’s discretion to allow more than one counsel on a side to examine a witness. State v. Walker, 281 Ala. 182, 200 So.2d 482 (1967); Roberts v. State, 258 Ala. 534, 63 So.2d 584 (1953); McKinley v. Campbell, 217 Ala. 139, 115 So. 98 (1927); Smith v. Bachus, 195 Ala. 8, 70 So. 261 (1915); Jackson v. Tribble, 156 Ala. 480, 47 So. 310 (1908); Gamble, McElroy’s Alabama Evidence § 121.03 (3rd ed. 1977). See generally Mallory v. State, 55 Ala.App. 82, 313 So.2d 203, cert. denied, 294 Ala. 765, 313 So.2d 208, cert. denied, 427 U.S. 902, 96 S.Ct. 3185, 49 L.Ed.2d 1195 (1975); State Realty Co. v. Ligon, 218 Ala. 541, 119 So. 672 (1929). We find no error in the trial court’s ruling.

V

Lastly, the defendant contends that the trial court erred in adding an ex parte statement to the record in his chambers after completion of the trial without his presence. The statement explains the basis for the trial court’s rulings on the admission of the impeachment evidence of Chris An-derton and the denying of the defendant’s motion to exclude the State’s evidence. Both issues have previously been discussed and decided adversely to the defendant.

While the better practice is to require the presence of the defendant or his counsel if the trial court wishes to make an addition to the record, we see no prejudice in the comments and find no error to the substantial rights of the defendant.

We have searched the record as required by law and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: ADAMS, Justice.

text:
    Ex parte D. Steven ANDERTON. (Re: D. Steven Anderton v. State of Alabama).
    79-858.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   ADAMS, Justice.

WRIT DENIED-NO OPINION.

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


author: HARRIS, Presiding Judge.

text:
    Richard E. LAKE, Jr. v. STATE.
    6 Div. 822.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.

      Roger C. Appell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The. grand jury of Jefferson County returned three indictments against appellant. Two of the indictments charged violations of Section 13-1-42, Code of Alabama 1975. This section makes it a felony to assault a law enforcement officer with a deadly instrument while such officer is engaged in the active discharge of his lawful duty or duties. The punishment prescribed for this offense is imprisonment in the penitentiary for not less than two nor more than twenty years. The third indictment charged appellant with possession of marijuana in violation of the Alabama Uniform Controlled Substances Act.

By agreement the three indictments were consolidated for trial. Appellant was represented by court-appointed counsel and at arraignment pleaded not guilty to each indictment. After arraignment appellant retained counsel to represent him at trial and on appeal.

On the marijuana charge the jury found the defendant guilty of possession of marijuana for personal use and the court sentenced him to thirty days hard labor in the Jefferson County Jail. The jury returned two separate verdicts finding the defendant guilty of assaulting Police Officers D. R. Whidby and M. D. Owens with a deadly instrument while these officers were actively engaged in the discharge of their lawful duties. In each case the trial judge sentenced appellant to five years imprisonment in the penitentiary but ordered split sentences with one year to be served in the penitentiary and four years probation. The court further ordered these two sentences run concurrently.

After these three sentences were imposed appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on appeal. However, new counsel filed briefs on appeal and these cases were consolidated on appeal.

The facts in these cases are relatively simple but the trial was made extremely complicated by many irrelevant, immaterial and wholly extraneous matters which had no bearing on the true issues. Stated another way, many superfluous matters were injected into evidence in an attempt to afford appellant a semblance of a defense to the assault charges. Appellant did not testify nor did he offer any evidence in justification of the assault charges on the police officers. There was an abortive attempt to try the Birmingham Police Department and to divert the attention of the jury from the true issues presented by the assault charges.

The sufficiency of the evidence is not presented for review. There was no motion to exclude the State’s evidence; there was no motion for a new trial; there was no request for the affirmative charge; and no exceptions were reserved to the oral charge of the court to the jury.

On December 11, 1976, appellant went to the home of his ex-girl friend, Burnella Jones, who lived at 17 Village Court West, in Birmingham, Alabama. They had a discussion in which appellant asked her to come outside and she refused, saying she had company. Appellant left and returned in a few minutes and knocked on the door. Ms. Jones told him to leave and he left. A few minutes later he returned for the third time and they went through the same scenario. On this third occasion Andre Jone-son went to the door with Ms. Jones and got into an argument with appellant after which he called the Police Department. Ms. Jones had broken off her relationship with appellant and had started going with Mr. Joneson. Appellant did not like Ms. Jones’ new boyfriend and had so informed her.

Ms. Jones testified that on appellant’s third visit to her home she did not know if he had a gun. The prosecutor claimed surprise as Ms. Jones had testified on two previous court appearances she had stated appellant was in possession of a pistol. The court permitted the prosecutor to ask the witness leading questions to refresh her recollection. At this point the court allowed defense counsel to interrogate Ms. Jones.

The defense attorney asked Ms. Jones how long she had gone with appellant and she replied she had gone with him about two years. Counsel asked her during her relationship with appellant if she was aware that he was president of some organization and she stated that appellant was president of a committee for the Prison Support, “or something like that, and that it was in Birmingham.” Counsel then asked her if she had knowledge that appellant had many encounters with the Birmingham Police Department and she replied, “Yes, sir.”

On redirect examination the prosecutor asked Ms. Jones if she had any pamphlets or leaflets thrown at the door of her house since December 16, 1976, and she responded affirmatively. The State showed her a pamphlet, marked State’s Exhibit 1, and asked her if she recognized it and she said, “I got one in our door.” She was then asked if she had gotten any letters in the mail from appellant and she replied, “Yes.” She was shown State’s Exhibit 2 and identified it as a letter and envelope addressed to her at No. 17 Village Court West and it looked like the handwriting of Richard Lake (appellant) and the return address was to “Richard Lake.” It was shown to be a Xerox copy and the prosecutor stated the original was in the Clerk’s Office. Counsel objected to it being admitted into evidence and the court sustained the objection.

On redirect examination the prosecutor asked Ms. Jones if she recalled testifying in another case where appellant was convicted of assault and battery when he came to her house. Counsel for appellant objected and moved for a mistrial. The court sustained the objection and emphatically charged the jury to disregard that question. The error, if any, was cured by the charge of the court. Counsel for appellant renewed his motion but there was no ruling on that motion by the court.

When appellant was arrested on December 16, 1976, the officers found marijuana seed in the jacket pocket of appellant. These seeds were put in an envelope and sealed. The envelope was personally delivered to Mr. Arthur Craig Bailey of the Alabama Department of Toxicology and Criminal Investigation. His qualifications were admitted by appellant’s counsel. Mr. Bailey then testified that he received the sealed envelope on December 21, 1976, and he opened the envelope and found 1.2 grams of seed. He examined the seed microscopically and he planted some of the seeds and examined the plants as they sprouted. He identified the plants as marijuana.

Jaynice Hicks testified that, on December 16, 1976, she was at the apartment of Bur-nella Jones when appellant came to her house three times. When appellant left the third time she saw him with a pistol in his hand.

Police Officer Oscar G. Sorrell was employed by the City of Irondale at the time of appellant’s trial. From 1971 to 1977 he had been employed by the Birmingham Police Department. He was on patrol duty on December 16, 1976, and around noon on that date he received a call on his radio to go to 17 Village Court West. The call he received was signal 66 which meant there was a man with a gun. When he arrived at this address he had a conversation with Burnella Jones in which she mentioned the name of Richard Lake, Jr., and gave the officer a description of appellant and told him what had occurred at her home. Police Officers Dennis Ray Whidby and Michael Owens arrived in separate cars and Officer Sorrell gave them a description of appellant. The three officers started looking for appellant. Officer Sorrell rode in the vicinity of First Street North and Fourth Terrace where he saw appellant struggling with the two officers. Officer Sorrell made an in-court identification of appellant as the individual who was struggling with the other two officers. He saw Officer Owens with a pistol and identified State’s Exhibit 5 as the pistol. He further stated that during the struggle with Officers Whidby and Owens appellant was using profanity. Officer Sorrell was asked to repeat the words used by appellant and stated, “Well, I had rather not say using the profanity.” The court directed the officer to relate the words spoken by appellant and said:

“Well, you MF’s, you are not going to do this to me, you are not going to arrest me. He was saying, ‘Don’t let these MF’s do this to me, don’t let these MF’s arrest me. Get me away from them,’ something to that effect. I know the curse words, I recall those. And he was more or less inciting a rescue, trying to encourage these citizens in the community to ...”

Officer Sorrell further testified that Ms. Jones told him the name of appellant before he was arrested. After being arrested appellant was taken to City Hall where Officer Owens removed a package of marijuana seeds from appellant’s coat pocket and gave the package to Officer Sorrell who put the package in a narcotics envelope, sealed the envelope, put his initials on it and placed the envelope in a narcotics locker. The officer identified State’s Exhibit 4 as the envelope and it was admitted into evidence over appellant’s objection. Immediately thereafter the court reversed himself and sustained the objection to the admission of the envelope. It should be noted here that the envelope containing marijuana seeds had previously been introduced into evidence through the testimony of the Toxicologist Arthur Craig Bailey.

Police Officers Dennis Ray Whidby and Michael Owens were the arresting officers. They were in separate patrol cars and received a message on their car radios which they stated was “Signal 66”, meaning a man with a gun. The address was 17 Village Court. When they arrived at this address they observed Officer Sorrell talking to Ms. Burnella Jones. Sorrell gave Officers Whidby and Owens a description of the suspect and they started looking for him in the neighborhood. Whidby saw a black male in a 1973 Chevrolet Nova with a green vinyl top over green. He was dressed in a white coat and light colored pants. The car was parked close to the curb on Fourth Avenue North about two blocks from Ms. Jones’ apartment. Whidby made an in-court identification of this man as the appellant, Richard Lake. He saw appellant get out of the parked car and start walking away from this car. Upon being confronted by Officer Whidby appellant pulled a pistol from under his coat and pointed it directly at the officer. The officer pulled his revolver and appellant turned and ran. The officer pursued the fleeing man north from Fourth Avenue. At this point Officer Owens saw the fleeing suspect running down the street with a nickel-plated pistol in his hand. He lost sight of the man but both officers found him under a house after, an unidentified woman pointed in the direction of appellant’s travel.' Both officers looked under the house and saw appellant roll out from behind a column and point his pistol at Officer Owens. Appellant was ordered to drop his gun and come out and he complied with the command of the officers. When he emerged from underneath the house he engaged in a fight with both officers. The officers subdued appellant, handcuffed him and put him in a patrol car. Officer Owens then went under the house and got the pistol. It was fully loaded and was subsequently introduced into evidence as State’s Exhibit 5, after Officer Owens stated he put his initials “M.O.” on the weapon. The gun was unloaded and the bullets were introduced into evidence without objection. During the testimony of Officer Owens the packet of marijuana was identified and introduced into evidence as State’s Exhibit 3. The proper predicate was laid by the testimony of Officer Owens that he put the packet in an envelope, taped it, sealed it and put it in the evidence locker, and that it was in the same condition when it was delivered to the office of the Toxicologist as it was when placed in the locker.

Appellant was still fighting Officer Whidby as he was being escorted upstairs at the City Jail and he kicked a plate glass window out.

In an effort to becloud the issues in this case appellant called Dr. Richard Arrington, now the Mayor of Birmingham, who was a member of the City Council at the time of the incident in this case, to prove that appellant had made numerous complaints to him concerning the activities of the Birmingham Police Department. His testimony did not serve to prove or disprove the charges against appellant for assaulting the law enforcement officers who were lawfully engaged in the active performance of their duties.

The same may be said concerning the testimony of the Chief of Police, James Parsons, and the former Mayor, Honorable David Vann.

After the jury returned the three guilty verdicts the trial court deferred sentencing pending the filing of a pre-sentence report. When the pre-sentence report was filed it revealed that appellant had previously been convicted of robbery, assault with intent to rob, and numerous misdemeanors. Robbery and assault with intent to rob are crimes involving moral turpitude.

The jury was composed of ten white persons and two black people and they experienced some difficulty in reaching a verdict. They asked the court to re-define “reasonable doubt” and the jury was so charged. The jury reported they were deadlocked and did not think they could reach a verdict. The court then gave the jury the following supplemental charge:

“All right You know if you all don’t reach a verdict then first I want to remind you that it’s costly to the Defendant, to the State, the Court and of course, all parties. If y’all don’t reach a verdict it means that in another month or two another jury is going to have to hear substantially the same evidence and be faced with the same problem of reaching a verdict. So, you are as capable of reaching that verdict as any jury. And I want to ask you to continue your deliberations, try to get together, and reach a verdict based upon the evidence in this case.”

Appellant contends the trial court was in error in giving the jury the supplemental charge claiming the clear purpose of any supplemental or “Allen charge” to a deadlocked jury is simply to obtain a verdict. No error is committed in supplemental instructions, including the “Allen” or “dynamite” charge, unless it is threatening or coercive in the language used. Jackson v. State, Ala.Cr.App., 375 So.2d 558; Ala.Dig., Criminal Law, Key No. 865(1).

The duration of deliberations by the jury is committed to the sound discretion of the trial court and the exercise of that discretion will not be disturbed on appeal except for clear abuse. Hammons v. State, Ala.Cr.App., 371 So.2d 986.

We hold the supplemental charge was not threatening or coercive in any sense of the word.

Appellant also complains the trial court erred in permitting the State to impeach its own witness by the use of prior inconsistent testimony. Ms. Burnella Jones testified that appellant came to her apartment three times in a matter of minutes and that at no time did she see him with a gun. She had testified at former trials that appellant did have a pistol. The State was taken by surprise and was allowed to refresh the witness’ memory by asking her leading questions concerning prior inconsistent statements. This was the proper procedure and has many times been approved by this court and the Supreme Court. Edwards v. State, 51 Ala.App. 433, 286 So.2d 308; Willingham v. State, 261 Ala. 454, 74 So.2d 241; McElroy’s Alabama Evidence, Third Edition (Gamble) Section 165.01(7)(a).

Finally, appellant contends the trial court erred in failing to charge the jury on simple assault on a peace officer under Section 13-1-41, Code 1975. In Lowe v. State, 54 Ala.App. 280, 307 So.2d 86, this court held that an assault or assault and battery was not a lesser included offense where a deadly weapon, such as a gun or knife, was used. We hold that the court did not err in failing to charge on lesser included offenses under the indictment in this case.

Appellant relies on Sharpe v. State, Ala.Cr.App., 340 So.2d 885. Sharpe is clearly distinguishable in that the court stated that whether an aluminum chair was a deadly weapon was a question of fact for the jury in which event lesser included offenses could be included. But that is not the case here where a pistol was used. As a matter of law a pistol is a deadly weapon.

At the conclusion of the oral charge appellant announced “satisfied” and did not request any written charges. Therefore, nothing is presented for review. Davidson v. State, Ala.Cr.App., 360 So.2d 728, reversed on other grounds.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgments of convictions are, in all things, affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Richard LAKE, Jr. (Re: Richard E. Lake, Jr. v. State of Alabama).
    79-856.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   MADDOX, Justice.

WRIT DENIED-NO OPINION.

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


author: BOOKOUT, Judge.

text:
    Harold THORNTON v. STATE.
    3 Div. 135.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied July 29, 1980.

      Donald V. Watkins and Karen Neal Daniel of Watkins, Carter & Daniel, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Possession of controlled substances (heroin, cocaine, and codeine); sentence: ten years imprisonment and $25,000 fine.

On December 2, 1978, at approximately 7:00 a. m., Montgomery Police Officer J. G. Laing, along with several members of the Montgomery Police Department’s narcotics detail and two Montgomery County deputy sheriffs, executed a search warrant on the residence of the appellant at 455-A Lanier Court, Montgomery, Alabama. The drugs for which appellant was convicted were discovered in plain view on top of a dresser in his bedroom and on top of a table in his dining room. The appellant was placed under arrest at his residence upon discovery of the drugs.

The only issues on this appeal concern the affidavit supporting the search warrant. The affidavit is in pertinent part as follows:

“Before me, the Honorable Mathis W. Piel, Judge of the Municipal Court of the City of Montgomery, Montgomery County, Alabama, the undersigned being first duly sworn, deposes and says:
“That he is a police officer in and for the City of Montgomery, Montgomery, Alabama, and that he has reason to believe, probable cause to believe, and, in fact, does believe, that marijuana, a controlled substance, or any compound, mixture or substance containing marijuana, or heroin, cocaine or dilaudid is being kept, stored and concealed in the residence located at 455 ‘A’ Lanier Court, Montgomery, Alabama. This is in violation of the Alabama Uniform Controlled Substances Act of 1971.
“And the facts tending to establish the foregoing grounds for issuance of a daytime search warrant are as follows:
“On November 29,1978,1 had a conversation with a confidential and reliable informant who has given me information in the past which has proven to be true and correct. Informant has also furnished information in the past to Sergeant E. B. Alford of the Montgomery Police Department as well as Sergeant T. Hudman which has proven to be true and correct and has led to warrants and correct identification on' a subject by the name of R. T. Fuller who robbed the Thoni Gas Station located at 4232 Mobile Highway during the past year. Said informant informed me that within the past twelve hours informant, hereinafter known as ‘A’, was present at the residence located at 455 ‘A’ Lanier Court, Montgomery, Alabama, at which Harold Thornton resides and at that time observed quantities of heroin and cocaine being cut up for distribution. ‘A’ further stated that there was [sic] quantities of dilaudid at that residence.
“Based on the above information, I have probable cause to believe, and do believe, there is presently located at 455 ‘A’ Lanier Court, Montgomery, Alabama, where Harold Thornton resides, a quantity of marijuana, cocaine, heroin and dilaudid, all of which are controlled substances.”

A pretrial motion to quash the search warrant and suppress the evidence was filed by the appellant’s counsel and denied after a suppression hearing. After commencement of the trial, a mistrial was declared. Different attorneys entered the case for appellant and filed a motion to “controvert” the search warrant, suppress the evidence, and disclose the informant. Another suppression hearing was held on the second trial. That motion was denied, trial commenced, and the appellant was convicted.

I

The appellant contends the search warrant should have been suppressed and the evidence excluded because of inconsistent statements made by the affiant, Officer Laing, at the two suppression hearings concerning the affidavit in support of the search warrant.

On the second suppression hearing on June 15, 1979, Officer Laing testified that his informant had given him information some five different times in the past. From Laing’s personal knowledge of facts within his division of the police department, such information had resulted in one arrest and one conviction. The informant’s information had resulted in other arrests, but concerned matters in other divisions, and Laing could not say whether or not convictions were obtained.

Appellant contends that Laing’s testimony was different at the first suppression hearing on May 14, 1979, in the first trial which ended in a mistrial. On that occasion Laing answered questions to the effect that the informant had not previously given him information, and he had no personal knowledge of the informant’s credibility. A transcript of that first suppression hearing is included in the record even though it was part of the proceedings of a trial that resulted in a mistrial and is not a part of the second trial which is the subject of this appeal.

Appeals lie only from judgments of conviction, and then only on those counts upon which there is a finding of guilt. Section 12-22-130, Code of Ala. 1975. Stringer v. State, Ala.Cr.App., 372 So.2d 378 (1979), cert. denied, Ala., 372 So.2d 384; Hammond v. State, Ala.Cr.App., 354 So.2d 280 (1977), cert. denied, Ala., 354 So.2d 294; Forrest v. State, Ala.Cr.App. 344 So.2d 231 (1977). The appellant therefore cannot challenge the ruling of the trial judge on a motion filed in a prior proceeding which did not result in a judgment of conviction.

The record in the instant case certainly reveals that Officer Laing made inconsistent statements in the two suppression hearings; however, at no time during the second hearing did the appellant raise that inconsistency. He did not call it to the attention of the trial judge. He did not cross-examine Laing concerning the inconsistency. His sole effort on that occasion was to attempt to disclose the identity of the informant. Officer Laing’s testimony on the second hearing was sufficient to support the credibility of his informant. In the absence of the trial judge being apprised of the inconsistent prior testimony, his ruling was correct.

There were no objections taken to this matter either at the first suppression hearing, the second suppression hearing, at trial, or in the motion for new trial. Since this issue has been raised for the first time on appeal, it is not subject to review. Slinker v. State, Ala.Cr.App., 344 So.2d 1264 (1977).

II

The appellant contends the affidavit supporting the search warrant did not sufficiently meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), to support a finding of probable cause to search his residence. The appellant specifically alleges that there was no showing the informant was reliable and that the alleged criminal activity of the appellant was not described in sufficient detail.

Aguilar requires that an affidavit based on hearsay information must inform a magistrate of underlying circumstances sufficient to satisfy him of (a) the veracity of the informant and (b) the basis of the informant’s knowledge. In addition, the underlying circumstances must be in sufficient detail so as to inform the magistrate that the information he is relying on in the affidavit is “something more substantial than a casual rumor.” Spinelli, 393 U.S. at 416, 89 S.Ct. at 589.

Veracity

The following assertion of Officer Laing was used in the affidavit in this case: “On November 29, 1978, I had a conversation with a confidential and reliable informant who has given me information in the past which has proven to be true and correct.” The Alabama Supreme Court has approved the use of the assertion, “I have received information from a person whose record of reliability for correctness has been good,” as sufficient to support the veracity requirement of Aguilar. Neugent v. State, Ala., 340 So.2d 52, 53, cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977); Davis v. State, 286 Ala. 117, 237 So.2d 640 (1970). The above two assertions are essentially the same assertions worded differently. In fact, we believe the assertion in this case to be the stronger of the two. To further support the reliability of the informant, the affiant goes on to state that the informant has previously furnished information to two other police officers that “led to warrants and correct identification” concerning a specific robbery. This court in Keller v. State, 54 Ala.App. 127, 305 So.2d 402 (1974), held that an affiant’s assertion that prior information given by an informant led to arrests was a sufficient factual basis to determine the informant’s credibility. “[A]n informer need not be shown to be reliable any particular number of times” before the reliability requirement of an affidavit supporting a search warrant is met. Moore v. State, Ala.Cr.App., 340 So.2d 882, 884, cert. denied, Ala., 340 So.2d 885 (1976).

Basis

The appellant claims the following assertion in the affidavit fails to meet the basis of knowledge requirement of Aguilar: “Said informant informed me that within the past twelve hours informant, hereinafter known as ‘A’, was present at the residence located at 455 ‘A’ Lanier Court, Montgomery, Alabama, at which Harold Thornton resides and at that time observed quantities of heroin and cocaine being cut up for distribution. ‘A’ further stated that there was [sic] quantities of dilaudid at that residence.” It is clear to this court that the personal observation of illegal drugs at a defendant’s residence is not a mere casual rumor. Spinelli, supra.

We conclude that Officer Laing’s affidavit was sufficient on its face to support the issuance of a search warrant.

Ill

The appellant’s last contention of error concerns whether the trial court correctly denied his pretrial motion and attempt at trial to disclose the informant’s identity. He claims that without the disclosure and the opportunity to confront the informant under oath, he was “effectively denied ‘a fair determination of his guilt or innocence.’ ”

This court in Davis v. State, 46 Ala. App. 45, 237 So.2d 635, 638, affirmed, 286 Ala. 117, 237 So.2d 640 (1970), stated:

“In Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, it is fairly well established that the prosecution is entitled to withhold the identity of the informant for at least two reasons: (1) to foster its activities in detecting crimes by keeping open lines of communications with the underworld and (2) to protect informers from harm or reprisal.”

An exception to this privilege is stated in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623,1 L.Ed.2d 639 (1957). This exception arises where (1) it appears the informer’s name is necessary at the trial itself to show the accused’s innocence or guilt and (2) the informant was an active participant in the crime. However, this exception does not arise at a suppression hearing on the question of probable cause for the issuance of a search warrant where there is ample evidence that the officer relied “in good faith upon credible information supplied by a reliable informant.” McCray v. Illinois, 386 U.S. 300, 305, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Kenny v. State, 51 Ala.App. 35, 282 So.2d 387, cert. denied, 291 Ala. 786, 282 So.2d 392 (1973). In this case the appellant relied strictly on the issue of probable cause in his pretrial motion to disclose the informant’s identity and also at the suppression hearing; therefore, he has not fallen within the Roviaro exception.

During the trial of this ease, the trial court denied the appellant’s attorney the opportunity to elicit from Montgomery Police Officer William F. Wright the identity of the informant. A hearing was held out of the presence of the jury wherein the appellant’s attorney contended that one Willie Hardin planted the drugs found in the appellant’s residence. We believe the trial court correctly followed the law in Roviaro and McCray in denying the answer to the question:

“COURT: Okay. The only circumstances that I know of wherein the informant’s identity must be disclosed by the prosecution is where the informer was a witness or participated in the transaction which serves as the basis of the prosecution. We have possession here. I just do not think that the identity of the informant is vital to the defense in this case. Now, I’m not going to allow the witness to answer the question as to who the informer was. We’re talking about possession. We’re not talking about sale.”

The informer in this case merely supplied information to the law enforcement officer to establish probable cause for a search of the appellant’s residence. See: Dixon v. State, 39 Ala.App. 575, 105 So.2d 354 (1958). The burden was on the accused to show why the disclosure of the informant was necessary to show his innocence. Hatton v. State, Ala.Cr.App., 359 So.2d 822, cert. quashed, Ala., 359 So.2d 832 (1978). The appellant, through his own testimony before the jury, was allowed to develop his defense that he thought Willie Hardin was the informant and that Willie Hardin planted the drugs in his residence. The appellant testified that he saw Willie Hardin often, and he had last seen him five days before this trial. He had also told his attorneys about Willie Hardin. The similarity between this case and Hatton ends there.

The appellant’s contention that he was denied the right to confront Willie Hardin (the alleged informant) under oath has no merit. In Hatton the suspected informant was actually called as a witness, but the trial court restricted his testimony. However, in the instant case, the appellant failed to ask for compulsory process for the witness. The failure to ask for compulsory process is a waiver of it. Alabama Constitution 1901, Article I, § 6; Ex parte Craft, 41 Ala.App. 519, 138 So.2d 266 (1962).

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex Parte Harold THORNTON. (Re: Harold Thornton v. State of Alabama).
    No. 79-841.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   FAULKNER, Justice.

WRIT DENIED-NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Chester BLAND v. STATE.
    7 Div. 717.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied Aug. 19, 1980.

      Joel E. Dillard of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The indictment on which appellant-defendant was tried and convicted was in pertinent part as follows:

“Chester Bland ... did falsely pretend to Moore-Handley, Inc. Homecrafters, with the intent to injure or defraud, that he was an agent of Miree Construction Corporation and by means of such false pretense did obtain from the said Moore-Handley, Inc. Homecrafters, building materials, the value of to-wit: $454.83.”

The jury found him guilty, and the court sentenced him to imprisonment for seven years.

Two employees of Moore-Handley, Inc. Homecrafters testified on October 23, 1979, that defendant was at the place of business of said company at its Pelham store on March 13,1979, and obtained material from the company which was placed in a truck that defendant was operating at the time. According to the testimony of one of the witnesses:

“Q. Was this a cash purchase or credit purchase?
“A. It was a credit purchase.
“Q. Did you have any discussion with the Defendant concerning any credit arrangement on this particular purchase?
“A. Yes, sir.
“Q. All right. What was the discussion?
“A. It was going to be charged to Miree Construction.
“Q. All right, what did he tell you, specifically?
“A. That he wanted to make a purchase and charge it to the account of Miree Construction.
“Q. Did he give you any other additional information than Miree Construction Company?
“A. Yes, sir, he gave me the job location.
“Q. What job location did he give you?
“A. 900 Building Oxmoor.
“Q. Did he give you any other information?
“A. Job Number.
“Q. And what is that Job Number?
“A. 780.”

The other employee of Moore-Handley at Pelham also definitely identified defendant as the person operating the truck and obtaining the material. The material was never paid for by Miree Construction Company or by anyone else.

The payroll clerk for Miree Construction Corporation testified that Chester Bland was not an employee of Miree Construction Corporation and that he “was never on our payroll record at any time.” She further said specifically that on March 13, 1979, Chester Bland “was neither an employee or a subcontractor” of Miree Construction Company. She further testified:

“Q. Let me ask you this, Mrs. Miree: On 3-13-79, did you have an agreement, or did the corporation have an agreement, with any subcontractor on a job No. 780?
“Q. Could you answer that question, please, ma’am?
“A. We do not have a job 780.
“Q. Did you have an agreement with any subcontractor, or any individual, that was employed or in some contractual relationship with Miree Construction Company, to do any construction on the 900 Building on Oxmoor on 3-13-79?
“A. No, sir.”

The evidence as a whole shows without dispute that the invoice of Moore-Handley for the particular transaction under consideration bore the purported signature of one James Cook, that the .name Chester Bland was not on said invoice.

The defendant testified in the case. He unequivocally denied any knowledge of or participation in the transaction. He stated positively that he had “never been in Moore-Handley in Pelham.” He further said that he had “never met anybody by the name of James Cook.”

There was considerable other testimony in the case, but the above summary of some of it is sufficient to delineate the real issue of fact between the parties: Who falsely pretended to Moore-Handley, with the intent to injure or defraud, that he was an agent or representative of Miree Construction Corporation and thereby obtained the building materials? It was for the jury to determine that issue. There is no contention to the contrary. There was no contention on the trial, and there is no contention on appeal, that all of the elements of criminal fraud, or obtaining property by false pretense, did not exist.

On account of his indigency, counsel appointed by the court represented him to and through the trial. From the time of his appeal, including the hearing of a motion for new trial, he has been represented by different appointed counsel.

Appellant presents five issues. We consider them separately in the language and in the order of appellant’s brief.

I

DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION FOR NEW TRIAL?

As stated by appellant, the motion was “based upon newly discovered evidence.” The newly discovered evidence now relied upon by appellant is shown by the testimony of the attorney for defendant during the trial, and by the testimony of Mr. Christopher Shehee. The testimony of the former attorney for defendant was to the effect that he did not know of the alleged newly discovered evidence at any time before trial was concluded on October 23, 1979, which testimony appellant contends is sufficient to show that the newly discovered evidence could not have been discovered before trial by the exercise of due diligence. Although appellee does not definitely concede this point, we find it unnecessary to decide it at this time. We consider now the question whether Mr. Shehee’s testimony is sufficient to justify a reversal of the ruling of the trial court denying the motion for a new trial.

The testimony of Mr. Shehee was strong and positive to the effect that on March 14, 1979, the day after the transaction as to the building materials alleged in the indictment, while he was employed by Moore-Handley at Pelham, he took part in two transactions with a man who represented himself to be James Cook who affixed his signature to two Moore-Handley invoices. He testified strongly that that man was not the defendant. He said he saw the purported James Cook sign each of the documents and receive the merchandise reflected on them. He further testified that he did not know the defendant and that he had never seen him before at Moore-Hand-ley Homecrafters at Pelham. Counsel for appellant, with commendable frankness and citation of authorities, recognizes “the heavy burden carried by an appeal of a trial court’s denial of a motion for New Trial based upon newly discovered evidence.” He concedes the elements necessary to establish a right to a new trial on the ground of newly discovered evidence:

“In Taylor v. State, 266 Ala. 618, 97 So.2d 802, the Supreme Court held:
“ 'To establish his right to a new trial on the ground of newly discovered evidence, the defendant must meet the following requirements: (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching.’ ” Young v. State, Ala.Cr.App., 346 So.2d 509, 514 (1977).

Notwithstanding the value of appellant’s argument as to the existence of the first four elements stated, above, we find little to support any contention that the newly discovered evidence was “not merely cumulative or impeaching,” which constitutes the fifth element. When the test of that element is applied to the newly discovered evidence, consideration must be given to the crucial factual issue in the case, which was whether defendant was the person who fraudulently obtained by false misrepresentation building materials on March 13,1979. Unless it had value for that purpose, it would have been without any value whatever; it would have been inadmissible as immaterial and irrelevant. It cannot reasonably be said, we think, that the evidence could not have had some value on such issue, but whatever value it could have had would have been cumulative only, evidence in addition to that presented by the testimony of witnesses for each party on the trial of the case.

In considering the five essential elements, it is to be observed that the first element is as to the potency of the evidence; the second is as to the time of its discovery; the third is as to its discoverability before trial; the fourth is as to its materiality. Meeting the requirements of those elements adds nothing in and of itself to a compliance with the fifth element. The fifth element stands alone, and we find no authority for holding that the newly discovered evidence in this case is not cumulative merely.

In an effort to supply authority for his position on the point, appellant relies on Grissett v. State, 18 Ala.App. 675, 94 So. 271 (1922). He asserts in his brief:

“Though Grissett’s conviction was based upon circumstantial evidence, the newly discovered evidence was similar to that of Chris Shehee in that it tended to prove the quilt of another to the exclusion of the defendant.”

We find such statement correct, but it does not lead to appellant’s desired result in this case. In Grissett, supra, defendant was convicted for the possession of a still for the manufacture of intoxicating liquor. In Grissett, supra, at 94 So. 272, it is stated:

“Except for the fact that the still found was located on land to which defendant held title, the evidence tending to convict the defendant was entirely circumstantial .... The newly discovered evidence offered in support of the motion was to the effect that the witnesses testifying had been to the still about a week before the officers found it and that it was in the possession, under the control, and was -being operated by Snyder, and that defendant was not present, that the next day after the still was found by the officers Snyder called witness off and asked him if he had heard about the officers getting his (Snyder’s) still.. . . ”

In that case, the possession or operation of one still only was involved. In this case, insofar as the new evidence is concerned, three transactions were involved, one on March 13 and two on March 14, 1979. There was no direct testimony in that case that the still was ever “in the possession, under the control, and [or] was being operated” by defendant. Although it appears that in Grissett, supra, defendant contended that Snyder possessed and operated the still, there was no direct evidence thereof. We do not agree with appellant’s characterization of the newly discovered evidence in Grissett, supra, as being “similar to that of Chris Shehee in that it tended to prove the guilt of another to the exclusion of the defendant,” and it is to be said also that it was dissimilar to that of Chris Shehee in that it was not cumulative. In the instant case, there was definite eyewitness testimony that the defendant was the person guilty of the crime alleged. Furthermore, in the instant case there was definite evidence by the testimony of defendant himself that he was not the person that committed the crime. Even if Mr. Shehee had been present on March 13, 1979, at the time of the commission of the alleged crime, and on the motion for a new trial he had testified that the man who obtained the building materials in the manner charged in the indictment and narrated by the testimony of witnesses was not the defendant, such testimony would be merely cumulative on the crucial issue of the identity of the person. Even in that circumstance, the newly discovered evidence would not meet the requirement that it was not merely cumulative. A fortiori, the newly discovered evidence now considered that would merely afford an inference that defendant was not the person who committed the crime would not meet the requirement that the newly discovered evidence must not be merely cumulative.

In addition to our stated reason for rejecting appellant’s contention that he was entitled to a new trial by reason of newly discovered evidence, we note that in the absence of an abuse of discretion on the part of the trial court, an appellate court should not reverse the ruling of the trial court. The record shows that the trial judge acted with patience and indulgence in permitting defendant to present all evidence available to him on the hearing of the motion for new trial, continuing the hearing thereof, at the instance of defendant, after the court had heard some of defendant’s evidence, from December 3, to December 7, 1979. The trial judge doubtless had well in mind the strength of the testimony of the two witnesses who identified defendant as the one who committed the crime. He doubtless also had well in mind the testimony of Mr. Shehee t as to the man whom he dealt with on March 14 under the name of James Cook, whom he described as a man of the same race as defendant but otherwise as a person who could hardly have been mistaken for defendant or vice versa. Interesting also, as to the trial court’s acute and comprehensive understanding of the facts in the case, are pertinent parts of his comments on the hearing of the motion for a new trial, promptly after movant’s counsel argued, in reply to the position taken by State’s counsel that the motion itself did not present grounds for a new trial, that defendant should be allowed to present evidence on the subject. The comments of the trial judge are shown in the following:

“THE COURT: I think that would be relevant testimony in this hearing.
“MR. DILLARD: We would like to put that on anyway, Your Honor.
“THE COURT: I will allow that, but this thing is sort of unique.
“MR. DILLARD: I understand.
“THE COURT: The Defendant brings a brother in here and sits him right on the front seat [referring to what happened on the trial of the case], that looks almost just like him to me. They could have been Siamese twins and wouldn’t have looked more like each other. In examination of some of the witnesses, the Defense asked the question, ‘Which one of these men would you say got the merchandise?’ And the witness identified the Defendant; although, there was a striking similarity between the two of them.
“Now, the point is this, on the trial of the case the Defendant attempted to infer that his brother was the one that got the goods, or could have been his brother, and that didn’t work out and now, he comes in here with another identity situation. As I say, I am willing to hear that.
“MR. DILLARD: Thank you, Your Hon- or. . . .”

We follow what was aptly and recently said by Presiding Judge Harris in McBryar v. State, Ala.Cr.App., 368 So.2d 568, 574, cert. denied, 368 So.2d 575 (1979):

“The appellate courts look with disfavor on motions for new trial based on newly discovered evidence and the decision of the trial court will not be disturbed absent abuse of discretion. Zuck v. State, 57 Ala.App. 15, 325 So.2d 531. The trial court in the case at bar ordered a continuance to provide appellant with the fullest opportunity to gather any new evidence available. He heard all of the evidence and arguments of counsel and weighed the credibility of that evidence. His ruling on the motion for new trial will not be disturbed on appeal.”

Another phase of the testimony of Mr. Shehee on the hearing of the motion for a new trial may need discussion in this part of this opinion devoted to appellant’s Issue I, in order to help clarify a very potentially confusing situation as to the facts in the case that relates also to one or more of the other issues presented by appellant. There would be less confusion if it were known in this case whether there was a man by the name of James Cook who had any part in obtaining material from Moore-Handley Homecrafters at Pelham on March 13 or March 14, 1979. In the absence of such knowledge, James Cook still has the misleading capacity of an ignis fatuus. Mr. Shehee testified that he saw the man place the purported signature of James Cook on the invoices on March 14. Neither of the witnesses for the State on the trial testified that he saw defendant or anyone else place the purported signature on the invoice on March 13. There was evidence on the trial to the effect that another man was to some extent working with defendant in connection with the transaction on March 13. There was also evidence on the trial, which will be hereafter discussed under the topic as to appellant’s Issue II, that appellant returned to Moore-Handley Homecrafters at Pelham on March 14 and transacted business as to two orders, which Mr. Shehee testified were documented by two invoices upon which a man other than the defendant placed the purported signature of James Cook. A new trial would perhaps aid in clarifying the mystery as to the other person, but the newly discovered evidence, when considered alone or when considered with all the other evidence on the trial of the case, would shed no light whatever on the real issue between the parties on the trial now under review.

II

DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF SEPARATE OFFENSES NOT EMBRACED BY THE INDICTMENT?

The evidence to which reference is made was introduced by the State on rebuttal, after defendant had testified that he had never been to Moore-Handley at Pel-ham. The evidence shown in rebuttal was that defendant was at Moore-Handley Ho-mecrafters at Pelham on March 14, 1979, and was a party to two transactions with Moore-Handley on that day. This was one of the witnesses who had previously testified as to the transaction with defendant that constitutes the incident charged in the indictment. His testimony on rebuttal is four transcript pages in length before there was any objection by defendant as to it. During that time, he had testified that defendant had come to him wanting to make a purchase for Miree Construction Company. He said it was the defendant, the same person who had procured building materials the day before. He further said that he “wrote up” two invoices for the transaction, which were identified as State’s Exhibit 3 and State’s Exhibit 4. All of this was without objection by defendant. The first objection was when the State offered Exhibits 3 and 4 in evidence. Then defendant’s counsel stated, “Judge, we object on the grounds that these were made on separate occasions than on the occasion that Defendant was charged with in the indictment.” Even if the objection made was sufficient to preserve the point now made as to “evidence of separate offenses,” it is obvious that the evidence to which the objection was made was of the same nature as, and no more objectionable than, previous lengthy testimony of the witness, and could hardly have been harmful to defendant. Moreover, the evidence falls within at least one of the exceptions to the exclusionary rule against the admissibility of evidence as to other crimes.

“The crime of false pretense has the requisite intent to defraud as its primary element. Therefore, it is generally admissible to show other similar criminal acts to prove this inteht and such constitutes one of the major exceptions to the general rule that one cannot introduce prior criminal acts.” Gamble, McElroy’s Alabama Evidence, § 70.01(10) (1977).

Although, as previously noted, the battleground between the parties was not as to a question of fraudulent intent, this does not militate against the principle that the trial court is not to be reversed for admitting evidence that stands the test of legal principles pertaining to that subject. In Snipes v. State, 50 Ala.App. 139, 277 So.2d 413, wherein both identity and fraudulent intent were actually contested, Judge Harris, now Presiding Judge, renders a valuable treatment of the subject as it pertains to obtaining property by falsely impersonating another with the intent to injure or defraud. In Snipes the admissibility of evidence of other offenses to show identity and to show intent is solidly established.

The court was not in error in overruling defendant’s objection to the admission in evidence of State’s Exhibits 3 and 4.

Ill

DID THE TRIAL COURT ERR IN REFUSING TO ALLOW TESTIMONY AT THE NEW TRIAL HEARING REGARDING THE GENUINENESS OF A PERSON’S HANDWRITING WHEN COMPARED WITH THAT PERSON’S PROVED HANDWRITING?

The reference in appellant’s Issue III is to defendant’s effort on the hearing of the motion for a new trial to show by Mr. Shehee that the purported signature of “James Cook” on the two invoices on March 14 was the handwriting of the same person who imposed the purported signature of “James Cook” on the March 13 invoice. We refer to the transcript as to the particular issue:

“Q. I will ask you, with respect to State’s Exhibit One, if you recognize the handwriting that appears above Customer’s Signature, as the same handwriting with which you are familiar by virtue of your transactions with that same individual, regarding State’s Exhibits Three and Four, and I will ask you not to answer-I am sure there will be an objection.
“THE COURT: I sustain the objection.”

Defendant’s counsel then made a clear statement of his offer of proof.

For two distinct reasons, the court was correct in sustaining the objection to the question. The appellant relies largely upon Code of Alabama 1975, § 12-21-40:

“Comparison of a disputed writing with any writing admitted to be genuine or proven to the reasonable satisfaction of the court to be genuine shall be permitted to be made by witnesses who are qualified as experts or who are familiar with the handwriting of the person whose handwriting is in question, and such writings and the evidence of witnesses respecting the same may be submitted to the court or jury trying the case as evidence of the genuineness or otherwise of the writings in dispute.” (Emphasis supplied)

The source of § 12-21-40 is Acts 1915, No. 90, p. 134, which constituted a change in the common-law rule on the subject. For the statutory rule to be applicable, there must be at least one disputed writing. The evidence was undisputed that the purported signature of one James Cook was on State’s Exhibits 1, 3 and 4. Mr. Shehee testified that a person different from defendant placed the purported signature on Exhibits 3 and 4. Appellant contends that by allowing evidence to show that the purported signature on State’s Exhibit 1 was that of the same person that placed the purported signature on Exhibits 3 and 4 would tend to prove that defendant was not guilty as to the transaction represented by State’s Exhibit 1. Even so, there is no basis for the application of the cited Code Section. Although the three documents were in evidence for consideration by the jury, some of whom doubtless knew as much as Mr. She-hee about comparing handwritings, there was no evidence that the placing of the purported signature on Exhibit 1 was by a person different from the one who placed it on Exhibits 3 and 4. As shown above, there was no testimony of any witness that defendant placed the purported signature on Exhibit 1.

For another reason, the trial court was correct in sustaining the State’s objection to testimony by Mr. Shehee as to whether the handwriting on Exhibit 1 and the handwriting on Exhibits 3 and 4 were that of the same person. Mr. Shehee had no more familiarity with the handwriting of the person who wrote the name of James Cook on the vouchers of March 14 than did the trial judge or any of the jurors in the case. It is hardly likely that the legislation contemplated such a situation. Although there has been considerable liberality in qualifying a witness as one who is “familiar with the handwriting of the person whose handwriting is in question,” there would be nothing to be gained by his testimony if he were no more “familiar” with the handwriting than the triers of the facts in the case. It must be recognized that the evidence called for is opinion evidence, as to which it is correctly stated:

“The opinion rule has as its basis the rationale that the lay witness should not give his opinion when he could give the jury the facts he observed and render them as qualified as he, to draw a conclusion or opinion... . ” Gamble, McElroy’s Alabama Evidence, § 127.01(3) (1977).

IV

DID THE TRIAL COURT ERR IN PERMITTING THE STATE TO ELICIT TESTIMONY FROM THE DEFENDANT REGARDING. HANDWRITING SPECIMENS AFTER THE DEFENSE RESTED, SAID HANDWRITING SPECIMENS HAVING BEEN LOST BY THE STATE AND, THEREFORE, UNAVAILABLE AT TRIAL?

The reference in Issue IV is to something that took place just after the defendant had testified and the transcript shows that the “DEFENSE RESTS.” The transcript then proceeds as follows:

“(WHEREUPON, here was a bench conference between the Court and Counsel for the State and Counsel for the Defendant and out of the hearing of the court reporter; after which, the following took place:)
“MR. DENSON: Judge, we want to enter an objection right here, at this point. The State said they had no further questions and we said we had no further questions.
“THE COURT: All right, let me have it.
“MR. HILL: Judge, I believe the witness wants to tell us something, I am not sure.
“THE COURT: Go ahead.
“MR. BLAND: At the time I was arrested, Bill Wynn was my lawyer. The arresting officer, he had me write James, something, Cook, about twenty-five times and they were going to send that analysis to Montgomery for a handwriting expert to prove that I did do it or not and during that time, they found that my handwriting wasn’t the writing on the ticket.
“MR. HILL: Your Honor, we are going to move to exclude all of that.
“MR. DENSON: No, Your Honor....
“THE COURT: The Court would order the State, or any of the State’s Investigating Officers, including the private officer, to, at this time, to furnish to the court and [any] handwriting speciment [specimen], that is just exactly what the Court is fixing to do, for the examination of the Court.
“MR. HILL: We would be glad to stipulate this report, enter this into evidence, Your Honor, if the Court would like.
“THE COURT: Put this in the record and have the Clerk file it.”

Thereupon, the court excused the jury from the courtroom and directed that they go to lunch, giving them lengthy appropriate instructions. After the noon recess, the following occurred out of the presence of the jury:

“MR. DENSON: Judge, it is my impression, sir, that we are going to introduce those handwriting samples that are already made or are we going to introduce the letter or both of them.
“MR. HILL: Here is State’s Exhibit Two, we are ready to stipulate, if the defendant wants to put it in evidence. We honestly don’t have them; we are not trying to hid [hide] them.
“THE COURT: What happened to them. Did they keep them.
“MR. HILL: If they kept it or it got lost in the mail, this is all I’ve got, Judge. We are not trying to hid [hide] anything.
“THE COURT: Do you want that in? I don’t think the jury has heard it?
“MR. DENSON: I want it in, because he testified those were made.
“MR. HILL: Sure, we will put it in, Judge. We are going to ask him to stipulate to it, we are ready.
“THE COURT: State and Defense Counsel stipulate that State’s Exhibit Two
“MR. HILL: Judge, since this issue has been raised in front of the jury, can I offer it in front of the jury?
“THE COURT: Yes, sir. Bring the jury in, please.
“(WHEREUPON, the jury came into the courtroom from the jury room and the following proceedings were had):
“THE COURT: State’s Exhibit No. Two is received into evidence without objection. Who will you have Mr. Hill?
“MR. HILL: We would like to call Mr. Acker back to the stand please.”

It may be, as appellant urges, that defendant was hurt to some extent by the proceedings as above narrated, but we find nothing therein that justifies a conclusion that the trial court committed error prejudicial to defendant. Furthermore, as appellant concedes, it appears that the handwriting specimens were lost through no intentional act on the part of any agent for the State. It is argued by appellant that for “the District Attorney to elicit testimony from the defendant-particularly after the defense rested-concerning the handwriting specimens, and to then fail to produce them, is reversible error, particularly over the timely objection of defense counsel.” We cannot agree with this argument. In the first place, an inquiry as to whether there was reversible error is addressed to action of the court, not to action of counsel. Furthermore, it is to be noted that notwithstanding the possibility of an objection by defendant’s counsel to further testimony by the defendant, State’s counsel moved the court “to exclude all of that,” but defendant’s counsel then said, ‘No, Your Honor.” If there was any erroneous action at that time, defendant obviously waived it. Appellant further argues that there is “clear implication to the jury . . . that the Court received the specimens, but that counsel for the defendant prevented their introduction into evidence.” Counsel’s commendable loyal zeal for his client is much stronger than the point he endeavors to make. No error prejudicial to defendant is to be found in appellant’s Issue IV.

V

DID THE STATE FAIL TO PROVE THAT THE PERSON WHO SIGNED “JAMES COOK” TO THE INVOICES IN ISSUE EVER OBTAINED THE PROPERTY DESCRIBED IN THE INDICTMENT?

As previously observed, the State did not undertake, and it was not incumbent upon the State, to show that the “person who signed ‘James Cook’ to the invoices in issue ever obtained the property described in the indictment.” The State undertook only, as it was incumbent upon the State to do, to prove that defendant “obtained the property described in the indictment.” There was ample evidence thereof, both direct testimony and circumstantial evidence. In addition to some of the evidence summarized in the early part of this opinion, we note specifically that Mr. Carl Williams testified as to what defendant did in connection with the particular transaction on March 13, 1979, as follows:

“Q. Do you recall this particular ticket?
“A. Yes, sir.
“Q. Do you recall whether or not this material was loaded?
“A. Yes, sir.
“Q. Could you tell us how the material was loaded?
“A. Well, first, you see, I had to put the information on, before he came around to the back.
“Q. Do you know who picked up these materials?
“A. Yes, sir.
“Q. Is that individual in the courtroom today?
“A. Yes, sir.
“Q. Could you point him out, please sir?
“A. The man over there in the blue suit and red tie.
“MR. HILL: All right, could the record reflect that he identified the Defendant?
“THE COURT: So ordered.”

The case is free of error 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.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

With his application for rehearing appellant filed a request for additional facts pursuant to Rule 39(k), ARAP. He states that the following facts were omitted from the opinion:

“1. Mike Acker, for the prosecution, testified that Chester Bland signed for the materials which are described in the indictment. (R. 39)
“2. Mike Acker, for the prosecution, also testified that only Chris Shehee or Ralph Bryant could have effected final delivery of the goods described in the indictment and the other invoices admitted into evidence at trial. (R. 37)
“3. The invoices which were admitted into evidence regarding materials not described in the indictment, which were Exhibits 3 and 4, dealt with transactions subsequent to the transaction for which Chester Bland was indicted. (R. 78).”

In reply to the request, we state:

1. Mike Acker, for the prosecution, testified that Chester Bland signed for the materials which are described in the indictment, but immediately after so testifying, in answer to a question by the court “Did you see the Defendant sign the document” he replied: “No, sir, I did not.”
2. We are unable to state that the record shows that as factual testimony “Mike Acker, for the prosecution, also testified that only Chris Shehee or Ralph Bryant could have effected final delivery of the goods described in the indictment and the other invoices admitted into evidence at trial.”
3. The invoices which were admitted into evidence regarding materials not described in the indictment, which were Exhibits 3 and 4, dealt with transactions subsequent to the transaction for which Chester Bland was indicted.

Mr. Shehee testified on the motion for a new trial that he saw the man place the purported signature of James Cook on the invoices on March 14. Neither of the witnesses for the State as to the transaction testified that he saw defendant or anyone else place the purported signature on the invoice on March 13. There was evidence on the trial to the effect that another man was to some extent working with defendant in connection with the transaction on March 13.

In our inability to accept as factually correct, as distinguished from the mere surmise of the witness Mike Acker not based on anything that he observed, is to be found the basis for the major difference between our view and that of counsel for appellant as to the action of the trial court in overruling defendant’s motion for a new trial.

The application for rehearing should be overruled.

OPINION EXTENDED.

APPLICATION OVERRULED.

All the Judges concur.


text:
    Ex parte Chester BLAND. (Re: Chester Bland v. State of Alabama).
    79-911.
    Supreme Court of Alabama.
    Dec. 5, 1980.
   TORBERT, Chief Justice.

WRIT DENIED-NO OPINION.

FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.