author: BOOKOUT, Judge.

text:
    Harry REDUS v. STATE.
    8 Div. 396.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      Jack F. Porter, III, and Jack Livingston of Livingston, Porter & Paulk, Scottsboro, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Second degree murder; sentence: imprisonment for ten years and one day.

On the afternoon of September 1, 1979, the appellant was driving his truck on East Maple Street in Scottsboro, Alabama. Charlie McCamey was a passenger in the truck. As they approached an area of East Maple Street in front of the residence of James Cothron and Annie Ruth Moore, the truck swerved off the right side of the street, cut down a fire hydrant, and ran over two young boys who were playing on the grassy shoulder of the street. Eight-year-old Tony Wellington died as a result of this accident.

Scottsboro Police Officer John Childress arrested the appellant at the scene of the accident and charged him with driving while intoxicated. Officer Childress testified that the appellant’s speech was slurred and he smelled of alcoholic beverages. The appellant was staggering, and Officer Chil-dress had to assist him in walking. Officer Childress gave his experienced opinion that the appellant was intoxicated at the time of the accident. There were no alcoholic beverages found in the truck.

Officer Jack Ledwell also saw the appellant at the scene of the accident. The appellant was weaving and unsteady on his feet. He could not walk straight. Officer Ledwell observed no injuries about the person of the appellant, but he did smell the odor of alcohol. Officer Ledwell testified that based on his experience the appellant was intoxicated.

After the appellant was transported to City Hall, Officer Ledwell administered a photoelectric intoximeter (PEI) test to him. This test measures the alcohol content of a person’s blood. The result of the test was .22 percent by weight of alcohol in appellant’s blood. Section 32-5-193(a)(3), Code of Ala.1975, provides: “If there was at that time 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.” The trial court instructed the jury as to that rebut-table presumption in the court’s oral charge.

Scottsboro Police Captain Keith Smith testified that he questioned the appellant at police headquarters after advising him of his constitutional rights. The appellant stated he was driving the truck and had “had a couple of beers.”

I

The appellant claims the trial court committed reversible error in denying his motion to produce certain written statements taken from two eyewitnesses by police officers.

On direct examination the testimony of State’s witness James Cothron revealed an eyewitness account of the events leading to the charge on which the appellant was convicted. On cross-examination Mr. Cothron stated he gave Officer Jack Ledwell a written statement. The appellant’s attorney then requested production of this witness’s statement for purposes of cross-examination. The trial court denied the request.

The testimony of State’s witness Annie Ruth Moore was similar to that of Mr. Cothron. She also testified on cross-examination that she gave a written statement to a police officer. The appellant’s motion to produce was again denied.

In the case of Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973), the following is stated:

“The first requisite necessary to secure for inspection production of a ‘statement’ of a witness for use on cross examination of the witness is that the statement must be one in writing prepared by him or prepared by another at his instance and signed by him or otherwise authenticated by him.. .. ”

Neither of the witnesses in the instant case indicated that they had signed or authenticated their statements. It was incumbent upon the appellant to make such inquiry. Fortenberry v. State, 55 Ala.App. 1, 312 So.2d 573 (1975).

The appellant made no showing that the statements were essential for cross-examination. There was no indication that the State used any of the statements to question the witnesses at trial. In order to show a denial of due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the evidence sought must be essential to guilt or innocence. This was not shown in the instant case. We believe the trial court did not abuse its discretion in denying production of the written statements. Cooks, supra.

The appellant cites the federal Jencks Act, 18 USC § 3500, and several federal cases in support of his argument. Those authorities cited by appellant apply only to federal criminal prosecutions. Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965).

II

The appellant contends that the State failed to lay a proper predicate for the admission into evidence of the photoelectric intoximeter (PEI) test.

A

The appellant contends that the State presented insufficient evidence to establish that the PEI test had been officially approved and adopted by officials of the law enforcement agency that administered the test.

Section 32-5-192(a), Code of Ala. 1975, requires that the law enforcement agency must designate which test (blood, breath or urine) is to be administrated. Estes v. State, Ala.Cr.App., 358 So.2d 1050, cert. denied, Ala., 358 So.2d 1057 (1978). This information may be supplied by the officer who administered the test. Estes, supra.

Scottsboro Police Officer Jack Ledwell administered the PEI test to the appellant in the instant case. Officer Ledwell testified that he' transported the appellant to City Hall where a photoelectric intoximeter was located to determine the alcoholic content of appellant’s blood. Officer Ledwell testified he was licensed to operate the PEI test. Officer Ledwell’s certification, issued by the State Department of Public Health and admitted into evidence as State’s Exhibit 14, certified him to operate the PEI only. Officer Ledwell testified he followed the rules and regulations promulgated by the Department of Public Health. Those rules and regulations were admitted into evidence. Officer Ledwell testified he followed a form card issued by the Department of Public Health in administering the PEI test to the appellant. That card was admitted into evidence as State’s Exhibit 15 and shows Officer Ledwell as the operator and the appellant as the subject.

Although there was no specific testimony from Officer Ledwell stating which test the Scottsboro Police Department had authorized, we believe a reading of the whole of Officer Ledwell’s testimony can leave no doubt as to which test was, in fact, designated and authorized. Officer Ledwell testified that the PEI test was “standard operating procedure” for the city of Scottsboro. We believe the proper predicate was laid. Estes, supra.

B

The appellant next contends that the State failed to prove that he voluntarily consented to take the PEI test as required by § 32-5-192, supra. Section 32-5-192 does not require voluntary consent for one lawfully arrested for driving while intoxicated.

Section 32-5-192, in pertinent part, provides the following:

“(a) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given his consent, subject to the provisions of this division, to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor. .. . Such person shall be told that his failure to submit to such a chemical test will result in the suspension of his privilege to. operate a motor vehicle for a period of 45 days.
“(b) Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by subsection (a) of this section and the test or tests may be administered, subject to the provisions of this division.
“(c) If a person under arrest refuses upon the request of a law-enforcement officer to submit to a chemical test designated by the law-enforcement agency as provided in subsection (a) of this section, none shall be given. ... ”

The privilege of driving on the highways of Alabama also entails an “implied consent” on the part of the accused to take a chemical test for intoxication if he has been lawfully arrested for driving while intoxicated. This is so even if one is incapable of refusing to consent. Section 32-5-192 does not require that on a criminal charge one must be told that he has a right to refuse the chemical test. Hill v. State, Ala.Cr.App., 366 So.2d 296, affirmed, Ala., 366 So.2d 318 (1979). The failure to inform a non-consenting motorist of the consequences of his refusal only affects the validity of the revocation of his driver’s license — a civil sanction. Garrison v. Dothard, Ala.Civ.App., 366 So.2d 1129 (1979).

The appellant also cites to this court Delarosa v. State, Ala.Cr.App., 384 So.2d 876, cert. denied, Ala., 384 So.2d 880 (1980), for the proposition that consent must be voluntarily given. In Delarosa the defendant was not under arrest and was not in custody. Therefore, that case does not apply in the instant situation where the appellant was under arrest for driving while intoxicated and in custody at the time of the PEI test.

Ill

The appellant contends that the prosecutor committed reversible error by commenting during closing argument on failure of the appellant to testify.

At the end of closing arguments and outside the presence of the jury, counsel for the appellant moved for a mistrial:

“MR. LIVINGSTON: The defendant would move for a mistrial at this point in time on the grounds that the State’s comments, solicitor’s comments in the closing argument of the defendant’s failure to testify; in his closing argument, the District Attorney, in responding to or replying in regarding the witness, McCamy’s (sic) failure to testify pointed at the defendant and stated to the jury, ‘He is the driver; there is the witness,’ or words to this effect, which the Reporter has transcribed.
“MR. DUKE: I consider that a totally inaccurate statement of what was said; and I hope it is transcribed.
“THE COURT: I recall the statement being that the District Attorney pointed in some direction and said, ‘There is the passenger.’
“MR. LIVINGSTON: He said, ‘There is the driver’; that is my recollection; anyway, the Reporter has it down.
“THE COURT: All right; motion denied. Bring the jury in.”

In order to predicate error on prejudicial comments of the prosecutor, counsel must either have the court reporter transcribe the statements objected to into the record or else state the substance of the statement or comment into the record in sufficient detail that this court can comprehend what was said. Whitt v. State, Ala., 370 So.2d 736 (1979); Tillman v. State, Ala., 374 So.2d 926 (1979). In the instant case, the objection was fragmentary and the substance of the prosecutor’s comments was not set out with sufficient clarity for us to determine whether or not the comment pointed out to the jury the appellant’s failure to take the stand and testify. Defense counsel’s rendition of the comment was disputed by both the prosecutor and the trial judge when the objection was made. We cannot judge from the record who was correct in this regard, but the law presumes the ruling of the trial court to be correct in the absence of a clear showing otherwise. Huffman v. State, Ala.Cr.App., 360 So.2d 1038 (1977), affirmed, Ala., 360 So.2d 1045 (1978).

In any event, the objection came at the end of closing arguments and not at the time the comment occurred. The objection came too late, and it was likewise too late to set out on motion for new trial the court reporter’s transcript of the prosecutor’s comments. King v. State, 48 Ala.App. 154, 262 So.2d 764 (1972), cert. denied, 288 Ala. 744, 262 So.2d 767 (1972).

The comment complained of, shown in Defendant’s Exhibit 1 introduced in the hearing on motion for new trial, appears as follows:

“He makes you think we should have put Mr. McCamey on, the passenger; the passenger, there is the passenger; the driver. Where is Mr. McCamey? If they wanted to hear his testimony, I presented my ease in the best way I knew how and then he wants to say, ‘Why didn’t he put on Mr. McCamey?’ Don’t you know if there had been another car, Mr. McCam-ey would have been here to testify? Can’t you see that? That is obvious; the passenger in the car would have been here to testify; but he is not here to testify; it’s not up to us to bring in his witnesses for him.”

The above statement appears to be a reply to an earlier defense comment that the State should have called as a witness the passenger in appellant’s truck, Charlie McCamey. We do not take the above statement to be even an indirect comment of the failure of the appellant to testify. We, therefore, find no abuse of discretion on the part of the trial court in denying the appellant’s motion for a mistrial and his subsequent motion for a new trial. Washington v. State, 259 Ala. 104, 65 So.2d 704 (1953).

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex Parte Harry REDUS. (Re: Harry Redus v. State of Alabama).
    80-413.
    Supreme Court of Alabama.
    May 28, 1981
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Michael HINSHAW v. STATE.
    4 Div. 841.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.
    Rehearing Denied Feb. 24, 1981.

      Winn S. L. Faulk, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leveretté, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for theft of property in the second degree. Alabama Code 1975, Section 13A-8-4. Sentence was four years’ imprisonment.

The defendant contends that his written confession was coerced and involuntary and therefore should not have been admitted into evidence. We agree.

The defendant was a manager-trainee at the Volume Shoe Store in Dothan, Alabama. Jeanie Putnan, the manager of the store, suspected the defendant of stealing money from the cash register. She began a check on the defendant and on five days determined that money was missing from the register after the defendant had operated and been in charge of the register.

Ms. Putnan contacted Lenard Alvin Richardson, District Supervisor of Volume Shoe Corporation. In a room in back of the store, Ms. Putnan and Richardson questioned the defendant who initially denied any wrongdoing. Ms. Putnan testified that the defendant changed his story and admitted taking the money after he was told that, if he did not admit it and sign a written confession of guilt, the police would be called.

Richardson testified that he asked the defendant if he had taken money. When the defendant denied it, Richardson told him that he had proof. After this the defendant confessed but refused to give a written statement of his wrongdoing in the store since his employment. Only after this refusal did Richardson threaten to have the defendant arrested and prosecuted if the defendant did not give the written statement.

“THE COURT: Okay. Let me get one thing clear. You tell the Court and the Jury that he orally confessed to have taken the money to you. And then you asked him to write the statement down. And, he balked at that or refused to do it and it was at that time that you said you were going to call the police if he did not make a written statement? Is that correct?
“THE WITNESS (Richardson): That is right.”

Richardson admitted that he intended to call the police whether or not the defendant made the written statement. Richardson testified that he was going to prosecute the defendant and “just wanted to get an admission of guilt.” Prior to taking the statement, Richardson had had no contact with the police.

During the hearing on the motion to suppress the defendant did not testify or put on any evidence. After the State had rested its case the defendant testified and denied taking any money. He stated that during the time he was working for the Volume Shoe Store he was on probation from a forgery conviction. He testified that he only admitted taking the money after Richardson promised not to prosecute and call the police if he would admit his guilt. Since the defendant was on probation, he thought “that would be the easiest way to keep from being in trouble.”

In rebuttal, Ms. Putnan testified that she did not learn that the defendant had been convicted of a felony until the day of his arrest.

The constitutional rights of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are not required to be given in order to prove the voluntariness of a confession when the confession is made to a person who is not an officer of the law. Robinson v. State, 45 Ala.App. 74, 224 So.2d 675 (1969). Therefore, both the oral and written confessions were admissible if voluntary despite the fact that the defendant was not warned of his “Miranda rights” before questioning.

However, “(f)or a confession to be impermissible by reason of its being induced by an improper promise, it is not absolutely necessary that the promisor be an officer of the law.” Allen v. State, 53 Ala.App. 66, 73, 297 So.2d 391, cert. denied, 292 Ala. 707, 297 So.2d 399 (1974). See also C. Gamble, McElroy’s Alabama Evidence, Section 200.-06 (3rd ed. 1977).

In this case, it is clear that the written confession should not have been admitted. The rule is that “(a) confession is not admissible if it was induced by a promise that accused would not be prosecuted or would be released if he confessed.” McElroy, Section 200.07(6). The conviction in Murphy v. State, 63 Ala. 1 (1879), was reversed because the trial court erroneously admitted the confession made after a clerk of the burglarized store told the accused that, if he confessed, he would not prosecute him or appear as a witness against him. See other cases cited at McElroy, Section 200.07(6).

It is equally as clear that from Mr. Richardson’s testimony that he did not make any promises to the defendant until after the defendant had orally admitted his guilt, the trial judge could have properly found the oral confession to have been voluntary.

The issue then becomes whether the admission of an involuntary written confession constitutes harmless error where an oral confession has been properly admitted into evidence. This Court addressed this issue in Price v. State, Ala.Cr.App., 393 So.2d 1242 (1980).

“ ‘Where there is one confession by a defendant properly admitted into evidence and there was strong corroborative evidence of the guilt of the defendant, the admission of another confession, even though it should have been excluded upon objection, is harmless error.’ Kelley v. State, 366 So.2d 1145, 1150 (Ala.Cr.App. 1979) citing Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). The facts and circumstances of each individual case must be examined to determine whether or not the admission of the illegal evidence prejudiced the defendant. Klemmer v. State, 51 Ala.App. 383, 286 So.2d 58, cert. denied, 291 Ala. 786, 286 So.2d 62, cert. denied, 416 U.S. 957, 94 S.Ct. 1972, 40 L.Ed.2d 308 (1974); Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973); Myers v. State, 40 Ala.App. 617, 119 So.2d 602 (1960); Minirth v. State, 40 Ala.App. 527, 117 So.2d 355, cert. denied, 270 Ala. 228, 117 So.2d 360 (1960). In some cases it may be impossible to avoid the conclusion that a written confession was accorded greater weight by the jury than was the oral one even though the oral confession was identical in all material facts with the written one. People v. Garofolo, 415 N.Y.S.2d 810, 46 N.Y.2d 592, 389 N.E.2d 123 (1979). In others, harmless error may exist even though the objectionable statement conflicts with the defendant’s testimony at trial. People v. Webb, 83 Cal.App.3d 83, 147 Cal.Rptr. 608 (1978). In still other cases, the erroneous admission of a confession may constitute a sufficient basis for a reversal even if the evidence, absent the confession, establishes a prima facie case against the defendant. Chunn v. State, 339 So.2d 1100 (Ala.Cr.App.1976).”

In Webb, supra, the California court held that any error in admitting an exculpatory statement by the accused was harmless beyond a reasonable doubt even though the statement was inconsistent with the accused’s trial testimony, where the statement was only cumulative of another statement the accused had previously volunteered. In so holding, the court noted:

“We observe in passing that in no event was reversible error committed. Since the statement was not a confession, its erroneous admission is not reversible error per se; rather, the test is that ‘the People (must) show beyond a reasonable doubt that the error complained of did not contribute to the verdict (citations).’ ” Webb, 147 Cal.Rptr. at 614.

In People v. Garofolo, supra, the New York court held that the introduction of an involuntary written confession following the prior introduction of an untainted oral confession was error prejudicial to the accused.

“But the People contend that, because the untainted oral confession was identical in all material respects with the written one, it was not error to have failed to suppress the latter. We do not agree. It is well-nigh impossible to avoid the conclusion that the written version was accorded greater weight by the jury than was the oral one (see People v. Donovan, supra, 13 N.Y.2d [148] p. 153, 243 N.Y. S.2d [841] p. 844, 193 N.E.2d [628] p. 630). As witness the rules relating to parol evidence and the Statute of Frauds, written documents, especially those signed by the parties to be charged, are commonly understood, even if sometimes undeservedly, to evince a degree of deliberation and authenticity not generally associated with oral proof of the same events (see, generally, 9 Wigmore, Evidence Section 2454). This is not a preference confined to the legal mind alone. Serious written materials, in book form or otherwise, ordinarily are looked at as more reliable than their more evanescent oral counterparts, which are so much more often subject to the vagaries of memory and narration. So, when coupled with a confirmatory writing, even an oral settlement takes on added credibility. Thus, by reiterating and, hence, corroborating the substance of oral confession, the written statement may well have erased whatever doubts the jury entertained concerning the credibility of the witnesses upon whom the People had to rely to prove the contents of the unwritten one.” Garofolo, 415 N.Y.S.2d at 815, 46 N.Y.2d 592, 389 N.E.2d 123.

In this ease we need not and do not hold that the erroneous denial of a motion to suppress a written confession can never be considered harmless error, notwithstanding the introduction at trial of a prior untainted oral confession. We do hold that in this case the admission of the written , confession was error prejudicial to the defendant.

Here the written confession contained information not admitted in the oral confession. The oral confession was merely an admission of guilt. The written confession specified the days on which the money was taken and the amount taken on each day. Because of this additional information, we cannot declare that the error in the admission of the written confession was harmless beyond a reasonable doubt.

The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges Concur.


author: BEATTY, Justice.

text:
    Ex Parte State of Alabama. (Re: Michael HINSHAW v. STATE of Alabama).
    80-375.
    Supreme Court of Alabama.
    May 22, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Herbert Napoleon BOYKIN v. STATE.
    6 Div. 369.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.
    Rehearing Denied March 17, 1981.

      Tim W. Bice, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for State.
   BOWEN, Judge.

The defendant was indicted and convicted for buying, receiving or concealing several packages of meat, valued at approximately $51.61, the property of the Belleview Plaza Food World in Fairfield. Sentence was seven years’ imprisonment.

On December 11, 1979, around 3:30 P.M., the defendant wearing a long overcoat, entered the Belleview Plaza Food World with another man. They went to the meat case and, after a period of time, left the store apparently without making a purchase. After he exited, Fairfield police officer Ruben Wilkinson and his partner talked to the defendant. After the conversation the officers continued to observe the defendant as he drove his car to another parking space and entered the Woolco Department Store at the shopping center. The officers drove to the parked car where they saw on the ground beside the car several packages of meat affixed with the Food World label. The packages of meat were partially covered by a tan overcoat. Shortly thereafter, the officers arrested the defendant.

Inspection revealed that the packages of meat were cold and damp. The defendant’s overcoat and the one covering the packages had slits cut in their inner lining thereby forming a pocket. Both coats had moisture inside and outside the pocket area.

The defendant made two oral statements to the officers, and both were properly admitted into evidence. In the first statement the defendant denied having any knowledge about the packages of meat. In the second statement he stated that a man named Hank, who had entered the Woolco Department Store with him, had taken the packages of meat. The police could not locate Hank.

I

The defendant contends that the trial court erred in denying his motions to suppress and exclude the State’s evidence. Both motions are specifically based upon the assertion that the State failed to prove that the meat was stolen from the Belle-view Plaza Food World.

A

Our search of the record reveals that the trial court did not rule upon the motion to suppress and the defendant did not object to the failure of the trial court to rule.

Review on appeal is limited to matters on which rulings are invoked at the trial court. Delarosa v. State, Ala.Cr.App., 384 So.2d 876, cert. denied, Ala., 384 So.2d 880 (1980); Magro v. State, Ala.Cr.App., 384 So.2d 871, cert. denied, Ala., 384 So.2d 875 (1980); McGee v. State, Ala.Cr.App., 383 So.2d 881, cert. denied, Ala., 383 So.2d 884 (1980); and cases cited therein; 6B Alabama Digest Criminal Law 1045. See also Mitchell v. State, Ala.Cr.App., 338 So.2d 524 (1976).

B

Mr. Jerry Fewell, manager of the Belle-view Plaza Food World, stated that he identified the packages of meat found beside the automobile which the defendant was either driving or riding in as having the store label upon them. He stated the meat was fresh with its temperature being approximately the same as the meat contained in the store’s meat case. Mr. Fewell stated that he knew the meat came from his store due to its temperature and the distance to the nearest Food World store. He testified that on December 11, 1979, he saw the defendant, wearing a long overcoat, enter the store and go to the meat cases. The defendant did not use a shopping cart and, apparently, made no purchase. Fewell stated that he watched the defendant because of the long overcoat he was wearing. Mr. Fewell did not see the defendant take anything.

Mr. Ronnie Thomas, an assistant manager of the Belleview Plaza Food World, testified that he also observed the defendant around the meat case although he did not see him take anything. He stated that he checked the cash register receipts to determine whether the packages of meat had been bought which proved that they had not.

Fairfield Police Officer Ruben Wilkinson testified that he arrested the defendant after his partner and he discovered the packages of meat on the ground near the automobile the defendant was in. He stated that no sales receipts for the meat were found in or around the vehicle.

The offense of buying, receiving or concealing stolen property requires the State to prove that: (1) the property in question has been stolen, (2) the defendant bought, received, concealed or aided in concealing the property, knowing that it was stolen, and (3) the defendant bought, received, concealed, or aided in concealing the property without the intent to restore it to the owner. Collins v. State, Ala.Cr.App., 385 So.2d 993 (1979), reversed on other grounds, Ala., 385 So.2d 1005 (1980); Franklin v. State, Ala.Cr.App., 378 So.2d 267, cert. denied, Ala., 378 So.2d 270 (1979); Section 13-3-55, Code of Alabama 1975. Possession by an accused of recently stolen property places upon him the burden of reasonably explaining the possession, and absent any explanation an inference of guilt may arise which will support a conviction if sufficient proof of the above three elements has been made. Kilpatrick v. State, Ala.Cr.App., 383 So.2d 863, cert. denied, Ala., 383 So.2d 867 (1980); Causey v. State, Ala.Cr.App., 374 So.2d 406, cert. denied, Ala., 374 So.2d 413 (1979). The reasonableness of an accused’s explanation is to be determined from all the facts and circumstances surrounding the transaction. Ford v. State, Ala.Cr.App., 383 So.2d 601 (1980). Possession is not limited to actual manual control by the person. Rather, if the stolen property is under one’s power and dominion, it is possessed by him. McConnell v. State, 48 Ala.App. 523, 266 So.2d 328, cert. denied, 289 Ala. 746, 266 So.2d 334 (1972).

In a case involving the buying, receiving, or concealing of stolen property, the requisite knowledge or scienter may be inferred by the jury from the possession of recently stolen property as well as the facts and circumstances surrounding the entire transaction. Ford, supra; Causey, supra; Waters v. State, Ala.Cr.App., 360 So.2d 358, cert. denied, Ala., 360 So.2d 367 (1978).

The corpus delicti of buying, receiving, or concealing stolen property may be proven by circumstantial as well as direct evidence. Wilson v. State, Ala.Cr.App., 361 So.2d 1167 (1978); and cases cited therein. 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 review to determine whether or not any theory of the evidence exists from which the jury could have excluded every hypothesis except guilty beyond a reasonable doubt. It is within the province of the jury to decide whether or not circumstantial evidence tending to connect the appellant with the crime excludes to a moral certainty every other reasonable hypothesis than that of appellant’s guilt.” Cumbo, supra, at 875.

“(I)f facts are presented from which the jury may reasonably infer that the crime has been committed, although established by circumstantial evidence, the question must be submitted to the jury.” Hopson v. State, Ala.Cr.App., 352 So.2d 500, 502, affirmed, Ala., 352 So.2d 506 (1976). Mauldin v. State, Ala.Cr.App., 376 So.2d 788, cert. denied, Ala., 376 So.2d 793 (1979).

In the instant case, the State presented ample evidence for the jury to have inferred that the packages of meat had been stolen. Evidence was also presented from which the jury could have reasonably inferred that the defendant committed the offense with which he was charged. Consequently, the trial court properly overruled the defendant’s motion to exclude. Mainor v. State, Ala.Cr.App., 348 So.2d 1083, cert. denied, Ala., 348 So.2d 1091 (1977); Section 13-5-55.

C

The defendant argues that he should not have been convicted for the crime of receiving stolen property because the evidence shows that he was a participant in the actual theft of that same property. Even if we hold the comments made by defense counsel during the hearing of the motion for new trial sufficient to have properly and timely raised this issue in the trial court, Jones v. State, 373 So.2d 1221, 1225 (Ala.Cr.App.), cert. denied, 373 So.2d 1225 (Ala.1979), the defendant’s conviction is still due to be affirmed on this ground.

“(Criminal liability for receiving or concealing stolen property may attach where one was present but did not participate in the actual taking and carrying away of the property.” Thomas v. State, 389 So.2d 552, 554 (Ala.Cr.App.1980); White v. State, 383 So.2d 888 (Ala.Cr.App.), cert. denied, 383 So.2d 892 (Ala.1980); Mefford v. State, 363 So.2d 1050 (Ala.Cr.App.1978).

“One who was present at the time of the commission of larceny and aided in the commission thereof, although he was not guilty of the actual taking, can be convicted of receiving or concealing the property so stolen, for the reason that the receiving of the property is subsequent to the larceny in fact and not a part of it.” 76 C.J.S. Receiving Stolen Goods, Section 14c (1952).

See also Thomas, 389 So.2d at 555.

From the State’s evidence reasonable inferences could be drawn that the defendant either actually stole the meat or that he, at least, aided in carrying the meat from the store. However, it is also reasonable to infer that the defendant merely aided in concealing meat stolen by Hank. The defendant’s own statement in which he admitted that Hank took the meat, the fact that no one saw the defendant take any meat and the fact that the officers, who observed the defendant outside Food World, did not notice any unusual bulkiness in the defendant’s coat would allow this inference.

This was a question for the jury. From the evidence we cannot state that the jury’s verdict is against the weight of the evidence. Therefore, we find no error in the trial judge’s action in overruling the defendant’s motion for new trial.

II

The defendant asserts that the trial court erred in denying his motion to dismiss the indictment for lack of a speedy trial. Although the defendant went to trial without securing a ruling from the trial judge on his motion to dismiss or making any objection on the judge’s failure to rule, we need not decide whether or not the defendant waived the matter.

After a review of the record in light of standards outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2181, 33 L.Ed.2d 101 (1972), we find no undue or prejudicial delay of the defendant’s right to a speedy trial.

The relevant times and events are as follows:

December 11,1979 Crime committed
December 13,1979 Defendant arrested
March 28, 1980 Indictment
April 16,1980 and Case passed to be reset. No
May 7, 1980 objection by defendant appears in the record.
May 16,1980 Counsel appointed and defendant arraigned
June 11,1980 Motion to Dismiss For Lack of Speedy Trial
June 19,1980 Trial and Conviction

Under these particular circumstances, we find that the delay was not “presumptively prejudicial.” Barker, supra; Wade v. State, 381 So.2d 1057 (Ala.Cr.App.), cert. denied, 381 So.2d 1062 (Ala.1980).

III

The defendant contends that the trial court erred in denying his motion for a mistrial based upon the ground that Mr. Thomas’ testimony was unduly influenced by Mr. Fewell.

The defendant asserts that he subpoenaed Mr. Thomas (although the record does not confirm this) as his witness and that Thomas was sequestered with the State’s witnesses. He argues that by placing Mr. Thomas in the same room with Mr. Fewell, Thomas’ testimony was drastically altered and he became an adverse witness.

There is nothing in the record to support the defendant’s bare assertion. Evans v. State, Ala.Cr.App., 341 So.2d 749, cert. denied, Ala., 341 So.2d 750 (1977). See also Jenkins v. State, Ala.Cr.App., 384 So.2d 1135 (1979), cert. denied, Ala., 384 So.2d 1141 (1980). No evidence was offered or testimony taken in support of such. Mr. Thomas was called by and testified favorably for the State. His testimony, including the defendant’s cross examination, does not support the defendant’s argument. Consequently, we find nothing in the record to substantiate the defendant’s contention.

IV

The defendant asserts that the trial court erred in failing to give his written requested charge concerning control over stolen property. The oral instructions of the trial court fairly and substantially, and almost word for word, covered the written charge requested by the defendant. Consequently, the refusal of the requested charge was not error. Alabama Code 1975, Section 12-16-13.

We have searched the record for preserved error prejudicial to the defendant. Finding none, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


author: SHORES, Justice.

text:
    Ex Parte Herbert Napoleon BOYKIN. (Re: Herbert Napoleon Boykin v. State of Alabama).
    80-442.
    Supreme Court of Alabama.
    May 22, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: DeCARLO, Judge. DeCARLO, Judge.

text:
    Lorenzo RAINER v. STATE.
    3 Div. 311.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    On Return to Remand May 5, 1981.

      Harold L. Wilson, Hayneville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Theft, second degree; ten years.

On the afternoon of February 27, 1980, the appellant and his companion entered the service station of C. C. Golson in Fort Deposit, Alabama, operated by Mr. Lawrence Capps and Mr. Charles Jordan. Mr. Capps used a cigar box to store money for making change on cigarette sales. On the day of the theft, the cigar box contained approximately thirty-five dollars. While Capps and Jordan were outside, the appellant and his companion stole the cigar box of money and ran away. Before appellant and his companion left the premises, Mr. Capps confronted them and he saw the companion “stick something under his jacket.” At that point, Mr. Capps asked the appellant what he had and the appellant replied, “Nothing.” About the same time appellant’s companion ran from the station and appellant followed.

About ten minutes later, Fred H. Stokes, Chief of Police of Fort Deposit, apprehended the two about five hundred feet from the service station. They were taken back to the station where Mr. Capps and Mr. Jordan both identified them as the ones who were in the station just minutes before.

Mrs. Irene Price, who lived in a trailer park behind the station, testified that she observed two men in the cemetery previously. The cemetery was located about three hundred feet from the service station. Mrs. Price saw one of the men pull something from his jacket and throw it away. She called Mr. Capps and told him what she had observed; he subsequently went to the spot and retrieved the cigar box and a piece of paper containing the daily tabulations of money taken from the box, along with a money sleeve. These items were subsequently identified during the trial. In addition, the fingerprints taken from the cigar box were identified as those of the appellant’s companion, Frank Nichols.

I

The appellant was convicted under § 13A-8-4(e), Code of Alabama 1975. That section reads:

“The theft of property which exceeds $25.00 in value, and which is taken from or in a building where said property is sold or stored, constitutes theft of property in the second degree.”

Section 13A-8-l(10) reads:

“Property. Any money, tangible or intangible personal property ...”

The facts presented by the State were sufficient to prove a prima facie case of theft. The State showed that the appellant and his companion knowingly obtained or exerted unauthorized control over property belonging to the Golson Motor Company with the intent to deprive the owner of possession of the money. The amount of property taken exceeded twenty-five dollars in value and was taken from or in a building where it was stored.

The appellant insists that there was no evidence presented to indicate that the money was being “sold or stored.” The record indicates that when Mr. Capps was asked the purpose of the cigar box, he responded:

“A. That’s where I kept my cigar money and the change and money that I took in for cigars, and the money I used to make change with.”

Webster’s Third New International Dictionary, Unabridged Edition, defines “stored” as “collected as a reserved supply, laid away, accumulated, left or deposited in a store, warehouse, or other place for keeping, preservation or disposal.” Clearly, the facts indicate that Mr. Capps was using the cigar box to collect or “store” money from the sales of cigarettes and cigars, and to accumulate a reserved supply of money for making change.

II

The appellant complains that the trial court committed reversible error when it did not advise him on the provisions of the Youthful Offender Act.

The record before us indicates that the appellant was twenty years of age and was never apprised of the fact that he might be treated as a youthful offender under the statute. Therefore, we are compelled to remand this case to the district court of Lowndes County for compliance with the mandate outlined in Clemmons v. State, 294 Ala. 746, 321 So.2d 238; see also Johnson v. State, 56 Ala.App. 582, 324 So.2d 298.

In Clemmons v. State, supra, the court stated:

“Therefore, on remand, the trial court should bring the defendant before it, should inform him of the provisions of the Youthful Offender Act, and that, if he desires, he may consent to an investigation and examination. If the defendant does not consent to the investigation, the judgment of conviction stands. If he does consent, the trial judge should initiate such investigation as he deems necessary. Upon completion of the investigation, he should then proceed to examine the defendant. If, in his discretion, he determines that the defendant is entitled to youthful offender treatment, the sentence imposed . . . should be set aside, and the defendant should be afforded youthful offender treatment under the provisions of the statute. If, after the investigation and examination, the court determines that the defendant is not entitled to youthful offender treatment, the judgment of conviction and the sentence imposed stand.
“If, by reason of failure of the defendant to consent to the investigation and examination, or by reason of the trial court’s finding, after such investigation and examination, that he is not entitled to youthful offender treatment, the defendant has the right to renew his appeal in the Court of Criminal Appeals, which has retained jurisdiction of the cause, ... . ”

Hereby, we direct the trial court to make a supplemental transcript demonstrating its compliance with the mandate outlined in Clemmons v. State, supra, and return it to this court within a reasonable time.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

DeCARLO, Judge.

In compliance with our order, the Lowndes Circuit Court made a return to our remand with a supplemental transcript which demonstrates the requisite compliance with the mandate outlined in Clemmons v. State, 294 Ala. 746, 321 So.2d 238.

Therefore, the judgment of conviction by the Lowndes Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Billy Gene RAY v. STATE.
    5 Div. 535.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 31, 1981.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction and sentence for the crime of “Receiving stolen property,” which is defined by Code of Alabama 1975 (1980 Cum.Supp.), § 13A-8-16 as follows:

“A person commits a crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner

By § 13A-8-18, receiving stolen property which “exceeds $100 in value but does not exceed $1,000 in value” constitutes “receiving stolen property in the second degree.”

The indictment charged that defendant “did receive, retain, or dispose of stolen property, to-wit: one (1) .357 Magnum, Smith & Wesson pistol, the property of L. J. Brasher, of the value of $200.00, knowing that it was stolen, or having reasonable grounds to believe it had been stolen and not having the intent to restore it to its owner, in violation of § 13A-8-18, Code of Alabama.”

The theft of the pistol described in the indictment was established by the testimony of Mr. Rickey Barnett and Mr. L. J. Brasher, the owner. According to their testimony, the pistol was taken on the night of January 30-31,1980, with some other property, during a burglary of the place of business of the owner. Officers of the Ope-lika Police Department were promptly called the next day.

Mr. Brasher testified that about three weeks after the burglary he received the pistol from Eddie Guerin. Mr. Eddie Gue-rin testified that he obtained the pistol from Charlie Allen. Mr. Allen testified that on February 1 or 2,1980, he bought the pistol from the defendant.

The value of the pistol as alleged in the indictment was established by the evidence.

The defendant did not testify. Although some witnesses testified in his behalf, there was no testimony in conflict with the evidence that he had sold the pistol to Mr. Allen or to explain his possession of the then recently stolen pistol.

In our opinion, the evidence was sufficient to present a jury issue as to defendant’s guilt. See Code of Alabama 1975, § 13-8-16 Commentary, citing Stanley v. State, 46 Ala.App. 542, 245 So.2d 827 (1970). There is no contention to the contrary.

A major contention of appellant is as to the action of the court in sentencing the defendant to imprisonment for twenty years pursuant to the Alabama Habitual Felony Offenders Act (Code of Alabama 1975, § 13A-5-9 as supplemented). He says that the Act, as it was applied in the instant case, would be unconstitutional in two different respects. We treat each one separately.

Appellant’s contention that the law was unconstitutionally applied to two of the three prior felony convictions in that defendant did not have counsel at the time of such convictions, upon his entry of a plea of guilty, stems from the case cited by appellant of Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19 L.Ed.2d 319, 324 (1967), in which it was held:

“The same result must follow here. Gideon v. Wainwright, [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799] established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the states by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective application.... In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceedings, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. .. . ”

The transcript in the instant case affirmatively shows by the record in each of said prior convictions that defendant formally and fully, intelligently and understanding^, waived his right to counsel. The convictions were conformable to what was held in Burgett, supra.

An additional contention of appellant is to the effect that having occurred prior to the effective date of the Habitual Felony Offenders Act such convictions could not be considered, that to do so would give the Act efficacy as a constitutionally prohibited ex post facto law. The precise question has been decided adversely to appellant in Williams v. State, Ala.Cr.App., 400 So.2d 427 (1981), in reliance upon Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1947).

Appellant also contends that as to one of the prior convictions, which was in the same court as the conviction in the instant case, it was not established on the sentencing hearing by proper evidence. A copy of the minutes, certified by the Clerk of the Court on the day of the hearing was introduced in evidence. A prior conviction may be proved by a certified copy of the court’s record. Hunter v. State, 57 Ala. App. 651, 331 So.2d 406 (1976). Appellant contends, however, as he did on the trial, that the minute entries were not made until a long time after the conviction. A deputy clerk of the court testified at the sentencing hearing that a certified copy was made “from the Minute Book,” that though there had been a lapse in the constant maintenance of the minutes book in the past, she had placed in the minutes book the entry shown by the certified copy admitted in evidence and that she had formulated such entries “ from the old docket sheets” or bench notes made by the trial judge at the time. We see no basis for any genuine apprehension as to the trustworthiness of the certified copy of the record of conviction and think that it was properly admitted in evidence and was sufficient, under all the evidence, to prove the prior conviction.

Appellant’s only other insistence on error is directed to the denial by the trial judge of a motion by defendant that the judge recuse himself in the case, which the defendant made after the case had been called for trial and after defendant had failed to obtain a requested continuance. Appellant relies upon Code of Alabama 1975, § 12-1-12:

“No judge of any court shall sit in any case or proceeding in which he is interested or related to any party within the fourth degree of consanguinity or affinity or in which he has been of counsel or in which is called in question the validity of any judgment or judicial proceeding in which he was of counsel or the validity or construction of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the par-, ties entered of record or put in writing if the court is not of record.”

The trial judge had been District Attorney of the Lee County Circuit Court prior to his becoming a judge thereof, of which he is now Presiding Judge, and had as a district attorney prosecuted the defendant. However, the prosecution of the instant case commenced years after he was district attorney and after he had prosecuted defendant, and he had not “been of counsel” in the case in which the motion for his recusal was made. Appellant apparently misconceives Rushing v. City of Georgiana, Ala., 361 So.2d 11, 12 (1978), in which the Supreme Court, per Justice Beatty, considered together § 12-1-12 and the Canons of Judicial Ethics, Canon 3, Part Q, providing, inter alia, that a judge should disqualify himself in a particular proceeding in which he has “served as a lawyer in the matter in controversy, .... ” The judge in that case had been the circuit solicitor of the particular circuit and while acting as circuit solicitor he had prosecuted Rushing for unlawful homicide growing out of the same conduct that formed a basis for Rushing’s civil suit against the City of Georgiana. The court held that both cases (the criminal case and the civil case) concerned the same “matter in controversy,” which required the judge’s disqualification. No such situation exists in this case. No statute, no canon, no rule of reason supports the position of appellant that the mere fact that the trial judge had previously been a district attorney and had previously prosecuted the appellant as to offenses unrelated to the crime charged in this case required his disqualification. Nothing was presented to indicate any partiality on the part of the judge or that his impartiality might reasonably be subject to question. The record before us indicates exactly the opposite.

It probably should be observed that no motion for a recusal was made in connection with the sentencing hearing, that conceivably a factual question could have arisen thereon as to which the judge’s recollection of pertinent events could have been different from that of defendant or other witnesses, but it appears that no such complication arose.

In addition to our consideration of all the issues presented by appellant, we have examined the record to determine whether there has been any prejudicial error whatever to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . It is to be noted that the indictment omits the word “intentionally” as found in the statutory definition of the crime. However, the sufficiency of the indictment was not challenged in the trial court, and it is not questioned by appellant. The trial court in its charge to the jury fully covered the necessity for the existence of the element of intention.


author: FAULKNER, Justice.

text:
    Ex Parte Billy Gene RAY. (Re: Billy Gene Ray v. State of Alabama).
    80-471.
    Supreme Court of Alabama.
    May 28, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Jessie HARRIS v. STATE.
    5 Div. 548.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 31, 1981.

      J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Alabama Code 1975, Section 13A-8-41.

The only issue on appeal concerns the propriety of the trial judge’s refusal to instruct the jury on the elements of robbery in the second and third degrees as lesser included offenses of the crime of robbery in the first degree. Our review of all the evidence convinces us that this refusal was proper.

Codifying Alabama case law, Alabama Code 1975, Section 13A-l-9(b), provides: “The Court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.” Chavers v. State, 361 So.2d 1106 (Ala.1978); Henderson v. State, 373 So.2d 1218 (Ala.Cr. App.), cert. denied, Ex parte Henderson, 373 So.2d 1221 (Ala.1979). “A court may properly refuse to charge on lesser included offenses only (1) when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) when the requested charge would have a tendency to mislead or confuse the jury.” Chavers, 361 So.2d at 1107.

The evidence is undisputed, even being admitted by the defendant at trial, that the robbery was planned by the defendant, Frank Walker and George Brown; that the defendant, armed with a .410 gauge shotgun, and Brown, armed with a club, robbed the attendant at the Racetrac Service Station in Auburn on June 17, 1980; and that as Brown and the defendant were making their escape, Brown clubbed the attendant on the back of his head causing an injury which required twelve stitches. There is no contention of proof that this amounted to a “serious physical injury” as defined by Section 13A-l-2(9).

While fully admitting his part in the robbery, the defendant maintains that he was entitled to have the jury instructed on the lesser degrees of robbery in the first degree because the shotgun he used was not loaded and because he never intended to harm anyone. Under the facts of this case this contention is without merit.

Robbery in the first degree is defined in Section 13A-8-41:

“(a) A person commits the crime of robbery in the first degree if he violated section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causes serious physical injury to another.
“(b) Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.”

Under the facts of this case, the defendant would still have been guilty of robbery in the first degree even if he had been unarmed and no one had been injured in the robbery. The uncontradicted evidence shows that the defendant and Brown, pursuant to a plan or conspiracy, committed the robbery. The defendant knew that Brown was armed with a club during the actual commission of the robbery. Therefore the defendant is criminally liable for the act of Brown in carrying the club. Section 13A-2-23 provides: “A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense: ... (2) He aids or abets such other person in committing the offense; ...”

The club carried by Brown was a deadly weapon as a matter of law. A “deadly weapon” is defined by statute as:

“(11) DEADLY WEAPON: A firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious physical injury, and such term includes, but is not limited to, a pistol, rifle or shotgun; or a switch-blade knife, gravity knife, stiletto, sword or dagger; or any billy, black-jack, bludgeon or metal knuckles.”

Section 13A-1-2(11). (Emphasis Added)

A “bludgeon” is defined as “a short stick, with one end loaded, or thicker and heavier than the other, used as an offensive weapon, hence any clublike weapon.” Webster’s New International Dictionary (2nd ed. 1935) p. 294; 5 Words and Phrases “Bludgeon” (1968).

The statute defining robbery in the first degree requires only that the perpetrator be “armed with a deadly weapon.” It does not require that any injury be inflicted with the weapon, Cf. Patton v. State, 252 Ind. 678, 251 N.E.2d 559 (1969), or that the actor have any “intent” to actually use the weapon.

Because the defendant was criminally liable for the acts of his admitted accomplice, we need not decide whether an unloaded shotgun constitutes a deadly weapon or dangerous instrument within the definition of robbery in the first degree. See 67 Am. Jur.2d Robbery section 5 (1961); Annot. 79 A.L.R.2d 1412 (1961); Annot. 81 A.L.R.3d 1006 (1977).

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . Section 13A-8-43. Robbery in the third degree.
      (a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
      (1) Uses force against the person of the owner of any person present with intent to overcome his physical resistance or physical power of resistance; or
      (2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”


text:
    Ex Parte: Jessie HARRIS. (Re: Jessie Harris v. State of Alabama)
    80-465.
    Supreme Court of Alabama.
    May 28, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    Finley WIGGINS v. STATE.
    6 Div. 386.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 17, 1981.

      Robert Gwin, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Finley Wiggins was indicted by the Jefferson County grand jury for the first degree murder of Chester Williams. Trial was had with the jury finding him guilty as charged in the indictment. The trial court sentenced him to life imprisonment. From that conviction he now appeals in forma pauperis.

On August 31, 1979 the appellant was employed by Mrs. Emma Williams, widow of the victim, to provide entertainment at her daughter’s wedding reception. After the reception, the appellant, his wife, and several others left in his van. After traveling a short distance, he had a flat tire and returned to Mrs. William’s apartment. She escorted the appellant’s wife to the home of a neighbor, Mrs. Catherine Reed, wherein she used a telephone. At the time, the victim was visiting Mrs. Reed. Shortly thereafter, the appellant entered Mrs. Reed’s apartment, exchanged angry words with the victim, and followed him outside. The appellant drew his .38 caliber pistol and shot the victim three times after the victim had entered his car. Evidence was presented by the appellant that during the argument, the victim threatened to kill him. The appellant phrased the threat as follows:

“A ‘I’m going to kill all you m_ f_ Let me get my gun out of the car.’ ” (R. 211-212)

In addition, testimony from the appellant’s wife indicated that during the argument, the victim had threatened the appellant’s life.

A more complete rendition of the facts and a determination of its sufficiency is unnecessary as an issue concerning the refusal of the trial court to give a written requested charge is dispositive of this cause.

I.

Appellant contends that the trial court erred in refusing to give his written requested charge number thirteen. Requested charge thirteen is quoted below:

“The Court charges the jury that while threats alone will not serve as a justification for homicide, if the Jury believe from the evidence that the deceased, at the time of the homicide was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the Defendant, you may then consider the threats made by the deceased in justification of the homicide.” (R. 302)

Although the trial court fully and fairly instructed the jury concerning the defense of self-defense, it did not cover the situation expressed in the appellant’s requested charge.

The above charge has been expressly approved by our Supreme Court in Traweek v. State, Ala., 380 So.2d 958 (1979); Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1975); and Karr v. State, 100 Ala. 4, 14 So. 851 (1893).

It is immaterial if the only evidence supporting the charge was produced by the appellant. Traweek, supra.

In determining whether a charge requested by an accused is supported by the evidence, the question on appeal is not what is our view of the evidence, but rather whether such evidence was presented. Hunter, supra.

The requested charge is not misleading, and does not place undue emphasis upon a portion of the evidence. Hunter, supra. Evidence was presented to support the appellant’s requested charge.

Consequently, the trial court erred in refusing to give the written requested charge.

II.

In the event of a retrial, we submit the following discussion regarding the appellant’s second ground for reversal.

Appellant contends that the trial court abused its discretion in denying his request to have one of his witnesses declared a court’s witness. A voir dire examination of the witness was conducted by the appellant which revealed that the witness was outside Mrs. Reed’s apartment when the fatal shooting occurred, saw the victim get into his car, (although he did not see him with a gun) and heard gunshots. The witness stated that he did not know where the appellant was standing when the shots were fired and did not see the appellant fire a pistol.

The appellant argues that the witness was hostile to his position and had made oral statements at two prior interviews contradictory to that which he had previously testified. The appellant explains that his attachment of the witness to compel his attendance fortified his hostility, although it is unclear whether the witness was aware of who had requested it.

The characterization of a witness as adverse or hostile is not dependent upon the unfavorable or “hostile” nature of his testimony, but rather upon the characterization of the nature and manner of the witness himself. Anderton v. State, Ala.Cr. App., 390 So.2d 1083, cert. denied, Ala., 390 So.2d 1087 (1980) ; and authorities cited therein. It is a common occurrence that a witness may partially or totally answer questions unfavorably, propounded by the party calling him. Such would not immediately create the adverse or hostile situation requisite for the party to be given the use of the tools of cross-examination. It does not create a ground of hostility if a witness does not now testify to the same statement or statements which he had previously made. See generally, R. v. Smith, 2 Crim. App. 86 (1909).

Before a witness may be examined on the assumption that he is hostile there must be some showing to that effect or evidence from him to warrant it. Such is normally illustrated while the witness is being directly examined, although it may be shown outside the presence of the jury through a voir dire examination or a proffer made by the party calling the witness. Kissic v. State, 266 Ala. 71, 94 So.2d 202 (1957); Anderton, supra; Helton v. State, 55 Ala.App. 428, 316 So.2d 355 (1975); McCullough v. State, 40 Ala.App. 309, 113 So.2d 905, cert. denied, 269 Ala. 698, 113 So.2d 912 (1959); and cases cited therein; Clarke v. Saffery, 171 Eng.Rep. 966 (1824); 2 Underhill Criminal Evidence § 496 (5th ed. 1956).

In addition, the trial court, in the interest of truth and justice, may call to the stand and examine or permit to be examined by both parties, any witness who may be able to shed light upon the issues. Kissic, supra, Helton, supra; Keeby v. State, 52 Ala.App. 31, 288 So.2d 813 (1973), cert. denied, 292 Ala. 724, 288 So.2d 817 (1974); McCullough, supra; Anderson v. State, 35 Ala.App. 111, 44 So.2d 266 (1950); Graham v. State, 24 Ala.App. 171, 133 So. 57, cert. denied, 222 Ala. 506, 133 So. 58 (1931); and cases cited therein.

In all respects, the decision to either declare a witness hostile or call a witness as his own is addressed to the sound discretion of the trial judge, who can ascertain the necessity for such, and whose ruling will not be overturned absent a showing of abuse. Kissic, supra; Anderton, supra; Helton, supra; Keeby, supra; McCullough, supra; Anderson, supra; Graham, supra; Chase’s Stephen’s Digest of the Law of Evidence Art. 131 (1898); Rapalje, A Treatise on the Law of Witnesses § 216 (1887).

In the instant case, the witness apparently had no connection or relationship with the appellant either casually, socially, or otherwise. The record does not reflect any animosity or ill feelings between the witness and the appellant and does not indicate, other than through the statements of appellant’s attorney, that the witness was testifying differently from that which the appellant expected.

The voir dire testimony of the witness was not of itself of such a nature as to make it appear that he was adverse or hostile to the appellant. From the facts before us, we find no abuse in the trial court’s discretion in refusing to call the witness as its own or declare him adverse to the appellant.

Nevertheless, for the above reason, this cause must be reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.

      . See 28 and 29 Viet., C. 18, § 3, adopting Section 22 of the Common Law Procedure Act of 1854 and applying it to criminal proceedings.


author: MADDOX, justice.

text:
    Ex Parte State of Alabama. (Re Finley WIGGINS v. STATE of Alabama).
    80-437.
    Supreme Court of Alabama.
    May 27, 1981.
   MADDOX, justice.

WRIT DENIED — NO OPINION.

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


text:
    Andre Louis BROWN v. STATE.
    6 Div. 442.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 17, 1981.
    Gary L. Smith of Elledge & Smith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the unlawful possession of 125 tablets containing pentazocine (Talwin) in violation of the Alabama Uniform Controlled Substances Act. Alabama Code 1975, Sections 20-2-1 et seq. After waiving his right to a jury trial, the defendant was tried in circuit court where the facts of the case were stipulated by counsel. Sentence was two years’ imprisonment.

Three issues are presented on appeal.

I

Initially, the defendant contends that at the time of his arrest Talwin had not been legally classified as a controlled substance in this state. It was stipulated that on November 7, 1979, the defendant was arrested in Jefferson County. In his possession were 125 tablets containing pen-tazocine (Talwin).

A

The defendant argues that Talwin is not controlled because the Board of Health failed to comply with Alabama Code 1975, Sections 20-2-20(a) and (b) in placing this drug on the list of controlled substances.

Talwin was designated a controlled substance by the Federal Government on January 10, 1979. Volume 44, Federal Register, No. 7, page 2169. Consequently and under the facts of this case, Sections 20-2-20(a) and (b) do not govern.

Section 20-2-20(d) provides that substances controlled under Federal law will automatically be controlled under Alabama law, unless the Board of Health objects. In commenting on subsection (d), our Supreme Court has stated:

“A reading of the statute (Section 20-2-20) reveals that the classification procedures under (a) and (b) refer to different scheduling requirements. Paragraph (a) deals with the Board’s classification of a substance upon its own initiative. In performing that function the Board is required to consider eight specified aspects, and thereafter under paragraph (b) to ‘make findings ... and issue a rule controlling the substance if it finds the substance has a potential for abuse.’
“Paragraph (d), however, entails an entirely different procedure, unrelated to the several aspects specified in paragraph (a). Under (d) the Board may rely upon a final control order published in the federal register, and 30 days from such publication may itself order control. Paragraph (d) allows for an objection to the control of such a substance and a public hearing following the Board’s published objections. In its salient features, paragraph (d) adopts the procedures utilized by the federal government in determining a control status, a procedure significantly similar to that accomplished under our own law. 21 U.S.C.A. Sections 802, 811, 812.”
McCurley v. State, 390 So.2d 25, 30 (Ala. 1980).

The undisputed evidence in this case is that the Board of Health made no objection to the federal designation of Talwin tablets as a Schedule IV controlled substance. As a result, thirty days from publication in the Federal Register of the final order designating Talwin tablets as a Schedule IV substance, Talwin tablets became a Schedule IV controlled substance in Alabama.

B

The defendant argues that the State Board of Health rejected the federal decision to classify Talwin as a controlled substance and retained its own earlier classification of Talwin.

From the exhibits admitted into evidence in this case, it appears that the State Board of Health classified Talwin as a controlled substance on August 15,1973. However, in McCurley v. State, 390 So.2d 15 (Ala.Cr. App.), affirmed in part, reversed in part, 390 So.2d 25 (Ala.1980), our Supreme Court found that this classification was “legally deficient” because the Board of Health had not followed the procedures outlined by the legislature in Sections 20-2-20(a) and (b).

Under the State Board of Health’s own regulations, injectable pentazocine or Tal-win was classified as a Schedule III controlled substance, while oral pentazocine was listed as a Schedule IV substance. The Federal Register classifies all pentazocine as a Schedule IV substance.

An extract from the minutes of the February 21, 1979, meeting of the Board of Health reflects:

“A notice from the Federal Register, Vol. 44, No. 7, Wednesday, January 10, 1979, places Pentazocine into Schedule IV of the Federal Schedule, effective February 9, 1979. The Subcommittee moved that the placement of Talwin Tablets and Compound in Schedule IV coincides with action previously taken in Alabama by the State Committee of Public Health, but that injectible Pentazocine would remain in Schedule III and would be unchanged from its position as earlier placed in Alabama by the State Committee of Public Health. The motion carried unanimously.”

Under the principles stated in McCurley, the evidence in this case does not show that the State Board of Health has complied with its statutory duty in classifying inject-able pentazocine as a Schedule III controlled substance. There is no evidence that the Board “publish(ed) the reasons for objection (to the federal classification) and afford(ed) all interested parties an opportunity to be heard.” Section 20-2-20(d). However this case involves Talwin tablets, not injectable Talwin. The evidence does reflect that there was no objection made by the State Board to the Federal classification of Talwin tablets as a Schedule IV controlled substance. In fact, the Board had previously classified Talwin tablets as a Schedule IV substance although this attempted classification was “legally deficient”. McCurley. Since no objection to the Federal classification of oral Talwin was filed, oral Talwin became a Schedule IV controlled substance in Alabama as a matter of law on February 10, 1979.

II

The defendant argues that his constitutional right of due process is violated by the provisions of Alabama Code 1975, Section 20-2-20(d).

Procedural due process requires that citizens be given fair notice of conduct forbidden by a penal statute. A strong argument can be made that Section 20-2-20(d) violates procedural due process insofar as it authorizes the designation or rescheduling of drugs as controlled substances by the Board’s mere failure to object within thirty days from final publication in the Federal Register, State v. Dougall, 87 Wash.2d 118, 570 P.2d 135 (1977). However, this Court is bound by the decisions of the Supreme Court of Alabama.

In McCurley, one of the contentions was that the procedure outlined under Section 20-2-20(d) violated the requirements of due process of law because it “furnished inadequate notice to affected parties.” McCurley, 390 So.2d at 30. In addressing this and another due process objection to Section 20-2-20(d), the Supreme Court of Alabama held:

“We may take judicial knowledge of the fact that the Federal Register contains published accounts of preliminary and final control rulings of the Food and Drug Administration of the United States Department of Health, Education and Welfare, that these rules either call for or reflect public hearings, and that they include scientific findings on the qualities and propensities of drugs which are made the basis of recommendations from the Secretary of HEW to the Attorney General of the United States who has the statutory authority to add to or delete a drug from the federal schedule. McEl-roy, Alabama Evidence, Section 480.01(4); 21 U.S.C.A. Section 811. In short, the federal decision to classify a drug as a controlled substance itself is subject to codified objective standards, and publish findings and rules. As we stated, paragraph (d) simply enables the Alabama board to adopt those procedures rather than having to duplicate them. Under that paragraph, moreover, the Board was not required to make an express finding supporting its order. Cf. Alabama Public Service Commission v. Nunis, 252 Ala. 30, 39 So.2d 409 (1949). Under those circumstances we do not believe that a failure of due process has been shown. Railroad Commission v. A. G. S. R. Co., 185 Ala. 354, 64 So. 13 (1913).”

McCurley, 390 So.2d at 30.

Under the authority of McCurley, this Court must uphold the constitutionality of Section 20-2-20(d) against the attacks made by the defendant.

hi

The courts of this state have consistently held that the provisions of the Alabama Uniform Controlled Substances Act authorizing the State Board of Health to place certain drugs on the list of controlled substances do not constitute an unconstitutional delegation of legislative authority. McCurley, 390 So.2d at 27.

We have searched the record for error as required by law. The judgment of the Circuit Court is without error and is hereby affirmed.

AFFIRMED.

All Judges concur.

      . “(d) If any substance is designated, rescheduled or deleted as a controlled substance under federal law and notice thereof is given to the state board of health, the state board of health shall similarly control the substance under this chapter after the expiration of 30 days from publication in the federal register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that 30-day period, the state board of health objects to inclusion, rescheduling or deletion. In that case, the state board of health shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the state board of health shall publish its decision, which shall be final unless altered by statute. Upon publication of objection to inclusion, rescheduling or deletion under this chapter by the state board of health, control under this chapter is stayed until the state board of health publishes its decision.”


author: ADAMS, Justice.

text:
    Ex Parte Andre Louis BROWN. (Re: Andre Louis Brown v. State of Alabama).
    80-439.
    Supreme Court of Alabama.
    May 29, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


text:
    James WILSON v. STATE.
    8 Div. 103.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 31, 1981.
    J. N. Powell and Wesley M. Lavender, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of robbery as charged in a four-count indictment. One count charged him with feloniously taking money “of a total aggregate value of $5,872.00, . .. the personal property of First National Bank of Decatur, a Corporation, from the persons of Myrtle Beall, Barbara Hill, and Vickie Sedberry, and against their will, by violence to their persons or by putting them in such fear as unwillingly to part with the same.” One of the other three counts charged defendant in similar language with the taking of the stated proportionate part of $5,872.00 from Myrtle Beall, another from Barbara Hill and the third from Vickie Sedberry. The four counts were treated as involving one crime only, and there is no contention that they should have been considered otherwise. The court fixed defendant’s punishment at imprisonment for twenty-five years and sentenced him accordingly.

Defendant had pleaded not guilty and not guilty by reason of insanity, and the court submitted both issues to the jury. There was little, if any, evidence of mental disease. There was substantial evidence that defendant was in a state of intoxication at the time of the robbery. He testified that he did not remember the robbery and that he had been taking hallucinatory drugs.

The evidence is undisputed that the robbery occurred as alleged. Each of the three alleged victims so testified. With a pistol in his hand, defendant demanded that the victims put the money into a grocery bag that he handed them with his other hand. They accommodated him, but in doing so, each placed a tear gas bomb in the bag, which exploded in defendant’s face after he left the bank and was proceeding to his automobile. He was there efficiently arrested by alerted officers of the law.

In addition to the positive oral testimony as to the fact of the robbery and the identity of defendant, photographs that distinctly portrayed the essential elements of robbery and the identity of defendant, which had been taken by cameras electronically activated, were introduced in evidence.

The only claim of error is that the trial court erroneously refused one of defendant’s requested written charges as follows: “36. THE COURT CHARGES THE JURY THAT AN INDICTMENT FOR ROBBERY ALSO EMBRACES THE CHARGE OF LARCENY.”

The charge was properly refused. But for the injection of the question of intoxication by drugs, no comment would be necessary other than the statement that it is uniformly held that no instruction as to a lesser included offense should be given in a robbery case if the only reasonable conclusion to be drawn from the evidence is that defendant is guilty or not guilty of the crime expressly charged. Turner v. State, Ala.Cr.App., 356 So.2d 235, cert. denied, 356 So.2d 237 (1978); Simmons v. State, Ala.Cr. App., 353 So.2d 11, cert. denied, 353 So.2d 18 (1977); Impson v. State, Ala.Cr.App., 331 So.2d 837 (1976); Golston v. State, 57 Ala. App. 623, 330 So.2d 446 (1975); Chambers v. State, 56 Ala.App. 172, 320 So.2d 105 (1975).

An instruction as to the lesser included offense is at times permissible, logically and by authoritative precedents, by reason of the fact that intoxication of defendant can negate the intent requisite to the commission of the greater offense charged. However, it is neither logical nor authoritatively precedential to give such instruction if the requisite intent is the same as to both offenses and if it necessarily follows from the evidence, as it does in this case, that if the defendant is guilty of the lesser offense he is guilty of the greater offense also. To so hold could enable a jury to violate its duty to find the defendant guilty of the offense expressly charged whenever it is convinced by the evidence beyond a reasonable doubt that he is guilty thereof.

“Robbery is the felonious and forcible taking of the property of another from his person, or in his presence, against his will, by violence or by putting him in fear. It is essential to a conviction of robbery ‘that the taking should, at the time of manucaption, have been with a larcenous intent.’ Kennedy v. State, 208 Ala. 66, 93 So. 822.”
Martin v. State, 51 Ala.App. 405, 286 So.2d 80 (1973)

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

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

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex Parte James WILSON. (Re James Wilson v. State of Alabama).
    80-467.
    Supreme Court of Alabama.
    May 29, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Essie Mary CADDELL v. The CITY OF BIRMINGHAM.
    6 Div. 285.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.

      Benjamin Daniel and Joseph A. Fawal of Daniel, Fawal & Spina, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., for appellee.
   BOWEN, Judge.

The defendant was charged and convicted for violating Section 43-3 of the General Code of the City of Birmingham 1964, as amended, which prohibits loitering for the purpose of engaging in prostitution. The jury imposed a fine of $500.00 and the trial judge imposed an additional sentence of one hundred eighty days hard labor.

I

The constitutionality of this particular ordinance was recently upheld by this Court in Short v. State, Ala.Cr.App., 6 Div. 400 (Ms. January 20, 1981). In that opinion, we found that the ordinance was not invalid for vagueness and did not create an unconstitutional presumption of guilty or shift the burden of proof to the accused.

II

A review of the testimony at trial convinces us that the jury’s verdict is supported by the weight of the evidence.

To support a conviction for loitering for the purpose of soliciting for prostitution the City must prove that the defendant (1) loitered, (2) in a public place, (3) for the purpose of soliciting for prostitution by conducting himself or herself in a manner or under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution. Short, supra.

A police officer for the City of Birmingham observed the defendant on a sidewalk in the business district of downtown Birmingham on three separate occasions over a period of two hours between 8:00 P.M. and 10:00 P.M. waving and shouting at passing vehicles. When each of the three vehicles stopped, the defendant conversed with the male driver. On each occasion, this same officer warned the defendant to cease the activity of stopping vehicles and to leave the area.

The officer observed the defendant a fourth time within this same two hour period in the same vicinity again in the process of flagging down and stopping another vehicle. As the officer approached she ran. While he was completing the arrest report the defendant voluntarily stated that putting her in jail would only make her come out on the streets again to make money to pay her attorney and court fines.

In our opinion, the repeated conduct of the defendant, the nature and manner of her presence and actions in a particular area of the city, and her statement to the arresting officer furnish sufficient evidence to justify the jury’s finding that the defendant is guilty of the offense charged.

Ill

As part of its case in chief, the City introduced evidence that the defendant had been recently observed on prior occasions in the same general area “waving down” and stopping vehicles and had been convicted for failure to obey the lawful order of a police officer, such conviction stemming from the defendant’s failure to stop waving down and stopping cars after having been requested to do so by a police officer.

These other acts were admissible to show criminal intent and to show that both the charged crime and the other acts were committed in keeping with or pursuant to a single plan, design, scheme or system. C. Gamble, McElroy’s Alabama Evidence, Sections 69.01(5) and (6) (3rd ed. 1977). As was stated in Williams v. State, 98 Ala. 52, 53, 13 So. 333 (1892): “Although they may have been weak and inconclusive, they were circumstances which the jury had the right to consider for what they were worth. There was no error in admitting them.”

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.