author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    James Edward DILLARD v. STATE.
    4 Div. 846.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      Otis J. Goodwyn, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a denial of a petition for writ of error coram nobis, which sought relief from a judgment of conviction and sentence, which was affirmed by this Court after its judgment of reversal on a point not pertinent to the present proceeding had been reversed by the Supreme Court of Alabama. Dillard v. State, Ala.Cr.App., 371 So.2d 946, rev. 371 So.2d 947, on remand, Ala., 371 So.2d 948 (1979).

The lengthy pro se petition gives evidence of considerable study on the part of the petitioner, or someone aiding him, and sets forth in numbered paragraphs each of most, if not almost all, of the grounds upon which post-conviction relief has been held to have been available in the last twenty-five or thirty years. To petitioner’s credit, he supports his separate grounds by apt citations of cases. Not satisfied, however, with his original petition, filed on November 19, 1979, about five months after the affirmance of the judgment by this Court, he filed an amendment to the petition on November 28, 1979, in which he added a number of grounds, including one, with three sub-division paragraphs thereof, not mentioned in the original petition, wherein he expressed grievance against the attorney representing him on the trial for his failure to “protest the jury venire of both the grand, and petit jurys selection process” of the county where he was tried. This ground, as well as other grounds of his petition as amended, was not mentioned in the hearing of the petition and is not presented as an issue on appeal.

In due course, an attorney was appointed for petitioner, arrangements were made for petitioner’s attendance on a hearing and the proceeding was set for hearing, which commenced and was concluded on June 11, 1980, at which time the court took the matter under advisement until July 14, 1980, and then rendered an order and judgment denying the petition.

Issues on the hearing and on appeal relate chiefly to evidence on the trial, as supplemented on the coram nobis hearing, as to petitioner’s being under the influence of drugs at the time of a confession, or a series of incriminating statements, by him, which were introduced in evidence on the trial of the case over the objection of defendant’s attorney.

Two issues are expressly presented on appeal. As stated by appellant, the first issue is: “Was the appellant’s confession involuntary as being drug-induced?” The issue as to the admissibility of the confession and incriminating statements was specifically discussed and definitely determined adversely to petitioner in the opinion after remand in Dillard v. State, supra, at 371 So.2d 949 as follows:

“... [W]e have reviewed the entire record and find that there was a proper Miranda warning given to the appellant, and, likewise, a proper voluntariness predicate laid before the admission of his confession. Lewis v. State, 57 Ala.App. 545, 329 So.2d 596 (1975) and authorities cited, affirmed, 295 Ala. 350, 329 So.2d 599.”

The transcript of the evidence in Dillard v. State, was introduced in evidence on the hearing of the coram nobis proceeding, which the writer has read. It is to be observed therein that, although on the cor-am nobis hearing some evidence was introduced on the subject in addition to that introduced on the trial, the contention was stoutly pressed during the trial that defendant was under the influence of drugs at the time of the confession and incriminating statements, and there was evidence on the trial to support that contention. The defendant testified positively that a short while before he made the first of his series of confessions or incriminating statements he had taken “thirty-six sleeping pills and thirty-four dope pills, which a doctor has prescribed for him,” and which he obtained from a pharmacist the day before. There was a lengthy in camera interrogation of the defendant and one of the officers testifying as to the confession and incriminating statements, consisting of forty-five transcript pages and concluding as follows:

“THE COURT: I’m going to deny your motion to suppress the evidence and find that the statement was voluntary and he was adequately apprised of his Constitutional rights, that he did not waive his rights and that at the time that he made the statement he was not under such an influence of drugs or chemicals or narcotics as to make such an impairment of the will and mind as to make him unconscious of the meaning of his words. So, any statements will be admissible.
“MR. HUGHES: All right. We reverse an exception.”

It was also shown in evidence on the trial that soon after his confession and his going with the officers and pointing out to them in detail the place where he shot and buried the alleged victim, he was returned to the jail but before retiring for the night he was sent to a hospital and the contents of his stomach were pumped out.

The only addition to the evidence on the subject presented on the hearing of the coram nobis petition was that of the definite identification of the drugs as “36 Tranxene 2214 milligrams tablets” and “36 Valium 5 milligrams tablets” and an affidavit of a physician as follows:

“That I am familiar with the drug Tranx-ene 22'/2 Milligrams and the effect it has on a particular person. I have prescribed Tranxene 2214 Milligrams many times during the course of my practice of medicine. Tranxene is a tranquilizer and Tranxene 22V2 Milligrams is the strongest dosage of said drug. Such drug relaxes a person and slows his reflexes and reaction time. I would not prescribe over one capsule a day.
“That in my professional opinion, if a person took thirty-four (34) Tranxene 3314 Milligrams capsules within a 24 hour period, it would cloud his consciousness and he would be very drowsy. He would not be coherent and could not make an intelligent decision. Such drug taken in said amount would take effect within three hours.”

This additional information furnished by the evidence on the coram nobis proceeding furnishes the basis for appellant’s only other contention, e. g., that appellant’s counsel on his trial was “constitutionally ineffective for his failure to introduce evidence that appellant had filled prescriptions for drugs and for his failure to introduce evidence as to the name of the drugs and their effect.” Apparently anticipating an opposing contention that such evidence would have been merely cumulative, which does not afford a ground for coram nobis relief (Mains v. State, Ala.Cr.App., 375 So.2d 1299, 1301 (1979)), he attempts to distinguish this evidence from the evidence held to have been cumulative in Mains by saying that the evidence presented on the coram nobis hearing in the instant case “was not cumulative but critically essential to Appellant’s case.” Without attempting a dissertation upon whether the particular evidence constitutes “cumulative evidence” merely, we pay due respect to what authorities have said on the subject as readily found in 10A Words and Phrases, pp. 404 — 413, but are unable to conclude that the evidence was “critically essential” to appellant’s case. Even if viewing it retrospectively we would so consider it, which we do not, the failure to show it on the trial would not entitle appellant to coram nobis relief unless he was thereby deprived of the effective representation by counsel to which he was constitutionally entitled. This issue was widely opened on the hearing, in which appellant’s trial attorney testified and was thoroughly interrogated by both parties on the particular point. He was an experienced attorney, an experienced trial advocate, whose ability was not challenged. He made it clear that in his own mind he was fully justified in not endeavoring to supplement the evidence presented on the trial by the particular evidence supplied on the coram nobis hearing.

In our view, the additional evidence supplied on the coram nobis hearing would have likely injured the defendant as much as, if not more than, it would have helped him, for the reason that it would have tended to show, even more strongly than the evidence on the trial, that defendant did not in fact swallow the drugs in the quantity he claimed.

According to the affidavit of the physician, he “would not be coherent.” The testimony of the defendant furnished some evidence that his mind had become blank on the occasion of his initial confession or incriminating statement. However, there was no evidence that he was incoherent at the time. The evidence was exactly the opposite, that he was coherent. The testimony of the officer who primarily took his statement was as follows:

“Q. How long did you observe him on that occasion?
“A. For about an hour.
“Q. Will you describe — how was his speech; was it slurred or what?
“A. He talked just like he’d been talking [the witness had talked with him a number of times during the preceding days]. “Q. All the time?
“A. Yes, sir.
“Q. Could tell no difference?
“A. Yes, sir.
“Q. Did what he say make sense?
“A. Yes, sir.
“Q. Did you observe anything abnormal at that time about your previous conversations with him?
“A. About his conversation?
“Q. Yes.
“A. No, sir.
“Q. In your opinion, did you know what he was saying and doing?
“A. Yes, sir.
“Q. How long did you talk with him there?
“A. That evening?
“Q. Yes.
“A. About an hour there.
“Q. All right. Where did you go from there?
“A. We went to Bell wood.
“Q. All right. And what happened at Bellwood?
“A. He directed us into where he said we’d find what he was looking for.”

The witness then narrated a long and tortuous journey into the woods where defendant pointed out to the officers where he had shot and afterwards buried John Dewayne Smith, the alleged victim.

Appellant is justly entitled to make much of the evidence both on the trial and on the hearing of the coram nobis petition as to his staggering like drunk, his drowsiness, his yawning and his sleepiness. These were offset, however, by the clarity of his mind, his ability to express himself clearly, to tell unambiguously what had occurred, to dexterously lead the officers and explain to them in detail how he had killed his former friend and had tried to dispose of his body.

Defendant was the only witness who testified for the defense on the trial. There was considerable vagueness about his testimony, but he admitted therein that John Smith was killed by being shot by a pistol about two weeks before his confession while the two were together in the woods at the place where Smith’s body was found. He related that some disagreement had arisen between them as to the victim’s apparent courtship of defendant’s former wife. He said he went with Smith to the woods in search of some marijuana, at the suggestion of the victim. While there, they had a confrontation with regard to the victim’s dating defendant’s former wife. They were laughing at times. Then, continued the defendant in his testimony:

“A. John. And he kept on [arguing] and I said, ‘You keep on now,’ I said, ‘We’re going to be fighting.’ I said, ‘I’m going to knock the _ out of you.’ Well, about that time, he pulled a pistol out. And before he could get it out all the way — it was out all the way but before he could raise it up and aim it, I jumped him. And we fought for a few minutes and the gun went off and I got up and I looked down at him and I shook him and I said, ‘John.’ And he didn’t say nothing and I shook him again and I said, ‘John.’ So, I took off running to my car. And I got to my car and stayed there for a few minutes and put the pistol in my pocket. And then I started my car up and—
“Q. All right. Now, excuse me. Now, you had the pistol at that time?
“A. Yes.
“Q. Do you know when and how you got the pistol?
“A. I don’t remember when I got it, no.”

The transcript of the proceedings on the trial of the case discloses that the trial court charged the jury fully on the issue as to defendant’s guilt of murder in the first degree, murder in the second degree, manslaughter in the first degree and manslaughter in the second degree, and on the defense of self-defense.

The same judge presided on the trial and on the hearing on the coram nobis proceeding. He had the benefit of observing the witnesses on both trials. He had a better opportunity than we to determine whether defendant was telling the truth when he testified in effect that shortly before the occasion of his initial confession he had swallowed the quantity of drugs claimed. We have no reasonable basis for disagreeing with the conclusion reached by the trial court, and its judgment should be affirmed.

It should be said on behalf of appellant that out of all the shocking evil, with its tragic consequences, that seethes throughout the record in this case, there is now a beam of apparent contrition in a letter that petitioner admitted in his testimony he recently wrote the parents of John Smith, in which he said:

“I hope this letter finds you in good spirits and health. The reason I am writing this letter to you is to beg you to forgive me for killing your son. I have not only sinned against you but also against God.”

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.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Steve Dewayne THOMAS v. STATE.
    6 Div. 186.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      William N. Clark, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the court sentenced him to fifteen years in the penitentiary. He was represented by retained counsel during the trial proceedings and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal. Appellant was then found to be indigent and trial counsel was appointed to represent him on appeal. He is in this court with a free transcript.

Appellant did not testify in his behalf but offered some testimony in the nature of an alibi.

The evidence adduced by the state tended to show that, in the early morning hours of August 24,1978, at approximately 2:15, two black men robbed Shoney’s Restaurant located on Parkway East across from Roebuck Shopping Center in Birmingham, Jefferson County, Alabama. Mr. Alfred W. Adair was the night manager and Mr. Lee Drew was the busboy and dishwasher. These two employees closed the restaurant as 12 o’clock midnight on August 23, 1978, and remained on the premises until 2:15 a. m. getting things in order to open the restaurant the next day. They picked up paper and other debris from the parking lot and went behind the building to a Dempster Dumpster to dispose of the waste. While at the dumpster they were suddenly confronted by the black men and were forced at gunpoint to re-open the restaurant and all four men entered. The man with the gun had a lady’s sheer stocking over his face and the other man was also masked.

After the office lights were turned on, the men walked to the office where Mr. Adair was forced at gunpoint to open the safe. The two bandits removed from the safe approximately two thousand dollars. They then ordered Mr. Adair and Mr. Drew to lie on the floor where they tied them up with tape and told them to remain on the floor while they departed from the premises. Mr. Adair and Mr. Drew managed to remove the tape from their hands and feet. Mr. Adair then called the manager of the restaurant and the Police Department. When the officers arrived they were given a description of the robbers.

On October 17,1978, during a lineup conducted by Sergeant J. C. Ferrell at the City of Birmingham Police Department, appellant was identified by Mr. Adair as one of the men who took part in the robbery.

In an independent lineup on October, 18, 1978, Mr. Lee Drew also identified appellant from a lineup which was also conducted by Sergeant J. C. Ferrell. This lineup was composed of different members with the exception of appellant.

The appellant was also identified by both witnesses in court. Appellant’s counsel timely objected, moved to exclude, and at the close of the trial moved for a new trial. Additionally, the out-of-court identification of appellant was brought out by the prosecutor at the trial during rebuttal. Trial counsel timely objected to this also, preserving both of these issues for review on appeal.

There is very little direct evidence to indicate that the lineup was suggestive of the appellant. Both witnesses were told they were to view a lineup in which the man who robbed them may or may not be present. It is natural for persons called to view a lineup to understand that the suspect is in the lineup, and the fact that they are told does not contaminate the lineup. Fletcher v. State, Ala.Cr.App., 337 So.2d 58.

In addition to informing Lee Drew of the lineup, Sergeant Ferrell testified that he told Lee Drew the following:

“I told him that there were six people in the lineup room, and that the person that robbed him may, or may not, be in there, but for him to observe them, that they may have changed their facial features, that they may have had haircuts and may have shaved, and don’t go by their hair, just to look at their facial features to identify them.”

At the time of the lineup Lee Drew was seventeen years old. He had never viewed a lineup before. It is expected that a police officer conducting a lineup would give general instructions to an inexperienced viewer of lineups. General instructions that do not suggest a suspect to a witness or single out any particular member of the lineup or eliminate any individuals from consideration do not invalidate the lineup proceeding. Where the instructions, however, pertain directly to the defendant it is improper. In the case at bar the police officer’s comments related to appellant. His comments, however, were general and not overly suggestive toward appellant. The officer in this case was merely stating the obvious and there does not appear to be a deliberate effort to influence the result of the lineup. Additionally, there is testimony on voir dire from Lee Drew that the identification could be made on the basis of facial features.

Mr. Adair testified that he recognized two of the members of the six man lineup from the fifteen years he worked as a warden for the jail. He was not, however, overly familiar with the two men and did not even know their names. There is no evidence that there was a deliberate attempt to place someone Mr. Adair knew in the lineup. When it is assumed one could eliminate the two who were recognized from being chosen by the witness, there remained four members of the lineup to choose from and also the choice between choosing or not choosing anyone. The fact that two members of the lineup were recognized does not in and of itself contaminate the lineup procedure. Young v. State, Ala.Cr.App., 346 So.2d 509.

The lineup viewed by Mr. Adair was composed of six black males, wearing white coveralls, ranging in height from five feet ten inches to six feet one inch. Their weights ranged from one hundred forty pounds to one hundred seventy-five pounds. On the lineup sheet no other distinguishing characteristics were noted. Mr. Adair did, however, testify that the lineup viewed by him contained about three men with beards.

The lineup viewed by Mr. Lee Drew was also composed of six black males dressed in-white coveralls. There were three men six feet in height, two men five feet ten inches, and one man five feet eight inches in height. Their weights ranged from one hundred thirty-eight to one hundred seventy-five pounds.

Nothing about the composition of either lineup would suggest appellant to the viewers of that lineup. Each lineup was composed of men of the same race as appellant and contained persons of similar height and weight. All members of the lineup were dressed alike, and in the lineup in which appellant had a beard there were approximately three other members with beards.

Reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Williamson v. State, Ala.Cr.App., 384 So.2d 1224. In assessing the reliability of the identification the effect of suggestiveness in the pre-trial identification must be weighed against the indicators of the ability of a witness to make an accurate identification. These indicators include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, supra. The totality of the factors mentioned above and the suggestiveness of the pretrial identification must be weighed against one another to determine the admissibility of the identification. Manson v. Brathwaite, supra.

The evidence of the lineup procedure taken as a whole does not show that a highly suggestive procedure was used. The composition of both lineups was fair and did not call attention to appellant. The instruction given to the witnesses that appellant may or may not be in the lineup was not overly suggestive. Fletcher v. State, Ala.Cr.App., 337 So.2d 58. Although it might have related to appellant’s appearance, the instructions by Sergeant Ferrell to Lee Drew concerning the way hair and beards may change appearances was merely stating the obvious. Also, Lee Drew described in detail the suspect’s facial features. Under the circumstances these instructions did not influence the outcome of the lineup. Likewise, Mr. Adair’s recognition of the suspects in the six man lineup did not invalidate the lineup identification. Young v. State, Ala.Cr.App., 346 So.2d 509. Additionally, there was some testimony that prior to Lee Drew’s viewing the lineup Mr. Adair might have told him he had chosen someone from the lineup. This, also, is not suggestive of appellant.

Against the evidence of suggestiveness, however, must be weighed the indicators of the ability of the witness to make an accurate identification. Manson v Brathwaite, supra.

One of the most important factors in assessing the ability of a witness to accurately identify a suspect is the opportunity of the witness to view the person at the time of the crime. In the case at bar, the entire robbery took place over a period of approximately fifteen to twenty minutes. Both witnesses had told the police prior to the identification that they could identify the person with the gun.

Mr. Adair testified on voir dire that, when he first saw the two men in the back of Shoney’s Restaurant, they were eight to ten feet away. He further stated that the lighting outside was too dim for him to recognize either of the two robbers.

The evidence further shows that the two men walked with Mr. Adair and Mr. Drew back into the restaurant with the man identified later as appellant behind Mr. Adair followed by Mr. Drew with the other man behind him. Mr. Adair testified that, after entering the building, the lighting was sufficient for him to identify appellant through his mask which slightly pressed the features of his face. Mr. Adair stated that he looked directly at appellant on three occasions while in the building.

The first occasion took place when Mr. Adair was turning on the lights. This viewing of appellant lasted for approximately one to two minutes from a three foot distance. Mr. Adair described the lighting at that area as “completely illuminated” by a line of fluorescent lights on the ceiling above the light panel. He testified that, at this point, “I got a good look.”

The second observation of appellant took place in the office which is approximately ten feet by twelve feet in size and lighted by three forty-eight inch fluorescent bulbs. Mr. Adair testified that, while in the office, he stood face to face and looked at appellant for approximately thirty seconds.

The third observation took place in the office under the same lighting conditions as the second. After Mr. Adair opened the safe he had a face to face view, which only lasted a second.

Mr. Adair’s viewing of the suspect on three occasions at short distance under good lighting conditions supports his positive identification of appellant in the lineup and the later identification of appellant in court.

Mr. Lee Drew, unlike Mr. Adair, identified appellant on the basis of his observation of him from outside the restaurant at the dumpster. Mr. Drew testified that he viewed appellant for approximately from thirty seconds to a minute less than five feet away under a street light approximately fifteen feet away. He testified he could see through the light colored nylon stocking and could identify the suspect. There is some conflict in testimony over the lighting at the dumpster. Mr. Adair testified that he could not see the suspect outside. He was, however, several feet further away than Mr. Drew. Mr. Adair also testified that the street light closest to Mr. Drew was from twenty to forty feet away. This testimony is nothing more than a difference in estimation of distances.

Mr. Drew’s identification of appellant only two months after the robbery was a positive one with no expression of doubt. Mr. Adair’s independent identification of appellant the preceding day was also a positive one.

While the record does not provide a detailed description of appellant, he was described by State’s Exhibit A, which are lineup sheets, on voir dire, as twenty-one years old, six feet in height and weighing one hundred and seventy-five pounds. While the descriptions given by the witnesses vary somewhat with the description given on the lineup sheet, they are not so inconsistent that they preclude the possibility of appellant being the person described by the witnesses to the police. The only major discrepancy is Mr. Adair’s estimation of the suspect’s height as some three or four inches shorter than that of appellant.

One of the problems of an eyewitness identification is the witness must testify about an encounter with a total stranger under circumstances of emergency or emotional stress. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The witness’s recollection of the stranger can be distorted easily by the circumstances or by later actions by the police. Such problems are the reason for weighing any factors of suggestiveness against the indicators of reliability.

Weighing the slight amount of suggestiveness in the lineup procedure against the factors which indicate the ability of the witnesses to make an accurate identification, we hold that the identification testimony at the trial was admissible. Manson v. Brathwaite, supra.

After Lee Drew identified appellant in the lineup he was shown a photograph of appellant. Lee Drew later identified appellant in court. The stated reason for showing appellant’s photograph was to demonstrate how facial features may change with a beard or change in hair length. While the showing of the photographs to Lee Drew was unnecessary and suggestive toward appellant in the later in-court identification, the in-court identification does not violate due process as long as the identification possesses sufficient aspects of reliability. Manson v. Brathwaite, supra; Neil v. Biggers, supra. In the case at bar, prior to being shown the photograph, Lee Drew had already picked appellant out of the lineup. The factors assessing the accuracy of Lee Drew’s identification set forth above indicate that this identification was sufficiently reliable and therefore was properly admitted into evidence. Appellant admits, in brief, that “there is no overwhelming proof that the lineups were unduly suggestive.”

Appellant next contends that the trial court was in error in allowing Mr. Lee Drew and Mr. Adair to testify to their out-of-court lineup identifications of appellant on rebuttal. Appellant also contends that it was error to allow Sergeant Ferrell to testify to the lineup identifications made by the witnesses.

Both witnesses made an in-court identification of appellant as one of the men who robbed Shoney’s Restaurant on August 24, 1978. After the testimony of each witness identifying appellant, counsel for appellant cross-examined each of them in detail on the identification of appellant which was the key issue at trial. The cross-examination of the witnesses put into question their ability to identify appellant under the circumstances that surrounded the robbery. During the presentation of the defense this identification was also put in question by appellant’s attempt to establish an alibi. During the rebuttal the prosecution called Mr. Drew, Mr. Adair, and Sergeant Ferrell to the stand to testify to the out-of-court identifications of appellant to rebut the attack on their in-court identifications. Counsel timely objected and preserved this issue for review.

This issue was addressed in the recent case of Carlisle v. State, Ala.Cr.App., 371 So.2d 975, in which it was stated:

“A witness may not corroborate his in-court identification by evidence of an earlier identification of the accused. Aaron v. State, 273 Ala. 337, 139 So.2d 309, cert. denied, 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82; Yarbrough v. State, 105 Ala. 43, 16 So. 758; Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, cert. denied, 295 Ala. 430, 325 So.2d 539. Such evidence is competent, however, to rebut an inference raised on cross-examination that the identification was mistaken or contrived. This right of rehabilitation extends to testimony by a third person as well as that by the impeached witness. Aaron, supra; Howell v. State, Ala.Cr.App., 369 So.2d 297. Once the credibility of the victim was attacked on cross-examination, the testimony of the officer regarding the prior identification was properly admitted in rebuttal.”

The argument that the out-of-court identification testimony should have been presented as part of the case in chief is without merit. “The order of proof and rebuttal testimony rests largely in the sound discretion of the trial court, and this rule applies to testimony which more properly should have been offered as part of the case in chief.” McBryar v. State, Ala.Cr. App., 368 So.2d 568, 575, cert. denied, 368 So.2d 575 (Ala.1979), Snow v. State, 50 Ala. App. 381, 279 So.2d 552 (1973), cert. denied, 291 Ala. 798, 279 So.2d 558 (1973).

In the case at bar the evidence of the out-of-court identification was admissible only to rebut appellant’s attempt to establish an alibi and attack the accuracy of the witnesses’ in-court identification. Therefore, such evidence would logically be admitted on rebuttal.

Appellant also contends that the trial court committed reversible error in refusing defendant’s requested jury charges, numbers 9, 15, 17 and 19.

Defendant’s requested jury charge number 9 reads:

“The Court instructs the jury that, if there is one single fact proven to the satisfaction of the jury which is inconsistent with the defendant’s guilt, this is sufficient to raise a reasonable doubt, and the jury should acquit the defendant.”

Some of the older cases in the appellate courts of Alabama held this charge to be good, but it has been condemned in later cases and was expressly overruled in Ex parte Davis, 184 Ala. 26, 63 So. 1010 (1913). Black v. State, 52 Ala.App. 528, 294 So.2d 777 (1974); Cox v. State, 19 Ala.App. 205, 96 So. 83 (1923). This charge invades the province of the jury and was properly refused. This is especially true since the court instructed the jury that “[A] reasonable doubt may arise out of all the evidence, or it may arise out of any part of the evidence.” King v. State, Ala.Cr.App., 356 So.2d 1216. There is no cause for reversal when a refused charge is covered by another charge covering the same rule of law substantially and fairly. §§ 12-16-13, Code of Alabama (1975).

Defendant’s requested charge number 15 reads as follows:

“The Court instructs the jury that if you believe from the evidence that there is a probability of defendant’s innocence you should return a verdict of not guilty.”

The trial court charged the jury that it is presumed that the defendant is not guilty and this presumption “can be overcome only by evidence of the defendant’s guilt beyond a reasonable doubt.” Such a charge places an even greater burden on the state than the requested charge by apppellant. Edwards v. State, 205 Ala. 160, 87 So. 179. The trial court was proper in refusing defendant’s requested charge number 15. Carter v. State, 53 Ala.App. 248, 298 So.2d 668; Edwards v. State, 205 Ala. 160, 87 So. 179; Russo v. State, 236 Ala. 155, 181 So. 502; Stokley v. State, 254 Ala. 534, 49 So.2d 284; Wilson v. State, 243 Ala. 1, 8 So.2d 422. This is necessarily true in view of the trial court’s charge on the necessity of proof of defendant’s guilt beyond a reasonable doubt. Walker v. State, Ala.Cr.App., 358 So.2d 800; Edwards v. State, supra.

Defendant’s requested charge number 17 is very similar to that of number 15 and addresses the probability of guilt. Like charge number 15, the charge given the jury requiring guilt beyond a reasonable doubt places a stronger burden of proof on the state than the requested charge and substantially and fairly gives the same rule of law to the jury. § 12-16-13, Code of Alabama (1975).

Defendant’s requested charge number 19 reads:

“The Court instructs the jury that the defendant, Steve Thomas, should not be convicted, unless the evidence in this case excludes to a moral certainty every reasonable hypothesis but that of his guilt; no matter how strong the circumstances are they do not come up to the full measure of proof which the law requires if they can be reasonably reconciled with the theory that Steve Thomas is innocent.”

This charge has been approved by the Supreme Court of this state, and its refusal as a jury charge has been held to be error in many cases. Harris v. State, Ala. Cr.App., 358 So.2d 482, cert. denied, 358 So.2d 487 (Ala.1978); Wilson v. State, 243 Ala. 1, 8 So.2d 422; McCarty v. State, 35 Ala.App. 201, 45 So.2d 175; Holman v. State, 36 Ala.App. 474, 59 So.2d 620. Where so little of the case, however, is derived from circumstantial evidence, the refusal to give that charge is not reversible error. Harris v. State, 46 Ala.App. 497, 243 So.2d 770; Harris v. State, Ala.Cr.App., 358 So.2d 482, cert. denied, 358 So.2d 487 (Ala. 1978). In the case at bar, the whole case rested on the identification of appellant by two eyewitnesses and not circumstantial evidence. Therefore, the charge was correctly refused.

When the jury retired to deliberate, a copy of the indictment was taken into the jury room. A statement setting forth the amount of bail to be one hundred thousand dollars ($100,000) was on the back of that indictment. Appellant claims this was in error and requires reversal of the trial court.

It is proper for the indictment to go to the jury room with the jury. Wilson v. State, 52 Ala.App. 680, 296 So.2d 774; Sanders v. State, 131 Ala. 1, 31 So. 564. Appellant failed to make a timely objection or move to have the written matter covered over to keep it from the jury. In view of this, the matter will not be reviewed on appeal. Wilson v. State, 52 Ala.App. 680, 296 So.2d 774; Eady v. State, 284 Ala. 327, 224 So.2d 876.

The jury was instructed by the trial court and retired to the jury room for deliberation. After several hours of deliberating the trial court decided to allow the jury to go home for the night and continue the next day. Appellant was not in court, but in jail at that time. Appellant would have to be present before the court could speak or instruct the jury. To avoid having to bring appellant to court, both the prosecutor and the defense attorney agreed to leave the courtroom. This way the absence of appellant from the courtroom would not be called to the attention of the jury. The trial court told the bailiff to instruct the jury to go home and return the next morning to continue their deliberations. The judge then left the courtroom.

The bailiff followed the judge’s instructions and informed the jury that they were to go home and to return the next morning. The jury requested they be allowed to deliberate further before going home for the evening. The bailiff repeated the judge’s instructions. The jury then left for the evening and returned the next day to continue their deliberations. Appellant claims error for refusal of the trial court to allow the jury to continue to deliberate that evening rather than continue the next morning.

“The duration of deliberations by the jury is committed to the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal except for clear abuse. Martin v. State, 29 Ala. App. 395, 396, 196 So. 753 (1940).” Hammons v. State, Ala.Cr.App., 371 So.2d 986.

In the case at bar the bailiff was merely passing along instructions to the jury. By agreement both the defense attorney and the prosecutor had left the courtroom. It would have been improper for the trial judge to speak with the jury or instruct them without the presence of appellant and his counsel. Graves v. State, Ala.Cr.App., 377 So.2d 1129, cert. denied, 377 So.2d 1130 (Ala.1979); Donahoo v. State, Ala.Cr.App., 371 So.2d 75.

A judge’s refusal to communicate with the jury at their request is not improper. Wylie v. State, 24 Ala.App. 187, 132 So. 438. Under the circumstances, the trial court committed no error in following the agreed-to procedure for excusing the jury for the night.

A careful examination of the record reveals no error prejudicial to the substantial rights of appellants, and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Tony Jerald VINCENT v. STATE.
    6 Div. 471.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      Carl Wade Robinson, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Rape; sentence: thirty years’ imprisonment.

Two issues are presented on this appeal.

I

The appellant contends that the trial court’s refusal to grant his challenge for cause against certain prospective jurors violated his constitutional right to a trial by a fair and impartial jury.

During the voir dire examination of the jury venire by defense counsel, the following occurred:
“Mr. Robinson: Okay. Thank you. Now, I would like you all to raise your hand to this question if you think your answer would be yes. Do you all expect the Defendant to testify in this case? Would you expect him to testify in his defense in this case? If you do, please raise your hand.
“Let’s start back here. What was your name?
“PJ HIGGINS: Mrs. Higgins.
“PJ GATEWOOD: Mary Gatewood.
“MR. ROBINSON: Goodwood?
“PJ GATEWOOD: Gatewood.
“MR. ROBINSON: I’m sorry. Yes, Ma’am?
“PJ FLEMMING: Mrs. Flemming.
“MR. ROBINSON: And you’re Mrs. Evans?
“PJ ETINGER: Etinger.
“MR. ROBINSON: Yes, ma’am. Mr. Boyd, you would?
“PJ BOYD: Yes.
“MR. ROBINSON: Anybody else on the second — Mrs. Spaulding?
“PJ SPAULDING: Yes.
“MR. ROBINSON: Okay. Anyone else up here in the jury box? Yes, ma’am, your name is Mrs. Cofer?
“PJCOFER: Yes.
“MR. ROBINSON: Anyone else. I saw you raise your hand a little bit there. You’re Mrs. Baugh, right?
“PJ BAUGH: (Juror nods head.)
“MR. ROBINSON: And Mr. Ware. All of you would expect my client to testify on his behalf and defense. If he did not testify on his behalf or in his defense, would you consider that as an indication of guilt in this case, especially to those of you who raised your hand?
“So, you would expect him to testify is what you are telling me? But, if he didn’t you wouldn’t say he is guilty, is that what you are telling me?
“(No response.)
“PJ LADY JUROR: Give himself a chance?
“THE COURT: That is what he is asking you, ma’am. If he did not take the witness stand.
“PJ BAUGH: He is still innocent until proven guilty.
“THE COURT: That is my next question. Let me rephrase that. Do you all believe in your own constitutional right, that you don’t have to testify against yourself?
“(No response.)
“THE COURT: Okay. Thank you. “(Juror voir dire continued.)
“THE COURT: Mr. Robinson you advised me that you wish to take an exception on the record. Let’s get what the objection is so I can give you a ruling. As I understand, you want to challenge for cause those jurors which made response to your question, which was in substance — the question or your inquiry, of those that expected your Defendant to testify in his defense.
“MR. ROBINSON: Yes, sir.
“THE COURT: You wish to challenge for cause those jurors that responded to that question?
“MR. ROBINSON: Yes, sir.
“THE COURT: I deny your challenge for cause and will give you an exception.”

Counsel for appellant contends in his brief that as a result of the trial court’s denying his challenge for cause “three of the prospective jurors could not be stricken by peremptory challenges.” We are unable to determine which members of the venire were selected as jurors and which were stricken or by what means they were stricken. The jury selection process is not a part of this record on appeal, nor does the record disclose who was on the venire and who ultimately sat on the petit jury in this case. This court is bound by the record and not by allegations in the briefs. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); Pope v. State, 345 So.2d 1388 (Ala.Cr.App. 1976), cert. dismissed, 345 So.2d 1390 (Ala. 1977).

Of the twelve statutory grounds for challenges for cause, only the one enumerated in Code 1975, § 12-16-150(7), relates to the appellant’s contention in the instant case — that the prospective juror “has a fixed opinion as to the guilt or innocence of the defendant which would bias his verdict.” That ground may be proved “by the oath of the person alone.” Code § 12-16-151. Here, none of the challenged veniremen were requested by defense counsel to state under oath that if the defendant did not testify they would have a fixed opinion against him which would bias their verdict.

Judge DeCarlo, speaking for this court in McCorvey v. State, 339 So.2d 1053, 1057 (Ala.Cr.App.1976), stated:

“To disqualify a prospective juror, he must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. Such opinion must be so fixed as that it would bias the verdict a juror would be required to render....”

The burden is upon the defendant to prove that a juror cannot be impartial. Lowe v. State, 384 So.2d 1164 (Ala.Cr.App.1980), cert. denied, 384 So.2d 1171 (Ala.1980). Here, the defense failed to meet that burden. It was only shown that some veniremen would “expect” the defendant to testify. We are left with no indication in the record as to (1) whether those jurors would have a fixed opinion against the defendant if he did not testify, and (2) if so, whether such opinion would be so fixed that it would bias their verdict.

We likewise note that the trial court gave the defendant’s requested Charge No. 28:

“In a criminal case, a defendant is not compelled to take the witness stand. By the defendant’s plea of not guilty, he denies the charges against him, and does not have to prove a thing. The failure of the defendant to testify cannot be used against him and no inference of guilt can be drawn therefrom. The defendant has the right to remain silent and the fact that he did not testify or personally present evidence should not prejudice him in any way.”

We therefore find no error on the part of the trial court in refusing the defendant’s challenges for cause.

II

The appellant contends that the trial court erred in refusing to give his requested Charge No. 3.1, which is as follows:

“In appraising the identification testimony of a witness, you should consider the following:
“Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender? Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had an occasion to see or know the person in the past.
“Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? May [sic] may taken into account both the strength of the identification, and the circumstances under which the identification was made. If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to her for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrance [sic] of time and the next opportunity of the witness to see the defendant, as a factor bearing on the reliability of the identification.
“You may also take into account that an identification made by picking the defendant out of a group of similiar [sic] individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.
“Finally you must consider the credibility of each identification witness in the same way as any other witness, consider whether she is truthful and consider whether she had the capacity and opportunity to make a reliable observation on the matter covered in her testimony.
“I again emphasize that the burden of proof on the prosecutor extends to every element of crime charged, in this case the crime of Rape, and this specifically includes the burden of proving beyond a reasonable doubt into [sic] a moral certainty the identity of the defendant as the perpetrator of the crime with which he stands charged. If after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty.” (Emphasis added.)

The above requested charge was lifted from the appendix to United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), wherein the charge is designated as “Model Special Instructions on Identification.” That charge was set out in that case as a suggested model for the trial judges in the District of Columbia to use on a noncompul-sory basis with appropriate adaptations. The charge is an abstract statement of legal principles and is not phrased as requested charges are required to be phrased in this state, that is, hypothesized on a belief from the evidence. Hudson v. State, 335 So.2d 208 (Ala.Cr.App.1976), cert. denied, 335 So.2d 211 (Ala.1976).

There are also several other grounds for refusing to give the instant charge. A requested charge is properly refused if it contains a misspelled word. State v. Owen, 279 Ala. 281, 184 So.2d 362 (1966). As indicated above, the words “occurrence” and “similar” were misspelled. A charge may likewise be refused if it is ungrammatical or contains a verbal inaccuracy. Reeder v. State, 210 Ala. 114, 97 So. 73 (1923). In the instant charge, one sentence begins by stating “May may take into account.” Obviously, the writer intended for the sentence to being “You may.” Another grammatical error appears in the last paragraph wherein the writer referred to “a reasonable doubt into a moral certainty” rather than referring to a reasonable doubt “and to” a moral certainty.

We find the charge in question to contain an additional verbal inaccuracy in referring to the recollection of the female identification witness as “his” recollection. As stated in Blalock v. State, 369 So.2d 35, 37, (Ala.Cr. App.1979), cert. denied, 369 So.2d 38 (Ala. 1979), “This court still recognizes the difference between the male and female gender.” Therefore, the charge contained a verbal inaccuracy in that regard.

In addition to the abstract nature of the entire charge, we find the following paragraph to be particularly offensive: “You may also take into account that an identification made by picking the defendant out of a group of similiar [sic] individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.” There is no evidence that identification was made from a lineup. In fact, the prosecutrix testified that no lineup was held. Her identification of the defendant was from a photographic array. Therefore, the above-quoted portion of the charge is not only abstract as not being supported by any of the evidence in the case, but it would have also confused and misled the jury if the trial judge had read it to them.

Even if the above charge had not contained any verbal inaccuracies or grammatical errors, the mere fact that it came from United States v. Telfaire, supra, would not insure its propriety for use in the courts within this jurisdiction. Merely lifting language from an appellate court opinion does not insure its acceptability as a correct instruction to the jury. Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); Tate v. State, 337 So.2d 13 (Ala.Cr.App. 1976).

We have considered all questions apparent on the record or reserved in the trial court below pursuant to Code § 12-22-240 and find no error prejudicial to the substantial rights of the appellant.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Gregory ALTMAN, alias v. STATE of Alabama.
    6 Div. 480.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    J. Robert Bentley, Oneonta, for appellant.
    Charles A. Graddick, Atty. Gen. and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Gregory Altman was indicted for rape in violation of § 13A-6-61, Code of Alabama 1975, in that he did engage in sexual intercourse with the prosecutrix by forcible compulsion. The jury returned a verdict of “guilty of rape as charged in the indictment” and the trial court set sentence at 99 years’ imprisonment.

On January 20, 1980, the 79 year old prosecutrix was awakened in the middle of the night by someone breaking into her home where she lived by herself. She immediately called a neighbor to come help her and then went to investigate. As she reached her bedroom door she saw a man come in through a den window. This man who was subsequently identified by the prosecutrix as the appellant, then approached her, threw her on the bed, pulled off her bed clothes, dragged her down to the floor, hit her behind her ear with his fist, and raped her. Throughout this episode the prosecutrix was screaming and scratching as best she could to avoid the attack. Eventually, the telephone rang at which time she told her attacker that it was probably the neighbors that she had called while he was breaking in. This apparently prompted the man to leave and he did so through the same window that he had entered.

Medical evidence corroborated the prose-cutrix’ testimony that she had been raped.

The appellant’s defense was simply that he was not the man that broke into the prosecutrix’ house that night. In the alternative, appellant pled “not guilty by reason of insanity.” The appellant’s alibi evidence was inconclusive and his evidence of “insanity” obviously did not convince the jury, which found the appellant “guilty as charged.”

I

Appellant’s only contention on appeal is that the in-court identification of him by the prosecutrix was invalid because it was “tainted” by a pre-trial photographic identification that was unduly suggestive.

Since there was no other evidence placing appellant in the prosecutrix’ house at the time of the rape, this case, necessarily, turns on the validity of the prosecutrix’ identification.

Appellant contends that the prosecutrix was incapable of positively identifying her assailant because her opportunity to observe him was “short, dim, and turbulent.” We are unimpressed by this argument and hold that the victim of a frontal assault who clearly sees the unmasked person, however briefly, at the time of the attack, could certainly make a positive identification. There is nothing in the record before us which challenges the competency of the prosecutrix.

In fact, the record shows that the prose-cutrix observed her attacker from the moment he broke into her den until, face-to-face, he grabbed and raped her.

The crux of appellant’s argument is that the prosecutrix’ pretrial photographic identification was unduly suggestive because she was shown only one picture of appellant. However, this overlooks the fact that the prosecutrix had previously given the investigators a description of her assailant before they gave her the photographs to examine. In spite of the appellant’s assertions to the contrary, the record is not clear as to how many photographs the prosecu-trix viewed in order to identify her attacker.

At various times during her testimony, the prosecutrix was asked by counsel for both sides how many photographs were shown her. Typical of her answers were:

“The Judge showed me one and so did the inspectors.” (R. 38)
“The first one I saw was the one that I knew.” (R. 39)
“They showed me one up here ...” (R. 39)
“I was shown some down in Birmingham, I don’t know what they call that place, to see if I could identify if any of them looked like him.” (R. 40)
“Well, I don’t know.” (R. 41)

The appellant concludes from these answers that the prosecutrix was shown only his photograph and no others. We submit that for aught that appears in this record, more than one photograph was given to the prosecutrix to view, although she may not have looked past the one she identified as her attacker, i. e., the appellant.

Furthermore, the prosecutrix positively identified the appellant in open court. Such identifications, “pretrial” and “in-court”, in this instance were properly submitted to the jury whose responsibility it was to determine their weight and credibility.

We have carefully considered the totality of the circumstances shown in this record, as required by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) and are clear as to the conclusion that no error is shown with reference to the in-court identification of the appellant. Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976); Lomax v. State, Ala.Cr.App., 359 So.2d 832, cert. denied, Ala., 359 So.2d 836 (1978) and authorities therein cited.

We have examined this record and find no error. The judgment of the trial court is therefore affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Rayburn AKERS v. STATE.
    6 Div. 514.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      Samuel L. Masdon, Haleyville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted for the murder of his wife. Alabama Code 1975, Section 13A-6-2 (Amended 1977). A jury found him guilty of manslaughter. Sentence was eight years’ imprisonment.

I

Initially the defendant argues that the trial judge erred in the admission of testimony, over objection, which tended to imply that the defendant had beaten his wife over a period of years.

In its rebuttal case at trial, the State sought to prove, through the testimony of Helen Keeton, the mother of the deceased, that, during the eleven years the defendant and Linda Keeton Akers had been married, the defendant had frequently beaten his wife. The defendant objected to the admission of any such testimony: (1) because there was no testimony showing that a “beating had in fact taken place; (2) because there was no testimony directly connecting any “beating” to the defendant; and (3) because the evidence was too remote.

Mrs. Keeton testified that during the eleven-year period she had seen her daughter when she was “bruised and beat up”. However, the trial judge limited the time period to a two-year period before Mrs. Akers’ death. Mrs. Keeton then testified that, during the two years preceding her daughter’s death, she had seen “her several times beaten and bruised, choked, where fingerprints were on her throat and ... ”; that she never saw the defendant “lay a hand on her”; that once in those two years she asked the deceased, in the presence of the defendant, what happened to her and the deceased said that the defendant did it; that she then asked the defendant why he did it and he replied, “I don’t know.”

The defendant then took the stand in rebuttal and denied ever hearing his wife tell Mrs. Keeton that he had beaten her up, denied that his wife “just pretty frequently got beat up” and stated that his wife bruised easily.

The defendant then moved to exclude the testimony of Mrs. Keeton and requested a mistrial.

The trial judge later excluded part of Mrs. Keeton’s testimony with the following instructions to the jury:

“THE COURT: Lady and gentlemen of the jury, yesterday afternoon Mrs. Kee-ton was testifying as a witness in the case, and my recollection is that there was some testimony about ... there was testimony about an incident she described where her daughter, Linda Akers, and Rayburn Akers (the defendant), were present. That testimony is to be considered by the jury, but any other testimony by that witness as to any other happenings or anything like that that she observed, or that she was told by someone other than that one instance where Linda Akers and Rayburn Akers were both present, as well as Mrs. Keeton. The other is excluded and not for your consideration.”

The defendant testified in his own behalf. On direct examination he testified that one year before his wife’s death she told him, “I’ll kill you you son of a bitch if I ever catch you asleep”, and “about two years before that she tried for the gun one time and I got the gun away from her that time.”

Under these circumstances we find no error in the admission of Mrs. Keeton’s testimony as restricted by the subsequent instructions of the trial judge.

In a prosecution for the murder of a wife by her husband, their general relations toward each other and evidence of actual cruelty by the defendant upon his wife pri- or to the shooting are admissible on the question of whether the shooting was intentional or accidental, Shiflett v. State, 262 Ala. 337, 78 So.2d 805 (1955), and on the questions of malice and intent. Blue v. State, 246 Ala. 73, 19 So.2d 11 (1934); Grooms v. State, 228 Ala. 133, 152 So. 455 (1934); Reeves v. State, 201 Ala. 45, 77 So. 339 (1917); Padgett v. State, 49 Ala.App. 130, 269 So.2d 147, cert. denied, 289 Ala. 749, 269 So.2d 154 (1972). Generally see C. Gamble, McElroy’s Alabama Evidence, Section 45.06 (3rd ed. 1977). While evidence of previous difficulties should not be so remote in point of time as to have no legitimate bearing on the circumstances of the homicide or the points at issue, Dodd v. State, 32 Ala.App. 504, 27 So.2d 259 (1946), this is a matter largely within the discretion of the trial judgé. Smitherman v. State, 33 Ala. App. 316, 33 So.2d 396 (1948); McElroy, Section 21.01(2).

II

We have carefully reviewed each of the 138 written charges requested by the defendant including those 23 specifically noted by the defendant on this appeal. Most of the requested charges were fairly and substantially covered in the oral charge of the trial court and were therefore properly refused. Alabama Code 1975, Section 12-16-13. Some charges contained misspelled words or grammatical errors and were properly refused. Griffin v. State, 284 Ala. 472, 225 So.2d 875 (1969); Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1977). Some were not predicated upon a consideration of all the evidence and for that reason were properly refused. Thompson v. State, 369 So.2d 50 (Ala.Cr.App.), cert. denied, 369 So.2d 52 (Ala.1979). Some charges used the term “must acquit” and were therefore properly refused. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. denied, 288 Ala. 735, 265 So.2d 202 (1972). Some charges did not embody correct legal principles, applicable to the issues and the evidence, expressed in clear, unambiguous language. Bell v. State, 2 Ala.App. 150, 56 So. 842 (1911). Other charges were simply misleading and confusing when applied to the facts and evidence of this particular case. Still other charges stated several distinct propositions of law, some of which were fully covered in the oral instructions of the trial court. Hughes v. State, 385 So.2d 1015 (Ala.Cr.App.1980). In conclusion we do not find that the refusal of any of the defendant’s written requested charges was so prejudicial to the defendant as to require a reversal.

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

AFFIRMED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Curlie JEFFERSON v. CITY OF BIRMINGHAM.
    6 Div. 520.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      William Conway, Birmingham, for appellant.
    W. O. MacMahon, III, Asst. City Atty., Birmingham, for appellee.
   DeCARLO, Judge.

Selling liquor without a license; $400. fine and 45 days hard labor.

The evidence for the City showed that on February 16,1980, Birmingham Police Officer A. W. Ellis made a purchase of one shot of whiskey from appellant at 1901-13th Way, S.W., in Birmingham, that appellant was not a liquor licensee, and that the premises was not an ABC store.

Appellant testified that the premises was his personal residence, that on the date in question he was having a private party to which Officer Ellis had not been invited, and that he did not sell any liquor to Officer Ellis.

Upon appellant’s conviction in Birmingham Municipal Court for selling liquor without a license in violation of § 28-2 of the General Code of Birmingham, 1964, he appealed to the Jefferson Circuit Court and demanded a jury trial. The jury found him guilty and set his fine at $400.00. The trial judge imposed an additional sentence of forty-five days hard labor.

I

Appellant maintains that since the City Complaint charging him with a violation of § 28-2, supra, was not made a part of the record on his appeal to the circuit court for trial de novo, the City did not properly file the “other documents” relating to his appeal as mandated by § 12-14-70(d), Code of Alabama 1975 (Supp.1980). § 12-14-70(d), supra, provides the following:

“When an appeal has been taken, the municipality shall file the notice and other documents in the court to which the appeal is taken within 15 days, failing which the municipality shall be deemed to have abandoned the prosecution, the defendant shall stand discharged, and the bond shall be automatically terminated.” [Emphasis added]

Appellant argues that the failure of the City to file the complaint with the circuit court prior to his trial in that court should have resulted in his discharge. He acknowledges that he received a copy of the Complaint at the time he was tried in municipal court, and again on the day of his trial in circuit court, but insists that the City lost jurisdiction over him by not previously filing the Complaint as a part of the record on appeal to the circuit court.

It is a well-settled proposition of law that a defendant has the right to be apprised of the nature and cause of the accusation against him by written complaint. Miles v. State, 94 Ala. 106, 11 So. 403 (1891). Here, appellant was provided with the Complaint in municipal court and in circuit court before trial, and he was aware of the charge against him.

The City’s failure to file the Complaint with the circuit court within fifteen days of appellant’s appeal did not deprive that court of jurisdiction over him. See Chaney v. City of Birmingham, 246 Ala. 147, 21 So.2d 263 (1944); Clark v. City of Mobile, Ala.Cr.App., 357 So.2d 675, cert. den. Ala., 357 So.2d 680 (1978); Howard v. City of Bessemer, 40 Ala.App. 317, 114 So.2d 158 (1959).

It is well-settled that jurisdictional recitals in the appeal bond suffice to give the court to which the appeal is taken jurisdiction of the case. Howard v. City of Bessemer, supra. In the case before us, the appeal bond is regular in all respects and it was filed with the circuit court well within the fifteen-day time limit.

Therefore, it is our judgment that the technical omission of the Complaint from the record on appeal, when appellant had previously been provided with the Complaint and had notice of the charge against him, did not deprive the circuit court of jurisdiction over him or serve to abate the proceedings against him.

II

Appellant contends that the passage of a new General Code of the City of Birmingham subsequent to his alleged offense rendered the ordinance under which he was tried an ex post facto law.

His alleged offense occurred on February 16, 1980. He was prosecuted under § 28-2 of the 1964 General Code, the ordinance in effect on that date. The 1980 General Code did not take effect until May 5, 1980, when the ordinance adopting it was published in the newspaper. See § 11-45-8, Code of Alabama 1975. Therefore appellant was prosecuted pursuant to the law in effect at the time of the alleged offense, and there is no question involving an ex post facto law before us.

III

Appellant next argues that his conviction was not supported by the evidence because one illegal sale of whiskey is not sufficient to constitute a violation of § 28-2, supra. We do not agree. In an early case, the Alabama Supreme Court held that proof of a single sale of intoxicating liquor without a license was sufficient to constitute a violation of the liquor laws. Wilson v. State, 136 Ala. 114, 33 So. 831 (1903).

IV

Appellant’s final contention is that the trial court erred by not giving certain written requested jury charges. All of the refused charges, however, were either misleading or erroneous statements of the law, or were adequately covered by the court’s oral charge. Their refusal, therefore, was proper. See Stinson v. State, 55 Ala.App. 629, 318 So.2d 325, cert. den. 294 Ala. 772, 318 So.2d 329 (1975); Burress v. State, 56 Ala.App. 414, 321 So.2d 752 (1975).

We have examined the record and have found no error prejudicial to appellant. The judgment of conviction by the Jefferson Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    Joseph TOUCH v. STATE.
    6 Div. 533.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      Jack G. Davis, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Mark R. Ulmer, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Revocation of probation.

On September 18, 1979, appellant was convicted on guilty pleas of four charges of robbery. On November 2, 1979, he was sentenced to ten years’ imprisonment on each count. On November 16, 1979, the trial court reduced the sentence in each case to twelve months in the penitentiary and three years on probation with “probation to start upon date of release.” All sentences were to run concurrently.

The State’s evidence indicated that on June 29,1980, while serving his sentence at the Camden Work Release Center, the appellant was caught in possession of a small plastic bag containing marijuana. During the revocation hearing, the appellant admitted possessing the marijuana, but contended that he had just found the bag and was examining it when the guard confronted him. The trial judge, sitting as the trier of fact at the revocation hearing, found that the appellant had violated the Uniform Controlled Substances Act in possessing the marijuana. Probation was therefore revoked.

The issue before this court is whether probation can be revoked for an offense committed by the probationer while incarcerated and before the probationary period of his sentence begins. We conclude that the trial court was acting within its lawful authority in revoking the appellant’s probation under the instant circumstances. Dis-positive of this issue is the case of Ex parte State, ex rel. Attorney General (In re: Eddie Dean Wilcox v. State), Ala., 395 So.2d 1054 (1981), wherein our supreme court stated:

“We hold, therefore, that where, as here, Defendant commits a felony while under a probationary sentence, although prior to the effective date of the probationary portion of the sentence, and its terms and conditions are not yet expressly prescribed, the sentencing court is nevertheless authorized to revoke Defendant’s probation for violation of a condition implicit in every suspended or probationary sentence: that Defendant, while under such sentence, will not commit another criminal offense. ... ” (Emphasis added.)

AFFIRMED.

All the Judges concur.


text:
    Hoyt HOLLIS v. STATE.
    7 Div. 761.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.

      William D. Hudson of Wilson & Hudson, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Appellant was convicted of murder and sentenced to life imprisonment for the stabbing of George Kimbril, his stepson-in-law. Betty Lou Kimbril, appellant’s stepdaughter, testified that on February 5, 1981, she and her husband, George, were living with appellant. According to Mrs. Kimbril, that afternoon, she was sitting on the couch and her husband was reclining on the couch with his head in her lap, when appellant entered the house and, without provocation, stabbed George Kimbril.

Appellant testified that he had been drinking, that he and Kimbril had an argument, and that Kimbril cut appellant on the hand with a knife. Appellant then left and went to borrow a butcher knife from a neighbor. When appellant returned to the house, Kimbril stood up and reached in his pocket and appellant stabbed him. Appellant then went next door and told another neighbor, “Call the sheriff, I think I have killed George. I hope to God I haven’t.”

The deputy coroner viewed the stab wound in Kimbril’s chest between 7:00 and 7:30 P.M. and pronounced Kimbril dead at the scene. He did not examine the body for other wounds or give his opinion as to the cause of death.

Appellant was arrested about 6:30 or 7:00 P.M. at his neighbor’s home and taken to police headquarters. Attalla Police Officer Harold Enich testified that appellant was “obviously intoxicated” at 7:30 P.M. and he did not question appellant at that time. He did, however, advise appellant of his rights and appellant volunteered an oral statement, which Enich did not reduce to writing.

Captain Koy Rigsby also talked to appellant that evening, observed that he was “drunk,” and advised him of his rights. Appellant signed a waiver of rights form and gave Capt. Rigsby a statement which was reduced to writing. The following day, after appellant had spent the night in jail, Capt. Rigsby again advised appellant of his rights. Appellant signed another statement, which was later put in written form. Rigsby asked appellant whether he remembered anything from the day before and appellant replied, “Yes, sir, I remember everything. I was not drunk, I remember.”

At trial, appellant objected to testimony regarding the contents of any of the three statements. The trial court ruled that both the oral statement and the first written statement given February 5 were inadmissible because appellant was intoxicated. The second written statement, taken on February 6, was admitted into evidence.

I

Appellant claims that the State did not adequately prove the cause of the victim’s death; therefore, he contends, the trial court erred in denying his motion to exclude at the close of the State’s case.

Appellant is correct that there was no expert testimony regarding the cause of death. Expert testimony, however, is not always necessary to establish the cause of death. Dismukes v. State, Ala.Cr.App., 346 So.2d 1170, reversed on rehearing, 346 So.2d 1175, cert. den. 346 So.2d 1177 (1977). The question whether, under all the circumstances, death was the result of the defendant’s assault on the deceased, is one of fact for the jury. Dis-mukes, supra; Gurley v. State, 36 Ala.App. 606, 61 So.2d 137 (1952); Hall v. State, 34 Ala.App. 246, 38 So.2d 612 (1949). If there is any proof, direct or circumstantial, to establish the corpus delicti, the issue is one of fact for the jury and not one of law for the court. McCall v. State, 262 Ala. 414, 79 So.2d 51 (1955); McDonald v. State, 56 Ala. App. 147, 320 So.2d 80 (1975); Cook v. State, 43 Ala.App. 304, 189 So.2d 595 (1966).

Our review of the record convinces us that there was sufficient circumstantial evidence regarding the cause of George Kimbril’s death. Under these facts, expert testimony was not needed. It was not “beyond the knowledge of the average layman” to understand that stabbing a person with a butcher knife could cause death. The victim’s wife witnessed the stabbing. The appellant admitted to his neighbor that he thought he had “killed George,” and he later pleaded self-defense. There was no indication that Kimbril died from anything other than the stab wound inflicted by appellant.

It is our judgment, therefore, that the facts of the instant case fall squarely within the holding of Dismukes v. State, supra at 1174, in which the court stated:

“In this case the cause of death was obvious. The causal relationship between the act of the accused inflicting the wound and the death of the deceased was not obscure or beyond the knowledge of the average layman. A dangerous weapon was used and there was no evidence presented or even suggested that the accused [sic] died from anything but the bullet wounds inflicted by the appellant. The appellant entered a plea of self defense; she told the volunteer emergency technician that she had killed the deceased. On the witness stand, the appellant admitted shooting the deceased. This case should not be reversed on evidence such as this nor should this court substitute its findings for those of the jury which convicted the appellant.” [Citations omitted.]

II

Appellant next contends that the admission of his second written statement, given to the police the day after the stabbing, was error. Counsel asserts that appellant “must have been influenced” to make the last statement because of the existence of the first two. Thus, he argues, his final confession was “tainted” by his two earlier confessions.

Initially we note that the record does not demonstrate that appellant’s first two confessions should have been excluded on the basis of his intoxication. Intoxication short of “mania” (or such an impairment of the mind or will as to make the person confessing unconscious of the meaning of his words), will not render a confession inadmissible. Jackson v. State, Ala.Cr. App., 375 So.2d 558 (1979); Rogers v. State, Ala.Cr.App., 365 So.2d 322, cert. den. 365 So.2d 334 (Ala.1978); Medders v. State, Ala. Cr.App., 342 So.2d 49 (1977).

From the record:

“Q. [By defense counsel] What do you mean by intoxication, sir?
“A. [By Officer Enich] To me he is obviously under the influence of alcohol, he was — speech was slurred, his dress and manner was sloppy.
“Q. Did he have any trouble knowing where he was?
“A. I couldn’t say for sure his state of mind, sir.
“Q. Did he have any trouble knowing who you were as far as being an officer of the law?
“A. No, sir, he recognized us as police officers.
“Q. He recognized you as police officers. Did he recognize where he was as far as the jailhouse?
“A. Best that I could tell he did, yeah.
“Q. Did he have any trouble understanding your words, what you were saying, as far as understanding them?
“A. No, sir, I believe we made ourselves clear with him.
“Q. Was he drunk that he couldn’t stand up by himself?
“A. He was able to stand by himself.
“Q. Was he able to walk by himself?
“A. Yes, sir.
“Q. At any time did he pass out?
“A. No, sir, not while I was there.
“Q. Officer Enich, if you had run up on Mr. Hollis in the condition that you saw him in down there at the jail on a public street, would you have arrested him?
“A. Yes, sir, under his condition I would have.
“Q. For public intoxication?
“A. Yes.
“Q. [By defense counsel] At the time that you advised Mr. Hollis of his rights and he signed the waiver form there, and at the time you took his statement, in your opinion, was Mr. Hollis drunk?
“A. [By Capt. Rigsby] He was drinking.
“Q. Do you recall testifying at the preliminary hearing in this case, Mr. Rigsby?
“A. Uh huh.
“Q. Do you recall telling us at that time that he was drunk, not as drunk as you had seen him before, but he was drunk?
“A. That’s right.”

Although we recognize that the learned trial judge ruled, out of an abundance of caution, that the confessions were inadmissible, we (having the benefit of hindsight) believe that the evidence fell short of establishing the “mania” necessary to render the statements involuntary. The fact that appellant was so intoxicated that he would have been arrested for public drunkenness is not sufficient. Woods v. State, 54 Ala.App. 591, 310 So.2d 891 (1975).

Even if appellant’s first two confessions were properly excluded, however, it would not follow that his last confession was also inadmissible because it was the product of the first two. United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654 (1947). In this context, we believe the following observation by the United States Supreme Court in Bayer, supra, is apt:

“Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.”

The rationale for excluding any confession made after an involuntary one is that the later confession flows from the same improper influence or inducement as the earlier one. United States v. Bayer, supra; McAdory v. State, 62 Ala. 154 (1878); Levison v. State, 54 Ala. 520 (1875); Cook v. State, 16 Ala.App. 390, 78 So. 306 (1918). By the same token, once it is shown that the improper influence or inducement has been dispelled, there is no reason not to admit the subsequent confession. Cook v. State, supra. In Levison v. State, supra, the court observed:

“The first confession is regarded as the parent of the succeeding confessions, and that being improperly obtained, vitiates the second, unless it appears the influence extracting the first has been removed, and all connection between the two dissevered,[Emphasis added.]

In the case before us, after Capt. Rigsby testified that appellant had spent the night in the Attalla jail and had given a third statement the next morning, appellant’s counsel questioned Rigsby as follows:

“Q. Captain Rigsby, who wrote the second statement, the one taken the next morning?
“A. My partner, Dale Walton, he does all of our writing, he is the best.
“Q. Did he write the second statement from the first statement?
“A. No, sir, he taken it absolutely from Mr. Hollis.
“Q. Started all over again from scratch?
“A. That is right.
“Q. As if he didn’t know anything that was in the first statement?
“A. That is right.
“Q. You don’t think that the contents of the first statement in any way influenced the way that Officer Walton wrote up the second statement?
“A. No, sir. We asked Mr. Hollis did he remember anything and he said, ‘Yes, sir, I remember everything, I was not drunk, I remember.’ And the, he went to telling us exactly what happened.

We think it clear, from the foregoing testimony and from the fact that appellant spent the night in jail and had time to sober up, that the State proved “the influence extracting the first [confession had] been removed, and all connection between the two dissevered.” Levison v. State, supra. We therefore find no error in the admission of appellant’s statement.

Ill

Appellant also argues that reversible error occurred when Capt. Rigsby was allowed to testify that a statement (ruled inadmissible) given while appellant was intoxicated was similar to the later statement (ruled admissible) given the following day.

From the record:

“A. [By Captain Rigsby] This is the statement of Hoyt Hollis given the second day.
“Q. [By assistant district attorney] Is the statement basically the same statement he gave to you earlier?
“MR. HUDSON: [Defense counsel] Judge, I’m going to—
“A. Basically, yes.
“MR. HUDSON: —I object to that, they speak for themselves.
“THE COURT: Overruled.”

Appellant argues that Capt. Rigsby’s testimony indicated to the jury the contents of the earlier statement and bolstered the weight of the later statement.

However, when, as here, an objection comes after the witness’ answer and there is no motion to exclude, there is no error. Day v. State, Ala.Cr.App., 378 So.2d 1156, rev’d on other grounds, Ala., 378 So.2d 1159 (1979). In addition, as we have indicated in Part II of this opinion, there would have been no error in admitting appellant’s two statements made while he was intoxicated. Finally, we note that when there is one confession by a defendant properly admitted into evidence and there is strong corroborative evidence of the guilt of the defendant, the admission of another confession even though it should have been excluded, is harmless error. Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973).

IV

Appellant complains of reversible error during closing argument by the State when the following occurred:

“MR. MOORE: [Assistant district attorney] Why did he have to go next door to borrow a knife? Why didn’t he go in the kitchen and borrow a knife? Because his wife was hiding the knives from him. It’s not the first time he used a knife to settle his differences.
“MR. HUDSON: Your Honor, I’m going to object to that. There is no testimony to that.
“THE COURT: The jury will remember the testimony.” (Emphasis added)

Appellant maintains that the prosecutor’s comment was an impermissible statement of fact not borne out by the evidence. It is a well-settled proposition that, although counsel may not argue as a fact that which is not supported by the evidence, they should have wide latitude to draw reasonable inferences from the evidence during their closing arguments to the jury. Brown v. State, Ala.Cr.App., 374 So.2d 391, aff’d, Ala., 374 So.2d 395 (1979). In the case before us, there was testimony that appellant’s wife had, in fact, hidden knives from him, and that knives were found under the drain board. In view of such testimony, we think the prosecutor’s remark was a permissible inference to be drawn from the evidence, and we find no error.

V

Appellant insists that the trial court erred by not charging the jury on criminally negligent- homicide as a lesser offense included in the indictment for murder. The appellant did not request a written charge on criminally negligent homicide; instead he excepted to the court’s omission of that offense from its oral charge.

An exception reaches only what the court did say, Grisham v. State, 147 Ala. 1, 41 So. 997 (1906), and if the objection is to the court’s refusal or omission to charge on a particular subject applicable under the evidence, the procedure is by way of a requested written charge. Wells v. State, Ala.Cr. App., 378 So.2d 747, cert. den., 378 So.2d 756 (Ala.1979); Tranholm v. State, 38 Ala.App. 57, 77 So.2d 491, cert. den., 262 Ala. 703, 77 So.2d 494 (1954).

We therefore hold that appellant did not properly preserve the question for review. Yates v. State, Ala.Cr.App., 390 So.2d 32 (1980); Harville v. State, Ala.Cr.App., 386 So.2d 776 (1980); Hall v. State, Ala.Cr.App., 375 So.2d 536 (1979).

We have searched the record for error prejudicial to appellant and have found none. The judgment of conviction by the Etowah Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.