text:
    Theodore THOMAS v. STATE.
    3 Div. 234.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Robert M. Beño and Marcel E. Carroll, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was charged in a two count indictment with grand larceny and buying, receiving, concealing, or aiding in concealing stolen property. A jury found the defendant guilty of the count charging receiving stolen property after declaring that they were unable to reach a unanimous agreement as to Count I which charged larceny. Sentence was five years’ imprisonment.

The defendant challenged the sufficiency of the evidence by a motion for directed verdict at the conclusion of the State’s evidence and by motion for new trial. A motion to exclude the evidence for insufficiency is tested by the evidence at the time the motion is made and viewed in the light most favorable to the State. Kontos v. State, Ala.Cr.App., 363 So.2d 1025 (1978).

The defendant specifically contends on appeal that the State only proved that he was a possible participant or aider and abettor in the theft itself. Since one cannot be convicted for buying, receiving, or concealing stolen property when the evidence shows that he actually stole the property, Davidson v. State, Ala.Cr.App., 360 So.2d 728, cert. denied, Ala., 360 So.2d 731 (1978), the defendant argues that the jury’s verdict was unauthorized and not supported by the evidence. We disagree.

On October 2, 1979, John C. Brown and a passenger, Ed Conti, were driving on Day Street in Montgomery. As they approached the furniture and bedding company of Pel-ham, Shell and Leckie, Mr. Brown noticed an early 1970’s model Oldsmobile station wagon in front of him pull to the side of the street. Three black males jumped out and two of the three ran over to a pickup truck parked several feet away. The other one, whom Brown identified as the defendant, stood by the open rear door of the station wagon. A fourth black male remained in the driver’s seat.

Ed Conti recognized the pickup truck as belonging to a customer of his, Wiley Chap-pell, so Mr. Brown and Mr. Conti pulled off Day Street about fifty yards beyond the station wagon to observe. The two black males by the pickup truck opened the door, snatched two rifles and ran back to the station wagon. Brown stated that the defendant jumped in the station wagon and one of the rifles was either handed to him or placed on the rear floorboard by one of the thieves. One black male jumped in behind the defendant and the other one got in the front seat with the other rifle. The station wagon immediately drove off.

Mr. Brown followed the subjects and flagged down a policeman, Talmage Kelley, at the intersection of Air Base Boulevard and Day Street. Officer Kelley apprehended the subjects as they pulled into a Billups service station two blocks from the scene of the theft. Only minutes had elapsed since the crime had been committed. The rifles were recovered from the front and rear floorboards of the station wagon.

• Wiley Chappell identified one of the rifles as belonging to him. The other rifle belonged to a friend of his and was left in his custody. He testified he gave no one permission to take the rifles.

In the State’s case in chief, John Brown was the only witness who observed the actual theft. When asked if it were possible that the defendant did not have anything to do with the theft, he replied, “In my opinion, it would be probable.” He candidly admitted, “It would be impossible for me to state anything other than he [defendant] was present.” Mr. Brown stated that the defendant was “just standing, watching the proceedings.”

“Okay. I believe there were three black males that were actively involved: one, the driver of the automobile because he had to stop and probably had been aware of the intent of the other gentlemen and, then, the other two that actively opened the automobile and removed the firearms.”
* * * * * *
“Yes, sir, because based on the way he behaved, he was a victim, you know, of an act just being there. He didn’t actively engage in the crime in my opinion.”

On direct examination, Mr. Brown testified that one of the rifles was handed to the defendant who was sitting in the back seat of the station wagon. However, on cross examination Brown admitted that he never actually saw the defendant touch the rifle and the weapon could have been placed on the floorboard instead. On redirect examination Mr. Brown testified that it appeared to him that the weapon was handed to the defendant: “He just asked me for my opinion and just logic, you know, the way it was handed in basically. I just know what I know of a ’72 Olds, primarily a big back seat.”

The following elements must be proven in order to submit to a jury a case of buying, receiving, or concealing stolen property: “(1) The property must have been stolen; (2) the accused must have bought, received, concealed, or aided in concealing the property with the knowledge that it was stolen; and (3) the accused must have had no intention of returning the property to the owner.” Ladd v. State, 363 So.2d 1017 (Ala.Cr.App.1978).

Where the evidence establishes that the accused was present, actually aiding, abetting, and participating in the theft of property, he could not be convicted of the offense of buying, receiving, or concealing stolen property. White v. State, 383 So.2d 888 (Ala.Cr.App.), cert. denied, 383 So.2d 892 (Ala.1980); Davidson v. State, 360 So.2d 728 (Ala.Cr.App.), cert. denied, 360 So.2d 731 (Ala.1978). However, 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. A statute making an accessory a principal does not alter this rule. White, supra; Mefford v. State, 363 So.2d 1050, 1054 (Ala.Cr.App.1978).

“An apparent exception to the rule that one who steals property cannot be convicted of receiving it, .. . is that one who was an accessary before or after the fact but was not present at the actual caption and asportation of the goods or took no part therein, but who received the goods after the theft, may be convicted of receiving stolen goods, and this is true, although statutes provide, or the rule is applied that a person who has been an accessary to a theft may be convicted as principal thief. 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 § 14c (1952).

Likewise, Wharton says:

“It is generally held that . . ., a person who is physically present when the goods are stolen but who does not aid in their caption or asportation, may commit the offense of receiving the stolen goods, on the theory that the act of receiving the goods is under such circumstances subsequent to the theft and not a part of it.” R Anderson, 2 Wharton’s Criminal Law and Procedure § 576 (1957).

Here the evidence is in dispute as to whether or not the defendant actually participated in the theft of the goods. Even considering only the State’s evidence, it is not clear whether the defendant was a thief or merely a receiver-the evidence being such that the jury was authorized to find that he was either one or the other. It was for the jury to determine whether the defendant was guilty as a thief or as a non - thief of receiving or concealing stolen property.

In Stoudemire v. State, 365 So.2d 376 (Ala.Cr.App.1978), the accused stood at the corner of a building while his companion broke into a parked automobile and removed a safety deposit box. This Court found that Stoudemire was a principal in the felonious taking and carrying away of the property of another and for that reason could not be convicted of the crime of receiving, concealing or aiding in the concealment of stolen property. There the State’s evidence did not present any conflict in the part Stoudemire played in the theft. However, here the jury could either find that the defendant was an active participant in the theft in that he was a “lookout” or that the defendant was innocent of the actual theft in that he did not know of the crime until it was actually m progress. In White, supra, this Court also found that the accused’s role was “clearly that of an active participant in the caption and asportation” of the property.

Clearly, the defendant’s mere presence in the automobile would not constitute constructive possession of the stolen items, since this defendant neither owned or operated the vehicle. Isabell v. State, 57 Ala.App. 444, 452, 329 So.2d 133, cert. denied, 295 Ala. 407, 329 So.2d 140 (1976); Crowden and Askew v. State, 55 Ala.App. 325, 331, 315 So.2d 122, cert. denied, 294 Ala. 756, 315 So.2d 128 (1975).

“In the absence of a showing that he [defendant] knew the guns to be in the car, knew them to be stolen and exercised some control over them, his presence in the car, standing alone, would not be sufficient for a conviction.” Isabell, 57 Ala.App. at 452, 329 So.2d 133.

Yet, the circumstances in this case are much more incriminating than those in Isabel!. Here the defendant was in the car both immediately before and after the theft. He observed his two companions steal the rifles. That the defendant had actual knowledge of the theft cannot realistically be disputed. Appellate counsel even argues that, if the defendant is guilty of anything, it is larceny.

Additionally, just as Mr. Brown concluded that the weapons were handed to the defendant, the jury could draw the same reasonable inference. In sifting and weighing the facts of a case “courts and juries must use common sense, common reason, and common observation as well as common knowledge of the usual acts of men and women under given circumstances.” Thompson v. State, 21 Ala.App. 498, 499, 109 So. 557 (1926).

Under the evidence the defendant could have been found guilty of either larceny or buying, receiving, or concealing stolen property. Where the evidence affords a reasonable inference that the offense for which one is charged has been committed, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

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

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Joe Israel FAVOR v. STATE.
    4 Div. 790.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Abner Powell of Powell & Powell, Andalusia, and Thomas T. Gallion of Gallion & Gallion, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Violation of Alabama Securities Act, §§ 8-6-3(a) and 8-6-4, Code of Ala.1975 (four indictments); sentence: $1000 fine and eighteen months imprisonment consecutively on each charge.

In the fall of 1975, appellant sold corporate securities on behalf of National Developers, Inc., and Alabama corporation, to several farmers in Covington County. Appellant informed the purchasers that those Series “A” 12% notes would finance the construction of a fertilizer plant in nearby Elba, Alabama. The appellant was not a registered securities dealer or salesman at the time nor were the notes registered and recorded in the Register of the Alabama Securities Commission.

I

The appellant, Joe Israel Favor, was indicted for violating Alabama’s “blue sky” laws, §§ 8-6-3(a) and 8-6-4, Code of Ala. 1975. Four indictments were returned against him, each containing identical counts. Upon appellant’s request, these indictments were consolidated in one trial.

Appellant contends that the indictments were insufficient because they did not name the vendees in these securities transactions. He thus asserts that his timely demurrers to the indictments were improperly overruled by the trial court. We disagree.

The indictments precisely follow the Code forms prescribed in §§ 15-8-150(87) and (92), Code of Ala.1975. Section 15-8-150 commences with the statement: “The forms of indictment set forth in this section in all cases in which they are applicable, are sufficient.” Both indictment Forms No. 87 and 92 particularly refer to the pertinent sections of the Alabama Securities Act under which appellant was indicted.

The issue would appear then to be whether due process requires the naming of the vendee or whether we merely accept the Code form as sufficient. It is obvious that in failing to name the vendee, an accused is not apprised of which transaction he is called upon to defend where he may have engaged in similar transactions at various times. Likewise, for purposes of double jeopardy the particular transaction should be clearly identifiable. We recognized those basic requirements of due process in Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977), in reversing the conviction for assault on one of two unnamed police officers. However, here we must follow a different rule because we are bound to follow the decisions of the Alabama Supreme Court per § 12-3-16, Code of Ala.1975, and that court has ruled on this issue.

In Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973), a case involving the illegal sale of drugs for which there was no specific indictment form, our supreme court held that it was not necessary to name the vendee in the indictments. In support of that reasoning, the majority cited inter alia the then equivalent of current Forms No. 87 and 92 and pointed out “in no instance does the form require the name of the vendee.” Chief Justice Heflin, dissenting in Adkins, commented with respect to securities indictments:

“It would appear then that all of the form indictments for selling prohibited liquors, sales by unregistered dealers, etc., which do not purport to name the vendee are sustained under the rationale set out above, that is, since the form meets the basic constitutional requirement, it is sufficient because the legislature says so even though all material elements of the offense, i. e., the buyer, are not set out.”

This court dutifully followed Adkins in Manson v. State, Ala.Cr.App., 349 So.2d 67 (1977), cert. denied, Ala., 349 So.2d 86. That case dealt with Alabama’s securities laws and the sufficiency of indictments brought thereunder. This court endeavored in Manson to explain the reason for the two different standards, stating:

“Whether the name or identity of persons other than the accused is necessary to sustain the sufficiency of an indictment has been previously resolved. . . . Generally, where the alleged crime is one necessarily involving an injury to the person or the personal right of another, or damage to property or a property right of another, the name or identity of the other must be stated in the indictment.
“The reasons the name or identity of other persons is generally required usually disappear when the particular crime charged does not necessarily involve any injury to the person or property of another. As to those that do, it is to be noted that even the Code forms of indictment require in general that the name or identity of the other person be alleged; as to the other kind, the name or identity of the other is not usually required, and, when required, a reason therefor appears, which is not applicable to most of such crimes.. . . ”

It therefore appears that the gist of the instant offense is the “selling” of the illegal item, and the offense does not depend upon the identity of any particular purchaser or vendee. Whereas, in crimes against the person, an injured party is an indispensable element of the offense and must be identified the same as the item sold must be identified in “selling” eases. However, regardless of the rationale used, Adkins, supra, controls, and the trial court was not in error in overruling the demurrer to the indictments.

II

Appellant submits that the trial court committed reversible error when it sustained an objection raised during cross-examination of a state employee concerning his mileage expenses. Appellant argues that cross-examination of this witness was essential to show the possible extent of his interest, bias, or prejudice.

James G. Pugh, a witness for the State, was a securities examiner with the State Securities Commission who testified about his investigation of appellant’s activities. During cross-examination defense counsel offered to show by Mr. Pugh that, as a state employee, his mileage expenses were paid to travel to Covington County and testify before the grand jury and at trial. We find no error in the trial court sustaining the district attorney’s objection to that line of questioning. Pugh had testified that his employer was the State of Alabama. When appellant’s attorney next querried, “So, I presume from that, you draw your paycheck from the State of Alabama,” the witness answered affirmatively. Any potential bias or prejudice of the witness in favor of the State was thus clearly before the jury. Therefore, cross-examination as to his mileage expenses in this case would be repetitious and argumentative. Atwell v. State, Ala.Cr.App., 354 So.2d 30 (1977), cert. denied, Ala., 354 So.2d 39; Ball v. State, Ala.Cr.App., 337 So.2d 31 (1976), cert. denied, Ala., 337 So.2d 39. The Alabama Supreme Court in State v. Howington, 268 Ala. 574, 575, 109 So.2d 676 (1959), stated:

“[T]he latitude and extent of cross-examination is a matter which of necessity rests largely within the sound discretion of the trial court, and rulings with respect thereto will not be revised on appeal except in extreme cases of abuse... . ”

In the instant case we are not persuaded that the ruling of the trial court was prejudicial to the appellant or that there was an abuse of discretion. See also: Rule 45, Alabama Rules of Appellate Procedure.

Ill

Appellant argues that the trial court improperly denied a motion for mistrial after the prosecutor asked the appellant, whether he had previously been put on probation, ■violated his probation, and been sent to the penitentiary.

The record indicates that while cross-examining the defendant the prosecutor inquired whether the defendant was convicted on May 30, 1958, in the Circuit Court of Montgomery County for disposing of mortgaged property and sentenced to eighteen months in the penitentiary. Without objection the appellant answered affirmatively. Subsequently, on recross-examination, the following transpired:

“BY MR. McGILL:
“Q. Mr. Powell asked you about that car for which you were convicted in Montgomery County. Isn’t it also a fact that you were put on probation and then violated your probation and were sent to the penitentiary, weren’t you?
“A. • That’s right.
“MR. POWELL: We object to that and move for a mistrial.
“THE COURT: Sustained. Deny the motion for mistrial. The jury is instructed to disregard anything beyond the point of conviction.”

Appellant’s attorney then assigned grounds for a mistrial, and the trial judge once again admonished the jury to disregard the question and denied the motion for a mistrial.

A defendant, when testifying in his own behalf, may be questioned on cross-examination as to whether he has been convicted of a crime involving moral turpitude for the purpose of attacking his credibility as a witness. White v. State, Ala.Cr.App., 347 So.2d 566 (1977); § 12-21-162, Code of Ala.1975. However, care should be exercised so as not to include an offense that does not involve moral turpitude. Kennedy v. State, Ala.Cr.App., 371 So.2d 464 (1979). Whether disposing of mortgaged property is a crime involving moral turpitude is not in issue as no objection was interposed and no ruling by the trial court was elicited when that matter came into evidence. However, the matter of the probation violation is in issue. It is clear to us that a probation violation is not a “crime” of any kind and is thus not admissible per se under § 12-21-162, Code of Ala.1975. Whether reversible error resulted from such disclosure requires further discussion.

Generally, on cross-examining a witness about his prior convictions, only inquiries about the designation of the crime, the time and place of conviction, and the punishment are proper. Conley v. State, Ala.Cr.App., 354 So.2d 1172 (1977); Gamble, McElroy’s Alabama Evidence, § 145.01(11), (3d ed. 1977). It is not permissible to go into the details of such offenses. Conley v. State supra; Ellis v. State, 244 Ala. 79, 11 So.2d 861 (1943). Therefore, the prosecutor exceeded the reasonable scope of questioning when he emphasized the appellant’s probation violation after already clearly establishing the conviction and the punishment.

The prosecutor’s obvious objective was not to challenge the appellant’s credibility as a witness, but rather to suggest to the jury that the appellant was guilty of some other improper or illegal conduct which warranted a revocation of his probation. That line of questioning violates the general rule that a witness may not be cross-examined for impeachment purposes as to specific acts of misconduct which have no relevancy except as tending to show that he is a person of bad character as a whole. McElroy’s Alabama Evidence, § 140.01(10); Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966). Yet, this does not mean a reversal is mandated in every such case.

The appellant’s objection was late and not specific. White v. State, supra. Nevertheless, the court ruled in his favor on the objection. The present issue before us, therefore, concerns the trial court’s ruling on the motion for a mistrial. After the appellant answered the question concerning his probation violation, his attorney made a general objection and moved for a mistrial. Defense counsel then assigned grounds for his motion for a mistrial “that the question is prejudicial, inadmissible in evidence and ineradicable.” He further asserted that “it cannot be removed from the consideration of the jury by asking them to disregard it.” The following then occurred:

“THE COURT: I am going to deny the motion for a mistrial. And ladies and gentlemen of the jury, disregard and put out of your mind entirely the question by Mr. McGill about being put on probation and being revoked for violation of probation. It has no place in this trial. The only reason that the law allows him to show that he has been previously convicted of a crime, any time a witness testifies in Court, the law allows the opposing party to ask him if he has been convicted of a crime involving moral turpitude. And that is to show his veracity. And it is admitted for that reason only and anything that happened after the date of the conviction has nothing to do with any lawsuit, this one, or any other one, and you are instructed to put it completely out of your mind and disregard it for any purposes whatsoever. Any further examination by either of you gentlemen?
“MR. MCGILL: No, Your Honor.
“MR. POWELL: You can come down. “(At which time, the witness comes down from the witness stand.)”

A trial court’s ruling on a motion for a mistrial is reviewable on appeal. Stennett v. State, Ala., 340 So.2d 65 (1976). However, such a motion is addressed to the sound discretion of the trial judge, and his ruling will not be reversed in the absence of a clear showing of abuse of discretion. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Heard v. State, Ala.Cr.App., 351 So.2d 686 (1977).

In the instant case we find the question of the prosecutor to have been improper and prejudicial, but not to the extent that after the trial court’s strong admonition to the jury, supra, a mistrial was mandated. We find no abuse of discretion on the part of the trial judge in denying the motion for a mistrial, and we likewise find that his prompt admonition to the jury adequately overcame any prejudicial effect which the prosecution’s improper question might have otherwise had. Diamond v. State, Ala.Cr.App., 363 So.2d 109 (1978), May v. State, 42 Ala.App. 401, 166 So.2d 860, cert. denied, 277 Ala. 700, 166 So.2d 865 (1963).

IV

Next, appellant submits that the trial court committed reversible error by denying repeated motions for mistrial based upon certain remarks made by the prosecutor in closing argument.

The district attorney stated, in substance, that defendant told prospective purchasers that his stock was “going to make you all rich.” He also avowed “there are some things you can’t ask a Defendant on the witness stand.” Additionally, the prosecutor commented that defense counsel had returned to the private practice of law and “knows the law in that book.” The trial court overruled defense counsel’s objections to these remarks and denied appellant’s motion for mistrial following the second of these statements.

The State insists that the prosecutor merely argued reasonable inferences and conclusions from the evidence. From the testimony presented, we find that there is a legitimate basis for the State’s position. The appellate courts of this state have stated on innumerable occasions that there is no legal standard by which the prejudicial qualities of improper remarks of a prosecutor can be judged. Each case must be determined on its own merits. Hurst v. State, Ala.Cr.App., 365 So.2d 1224 (1978); Binion v. State, 57 Ala.App. 234, 327 So.2d 729 (1975), cert. denied, 295 Ala. 391, 327 So.2d 732. “Liberal rules are allowed counsel in drawing inferences from the evidence in their arguments to the jury, whether they are truly drawn or not.” Smith v. State, Ala.Cr.App., 344 So.2d 1239, 1242, cert denied, Ala., 344 So.2d 1243 (1973). See also: Chambers v. State, Ala.Cr.App., 382 So.2d 632, cert. denied, Ala., 382 So.2d 636 (1980).

A prosecutor “may argue every legitimate inference from the evidence and may examine, collate, sift, and treat the evidence in his own way.” Williams v. State, Ala.Cr.App., 377 So.2d 634, 639, cert. denied, Ala., 377 So.2d 639 (1979); White v. State, 41 Ala.App. 54, 123 So.2d 179, cert. denied, 271 Ala. 702, 123 So.2d 186 (1960). Argument by the prosecution concerning omissions and inconsistencies as affecting the credibility of witnesses and many other considerations is a proper subject for criticism and discussion. Speigner v. State, Ala.Cr.App., 369 So.2d 39, cert. denied, Ala., 369 So.2d 46 (1979); Smith v. State, supra.

Based on the evidence in the record, we believe the disputed comments made by the prosecutor during closing argument were well within the bounds of permissible inference and the objections thereto were properly overruled.

Appellant also objected to another statement of the district attorney during closing argument to the effect that the appellant “has probably got a good pitch for selling it.” The court sustained the objection to this remark, but overruled a renewed motion for mistrial by defense counsel. The trial judge voluntarily instructed the jury to disregard this comment.

We agree that it was proper, in light of the facts in this case, to sustain the objection to this remark. However, “when prejudicial remarks have been made, the trial judge is in a better position than an appellate court to determine whether the remarks were so prejudicial as to be ineradicable.” Chambers v. State, supra; McAllister v. State, 44 Ala.App. 511, 214 So.2d 862 (1968); Evans v. State, 42 Ala.App. 587, 172 So.2d 796 (1965). Moreover, there is a “prima facie presumption against error where the trial court immediately charges the jury to disregard the prosecutor’s improper remarks.” Chambers v. State, supra; Nix v. State, Ala.Cr.App., 370 So.2d 1115, cert. denied, Ala., 370 So.2d 1119 (1979). Therefore, we are convinced that the “poison of improper argument” did not infect the verdict of the jury in this case. Chambers v. State, supra. A mistrial was not mandated. Diamond v. State, supra.

V

Finally, appellant urges this court to determine the constitutionality of the Alabama Securities Act. It is argued that certain sections therein are so vague, indefinite, and uncertain as to violate the Constitution of the United States and the Constitution of Alabama. More particularly, appellant attests that “willfully” and “scien-ter” as used in §§ 8-6-18(a), (e), Code of Ala.1975, are contradictory terms, and that the trial judge erred when he charged the jury that scienter need not be alleged and proven. Appellant further insists that the definition of “security” in § 8-6-2(10) is so broad that virtually any business transaction other than a cash sale falls under the umbrella of the Act.

A

The disputed subsections of the criminal penalty provision read in part as follows:

“(a) Any person who willfully violates any provisions of this article shall, upon conviction, be fined not more than $15,-000.00 or imprisoned not more than ten years, or both....
“(e) In any proceeding under this article, scienter need not be alleged and proved in prosecutions involving the sale of unregistered securities or in the failure to register as a dealer or salesman under this article.”

Section 8-6-18(e) specifically limits its application to selling unregistered securities and failing to register as a securities dealer.

Appellant argues that the contradictory terminology of § 8-6-18 makes it impossible to know whether criminal intent must be proven in prosecutions under this statute, and he relies on the posture of this court in Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782 (1978), cert. denied, Ala., 358 So.2d 791. However, Van Antwerp is distinguishable from the case at bar. ' That case dealt with violations of the securities fraud provision of the Alabama Securities Act (§ 8-6-17). In any type of fraud case, it is essential to prove “scienter” or guilty knowledge because it is an element of the crime itself. Therefore, in securities fraud cases, “willfully” in subsection (a) necessarily “requires proof of the guilty knowledge or mens rea.” Van Antwerp v. State, supra, at 786. See: Dixon v. State, 40 Ala.App. 465, 115 So.2d 262, reversed on other grounds, 269 Ala. 593, 115 So.2d 369 (1958) and 269 Ala. 548, 115 So.2d 270 (1959).

Nonetheless, in the present case we are dealing with the sale of unregistered securities and the failure to register as a securities dealer, §§ 8-6-3(a), 8-6-4. Subsection (e) of § 8-6-18 expressly indicates that the legislature did not intend for “scienter” to be an element of these offenses. We believe subsection (e) reflects the legislature’s intention for these offenses to be mala pro-hibita rather than mala in se. In Smith v. State, 223 Ala. 346, 347, 136 So.2d 270 (1931), our supreme court stated:

“Generally speaking, when an act is prohibited and made punishable by statute only, the statute is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when in terms not required. The Legislature, however, may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and, if such legislative intention appears, the courts must give it effect, although the intent of the doer may have been innocent. This rule has been generally, though not quite universally, applied to the enforcement of statutes passed in aid of the police power of the state where the word ‘knowingly’ or other apt words are not employed to indicate that knowledge is an essential element of the crime charged. The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted and knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt. Whether or not in a given case a statute is to be so construed is to be determined by the court by considering the subject-matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the Legislature. Whatever may be the true construction of the statute, when, with a knowledge of all the facts, one deliberately violates- a positive law which he is presumed to know, he cannot be excused on the ground that he intended no wrong. But the rule applies only to unlawful acts which are voluntary and in that sense intentionally done.. . . ”

There is great risk of serious financial injury to the investing public in the highly specialized field of securities transactions, and all sellers of securities are charged with knowledge of and compliance with all statutes and regulations governing such sales. It is our conclusion that specific criminal intent or guilty knowledge that the law is being violated is not required in order to find criminal violations of §§ 8-6-3(a), 8-6-4. To the contrary, all that is required by statute is that the State prove the defendant acted “willfully” in the sense that he was aware of what he was doing. Appellant’s contention that these sections are unconstitutional is without merit, nor did the trial court err by charging that scienter need not be alleged and proven in prosecutions under these specific sections.

B

Lastly, appellant’s argument that the definitional section of the Alabama Securities Act, § 8-6-2(10), is unconstitutionally vague is also without merit. We find that the transactions involved here meet the Howey test for defining “investment contracts:”

“[A]n investment contract . . . means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party....”
Securities and Exchange Commission v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 1103, 90 L.Ed. 1244 (1946).

The Alabama Supreme Court adopted that test in Gallion v. Alabama Market Centers, Inc., 282 Ala. 679, 213 So.2d 841 (1968), and also reaffirmed it for past transactions in the recent case of Burke v. State, Ala., 385 So.2d 648 [1980], although a different test more favorable to the prosecution was adopted prospectively in Burke. Since an “investment contract” is a “security” under § 8-6-2(10), we find that no valid constitutional grounds are raised on the issue of definitional vagueness.

We have searched the record as required by law and find no reversible error.

AFFIRMED.

All the Judges concur.

      . Five indictments were actually returned against appellant. However, the fifth was entered upon the record as a directed verdict for the defendant because of the failure of the State to prosecute.


author: TYSON, Judge.

text:
    Lamar GOSHA, alias v. STATE.
    4 Div. 807.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      D. Bruce McLean, Enterprise, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Lamar Gosha, also known as Mark Gosha, was indicted in Coffee County for the robbery of a grocery store in Enterprise. Go-sha pled not guilty to the charge and his petition for treatment as a youthful offender, pursuant to § 15-19-1 et seq., Code of Alabama 1975, was denied by the trial court. At trial Gosha was found guilty as charged by a jury, and sentenced by the court to serve fifty years in the state penitentiary. Section 13-3-110, Code of Alabama 1975. He prosecutes this appeal in forma pauperis, and challenges only the sufficiency of the evidence upon which he was convicted.

Ruth Motley was called as the first witness for the State, and she testified that she was the co-owner with her husband of the Southside Curb Market, a grocery store in Enterprise, and had been present in the store with her daughter, Joanne Hutchinson, on the night of December 20, 1979. She stated that she and Mrs. Hutchinson were seated at one of the cash registers watching television when, around 9:30, a lone black male entered the store and walked around to the store’s drug counter where he paused to pick up a product. He brought the item to the counter where Mrs. Motley and Mrs. Hutchinson were and asked Mrs. Motley to read the label for him and tell him if that was what he was looking for. Mrs. Motley stated that at that point “he was getting closer to me than he should” (R. 10), and that he then slapped the item out of her hand and said, “This is a holdup and I want your money and all of it” (R. 11). As the man was saying this, Mrs. Motley testified, he grabbed her around her neck with one of his arms and held a knife to her throat. Mrs. Motley stated that Mrs. Hutchinson then pulled a gun on the man but “he told her to give him that gun” (R. 11), and “if she didn’t give him the gun that-he would cut my throat” (R. 12). The man then forced Mrs. Motley between him and Mrs. Hutchinson, and demanded only the money and not food stamps; when he had received the money, he released Mrs. Motley and ran out of the front door of the store.

Mrs. Motley further testified that the assailant was black and was wearing a green army field jacket, but that she could not identify him nor had she ever gotten a look at the knife. She stated that he escaped out the door but that she did not know in which direction he had run. She estimated that approximately $120.00 in cash had been taken by the man.

On cross- -examination Mrs. Motley reiterated that she had not been able to get a good look at the man because of the manner in which he had held her. She further stated that the man had been wearing a dark toboggan and a white glove, and “more or less faded” blue jeans.

Joanne Hutchinson, Mrs. Motley’s daughter, testified that she helped her mother at the Southside Curb Market, and was doing so on the night of December 20. She was continuously present in the store from approximately 8:50 until 9:30 that night and was seated with Mrs. Motley at one of the cash register stations. Mrs. Hutchinson testified that, around 9:30, a single black male, whom she identified in court as appellant, entered the store and stopped at the drug counter. Mrs. Hutchinson stated that he stood at the counter for a while and then picked up a box of Sine-Off after she asked him if he needed assistance. Upon reaching the cash register and being told the price of the item, the man identified as appellant grabbed Mrs. Motley. Mrs. Hutchinson testified that she then pulled out the loaded pistol that was customarily kept under the cash register and “told him to get away from her” (R. 23). To this appellant replied, “If you make a move, I’ll cut her throat” (R. 24), and, “If you shoot that gun I’ll cut her throat” (R. 25). The witness further stated that, though she could see the blade of the knife held by appellant, she could not see the handle. At this point, Mrs. Hutchinson testified, she removed the cash from the register, as appellant told her to leave the food stamps and checks, and “told him to take it and leave” (R. 25); she estimated the amount of money to be $100.00 in one, five and ten dollar bills.

Mrs. Hutchinson further stated that appellant refused to pick up the money “because I still had the gun” and “was afraid I would shoot him”; appellant told her to give the gun to him and “he would throw it in the store when he left” (R. 26). The witness stated that she refused to do this “because I knew that would be the end of both of us” (R. 27), but she offered to put the gun on the floor. After doing this, the man ran out of the door. Mrs. Hutchinson further testified that the man was wearing a green army field jacket, and that she did not know where he went after leaving the store.

The witness stated on cross-examination that she was unable to identify the type of knife used in the robbery, and that, although she saw appellant wearing the jacket and a toboggan, she would be unable to identify those items. She further testified that she had a good view of appellant’s face and that she had not noticed any unusual or identifying marks. She also stated that he had been wearing a white glove on his left hand. Mrs. Hutchinson further stated that she picked appellant’s picture out of a “mug” book, but that she had not identified him in any type of line-up.

Bruce Devane, an investigator with the district attorney’s office, testified that, on December 27, he had participated in a search of the area adjacent to the Southside Curb Market pursuant to his investigation of the December 20 robbery at the store. The witness identified several photographs as depicting the area in which he searched, and identified one photograph as showing a green army field jacket which he had located in some underbrush about 450 feet from the Southside Curb Market. Mr. Devane further identified the actual jacket as the one he had taken into possession on that day, and stated that it was under his constant control until he submitted it to the Enterprise crime laboratory. The witness stated that, in the pockets of the jacket, he recovered a number of items, including a “pocketknife with a white plastic handle with a four inch blade” (R. 43), and similarly maintained these within his control until their submission to the crime laboratory.

On cross-examination Mr. Devane acknowledged that he had not discovered anything in or on the jacket linking it to appellant. Under further questioning from the prosecutor, the witness stated that he had discovered the jacket in an area of very dense undergrowth along a trail , which led to the cotton mill.

Charles Brooks, a crime laboratory analyst employed in the Enterprise laboratory of the Department of Forensic Sciences, stated that, on December 27, he had received a green army field jacket and a package of items from the pockets of the coat from Mr. Bruce Devane. Mr. Brooks testified that he examined these items for fingerprints, but discovered none suitable for comparison on any of the items. He further stated that he shook the coat for fibers and hairs, and analyzed some hairs retrieved thereby as of negroid origin.

Mr. Brooks acknowledged on cross-examination that, though he had found a partial fingerprint, another fingerprint examiner returned it labeled unusable for comparison purposes. He further acknowledged that he would be unable to link the hairs found on the jacket to any particular person, and that he had not taken samples of appellant’s hair to attempt any sort of comparison.

Willie Fred Baldwin, eighteen years of age, was the final witness for the State, and testified that he knew appellant by the name of Mark Gosha, but had never heard him called Lamar Gosha. The witness stated that he had become acquainted with appellant at the cotton mill where both worked and had been working in December, 1979. Mr. Baldwin further testified that, sometime after 9:00 on the night of December 20, he had occasion to be at the South-side Curb Market, having parked his car in a vacant lot across the street. He stated that, as he ran across the road to the store, he saw a Mary Anderson Flowers, whom he had known “since third grade,” standing out in front of the store. Mr. Baldwin had conversation with Ms. Flowers, re-crossed the road to retrieve a hair “pick” he had dropped, and then returned to where Ms. Flowers was- standing. He stated that he was then going to enter the store when he saw appellant inside the store holding a knife to Mrs. Motley’s neck. Mr. Baldwin identified a State’s exhibit as the knife he had seen appellant holding, in that he had been able to see the white handle as appellant was holding it to Mrs. Motley’s neck. Appellant turned and saw the witness, and then released Mrs. Motley and ran out the door, not saying anything to Mr. Baldwin as he passed him. Mr. Baldwin observed appellant, who was wearing a green fatigue jacket, run down the street toward a railroad underpass.

Mr. Baldwin further testified that Mary Alice McCloud (this subject’s name changes at several points during the testimony, but apparently the same individual is involved) was standing in front of the store when he arrived, and that he had seen this person and appellant walking together toward the Southside Curb Market after 9:00 o’clock on the night of December 20. He stated that, when appellant ran out of the front of the store, this Mary Alice grabbed his (Baldwin’s) arm.

The State thereupon rested, and no motions were made by either party in the interim.

The sole defense' witness was Bertha Smith, who testified that she was employed at the cotton mill and knew appellant very well. She stated that he had a scar or “dark mark” on tjie right side of his face, a hole in his nose where an earring had been placed, and a mustache and beard, and that he had had these characteristics ever since she had known him. She further testified that, on the night of December 20, appellant had entered the cotton mill and had seen her at 9:45; he was wearing khaki pants and a tank top shirt with red, white, and blue stripes. The witness also stated that she had never known appellant to have a green fatigue jacket or a knife, and that he was not excited that night, nor did he have a white glove on either hand. Appellant rode home with Ms. Smith after she got off work at 10:00 o’clock.

On cross-examination, Ms. Smith acknowledged that appellant lived with her, and was doing so on December 20. The witness stated that it would take about three minutes to walk from the Southside Curb Market to the railroad underpass, and about ten minutes to walk from that store to the cotton mill where she worked. Ms. Smith further identified a statement that she had given to the sheriff’s department at some point after the incident, in which she had stated that appellant was at her home when she had returned at 10:05 on December 20. Ms. Smith admitted that she had lied to the sheriff in the statement to protect appellant, but later changed the statement to reflect the truth, i. e., that appellant had met her at the mill at 9:45 that night.

Ms. Smith further testified under questioning by counsel for appellant on re-direct that appellant’s stepfather did live in the vicinity of the cotton mill and that, in her opinion, it would take about fifteen minutes to walk from his house to the mill. She also reiterated that she had lied to the sheriff to protect appellant, but that the truth of the matter was that appellant had come to her at the mill that night around 9:45.

I

Although appellant did not make a motion to exclude State’s evidence at the close of the State’s case-in-chief, nor did he request a directed verdict or the affirmative charge, the issue of the sufficiency of the evidence is presented for our review by virtue of appellant’s motion for new trial, which concerned this point. Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975).

The testimony of Mrs. Motley, Mrs. Hutchinson, and Willie Fred Baldwin certainly established a prima facie case of robbery, and appellant was positively identified as the robber by Mrs. Hutchinson and Mr. Baldwin. The additional evidence adduced by the State was, of course, circumstantial but tended to cast the finger of guilt toward appellant, and was thus entitled to the same weight as positive evidence. Trammell v. State, Ala.Cr.App., 377 So.2d 12 (1979). This combination of direct and circumstantial evidence was more than sufficient to afford the jury the conclusion that appellant had robbed the Southside Curb Market.

There is no error apparent from our scrutiny of the record, and therefore the judgment rendered below is

AFFIRMED.

All the Judges concur.


text:
    Dwight Allen EVANS v. STATE.
    6 Div. 201.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      B. J. McPherson, Oneonta, for appellant.
    Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   BOOKOUT, Judge.

Second degree manslaughter; sentence: twelve months imprisonment at hard labor for Cullman County and a fine of one cent.

On August 10, 1979, Dwight Allen Evans’s tractor-trailer truck collided with a car driven by Carey Brett Weeks. The collision took place on U. S. Highway 278 East in Cullman County at the intersection of College Hill Drive. Evans was subsequently indicted for first degree manslaughter. He stipulated at trial that seventeen-year-old Weeks was killed as a direct result of this head-on collision. Appellant filed a pretrial motion for change of venue which was denied by the trial court.

On the morning of the accident, appellant was returning from a poultry plant in Water Valley, Mississippi, where he had delivered crates of live chickens for his employer, Hazelrig Fruit & Poultry Company, Inc. Appellant admitted that between 8:30 and 9:00 a. m. he drank one-third of a pint of vodka just before driving back to Alabama. He stated that this was the only alcohol he drank on the day of the accident. Appellant made no stops during the return trip except at the truck scales on the Mississippi-Alabama state line.

At approximately 2:00 p. m. appellant was traveling east at about 50 m. p. h. on the two-lane side of a three-lane section of U. S. Highway 278, east of downtown Cull-man. According to the appellant a car suddenly turned out of the St. Bernard College exit, forcing him to “hit” his brakes in order to avoid a collision. Due to the wet highway, saturated from heavy rainfall preceding the accident, appellant’s truck jack-knifed, skidding across the center line into the westbound lane. There, his truck crashed head-on into Weeks’s automobile and catapulted over a car driven by Jerome William Hayes, III.

Dwight Pope, a Cullman police investigator, testified for the State. After visiting the scene of the accident, he went to Cull-man Medical Center where the appellant had been taken for emergency treatment. While appellant was lying on a stretcher in the emergency room, Pope asked Evans how fast he had been traveling. Evans answered “fifty or fifty-five m. p. h. or whatever the speed limit was.” The prosecutor later introduced a city ordinance prescribing a speed limit of 40 m. p. h. for that particular section of Highway 278.

Jerome William Hayes, III, who was traveling approximately fifty feet behind Weeks’s vehicle when the tragedy occurred, testified that he first noticed appellant’s truck as it approached the St. Bernard College intersection. He did not see a car turn in front of appellant, but he did observe appellant’s truck beginning to jackknife when it reached the college exit. While admitting that he took his eyes off appellant’s truck for about fifteen seconds during this sequence of events, Hayes estimated that appellant was traveling at a speed of 55 m.p.h.

A state toxicologist, Chip Walls, testified that an analysis of appellant’s blood taken at the hospital one hour after the accident occurred revealed 0.06% ethyl alcohol. He explained that a person with this blood-alcohol content would normally exhibit some mental confusion, loss of ability to concentrate, and critical judgment would be diminished. He added that a slowed reaction time and slightly altered hand-to-eye coordination could be expected due to the effect of the amount of alcohol on the muscular system.

Dewayne Goodwin, an emergency medical technician who arrived at the scene immediately, testified that he came within two feet of appellant and smelled no alcoholic beverages. He recalled smelling a mixture of other odors including diesel fuel. However, Elaine Persall, the emergency room coordinator at Cullman Medical Center, insisted that she smelled alcohol as well as blood odors when she came close to the appellant at the hospital.

Lewis Bradford, a Cullman policeman, directed traffic and cleared wreckage following the accident. When traffic normalized, he left the scene and returned an hour and a half later on orders from Dwight Pope and another police investigator. Bradford, without a warrant, searched appellant’s truck and discovered an unopened bottle of vodka under the mattress of a cot in the sleeper portion of the truck’s cab. The district attorney prominently displayed the bottle before the jury, and the trial judge gave curative instructions and granted defense counsel’s motion to exclude the bottle.

The trial court denied appellant’s motion to exclude the State’s evidence at the close of the State’s case. After the appellant took the stand, two character witnesses testified in his behalf. The trial court submitted the case to the jury, which returned a guilty verdict of second degree manslaughter. A motion for a new trial was denied.

I

Appellant contends that the evidence does not sustain a conviction of involuntary manslaughter. We disagree.

“Manslaughter in the second degree is defined as the unlawful killing of another human being, without malice and without the intent to kill or to inflict the injury resulting in death, but accidentally committed by the accused while he was doing an unlawful act amounting to a misdemeanor, or accidentally committed by the accused while he was doing a lawful act, but in a grossly negligent or improper manner.” (Emphasis added.)
Jones v. State, 21 Ala.App. 234, 236, 109 So. 189 (1926).

Clayton v. State, Ala.Cr.App., 359 So.2d 419 (1978); Smith v. State, 56 Ala.App. 609, 324 So.2d 323 (1975); Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972).

Whether appellant drove his truck in a manner which constituted a misdemeanor is a question for the jury to determine in light of the evidence. Smith v. State, supra; Pippin v. State, 19 Ala.App. 384, 97 So. 615 (1923). It seems doubtful that the jury found the appellant violated the speed limit in the instant case because there was conflicting testimony, and the State failed to properly introduce the existence of a speed limit sign into evidence. At any rate exceeding the speed limit, alone, does not authorize a jury to find a person guilty of second degree manslaughter. Crisp v. State, 21 Ala.App. 449, 109 So. 282, reversed on other grounds, 215 Ala. 2, 109 So. 287 (1926).

We conclude, however, that the jury in this case could reasonably find that appellant was driving while intoxicated. It is a violation of the law of Alabama for “any person who is intoxicated to drive a motor vehicle upon any highway of the state.” Section 32-5-170, Code of Ala.1975. As a general rule when an intoxicated driver runs into or against another, causing death, he is guilty of manslaughter in the second degree. Clayton v. State, supra; Broxton v. State, 27 Ala.App. 298,171 So. 390 (1936); Oliver v. State, 24 Ala.App. 292, 134 So. 892, cert. denied, 223 Ala. 167, 134 So. 894 (1931).

Code § 32-5-193 provides that, in any proceeding arising out of acts alleged to have been committed by a person driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the person’s bloodstream at the time of the chemical test as shown by analysis of the person’s blood shall be admissible evidence and shall give rise to certain presumptions. A person with 0.05% or less by weight of alcohol in his blood is presumed not to be under the influence of intoxicating liquor, whereas a person with a 0.10% or greater level is presumed to be intoxicated. However, when a person’s blood-alcohol level falls between 0.05% and 0.10%, no presumption arises, but rather “such fact may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor.” Section 32-5-193(a)(2).

In Smith v. State, supra, 56 Ala.App. at 612, 324 So.2d 323, this court quoted from-Broxton v. State, supra, wherein Judge Samford wrote:

“The taking of one or more drinks of intoxicating liquor would not of itself be sufficient to establish the fact of intoxication. The evidence must go further and show facts indicating a mental condition not normal and produced or brought about by the intoxicating liquor. When, therefore, an accident occurs on a public road in which a person is killed by being run over by an automobile, and it is shown that the driver has been drinking, it becomes a question for the jury to say, from all the facts and circumstances surrounding the homicide, whether or not the driver at the time of the accident was under the influence of liquor, and, if so, was that condition the proximate cause of the homicide. If these facts be proven to the satisfaction of the jury beyond a reasonable doubt, the crime of manslaughter in the second degree would be complete.”

Moreover, there is no need to distinguish between “being under the influence of intoxicating liquors” and “being intoxicated.” As Judge Samford commented in Holley v. State, 25 Ala.App. 260, 261, 144 So. 535 (1932):

“The difference is that of ‘Tweedle dee and Tweedle dum.’ . . . There are perhaps as many stages of intoxication as there are varieties of Heinz pickles, and the party affected rarely knows when he passes from one to another. But, in whatever stage he is, if he drives a vehicle upon the public road he becomes a menace to the public and subjects himself to the penalties of the statute.”

The testimony and report of the state toxicologist and appellant’s own admission are sufficient evidence from which the jury could reasonably infer that the appellant was committing a misdemeanor which resulted in the death of the deceased. The guilt of this appellant was not overwhelmingly established by the evidence. Nevertheless, after careful consideration we believe the evidence presented questions for the determination of a jury and was sufficient, if believed, to sustain the verdict.

ii

At the close of the State’s case, appellant moved to exclude any evidence as to the crime of manslaughter in the first degree, arguing that the State did not present sufficient evidence to support the charge. Appellant argues that this motion was improperly denied by the trial judge.

It is unnecessary to determine the correctness of the trial court’s ruling on the motion concerning first degree manslaughter. The jury in finding appellant guilty of a lesser offense acquitted him of the offense of first degree manslaughter. Only the charge upon which a conviction results is subject to appellate review. Hammond v. State, Ala.Cr.App., 354 So.2d 280, cert. quashed, Ala., 354 So.2d 294 (1977); Stringer v. State, Ala.Cr.App., 372 So.2d 378, cert. denied, Ala., 372 So.2d 384 (1979).

Ill

Appellant argues that the trial court erred in denying his motion for mistrial raised during the closing argument of the prosecution. That argument relates to the prior testimony of State’s witness Officer Lewis Bradford who testified that after the accident he discovered an unopened fifth of vodka under the mattress of a cot located in the sleeper part of appellant’s truck. Appellant was receiving treatment at the hospital and was not arrested or charged at that time. The following portions of Officer Bradford’s testimony established the sequence of events on this issue:

“Q. [By the prosecutor] What did you find or see in the truck?
“A. I found a fifth of Seagram’s Vodka, I mean Smirnoff Vodka.
“Q. And, was it opened?
“A. No.
“Q. And gave it to Freddie Day at the police station?
“A. Yes, sir.
“MR. MCPHERSON: Just a minute. Judge, I am going to object about any questions on this. There has been no proper predicate laid at this point to the introduction. If I can approach the bench I am going to state why.
“THE COURT: Mr. Bland, come around. “(Off the record discussion.)
“THE COURT: I sustain it at this point.”

It is clear from the above excerpts that the testimony about findirtg the unopened vodka bottle was first admitted without objection. A later reference to what Bradford did with the bottle brought on a defense objection which was sustained after an off-the-record discussion between counsel and the trial judge. Although the record is not clear on this point, it appears that counsel was objecting to a possible introduction of the bottle into evidence for lack of a proper predicate.

During further questioning of Officer Bradford by the prosecution, the following occurred:

“Q. Then, did you go check the truck by yourself?
“A. Yes, sir.
“Q. Is that at the time that you found the bottle of whiskey in the sleeper?
“MR. MCPHERSON: We object, may it please the Court.
“Q. (By Mr. Bland:) All right. At that time when you went back just tell the jury what you found.
“A. That is when I found the vodka.
“Q. Was anybody with you?
“A. No, sir.”

The above objection was general, but appeared to be directed to the form of the question. Whether counsel intended his objection to go to the question of search and seizure, irrelevance, or to some other ground, we cannot determine. Obviously, the trial judge could likewise not determine the ground for he never ruled on the objection. The prosecutor merely acknowledged the objection and rephrased the question in a different form. The answer to that question, “[t]hat is when I found the vodka,” came in without objection. Subsequently, on cross-examination defense counsel went into the matter of finding the vodka in his client’s truck, emphasizing the fact that the bottle was unopened and that the seal had not been broken.

Later, when the State attempted to offer the bottle itself into evidence, defense counsel objected on grounds that it was the fruit of an illegal search and seizure. The prosecutor then withdrew his offer of introduction, and the following took place:

“THE COURT: Put it back in the sack and get it out of the sight of the jury.
“MR. MCPHERSON: Would you instruct the jury that they are not to consider that at this point?
“THE COURT: Ladies and gentlemen of the jury, this bottle of vodka has been prominently displayed here and it is not evidence. It is not any evidence for you to consider.
“MR. BLAND: Just the bottle.
“THE COURT: This bottle right here.”

The prosecutor’s argument complained of, along with defense objections, is set out in context:

“What I will tell you, ladies and gentlemen of the jury, is you have got a case here where a man’s eyesight and his muscular coordination is not right. It is off. It is not normal. To what extent-it makes no difference. He has voluntarily put alcohol in his blood and got under the wheel of this truck. That together with all of the rest of it-all of the evidence he has shown a total and wanton disregard for every human life that he met on this highway from Water Valley, Mississippi, until he killed Carey Weeks out there. “We don’t know. We only have his word that he only drank a third of a pint of whiskey.
When he got to the wreck there was still a fifth of a bottle of vodka in the truck at that time.
“MR. MCPHERSON. Your Honor, may it please the Court, I object to this.
“MR. BLAND: That is undisputed.
“MR. MCPHERSON: Your. Honor has ruled that that is inadmissible and, does not form any of the issues in this case. And, I object to it. And, it is improper. And, I ask you to instruct the jury about references about anything that was found. You have excluded that from the jury’s consideration and I object to it.
“MR. BLAND: I beg his pardon, Judge, that testimony is not excluded. Only the bottle.
“MR. MCPHERSON: I further object and now move for a mistrial, may it please the Court.
“THE COURT: The objection is overruled and the motion is denied.” (Emphasis added.)

We find no error on the part of the trial judge in this instance. In summation arguments to the jury, counsel for both sides may comment on the evidence presented and may draw proper inferences and deductions from evidence introduced at trial. Speigner v. State, Ala.Cr.App., 369 So.2d 39, cert. denied, Ala., 369 So.2d 46 (1979). Here, the prosecution was commenting on a fact which had been admitted into evidence without objection-the finding of the vodka in appellant’s truck. Conley v. State, Ala.Cr.App., 354 So.2d 1172 (1977); 6A Alabama Digest Criminal Law § 720(3). The fact that the bottle itself was not admitted or was excluded from evidence does not prevent the prosecutor from commenting on evidence of its discovery which was admitted into evidence without objection. See: Hill v. State, Ala.Cr.App., 366 So.2d 296, affirmed, Ala., 366 So.2d 318 (1978).

In any event, we hardly see the prejudice to appellant in finding an unopened bottle of vodka in his truck when (1) he freely admitted on the witness stand that he had consumed a quantity of vodka earlier in the day before the accident, (2) his blood test showed a considerable level of alcohol content, and (3) he smelled of alcohol on being admitted to the hospital shortly after the accident. Alabama Rules of Appellate Procedure, Rule 45.

IV

Appellant further argues that the trial judge improperly refused two of his requested charges. Appellant contends that these charges were correct statements of law and not substantially covered by the trial court’s oral charge.

Charge No. 2 is an affirmative charge with hypothesis:

“I charge you, members of the jury, that if you believe the evidence in this case, you should find the Defendant not guilty of manslaughter in the first degree.”

The jury acquitted the appellant of the first degree homicide charge and, therefore, the question is moot as to whether or not the trial judge erred in refusing the above charge concerning that offense. Hammond, supra; Stringer, supra.

Charge No. 4 is as follows:

“The Court charges the jury that if the jury believes that any witness has testified falsly (sic), as to any material fact, the jury is authorized in the exercise of it’s (sic) discretion to reject the whole or any part of the testimony of the witness.”

We deem the substance of that charge to be fairly and substantially covered in the following portion of the trial court’s oral charge:

“You, Ladies and Gentlemen, must take the testimony of the witnesses together with all proper and reasonable inferences therefrom and apply your common sense and in an honest and impartial way you determine what you believe to be the truth. You should weigh all of the evidence and reconcile it, if you possibly can do so. But if there be irreconcilable conflict in the evidence you take that evidence which you think is worthy of credit and give it just such weight as you think it should have. You may take into consideration any interest that any witness might have in the outcome of this case. If you believe that any material part of the evidence of any witness is willfully false you may disregard all of the testimony of such witness.
“If any witness testifying has been impeached then the Jury may disregard his testimony, unless his testimony be corroborated by other testimony not so impeached.”

Section 12-16-13, Code of Ala.1975; Snipes v. State, Ala.Cr.App., 364 So.2d 424 (1978).

AFFIRMED.

All the Judges concur.


text:
    Herbert Reed BECKHAM v. STATE.
    6 Div. 272.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.

      Robert W. Gwin, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Herbert Reed Beckham was indicted and convicted for the offense of robbery and sentenced by the trial court to serve twenty years in the state penitentiary. He prosecutes this appeal in forma pauperis. The only issue raised concerns the admissibility of appellant’s purported confession.

Mr. Max Cornelius, the owner-manager of the Dixie Speed Check store on Vanderbilt Road in Birmingham, testified that, on Sunday, July 22, 1979, he and a cashier, Sandra Edwards, were working in the store, described by Mr. Cornelius as a “supermarket.” He stated that appellant, whom he positively identified in open court, frequented the store “at least two or three times a week” (R. 16), and had come in on the morning of July 22, between 11:00 and 12:00 o’clock. Mr. Cornelius, who did not know appellant by name, saw appellant in the company of two other people, a white male and a white female. The witness stated that he first noticed the trio in the check-out line, and that while in line the male and female, short on money, “had asked the other individual, which is Mr. Beckham, for some money to make a purchase. Mr. Cornelius testified that he saw appellant again around 3:00 o’clock the same day and that he made a purchase of “a large drink” (R. 18-19).

Mr. Cornelius further testified that he next saw appellant around 7:00 o’clock on the evening of July 22, 1979, 7:00 o’clock being the store’s closing time on Sundays. The witness stated that appellant “came into the store with a sawed-off, double barrel shotgun in his hand” (R. 20), and that appellant was clothed in blue jeans and a white undershirt. The appellant was holding a red handkerchief over his mouth and nose with his free hand, and stated, “ ‘This is a holdup. I want your money.’ ” Mr. Cornelius stated that, though he initially thought that appellant was joking, he changed his mind when appellant pointed the shotgun at him and said, “ ‘This is no joke. I want your money.’ ” The witness testified that appellant then demanded “ ‘the bills’ ” and Ms. Edwards, the cashier, began filling a bank bag with money. After receiving the money, appellant ran out of the store, followed by Mr. Cornelius, who stated that he saw appellant meet “another boy, short and stocky built boy” some distance away. Both fled the scene, and Mr. Cornelius lost them in a residential area near the store. The witness stated that the sum of money taken in the robbery was $2300.00, and further testified that appellant had had “bushy, curly” hair when he had seen him on the day in question (R. 21-24).

On further questioning, Mr. Cornelius testified that he attended a line-up at the police station on July 24, 1979, with the cashier, Ms. Edwards, but was unable to identify any of the line-up participants. He stated that he returned several days later for a second line-up, and identified appellant at that time from the group.

Sandra Edwards testified that she was employed by Dixie Speed Check, and had been so employed on July 22, 1979, in the role of cashier. She identified appellant as an individual who had frequented the store several times a week during the period of a month, and that, on July 22, she had first seen him around 11:00 in the morning. She stated that she was working the cash register, and that appellant and another man and woman entered her line. The appellant was dressed in blue jeans and a “tee shirt.” She further stated that the trio entered the store again around 3:00 or 4:00 o’clock that afternoon, and that at that time appellant’s companions borrowed some money from appellant. The appellant purchased a drink and left. Ms. Edwards stated that, around 7:00 o’clock that evening, appellant again entered the store, this time armed with a gun and covering his face with a handkerchief. The witness testified that she thought appellant was joking and thus began laughing, but that another customer stated, “ ‘Well, he’s not joking, so give him the money’ ” (R. 47); this the witness did, putting the money in a bank bag. Ms. Edwards stated that appellant then fled the store.

Ms. Edwards further stated that appellant had been armed with a sawed-off shotgun, and identified a State’s exhibit as very similar to the type of gun held by appellant. She testified that appellant had dark hair, which was long and curly, and had, she thought, blue eyes. On cross-examination, the witness acknowledged that appellant’s eyes are brown, but stated, “I didn’t look at his eyes, I was too nervous to notice” (R. 56). The witness testified on re-direct examination that she attended the two lineups with Mr. Cornelius, and that she identified appellant at the second line-up.

J. B. McIntosh, a patrol officer with the Birmingham Police Department, testified that he was on duty on July 22, 1979, during the 11:00 p. m. to 7:00 a. m. shift. He stated that he received a call to proceed to the 3800 block of 39th Avenue, North, which he did, arriving around midnight. He testified that, upon his arrival, he saw several people, including appellant, standing in the yard. The officer testified that he placed appellant under arrest, and later had occasion to enter two apartments located at the address. He further stated that he found portions of a sawed-off shotgun hidden in each of two stereo speakers in an apartment inhabited by one Jimmy Crump-tin, a white male, and one Sandra Stevens, a white female. The officer was unable to positively identify the shotgun found as the same one entered as State’s evidence, although the evidence tag number matched the arrest report number. On cross-examination, the officer stated that, besides appellant, a female and another white male juvenile had also been arrested. This male juvenile, whose name was Chisholm, was described as having a fairly normal build, blonde hair, arranged “semi-afro” style, and blue eyes. The witness stated that he also knew Jimmy Crumptin, but was unable to describe him in detail.

H. L. Miller, a sergeant in the Birmingham Police Crimes Against Persons-Robbery Division, stated that he was assigned to the robbery of the Dixie Speed Check store, and had subsequently conducted two line-ups, at which Mr. Cornelius and Ms. Edwards were present. Sergeant Miller stated that appellant was not included in the first line-up, but was present in the second. He was identified by both Mr. Cornelius and Ms. Edwards. At this point a hearing was conducted outside the presence of the jury.

During the hearing Sergeant Miller testified that he had talked with appellant at the City Jail after the second line-up on July 27, 1979. He stated that he, a Sergeant Hurst and appellant were present. The officer further stated that he did not offer appellant any hope of reward of remuneration, that he did not promise appellant any lighter sentence or that things would go better or worse for him, that he did not threaten or coerce or intimidate appellant, and that he informed appellant of his Miranda rights by reading them “from a card” (R. 85). The witness stated further that he did not have a “Miranda waiver form” because the “Jail was out at the time” (R. 85), but that he asked appellant if appellant understood his rights and wanted to talk to them. To this, Sergeant Miller 'testified, appellant “told us, yes” (R. 86). The officer further stated that, at that point, he gave appellant a copy of the arrest report, which appellant read, and told appellant that he had been identified by two persons at the line-up. The officer stated that appellant told him that the second person at the scene of the robbery was not the juvenile arrested with him, but was Jimmy Crumptin. He stated that appellant further said that the shotgun located in the stereo speakers was the one he had used in the robbery, and “he said he was the one that went in with the shotgun, and Jimmy Crumptin stayed outside” (R. 87).

On cross-examination, the officer stated that no tape recorder was used to record any of this conversation, and that he had not written any of the conversation down, but was relying on memory. He repeated his version of the conversation, and stated that Jimmy Crumptin had not been included in the line-ups.

Appellant was called, and testified that he had been in a line-up on July 27, 1979, and that he later talked with Sergeant Hurst, but not with Sergeant Miller. The appellant stated that Hurst had told him that he had “bad lucked” and “they picked you out,” to which appellant replied, “Well, I just have to prove myself wrong — I’ll have to prove myself innocent in a court” (R. 92). Appellant denied making any of the statements attributed to him by Sergeant Miller.

On cross-examination, appellant stated that he had talked with Hurst in the lineup room after he had been picked out, and that Hurst had not informed him of any Miranda rights. He further stated that Sergeant Miller had only questioned him concerning “a few robberies” on the day before the line-up. He further testified that he was also questioned about some robberies in Tarrant City by a Tarrant City officer, but that he never discussed the Dixie Speed Check robbery with Sergeant Miller. The court thereupon ruled that the statement made by appellant to Sergeant Miller had been made voluntarily and was thus admissible in evidence.

With the jury present, Sergeant Miller was questioned as to the matters covered in the voir dire, and testified to the same matters. The State thereupon rested, and appellant’s motion to exclude was overruled.

The appellant took the stand, and testified that he had pled guilty to several counts of burglary and theft of property in Arkansas. He further stated that he was familiar with the Dixie Speed Check and frequently went there, but that on the evening of July 22, 1979, he had driven to Jacksonville, Alabama, to visit some relatives. He testified that, on the way to his sister’s house in Jacksonville, he saw a girl friend, Carol Scoville, and waved to her, and that Ms. Scoville returned the wave. He stated that he arrived at the house at 7:15 p. m., and stayed approximately thirty minutes before leaving for a cousin’s house. Upon finding that his cousin was not home, appellant then drove to Atlanta to visit Six Flags Over Georgia, stayed the night in a Holiday Inn in Atlanta. He denied committing the robbery of the Dixie Speed Check, and denied confessing to Sergeant Miller.

On cross-examination, appellant admitted knowing Jimmy Crumptin but denied having seen him on July 22, 1979, and denied giving him any money in the checkout line of the Dixie Speed Check that day. He further denied going into that store at any point on July 22, 1979, but stated that he was familiar with Sandra Edwards, the cashier. Appellant reiterated that he had left for Jacksonville at 6:00 o’clock, had seen Carol Scoville, and had visited two other homes as well before going to his sister’s house. He further stated that he was certain he arrived at his sister’s at 7:15 p. m. Appellant testified that, though Carol Scoville had been his girl friend at one time, they had stopped dating and had not gone out socially since March, 1979. He further stated that no one accompanied him to Atlanta. The appellant admitted that he had told none of this sequence of events to Sergeant Hurst, but did tell the arresting officer that he had just returned from Atlanta. The appellant denied putting the shotgun in the stereo speakers.

Carol Scoville, a resident of Jacksonville, Alabama, testified that, on July 22, 1979, she was out in front of her residence when the appellant drove by and waved. She stated that appellant later returned and told her that his sister was not at home.

On cross-examination, the witness stated that, in her best judgment, this had occurred around 7:00 o’clock. She further stated that appellant then returned to his sister’s house, and that his sister arrived about then. The witness then testified that she had discussed the case with appellant’s attorney and appellant’s sister and grandfather, but that she had not done so until about two weeks before trial. She denied that she and appellant had ever dated or that she had been appellant’s girl friend. At this point, the defense rested.

I

Appellant’s sole contention concerns the overruling by the trial court of appellant’s motion to exclude the State’s evidence of appellant’s alleged confession as elicited through the testimony of Sergeant Miller. Specifically, appellant argues that it was error to allow the officer to testify as to the conversation with appellant in that the conversation was not recorded through any means, and thus any testimony by Sergeant Miller was based upon sheer memory. To this end, appellant cites us to a number of authorities which indicate that correct procedure would dictate that such conversations be recorded electronically, or at least stenographieally. While, no doubt, such a procedure is advisable, we hold that Sergeant Miller’s testimony concerning the conversation was properly admitted before the jury.

In Elkins v. State, 250 Ala. 672, 35 So.2d 693 (1948), our Supreme Court held that both the written statement and oral testimony of a witness who heard the contents of that statement spoken by defendant are admissible as primary evidence:

“All that the accused voluntarily wrote or said which is material to the charge, is competent against him because it is his own admission and against his own interest. The witness testifies not as to what the writing contains, but as to what he heard the defendant say.”

The Elkins holding was followed by this Court in Fleming v. State, 57 Ala.App. 556, 329 So.2d 616 (1976), where we held that the erasure of a tape recording of a defendant’s confession did not preclude oral testimony by an officer as to what the defendant had said. We noted:

“It is unfortunate that the recording on the tape was erased and not available for the defendant’s consideration or use. The defendant testified as to what occurred. His version was not accepted as true. We do not think the unavailability of the recording due to the improvident erasure would preclude the admission of the oral testimony of the witness as to the defendant’s inculpatory statement.”

See, also: Parker v. State, Ala.Cr.App., 337 So.2d 1378 (1976); McBryar v. State, Ala.Cr.App., 368 So.2d 568, cert. denied, Ala., 368 So.2d 575 (1979). And it is clear, not only from the above-cited decisions of the courts of this State, but also from the decisions of courts of other states, that whether the incriminating statements were recorded in some fashion or not would go only to the weight to be afforded them, and not to their admissibility. See, People v. Duren, 9 Cal.3d 218, 507 P.2d 1365, 107 Cal.Rptr. 157 (1973); Ashley v. State, 265 So.2d 685 (Fla. 1972); People v. Multari Equipment Corporation, 40 App.Div.2d 836, 337 N.Y.S.2d 295 (1972); People v. Burbank, 53 Ill.2d 261, 291 N.E.2d 161 (1972); White v. State, 13 Md.App. 1, 280 A.2d 283 (1971). Thus, as stated in United States v. Pollard, 509 F.2d 601 (5th Cir. 1975):

“We reject the invitation to sponsor this departure from time-tested principles of the law of evidence, evolved through centuries of Anglo-American jurisprudence. Such a rule would permit conviction of one defendant on the strength of an incriminating oral statement made to an ordinary citizen, while in the case of a fellow-defendant acquittal might be accomplished because of the exclusion of an oral statement made to an officer even after the execution of a written waiver of rights. The burden of the objection thus appears to be that law enforcement officers are less trustworthy, and more inclined to lie, than ordinary citizens. We perceive no basis for our so concluding.”

There was no error in the trial court’s allowing Sergeant Miller to testify as to what he heard appellant tell him despite not having same taken down and recorded in any fashion. Cases cited.

The appellant has not otherwise challenged the admissibility of his confession except on the somewhat narrow grounds, noted above. We find from the record that Sergeant Miller stated that he informed appellant of his constitutional rights, and that appellant waived those rights orally. Further, Sergeant Miller testified that he did not offer appellant hope or reward, nor did he coerce, intimidate, or threaten or abuse him. Appellant denied that any of this occurred. The question of voluntariness of an extra-judicial confession is one of law for the trial court, to “be determined by the trial judge in the exercise of enlightened discretion,” and that court’s decision will not be disturbed on appeal unless palpably against the great weight of the evidence. Bills v. State, 49 Ala.App. 726, 275 So.2d 706 (1973); Burks v. State, Ala.Cr.App., 353 So.2d 539 (1977). Whereas we find from the record that the trial court followed the correct procedure for deciding this question by conducting a hearing outside the presence of the jury, Reynolds v. State, Ala.Cr.App., 346 So.2d 979, cert. denied, Ala., 346 So.2d 986 (1977), we conclude on this record that there was sufficient evidence from which the trial court properly concluded that appellant’s statements were voluntarily made. Cf. Hill v. State, Ala.Cr.App., 372 So.2d 405 (1979). After this determination of voluntariness, any issues as to the relative credibility of appellant and Sergeant Miller were properly left to the jury. Cases cited.

We have carefully examined the record in this cause, and find same to be free from error. The judgment is, therefore,

AFFIRMED.

All the Judges concur.