author: HARRIS, Presiding Judge.

text:
    Willie Earl HALL v. STATE.
    5 Div. 600.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-967.

      John Percy Oliver, II, of Oliver & Sims, Dadeville, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Fall 1980 term of the Lee County Grand Jury for the May 27, 1980, theft of one General truck tire valued at $110 from Tiger Motor Company in Auburn in violation of Ala.Code § 13A-8-4 (Supp.1981). On October 23, 1980, appellant was tried and convicted of second degree theft of property as charged. The State invoked the provisions of the Habitual Felony Offender Act, Ala. Code § 13A-5-9 (Supp.1981), and, at a subsequent sentencing hearing, properly proved three prior felony convictions. The trial court sentenced appellant to twenty-five years’ imprisonment. Throughout the trial proceedings, appellant was represented by retained counsel. On appeal, he was found to be indigent and provided appellate counsel and a free transcript.

Auburn Police Officer Gary Black testified that, in the early morning hours of May 27,1980, he was on patrol and drove by Tiger Motor Company. He noticed a 1975 white-over-red Cadillac parked in the new truck lot. As Officer Black pulled in the lot the vehicle quickly exited. Officer Black followed the ear for a short distance before turning on his blue lights, at which time the Cadillac accelerated. Officer Black reported the car’s license plate number to police headquarters and chased the car about three-quarters of a mile into a trailer park. The car became entangled in some clotheslines and trees and stopped. Officer Black was approximately forty to fifty feet behind the car when it stopped. Officer Black stopped seconds later and pursued the driver, who had taken the keys from the car, exited it, and fled on foot. Officer Black testified that his headlights were on and shining in the direction of the Cadillac. He did not notice any street lights being on. Officer Black stated that it was becoming daylight when he observed the driver of the Cadillac. He described the driver as wearing blue jeans, a plaid-type shirt, and a light colored golfer’s hat. He saw the profile of the driver as he exited the Cadillac. Officer Black pursued the individual on foot but could not apprehend him. He returned to the Cadillac and saw a new tire and rim on the back seat. About thirty minutes later, Officer Black relinquished control of the car to Auburn police detective Bill Gaines. During his testimony, Officer Black, without objection, twice identified appellant as the driver of the Cadillac.

On June 12,1980, while Officer Black was on duty at Auburn Police Headquarters, appellant was brought into the booking room. Officer Black identified appellant as the person he had seen on May 27. He testified that Detective Gaines had told him that appellant had been arrested for theft of tires but was unsure whether he was told such prior to or after identifying appellant. Officer Black’s June 12 testimony concerning the identification was received into evidence without objection.

On cross-examination, Officer Black was, inter alia, thoroughly questioned concerning his identification of appellant.

Alabama Bureau of Investigation automobile theft investigator Howard Yeager testified that, on May 27, 1980, he was at the Auburn police headquarters on an unrelated matter and observed the 1975 Cadillac previously impounded. Investigator Yeager had previously had an occasion to check the ownership and tag registration of the car. He testified that the license plate was registered in appellant’s name while the vehicle title was in the names of Willie Earl and Barbara Howard.

Auburn Police detective Bill Gaines testified that, around 5:20 a.m. on May 27,1980, he arrived on the scene of the abandoned Cadillac and took control of it. He observed the new General tire on the back seat. Detective Gaines had the car towed to police headquarters where he placed the tire in the evidence room. Later that morning, Mr. Jody Hill of Tiger Motor Company identified the tire as belonging to the Company.

Mr. Jody Hill, sales representative for Tiger Motor Company, testified that, on May 27 he checked all the vehicles on the car lot and found a truck parked in the lot, where the Cadillac had earlier been observed by Officer Black, with its spare tire missing. The spare was a P195X15 General black sidewall tire mounted on a rim. Mr. Hill testified that he identified a tire at the police station and it was identical to the one missing from the truck. He valued the tire at about $110.

Mr. Hill’s testimony concluded presentation of the State’s case. Appellant moved to exclude the State’s evidence on the ground that “proof has not been beyond a reasonable doubt.” Appellant’s motion was denied. Appellant then rested, presenting no evidence to contradict or rebut that of the State.

Appellant contends that the trial court erred in denying his motion to exclude. Taken in its most favorable light, the State’s evidence sufficiently established a prima facie case of second degree theft of property. Ala.Code § 13A-8-4(a) (Supp. 1981). The evidence leaves no doubt as to the identity of the thief. Consequently, the trial court properly overruled appellant’s motion to exclude and his motion for a new trial on this ground.

Appellant contends that the trial court erred in admitting his in-court identification by Officer Black as it was tainted by an unduly suggestive one man show-up.

The record reflects that appellant did not challenge the identification through any pre-trial motion or by an oral motion at trial. Neither was the. issue raised by any post-trial motion. Further, appellant did not object to either the in-court or extrajudicial identification made by Officer Black. Thus, under these circumstances nothing is presented for review. Dejnozka v. State, 399 So.2d 950 (Ala.Cr.App.1981); Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. denied, 398 So.2d 332 (Ala.1981); Glover v. State, 347 So.2d 592 (Ala.Cr.App.1977); and cases cited therein.

Appellant contends that the State, in its closing argument, impermissibly commented upon his failure to testify. During the course of the trial, appellant thoroughly cross-examined the State’s witnesses but presented no evidence and did not testify.

Our search of the record discloses five instances where appellant objected to the State’s closing argument. We quote those objected-to portions below:

1.
“Mr. Cottle (defense attorney) wants to argue to you that we’ve got doubts in this case about the identification. There is not a shred of evidence in this case that would place any doubt at all on the identity of this man as being the man that got out of that car, not a shred of evidence. Nobody has come in here and put him anywhere else. (Parenthetical added).
2.
“MR. HARPER: (Assistant District Attorney) Mr. Cottle gets up before you and he says, ‘Ladies and gentlemen, the reason that the defendant didn’t take the stand in this case is because I didn’t want him to be cross-examined by an experienced prosecutor.’
“That’s what he tells you. He gives me more credit than I deserve. Cross-examination is not some trial by fire. Cross-examination is merely a tool. It is merely questions being asked of somebody to test whether or not they are telling you the truth. That is all cross-examination is. A man comes into Court and he tells the truth, he has nothing at all— (Parenthetical added).
3.
“MR. HARPER: A man has nothing at all to fear when he comes into Court and tells the truth on cross-examination. Not a thing. Because when you tell the truth, you don’t have to remember things. You don’t have to think of those stories that you made up in your mind. All you have to do is just remember it like it was. That’s all you have to do.
4.
“I wonder if the reason for not putting this man on the stand is because he is afraid of cross-examination or it’s because he really can’t explain why he was out there in that Cadillac that morning, stealing that tire.
“MR. COTTLE: Objection.
“THE COURT: Overruled.
“MR. HARPER: I wonder if that’s the reason. Unfortunately, you all and me and the Judge will never know. We’ll never know.
5.
“But when his attorney gets up and tells you that there’s a doubt about identification, that’s a little bit misleading, because there is not a shred, not a tiny little bit of evidence indicating anything other than what that officer told you to be true. His evidence is totally unrebutted, totally unrebutted, and he has absolutely no reason to come in here and tell you anything other than the truth. The judge is going to charge you in a few minutes on a reasonable doubt, and I think what he is going to tell you is that you can’t convict this man and you can’t convict any man unless you are satisfied of his guilt beyond a reasonable doubt, and that’s true. But he’s not going to tell you that you have to prove a case to a mathematical certainty. The State of Alabama doesn’t have that burden. If we, as prosecutors, had to come in here and prove cases to a mathematical certainty, then we’d just close this building down, ladies and gentlemen, because that’s not going to be possible in about 95 percent of the cases. ‘Reasonable doubt’ means just that, reasonable. Is there a reasonable doubt? Is there any doubt at all in this case? Any evidence to the contrary that this man wasn’t out there and took that tire?”

A review of the closing argument made by appellant’s counsel, see Whitt v. State, 370 So.2d 736 (Ala.1979), reveals that comments 2, 3, and 4 quoted above were replies in kind to explanations made by appellant’s counsel as to why appellant did not testify. Appellant’s counsel explained in great depth and detail the reasons for appellant’s absence from the witness stand, emphasizing the fact that if appellant testified he would be subjected to cross-examination by the State. Thus, comments 2, 3, and 4 were made in rebuttal to the earlier statements by appellant’s counsel. In this context we find no error to the substantial rights of appellant. Pittman v. State, 153 Ala. 1, 45 So. 245 (1907); Gipson v. State, 375 So.2d 504 (Ala.Crim.App.1978), affirmed, 375 So.2d 514 (Ala.1979); See generally Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974); Gibson v. State, 347 So.2d 576 (Ala.Cr.App.1977).

During his closing argument, appellant’s counsel argued extensively that the identification of appellant made by Officer Black should be closely scrutinized. However, he made clear that the evidence adduced at trial concerning the identification was undisputed. The thrust of the State’s comments 1 and 5, quoted above, was to illustrate that the State’s evidence was un-contradicted as well as to rebut appellant’s argument as to the identification evidence. Having pleaded not guilty, appellant denied committing the crime. Therefore, he could have produced witnesses other than himself to establish his innocence. In fact, at his motion for a new trial appellant attempted such. Consequently, comments 1 and 5, when reviewed in light of what transpired at trial, refer merely to the uncontradicted nature of the State’s evidence and thus do not violate the rule prohibiting comment upon a defendant’s failure to testify. Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982); Griffin v. State, 393 So.2d 523 (Ala.Cr.App.1981).

Lastly, appellant contends that he was denied effective assistance of counsel by his trial counsel’s closing comments explaining his reasons for appellant’s not testifying. A review of the record reveals that the proceedings of which appellant complains were not reduced to a farce, sham, or mockery of justice. Further, no denial of the “reasonably effective” assistance of counsel standard adopted by the United States Court of Appeals for the Fifth Circuit occurred. Sheehan v. State, 411 So.2d 824 (Ala.Cr.App.1981); McKinnis v. State, 392 So.2d 1266 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1270 (Ala.1981). The decision whether vel non to explain appellant’s absence from the witness stand was a matter of trial strategy. In the absence of a clear showing of improper or inadequate representation, such matters must be left to the judgment of trial counsel. McKinnis, supra; Bridges v. State, 391 So.2d 1086 (Ala.Cr.App.1980).

Consequently, we find no basis for a claim of inadequacy of representation.

Examination of- appellant’s contentions on appeal reveals no errors prejudicial to his substantial rights. This cause is hereby due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Malverick PLAYER v. STATE.
    6 Div. 739.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-955.

      Richard E. Sandefer, Pinson, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery. Alabama Code 1975, Section 13-3-110. Sentence was 20 years’ imprisonment.

I

On October 14, 1979, the defendant robbed Adell Goree at a Majic Market in Birmingham. Three days later the defendant robbed Shirley McConnell at the same store. Ms. Goree was also present during the second robbery.

The trial judge allowed evidence of the October 14th robbery at the defendant’s trial for the October 17th robbery. The defendant argues that this constituted error.

Immediately before the second robbery, when Ms. Goree saw the defendant coming, she said, “Oh my God, Muffin, here he comes again.” Once inside the store, the defendant said, “Yeah, it’s me again, and I’m back.” Ms. McConnell testified that then the defendant said “he wanted all the m_f_money this time. He’s getting tired of robbing these m_f_ stores and don’t never get nothing out of them.”

Ms. Goree stated that the defendant entered the store and said, “Yes bitch, I’m back again, and I’m here to get it all.” She testified that after the defendant made Ms. McConnell open the cash register he told her, “I want it all, I want it all this time.”

In Williams v. State, 350 So.2d 708 (Ala.1977), it was held that, where a defendant offered no other defense beyond his plea of not guilty and the witness made a positive identification based on her observation of the defendant at the first robbery, the defendant’s plea did not place his identity in issue so as to justify the admission of evidence of a subsequent robbery at the same store. In admitting the evidence of the October 14th robbery in the defendant’s prosecution for the October 17th robbery the trial judge stated: “but under these present circumstances it goes to aid identification. It’s admissible on a plan, scheme, or design. It goes towards identification,...” The trial judge also instructed the jury that the purpose of the evidence of the robbery on October 14th was “solely on the question of identification, whéther there is identification in this particular case. It is admissible on that point as evidence of identification.” In allowing the admission of this evidence, the trial judge appeared to be following the same reasoning adopted by this Court in Williams v. State, 350 So.2d 707, 708 (Ala.Cr.App.1977).

“The State had a lawful right to establish the identity of defendant as the robbery culprit by competent evidence, even though redundant. The fact that she saw him a week later, when he again robbed her, was admissible even though she was positive of the first identification. This second observation of defendant tended to strengthen the first identification and tended to impress the jury that she was not mistaken. The fact that the second observation of defendant was under circumstances involving a second offense of robbery against the same victim did not preclude the State from offering it to establish identity, which burden the State carried.”

This reasoning was rejected by our Supreme Court in Williams v. State, 350 So.2d 708 (Ala.1977), because “merely entering a plea of not guilty without presenting any witnesses, or an alibi, or other defense, did not place identity in issue.” Williams, 350 So.2d at 710.

Except for the facts that in Williams the accused was prosecuted for the first robbery and evidence of the subsequent robbery was admitted, while in this case the defendant was tried for the second robbery and evidence of the prior robbery was admitted, this case and Williams are almost identical. However, an analysis of the facts of both cases discloses one significant difference.

In this case, during the first robbery, the defendant said, “Everytime I come in this m_f_ and you don’t have any money I’ll be back”, and that he would be “back again”. In Williams, the only comment made by the defendant was during the second robbery when he “asked the victim ‘why did she call the “cops” the last time he had robbed her after he had instructed her not to do so.’ ” Williams v. State, 338 So.2d 522 (Ala.Cr.App.1976). Thus, in Williams there was no evidence that the two robberies were committed pursuant to any plan, design, scheme or system. However, the evidence in this case indicates that when the defendant committed the first robbery he intended to rob the store again.

“Evidence of the accused’s commission of another crime is admissible if such evidence, considered with other evidence in the case, warrants a finding that both the now-charged crime and such other crime were committed in keeping with or pursuant to a single plan, design, scheme or system.” C. Gamble, McElroy’s Alabama Evidence, Section 69.01(6) (3rd ed. 1977). See also Allen v. State, 380 So.2d 313, 330 (Ala.Cr.App.), cert. denied, 380 So.2d 341 (Ala.1980); McDonald v. State, 57 Ala.App. 529, 542, 329 So.2d 583 (1975), cert. quashed, 295 Ala. 410, 329 So.2d 596 (1976).

Although the trial judge properly admitted the evidence of the first robbery, he did so for the wrong reason. While he recognized that the evidence of the first robbery was admissible to show plan, scheme or design, apparently his basic reason for admitting the evidence was to prove identity; Because the evidence was admissible to prove plan, design, scheme or system, its admission to prove identity does not constitute reversible error. “(I)f the court’s ruling was correct for any reason, it will not be reversed because the court assigned the wrong reason therefor.” Harnage v. State, 290 Ala. 142, 144, 274 So.2d 352 (1972); Knox v. State, 365 So.2d 349, 350 (Ala.Cr.App.1978). “A correct ruling on evidence will be sustained, though placed on an incorrect ground.” Nichols v. State, 276 Ala. 209, 213, 160 So.2d 619 (1964); Nettles v. State, 222 Ala. 236, 237, 132 So. 41 (1931). “(A) correct ruling will not be disturbed because of insufficient or wrong reasons therefor.” Thomas v. State, 41 Ala.App. 19, 23, 122 So.2d 731, cert. denied, 271 Ala. 700, 122 So.2d 736 (1960). “It seems clear enough that ‘judgments appealed from, not reasons therefor, determine action of reviewing court.’ ” City of Birmingham v. Williams, 26 Ala.App. 200, 203, 155 So. 878 (1934).

II

The defendant argues that the trial court erred by overruling his objection to the prosecutor’s closing argument which suggested that the jury should consider the prior criminal acts of the defendant.

From the record:

“MR. COLEE (Assistant District Attorney): Very often it seems to me that sometimes juries, especially in criminal cases, you have to put the blinders on them. I know some of you know about horses and all. In order to keep them on the road they put the little blinders on the eyes so they can’t look off to the left or right and be distracted or get upset about something. Well, very often it seems to me criminal juries are treated somewhat the same way. They’re not allowed to look to the left or look to the right and take in other facts besides that specific crime that we’re talking about.
“MR. SANDEFER (Defense Counsel): Judge, we would object to this as asking the jury to look outside the evidence that’s in this case, to look to some other crime or something of that nature.
“THE COURT: I don’t think the argument is directed to that, but I’m going to charge on that particular subject myself. I’ll overrule.”

Since evidence of the first robbery was properly admitted into evidence in the prosecution of the defendant for a second robbery, the prosecutor could legitimately comment on the evidence of the first robbery. Reedy v. State, 246 Ala. 363, 369, 20 So.2d 528 (1945). “All evidence admitted is subject to comment by counsel.” Roberts v. State, 346 So.2d 473, 476 (Ala.Cr.App.), cert. denied, Ex parte State ex rel. Atty. Gen., 346 So.2d 478 (Ala.1977). “The test of legitimate argument is that whatever is based on a fact or facts in evidence is within the scope of proper comment in argument to the jury.” Kirkland v. State, 340 So.2d 1139, 1140 (Ala.Cr.App.1976), cert. denied, Ex parte Kirkland, 340 So.2d 1140 (Ala.1977).

Ill

The defendant argues that the trial judge erred in allowing the in-court identification of the defendant by Ms. Goree, the victim of the first robbery, when Ms. Goree was in the courtroom during the jury selection process.

A hearing on the defendant’s motion to suppress was held immediately before trial. Sometime before or during this hearing “the rule” was invoked. Immediately after the hearing, the trial judge overruled the motion, a jury venire was brought in, qualified, and examined on voir dire by the State and defense counsel. The record only reflects that this was done and not the details of what actually occurred.

After the jury had been selected, defense counsel argued that Ms. Goree’s in-court identification of the defendant should not be allowed into evidence because she was seated in the back of the courtroom during the jury selection, because during that time the court identified the parties including the defendant, and because the rule had been invoked.

In overruling the defendant’s motion, the trial judge stated:

“THE COURT: I know of no rule that says a jury — when the rule is declared— the purpose of the rule is so they won’t hear testimony. I know of no rule that says when you’re striking a jury they can’t come in here. As a matter of fact, I and other Judges encourage it just so jurors can see witnesses. Half the time they say John Black or John Smith or Joe Doe and they won’t know them from anything. Many is the time, many, many times a juror will recognize a witness and say I know him, but not know his name. I encourage witnesses to come here so jurors can see them and make sure they don’t know them or don’t have any connection with them.
“As for the Defendant being here when a witness walks in, the witness could have walked in at any time and seen the Defendant. I know of no rule of law that says because the Defendant is sitting in a Courtroom and a witness comes in the Courtroom — granted, I know that might indicate one way or the other that’s the Defendant, even without someone pointing him out. But this woman wasn’t even here when the rule was invoked. Just the same, I wouldn’t say that was any reason. No one told her about the rule. She wasn’t here. She must have arrived sometime after.
“MR. COLEE: I think she had gone down to the coffee room.
“THE COURT: She didn’t testify in the suppression hearing. I’m going to overrule that.”

Before Ms. Goree identified the defendant at trial, defense counsel objected. It was then established that she had seen the defendant three times before the jury selection: (1) when he robbed her the first time, (2) when she and Ms. McConnell were robbed, and (3) in a lineup in which she positively identified the defendant. Ms. Goree testified that while the jury was being selected she never did see the defendant’s face.

Usually “the rule” does not contemplate the exclusion of a witness from the process involved in selecting the jury. Wilson v. State, 52 Ala. 299, 304 (1875) (“(T)he rules does not contemplate the exclusion of a witness because he may have heard the reading of the indictment or other pleading in the cause.”). However, even if the rule does apply to the jury selection process or even if it had specifically been invoked and in effect during that time, it was within the discretion of the trial judge to permit Ms. Goree to testify and identify the defendant. “The general rule in Alabama is that the invocation and enforcement of the rule of exclusion of witnesses is a matter within the sound discretion of the trial court and is normally not subject to appellate review (except for an abuse of that discretion).” Chatman v. State, 380 So.2d 351, 353 (Ala.Cr.App.1980); McElroy at Section 286.01. It is so obvious that the trial judge did not abuse his discretion in this ease that we need not further treat this issue.

IV

Finally, the defendant argues that the trial judge erred in admitting his confession into evidence.

The defendant was fully advised of his constitutional rights, signed a written waiver form and confessed his guilt. He refused to allow his statement to be tape recorded and also refused to sign a written statement of his confession. The defendant now argues that “it is not reasonable to assume that a voluntary statement would have been made and then refuse to sign a written or tape recorded statement.”

This argument is without merit. Even where there is credible testimony to the contrary, if the evidence as to the voluntanness of a confession is fairly capable of supporting an inference that rules of freedom and voluntariness were observed, the ruling of the trial judge that the confession was voluntary need only be supported by substantial evidence and not to a moral certainty. Thompson v. State, 347 So.2d 1371, 1375 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 347 So.2d 1377 (Ala.), cert. denied, 434 U.S. 1018, 98 S.Ct. 740, 54 L.Ed.2d 765 (1978). When such a conflict occurs and the trial judge finds that the confession was voluntarily and intelligently made, great weight must be given his judgment. His finding will not be disturbed by this Court unless we are convinced that his conclusion is palpably contrary to the weight of the evidence. Thompson, supra.

The fact that the defendant refused to sign a written confession or refused to allow his statement to be tape recorded does not necessarily indicate that the confession was involuntary. Proctor v. State, 391 So.2d 1092, 1094 (Ala.Cr.App.1980) (Confession admitted despite fact that defendant refused to sign waiver.)

“The voluntariness of a confession, authorizing its admission into evidence, must be determined by the trial court in the exercise of enlightened discretion.” McElroy at Section 200.04(9). In exercising that discretion and making such a determination, the trial judge may properly consider the credibility of the defendant as well as that of any witness who testified at the suppression hearing.

In ruling that the defendant’s confession was admissible, the trial judge stated:

“THE COURT: Just for the record, I’m going to put in the record that the Court knows from y’all conversation that he’s doing 30 years in the penitentiary in Tennessee and that’s admissible on the Voir Dire because it goes to credibility since he has taken the stand.”

There was no objection to this action by the trial judge and therefore nothing has been preserved for review in this regard.

Additionally, it should be noted that the hearing to determine the voluntariness of the confession was held immediately before trial. At that time the defendant did not testify and offered no evidence to rebut the State’s prima facie showing of voluntariness. The trial judge ruled the confession admissible. However, at trial when Sergeant Howard B. Felts was just about' to tell the jury what statements the defendant had made, defense counsel requested to be permitted to allow the defendant to testify, outside the presence of the jury “to show the character and nature of the interrogation so as to suppress the confession.” Although this irregularity was allowed by the trial judge, it was an allowance within his discretion rather than one to which the defendant was entitled.

“It is settled in this state that the accused may, before confessions are admitted in evidence, cross examine a witness for the State as to their voluntary character and offer outside evidence on voir dire in contradiction of that produced by the State. Peoples v. State, 256 Ala. 612, 56 So.2d 665; White v. State, supra. It is the right of the accused to controvert evidence in laying such predicate by cross examination, or by evidence aliunde, but such countervailing evidence impeaching the predicate to be successful must be offered on the voir dire, before the confession is admitted. Lockett v. State, 218 Ala. 40, 117 So. 457; Cook v. State, 16 Ala.App. 390, 78 So. 306; Pope v. State, 183 Ala. 61, 63 So. 71; Jackson v. State, 83 Ala. 76, 3 So. 847. If such countervailing evidence is not offered until after the preliminary question of the admissibility of the confession is passed on by the court, it goes to the jury on the credibility of the confession only. Lockett v. State, supra; Cook v. State, supra.” Lotos v. State, 278 Ala. 586, 593, 179 So.2d 714 (1965), vacated in part on other grounds, 408 U.S. 935, 92 S.Ct. 2854, 33 L.Ed.2d 749 (1972).

We have answered the questions raised by the defendant on appeal. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Sidney Shawn BYRD v. STATE.
    6 Div. 776.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-936.

      Jake V. Bivona of Paden, Green & Paden, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

On the afternoon of June 26, 1980, Delores Argo gave a ride to two strangers, Sherry Ragland and the defendant, in Midfield. The defendant placed a knife to Ms. Argo’s throat, and, with Ms. Ragland’s willing assistance, took control of her automobile and robbed her of the money in her purse. The abduction ended when Ms. Argo escaped in Montgomery and the defendant wrecked her automobile in attempting to flee from the alert Montgomery police.

The defendant was indicted for first degree robbery. Sentence was 21 years’ imprisonment.

I

The defendant contends that he was denied his Sixth Amendment right to a speedy trial. The chronology of facts and events governing this issue are:

June 26, 1980: The defendant was taken into custody for the robbery of Delores Argo.
December 5, 1980: Indictment returned for first degree robbery.
December 18, 1980: The defendant’s case was placed on the circuit court’s regular trial docket.
February 19, 1981: Counsel was appointed to represent the defendant.
February 23, 1981: The defendant was arraigned and his case set for trial. The defendant filed a motion for recusal directed to the trial judge.
March 4, 1981: The defendant’s motion for recusal was granted.
April 7, 1981: The defendant’s case was continued. The record reflects that the defendant was “in the penitentiary.” No objection by the defendant appears in the record.
June 8, 1981: The defendant’s case was continued with the record reflecting the same notation as that made on April 7. No objection by the defendant appears in the record.
June 22, 1981: The defendant filed a pro se motion for a speedy trial.
October 20,1981: The defendant filed pro se motions for discovery, “for psychiatric examination of prosecution witnesses”, and for a “copy of minutes of preliminary hearing without charge.” Motions were also filed seeking to reveal any agreement between the State and a co-defendant to dismiss the indictment on the bases of a denial of a speedy trial and for failure of the State to prosecute and to suppress the confession. Additionally, the defendant filed a motion requesting his own psychiatric examination.
October 22, 1981: The defendant’s case was continued with the same notations made in the record as that on April 7 and June 8. No objection by the defendant appears in the record.
December 1, 1981: The trial court ruled on the defendant’s motions and empaneled a jury for his trial. His trial began and was recessed for the evening.
December 2, 1981: The defendant’s trial continued and was recessed for the evening.
December 3, 1981: The jury returned a verdict of guilty against the defendant. The defendant was sentenced, notice of appeal was given, and appellate counsel different than trial counsel was appointed.

The general rules governing the issue of a speedy trial have been repeatedly stated. We find no need to reiterate them here except as they may particularly apply to the facts. See Smith v. State, 409 So.2d 958 (Ala.Cr.App.1981), and Vickery v. State, 408 So.2d 182 (Ala.Cr.App.1981), for a discussion of the applicable standards.

The defendant’s motions raising this issue merely allege that an inordinate amount of time had passed since his arrest and their filing. No hearing was held during which evidence was presented in support of the motions. Rather, immediately before trial, the trial court, along with counsel from both sides, discussed the motions with the defendant’s counsel making oral arguments.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), established the standards by which a claim of denial of the Sixth Amendment right to a speedy trial was to be reviewed. Such a review involves the assessment of four factors: (1) length of delay, (2) defendant’s assertion of his right, (3) reasons for delay, and (4) prejudice to the defendant. A discussion of the latter three factors is unnecessary if the length of delay is not found to be “presumptively prejudicial” or “patently offensive”. Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980); Corn v. State, 387 So.2d 275 (Ala.Cr.App.), cert. denied, 387 So.2d 280 (Ala.1980). United States v. MacDonald, - U.S. - , 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), makes it clear that the right to a speedy trial is

“not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.”

It is unclear whether the delay between the defendant’s arrest and his indictment was “made necessary by the law itself.” Cook v. State, 333 So.2d 855, 858 (Ala.Cr.App.), cert. denied, 333 So.2d 858 (Ala.1976). The delays due to the several continuances are also unexplained. Assuming their occurrence rests with the State, mere inaction on its part is weighed less heavily against it than deliberate prosecuto-rial delay. Vickery, 408 So.2d at 185. The record reflects that a portion of the delay between the defendant’s arrest and trial may be attributed to the normal procedures of the criminal justice system. However, part of the delay was a result of the multiplicity of pre-trial motions filed by the defendant himself.

Based upon the foregoing we do not find the delay between the defendant’s arrest and trial long enough to be “presumptively prejudicial” and trigger inquiry into the other factors enumerated in Barker, supra. The delay is not “patently offensive” so as to require a determination of whether it is “justified”. The delay in and of itself is insufficient to justify a finding that the defendant’s Sixth Amendment right to a speedy trial has been violated. Boykin v. State, 398 So.2d 766 (Ala.Cr. App.), cert. denied, 398 So.2d 771 (Ala.1981); Whitley v. State, 392 So.2d 1220 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1225 (Ala.1981); Wade v. State, 381 So.2d 1057 (Ala.Cr.App.), cert. denied, 381 So.2d 1062 (Ala.1980); Washington v. State, 370 So.2d 342 (Ala.Cr.App.1979); Hawthorne v. State, 362 So.2d 1275 (Ala.Cr.App.1978).

Nevertheless, we have reviewed the record in light of the remaining factors of Barker, supra, and find no violation of the defendant’s right to a speedy trial. The defendant failed to illustrate any prejudice as a result of the delay, which can be attributed in varying degrees to the State, the normal criminal case process, and the defendant. The circumstances of this case lend themselves to a showing of “affirmative prejudice.” See Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).

Important and significant factors which we have weighed heavily against the defendant in making our determination are the dilatory measures he exercised before trial. On the day the defendant’s ease was scheduled for trial he sought a continuance so that he could hire his own attorney although one had been appointed for him for more than ten months. Although the defendant argued that he thought his case had been dismissed, the record reflects that he had at least one week’s notice that he was going to trial and during that time failed to even talk to any attorney.

Furthermore, the defendant subpoenaed a large number of witnesses for his trial. Some of these witnesses were inmates of the state penitentiary. From the record:

“THE COURT: Twenty-two witnesses called on rebuttal for a statement made at the preliminary hearing is an unusual number of witnesses. Not knowing the nature of the testimony, of course, I don’t know as to the impact of that.
“However, I would suspect, looking at this list of witnesses, they are requested in the nature of a dilatory fashion. The Court having no further knowledge of this case than it does, that is just a presumption on my part.”

In apparent verification of the trial judge’s presumption of intentional delay is the fact that four of the witnesses the defendant had subpoenaed for trial were not called to testify because they either had no knowledge of the case or what knowledge they did have was based on rumor and hearsay.

II

The defendant contends that the trial court erred in admitting his confession into evidence because he was not adequately advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and because the statement was involuntary because he was “in pain” and “under sedation.”

In attempting to escape from the police the defendant crashed Ms. Argo’s automobile into a utility pole. The defendant was injured and unconscious. He was taken to an emergency room and treated. However, the defendant regained his senses in the emergency room. Officer John P. Linskey testified:

“At first when he came in he was hollering and screaming. He was in a lot of pain. Then as the pain subsided, he started getting more cocky instead of pain. So, apparently he was growing less — he was more of a cocky state.”

Linskey stated that the defendant was “acting more smart-alecky. His answers would be more sharper in tone.”

The defendant was at the Montgomery Police Department at 1:00 A.M. The record does not show what time he was released from the hospital or when he arrived at the police department, although Sergeant Fred House of the Jefferson County Sheriff’s Department testified that it was his “impression” that the defendant arrived a “very few minutes” before 1:00 A.M.

Deputy House read the defendant his Miranda rights from a “rights waiver form.” The defendant was fully informed of his rights, stated that he understood them and signed the waiver form at 1:27 A.M.

The defendant testified that he did not remember anything.

“I don’t remember nothing until after I was brought here to this jail (Jefferson County). I don’t remember the hospital.
I don’t remember the wreck. I don’t remember Sgt. House or even being in the Montgomery County Jail.”

The defendant stated that he “assumed” that he was given “drugs for medication” at the hospital but “don’t know” and “don’t remember”. The defendant testified that he had cuts in his head and a ruptured bladder.

Defense counsel objected to the admission of the confession because “it was not made knowingly”, because the defendant was “physically incapable at the time of realizing, or knowing, or even remembering that he signed anything”, and because the defendant was “under sedation and pain at the time.” The trial judge overruled the motion to suppress with the remark that he had “no evidence to support that.”

There is nothing in the record to contradict the trial judge’s finding of volun-tariness apart from the speculation of the defendant that he “assumes” he had been given drugs or medication. Even if medication had been given the defendant at the hospital, there is absolutely no evidence that the defendant was “so far dethroned that he was unable to understand the effect of what he was saying or to give a true account of his actions with respect to the alleged crimes.” C. Gamble, McElroy’s Alabama Evidence, Section 200.14(2) (3rd ed.1977). The mere fact that the defendant had taken drugs sometime before he made a statement does not automatically render a confession involuntary. Nelson v. State, 398 So.2d 421, 423 (Ala.Cr.App.1981).

The best proof that the confession was not of a drug-induced statement is the tape recording of the actual interview. We have listened to this interview just as did the trial judge before ruling on its admissibility. The defendant’s answers are responsive to Sergeant House’s questions and made without hesitation or waiver. The defendant is able to recall details of the crime— times, routes and distances traveled, names, places, amounts taken, and events in chronological order.

The evidence supports the finding that the confession was voluntarily and intelligently given. The State carried its burden and rebutted the presumption that the confession was involuntary. We find no error in the admission into evidence of the defendant’s confession.

Ill

The defendant argues that the trial court erred in refusing to allow him to impeach Ms. Argo’s testimony.

On cross examination, defense counsel asked Ms. Argo whether she had called the defendant prior to June 26 and asked him “to obtain some drugs” for her and whether she had “arranged” to meet the defendant in Midfield and asked him to take her to Panama City and “get her some drugs.” Ms. Argo denied both questions.

In his own defense, the defendant called the victim’s father as a witness in an attempt to impeach Ms. Argo. Over the State’s objection defense counsel established that Mr. Argo had a telephone conversation with the defendant’s mother. There was no evidence of when this conversation occurred. Defense counsel then attempted to establish that Ms. Argo had a “drug problem”.

“Q. (Mr. Furner, defense counsel): Let me ask you (Mr. Argo) this: Whether or not during the course of this conversation, that you told Mrs. Byrd that you had a drug problem with your daughter?
“MR. TUCKER (Assistant District Attorney): Judge, I object.
“THE COURT: I sustain.
“MR. TUCKER: Once again, to any conversations. It is the rankest form of hearsay.
“THE COURT: Sustained.
“MR. FURNER: Your Honor, I don’t believe it is hearsay. And, furthermore, she has testified under oath she didn’t use drugs. I think we have a perfect right to attack her credibility.
“I specifically asked her that question on purpose and she said no.
“THE COURT: I sustain the objection to it.
“MR. FURNER: All right. Would you give us an exception to it?
“THE COURT: Give you an exception.
“Q. All right. Let me ask you this question specifically: Does your daughter have a drug problem?
“MR. TUCKER: Judge, I object to that. That is nothing but prejudicial. It’s just an attempt to undermine the State’s case.
“THE COURT: Sustained. Disregard that, ladies and gentlemen. I will give you an exception to the Court’s ruling.
“MR. FURNER: In other words, the Court is not going to allow us to attack the lady’s credibility, the statement she made on the stand under oath, that she does not use drugs?
“THE COURT: The question, when it was asked, could well have been sustained. The Court did not sustain the objection to that, since the question was answered in the negative.
“However, the question was such that the Court would have sustained it. It was not a matter that could be gone into, because it was not an offense that would be raised at that time. So, I sustained the State’s objection to it at this time. I will give you an exception.
“MR. FURNER: All right. I would like for the record to show, that we are asking this for the sole and only purpose of attacking her credibility. I have no further questions.”

Initially, we note that defense counsel, contrary to his representations at trial, never specifically asked Ms. Argo if she used drugs. No contention to the contrary is made on appeal.

The action of the trial judge was correct.
“A witness’ addiction to a narcotic drug is not admissible to impeach him unless one of the following are shown: (1) that he is under the influence of the drug at the time of his testifying, (2) that he was under the influence of the drug at the time of the event of which he testifies or (3) that his mind is generally impaired by the habitual use of narcotic drugs.” C. Gamble, McElroy’s Alabama Evidence, Section 141.01(3) (3rd ed. 1977), citing Standard Oil Co. v. Carter, 210 Ala. 572, 98 So. 575 (1923).

This is in accord with the principles found in the annotation on the use of drugs as affecting the competency or credibility of a witness at 65 A.L.R.3d 705 (1975).

“As to the effect of drug use upon credibility, the courts may diverge in regard to the circumstances under which such use may be shown, but the vast majority recognize that drug use may affect a witness’ testimonial credibility. An examination of the diverse circumstances presented in the cases reveals that the courts, either expressly or by implication, discuss the credibility question through an analysis of the purposes for which specific evidence concerning drug use is introduced. Thus, evidence showing that a witness was under the influence of drugs at the time of testifying, or at the time of the events testified to, is admissible to impeach the witness’ credibility, as is evidence of general facultative impair- meat through drug use. The oft-expressed reasoning attendant upon the admission of drug use evidence for these purposes emphasizes the effect of drugs upon the ability of the witness to perceive, recall, or relate, in general; the ability to have perceived the event about which he is testifying if under drug influence at that time; or the ability to have testified credibly when the presence of drugs in the witness’ system while testifying may affect the intelligent realization of what is being said.
“There are also some instances in which the courts have admitted drug use evidence for purposes other than those discussed above in which the effect of drugs on perceptual ability was emphasized. For example, some courts have indicated, in accord with general principles of evidence, that drug use evidence proffered to contradict a witness’ denial or direct testimony as to such use is admissible. And courts have held or recognized that evidence of drug use is admissible to show that a particular type of witness, the addict-informer, may be biased in his testimony.
“However, there appears to be some disagreement on whether evidence of drug use is admissible to show a general lack of veracity on the part of a witness. Most courts which have specifically decided or discussed this issue appear to take the view that evidence of drug use proffered to show lack of veracity is inadmissible. The principle rationales given for this position are that there is no consensus of medical opinion concerning drug use and mendacity, or that evidence of this type is on a collateral issue of which the court has discretion to disallow litigation. In addition, a number of cases appear to support this view, at least by implication, in that the courts have held or recognized that specific drug use evidence was inadmissible because the witness was not shown to have been under drug influence at the time of testifying, or at the time of the events testified to, or the witness' faculties were not shown to have been impaired by drug use.
Some courts, however, appear to have held or recognized that drug use evidence is admissible to show inability to tell the truth or a tendency to lie.” 65 A.L.R.3d at 712-13.

In this case the defendant could have impeached Ms. Argo’s credibility by contradicting her testimony on cross examination but not by showing that she had a “drug problem”. However, before defense counsel impeached Ms. Argo by showing that she had requested drugs from the defendant, he should have specified “with reasonable certainty the time when, the place where, the person to whom such supposed statement was made and the substance of such statement.” McElroy at Section 157.01(1).

Because the defendant did not lay a proper predicate for impeachment, because there is and has never been any contention that Ms. Argo was under the influence of drugs at the time of testifying or at the time of the events testified to and because Ms. Argo never directly denied the use of drugs, the action of the trial judge in refusing to allow the defendant to impeach Ms. Argo by showing that she had a drug problem was proper.

IV

Finally, the defendant contends that the trial court erred in failing to charge the jury on lesser included offenses. The defendant requested in writing that the trial court instruct the jury on the offenses of second and third degree robbery, but did not submit written requested charges covering these offenses.

This issue has not been properly preserved for review. In Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980), this Court, quoting from Smith v. State, 53 Ala.App. 657, 303 So.2d 157 (1974), stated at page 35:

“‘(W)here a party desires the court to extend its oral charge to cover some applicable law in the trial of a case, his remedy is to request a written charge on the subject, which if refused would protect the record and present the matter to the Appellate Courts. The rules governing objections and exceptions to the oral charge of the court either in the matter of what the court says or does not say require that if the objection is to what the court did say the remedy is only by exception thereto (Passmore v. State, 47 Ala.App. 189, 252 So.2d 115), 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. (Lewis v. State, 42 Ala.App. 166, 157 So.2d 38; Tranholm v. State, 38 Ala.App. 57, 77 So.2d 491).
“ ‘A failure to pursue one of the remedies above set out, if proper and applicable to the case, is a waiver of a review by this court as to the matters in question.’ ”

See also Travis v. State, 397 So.2d 256 (Ala.Cr.App.), cert. denied, 397 So.2d 265 (Ala.1981).

Additionally, charges on second and third degree robbery were inappropriate as the evidence in the case pointed either to the guilt of the defendant as charged in the indictment or to his innocence. An accused is entitled to have the jury charged on a lesser included offense only where there is a reasonable theory from the evidence to support the lesser offense. Johnson v. State, 398 So.2d 393 (Ala.Cr.App.1981); Williams v. State, 377 So.2d 634 (Ala.Cr.App.), cert. denied, 377 So.2d 639 (Ala.1979).

We have examined each issue raised by the defendant in brief. We find no error and therefore this cause is hereby affirmed.

AFFIRMED.

All Judges concur.

      . The record does not reflect the date of defendant’s arrest. However, in his pro se motions for a speedy trial, defendant refers to June 26 as the date of his arrest.


text:
    Ronald KENNEDY v. STATE.
    8 Div. 670.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-961.
    Edwin L. Yates, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

This Court reversed the circuit court’s summary dismissal of Kennedy’s petition for writ of error coram nobis and remanded the cause for an evidentiary hearing in Kennedy v. State, 409 So.2d 1010 (Ala.Cr.App., 1982).

At the evidentiary hearing, at which Kennedy was present and represented by counsel, the allegations of Kennedy’s petition were contradicted and denied by the attorney who represented Kennedy at his trial for murder in the first degree. Based upon that hearing, the trial judge had an adequate basis upon which to deny Kennedy’s petition. Corley v. State, 397 So.2d 223 (Ala.Cr.App.), cert. denied, 397 So.2d 225 (Ala.1981).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    James W. BUSH v. STATE.
    4 Div. 27.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Aug. 24, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-1029.
    Robert P. Lane of Phillips & Funderburk, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen. and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant waived indictment and pled guilty to arson in the second degree. He also pled guilty to an indictment charging robbery. He was sentenced as an habitual offender to a term of fifteen years’ imprisonment for the arson conviction to run concurrent with the twenty-five year sentence in the robbery conviction. These sentences conformed to the plea bargaining agreement.

The defendant’s conviction is affirmed on authority of Johnson v. State, 421 So.2d 1307 (Ala.Cr.App., 1982), wherein we held that a certificate restoring a defendant’s civil and political rights after a conviction of a felony does not preclude that conviction from being used to enhance the defendant’s punishment as an habitual offender.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    James Robert ROWE v. STATE.
    6 Div. 827.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Aug. 24, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-1031.

      Murray P. Stovall, III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Appellant was indicted by the Walker County Grand Jury for rape in the first degree in violation of § 13A-6-61, Code 1975. At arraignment appellant entered a plea of not guilty and not guilty by reason of insanity. The jury returned a verdict of guilty, and the court sentenced appellant to life imprisonment.

The prosecutrix stated she was ninety-one years old at the time of trial. The evening the attack occurred, the prosecutrix was at home alone, watching television, when she was suddenly struck in the head. A white man with his face covered pulled her into her bedroom where he placed her on the bed and sexually assaulted her. When asked if the attacker’s private parts entered her private parts, the prosecutrix stated she did not know. She was sure, however, that he did engage in anal intercourse with her.

After the attack, the appellant fled. The prosecutrix was taken to the hospital later that night as a result of the assault.

Detective Bobby Cain of the Jasper Police Department testified he was at the police department on May 5, 1981 when appellant and his mother came into his office in response to a police inquiry. Detective Cain told appellant he wanted to talk to him about the prosecutrix’ case. After his mother was excused from the room, Detective Cain read appellant his Miranda warnings from a card. He told appellant he was not under arrest, and that he did not have to talk to him. Appellant told Detective Cain that he understood his rights.

Also present in the office at that time was Detective J.C. Poe. Both detectives were dressed in suits. After some general questions about his whereabouts on the night of the incident, appellant admitted that he had entered the prosecutrix’ house through a window. He stated he struck her on the head with a frying pan, and sexually assaulted her. When Detective Cain asked him why he assaulted her, appellant responded “I must be sick, I guess I’m crazy.” Detective Cain replied in response to appellant’s statement that if he was sick, they would see that he got help.

A typed statement was subsequently taken, with appellant’s permission. After that, a written confession was made by appellant. Detective Poe wrote the statement at appellant’s request, and appellant signed the completed statement. The entire session lasted approximately forty-five minutes.

Officer J.C. Poe of the Jasper Police Department testified he was present on May 5, 1981 when appellant gave a statement at police headquarters. His testimony substantiated that of Detective Cain’s. He also read into the record the statement he had transcribed for appellant on that same date.

Dr. Dick Owens testified he examined the prosecutrix at Druid City Hospital in Tuscaloosa, Alabama on the night of April 29, 1981. He observed a large laceration or hole on the top of her head which was so severe it could not be sutured. She was also scratched and bruised on her arms. He observed a laceration which ran along the posterior into the inside of the vaginal canal. Dr. Owens stated the injury was consistent with sexual intercourse. In his opinion, the prosecutrix’ vagina had been penetrated. He testified the prosecutrix complained of pain in both her rectum and her privates. He stated it was very possible that the prosecutrix could not distinguish between pain in her vagina and rectal areas because the nerves in those areas are very similar. As well, it would have been difficult for her to distinguish a penetration of the vagina from that of the anus.

When questioned on cross-examination, Dr. Owens stated he found a fluid, blood, in the vagina which was consistent with sexual intercourse.

Kevin Noppinger, a forensic serologist for the State, testified he examined clothes worn by the victim the night of the assault. His examination revealed both blood and seminal stains were present. The blood stain was inconsistent with the prosecutrix’ blood type and consistent with that of appellant.

Dale Gunn, a clinical psychologist, testified he examined appellant on May 5, 1981 at the request of Police Captain Bobby Cain. In his opinion, appellant was not suffering from any present and real mental illness, disease, or defect. He stated appellant knew both where he was and what he was doing. He had the capacity to appreciate the criminality of his conduct, as well as to conform his conduct to the requirements of the law. In his opinion, appellant was sane.

The State rested at the close of Dr. Gunn’s testimony. Appellant’s subsequent motion to exclude the evidence was denied.

After calling his mother and wife to testify as to his periodic blackouts and mental lapses, appellant rested.

I

Appellant alleges the court erred in admitting his confession in that it was involuntarily given because it was induced by a promise. He cites the following testimony from the record as giving factual support to his contention:

“I asked him what he had hit her with. He told me he had hit her with a skillet. I asked him where the skillet was at, and he said he thought he left it in the house.
“I asked him why he had done it, and he said, ‘I guess I’m sick, I guess I’m crazy.’ He said, ‘I need some help,’ and I told him, I said, ‘If you need some help,’ I said, ‘I’ll give you some help.’
“Q Did you tell him what type help you would get?
“A Yes, sir. I told him I would get a doctor from the Mental Health to come down and talk to him.”
(R. 11)
“Okay. I’m not trying to play semantics with you or word games with you. When this form was signed in your presence, this man had been told that some official, that is, somebody in the Jasper Police Department, would get him some help with Mental Health, isn’t that correct, sir? I don’t know how else to put it. Is that correct?
“A He was — He asked for some help, and we told him we would get him some.
“Q Okay. And that was before he signed this form?
“A Yes, sir, it was before he signed that form.”
(R. 43)

Upon a full reading of the testimony of Officers Cain and Poe, it is clear there is no factual basis for appellant’s contention. The record reveals that the mention of mental help was not made by the officers until after appellant had orally confessed to the officers that he had assaulted the prose-cutrix, and described all the details of the commission of the crime. It was only made then in response to appellant’s assertion that he must be sick to do such a thing, and that he needed help.

Although the taped and written versions of the confession were not made until after the offer of mental counseling, it is clear that offer did not induce the original confession itself. Appellant had completely confessed at the time mental health was mentioned in response to his assertion of mental illness and request for help.

The question of improper inducement is determined by an examination of attending circumstances, with the inquiry focusing on whether the defendant’s free will and rational intellect were overborne at the time he confessed. Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978). In the instant case, we find the confession was not the product of a direct or implied promise. The oral confession was completed at the time help was mentioned and therefore the offer could not have induced the confession. Chatman v. State, 380 So.2d 351 (Ala.Cr.App.1980). The taped and written confessions merely duplicated and were cumulative of the oral confession. Additionally, we note appellant requested the help in the first place. A confession is not rendered involuntary by a promise of benefit that was solicited freely and voluntarily by the defendant himself. Eakes, supra. Finally, Dr. Gunn’s testimony leaves no doubt that appellant was mentally capable of giving a free and voluntary confession, despite any doubts the officers may have originally harbored, in light of his vile crime, as to appellant’s mental health.

II

Appellant contends the State failed to prove the crime as charged in the indictment, in that the evidence tended to prove sodomy under § 13A-6-63, Code 1975, rather than rape under § 13A-6-61, Code 1975. He quotes those portions of the prosecutrix’ testimony in which she repeatedly stated she was raped through her rectum, as opposed to her vagina.

While the prosecutrix did testify that appellant engaged in anal intercourse with her, she also testified as follows:

“So then he got through with what he— that’s when he raped me. Then when he got through with that, he went on out.
“Q Mrs. P-, did his private parts enter your private parts?
“A Beg your pardon?
“Q Did his private parts enter your private parts?
“A I don’t know.
“Q You say he raped you?
“A Yeah, he raped me. I don’t—
“MR. STOVALL: I object to that question, Your Honor.
“THE COURT: Overrule.” (R. 89-90)

Dr. Owens testified to the injuries to the prosecutrix’ vagina and stated that blood found in the vagina indicated intercourse had taken place. He stated the injuries were consistent with sexual intercourse, and that in his opinion, the prosecutrix’ vagina had been penetrated. As well, he indicated that it would have been difficult for the ninety-one year old prosecutrix to distinguish between anal and vaginal penetration.

The testimony of a State forensic serologist indicated an examination of clothing worn by the prosecutrix at the time of the assault revealed the presence of semen.

Finally, the appellant indicated in his confession that he had sexually assaulted the prosecutrix.

A required element of the crime of rape is proof of an actual penetration of the female sex organ by the male sex organ. Whether an actual penetration is accomplished is a question of fact to be determined by the jury. Jackson v. State, 390 So.2d 671 (Ala.Cr.App.), cert. denied, 390 So.2d 675 (Ala.1980).

While the facts indicated more than one form of penetration occurred, we find the evidence was sufficient to justify the jury’s finding that there had been a penile penetration of the prosecutrix’ vagina. Jackson, supra.

Ill

Appellant contends the court erred in refusing to give the following written harges:

“Defendant’s Charge # 2
“I charge the jury that penetration of the Defendant’s penis into the anus of Mrs. L-P-is not sufficient for a finding of guilty. (R. 292-293).
“Defendant’s Charge # 3
“I charge the jury to find the Defendant not guilty.”

The court’s oral charge instructed the jury as appears below:

“Now, a male commits the crime of rape in the first degree if: one, he engages in sexual intercourse with a female; two, he does so by forcible compulsion.
“To sustain the charge of rape in the first degree in this case, the State by the evidence must prove beyond a reasonable doubt each of the following elements of the offense first, that James Robert Rowe, a male, engaged in sexual intercourse with L— P-, a female; second, that he did so by forcible compulsion.
“Now, the definition of sexual intercourse is ‘Such term has its ordinary meaning and occurs upon any penetration, however slight. Emission is not required.’ Female: ‘Any female person who is not married to the actor.’ Forcible compulsion: ‘Physical force that overcomes earnest resistance or a threat expressed or implied and places a person in fear of immediate death or serious physical injury to himself or another person.’
“I charge the jury that if you do not find that the defendant’s penis penetrated the vagina of Mrs. P-, you must find the defendant not guilty.”
(R. 236-237, 242)

The court’s oral charge fully and substantially covered the principle of law expressed in appellant’s requested charge number two. The refusal of a requested charge does not constitute prejudicial error where the principle of law is substantially and fairly covered elsewhere in the court’s oral charge. Robinson v. State, 405 So.2d 1328 (Ala.Cr.App.), cert denied, 405 So.2d 1334 (Ala.1981).

Charge number three was correctly refused in light of part II above.

Additionally, appellant did not call the court’s attention to each specific refused written charge and set forth specific grounds for his objection to the refusal of these charges. Absent such action on appellant’s part, there is nothing before this court to review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff’d 414 So.2d 993 (Ala.1982). Gullatt v. State, 409 So.2d 466 (1981).

We have carefully examined this record and find no error therein. This cause therefore is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Kenneth Jerome MALONE, alias v. STATE.
    8 Div. 595.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.
    Robert S. Gargis and H. Alan Gargis, Tuscumbia, for appellant.

      Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Murder; sentence: thirty years’ imprisonment.

On the night of April 25, 1981, appellant shot and killed Sam Hogan, Jr. at the home of Sam Tompkins in Tuscumbia, Alabama. Appellant’s trial testimony and statement to police indicated appellant shot the victim because he believed the victim was about to attack him with a knife, although appellant admitted he did not see a knife in the victim’s possession. No other witness to the crime testified that they saw the victim threaten or appear to attack appellant in any way. The sufficiency of the evidence is not raised as an issue on appeal.

I

Appellant contends the prosecutor directed questions to and elicited answers from Officer John Heliums which impermissibly called attention to appellant’s alleged refusal to give a statement to police at the time of his arrest on the night of April 25, 1981. Appellant relies upon Houston v. State, 354 So.2d 825 (Ala.Cr.App.1977), cert. denied, 354 So.2d 829 (Ala.1978), for the proposition that a prosecutor must avoid all reference to or use of an accused’s assertion of his right to remain silent, and that any use thereof is a violation of due process.

When Officer Heliums was first called to testify, he stated that appellant was intoxicated when he observed him at the scene of the murder on the night of April 25, 1981. During the subsequent examination of Officer Larry Potts, Potts testified that appellant was not intoxicated at the scene of the murder.

Upon being recalled to the stand after Officer Potts’ testimony, Officer Heliums testified as follows in response to defense counsel’s questions:

“MR. GARGIS CONTINUES: You heard Officer Potts testify, isn’t that correct?
“A Yes, sir.
“Q You heard Officer Potts testify that the defendant was not drunk that night, isn’t that correct?
“A I believe that’s correct.
“Q You also heard Officer Potts testify he was hysterical when he put him in the patrol car, isn’t that correct?
“A Yes, sir.
“MR. GARGIS: No further questions.”

The questions and answers referred to in appellant’s argument appear immediately following the above questions and answers and are as follows:

“RE-DIRECT EXAMINATION
“BY MR. PATTON:
“Q Now, Mr. Heliums, you heard Officer Potts say that he put him in the patrol car — how long were you with the defendant that night?
“A Approximately five minutes, I guess.
“Q Did you sit down and try to talk to him?
“A Yes, sir.
“Q Did you attempt to take a statement from him?
“MR. GARGIS: Your Honor, I am going to object to that, it’s inadmissible, it’s violating his Miranda and constitutional rights.
“BY THE COURT: Overrule the objection.
“MR. PATTON CONTINUES: Did you start to take a statement from him?
“A Yes, sir, I did.
“Q And did you quit taking a statement from him?
“A Yes, sir.
“Q Why was that?
“MR. GARGIS: Your Honor, I want to renew the objection, because it’s not admissible. If the defendant did not give a statement, that was his right under the Constitution of the United States not to give a statement.
“BY THE COURT: Overrule the objection, go ahead.
“MR. PATTON: Why didn’t you take a statement from him, John?
“A Because the man was intoxicated, I wanted to make sure that he knew his rights, I wanted to make sure that he did not say anything that he didn’t knowingly say to me later on. I wanted to protect his rights; the man was drunk and he didn’t know half of what he was saying.
“Q All right, sir, and you waited until the next morning when he had sobered up to take a statement?
“A That’s correct.”

It is clear that the questions and answers excepted to by appellant did not fall under the prohibition of the rule announced in Houston, supra, in that they do not evidence that appellant made any assertion of his right to remain silent. Rather, the testimony reveals that it was Officer Heliums who stopped the intoxicated appellant from making a statement in an effort to protect appellant’s constitutional rights. Neither the prosecutor nor Officer Heliums said anything which indicated before the jury that appellant had exercised his right to remain silent.

It is also apparent that the questions addressed to Officer Heliums were not intended by the prosecutor to elicit substantive evidence of appellant’s guilt nor to impeach the appellant’s statement or testimony at trial. The prosecutor was merely attempting to rebut defense counsel’s questions to Officer Heliums concerning Officer Potts’ denial of appellant’s intoxication.

II

Appellant contends that the trial court erred in refusing to give his requested written charges numbers 310 — 340. Charge number 340 was not called to the attention of the court after the court refused to give the charge, and is not before this court for review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff’d, 414 So.2d 993 (Ala.1982). The remaining charges were properly refused in that they were either abstract, contained misspelled words, or were incomplete, misleading and incorrect statements of the law. Hope v. State, 390 So.2d 1077, (Ala.Cr.App.), cert. denied, 390 So.2d 1083 (Ala.1980); Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1977); Jefferson v. City of Birmingham, 399 So.2d 932 (Ala.Cr.App.1981); Allen v. State, 414 So.2d 989, (Ala.Cr.App.), affirmed, 414 So.2d 993 (1982).

Ill

Appellant asserts that the trial court erred in refusing to allow him to impeach a State witness during cross-examination. The record reflects the following occurred during the cross-examination of Will Davis:

“Q Now it is your testimony, under oath, right here today that you have gone to Sam Tompkins’ house and would take a drink?
“A Yes, sir.
“Q You are drinking buddies?
“A Sir?
“Q Ya’ll drink together, ya’ll are drinking buddies?
“A Yes, sir.
“Q Do you recall on May 13th the district attorney’s office calling you up here and you testified at the preliminary hearing when we asked questions down the hall on May 13th, do you remember that?
“A Yes, sir.
“Q Do you remember taking an oath and swearing then that you would tell the truth?
“A Yes, sir.
“Q Now were you telling the truth on that day?
“A Yes, sir.
“Q And it’s also your testimony that you’re telling the truth on this day? “A Yes, sir.
“Q And it’s also your sworn testimony under oath right now that you go to Sam Tompkins’ house and take a drink, is that correct?
“A Yes, sir.
“Q Now on May 13th I asked you questions — page 29—
“MR. PATTON: If it please the Court, I want to approach the bench.
“(At this time the attorneys approached the bench)
“BY THE COURT: Ladies and gentlemen of the jury, at this time we need to take up something outside your presence and I will ask you to go into the jury room until we call you back out. During this time, please do not discuss this case among yourselves.
“(At this time the jury left the courtroom)
“BY THE COURT: I sustain the objection based on 156.01 and .03 McElroy’s Alabama Evidence. I think the matter you are trying to go into is immaterial, you’re trying to impeach someone on an immaterial matter.
“MR. GARGIS: At this time we would like to offer proof that in prior testimony under cross examination he made a statement to me that is contrary to what he is saying now. And we at this time contend that truthfulness is always material in a case, especially when it is a material witness. Subject to that cross examination and to show bias, we are able at any time to cross examine a witness to see if they are a truthful witness and I think this is material to show he is not being truthful at this time. We expect him to say Sam Tompkins has been drinking a lot of times, he has been drinking with Sam Tompkins, where at the prior hearing he stated that he ain’t never seen Sam Tompkins take a drink. And I think this goes to the credibiity of this witness, and I would like to read into the record the statement that I’m making reference to in the preliminary hearing.
“MR. PATTON: Now if it please the Court, I am going to object to him reading any statement, he can offer the whole transcript of the witness’ testimony, because I think it’s taken out of context. And it might be straining a gnat to believe what Mr. Gargis is saying but if you read the whole transcript in context, he is talking about a particular night when the defendant shot and killed the deceased. And if he wants to offer the whole testimony of the witness for review by the Court, I have no objection, but I do object to any mere statement taken out of context.
“MR. GARGIS: Your Honor, at this time I would like to read the statement — the inconsistent statement in the transcript; it’s on page 29 — direct examination.
“MR. PATTON: Now you have heard my—
“BY THE COURT: You have the right to do the same thing.
“MR. PATTON: I want to object to it again, if it please the Court, as being irrelevant and immaterial, it has no bearing on any issues in the case and is an attempt to impeach on an immaterial point.
“BY THE COURT: I sustain the objection, but he wants to make a showing of proof. Go ahead.”

Appellant’s counsel then read into the record several statements made by the witness at the preliminary hearing in which Davis stated he had never seen Sam Tompkins take a drink.

We hold the trial court was correct in refusing to allow the appellant to impeach the witness on an immaterial issue created by appellant on cross-examination. Denson v. State, 50 Ala.App. 409, 279 So.2d 580 (1973). It is apparent from appellant’s objection and offer of proof that the thrust of his effort was directed toward Will Davis’ testimony as to Sam Tompkins’ prior drinking habits. Whether or not Tompkins, the owner of the house where the shooting occurred, who did not witness the shooting, had ever taken a drink before was not material to the facts of the case being tried. It was not proper for defense counsel to draw out immaterial testimony on cross-examination with the avowed purpose of laying a predicate to introduce prior statements to impeach the witness on the immaterial issue. Williams v. State, 383 So.2d 547 (Ala.Cr.App.1979), aff’d, 383 So.2d 564 (Ala.1980), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980); C. Gamble, McElroy’s Alabama Evidence, § 156.01(5) and (7) (3rd ed. 1977).

No error harmful to the substantial rights of appellant having been demonstrated on appeal, the judgment of conviction by the Colbert Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Coleman PENNINGTON v. STATE of Alabama.
    8 Div. 710.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 2, 1982.
    Roger H. Bedford, Jr. of Bedford, Bed-ford & Rogers, Russellville, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Coleman Pennington was indicted in two counts of theft in the first degree in violation of § 13A-8-3, Code of Alabama 1975. The jury found the appellant guilty “under Count I of the indictment.” Following a habitual offender hearing, the appellant was sentenced to life in the penitentiary.

Anthony Shepherd testified that on October 24, 1981, the appellant, Pennington, drove Shepherd and appellant’s son, Phillip, to Delta Contractors, Inc. The reason for going to Delta was to steal a battery for appellant’s car. Once at Delta, Shepherd and Phillip scaled the fence which enclosed part of Delta’s premises. They stole a battery, a C.B. and a calculator from vehicles parked inside the fenced area. They climbed back over the fence and went to meet appellant who had parked his car down the road.

The three installed the battery they had stolen from Delta, but discovered it would not work. After putting the old battery back in the car, they made another trip to Delta to steal another battery. Once inside the fence, the two boys decided to steal two chain saws, a surveyor’s level, an air wrench, an impact wrench and a Ford Mustang in addition to the battery. Phillip said he was going to drive the Mustang to Lake Number Six and told Shepherd to get his father and meet him there. The pair loaded the stolen items into the Mustang, opened the gate with a monkey wrench and Shepherd drove off.

Shepherd found the appellant who had been driving back and forth by Delta waiting for the two boys. The appellant and Sheperd then drove to Lake Number Six. Upon arriving there they found Phillip and the Mustang which was stuck in the mud. Phillip told them he had gotten the Mustang stuck and couldn’t get it out. The three then removed the battery from appellant’s car and replaced it with the one they had just stolen. They then transferred the stolen goods from the Mustang to the appellant’s car, and went to the appellant’s brother’s house and sold some of the stolen items.

The next day appellant was involved in an automobile accident with Roy and Eloise Houston. Donnie McGuire, the policeman who investigated the accident testified he saw two of the stolen goods (the air wrench and the calculator) in appellant’s vehicle. He further testified that when McGuire attempted to ask the appellant certain questions concerning the theft, once he was in custody, the appellant responded “I’ll take the blame for it, my boy wasn’t with me.” When McGuire asked appellant what he would take the blame for, he answered, “I don’t know.”

Russellville Police Chief Burns Saint testified that appellant told him he had pawned the stolen goods and could get them back for thirty dollars, if Saint could get him out on bail. The appellant also told Saint where to find the Mustang.

Phillip testified on behalf of his father and stated that his father knew nothing about the boys’ plan to steal anything until after the act in question had taken place, but admitted the appellant drove them to Delta and took Shepherd to meet him at Lake Number Six.

Appellant’s testimony was essentially the same as his son’s. He said he did not participate in the theft and once he learned of it, he took the stolen property to his brother’s house to keep until he could return the goods to their rightful owner or owners. The appellant admitted he had seven prior felony convictions.

I

The appellant’s sole contention is that the trial court erred in overruling the appellant’s motion to dismiss for failure of the State to introduce sufficient evidence to support a prima facie case of the crime with which the appellant was charged. Defense counsel urges that this appeal is based on the ground that the State did not prove the appellant was a direct participant in the theft in question.

This issue was addressed by this court in Killough v. State, (3 Div. 400), (Ala.Cr.App.1982). We stated:

“A Conviction of one charged in the indictment with having been the actual perpetrator of a crime is authorized on proof of a conspiracy or that the accused aided or abetted in the commission of the crime. Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950). An aider or abettor may be indicted directly with the commission of the substantive crime and the charge may be supported by proof that he only aided and abetted in its commission. Pope v. State, 365 So.2d 369 (Ala.Cr.App.1978).”

Any person who is present, encourages, aids, abets or assists another in any way, in the commission of a crime is equally as guilty as the one who directly commits the act, and the aider and abettor must be indicted, tried and punished as a principal. Griffin v. State, 26 Ala.App. 292, 158 So. 773 (1935), Stokley, supra.

A conspiracy is rarely proved by positive testimony. The jury must “determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case.” Stokley, supra. The function of this court is not to determine whether the evidence is believable beyond a reasonable doubt but to decide whether there is legal evidence from which a jury could by fair inference find the defendant guilty. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.1979).

A review of the record reveals that there was sufficient evidence to establish a prima facie case of appellant’s participation in the theft. The appellant’s own testimony shows that he did drive the actual per-pertrators of the theft to the scene of the crime. He admitted that he knew the goods were stolen when he took them to his brother’s and that he knew that the battery that he put in his car had been stolen by the two boys. Furthermore, the testimony of Shepherd was clearly sufficient to connect the appellant with the theft and to support his conviction.

For these reasons, we are of the opinion that there was sufficient legal evidence from which the jury could, by fair inference, find the appellant guilty as charged in this case. Therefore, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    N. B. WILLIS, Jr. v. STATE.
    1 Div. 439.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    S. J. Laurie, Chatom, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, N.B. Willis, Jr., filed a petition for a writ of habeas corpus in the Circuit Court of Washington County, Alabama, on May 20,1982. This appeal to this Court is from a judgment denying appellant’s discharge in the habeas corpus proceedings.

Code Of Alabama, 1975, Title 15-21-17 provides:

“When return to be made; form and contents of return.
“(a) After due service thereof, the person to whom a writ of habeas corpus is, directed must [emphasis supplied] make his return on the day therein specified if practicable; and, if no day is specified therein and the place to which the return is to be made is not more than 30 miles from the place where the party is imprisoned or detained, the return must be made within two days after service, but if more than 30 and less than 100 miles, within five days, and if over 100 miles, within eight days after service.
“(b) The return must [emphasis supplied] be signed by the person making it and be verified by his oath, unless he is a sworn public officer and makes the return in his official capacity, and it must state, plainly and unequivocally whether or not he has the party in his custody or power or under his restraint and, if so, by what authority and the cause thereof, setting out the same fully, together with a copy of the writ, warrant or other written authority, if any; and, if he has had the party in his custody or power or under his restraint at any time before or after the date of the writ but has transferred such custody or restraint to another, the return must [emphasis supplied] state to whom, at what time, for what cause and by what authority such transfer was made.”

We have searched the entire record in this case and do not find a copy of a return, or any indication from the other papers in the record that a return of any kind was ever made in the habeas corpus proceedings.

The trial court, in the absence of a return to the writ, has no way to determine the status of the appellant or the nature of the charge against him under which he is being held.

We hold that in the absence of a return to the writ of habeas corpus the record shows no error in the trial court’s ruling. Code of Alabama, 1975, Sec. 15-21-17; Bradley v. State, 274 Ala. 504, 149 So.2d 779; Pendry v. Shows, 87 Ala. 339, 6 So. 341.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur, except DeCARLO, J., who concurs in the result.