author: TYSON, Judge.

text:
    William Thomas ALLEN, alias v. STATE of Alabama.
    6 Div. 993.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.

      C. Delaine Mountain, of Crownover & Mountain, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

The indictment charged that “William T. Allen, alias William Thomas Allen [the appellant] unlawfully and with malice aforethought did assault Llewellyn Sanders with the intent to murder him.”

The appellant was tried by a jury and convicted of “assault with intent to murder, as charged in the indictment,” and sentenced by the trial court to 10 years’ imprisonment.

Early on Sunday, May 7,1978, at approximately 2:00 a. m., the appellant and several of his friends drove into a “convenience store” parking lot and asked the victim, Llewellyn Sanders, if he knew where they could buy some beer. Words were exchanged and a confrontation between the appellant and Mr. Sanders ensued, during which Mr. Sanders received a deep knife wound to the abdomen.

The facts surrounding the stabbing incident are in sharp conflict.

Mr. Sanders, the victim, testified that he told the appellant he could not buy beer on Sunday at which point the appellant exited his car, staggered toward him and sort of fell into him, stabbing Mr. Sanders in the stomach. Mr. Sanders explained that he never saw the appellant’s knife and that the whole incident took him by surprise. He also testified that he was unarmed.

The appellant and one of his passengers that night testified that the appellant merely defended himself when Mr. Sanders “cussed” the appellant and came toward him with a knife. Both of these defense witnesses were of the opinion that the stabbing was justified in self-defense. Neither, however, convincingly explained why appellant left his automobile in the first place, and why he did not return to the car when he saw the victim, allegedly, pull a knife.

The jury chose to believe the victim’s version of the facts as they returned a “guilty” verdict in this cause.

I

Appellant contends that the trial court erred in refusing three of appellant’s written requested jury charges:

“1. You are instructed that the law permits a person to use that amount of force which is necessary under the circumstances for the protection of his life.”
“2. The degree of force which may lawfully be used varies with the situation of the parties and with the circumstances of each case.”
“7. The burden is never upon the Defendant to prove each element of self-defense beyond a reasonable doubt. Smith v. State, 340 So.2d 84 (Ala.[Cr.]App. 1976).”

We are not required to review the merits of appellant’s assertions on this appeal because in Alabama there is no longer an “automatic exception” to the trial court’s refusal of a written requested jury charge and the appellant did not reserve any exceptions at the trial level.

The rule that an exception to a refused charge is automatic such that review might be had of an alleged error in the trial court’s refusal without reserving an exception in the trial court was apparently the law from the 1894 Code up, at least, until passage of the 1975 Code. This “automatic exception” was clearly authorized in Title 7, § 818, Code of Alabama 1940, which states:

“It is not necessary for a party to except to the ruling of the court in giving or refusing a charge requested in writing, nor need the bill of exceptions state that exception was reserved thereto; if the charge is refused, an exception by the party asking is presumed, and if the charge is given, an exception by the other party is presumed; and such charge, and the ruling of the court thereon, may be, by the party in whose favor such exception is presumed, assigned as error on appeal, and when so assigned, the appellate court must review and consider the same in all respects as if exception had been expressly reserved upon the trial of the cause.”

This rule was also referred to in Title 7, § 273, Code of Alabama 1940, as follows:

“It shall not be necessary to set out the charges in the bill of exceptions or state therein that an exception was reserved to the giving or refusing of charges requested, but it shall be presumed that each charge was separately requested and a separate exception reserved as to the giving or refusal thereof. Every general charge shall be in writing or be taken down by the court reporter as it is delivered to the jury. (1915, p. 815)”

The 1975 Code, however, conspicuously omitted any reference to the “automatic exception” in the body of the Code. The 1975 Code does not contain a section corresponding to Title 7, § 818, Code of Alabama 1940.

Moreover, § 12-16-13, Code of Alabama 1975, which corresponds to Title 7, § 273, Code of Alabama 1940, is a word for word transcription of the earlier section, except that it leaves out the next to the last sentence (quoted above) which makes reference to the “automatic exception.”

In fact, the only reference made to the “automatic exception” is in the Committee Comments to A.R.C.P., Rule 51, which is referenced in the Code Commissioner’s note following § 12-16-13.

Rule 51, which is specifically applicable only to civil cases states in pertinent part that:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.” (Emphasis added.)

The rationale for the change in civil cases back to a required exception to the trial court’s refusal of written charges is carefully explained in the Committee Comments to Rule 51 as follows:

“Former practice was regulated by Tit. 7 §§ 270-74, 818, Code 1940. Under these statutes certain anomalous situations existed which are now eliminated. For example, Tit. 7, § 818, Code 1940, gave automatic exceptions to adverse rulings on requested written charges. This permitted a party to sit silently as an erroneous charge was given or a meritorious charge was refused after the court had sifted through numerous charges submitted by the parties. Should the court fail to cover the error in its oral charge, counsel could thereby preserve appellate relief in the event the jury verdict was unsatisfactory. Under this rule the party must, as a condition to the right to assert error on appeal, object and state grounds therefor before the jury retires ...
“Obviously, the automatic exception rule of Tit. 7, § 818, Code 1940, put the court at a great disadvantage .. . Since Rule 51 removes the disadvantage placed upon the trial court in the elimination of the automatic exception, the line of cases developing the countervailing technical requirements are no longer applicable.”

The legislative intent in omitting reference to an “automatic exception” in criminal cases is unclear, but certainly the rationale for eliminating the “automatic exception” in civil cases applies with equal force in criminal cases.

It is, therefore, our conclusion that the “automatic exception” to refused requested written charges no longer exists.

The proper procedure for preserving the right to assert error on appeal is for the affected party to object and state his grounds before the jury retires, just as is done for alleged errors in the trial court’s oral charge.

The primary reason for requiring an exception after the trial court’s oral charge and before the jury retires is that such requirement might expedite a satisfactory conclusion of the case. Possible errors by the trial court such as inadvertent omissions in its oral charge or refusals of written charges which deal with crucial issues should be brought to the attention of the trial court so that it might cure such errors at that level. This would only improve a defendant’s chances for a favorable verdict. Also, if counsel are encouraged to question the trial court’s refusal of their written charges at the trial level, they might be allowed to correct charges with spelling errors, typographical errors, and misstatements of the law, charges which are currently losers at the appellate level.'

Surely, the elimination of the “automatic exception” rule would only enhance the appellant’s right to a “speedy trial” by encouraging more error resolution at the trial level.

To those who would argue that the elimination of the “automatic exception” places an added burden on trial counsel, we need only point out that that is exactly where the burden belongs. Trial counsel should be encouraged to resolve issues at the trial level, thereby avoiding frivolous appeals and expediting the completion of their clients’ cases.

Although the alleged errors in refusing the appellant’s three requested written charges are argued in this court by the appellant, such are not properly before us as herein noted. We, nevertheless, point out that the applicable principles of law governing this self-defense issue were substantially, adequately, and fairly covered in the trial court’s oral charge. (R. 143-149). Section 12-16-13, Code of Alabama 1975; Smith v. State, 47 Ala.App. 513, 257 So.2d 372 (1972); Mitchell v. State, 53 Ala.App. 58, 297 So.2d 383, cert. denied, 292 Ala. 742, 297 So.2d 388 (1974).

The “burden of proof” for appellant’s self-defense claim was properly explained by the trial court. (R. 143 and 146). Authorities cited.

For the reasons shown, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.

BOOKOUT, J., concurs in result only.

      . Tit. 12-16-13, Code of Alabama 1975, reads as follows:
      “Charges moved for by either party must be in writing and must be given or refused in the terms in which they are written, and it is the duty of the judge to write ‘given’ or ‘refused,’ as the case may be, on the document and sign his name thereto, which thereby becomes a part of the record. Charges which are marked ‘given’ by the trial judge must be taken by the jury with them on retirement, and those ‘refused’ must be retained by the clerk. The court shall, after the conclusion of his charge to the jury, read such written charges as he has given for the parties in a clear and audible voice, saying to the jury, ‘these are instructions given you by the court at the request of the plaintiff or defendant, as the case may be, and are correct statements of the law to be taken by you in connection with what has already been said to you.’ The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general charge or in charges given at the request of parties. In case of appeal, the charges must be set out in the record on appeal in the following manner:
      (1) The charge of the court;
      (2) The charges given at the request of the plaintiff or the state;
      (3) The charges given at the request of the defendant; and
      (4) The charges refused to the appellant. “Every general charge shall be in writing or be taken down by the court reporter as it is delivered to the jury. (Code 1852, § 2355; Code 1867, § 2756; Code 1876, § 3109; Code 1886, § 2756; Code 1896, § 3328; Code 1907, § 5364; Acts 1915, No. 716, p. 815; Code 1923, § 9509; Code 1940, T. 7 § 273.)”


source: Caselaw Access Project

author: MADDOX, Justice. TORBERT, Chief Justice

license: Public Domain

text:
    Ex parte: William Thomas ALLEN. (In re William Thomas ALLEN v. STATE of Alabama).
    81-340.
    Supreme Court of Alabama.
    June 4, 1982.
    C. Delaine Mountain of Crownover & Mountain, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.
   MADDOX, Justice.

This Court granted defendant’s petition for certiorari in order to review his claim that the Court of Criminal Appeals erred in holding that there is no longer an “automatic exception” to a trial court’s refusal of a written requested jury instruction. After reviewing the reasons stated in the opinion of the Court of Criminal Appeals, 414 So.2d 989, we are of the opinion that the judgment entered by that court is due to be affirmed.

The “automatic exception” statute was first adopted as a rule of practice in both civil and criminal cases on December 17, 1894. Act No. 74, Acts of Alabama, 1894-5, p. 126, reads as follows:

“AN ACT
“To regulate exceptions to the giving or refusal of charges asked in writing and to give effect thereto.
“Section 1. Be it enacted by the General Assembly of Alabama, That on all trials of civil or criminal actions at law it shall not be necessary for the party asking a charge, in writing to except to its refusal, nor for the opposite party to except, to its being given; but such exception by the party asking the charge in writing shall be presumed, if. the charge is refused; and an exception by the opposite party shall be presumed if such charge is given, and in bills of exceptions said charges need not be stated as having been excepted to, but the supreme court must review and consider said charges and rulings as if they were separately and severally excepted to, provided the actions and rulings of the trial court are assigned as error in the supreme court.
“Approved December 17th, 1894.”

Act No. 74 was codified in subsequent Alabama Codes in substantially the same language as appears in the act. The rule was carried in the 1940 Alabama Code and the 1958 Recompiled Code as Title 7, Sections 273 and 818.

This Court, when it adopted the Alabama Rules of Civil Procedure in 1973, superseded the automatic exception statute in civil cases. The “automatic exception” statute, nevertheless, still applied in criminal cases, but when the legislature, in its wisdom, adopted Code 1975, § 12-10-13, it dropped the automatic exception provision. In view of this legislative action, what rule would apply? The old Alabama rule in existence prior to adoption of Act No. 74. What was that rule? It is succinctly stated in Whitaker v. State, 106 Ala. 30 (1894), at page 34,17 So. 456, as follows:

“It is stated in the bill of exceptions, that exceptions were not reserved to the giving or refusal of the instructions which are introduced into it. Prior to the recent statute, approved December 17th, 1894, the rule prevailing in this State was, that exceptions to instructions given or refused, must have been reserved before the retirement of the jury. The statute has changed the rule, and now, under its provisions, when the instructions are in writing, an exception is presumed, at the instance of the party asserting error, in the giving or refusal of them. The trial in the court below was had after the change of the statute, and the correctness of the instructions is open for revision, as it would have been formerly had exceptions been reserved before the retirement of the jury.”

The Alabama rule in existence prior to the enactment of the “automatic exception” statute was consistent with the rule announced in Phelps v. Mayer, 14 How. 160, 14 L.Ed. 643 (1853), where the Court held:

“It has been repeatedly decided, by this court, that it must appear by the transcript, not only that the instructions were given or refused at the trial, but also that the party who complains of them excepted to them while the jury were at the bar. The Statute of Westminster 2d, which provides for the proceeding by exception, requires, in explicit terms, that this should be done; and if it is not done, the charge of the court, or its refusal to charge as requested, form no part of the record, and cannot be carried before the appellate court by writ of error. It need not be drawn out in form and signed before the jury retire; but it must be taken in open court, and must appear, by the certificate of the judge who authenticates it, to have been so taken.
“Nor is this a mere formal or technical provision. It was introduced and is adhered to for purposes of justice. For if it is brought to the attention of the court that one of the parties excepts to his opinion, he has an opportunity of reconsidering or explaining it more fully to the jury. And if the exception is to evidence, the opposite party might be able to remove it, by further testimony, if apprised of it in time.
“This subject was fully considered in the case of Sheppard v. Wilson, 6 How. [260] 275 [12 L.Ed. 430], where the cases previously decided in this court, affirming the rule above stated, are referred to.” [Emphasis supplied.]

The old Alabama rule is consistent with modern procedural rules in such matters. See Alabama proposed Rule 21.3; Federal Rule 30; U.R.C.P. 523(b), (e) and (f), and Rules of Criminal Procedure adopted by several states.

Because the automatic exception provision has been eliminated from the 1975 Code, it is our considered opinion that the Court of Criminal Appeals was not required to notice any alleged error or defect in this criminal proceeding, which was under review unless the alleged error or defect was brought to the attention of the trial court. It is only in death cases that the automatic exception has been preserved. Rule 45A, A.R.A.P., provides:

“In all cases in which the death penalty has been imposed, the court of criminal appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

The old Alabama rule which required a party to object (and except) to the failure of the trial court to give a written requested instruction was not “a mere formal or technical provision.” As the United States Supreme Court held in Phelps v. Mayer, supra, “[i]t was introduced and is adhered to for purposes of justice.”

Contemporaneously with the release of this opinion, this Court has adopted a temporary rule of criminal procedure, Temporary Rule 14, which will harmonize the procedure regarding instructions in both civil and criminal cases. A copy of Temporary Rule 14 is attached as “Appendix A” to this opinion. Temporary Rule 14 will be effective July 16, 1982.

The judgment of the Court of Criminal Appeals is due to be affirmed.

AFFIRMED.

JONES, ALMON, SHORES and ADAMS, JJ., concur.

TORBERT, C. J., dissents with opinion, in which FAULKNER, EMBRY and BEAT-TY, JJ., concur.

“APPENDIX A”

TEMPORARY RULE 14. INSTRUCTIONS TO THE JURY; OBJECTION

At the close of the evidence or at such other time during the trial as the court reasonably directs, either party may file and, in such event, shall serve on the opposing party, written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. The judge shall write on each request “given” or “refused,” as the case may be, and the request shall thereby become a part of the record. Each request marked “given” shall be read to the jury without reference as to which party filed the request. Neither a copy of the charges against the defendant nor the “given” written instructions shall go into the jury room; provided, however, that the court may, in its discretion, submit the charges to the jury in a complex case. Every oral charge shall be recorded by the court reporter as it is delivered to the jury. The refusal of a requested written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge or in other charges given at the request of the parties. No party may assign as error the court’s giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Submission of additional explanatory instructions shall not be required unless requested by the court. Opportunity shall be given to make the objection out of the hearing of the jury. In charging the jury, the judge shall not express his opinion of the evidence.

COMMENT

Temporary Rule-14 is taken almost verbatim from Rule 51, Alabama Rules of Civil Procedure. It supersedes those portions of § 12-16-13, Code 1975, which required that given written requested charges be taken by the jury with them on retirement for deliberations and that the judge identify the party requesting each given charge.

By adopting the policy of the civil rule, Temporary Rule 14, in allowing an opportunity for objection “out of the hearing of the jury,” changes the prior criminal practice which required that an objection to an oral charge be made in the presence of the jury. See Pinkard v. State, 405 So.2d 411 (Ala.Cr.App.1981), and Hand v. State, 385 So.2d 652 (Ala.Cr.App.1980).

Further, this rule, by requiring that any objections to the court’s giving or refusing to. give a particular charge be stated “before the jury retires to consider its verdict,” clearly allows no “automatic exception.” See the case of Allen v. State [Ms. 6 Div. 993, Nov. 24, 1981], 414 So.2d 989 (Ala.Cr.App.1981), aff’d. 414 So.2d 993 (Ala.1982).

This rule is not intended to affect § 12-16-11, Code 1975, providing that the judge may state to the jury the evidence when it is disputed, but that he “shall not charge upon the effect of the testimony, unless required to do so by one of the parties.”

Under this rule the ordinary procedure should be that the jury will not take with it a copy of the charges against the defendant; nevertheless, the rule recognizes that in a complex case having a copy may help the jury to understand and determine the issues. The rule, therefore, allows the judge the discretion to give the jury a copy of the charges when he feels it would be helpful to do so.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent. While it is true, as stated by the majority that the reference to the automatic exception was omitted from Code 1975, § 12-16-13, a review of the legislative history surrounding that and other sections fails to demonstrate an intent on the part of the Legislature to abolish the automatic exception rule in criminal cases.

The Preface to Code 1975 states the procedures and objectives of the Code Revision Subcommittee. While I recognize that the Preface is not part of the statutory law of this state, it is nevertheless helpful in explaining the intent of the Legislature in enacting Code 1975. The Preface states in pertinent part:

“The Code Revision Subcommittee proceeded in its work on the basis that its primary purpose was to produce a Code containing a correct statement of Alabama law as enacted by the Legislature, and not to revise the substance of the law. However, more than thirty-five years had passed since the last comprehensive review of the Code. And in that period of time, conflicts and duplications had developed within the Code, cases decided by the United States and Alabama Supreme Courts had altered or rendered invalid provisions of the Code, new rules of practice and procedure had been promulgated by the Alabama Supreme Court, an entirely new unified court system had been established and many changes had occurred within the administrative divisions of the government of the state. These circumstances made some revision inevitable. But the policy of the subcommittee was to preserve where possible, revise and clarify only where necessary and delete only those provisions which were obsolete or invalid.”

Title 7, § 818, Code 1940 was part of Chapter 17 of Title 7 (§§ 817-827) entitled “Bill of Exceptions.” With the adoption and promulgation of the Alabama Rules of Appellate Procedure, bills of exceptions were eliminated. Code 1975 explains that ARAP Rules. 10, 20, and 51 have materially altered these sections so that they have become obsolete. Likewise, notes of the Code Revision Subcommittee submitted to the Legislature state, under the heading “Sections Not Codified,” that § 818 was not to be made a part of Code 1975 because it was obsolete. Section 818 was treated as part of the chapter on bills of exceptions, which was entirely deleted from the 1975 Code. Thus, the logical explanation for the deletion of § 818 is that it was a part of the bills of exceptions chapter, which was deleted in its entirety as a result of the adoption of the Alabama Rules of Appellate Procedure.

Section 273 of Title 7 of the 1940 Code was replaced by Code 1975, § 12-16-13. Two changes were made in the new section. The phrase “record on appeal” was substituted for the word “transcript,” and the next to last sentence, which states “It shall not be necessary to set out the charges in the bill of exceptions or state therein that an exception was reserved to the giving or refusing of the charges requested, but it shall be presumed that each charge was separately requested and a separate exception reserved as to the giving or refusal thereof,” was deleted. Questions posed by the Code Commissioner to the Code Revision Subcommittee and the Subcommittee’s response clearly imply that the automatic exception was to be retained and that any changes made related to bills of exceptions. Question 45 of Memorandum No. 53 posed:

“45. Title 7, § 273:
(a) Should ‘transcript’ in line 18 be changed to ‘record on appeal’ (Note Rule 10, ARAP)?
(b) Should next to last sentence be deleted as record on appeal does not include a bill of exceptions anymore (See Rules 10(a) and 10(c), ARAP)?”
The Subcommittee’s reply stated:
“45(a). Yes.
(b). Yes.
(c). Section shall be retained for applicability to criminal and probate proceedings, (Superceded for civil cases Alabama Rules of Civil Procedure.”
Question 3 asked:
“3. Suggest transfer of [section 273] to new title 15 on Criminal Procedure as to civil practice (See Appendix II ARCP), but which ought to be retained for criminal procedure .... ”

The response of the Subcommittee stated that the section should be retained as suggested. These questions and responses show the concern of the Legislature as to retaining the provision for use in criminal cases. The intent in changing or deleting these sections was not “unclear,” as stated by the Court of Criminal Appeals, but was apparent, because they dealt with bills of exceptions, which were superseded by the ARCP.

While it is clear that the Code Revision process sought to change the statutes to eliminate the superseded sections on bills of exceptions and to change the wording from “transcript” to “record on appeal,” the fact that the language providing for an automatic exception was part of these sections did not mean that the Legislature intended to eliminate the automatic exception for criminal cases. The Code Commissioner’s note following § 12-16-13 provides further evidence of this and states: “The section is superseded by A.R.C.P., Rule 51, as to civil proceedings, but has been retained for applicability in criminal or probate proceedings.”

Cases decided since the enactment of Code 1975 have also recognized that the automatic exception is still in effect for criminal cases. In Hamilton v. City of Birmingham, 396 So.2d 120 (Ala.Cr.App.1980), reversed on other grounds, 396 So.2d 123 (Ala.1981), the Court of Criminal Appeals, quoting Smith v. State, 53 Ala.App. 657, 303 So.2d 157 (1974), stated:

“ ‘[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.... [I]f 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. ‘A failure to pursue [this remedy], if proper and applicable to the case, is a waiver of a review by this court as to the matters in question.’ ”

396 So.2d at 122. Likewise, in Roy v. State, 375 So.2d 1289 (Ala.Cr.App.1979), the Court of Criminal Appeals held:

“The defendant properly preserved the error by requesting the written charge. Smith v. State, 53 Ala.App. 657, 659, 303 So.2d 157 (1974). An exception to the failure of a court to charge on a matter is not necessary where a requested written charge is refused. An exception reaches only what the court did say. Grisham v. State, 147 Ala. 1, 41 So. 997 (1906). The fact that defense counsel announced ‘satisfied’ with what the trial court did say in its oral charge cannot be construed as a waiver of the judge’s refusal to give a requested written instruction.”

I believe that any changes made in the automatic exception as applied to criminal cases should be made by the Legislature or by the Court in the proper exercise of its rule making power. Until a new rule is promulgated, or until the Legislature specifically acts on this question, this Court should not eliminate the use of the automatic exception in criminal cases. For these reasons, I must dissent from the holding of the majority, and I would reverse the judgment of the Court of Criminal Appeals.

FAULKNER, EMBRY and BEATTY, JJ., concur.


text:
    Frank Larry DICKERSON v. STATE of Alabama.
    7 Div. 902.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.

      Ralph L. Brooks, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Frank Larry Dickerson was indicted by the March, 1981, Session of the Calhoun County Grand Jury for trafficking in cannabis contrary to § 20-2-80(l)(a), Code of Alabama 1975 (Supp.1981). A mistrial was declared in appellant’s first trial. He was retried on September 28 and 29, 1981, with the jury finding him guilty as charged. He was sentenced to five years’ imprisonment and assessed a fine of $25,000.00. From that conviction he now appeals.

Around 6:15 p.m. on Saturday, November 15, 1980, District Investigator Charles Winfrey, along with several members of the Anniston Police Department, executed a nighttime search warrant at the residence of appellant in Anniston. Appellant was present during the search which produced, from a closet of a rear room, a large plastic bag containing eleven smaller bags of cannabis. Their total weight was 8.47 pounds. Also found were several items of drug paraphernalia and two smaller bags of marihuana.

Anniston Police Officer Michael Hembree procured the instant search warrant based upon his sworn affidavit. This affidavit contained information given to him from a reliable confidential informant. Officer Hembree testified that he found the cannabis in the rear of the house. The informant had told Hembree that only hours before he had seen the cannabis moved from that area of the house.

Appellant, after being shown the cannabis, was arrested and given his Miranda warnings. He stated to the police that “it wasn’t really his stuff, that he was keeping it for somebody else and it was just brought there that day.” (R. 21).

A more detailed narration of the facts is unnecessary as the pertinent portions thereof will be discussed in conjunction with appellant’s issues.

I

Appellant contends that the state failed to prove that he was in possession of more than 2.2 pounds of cannabis. He does not contend that he was not in possession of the controlled substance, but rather that the state failed to prove that he possessed a quantity sufficient to come under the purview of § 20-2-80(l)(a).

In support of its contention that it had sufficiently proved the requisite quantity of cannabis, the state offered the testimony of Anniston Police Lieutenant Richard Towns-ley, supervisor of the Anniston Police Crime Laboratory.

After being duly qualified, to which no objection was taken, Townsley testified that he received one garbage bag containing eleven plastic bags of plant material. A smaller quantity of plant material was also received but was not commingled with that taken from the garbage bag. Townsley weighed the plant material from each of the eleven bags, totaled their weights, and found the total weight of the plant material to be 8.47 pounds. Townsley testified that he did not separate the seeds, which were scattered throughout the plant material, prior to weighing it. Nor did he know whether they were capable of germination. He testified that in order to determine the sterility of a seed, he would “take all the seeds from the sample, that would just take hundreds of man-hours to do that. We would create a proper environment free of any other seed material, and under controlled conditions would attempt to grow one of the seeds. And when we grew one of the seeds, and it germinated, I guess that would satisfy that requirement. We’ve never done that and I don’t know that anybody else has ever gone to that extreme.” (R. 52). He stated that such would have to be done to the thousands of seeds contained in the plant material. Townsley stated that as far as he knew, a sterile seed had the same appearance as a fertile seed. He stated that no tests were run on the seeds to determine their fertility and germinating capabilities. Townsley testified that the plant material also contained seed fragments.

Townsley testified that he did not remove any stems from the plant material stating, “there was not anything in there that was big enough to separate from.” He stated that the plant material contained “stems in there, but what comes off of the shaft, the trunk of a plant, up to the leaf might be construed as a stem.” He continued, “I’m not a botanist, so what’s between a leaf and what-what might still be considered a part of the leaf, and what could be more of a stem, and yet not be the stalk-who’s to say?” (R. 47). Townsley testified that he did not find a considerable or abnormal number of stems in the plant material, but some of the individual bags contained more than others. While no testimony was elicited concerning whether the plant material contained any mature stalks, it indicates that the plant material contained none.

Townsley, terming his opinion merely a guess, stated that the plant material would meet the requisite weight requirement of the instant offense with any and all objec-tional matter excised therefrom. He testified that he did not know if there was a difference between marihuana and cannabis. However, he stated that THC or tetrahydrocannabinol was the illegal chemical contained in the plant material. Townsley opined that the plant material was “cannabis marihuana.”

Section 20-2-80(1) does not define the term “cannabis.” However, in § 20-2-112(2), Code of Alabama 1975 (Supp.1981), cannabis is defined for purposes of the Controlled Substance Therapeutic Research Act, § 20-2-110 et seq. Code of Alabama 1975 (Supp.1981), as follows:

“Cannabis. The same as those substances defined in subdivision (15) of section 20-2-2, as amended, and particularly those substances defined as tetrahydrocannabi-nols, or a chemical derivative thereof;”

To follow such an approach in defining cannabis for the purpose of § 20-2-80(1) would be consistent with how the legislature defined the other substances controlled under our trafficking statute, §§ 20-2-2(16), (17), -25(1), Code of Alabama 1975, and the definition of cannabis used in the Theraputic Research Act. It would also conform with existing case law. Beasley v. State, 408 So.2d 173 (Ala.Cr.App.1981), cert. denied, 408 So.2d 180 (Ala.1982); Sharpe v. State, 384 So.2d 633 (Ala.Cr.App.1980); Radney v. State, 342 So.2d 942 (Ala.Cr.App.1976), cert. denied, 342 So.2d 947 (Ala.1977); Smith v. State, 335 So.2d 393 (Ala.Cr.App.), cert. denied, 335 So.2d 397 (Ala.1976); McKenzie v. State, 57 Ala.App. 69, 326 So.2d 135 (1976); Hill v. State, 56 Ala.App. 369, 321 So.2d 708, cert. denied, 295 Ala. 405, 321 So.2d 713 (1975); Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied, 294 Ala. 758, 312 So.2d 414 (1975); Peppers v. State, 53 Ala.App. 695, 304 So.2d 39, cert. denied, 293 Ala. 770, 304 So.2d 43 (1974).

Thus, we consider the definition of cannabis as used in § 20-2-80(1) the same as the definition of marihuana found in § 20-2-2(15), Code of Alabama 1975.

Section 20-2-2(15) defines marihuana as: “Marihuana. All parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Such term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of germination.” (Emphasis added.)

As shown above certain portions of marihuana are excluded from control. Specifically, those portions excluded are the mature stalks and derivatives thereof, certain products derived from the plant seed, and the sterilized seed of the plant which is incapable of germination. In the instant case, it is clear that no mature stalks were present in the marihuana. However, from Townsley’s testimony, it is plain that it contained seeds and branches of the plant, although he referred to the latter as stems.

It is well established that the burden is upon the appellant to establish and bring himself within any exclusion which is found not in the enacting clause defining a crime but rather in a subsequent clause or statute. Specifically, he must establish that the marihuana seized from his residence contained excludable matter falling within the definition of such under § 20-2-2(15). See Hall v. State, 291 Ala. 397, 281 So.2d 662 (1973); Peppers, supra; State v. Buchman, 361 So.2d 692 (Fla.1978); State v. Carter, 214 Kan. 533, 521 P.2d 294 (1974); State v. Brothers, 212 Kan. 187, 510 P.2d 608 (1973); State v. Dixon, 546 S.W.2d 774 (Mo.App.1977); Elkins v. State, 543 S.W.2d 648 (Tex.Cr.App.1976). 1 Underhill’s Criminal Evidence § 54 (6th ed. 1973); 1 Wharton’s Criminal Evidence § 20 (13th Ed. 1972). See also Cockrell v. State, 392 So.2d 541 (Ala.Cr.App.1980), cert. denied, 392 So.2d 545 (Ala.1981); Lee v. State, 350 So.2d 743 (Ala.Cr.App.1977).

Thus, the question becomes whether appellant sufficiently established that portions of the cannabis seized were within the exclusions of § 20-2-2(15).

A

Thé evidence is clear that appellant only established that the cannabis contained seeds. He did not establish that they were the type of seed excluded, that being sterilized seeds.

In the context of the instant case, sterile means incapable of germinating, while sterilized means to have caused to become sterile, barren, or unproductive so as to deprive (the seed) of the power of reproducing— make incapable of germination or fecundation. Webster’s Third New International Dictionary, page 2288; Volume X, The Oxford English Dictionary, pages 926-27, (1961). (Emphasis added). Consequently, the term sterile connotes a natural or organic inability to reproduce or germinate, while the term sterilized denotes an artificial process utilized to effect a sterile state or condition.

Under § 20-2-2(15), seeds are not excluded from the definition of marihuana unless they are sterilized. See generally, State v. Zeiter, 119 Ariz. 193, 580 P.2d 331 (1978). The burden of establishing such is upon appellant. Having failed to do so, we find that inclusion of the seeds for weighing purposes was not error. Thus, denial of his motions to suppress and exclude the state’s evidence on this ground is without error. See generally, People v. Atchley, 97 Ill.App.3d 85, 52 Ill.Dec. 585, 422 N.E.2d 266 (1981).

B

Next, we must determine whether it was proper for the state to have included the branches found in the cannabis for weighing purposes.

Section 20-2-2(15) excludes the mature stalks of the marihuana plant from control. Nowhere does it use the term stem or branch. However, it is clear that the terms stalk and stem refer to the same portion of the plant, namely the main body or ascending axis of the plant which supports the secondary branches, leaves, and fruit. Webster’s Third New International Dictionary pages 2221, 2235 (1971); Volume X, The Oxford English Dictionary pages 783, 909 (1961).

The word branch has been defined as “to branch off or out of; offshoots springing out of or from the main body.... ” Davis v. Jones, Tex.Civ.App., 116 S.W.2d 461 (1938). More specifically, it has been defined as “... a shoot or secondary stem growing from the main stem,” Webster’s Third New International Dictionary page 267 (1971), or “a portion or limb of a tree or other plant growing out of' the stem or trunk, or out of one of the boughs,” which “... is understood to be smaller than a bough and larger than a shoot or spray.” Volume I, The Oxford English Dictionary page 1052 (1961). Thus, a branch of a plant is a subdivision of the ascending axis or stem or stalk which supports other aerial portions of the plant. By definition, it is not a stem or stalk, regardless of its maturity and similarity of structure, composition, or purpose.

The discussion attending the adoption of the now repealed Marihuana Tax Act of 1937, ch. 553, 50 Stat. 551 (1937) (codified at 26 U.S.C. § 4741 et seq. (1964)), where the definition of marihuana now embodied in § 20-2-2(15) was first used by the federal government, sheds some light as to the reasons why portions of the marihuana plant were excluded from control. A close reading of the House and Senate debates on the Act as well as the extension of remarks indicates that several legitimate commercial uses existed for certain portions of the marihuana plant including, “... the extraction of oil from the seeds, which is used in the manufacture of paint and varnish; and the production of hemp fiber from the mature stalks, which is manufactured into twine. Cattle feed and fertilizer are also manufactured from the residue of the seed, and the seed itself is mixed with other seeds, as birdseed.” H.R.Rep.No.6906, 75th Cong., 1st Sess. 1440 (Appendix 1937). (Emphasis added). See H.R.Rep.No.6906, 75th Cong., 1st Sess. 5689-90 (1938); See generally, Cohrssen and Lieberman, Cannabis: A Forensic-Medical Review, 1 Drug Abuse L.Rev. 86 (1971).

' The Senate amendments to the definition of marihuana clearly evidence its intent to exclude from control, inter alia, those portions of the mature stalk capable of producing fiber for use in the production of twine or rope. H.R.Rep.No. 6906, 75th Cong., 1st Sess. 7398 (1937).

Thus, the intent of Congress in excluding certain portions of the marihuana plant from control was to protect those legitimate interests which used those portions in their business, field of trade, or research. More specifically, Congress intended to exclude from control only the mature stalk of the marihuana plant rather than the mature stalk and its botanical subdivisions as it was a source of fiber for the production of twine and rope and thus had a recognized and proven commercial use.

Numerous sources support the above conclusion. A synthesis of those sources reveals that the male cannabis plant has the most commercial utility for the production of hemp. It is more slender and less heavily branched than the female cannabis plant. Depending upon soil, climate, and variety it can vary in size from three to four to 15 or 20 feet. Both manual and mechanized means of harvesting are used as well as natural or “dew-retting” and artificial or “water-retting.” “The cells which produce the fibre of commerce are formed in the stems (stalk) between the cambium and the epidermis, and specifically occur in the phloem and pericycle. In other words, the fibre is in that part of the stem (stalk) which is commonly called bark.” Volume 11, Encyclopedia Britannica, pp. 421-22 (1963). (Parentheticals added).

In order to produce the long fibers which may be anywhere from three to nine feet long, the plant is prepared for processing by stripping of leaves and flowers. Volume 14, Encyclopedia Americana, pp. 87-88 (1980). While shorter fibers are commercially used, they are derived from waste fibers of the original fibers obtained from the stems or stalks. Id., see generally S. H. Curry and C. R. B. Joyce, The Botany and Chemistry of Cannabis. Williams and Wilkins Company, Baltimore (1970); Volume IV, The New Encyclopedia Britannica Micropaedia, p. 1016 (1974); Volume 11, The New International Encyclopedia, pp. 131-32 (2nd ed. 1915); Volume XIII The Encyclopedia Britannica, pp. 263-64 (11th ed. 1910).

Consequently, our legislature in adopting § 20-2-2(15) did not intend to exclude the branches of the marihuana plant from control. While it may be that fiber obtained from a processed branch and stalk is indistinguishable (although we have found nothing to either support or contradict such a conclusion), see Purifoy v. State, 359 So.2d 446 (Fla.1978), the intent of the legislature in adopting § 20-2-2(15) was to exclude only the mature stalk from control for the obvious reason that it held commercial utility. The noticeable lack of discussion concerning the commercial use of the branch convinces us that it was not intended to be excluded with the mature stalk. To do so would result in an exclusion by implication, something we are convinced the legislature did not intend.

Thus, it was proper for the branches to be included for weighing purposes as they are not excluded under § 20-2-2(15). Consequently, a prima facie case of trafficking in cannabis was proven by the state and the trial court properly denied appellant’s motions to suppress and exclude the state’s evidence on this ground.

II

The state fully established that appellant was in actual or consecutive possession of the cannabis. It was seen by the confidential informant in the living room of appellant’s residence only four hours before seizure. In addition, appellant, after being arrested and given his Miranda rights, admitted possession to the police but denied ownership. Thus, denial of his motion to exclude the state’s evidence on this ground was proper. Beasley, supra; Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d 725 (Ala.1981). See also Green v. State, 384 So.2d 1215 (Ala.Cr.App.1980).

III

Appellant contends that § 20-2-80(1) is unconstitutional as it provides for no maximum sentence. Consequently, he argues that it is unconstitutionally vague and indefinite, and runs afoul of the doctrine of separation of powers expressed in Article III, § 43 of our constitution.

A

In several instances, statutes with similar sentencing schemes as § 20-2-80(1), have been determined not to be constitutionally infirm as too vague or indefinite. United States v. Hayes, 589 F.2d 811 (5th Cir. 1979); United States v. Kuck, 573 F.2d 25 (10th Cir. 1978); Earin v. Beto, 453 F.2d 376 (5th Cir. 1972); Binkley v. Hunter, 170 F.2d 848 (10th Cir. 1948), cert. denied, 336 U.S. 926, 69 S.Ct. 645, 93 L.Ed. 1087 (1949); United States v. Greene, 510 F.Supp. 128 (E.D.Pa.1981); Western Union Telegraph Co. v. State, 82 Ark. 309, 101 S.W. 748 (1907); Sweigart v. State, 213 Ind. 157, 12 N.E.2d 134 (1938); see generally United States v. Jones, 540 F.2d 465 (10th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977).

Unless there exists some constitutional or statutory limitation, the sentencing power under these statutes rests within the sound discretion of the trial court. In the instant case, § 20-2-80(1) sets no limitation on the maximum sentence that may be imposed. However, Article I, § 15 of the 1901 Alabama Constitution expressly limits the infliction of excessive fines and cruel and unusual punishment. Consequently, the limitation upon the trial court in sentencing under § 20-2-80(1) would be that of § 15, supra, as well as the Eighth Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment. Therefore, the punishment inflicted under § 20-2-80(1) must not be grossly disproportionate to the severity of the crime, or be shocking to the sense of justice or the conscience of reasonable persons, or outrage the moral sense of the community. For objective criteria in applying the proportionality principle, see Wanstreet v. Bordenkircher, 276 S.E.2d 205 (W.Va.1981). Even a maximum sentence of life imprisonment for conviction of a drug offense has been held not violative of the Eighth Amendment. People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975); State v. Terrebonne, 364 So.2d 1290 (La.1978); Opinion of the Justices, 378 Mass. 822, 393 N.E.2d 313 (1979); People v. Eason, 40 N.Y.2d 297, 386 N.Y.S.2d 673, 353 N.E.2d 587 (1976); People v. Molinares, 110 Misc.2d 1079, 443 N.Y.S.2d 593 (1981); People v. Johnson, 79 A.D.2d 617, 433 N.Y.S.2d 477 (1980).

Consequently, we find § 20-2-80(1) not unconstitutionally vague or indefinite as to its sentencing scheme or violative of the separation of powers doctrine of § 43, supra.

B

The Alabama Trafficking Statute of which § 20-2-80(1) is a part was enacted after the effective date of our new criminal code. Consequently, appellant argues that the trafficking statute must be held void as it does not conform to the punishment and sentences chapter of the new criminal code. § 13A-5-1 et seq., Code of Alabama 1975 (Amended 1977). We disagree.

A close reading of the commentaries following sections 13A-5-1, -3, and -4 reveals that the legislature, in enacting new laws under Title 13A, must conform their punishments and sentences to the provisions of Chapter 5 thereof. However, they make clear that for penal statutes enacted outside the scope of Title 13A, such is merely “desirable.” They specifically note that drug offenses fall outside the scope of Title 13A and provide for their own special penalties.

Thus, it is apparent, § 13A-5-l(b) to the contrary, that the legislature intended to classify all subsequent penal laws falling within the scope of Title 13A, but retained its authority not to do so with respect to those penal provisions enacted subsequent to its effective date falling outside its scope.

Further, we feel that since § 20-2-80(1) is not unconstitutionally vague, indefinite, and violative of § 43 of our constitution, it specifies its punishment pursuant to § 13A-5-4(a) supra, and thus, is outside the scope of Chapter 5 of Title 13A.

IV

Appellant’s challenge to § 20-2-81(b) dealing with the discretionary power of the district attorney to move for a reduction of sentence upon appellant providing substantial assistance to his office has been answered to his detriment by this court in Wheatt v. State, 410 So.2d 479 (Ala.Cr.App.1982). See also State v. Werner, 402 So.2d 386 (Fla.1981); Stone v. State, 402 So.2d 1330 (Fla.Dist.Ct.App.1981); Stehling v. State, 391 So.2d 287 (Fla.Dist.Ct.App.1980).

V

Appellant raises several issues concerning the search of his residence and the affidavit supporting the search warrant. Three related issues are dealt with below.

A

Appellant argues that the search warrant was improperly executed. The warrant was issued “To The Sheriff Or Any Constable Of Calhoun County, Alabama, Or To Any Other Lawful Officer Of The State of Alabama Authorized To Serve This Warrant.”

Neither the State nor the appellant disagree as to who could legally execute the warrant, that person being Mr. Charles Winfrey, an investigator for the district attorney’s office. Rather, appellant contends that 1980 Alabama Acts 261, No. 185, (hereinafter referred to as Act No. 80-185) which grants the investigator the power and authority of a deputy sheriff is viola-tive of Article IV § 45 of the 1901 Alabama Constitution as it contains matters not related to the title and consequently does not contain a clearly expressed single subject.

Act No. 80-185 reads as follows:

“Relating to Calhoun County; relating to the office of District Attorney, which provides for the payment of salary and expenses of an investigator appointed by the District Attorney in said county.
“Be it Enacted by the Legislature of Alabama:
“Section 1. The District Attorney of Calhoun County may appoint an investigator to conduct investigations of alleged violations of law in the circuit. Such investigator shall be entitled to a salary on the same scale as deputy sheriffs of that county receive. The salary shall be paid from the general fund of Calhoun County as other county employees are paid, and the necessary expenses incurred in investigation. He shall be furnished an automobile by the county for which he is employed and such county shall pay the expenses thereof.
“Section 2. The investigator shall have the same authority and powers vested in deputy sheriffs and all other law enforcement officers of the State of Alabama. He shall be responsible to the district attorney and shall perform all duties assigned him by such official.
“Section 3. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

The purposes of § 45 have been stated to be: (1) to fairly apprise the public of the subjects of legislation that are being considered so that it may have an opportunity to respond thereto, (2) to truly inform the members of the legislature of the subject of a bill so that they may intelligently and faithfully execute their duties, and (3) to prevent the inclusion of matter in a bill incongruous with the title which possibly could not individually obtain legislative assent but when combined with other matter into one bill would by reason of such gain favor and secure passage. State v. Hester, 260 Ala. 566, 72 So.2d 61 (1954); See also Alabama Education Association v. Grayson, Ala., 382 So.2d 501 (1980). Section 45 is not to be exactingly enforced in such a manner as to .cripple legislation or to be enforced with hypercritical exactness, but is to be accorded a liberal interpretation. B. F. Goodrich Company v. Butler, 56 Ala.App. 635, 324 So.2d 776, cert. denied, 295 Ala. 401, 324 So.2d 788 (1975).

The test in determining the constitutionality of an act under § 45 is “whether the title of the act is so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment.” Alabama Education Association v. Grayson, supra at page 505.

Section 45 does not require that the title of an act be an index or catalog of every provision nor of every effect of the act. Shelby County Commission v. Smith, Ala., 372 So.2d 1092 (1979); Lane v. Gurley Oil Co., Ala., 341 So.2d 712 (1977); Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So.2d 487 (1948); Dannelley v. State, Ala.Cr.App., 397 So.2d 555, cert. denied, Ala., 397 So.2d 577 (1981). Furthermore, the one subject requirement is met when the separate provisions of a bill are germane to the bill’s general purpose and have a mutual connection with the subject proper. Thomas v. Niemann, Ala., 397 So.2d 90 (1981); Opinion of the Justices, 294 Ala. 571, 319 So.2d 699 (1975); Boswell v. State, 290 Ala. 349, 276 So.2d 592, cert. denied, 414 U.S. 1118, 94 S.Ct. 855, 38 L.Ed.2d 747 (1973); Opinion of the Justices, 277 Ala. 630, 173 So.2d 793 (1965).

Appellant argues that § 45 was violated because the title of Act No. 80-185 refers to Calhoun County, while Section 1 therein makes a reference to the Seventh Judicial Circuit.

The Seventh Judicial Circuit consists of Calhoun and Cleburne Counties, § 12-11-2, Code of Alabama 1975 (Supp.1981), and the district attorney is elected to serve both counties. § 12-17-180, Code of Alabama 1975. He may employ support personnel if necessary. § 12-17-220, Code of Alabama 1975 (Supp.1981).

Merely because Section 1 defines Winfrey’s scope of authority as that of the circuit does not invalidate the Act because the title refers only to Calhoun County. The investigator is responsible to the district attorney, whose scope of authority encompasses the boundaries of the Seventh Judicial Circuit. Act No. 80-185 funds the position of investigator only from the coffers of Calhoun County. Thus, for payroll purposes he is treated as an employee of Calhoun County although his duties extend to both Calhoun and Cleburne counties.

Section 1 concerns itself with the power of the district attorney to appoint an investigator and the salary scheme by which he is to be paid. It also defines the boundaries of his authority, that being the same as that of the district attorney. Section 2 defines the scope of authority the investigator possesses in executing his duties. It places him under the direct authority of the district attorney who defines and assigns his duties.

We do not find anything in either Sections 1 or 2 to run afoul of the “single subject” and “single title” requirements of § 45. Only one subject is dealt with in Act No. 80-185, namely that of appointment, payment, and definition of authority and duties of an investigator. Further, both sections are germane to the Act’s general purpose and have a mutual connection with the subject proper. Consistent with the above is the case of Yeilding v. State, 232 Ala. 292, 167 So. 580 (1936), where an act affecting both counties and municipalities located therein was held not violative of § 45.

In addressing itself to identical constitutional considerations concerning an act affecting the salaries of certain state officers and employees, the Supreme Court in State Docks Commission v. State, 227 Ala. 521, 150 So. 537 (1933), made the following observation:

“Pay and salary are common attributes of all offices and employments. In practically every act creating a new office, board, or commission, the duties of the incumbent and his pay were both set out in the law. No one has ever contended that such acts contain one subject of duties and another subject of compensation.”

B

Having found Act No. 80-185 not violative of § 45 of our constitution, it is clear that Investigator Winfrey had the authority to execute the instant search warrant. Rivers v. State, 406 So.2d 1021 (Ala.Cr.App.), cert. denied, 406 So.2d 1023 (Ala.1981). We find unpersuasive any distinction as to “who was assisting whom” as the facts reveal that Winfrey personally executed the warrant.

C

Furthermore, it is obvious that the office of district attorney falls under the purview of the executive rather than the judicial branch of government. While the office of district attorney may be enumerated in § 6.20(a) of Amendment No. 328 to the 1901 Alabama Constitution, the district attorney is not a judicial officer or a part of the judicial branch of government because of his office. Yolo County v. Joyce, 156 Cal. 429, 105 P. 125 (1909); People v. Lichtenstein, Colo., 630 P.2d 70 (1981); People v. District Court In and For the County of Larimer, 186 Colo. 335, 527 P.2d 50 (1974); State v. Leonardis, 73 N.J. 360, 375 A.2d 607 (1977); In Re Ringwood Fact Finding Committee, 65 N.J. 512, 324 A.2d 1 (1974); State v. Winne, 12 N.J. 152, 96 A.2d 63 (1953); Pace v. State, 566 S.W.2d 861 (Tenn.1978); see generally People v. Vaughn, 49 Ill.App.3d 37, 6 Ill.Dec. 932, 363 N.E.2d 879 (1977); People v. Stinger, 22 Ill.App.3d 371, 317 N.E.2d 340 (1974).

The district attorney is a public officer representing the sovereign power of the people and has been defined as “the foremost representative of the executive branch of government in the enforcement of the criminal law in his county.” 27 C.J.S. District and Prosecuting Attorneys § 1(a) (1959). He is only an officer of the court to the extent that all attorneys are officers of the court. People v. Rodriguez, 13 Misc.2d 1004, 178 N.Y.S.2d 993 (1958), cert. denied, 362 U.S. 984, 80 S.Ct. 959, 4 L.Ed.2d 1009 (1959).

Amendment No. 328 does not give the judicial branch any power, authority, or control over the office of district attorney. No rule of judicial administration governs the office. Even the powers and duties of the district attorney make no reference to control and regulation by the judicial branch. Section 12-17-184, Code of Alabama 1975.

It is the obligation of the attorney general and the district attorney to expose and prosecute crimes. In Re White, 53 Ala.App. 377, 300 So.2d 420, cert. denied, 293 Ala. 778, 300 So.2d 439 (1974). Such is not the primary function of the judicial branch of government.

VI

Appellant challenges the sufficiency of the affidavit supporting the search warrant. Specifically, he contends that the affidavit, which was based upon the hearsay information of a confidential informant, does not satisfy the positive averment requirement of § 15-5-8, Code of Alabama 1975 for issuance of a nighttime search warrant. Thus, he asserts that the trial court erred in denying his motion to suppress the evidence seized at his residence.

We quote the pertinent portions of the affidavit supporting the issuance of the search warrant.

“My name is Michael Hembree. I am a Police Officer for the City of Anniston, Calhoun County, Alabama. I have received information within two (2) hours prior to the making of this affidavit from a confidential and reliable informant who has given me information in the past which has proven to be true and correct and has led to the arrest and conviction of at least two or more persons on various violations of the law. Said informant has stated to me that he was at the residence of Larry Dickerson within the past four (4) hours and that while at this residence he saw a large quantity of marihuana contained in plastic bags being stored at the residence. Informant further stated to me that Dickerson produced the marihuana to him and stated that he did own the marihuana and that it was for sale. Informant also states that he has observed several other unknown individuals come to the residence and purchase marihuana from Dickerson, and that he has observed marihuana being stored in the residence on several other occasions recently. Informant further states that he is familiar with the substance marihuana and does believe the substance observed by him in Dickerson’s house is marihuana. Based on the above stated information I have reason to believe and do believe that marihuana is presently being stored at 1316 Willet St., Anniston, Calhoun County, Alabama, the residence of Larry Dickerson.” (R. 245) (Emphasis supplied).

At appellant’s motion to suppress, Officer Hembree testified as follows:

“Q Do you recall whether you gave Judge Albea any information other than what’s contained in this affidavit, for you to secure this search warrant?
“A Yes. I told him several things during the conversation, at the time he was reading the warrant; to the best of my recollection, that also in our Unit, Sergeant Ballard had been receiving information on him, taken complaints, and that I had received information on him from another individual several weeks prior, and a report from a person in the area about noticing an unusual amount of traffic at the house.
“Q Did you put any of this information into your affidavit?
“A I put some of it in there, I believe.
“Q You stated in this affidavit that you had an informant; is that correct?
“A Yes, sir.
“Q You also stated that this informant had given you information in the past? “A Yes, sir.
“Q Has any of this information that you have received in the past led to arrests or convictions for violations of narcotics?
“A Yes, sir, on at least three or four occasions.
“Q But you only said two occasions when you filled out the affidavit; is that correct?
“A I said at least two occasions.”
“Q In regard to this information, did he ever give you information in the past that proved to be untruthful?
“A Not to my knowledge.”
“Q But when you went to see Judge. Albea, you did not rely strictly on the affidavit that you filled out, but you also supplied additional facts; is that correct?
“A Yes, sir.”
“Q Would you briefly describe what happened when you arrived at the residence?
“A We approached the residence, pulled up, parked in the front. Went to the front door and Charles Winfrey knocked on the front door. It was answered by Larry Dickerson’s wife. Larry Dickerson was, best I recall, just in the doorway of the next adjoining room, and he came out. The search warrant was explained to him and executed by Mr. Winfrey.
“Q When was the first time that you talked to Mr. Winfrey in regard .to this particular search?
“A I’m sure we probably called him at his residence to meet us at the police station and serve the warrant.”
“Q Had your informant told you where in the residence this plant material would be located?
“A When he saw it, to the best of my knowledge, he said it was brought into the living room from the rear of the house.”
“Q When you filled out and submitted this affidavit to Judge Albea, did you include any information in that affidavit that was not from the informant, that you recall?
“A Yes, sir.
“Q What information did you supply that was not based upon this hearsay information from the informant?
“A The report I had from a person close to that area that there was a lot of traffic into the residence for brief periods of time.” (R. 9-14)

As both the state and appellant concede, there is a paucity of Alabama cases interpreting the positive averment requirement of § 15-5-8. Furthermore, appellant admits that the positive averment requirement may be satisfied without the affidavit containing “a positive or unequivocal statement that the property is on the person or property (place) to be searched.” Appellant’s brief at page 41. Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975).

Neither appellant’s written motion to suppress filed below nor his argument following the testimony given in support of it, raise any issue concerning the sufficiency of the affidavit under the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Rather appellant concentrates his argument upon the failure of the affidavit to meet the requirements of § 15-5-8. Consequently, nothing relating to such is preserved for our review. Nevertheless, we find that the affidavit sufficiently meets the requirements of Aguilar. Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982); see Funches v. State, 53 Ala.App. 330, 299 So.2d 771 (1974), cert. denied, 293 Ala. 752, 299 So.2d 778 (Ala.1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 793,42 L.Ed.2d 813 (1975).

In Collins v. State, 410 So.2d 463 (Ala.Cr.App.1982), we stated:

“No search warrant can be issued unless supported by probable cause, § 15-5-3, Code of Alabama 1975; Alford v. State, Ala.Cr.App., 381 So.2d 203 (1979), cert. denied, Ala., 381 So.2d 206 (1980), and the judge or magistrate is satisfied that such exists. § 15-5-5, Code of Alabama 1975. “Probable cause may be based upon hearsay information from an informant as long as there is a ‘substantial basis for crediting the hearsay.’ Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). A substantial basis exists if the affidavit for the search warrant satisfies the following two-pronged Aguilar-Spinelli test: the basis of knowledge prong and the veracity prong. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
“The affidavit in the present case fully satisfies the first prong of the Aguilar-Spinelli test in that it sets forth the detailed observations of the informant while inside appellant’s house.”

In addition, the veracity prong was clearly established by the affidavit. Thus, it fully satisfied the two-pronged test of Aguilar and Spinelli.

In both Collins, supra, and Hare v. State, 390 So.2d 1126, (Ala.Cr.App.) cert., denied, 390 So.2d 1129 (Ala.1980), the confidential informant had been in the residence of the accused and had reported what he had seen to the police officer shortly before he procured the search warrant. In both cases it was held that such satisfied the positive averment requirement of § 15-5-8 even though the affiant-police officer had not directly and personally viewed the property in the place to be searched.

In Dean, supra, the police officer had personally viewed the property on the premises prior to his procuring the search warrant.

In Pianzio v. State, (Ms. February 24, 1981) (Ala.Cr.App.1981), two nighttime search warrants were issued upon affidavits of a deputy sheriff who had based his information therein on a “BOLO” bulletin issued by U.S. customs officials in New Orleans and a police dispatch from the county sheriff. The deputy had not observed any of the events giving rise to either broadcast. Thus, his affidavits were based solely upon hearsay information, albeit from law enforcement officers. After holding the search warrants invalid, we discussed the positive averment requirement of § 15-5-8 and found that the affidavits also had failed to sufficiently satisfy such:

“Assuming arguendo that the difference between ‘he has reason to believe’ and ‘he is positive’ be considered a matter of technicality, we are here faced with a situation where the affiant could, under no circumstances, ‘state positively that the property is ... in the place to be searched.’ Byrd simply had no way of positively knowing whether or not the contraband was in the airplane or automobile. Byrd received all his information from U.S. Customs and Sheriff Benton, and, as can be seen from the record, the information they had was based on guesswork and speculation. Because the search warrants were executed in the nighttime, upon the face of the warrants and accompanying affidavits, the searches were conducted illegally.”

Thus, in Pianzio, since the information in the affidavits proved to be false, it could not supply the positive averment necessary under § 15-5-8.

Finally, in Peavy v. State, 336 So.2d 199, (Ala.Cr.App.), cert., denied, 336 So.2d 202 (Ala.1976), wherein a much less detailed affidavit than the one now before us was involved, the issue of whether it sufficiently satisfied the requirements of § 15-5-8 was not reached.

Thus, in Collins and Hare the positive averment requirement was satisfied by information supplied by a confidential informant.

Other states presently or in the past have had nighttime search warrant statutes or rules of procedure containing a positive averment requirement.

In Johnson v. State, 617 P.2d 1117 (Alaska 1980), the Alaska Supreme Court, in discussing the positive averment requirement of Alaska R.Crim.P.. 37(a), stated at pages 1122-23:

“In approaching questions of this sort, the decision of the judicial officer who has issued the warrant is to be given ‘great deference’ and ‘the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’ Further, in resolving uncertainties and ambiguities with respect to search warrants and affidavits made to support them, the court should look to the circumstances surrounding the issuance of the warrant and need not artificially limit its inquiry to the writing itself.
“The positivity requirement expressed in Alaska Criminal Rule 37(a)(3)(iv) is nearly the same as that which was expressed by Federal Rule of Criminal Procedure 41(c) as it existed until 1972, when the requirement was deleted because it had been found cumbersome to apply in practice. Current Federal Rule of Criminal Procedure 41(c)(1) provides with respect to nighttime searches only that ‘The warrant shall be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime.’
“Several cases construing the positivity standard as contained in the former federal rule did not construe it to require a significantly higher standard than probable cause. Thus, it was stated in United States v. Daniels, 10 F.R.D. 225 (D.C.N.J.1950);
“It is our opinion that the rule requires nothing more than an explicit statement, supported by positive evidence, as distinguished from negative evidence ‘that the property is in the place to be searched.’ The explicit statement may not rest upon inferences drawn from the absence of evidence. The rule requires averments of fact sufficiently persuasive to support a reasonable inference that the property is in fact on the premises. A more rigid construction would require proof beyond a reasonable doubt that the property is in the place to be searched. Such a construction would enable the criminal to completely conceal an illegal enterprise behind an insurmountable barrier, provided, of course, he pursued it only at night. “If the positivity requirement were interpreted literally, it would be practically impossible to obtain a warrant to search premises at night. For example, if a police officer had observed drugs in a building, and then left the building in order to secure a warrant from the nearest available magistrate, he could not be positive that the drugs were in the building at the time that he gave the oath. The language must be construed to equate ‘positive’ with being reasonably certain.” (Citations omitted).

Furthermore, it is clear that our legislature did not intend that the affiant be positive that the property is on the person or in the place to be searched. As stated by the Supreme Court in Utah in State v. Treadway, 28 Utah 2d 160, 499 P.2d 846, 849 (1972):

“The language selected by the legislature indicates an intent that to satisfy the statute the supporting facts in the affidavit must show positively that the property is in the place to be searched.” (Emphasis added).

See Johnson, supra; State v. Adams, 18 Ariz.App. 292, 501 P.2d 561 (1972); State v. Dudgeon, 13 Ariz.App. 464, 477 P.2d 750 (1970); State v. Snyder, 12 Ariz.App. 142, 468 P.2d 593 (1970), cert. denied, 400 U.S. 1001, 91 S.Ct. 475, 27 L.Ed.2d 452 (1971); State v. Lindner, 100 Idaho 37, 592 P.2d 852 (1979).

In all of the above cited cases, the positive averment requirement was satisfied by the hearsay information of a confidential informant. We adopt their reasoning concerning such and find that the positive averment requirement of § 15-5-8 may be satisfied by hearsay information. Further, we adopt the position that our legislature did not intend the affiant personally to supply the positive averment requirement, but rather the affidavit, along with any supporting oral testimony, to satisfy such. Funches, supra.

Consequently, we find the instant affidavit sufficient to meet the positive averment requirement of § 15-5-8.

We have carefully examined this record and find no error therein. Thus, this cause is affirmed.

AFFIRMED.

All the Judges concur; BOWEN, J., in result only.

      . Section 15-5-8 reads:
      “A search warrant must be executed in the daytime unless the affidavits state positively that the property is on the person or in the place to be searched, in which case it may be executed at any time of the day or night. The issuing judge or magistrate must state in the warrant, according to the character of the affidavits, whether it is to be executed by day or at any time of the day or night.”

      . See Alaska R.Crim.P. 37(a); Ariz.Rev.Stat. Ann. § 13-1447 (1970) amended, § 13-3917 (1978); Idaho Code § 19-4411 (1979); Okla. Stat. tit. 22 § 1230 (1971); Utah Code Ann. § 77-54-11 (1978), repealed, § 77-23-5(1) (Supp.1980).


text:
    W. D. FRETWELL v. STATE.
    8 Div. 634.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 8, 1982.
    Luke E. Alexander, Russellville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

W. D. Fretwell was convicted of “leaving the scene of an accident” pursuant to §§ 32-10-1 and -2, Code of Alabama 1975, and sentenced to four years’ imprisonment.

It is undisputed that W. D. Fretwell hit two little girls who were walking along a dirt road with the automobile which he was driving while in rural Franklin County. Both girls were injured. The older girl (an eleven-year-old) picked up her four-year-old companion, who was severely injured, and carried her to a house nearby for help.

The State’s evidence proved that Fretwell was drunk at the time of the accident, and that the two children were not on the highway right-of-way when he hit them. The older girl injured in the accident and Willie Abernathy, an eyewitness who rendered assistance to the injured children, testified that after Fretwell left the road and hit the two girls, he swerved back onto the road and kept going. Both witnesses did state that he returned ten minutes later. He appeared to be very drunk and left again after a few minutes when Abernathy agreed that he should leave.

Before leaving, Fretwell told Abernathy not to call “the law”.

As he left, Fretwell passed the ambulance coming to the scene. He was subsequently arrested by local authorities when he was stopped with a road block after being pursued for about a mile by a police car with its blue light flashing. The arresting officers also testified that he was highly intoxicated.

Fretwell’s own testimony was the only evidence in defense. He testified that the two girls ran out in front of him while he was driving in the middle of the road. He stated that he saw them well in advance of the accident and had slowed down from approximately 40 miles per hour to about 15 miles per hour, but was unable to avoid them when they darted out in front of his car. He stated that he had had nothing to drink that morning prior to the accident.

He further stated that he stopped immediately to render assistance and walked with the older girl as she carried the younger girl to the nearby house for assistance. The older girl would not let him “help” so he returned to his automobile and drank a pint of whiskey and then returned to where Mr. Abernathy and several others were attending the injured four-year-old.

Fretwell testified that he left within a few minutes and before the police or the ambulance arrived because several residents of that “black” community had begun to threaten him, a “white” man. In fact, the older child (the eleven-year-old) that he had run over, had hit him on the head “a hundred times.”

Mr. Fretwell did not leave his name, address or vehicle registration number with anyone at the scene. However, Mr. Abernathy, the eyewitness, did know Mr. Fret-well by name.

On appeal, appellant insists that the evidence does not support his conviction and that the trial court erred in refusing two of his written requested jury charges.

I

Appellant did not object at trial to the trial court’s refusal of his requested jury charges, which were in any event fully and fairly covered by the trial court’s oral charge. Section 12-16-13, Code of Alabama 1975. Allen v. State, (Ms. November 24, 1981) (Ala.Cr.App.1982). These charges (R. 10) dealt with appellant’s defense that he was forced to leave the scene of the accident because of threats from bystanders. The trial court adequately explained this defense to the jury. (R. 82).

II

Appellant contends that the admissible evidence does not support his conviction. He acknowledges the requirements of § 32-10-2, Code of Alabama 1975, that a driver involved in an accident with injury, shall give his name, address, and vehicle registration number, and shall render reasonable assistance to those injured. However, he contends that he did not fulfill these requirements because the injured children refused his offer of assistance, bystanders threatened him and forced him to leave the scene, and Willie Abernathy, an eyewitness to the accident, knew him by name, anyway.

Certainly these factors, if believed by the jury, might have exonerated the appellant. However, there was also evidence that the appellant was very intoxicated when he ran over the little girls, that he did not stop to render aid, and that he returned ten minutes later only to plead with Mr. Abernathy not to report him to the police. He also left when he heard the ambulance siren, and the police had to chase him and eventually stop him with a road block. This evidence is more than sufficient to support a jury’s determination that appellant indeed violated § 32-10-2.

Appellant further insists, however, that the evidence of his .failure to stop and immediately return to the scene of the accident should have been excluded pursuant to his general “motion to exclude” at the close of the State’s case. He reasons on appeal that this evidence should have been excluded because the trial court never instructed the jury accordingly. (His argument in this regard is not abundantly clear, but it appears that he is claiming error in the denial of his motion to exclude because of an inadequate oral charge which was delivered long after his motion was denied).

In any event, he explains that § 32-10-2 contains no requirement that a driver involved in an accident stop immediately and return to the scene.

This stop and return requirement is covered only in § 32-10-1, Code of Alabama 1975. Since the trial court’s oral instructions only included language from § 32-10-2 and general statements with reference the crime of “leaving the scene of an accident,” appellant contends there could have been no conviction under § 32-10-1.

However, the indictment, which from aught that appears in the record was read to the jury, clearly stated that the appellant was charged with failing “to stop immediately” (the requirement of § 32-10-1) “and fulfill the requirements of § 32-10-2.” The failure to fulfill the requirements of both sections is what is commonly referred to as the crime of “leaving the scene of an accident”. The trial court so instructed the jury at the beginning of the trial and referenced the same in its oral charge.

Appellant presents no evidence that the jury was in any way confused or misled by the trial court’s instructions and he did not request any detailed instructions with reference § 32-10-1. He did not in any way at trial challenge the sufficiency of either the indictment or the trial court’s oral charge, and he made no motion for a new trial.

In effect, we are asked to overturn the jury’s verdict, which we decline to do.

This record is free of error and the judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.