author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Herbert STOCKARD v. STATE.
    6 Div. 132.
    Court of Criminal Appeals of Alabama.
    Nov. 20, 1979.
    Rehearing Denied Dec. 18, 1979.

      Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of murder in the first degree of Beverly Stockard, the wife of appellant.

The evidence presented by the State was lengthy, consisting of testimony of several witnesses that, when taken together, established almost conclusively that the victim was killed by a bullet from a pistol about eight or nine o’clock on the night of August 26, 1978, while defendant and the victim were sitting in the cab of defendant’s pickup truck while the truck was at a trailer park at Curry, Walker County, Alabama. Testimony presented by defendant was relatively brief, consisting merely of the testimony of defendant himself.

Details of the lengthy evidence without any material bearing on the issues presented on appeal need not be stated. We endeavor to summarize the evidence in material respects.

According to the undisputed evidence, both defendant and his wife were highly intoxicated at the time of the fatal incident, and for a long time before. During the day they together had consumed between forty and fifty cans of beer at a ratio between him and her of about four to three. A short time before she was killed, they were both trying to get some more beer to drink.

The defendant and the victim had been married about three years. He was between thirty-four and thirty-seven years old, and she was forty-four. Her daughter and her daughter’s children were living at one of the mobile homes or trailers of the trailer park where Beverly Stockard was killed. The victim’s daughter had been married, but she was divorced. Defendant and his wife arrived at the trailer park about 6:00 P.M. While there, considerable argument, fussing and quarrelsome conduct ensued between the two. Defendant was complaining that his wife had left him once before, and that she was attempting to do so at that time. According to the witnesses for the State, including the victim’s daughter, he made threats that he would kill his wife, and manifested threatening conduct by getting out of the truck with a pistol in his hand and brandishing it. Around eight o’clock defendant and his wife left the particular trailer park in his truck but returned in a short time, which was estimated by some of the witnesses at ten minutes. About the time the truck came to a stop, there was a pistol shot within the driver’s compartment of the truck. Those that heard it or saw the fire from the pistol were startled but apparently did not know with certainty what had occurred until after-wards. According to the defendant’s testimony, he did not fire the pistol, but he noticed immediately that his wife was badly hurt, and he proceeded forthwith to drive her to the hospital, where she was pronounced dead.

Defendant took the position on the trial that (1) Mrs. Stockard had committed suicide or (2) that defendant was too intoxicated to be guilty of murder, or both (1) and (2).

As to (1), there is little contention on appeal. It is sufficient, we think, to state that under all the circumstances, particularly unequivocal testimony of definite threats by defendant to kill her with the pistol that killed her, a jury question on that issue was presented.

As to (2), appellant strongly urges that the undisputed evidence shows that defendant was so intoxicated that he could not have had the specific intent essential to murder in either degree, or premeditation and deliberation essential to murder in the first degree. There is little, if any, disagreement between the parties as to the principle of law involved. There has been uniform acceptance of the statement:

“Voluntary drunkenness neither excuses nor palliates crime. But in murder cases evidence of drunkenness to such degree that the accused is incapable of rational action and hence incapable of performing a specific intent essential to a malicious killing may reduce the killing to manslaughter, or may negative the premeditation and deliberation essential to murder in the first degree, or reduce the crime to murder in the second degree. Ivory v. State, 237 Ala. 344, 186 So. 460; King v. State, 90 Ala. 612, 616, 8 So. 856.” Helms v. State, 254 Ala. 14, 19-20, 47 So.2d 276, 281 (1950)

In accord with Helms and cases cited therein are Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969); Green v. State, Ala.Cr.App., 342 So.2d 419 (1977); Jones v. State, Ala.Cr.App., 362 So.2d 1303 (1978).

Although the facts as to the means and method by which the victim was killed in Helms are considerably different from such facts in the instant case, the evidence as to a long period of drinking and the extent of the intoxication of both defendant and the victim in that specific uxoricide is markedly similar to the evidence in this case. It was there held that it was within the province of the jury to decide, as it did, that defendant was not so intoxicated as to be incapable of committing murder in the first degree. Such is our conclusion in this case. Incredible as it may be that the two could have drunk as much beer as they did without being “dead drunk,” the undisputed evidence is that they were not that drunk. The undisputed evidence to the effect that the mind of defendant was clear enough for him to conduct himself as he did, moving here and there in his truck without positive objection by his wife, or by any of his other acquaintances at the trailer court, and that he instantly perceived after his wife was shot that he should drive her to the hospital, which he successfully did, at a rate of speed of between forty and seventy miles an hour, furnishes substantial, if not unquestionable, support for a finding by the jury that he was not so intoxicated that he did not have the mental ability to commit murder in the first degree.

During an extensive cross-examination of defendant, the following occurred:

“Q. In fact, you drove that truck by yourself, didn’t you?
“A. Yes, sir, I did.
“Q. Were you drunk at that time?
“A. Pretty well drunk.
“Q. So, you were really driving while intoxicated weren’t you?
“A. Yes, sir.
“Q. You were on the highways of this county endangering the lives of innocent people while you were drunk is that right?
“A. Yes, sir.
“MR. TWEEDY: This is certainly immaterial. It is prejudicial. Put in there deliberately by the District Attorney in this case to try to prejudice this defendant with the jury. I ask the Court to instruct the jury not to consider that. “COURT: Ladies and Gentlemen of the jury, disregard the last statement of the District Attorney.
“MR. TWEEDY: Also, I would like to ask the Court to instruct the District Attorney not to use such matters that he knows are prejudicial and not competent evidence in this case and if he continues to do it I will ask the Court to enter a mistrial in this case.
“COURT: I deny that request.
“MR. TWEEDY: We except.”

Appellant now urges that the court erred in failing to grant a mistrial by reason of the questions asked as quoted above. It must be noted that defendant did not ask for a mistrial at the time. Whether he would was conditioned upon the future conduct of the District Attorney. Although the question asked was after a declarative sentence of the questioner, which was argumentative, any prejudice to defendant was not of an ineradicable nature and did not warrant a mistrial.

[6] Appellant complains by reason of the testimony of defendant’s mother to the effect that after the shot that killed Mrs. Beverly Stockard, defendant came by his mother’s house before going to the hospital, which appellant says constituted an effort to impeach defendant on an immaterial matter, defendant having theretofore testified that he made no stops along the way in taking his wife to the hospital. We find no objection to the testimony of which appellant now complains. Furthermore, the particular evidence, although introduced by the State in rebuttal, was not offered in impeachment of defendant’s testimony but in “mere contradiction” thereof. See Lusk v. State, 129 Ala. 1, 30 So. 33 (1900); Bell v. State, 124 Ala. 94, 27 So. 414 (1899); Gamble, McElroy’s Alabama Evidence, § 176.-01(8) (1977).

Another assertion of error is based upon the court’s overruling defendant’s objection to a portion of the argument to the jury by counsel for the State as now quoted:

“Let’s talk about another matter at this time. They talk about Mrs. Stockard that the state had to call as a witness. I didn’t enjoy doing that. I wish I didn’t have to call the mother to the witness stand to testify. I didn’t enjoy that. “MR. JACKSON, Judge, I enter an objection to that comment on who we call and who we don’t call. Let it reflect back to the objection that was made as to the evidence commented on about us calling fingerprints and everything like that. It is improper argument and illegal argument and we enter objection as to calling Mrs. Stockard and checking fingerprints.
“COURT: Overruled.
“MR. JACKSON: We except.”

Appellant argues that the State was allowed to argue that they had to call “the defendant’s own mother to the witness stand to make the defendant out a liar.” We agree that the words “had to call” in the argument for the prosecution could conceivably have carried with them the implication that the State had to call her as a witness because defendant did not do so, but it is clear that counsel for the State intended no such implication and that a more reasonable construction of the words in their context is that the asserted involuntariness in calling the witness was by reason of the natural disinclination to ask a mother to testify against her son. We do not doubt the sincerity of any imputation of ingeniousness, instead of ingenuousness, to be found in the language used by counsel for the State, but we are convinced he meant what he said and nothing more.

In combining his objection to the particular argument with an objection to previous argument of State’s counsel relative to lack of evidence as to fingerprints or the like on the pistol involved, we note that it seems that defendant’s counsel opened the door to any argument by the State as to the absence from the evidence of evidence of fingerprints. All the arguments of counsel are in the record. We note therefrom that in the State’s opening argument no reference was made to the matter of fingerprints on the gun. Thereafter, in the two arguments of counsel for defendant, there was considerable reference to the question of fingerprints on the gun, in which they were making the strong point that the State, by promptly having fingerprints lifted from the gun, comparing them with fingerprints of defendant and the victim and presenting evidence to the jury as to the results of such procedure, could have aided the jury on the pivotal question of who fired the gun. To some of such argument there was objection by the State, which generally was overruled by the trial court. At the conclusion of the last argument of defendant’s counsel, he summarized to some extent his point by saying:

“I thank you for your kind attention and thank you for time and again, I’m sorry Charles [District Attorney Baker] got mad. I apologize to him because I did not mean to leave the impression that he would do anything wrong. I’m just saying down the line they took the fingerprints off the gun and they could have been compared and they weren’t compared.
“Thank you.”

The first paragraph of the concluding argument of counsel for the State, the objection thereto of counsel for defendant, and the ruling of the court are shown by the following:

“Any fingerprint that is in the custody of the state toxicologist is available to the defense. We have to disclose every piece of evidence that has ever been taken to the defense. If we don’t we can’t try the man. They have come before you and tried to cloud the issue. Don’t you know as competent an attorney as Mr. Tweedy and Mr. Jackson is, as great an attorney as Mr. Tweedy, known throughout the state of Alabama, do you think they would let something like that slip by.
“MR. JACKSON: I object to that on grounds, Judge, that we filed a motion to produce in this case and were never offered a fingerprint card that was in the toxicologist’s office.
“COURT: Overruled.
“MR. BAKER: It was available to them and they knew about them.”

The concluding argument of counsel for the State continued to the end without any objection by defendant in which there was any reference to fingerprints, other than in the objection hereinabove quoted in which appellant included the matter of fingerprints in the objection to the argument of State’s counsel as to its calling defendant’s mother as a witness. The argument of counsel for the State was in reply to argument by defendant and did not violate the principle that a party may not comment on his opponent’s failure to produce certain evidence that is equally available to the party making the comment.

The following portion of the record, which occurred during the direct examination by the State of the victim’s daughter, is made the basis of another assertion by appellant that there was prejudicial error on the trial:

“Q. Were you drinking that day?
“A. No, sir.
“Q. Night?
“A. No, sir. I sure wasn’t. She [Mrs. Stockard] came in and that is when she said if anything happened to her to tell the police who she was with and I told her nothing was going to happen to her.. . .
“MR. TWEEDY: I move to exclude that. That is not something in the presence and hearing of the defendant.
“COURT: Granted.
“MR. TWEEDY: I ask the Court to instruct the jury to disregard . . .
“COURT: Jury disregard the last statement of the witness.”

The record continues as follows:

“A. Anyway I told her nothing would happen and I talked her into going back out to the truck and when she got out there Herbert asked her if she was going with him or going to stay and she told him that she was going to stay to give her her purse. He said, ‘Well, you can stay if you want to but you know what is going to happen if you do.’ She said, ‘Well I will just go with you, then.’
“Q. Where was the truck parked during this time?
“A. It was parked right in front of my step-grandmother’s trailer.”

Appellant says that the injury caused defendant by the testimony of the witness, which was excluded by the court as noted above, was not, and could not have been, eradicated by the action of the court. We think it was highly prejudicial, but we do not say that it was so highly prejudicial that it could not have been made harmless. Furthermore, there was no motion by defendant for a mistrial, and the occurrence did not justify a mistrial in the absence of a motion therefor. Notwithstanding this view, we are of the opinion that there was a sequel, in two parts, to the particular incident that eventually resulted in prejudicial error, which we now discuss.

The first part of the sequel was in defendant’s cross-examination of the witness:

“Q. You said you talked Bev into going back with him that night?
“A. She . . .
“Q. I believe you told the District Attorney a while ago that . . .
“A. She told me she was afraid he was going to hurt her and we had been talking that day and . . .
“Q. All right. What I’m asking is you said she told you she thought Herbert was going to hurt her and you told her to go on back with Herbert, didn’t you?
“A. Yes, I told her to go ahead that he probably wouldn’t hurt her.
“MR. BAKER: I would like to bring it to the Court’s attention that this is hearsay testimony that we haven’t been allowed to go into heretofore and since this comes from defense counsel the state intends now to explore that on redirect.
“MR. TWEEDY: Your Honor, this was brought out by the State and she testified on direct examination and the State brought this out that she talked Bev into going back with him on that night. She so testified on direct examination when Mr. Baker asked her.
“MR. BAKER: I just want to point that to the Court on redirect.
“MR. TWEEDY: I point out to the Court also that I did not go into this myself, first. He started into the matter himself.
“Q. Now, when you told her to go on back with him did you call the law?
“A. No, sir. She went to the truck . . .
“Q. I’m just asking . .. Did you call the law?
“A. No, sir.
“Q. Did you make any effort to get anybody up that way to stop them?
“A. No, sir.”

The second part of the sequel is found in the interstices of seven pages of the record during the testimony of the same witness on redirect examination, which we attempt to abridge as follows:

“Q. About how long did you all stay in the trailer there?
“A. About five minutes.
“Q. About five minutes. What if anything else did your mother say to you in that conversation?
“MR. TWEEDY: Wait just a minute. I want to object to that. It is incompetent, irrelevant, immaterial and hearsay.
“COURT: This conversation, I believe, has already been opened.
“MR. TWEEDY: The evidence was brought in by the State on direct examination and I have the right to cross on that. I did not introduce this in evidence. The State introduced it in evidence. I can go back on my notes and the court reporter can go back if you would like to hear it.
“MR. BAKER: Court has not allowed us to go into conversation that she had with her mother in the trailer. Defense counsel has gone into that conversation and we have the right to explore that and show everything that was said.
“COURT: Ladies and Gentlemen of the jury, I am going to ask that you go in the jury room A until we decide this point of law.
“THE FOLLOWING TAKES PLACE OUT OF THE PRESENCE AND HEARING OF THE JURY:
“COURT: As I recall this conversation between the witness and her mother it was first brought out by the defense. [There were then comments by counsel as to who first brought out the conversation between the witness and her mother and then the case proceeded in the presence and hearing of the jury]
“COURT: I overrule your objection.
“MR. TWEEDY: We except. What I’m objecting to is him further going into conversation because he brought it out on direct examination to start with.
“Q. (Mr. Baker) Shirley, let me direct your attention now to the conversation that you had in Polly Darty’s trailer when just you and your mother were present.
“COURT: O. K. Mr. Tweedy, I’m going to give you a standing objection to this entire line of questioning as to the conversation.
“Q. Did she say anything else to you in the trailer there?
“A. Yes, sir.
“MR. TWEEDY: I object to that. It is not a part of the same conversation I asked about. If it was brought out it was brought out by the State on direct examination. It is improper examination and it is hearsay evidence, not in the presence and hearing of the defendant.
“COURT: Standing objection. Overruled. Standing exception.
“Q. Did she say anything else to you?
“A. She started crying. She hugged my neck and told me if anything happened to her to be sure and tell the police who she left with. I told her I would. I said, ‘Why don’t you just go back and get in the truck to keep from causing trouble.’ I said, ‘Maybe he won’t hurt you.’ She said, ‘Well, just remember what I said.’ I said, ‘I will. If anything happens to you, I will.’ She wanted to keep sitting in there talking to me and I was afraid Herbert would come and get her and
“MR. TWEEDY: I object to that.
“COURT: Sustained. Jury disregard the last statement of the witness.
“Q. Did she say anything else to you, Shirley.
“A. No, sir. I just told her to go back to the truck.”

We are convinced that the trial court, in its commendable effort to obtain the correct answer to the profusely argued question as to which party first injected evidence as to a conversation between the victim’s daughter and the victim, quite understandably came to an incorrect conclusion to the effect that it was first injected by defendant’s counsel. It seems to us that it was first injected by the irresponsive answer of the witness to a question asked her on direct examination by the State. For this, neither the defendant nor his counsel was responsible.

In addition, we are not persuaded that even if, under all the circumstances, defendant’s attorney had first asked the witness some question pertaining to a conversation between her and her mother, out of the presence of defendant, such action would have opened the door to the introduction by the State of everything said by the victim during such conversation. The testimony of the witness as to what the mother said to her would on its face have been hearsay, but some of that which was said, or that could have been said by the mother, could have well been under one or more of the many exceptions to the hearsay rule of exclusion. The admissibility in evidence of anything said by the victim that came within any exception to the hearsay rule of exclusion, where shown by one party, would not entitle the other party to introduce evidence of what the victim said, out of the presence of the defendant, that would not come within an exception to the hearsay rule.

The most damaging part of the testimony of the witness as to what her mother told her was that part of her answer quoted above, in which she said, “She hugged my neck and told me if anything happened to her to be sure and tell the police who she left with.” Neither that statement nor substantially the same statement of the victim as shown in the testimony of the witness for the first time on the subject, which was excluded from the consideration of the jury on motion of defendant, falls within any exception to the hearsay rule. We do not agree with the position taken by appellee, that “It was part of the res gestae, or part of the events leading up to the killing.” In support of its position it cites Martin v. State, 77 Ala. 1 (1884) and Harris v. State, 96 Ala. 24, 11 So. 255 (1892). In each case, the trial court was upheld for admitting in evidence the statement of the victim of an alleged homicide as he was leaving on his last journey before he was killed. A similar conclusion was reached in Thornton v. State, 253 Ala. 444, 45 So.2d 298 (1950) holding that the statement was admissible as a part of the “res gestae of the act being performed or immediately contemplated by the declarant, the act of beginning or contemplating the trip or journey.” Before proceeding further, we should invite attention to the confusion that has been noted by use of the term “res gestae ” in designating an exception to the rule against hearsay. Illinois Central R. R. v. Lowery, 184 Ala. 443, 63 So. 952 (1913); 6 Wigmore, Evidence, § 1745 (Chadbourn rev. 1976); Gamble, McElroy’s Alabama Evidence, § 265.01(1) (1977).

In 6 Wigmore, Evidence, § 1726 (Chadb-ourn rev. 1976), the author comes close to the question whether in this case the victim’s statement at the time she was last seen alive by her daughter was admissible evidence of her “design or plan”:

“(1) Where on a charge of murder the defendant seeks to prove that the deceased killed himself or that a third person killed him, this hypothesis is of course properly open to proof. Yet, as a matter of precaution, courts usually require something more than a single piece of evidence; they will not admit, for example, the mere fact that the deceased was melancholy, or that a third person fled the country. But, assuming that the data as to suicide or a third person’s guilt are sufficient to be considered, and that the deceased’s plan of suicide, or the third person’s plan of killing, is one item herein, then the declaration of the deceased or the third person are a proper mode, under the present exception, approving the plan. To this no objection seems to have been raised for a third person’s threats, but in a few rulings the deceased’s declarations of intention to commit suicide have been excluded.
“These rulings are entirely without foundation in principle.”

In the most injurious part of the testimony of the witness as to what the victim told her, i. e., “[I]f anything happened to her to be sure and tell the police who she left with,” we find nothing therein tending to show her own plan or design, unless perhaps the plan or design that negatived the plan or design not to take her own life. However, in the testimony, we find that there is strong evidence of her own feeling that she was in danger of losing her life at the hands of defendant. Even so, that feeling on her part was not an item of admissible evidence, and would not have been admissible, as tending to show that defendant killed her. Whether it would have been admissible for the purpose of tending to show that she did not commit suicide, which question neither party on appeal has argued, we will not, and should not, attempt to say at this time for the reasons (1) that both parties should have the opportunity to express themselves fully on the point and (2) it is clear that the trial court ruled as it did solely on the ground that the defendant had opened the door for the admission in evidence of the statement. Whether it would rule in favor of the State, under all the circumstances that would be presented to it on the question of its admissibility, in the absence of an opening of the door for it by the defendant, we do not know; whether it should so rule is first a question for it to decide, before an appellate court is asked to rule whether, in the light of any discretion vested in the trial court on the point, its action would constitute reversible error. Thus we must conclude at this time that there was error to the injury of defendant in admitting, over the objection of defendant, the especially injurious part of the victim’s statement to the witness.

In its oral charge to the jury, the court said:

“If any witness testifying has been impeached, then the jury may disregard his testimony, unless his testimony is corroborated by other testimony not so impeached.”

At the conclusion of the oral charge and promptly after the court asked if there were any exceptions to it, the following occurred:

“MR. BAKER: I would like for the Court to define to the jury venire the meaning of the term impeachment of testimony.
“COURT: I believe they understand that. I have no straight legal definition. I think that it is clear.
“MR. TWEEDY: I want to except to that. ‘If witness testifying is impeached you may disregard the testimony.’
“COURT: What specifically?
“MR. TWEEDY: Just that part.
“COURT: If any witness testifying has been impeached, then the jury may disregard his testimony, unless his testimony is corroborated by other testimony not so impeached.
“MR. TWEEDY: O.K. That’s what I want.”

The quoted portion of the court’s oral charge to which defendant excepted has been upheld as a correct and proper instruction to the jury in several cases. Most of them are cited in Judge Price’s treatment of a similar charge requested by defendant and refused in Richardson v. State, 43 Ala.App. 412, 191 So.2d 251, 254 (1966):

“Refused Charge 8 has been held good when it refers to a specified witness. Sanderson v. State, 28 Ala.App. 216, 181 So. 506, a witness, Davis v. State, 2 Ala.App. 200, 56 So. 844, Any witness, Churchwell v. State, 117 Ala. 124, 23 So. 72. A witness for the state, Creel v. State, 23 Ala.App. 241, 124 So. 507. The charge here is confusing. It refers to the witness. Several witnesses testified on the trial. The charge was also properly refused because it is abstract. There was no evidence tending to impeach any witness. Densmore v. State, 25 Ala.App. 133, 141 So. 914. If, as contended by defendant, the two arresting officers contradicted each other on important and material points, this would not amount to impeachment. ‘A mere contradiction of one witness by another is not an impeachment of the witness so contradicted.’ Walters v. State, 19 Ala.App. 92, 95 So. 207.”

The quotation from Richardson, supra, suggests the advisability of a careful study of the facts and circumstances in each of the cases cited upholding charges similar to the one under consideration, and shows that there could be facts and circumstances in a case that would make the giving of the charge inappropriate. It was expressly held therein that the charge in the particular case was both confusing and abstract, which justified its refusal.

We are faced with the question whether the giving of the charge constitutes error in a particular case, that is, whether it constitutes error under the facts and circumstances of the instant case.

As heretofore indicated, all of the witnesses in the case, except the defendant, were called to testify by the State. In making known his exception to the charge, no reasonable conclusion can be reached other than that the defendant deemed it to be applicable to his own testimony, and perhaps to his own testimony alone. After defendant’s testimony and when defendant rested, the State called one witness, one witness only, in rebuttal. She was the mother of defendant who, as previously indicated, testified to some extent in contradiction of defendant’s testimony, to the effect that defendant came by her house on the way from the place his wife was shot to the hospital. Unfortunately, both parties seem to take the position that this evidence by defendant’s mother constituted an impeachment of him. Semantics is involved, for as stated in Richardson, supra, contradiction by one witness of other witness is not an impeachment of the other witness. In the argument of defendant’s counsel and in the closing argument of State’s counsel, the particular testimony introduced in rebuttal by the State is referred to as impeachment or impeaching testimony. In the concluding argument of State’s counsel, we find:

“He went over two miles out of his way over to his mother’s house. I’ll tell you what. His own mother has made him not speak the truth to you. His own mother has impeached his testimony.”

In the field of evidence, as elsewhere, “impeach” or “impeachment” can have more than one meaning, and sometimes a variety of meanings. Especially should there be a distinction between successful impeachment and unsuccessful impeachment, a distinction between evidence of incredibility and establishment of incredibility, a differentiation between some evidence that a witness is unworthy of belief and undisputed evidence that he is unworthy of belief. To ignore such distinction is to lead to unjust results.

Careful consideration of the several methods of impeaching a witness leads to the reasonable conclusion that not every one of them would establish that the witness is unworthy of belief. For instance, although a witness may be impeached by showing a statement made by him that is contradictory of his testimony in a particular case, this in and of itself would not justify a rejection of all of his testimony, as plausible and as credible as his testimony otherwise appears.

We conclude that whenever and wherever it has been said and held that the impeachment of a witness, standing alone, has the effect of entitling a jury to disregard the testimony of the witness, it is correctly applicable only to a situation where the witness has been so impeached as to be shown to be unworthy of belief.

It is worthy of observation, we think, that in criminal cases the question of the propriety of an instruction to the jury such as the one under consideration has arisen chiefly as to the refusal of written charges requested by defendant. As the burden of proving the defendant’s guilt is upon the state, and without proof of defendant’s guilt he cannot be convicted, it can be readily seen that if proof of his guilt is dependent entirely upon the testimony of a witness who has been shown to be unworthy of belief, the jury should be caused to understand that they may disregard the testimony of such witness and find the defendant not guilty. Non sequitur, however, that in every case, a jury may properly be so instructed as to be caused to understand that the emphatic testimony of a defendant, the only witness for the defense and the only living eyewitness to the alleged crime, may be disregarded, even though the evidence shows him to be a witness unworthy of belief. In the first situation, a conviction is dependent upon the truth of the testimony of the particular witness; in the latter, an acquittal is not necessarily dependent upon the testimony of the particular defendant; it could be based solely upon the impotence or weakness of the testimony for the state. To add to the charge the proviso, “Unless his testimony is corroborated by other testimony not so impeached,” is to impinge upon the principle of the burden of proof and the presumption of innocence, and is to compound the confusion and exacerbate the injury to defendant that could be expected to result from the giving of such a charge under the circumstances of the instant case.

The fact that counsel for the State, at his first opportunity, requested clarification of the particular instruction by saying, “I would like for the Court to define to the jury venire the meaning of the term impeachment of testimony,” emphasizes the importance of a clear understanding by the jury of what the court meant by “impeachment” of a witness in charging the jury on the subject. The court erred to the injury of defendant in giving the particular instruction in its oral charge, to which defendant specifically and sufficiently excepted.

Although defendant may have been greatly discredited as a witness in the minds of the jury in the strong cross-examination of him by counsel for the State, particularly as to incidents in the matrimonial life of defendant and the victim, which indicated gross mistreatment of his wife by him, nothing in his testimony, or any of the testimony of any other witness, constituted any of the recognized definite methods of impeaching a witness. None is claimed, as indicated above, other than the conflict between his testimony and the testimony of his mother. Assuming that he was not telling the truth as to the point, this would not in and of itself authorize the jury to disregard his testimony as a whole, particularly as to who fired the pistol that killed his wife. To hold otherwise would be in conflict with the established principle that false testimony of a witness, in and of itself, will not justify the rejection by the jury of the testimony of the witness unless it is wilfully false. Patton v. State, 156 Ala. 23, 46 So. 862 (1908); Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969); Palmer v. Rucker, 289 Ala. 496, 268 So.2d 773 (1972).

“In the oral charge the court also stated in regard to the impeachment of a witness, that, if the jury believed that any witness had testified falsely as to some material fact, they may at their discretion disregard the remainder of his testimony. The opinion of the Court of Appeals concedes that this oral instruction incorrectly stated the rule of law in that respect. In Montgomery v. State, 17 Ala.App. 469, 86 So. 132, reviewed by this court in Montgomery v. State, 204 Ala. 389, 85 So. 785, it was pointed out that before a jury is authorized to disregard the testimony upon the principle of falsus in uno, falsus in omnibus, it must appear that the testimony so given was wilfully false, and that it related to material matters. Numerous authorities are cited, both from the Court of Appeals and from this court, and the statement is so well understood as to call for no further citation in that regard.” Pinkerton v. State, 246 Ala. 540, 541, 22 So.2d 113, 114.

Appellant insists that the trial court was in error in admitting in evidence, over objections of defendant, testimony as to the details of prior difficulties between the deceased and the accused. Several instances in the cross-examination of defendant are made the basis of this insistence. To decide either way and show our reasons therefor would unduly extend this opinion in its already unusual length. By reason of the necessity for a reversal on the grounds already stated and the possibility or likelihood that the cross-examination of defendant in another trial will not follow in detail the cross-examination on the trial under review, we forego for the time being a determination of the particular issue.

For the reasons above stated, the judgment of the trial court should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., who dissents.

      . “[I]f the witness has been impeached, his entire testimony may be disregarded, unless corroborated by the testimony not so impeached.”


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte State of Alabama ex rel. Attorney General. (In re Herbert STOCKARD v. STATE of Alabama).
    79-266.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Rehearing Denied Sept. 26, 1980.

      Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for petitioner.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for respondent.
   MADDOX, Justice.

In its petition for writ of certiorari, the State asks this Court to review the judgment of the Court of Criminal Appeals, 391 So.2d 1049, in reversing the first degree murder conviction of the defendant, Herbert Stockard. In support of its petition, the State makes two basic contentions:

(1) The Court of Criminal Appeals erred in holding that statements made by the victim in an extrajudicial conversation held outside the presence of the defendant were inadmissible because: the statements were made in a conversation which was a part of the res gestae, and, the portion of the conversation was first introduced by the defendant; therefore, the State could introduce the whole of it.

(2) The Court of Criminal Appeals erred in holding that the trial court incorrectly charged the jury:

“If any witness testifying has been impeached, then the jury may disregard his testimony, unless his testimony is corroborated by other testimony [which is] not so impeached.”

We have considered the arguments presented by the State, and by the defendant, and we conclude that the decision of the Court of Criminal Appeals is due to be reversed and remanded for the reasons which we will set out in this opinion.

The opinion of the Court of Criminal Appeals sets out substantially all of the evidence surrounding the extrajudicial statements of the victim which that court held was inadmissible. We do not set it out again; for a better understanding of the issues, we do point out that the extrajudicial conversation was first mentioned while the victim’s daughter was being examined by the State. The victim’s daughter, by an unresponsive answer, first introduced the statement her mother had made:

“Q. Were you drinking that day?
“A. No, sir.
“Q. Night?
“A. No, sir. I sure wasn’t.
She [Mrs. Stockard] came in and that is when she said if anything happened to her to tell the police who she was with and I told her nothing was going to happen to her. . . .
“MR. TWEEDY: I move to exclude that. That is not something in the presence and hearing of the defendant.
“COURT: Granted.
“MR. TWEEDY: I ask the Court to instruct the jury to disregard . . .
“COURT: Jury disregard the last statement of the witness.”

At that time, as the Court of Criminal Appeals correctly points out, the unresponsive answer was excluded by the court and the jury was instructed not to consider it.

Defendant’s counsel, on cross-examination, went back into the matter and asked the witness specifically about the conversation she had with her mother:

“Q. You said you talked Bev into going back with him that night?
“A. She . . .
“Q. I believe you told the District Attorney a while ago that . . .
“A. She told me she was afraid he was going to hurt her and we had been talking that day and . . .
“Q. All right. What I’m asking is you said she told you she thought Herbert was going to hurt her and you told her to go on back with Herbert, didn’t you? “A. Yes, I told her to go ahead that he probably wouldn’t hurt her.
“MR. BAKER: I would like to bring it to the Court’s attention that this is hearsay testimony that we haven’t been allowed to go into heretofore and since this comes from defense counsel the state intends now to explore that on redirect.
“MR. TWEEDY: Your Honor, this was brought out by the State and she testified on direct examination and the State brought this out that she talked Bev into going back with him on that night. She so testified on direct examination when Mr. Baker asked her.
“MR. BAKER: I just want to point that to the Court on redirect.
“MR. TWEEDY: I point out to the Court also that I did not go into this myself, first. He started into the matter himself.
“Q. Now, when you told her to go on back with him did you call the law?
“A. No, sir. She went to the truck . . .
“Q. I’m just asking . . . Did you call the law?
“A. No, sir.
“Q. Did you make any effort to get anybody up that way to stop them?
“A. No, sir.”

The Court of Criminal Appeals held:

“We are convinced that the trial court, in its commendable effort to obtain the correct answer to the profusely argued question as to which party first injected evidence as to a conversation between the victim’s daughter and the victim quite understandably came to an incorrect conclusion to the effect that it was first injected by defendant’s counsel. It seems to us that it was first injected by the irresponsive answer of the witness to a question asked her on direct examination by the State. For this, neither the defendant nor his counsel was responsible.
“In addition, we are not persuaded that even if, under all the circumstances, defendant’s attorney had first asked the witness some question pertaining to a conversation between her and her mother, out of the presence of defendant, such action would have opened the door to the introduction by the State of everything said by the victim during such conversation. The testimony of the witness as to what the mother said to her would on its face have been hearsay, but some of that which was said, or that could have been said by the mother, could have well been under one or more of the many exceptions to the hearsay rule of exclusion. The admissibility in evidence of anything said by the victim that came within any exception to the hearsay rule of exclusion, where shown by one party, would not entitle the other party to introduce evidence of what the victim said, out of the presence of the defendant, that would not come within an exception to the hearsay rule.
“The most damaging part of the testimony of the witness as to what her mother told her was that part of her answer quoted above, in which she said, ‘She hugged my neck and told me if anything happened to her to be sure and tell the police who she left with.’ Neither that statement nor substantially the same statement of the victim as shown in the testimony of the witness for the first time on the subject, which was excluded from the consideration of the jury on motion of defendant, falls within any exception to the hearsay rule. We do not agree with the position taken by appellee, that ‘It was part of the res gestae, or part of the events leading up to the killing.’ In support of its position it cites Martin v. State, 77 Ala. 1 (1884) and Harris v. State, 96 Ala. 24, 11 So. 255 (1892). In each case, the trial court was upheld for admitting in evidence the statement of the victim of an alleged homicide as he was leaving on his last journey before he was killed. A similar conclusion was reached in Thornton v. State, 253 Ala. 444, 45 So.2d 298 (1950) holding that the statement was admissible as a part of the ‘res gestae of the act being performed or immediately contemplated by the declar-ant, the act of beginning or contemplating the trip or journey.’ Before proceeding further, we should invite attention to the confusion that has been noted by use of the term ‘res gestae ’ in designating an exception to the rule against hearsay. Illinois Central R. R. v. Lowery, 184 Ala. 443, 63 So. 952 (1913); 6 Wigmore, Evidence, § 1745 (Chadbourn rev. 1976); Gamble, McElroy’s Alabama Evidence, § 265.01(1) (1977).”

As we read the court’s opinion, we think the court held that the defendant did not first inject the conversation into evidence. We cannot agree with this finding. That court is correct in stating that it was “first injected by the irresponsive answer of the. witness.” The distinguished judges of that court apparently thought it irrelevant that the defendant’s counsel, after getting the trial court to exclude the unresponsive answer, asked the witness about the very same conversation, after being warned by counsel for the State that he was opening the door for the introduction of the other portions of the conversation. Based solely upon the testimony excerpted by the Court of Criminal Appeals and included in its opinion, we determine that defendant’s counsel, not the State, injected the extrajudicial conversation into evidence.

The Court of Criminal Appeals apparently aware that there could be a colorable question as to which party injected the conversation into evidence, stated that even if the defendant first injected the conversation into evidence, the result was the same because:

“... The admissibility in evidence of anything said by the victim that came within any exception to the hearsay rule of exclusion, where shown by one party, would not entitle the other party to introduce evidence of what the victim said, out of the presence of the defendant, that would not come within an exception to the hearsay rule.”

We conclude that this holding by the Court of Criminal Appeals is in conflict with this Court’s opinion in Logan v. State, 291 Ala. 497, 282 So.2d 898 (1973), wherein it was stated:

“. . . [W]hen part of a conversation or transaction is put in evidence, the opposite party may rightfully call for the whole of it, although the evidence was in the first place illegal. Gibson v. State, 91 Ala. 64, 9 So. 171. Further, it has been held that when the defendant, on cross-examination of a witness elicits part of a conversation, the State may in rebuttal show the entire conversation. Davis v. Stone, 131 Ala. 10, 31 So. 569; Flournoy v. State, 34 Ala.App. 23, 37 So.2d 218.”

It appears to us that the Court of Criminal Appeals, in applying the rule that one party can show the entire conversation when the opposing party has introduced a portion of it, made a distinction between admissible and inadmissible hearsay. We do not think that Logan authorizes such a distinction. The rule of admissibility has been explained in McEiroy’s Alabama Evidence as follows:

“It is generally said, although sometimes loosely, that if one party proves any part of an oral conversation or oral statement, the other party has the right to prove all that was said on the same occasion [citing Logan v. State]. More correctly stated, the general rule is that only so much of the remainder of the statement or conversation is admissible as relates to the subject-matter of the part brought out by the opponent.”

C. Gamble, McEiroy’s Alabama Evidence § 316.01 (1977). Thus, relevancy to the subject matter brought out is the standard by which a party might call for the remainder of a conversation partially proved by his opponent.

The opinion of the Court of Criminal Appeals conflicts with this Court’s opinion in Logan v. State; we reverse and remand.

Even though we agree with the State’s argument on the admissibility of the conversation, we reject the State’s argument that the victim’s conversation was also admissible under the res gestae exception to the hearsay rule. The Court of Criminal Appeals was correct in holding that the res gestae exception was inapplicable.

With regard to the second issue raised by the State, we agree with the Court of Criminal Appeals that a distinction must be made between the testimony of a witness impeached by contradiction and the testimony of a witness shown to be unworthy of belief. In charging a jury concerning the appropriate treatment of these distinct types of testimony, it is incumbent upon the trial court to give significantly different instructions. When a witness has willfully sworn falsely and is, therefore, shown to be unworthy of belief, the jury is entitled to disregard his entire testimony and may be so charged. Jordan v. State, 81 Ala. 20, 1 So. 577 (1886). By way of comparison, however, when a witness is merely impeached by contradiction, the jury may disregard only such portions of his testimony as are controverted and otherwise uncorroborated by other credible and unim-peached witnesses. Recognizing these distinctions in treatment, we raise the question as to which type of charge, if either, was appropriate in the present case.

It is clear from the record that there was never any witness shown to have willfully sworn falsely; however, the defendant was contradicted by his mother, who testified to the effect that the defendant came by her house before taking his wife to the hospital. The defendant had testified earlier that when he realized his wife was injured, he drove her straight to the hospital. In view of this contradiction, the state duly requested that the jury be charged concerning the proper treatment of the testimony of an impeached witness. The charge which was given was a proper evidentiary charge, and its usage in this case did not constitute prejudicial error.

The Court of Criminal Appeals expressed its deep concern over the giving of the charge in the present case because it believed the jury may have relied upon it as a license for disregarding everything the defendant said. Since the defendant was the only witness called in his behalf, the court believed this would be tantamount to destroying his only defense. We disagree. When a defendant decides to testify, his testimony is subject to the same scrutiny and rules of evidence as the testimony of any other witness. In the present case, the defendant was impeached, and the jury was thus entitled to treat his testimony as it would the testimony of any other impeached witness.

The fallacy of the holding by the Court of Criminal Appeals becomes clear when one studies the longstanding rule set out in the case of Jordan v. State, supra. In that case, the jury was instructed concerning the possible willful and corrupt false swearing of three witnesses, with the defendant being specifically named in the charge. Notwithstanding the fact that the jury was instructed that it might disregard the defendant’s entire testimony, the charge was upheld as a correct statement of the law and fully proper. At 81 Ala. 31-32, 1 So. 585, the Court held:

“... The present charge is based on the willful and corrupt false swearing of the witnesses. In such case there is no error in instructing the jury that they may disregard their evidence. If the defendants apprehended that the jury might consider the instruction as imperative, or if the testimony of the witnesses was corroborated by other unexceptionable evidence, they could have limited the effect and operation of the maxim by an explanatory charge.”

We recognize that the charge in Jordan was one dealing with false swearing; however, the principle of that case is applicable here. The oral charge involved in the present case is much less specific than that used in Jordan in that it addressed the impeachment of “any witness.”

The giving of the instruction was not prejudicial in light of the underlying facts. If the defendant felt the charge was confusing or left the impression that the jury was required to disregard his entire testimony, he should have filed a proper request for an explanatory charge. Having failed to do so, he cannot now claim that the charge was improper.

REVERSED AND REMANDED.

TORBERT, C. J, and FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

BLOODWORTH, J., not sitting.


text:
    Herbert STOCKARD v. STATE.
    6 Div. 132.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.

      Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for appel-lee.
   AFTER REMANDMENT BY THE SUPREME COURT OF ALABAMA

LEIGH M. CLARK, Retired Circuit Judge.

In accordance with appellant’s “Motion to consider issues in original brief heretofore not considered” by this Court, we hereby supplement our opinion on original submission, 391 So.2d 1049.

As stated in the last part of the opinion on original submission, the particular issue that was not determined at that time was as to the insistence of appellant “that the trial court was in error in admitting in evidence, over objections of defendant, testimony as to the details of prior difficulties between the deceased and the accused.” Appellant states in his brief on the point:

“The State was allowed over the objection of the defendant to elicit testimony from the defendant that he had beaten the deceased on several occasions, (R. 260, 261), and in fact has slapped the deceased hard enough to black both eyes in April of 1978 (R. 261). State was allowed to further question the defendant as to how many times he had slapped the deceased, and the fact that he had put her into the hospital (R. 262, 292, 293, and 294). The State was allowed to put before the jury evidence that should have been kept from their consideration.”

The references in appellant’s brief to pages 260 and 261 of the transcript relate to the first part of the cross-examination of defendant immediately after he had been asked on direct examination, “Did you love Bev?” and had answered “Yes, sir, I did.” The following constitutes the entire remainder of pages 260 and 261:

“Q. You say you loved your wife, Mr. Stockard, is that correct?
“A. Yes, sir.
“Q. As a matter of fact you beat your wife up on several occasions, didn’t you?
“MR. TWEEDY: Wait just a minute. I object to that. It is incompetent, immaterial and irrelevant. It has no bearing on the issues in this case. The question was asked, ‘Do you love her?’ The question was at that time. It is not going back into past history.
“MR. BAKER: I think love is past tense. Did you love . . . Past tense.
“THE COURT: Overruled.
“MR. TWEEDY: We except.
“Q. In fact, Mr. Stockard, you had beat Beverly up on several occasions, didn’t you?
“MR. TWEEDY: Wait just a minute. I object to that. It is irrelevant, incompetent and immaterial. Seeks to go into prior matters prior to the date of this difficulty. Time is not limited. It is only prejudicial to the defendant.
“THE COURT: Overruled.
“MR. TWEEDY: We except.
“Q. You and Beverly had had a stormy marriage, haven’t you?
“MR. TWEEDY: That’s irrelevant, incompetent and immaterial.
“THE COURT: Overruled.
“MR. TWEEDY: We except.
“A. Yes, sir, we didn’t have the best marriage.
“Q. As a matter of fact, you and her had had fights in which you had beat her up, isn’t that correct?
“MR. TWEEDY: I object to that, Your Honor. Same grounds.
“THE COURT: Overruled.
“MR. TWEEDY: We except.
“A. I had slapped her before, yes.
“Q. Slapped her.
“A. Yes, sir.
“Q. How hard had you slapped her, Mr. Stockard?
“A. I don’t know.
“Q. You slapped her hard enough to black both eyes back in April of 1978, didn’t you?
“MR. TWEEDY: I object to that. Incompetent, immaterial and irrelevant. Seeks to go into prior [at this point page 261 ends and page 262 begins] difficulties they had had before then and has no bearing on this issue at this time.
“THE COURT: Sustained.”

It is to be noted that the court sustained defendant’s objection to the question whether defendant “slapped her hard enough to black both eyes.”

As indicated in appellant’s brief, the court overruled defendant’s objections to questions asked defendant as to how many times he had slapped the deceased in 1978, but a modification of that inquiry is shown by the following portion of pages 262 and 263 of the transcript:

“Q. Before she died in August 26, last year, you have told her you slapped her. When was the last time you slapped her before she died?
“MR. TWEEDY: I object. It seeks to go into prior difficulties.
“THE COURT: Overruled.
“MR. TWEEDY: We except.
“A. I don’t know.
“Q. You don’t know.
“A. No.
“Q. Well, when was the last time you remember slapping her?
“MR. TWEEDY: Same objections and same grounds.
“THE COURT: Overruled.
“MR. TWEEDY: We except.
“A. I don’t recollect really.”

The first reference to any connection between defendant’s slapping his wife and her being put into the hospital is noted during cross-examination of defendant on pages 263 and 264 of the transcript as follows:

“Q. In fact you slapped her and put her in the hospital back in April, didn’t you?
“MR. TWEEDY: I object to that, Your Honor. Incompetent, immaterial, irrelevant. Goes into prior difficulties and has no bearing on the issues of this case. Only prejudicial to the defendant.
“THE COURT: Overruled.
“MR. TWEEDY: We except.
“Q. You slapped her and beat her up and put her in the hospital back in April and she left you, isn’t that correct?
“A. No, sir, it’s not.
“Q. It’s not correct?
“A. No, sir.
“MR. TWEEDY: Give me an objection. I was trying to object to it.
“THE COURT: Overruled.
“MR. TWEEDY: We except.
“Q. She went in the hospital back in April, didn’t she?
“MR. TWEEDY: I object to that. Incompetent, irrelevant, and immaterial. No bearing on the issues of this case.
“THE COURT: Sustained.”

The references in appellant’s brief to pages 292-294 of the record relate to cross-examination of defendant in which we do not find any question or evidence pertaining to defendant’s putting his wife in a hospital.

We are unable to conclude from the record that the trial court admitted, over objections of defendant, evidence as to former difficulty or difficulties between defendant and his deceased wife to the extent asserted by appellant. To some extent, at least, the State was entitled to cross-examine defendant on the subject of his love for his wife, which he had injected into the case. This can be said without approval of all of the rapid-fire, and to some extent argumentative, cross-interrogation of the defendant. Furthermore, we do not agree with appellant’s insistence that evidence of his having slapped or beaten his wife to such an extent as to blacken her eyes or otherwise substantially injure her would constitute inadmissible details of a former difficulty. Appellant places special reliance upon Holland v. State, 62 Ala. 5, 11, 50 So. 215 (1909) in which it is stated:

“The state had the right to show a former difficulty between defendant and the deceased, for the purpose of showing malice; but the fact that the decedent’s face was swollen and bruised about three weeks before the killing had a tendency to enter into the details of the difficulty and should not have been admitted. McAnally v. State, 74 Ala. 9.”

A case more in point, we think, is Copeland v. State, 252 Ala. 399, 403, 41 So.2d 390 (1949), in which it is stated:

“Confining consideration to specific objections made, we will notice in passing that under the issues presented, testimony indicating prior difficulties between the parties and prior assaults on the deceased by the defendant and the nature and gravity thereof was material evidence in the case. Bryant v. State, ante [252 Ala.], p. 153, 39 So.2d 657(4); Buffalow v. State, 219 Ala. 407, 122 So. 633.”

In Copeland, supra, the victim was defendant’s mistress, and part of the evidence admitted as to former difficulties between the two was that he had beaten her “and her eye was blacked and her body had bruises all over it.” Certainly, appellant, the alleged murderer of his wife, has no more standing to object to evidence as to previous injury to her than did Copeland, the alleged murderer of his mistress.

In addition, we should mention the large measure of discretion that should be allowed the trial judge in determining the admissibility of proposed evidence as to a former difficulty between a defendant and the alleged victim of a homicide, which has been recently emphasized. Davis v. State, Ala.Cr.App., 331 So.2d 813 (1976); Padgett v. State, 49 Ala.App. 130, 269 So.2d 147, cert. denied, 289 Ala. 749, 269 So.2d 154 (1972); Gamble, McElroy’s Alabama Evidence, § 45.06(2) (1977). Judge McElroy largely gives credit for the beneficence of the modern rule to Justice Harwood in opinions written by him, while a judge of the Court of Appeals of Alabama, beginning with Dodd v. State, 32 Ala.App. 504, 27 So.2d 259 (1946).

We find no error as to any of the issues presented by appellant that were left undetermined in the opinion on original submission.

The judgment of the trial court should be affirmed on authority of the decision of the Alabama Supreme Court in Ex parte State (In re Stockard v. State), 391 So.2d 1060 [Ms. 79-266 Aug. 8, 1980],

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

AFFIRMED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Theodore Roosevelt MITCHELL v. STATE.
    2 Div. 259.
    Court of Criminal Appeals of Alabama.
    April 1, 1980.
    Rehearing Denied June 17, 1980.
    Steven W. Ford, of Ford, McElvy & Ford, Tuscaloosa, for appellant.
    J. Douglas McElvy, of Ford, McElvy & Ford, Tuscaloosa, for appellant, on rehearing.
    Charles A. Graddick, Atty. Gen., Sara Kathryn Farnell, Asst. Atty. Gen., for appel-lee.
   CLARK, Retired Circuit Judge.

Appellant’s sole contention for a reversal of his conviction for burglary in the second degree is based upon the denial of his motion to suppress as evidence two items of personal property that had been stolen from the burglarized premises, which were later found by officers on a warrantless search of a hotel room in which appellant was the registered guest. He insists that the search was in violation of the Fourth Amendment to the Constitution of the United States. He asserts two separate reasons for his insistence:

1. That appellant was unlawfully arrested and that such unlawful arrest vitiated any claimed right to conduct the search.
2. That appellant did not validly consent to the search.

Notwithstanding the strong undisputed circumstantial evidence of defendant’s guilt, we recognize the seriousness of the questions raised by appellant’s industrious counsel and proceed to a determination thereof in the light of the extraordinary circumstances surrounding the search.

It was established by the evidence that on the night of March 19-20,1979, the building from which W. V. Brown Lumber Company, Inc., a corporation, conducted its business was broken into and entered, and a large amount of personal property belonging to said company and Bill Brown’s Saw Mill, Incorporated, was taken therefrom. Included were a calculator, a typewriter, a check writing machine and some blank checks. The blank checks had the name “Bill Brown Saw Mill, Incorporated,” printed thereon. The burglarized building was in Briarfield, Bibb County, Alabama.

Ms. Freeman testified that on March 21 or 22, 1979, while working as cashier for Food World in Riverchase, Jefferson County, she placed her mark of approval on a check presented by a person whom she identified as the defendant, which check was identified by an official of Bill Brown’s Saw Mill, Incorporated, as one of the checks missing from the burglarized building the morning thereafter. The check showed in printing the name of “Bill Brown’s Saw Mill, Inc.” and was purportedly signed in handwriting by Bill Brown. Printed thereon was “Pay to the order of” and immediately thereafter there was stamped thereon “Theodore Mitchell.” The check was endorsed “Theodore Mitchell” in handwriting prior to the presentation of the check to the cashier at the store. Ms. Nancy Davis testified that on or about March 21 or 22, 1979, while working as cashier for Food World in Pelham, Shelby County, Alabama, she took in for merchandise a check from defendant for a different amount but in all other respects similar to the other check. Bill Brown testified that his purported signature to the checks was false. Both checks were returned by the drawee bank through banking channels to the respective stores.

Mrs. Sarah Moore, who lived in Monteval-lo, Shelby County, Alabama, testified that on the night of March 19, 1979, defendant and her cousin Irvin Cottingham borrowed her automobile. She said that the next morning she observed at her house some things that had not been there previously, including a typewriter, an adding machine, some “other type machine” and a check. She said she asked defendant “where they came from” and that his answer was, “he said wasn’t nothing to hurt me. Never did say where came from.” She told him to “get it out” and that defendant did so “that day or that afternoon.”

Irvin Cottingham, who had also been indicted for the same burglary, testified that he and appellant went to Brown Lumber Company the evening of March 19, 1979, that he let the appellant out of the automobile and at appellant’s direction drove around the block and after doing so the second time, he saw appellant at the fence of the lumber company. According to the testimony of Cottingham, appellant had one “big machine” and some others; he helped appellant put the big machine over the fence and in the automobile. He saw a typewriter, and an adding machine and something else. He also saw some checks. They took the items to the house of his cousin. He left soon thereafter and went to the home of his grandmother in Montevallo, with whom he was living at the time. He said he saw appellant the next day; appellant asked him to sign two or three checks by the name “Bill Brown” and the name “Theodore Mitchell” thereon, which he did. He further testified that two or three days after he wrote the names on the checks he and appellant went in Cottingham’s automobile to Montgomery and from there to Mobile, where they were arrested and were afterwards returned to jail in Bibb County.

According to the testimony of Henry Vernon Rothe, III, of the Mobile Police Department, the arrest of appellant and Cottingham took place in Mobile after he had seen an automobile driven by appellant, and also occupied by one he afterwards determined was Cottingham driving to the left of the center line of a two-way street in Mobile. He signaled the automobile down which led to a series of developments, which will now be narrated so as to present the circumstances surrounding the search of appellant’s hotel room and the seizure of a stolen calculator and typewriter, as to which the court overruled defendant’s motion to suppress as evidence.

There was a hearing on the motion to suppress out of the presence of the jury. The evidence on the hearing on the motion to suppress consisted exclusively of the testimony of Officer Rothe. The court announced its ruling on the motion by stating that it did not think that “it was an unreasonable search and seizure.” Thereupon the in-camera hearing was concluded and Officer Rothe continued with his testimony in the presence of the jury. At the conclusion of his testimony and of the short testimony of a witness who identified the calculator and typewriter as items taken from the building at the time of the burglary, the items were received in evidence over the objection of defendant.

According to the only testimony as to what occurred between the time the automobile which was being driven by defendant at the time he was signaled down by Officer Rothe and the search of appellant’s hotel room and discovery of the calculator and typewriter, Officer Rothe drove up to the stopped automobile, a 1970 Lincoln Continental, which was being driven by appellant at the time of the traffic violation, but which was owned by Irvin Cottingham; Officer Rothe asked appellant, the driver, for his driver’s license. Appellant handed him a license which had the picture of appellant thereon, which the officer recognized as a picture of appellant, but the name thereon was not the name of appellant. The name thereon was the name “Irvin S. Cotting-ham.” Before there was any effort to formally arrest and further detain appellant, Officer Rothe “ran a check to make sure there was nothing outstanding on the subject.” He received a reply from N.C.I.C. [National Crime Information Center] that there was “a state-wide pickup for a traffic attachment from Montevallo Police Department.” He learned that there was an outstanding warrant for a traffic violation by Irvin S. Cottingham, the man whose name was on the Alabama State Driver’s License the appellant handed the officer and which had on it the picture of appellant. Upon observing the persons in the automobile, the officer saw a billfold in open view on the front seat of the automobile that was in addition to the billfold that contained the mentioned driver’s license. The billfold on the seat had on it the name “Irvin S. Cot-tingham.” The officer then placed appellant under arrest, and the officer’s testimony continued as follows:

“A. I tried to ascertain from Mr. Cot-tingham, the real Mr. Cottingham’s identification. He informed me that his name was Scott Harell. He gave me a date of birth and I asked him to give me his Social Security number. He said he had never had a Social Security number. I asked him where he lived and he said he lived in Montgomery yet he wasn’t able to produce an address. I asked him where he lived before Montgomery and he said he lived in Brooklyn, New York. He was unable to answer some simple questions about New York City.
“Q. All right. Now, after you took him in custody, did you take their car into your police station?
“A. I inventoried the automobile and towed it in. That’s the policy of the police department there. I had them in custody.
“Q. What was the occasion for you going to the department?
“A. Well, there’s a lot that leads up to that. Do you want to skip and go to it or finish?
“Q. Just whatever the occasion was for you to going to the department.
“A. Well, we went to the Detective Bureau and I was more worried about Mr. Harell’s true identification than the traffic attachment on Mr. Mitchell. He was still unable to answer any real questions and I asked him what he did with the billfold that I had retrieved, which had identification belonging to an Irvin S. Cottingham and I believe about $80 in U.S. currency. I gave that billfold to him when I towed the automobile. I believed him to be Mr. Cottingham and I was highly suspicious of anyone having two wallets with two sets of identification and sums of money in each.
“Q. Now what occasion or how does that relate with the occasion of your going to the apartment?
“A. Okay. I asked Mr. Mitchell—
“Q. (Interposing) This man here?
“A. That’s correct.
“MR. GREENE: (Interposing) Believing him to be Cottingham?
“THE WITNESS: Believing him to be Cottingham. The real Mr. Cottingham who had rented the motel room they were staying at. Mr. Mitchell implied that he had. At that time I asked him if we could have him sign a Consent Search Form allowing us to go and look in the room to find any identification which would substantiate Mr. Cottingham’s claim to be—
“Q. (Interposing) Let me stop you right there. Where did this take place, at the police station?
“A. That’s correct.
“Q. And were you aware of his address at the police station? They tell you what his address was while you were at the police station? Did he inform you of his address?
“A. Yes, sir. He said he was staying at the LaGrander Hotel.”

Officer Rothe further testified that soon after the patrol car arrived át headquarters with the men, a marijuana cigarette was found in it. He said that a short time after appellant and the real Cottingham had been brought to police headquarters, he had asked appellant if he would consent to a search of his hotel room, telling him that he needed to learn more about the identity of the two men in custody and to learn if there was any more marijuana in the hotel room. Appellant declined to give him his consent; he refused to sign a consent form. Soon thereafter, however, according to Officer Rothe, appellant “stuck his head out the door and said, ‘If I sign it, can I go with you?’ ” The officer said he then told him that it was his intention to take him because “we wanted to bring his property back so it would not be left unattended in the hotel or motel room.” The appellant then signed the consent form, which was witnessed by the real Cottingham, who continued to go by the name of Harell. Cot-tingham was then placed “in jail for marijuana personal use.” While doing so, appellant ran out of the building and “several moments later he was apprehended at the bus station, the Greyhound Bus Station.” Thereafter, without any indication by appellant that he was withdrawing his consent he gave to search his hotel room, Officer Rothe accompanied by another officer and appellant, went to the hotel room. Officer Rothe opened the room with the key provided by appellant. In the room were found the calculator and the typewriter, as well as many other items, including a packet of marijuana.

In insisting that the arrest of appellant to the extent of his being taken to jail and booked was an illegal arrest, he relies largely upon Code of Alabama, 1975, § 32-5-310, pertaining to arrest procedure and the enforcement of laws relating to motor vehicles, which provides that the officer may arrest if the offense be committed in his presence and further:

“If the arrest be made without warrant, the accused may elect to be immediately taken before the nearest court having jurisdiction, whereupon it shall be the duty of the officer to so take him. If the accused elects not to be so taken, then it shall be the duty of the officer to require of the accused a bail bond in a sum not to exceed $300.00, conditioned that the accused binds himself to appear in the nearest- court having jurisdiction at the time fixed in the bond.”

If nothing had occurred theretofore other than that appellant had violated the law in driving the automobile on the wrong side of the road, it is clear that the officer would have exceeded his lawful authority in not releasing him on his own bond as provided by the quoted statute. In fact, the evidence shows that if nothing more were then involved than the traffic violation, the particular statute would have been punctiliously observed. Much more was involved. It called upon an officer to do more, in the performance of his duty as an officer, than he is required and expected to do when nothing more than the violation of a traffic law is observed by him. Before actually taking appellant and his companion in custody, the officer had learned that the person whose name was on the driver’s license was wanted in Shelby County on a warrant for a violation of a traffic law. The officer was not able to fathom the deception that both appellant and Cottingham were perpetrating, but he had good reason to believe that neither the driver nor the other person in the automobile made known to him his identity. The right that one has to make his own bond for a traffic violation cannot within reason be said to extend to one who having committed a traffic violation is reasonably believed to be concealing his identity, so that his bond would be worthless. This is exemplified by the fact that at the time, defendant was being sought on a warrant for a traffic violation. The quoted provision of Code of Alabama, § 32-5-310 is not applicable to the circumstances of the instant case. The arrest of the appellant was not unlawful.

A warrantless search does not constitute the violation of one’s Fourth Amendment right if he has given his consent to such a search, voluntarily, intelligently and knowingly. Daniels v. State, 290 Ala. 316, 276 So.2d 441, 443 (1973); Cook v. State, 56 Ala.App. 250, 320 So.2d 764 (1975); Welden v. State, 57 Ala.App. 379, 328 So.2d 630 (1976).

A person who registers for a hotel room may give legal consent to its search. Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974).

There was no testimony, express or implied, that appellant’s consent to the search of his room was not voluntarily, intelligently and knowingly given. The only reasonable conclusion from all the circumstances is otherwise. There was no deception practiced on appellant. The fact that he at first refused to give his consent is no evidence of involuntariness; especially is this true in view of his subsequently volunteering to consent to the search on the condition that he be allowed to be present when the search was made. It could be argued, but with little foundation, that at such time he was planning to escape. In answer, it could as reasonably be said that when he was apprehended after his attempted escape, his failure to withdraw his consent was more consonant with voluntariness than contrary thereto. Furthermore, he had reason to believe that by being allowed to be present at the time of the search of the room, he could conceal, or divert the attention of the officers from, any marijuana in the room, which otherwise he could not do if the officers were allowed to take their time and procure a search warrant. Moreover, he had reason to believe that the officers at that time had no information as to the burglary and that they at that time had no interest whatever in any of the various items of personal property in his room. There is good reason to believe that he chose what he thought was for his best interest, and such being true, it is not reasonable to assume that his consent was not voluntarily, intelligently and knowingly given. He didn’t gain by it, but he thought he could.

We must qualify what we have just stated that appellant “didn’t gain by it.” It appears that he probably did, as indicated by portions of the record before us inserted therein by action of defendant, in which it was contended by defendant on the trial that he was detained in the Mobile jail and charged with a felony in the possession of marijuana in his hotel room and that he was discharged on that charge by the District Court of Mobile County on the ground that there was an illegal search and seizure of the marijuana in his room. The contention was also made that the district court had discharged him on a contemporaneous charge of buying, receiving or concealing stolen property found in his hotel room, not property, however, involved in the burglary of the Brown Lumber Company, but property involved in a burglary in Montgomery County, and that the district court discharged him on that case on the same ground of an unlawful search of the hotel room and seizure of the property that had been stolen in Montgomery County. His contention in this respect was in general corroborated, although not conclusively established, by correspondence from the judge presiding in such cases in the District Court of Mobile County and by copies of transcripts of the records in those cases. Defendant contended on the trial of the instant case that such action in the two cases in the District Court of Mobile County required a similar ruling by the trial court in the case now under consideration, insisting that such a ruling was required by analogizing the situation to those in which a defendant has prevailed on principles of res judica-ta, collateral estoppel, former jeopardy, au-trefois acquit or the like. As appellant does not present such a contention on appeal, and for the reason that the inconclusive state of the record on the subject is such that an appellate court should have the benefit of the respective contentions of the parties on the facts and on the law before any determination of such issue, if any, we forego it at the present time, having in mind that if it should be determined, it can be done on application for rehearing by either of the parties aggrieved by the judgment and opinion of this Court.

Irrespective, however, of a deferment of the question as to the rulings of the District Court of Mobile County, portions of the record as to such rulings give a significant insight, we think, into the likely workings of the mind of appellant from the time he was stopped in Mobile by Officer Rothe, while he was at police headquarters, when he apparently attempted to escape, during the time his hotel room was in the process of being searched, and from then on until his trial in this case. It is to be noted that, although his appointed counsel pressed the contention that the rulings of the District Court of Mobile County should be disposi-tive in his favor on the motion to suppress the evidence, the proposition was conceived in the mind of defendant, which suggests a deeper consideration of his weird behavior during the entire time.

Items in the record show that on May 18, 1979, a considerate letter was written him by one of the judges of the District Court of Alabama, Mobile County, in acknowledgement of a letter written by him relative to what occurred in the two cases against him in that court. The record does not show a copy of the letter from defendant, but it is clear that it was written while he was in jail in Bibb County by virtue of a warrant of arrest for the burglary here involved and for which he was afterwards indicted by the grand jury of Bibb County. It was also obviously written before May 16, 1979, at which time he first appeared before the District Court of Bibb County in connection with a request for bond and at which time an attorney was appointed for him. The reply to his letter shows that the transcripts of the records or proceedings in the District Court of Mobile County were sent to the authorities in Bibb County, which apparently were the same as those contained in the record on this appeal.

In attempting to arrive at a correct decision as to whether a consent to search has been voluntarily, intelligently and knowingly given, and in viewing the wholeness of all the circumstances, perhaps there is no more important factor to be considered than that pertaining to the intelligence, experience and activities of the one giving the consent. In considering them here, we find from the record that appellant was thirty-five years of age, that Cottingham was twenty-one years of age, that from the time appellant reached approximate maturity, even before he was nineteen years of age, and until the burglary in the instant case, he had been in prison more than out of prison, nine years in state prison and three years in federal prison. On November 7, 1960, he was sentenced in Mobile County to ten years for robbery in each of two cases. He escaped in 1963 or 1965. He had been arrested so many times that he didn’t remember the number. In 1974 he was charged with burglary, second degree, and possession of marijuana in Mobile, which charges were dismissed. His record was noteworthy not only for the number of his convictions but also for the large number of prosecutions in which he had succeeded in preventing convictions.

To any contention that the circumstances show a mistreatment of defendant by Officer Rothe, any effort by him to mislead appellant, or take an advantage of him, the answer is that the weight of any machinations weigh heavily in favor of appellant. It is not to the discredit of Officer Rothe and his partner that they did not always know what they were doing in their handling of the situation; instead of defendant’s being in their hands, they were largely in his hands — a trained and experienced criminal, whose every move was to weave a web around them in order to escape the penalty of the law. To any conjecture that the officer and appellant were engaging in a “cat and mouse game,” the answer is plain that appellant was the cat. More reasonable than any contention that he did not voluntarily, intelligently and knowingly give his consent to the search of his hotel room, is the conclusion that he measured with cunning and care every move he made, every thing he said and did. It is transparent that he well understood that which is not merely a shield for the innocent but which at times can be a weapon for deliverance of the criminal, and with his experience he was able to devise a scheme that to his mind could well have been better for him than by acting otherwise.

It cannot be reasonably doubted that appellant knew that without his consent, there would have been no warrantless search of his room and eventually the officers would have obtained a warrant for the search. He well knew that by bargaining with the officers so as to go with them to the room to search it, he would have some chance to clandestinely dispose of the packet of marijuana therein. He further had reason to believe that as the officers had not put together the jigsaw puzzle as to the identity of defendant and Cottingham, they had no idea that there had been any burglary in Bibb County. The fact that the officers placed the property involved in the motion to suppress, in the property room, instead of then seizing it as evidence, conclusively demonstrates that they knew far less than he did about the matters involved. He also knew that any search without a warrant posed problems for the prosecution and that there was a possibility that if the search revealed evidence of criminality, he had some chance of thwarting prosecution and escaping punishment. He succeeded as to the felony prosecution for the possession of marijuana and the charge of buying, receiving or concealing stolen property. Even as to his purported attempt to escape while at the Mobile Jail, there is good reason to believe that even this was a ploy. He was more the Artful Dodger of Charles Dickens than one of the “Innocents Abroad” of Mark Twain. The trial court was not in error in overruling the motion to suppress and in admitting over defendant’s objection the calculator and the typewriter taken during the course of the burglary in Bibb County, according to the direct evidence of appellant’s accomplice and the undisputed strong circumstantial evidence presented by the witnesses.

To avoid any misunderstanding, it should be stated that portions of the transcript and record referred to above as to appellant’s criminal record and related matters, were brought out in an in camera proceeding by the defendant himself, in connection with an appeal to the court by his appointed attorneys for light on the matter of some differences between defendant and his attorneys as to the conduct of his defense. It was made clear therein that defendant had not taken the advice of counsel to entertain consideration of possible plea bargaining arrangements. Notwithstanding such differences and an effort on the part of defendant’s counsel to be permitted to withdraw as counsel, the record shows that defendant thereafter made it known that he wanted his appointed attorney to remain in the case. The odds against appellant’s acquittal were overwhelming, which his appointed attorney recognized and advised appellant accordingly. Appellant, as are all defendants in criminal cases, was entitled to competent counsel, which he obviously had and makes no contention to the contrary. No defendant is entitled as of right to a Houdini to extricate him from a prison fashioned by the defendant’s own hands and chains.

We find no error in the record prejudicial to the defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

ON REHEARING

Appellant’s only ground of his application for rehearing is as follows:

“The Court did not consider the applicability of the doctrine of res judicata in considering the present appeal as it should have since prior decisions had held that the evidence seized in Mr. Mitchell’s motel room was illegally seized.”

We noted in the opinion on original submission that it appeared that on the trial of the instant case, in insisting that there was an illegal search of his hotel room and seizure of some of the stolen property, defendant contended that the mentioned rulings or judgments of the District Court of Mobile County required a similar ruling or judgment in the instant case; that defendant did so “by analogizing the situation to those in which a defendant has prevailed on principles of res judicata, collateral estoppel, former jeopardy, autrefois acquit or the like.” We further said that appellant did not present such contention on appeal and that it could be better considered and determined after receiving the respective views of the parties on the subject. In his brief in support of the application for rehearing, which we invited, counsel, with commendable alacrity and dedication to his client, sets forth clearly and understandably the basis of the position taken by him in the trial court.

In relying upon principles of res judicata and collateral estoppel as applied to criminal cases, appellant states:

“That the issue in the case at bar is identical to the one determined in Mobile County is clear. Both cases involved the question of the legality of the Defendant’s arrest and the subsequent search of his hotel room. This issue was adjudicated by the Court in Mobile County when it ruled to suppress the evidence in question as being improperly and illegally seized. That this ruling is a final determination of the issue is evidenced by the dismissal of the subsequent prosecution of the Defendant, on the charge, in Mobile County. Consequently, as the same issue as was determined by the Court in Mobile County is now in contention in the court in Bibb County, the Mobile court’s ruling must be controlling. The requirements of res judicata have been met and the trial court in Bibb County was barred from re-litigating the same issue and should have applied the determination previously made. Therefore, the evidence, previously found to be illegally and improperly seized, should have been excluded.”

If for no other reason, the contention of appellant must fail for the reason that the District Court of Mobile County did not have jurisdiction to determine the guilt or innocence of the defendant in either of the two cases in that court. The record before us affirmatively shows that the particular case as to the marijuana charge in the District Court of Mobile County was a felony case. Whether the particular case in the District Court of Mobile County for buying, receiving, or concealing stolen property was a felony is not affirmatively and conclusively shown by the record before us, but it is reasonably clear that it was, for, in defendant’s motion in the instant case it is shown that the hearing in such case, as well as in the marijuana case, was a “preliminary hearing.” Code of Alabama 1975, § 12-12-32 provides: .

“(a) Misdemeanors. — The district court shall have exclusive original trial jurisdiction over prosecutions of all offenses defined by law or ordinance as misdemeanors, except:
“(1) Prosecutions by municipalities having municipal courts;
“(2) Any such prosecution which also involves a felony offense which is within the exclusive jurisdiction of the circuit court, except as the district court is empowered to hold preliminary hearings with respect to felonies and to receive guilty pleas as provided in subsection (b) of this section; and “(3) Any misdemeanor for which an indictment has been returned by a grand jury.
“(b) Felonies.
“(1) The district court may exercise original jurisdiction concurrent with the circuit court to receive pleas of guilty in prosecutions of offenses defined by law as felonies not punishable by sentence of death.
“(a) The district court shall have jurisdiction to hold preliminary hearings in prosecutions for felonies as provided for in Title 15 of this Code.”

Principles of res judicata and collateral estoppel in criminal cases cannot conceivably be extended so as to apply to situations in which the judicial ruling or judgment had been made or rendered in a different case between the same parties unless principles of former jeopardy would be applicable if the case were the same case as the one in which the ruling had been made or the judgment rendered.

“Unless otherwise provided by statute, the discharge of accused by the examining magistrate on the preliminary hearing neither annuls the indictments nor blots out the offense, and is no bar to another examination or to a subsequent prosecution for the same offense, and the fact that the examining magistrate dismisses certain counts of the complaint does not preclude the trial court from trying him on such counts, or on other counts not dismissed. A fortiori is this true where accused is discharged on the first arrest without any evidence being produced or offered. By statute, however, it may be provided that, after discharge on preliminary examination, no further prosecution of the offense shall be had.” 22 C.J.S. Criminal Law § 347.

In Collins v. Loisel, 262 U.S. 426, 43 S.Ct. 618, 67 L.Ed. 1062 (1922) it was held:

“. . . The preliminary examination of one arrested on suspicion of a crime is not a trial; and his discharge by the magistrate upon such examination is not an acquittal. Com. v. Rice, 216 Mass. 480,104 N.E. 347; People v. Dillon, 197 N.Y. 254, 256, 90 N.E. 820, 18 Ann.Cas. 552. . . .”

In State v. Vaughan, 121 Ala. 41, 42, 25 So. 727 (1898) per McClellan, C. J., we find:

“We do not think an extended discussion of this case is necessary. We are of the opinion that the point involved here is determinable against the petitioners for the writ of habeas corpus upon what is said in the case of Ex parte Robinson, 108 Ala. 161, 18 So. 729. It may be that what is there declared bearing upon the precise question presented here was not necessary to the decision of that case, and hence was in a sense dictum-, but whether necessary to that case or not, it is necessary to this, and as we are fully impressed with the soundness of the principle as there expounded, we adopt that exposition as the law of this case. It is there said, as has been several times directly adjudged by this court, that no plea of former conviction, or former acquittal, or former jeopardy can be predicated upon a preliminary hearing or its result. ...”

The case of State v. Fahey, S.D., 275 N.W.2d 870 (1979) is directly in point and fatal to appellant’s contention. In that case, a magistrate “in the first preliminary hearing” had discharged Fahey for the reason there was no valid arrest as the arresting officer did not have probable cause to stop Fahey. Fahey argued that such determination “[was] binding on the circuit court.” The court held:

“Fahey’s contention, however, is without merit. The purpose of a preliminary hearing is to ascertain whether a public offense has been committed and whether there is sufficient cause to believe the defendant is guilty thereof. SDCL 23-27-16. The preliminary hearing does not place a defendant in jeopardy. United States v. Levy, 268 U.S. 390, 45 S.Ct. 516, 69 L.Ed. 1010 (1924); People v. Riley, 72 Mich.App. 299, 249 N.W.2d 397 (1977). No verdict flows from the magistrate’s determination; the magistrate’s ruling is not a final judgment of a court. State v. Heisinger, S.D., 252 N.W.2d 899 (1977); State v. Wagner, 86 S.D. 382, 196 N.W.2d 360 (1972). If, as happened here, the magistrate fails to find that a crime has been committed, that determination is not an adjudication of the matter. Fugate v. Ronin, 167 Neb. 70, 91 N.W.2d 240 (1958). Nor is that determination a bar to further prosecution on another complaint charging the same offense. State v. McCombs, 164 Kan. 334, 188 P.2d 922 (1948).”

For the reasons stated, the application for rehearing should be overruled.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.