text:
    Gloria Jean SMITH v. STATE.
    3 Div. 378.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.

      Charles M. Law, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant pled guilty to an indictment charging false pretense in that the defendant fraudulently obtained aid to dependent children and food stamps “in an amount greater than that to which she was entitled.” Alabama Code 1975, Section 13-3-90. The one year and one day sentence was suspended and the defendant placed on probation.

The issue in this case is whether or not a person who obtains welfare benefits by false pretenses may be prosecuted for obtaining money or property by false pretenses. The defendant contends that the criminal provisions of the welfare fraud statute preclude prosecution under the general criminal statute of false pretenses.

The crime of obtaining by false pretenses is a felony and is defined by statute.

“Any person who, by false pretense or token and with the intent to injure or defraud, obtains from another any money or other personal property shall, on conviction, be punished as if he had stolen it.” Alabama Code 1975, Section 13-3— 90.

The crime of “welfare fraud” is a misdemeanor.

“Any person who by means of a false statement knowing it to be false, or by wilful misrepresentation, impersonation or other fraudulent device obtains or attempts to obtain or aids or abets any person in obtaining a public assistance grant, surplus commodities or other benefits administered by the department of pensions and security to which such person is not entitled or a larger amount than that to which he is justly entitled, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than $500.00 and may be sentenced to hard labor for the county for not exceeding 12 months, or both.” Alabama Code 1975, Section 38— 4-7.

Both Section 13-3 — 90 and Section 38-4 — 7 were repealed by the new Criminal Code, effective January 1, 1980. See Table I of Title 13A.

It is apparent that each statute covers activities not covered by the other. The offense of false pretenses is only committed when money or personal property is actually obtained. The obtaining of services by false pretenses is a misdemeanor defined by a separate statute. Alabama Code 1975, Section 13-3-91. The false pretense must have operated as an inducement for the injured party to part with his goods or money. Ex parte Thaggard, 276 Ala. 117, 159 So.2d 820 (1964). Misleading conduct alone does not constitute a false pretense. Eaton v. State, 16 Ala.App. 405, 78 So. 321 (1918).

To be convicted of welfare fraud it is not necessary that one actually obtain anything by his false representation and the crime is complete even though the agency is not actually misled and does not rely on the misrepresentation. The statutory language “other benefits administered by the department” covers services as well as money and property. The crime of welfare fraud is defined to include a false statement or “other fraudulent device.” Therefore, unlike the crime of false pretenses, a person may be criminally liable for mere conduct and course of dealing unaccompanied by the employment of a false representation of fact by word, symbol or token in obtaining welfare benefits. Eaton, supra.

However, where one obtains money or property from a welfare agency by false pretenses, both statutes may be violated. In this situation, a person may be prosecuted under either statute.

We find no indication that the legislature intended to punish all welfare frauds as misdemeanors. The title to Alabama Acts 1951, No. 703, p. 1211, in pertinent part only provides, “to provide penalty for false representation”, giving no indication that the legislature intended Section 38 — 4—7 to be the exclusive criminal sanction for all welfare frauds irrespective as to the amount or type of property involved or whether or not anything was actually obtained by the false representation. This is not a situation where the legislature clearly intended to reduce the crime of falsely obtaining welfare benefits from a felony to a misdemean- or. Compare Miller v. State, 349 So.2d 129 (Ala.Cr.App.1977).

A majority of the states that have considered this question have reached a conclusion similar to the one we reach in this opinion. See Anno. 92 A.L.R.2d 421, Section 4 (1963).

The legislature may create two or more criminal offenses which may be committed by a single act. “In such event, the State may elect to prosecute for either offense, or under either statute.” Coleman v. State, 290 Ala. 346, 349, 276 So.2d 589 (1973). In the Coleman case the Supreme Court held that a defendant could properly be charged with forgery in the second degree even though his actions also constituted the wrongful use of a credit card. There is no difference in principle between the case before us and Clonts v. State, 42 Ala.App. 287, 161 So.2d 155 (1964), which the Supreme Court followed and found controlling in Coleman. In Clonts the appellate court held:

“The fact that our statutes make the unauthorized use of a credit card a misdemeanor, does not prevent the charge of obtaining property by false pretense where, as here, the facts arising out of the use of a credit card embrace all of the elements of such crime.” Clonts, 42 Ala.App. at 290, 161 So.2d 155.

See also Smithson v. State, 34 Ala.App. 343, 39 So.2d 678 (1949).

Under the authority of Coleman and Clonts, we hold that the fact that our statutes make the fraudulent obtaining of public assistance a misdemeanor does not preclude an indictment and conviction of obtaining personal property or money by false pretenses. See also Pierson v. State, 159 Ala. 6, 48 So. 813 (1909), involving the charges of labor fraud and obtaining money by false pretenses.

The different classifications in the range of penalties in the statutes governing the misdemeanor offense of welfare fraud and the felonious offense of deceptive practices do not warrant the conclusion that the legislature intended a case of welfare fraud to be prosecuted only as a misdemeanor. State v. Moore, 570 P.2d 580, 584-5 (Mont.1977). See also People v. Brooks, 65 Ill.2d 343, 2 Ill.Dec. 726, 357 N.E.2d 1169 (1976); Beech v. State, 162 Ind.App. 287, 319 N.E.2d 678 (1974).

A search of the record reveals no errors prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    Ex parte Gloria Jean SMITH. (Re: Gloria Jean Smith v. State of Alabama).
    81-195.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    Charles M. Law, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   TORBERT, Chief Justice.

While we agree with the decision of the Court of Criminal Appeals, 409 So.2d 927, we feel it is necessary to comment on one aspect of its opinion. That court, after setting forth the applicable Code sections, stated that “[b]oth Section 13-3-90 and Section 38-4-7 were repealed by the new Criminal Code, effective January 1, 1980.” Defendant, however, was not indicted until November 16, 1980, and the Court of Criminal Appeals does not state at what time the crime was committed. Since this issue has not been raised, this Court assumes that the crime in question occurred before January 1, 1980, at which time the aforementioned statutes were repealed.

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: TYSON, Judge.

text:
    Moses Brown CHISOLM v. STATE of Alabama.
    5 Div. 551.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81 — 198.

      J. Michael Williams, Sr., Auburn, for appellant.
    Charles A. Graddick, Atty. Gen. and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Moses Brown Chisolm was indicted for the “first degree assault” of John Thomas Stringer.

The jury found the appellant guilty of second degree assault for which the trial court, after a pre-sentencing hearing, fixed punishment at eight years’ imprisonment.

On March 7, 1980, after 10:30 p.m., the appellant and John Thomas Stringer had one of a series of confrontations concerning their mutual “girlfriend”. During this particular incident the appellant drew his pistol and shot Mr. Stringer once in the chest and once in the right forearm.

Mr. Stringer testified that the appellant, after a short chase, blocked Mr. Stringer’s car in a school parking lot with appellant’s automobile. Appellant then exited his car with his pistol drawn and fired two shots at Mr. Stringer, who was still seated in his vehicle. One of these shots struck Mr. Stringer in the chest. In respdnse, Mr.' Stringer exited his automobile and was trying to grab the appellant to prevent further gunfire when the appellant fired another round which struck him in the right forearm. Mr. Stringer then fled on foot as the appellant fired a fourth shot.

Mr. Stringer further testified that after he had circled several houses in the area and had returned to his car, the police arrived but the appellant was gone.

The appellant’s version- of the incident was that Mr. Stringer chased him to and blocked him in the school parking lot and that Mr. Stringer fired several shots at him just after the appellant had exited his automobile and before he had drawn his weapon.

An “ear witness” attempted to corroborate the appellant’s testimony by stating that he heard two groups of shots, the second group louder than the first. The appellant contended that this proved that two guns were involved and that there was an exchange of gunfire.

However, the state argued that the same testimony would support the state’s assertion that the first group of shots was fired into the victim’s automobile at close range and in the opposite direction from the “ear witness”, whereas the second group, fired from the same gun, was shot in an open area and in the direction of the “ear witness’ ” house, toward which the victim was running.

The evidence, though disputed, was sufficient to support the jury’s “guilty” verdict and this evidence is not questioned on this appeal.

I

Appellant contends that the trial court erred in sustaining the state’s objection to appellant’s attempt to introduce his own statement made to the police an hour after the shooting. This ruling by the trial court occurred while the appellant was on the witness stand (R. 251) after the appellant’s apparent attempt to bolster his “in-court” testimony with his “prior statement”.

This statement was not part of the res gestae. The law is well settled in this state that such self-serving declarations of an accused, made before or after the offense are not admissible for him (or by him) unless they are part of the res gestae. Dowdey v. State, 45 Ala.App. 185, 227 So.2d 815 (1969); Powell v. State, 51 Ala.App. 398, 286 So.2d 73, cert. denied, 291 Ala. 796, 286 So.2d 75 (1973); Chambers v. State, 356 So.2d 767 (Ala.Cr.App.1978).

II

Appellant further contends that the trial court erred by not instructing the jury that the trial court incorrectly sustained the prosecution’s objection to appellant’s attempt to “refresh” the memory of appellant’s “ear witness” to the incident.

This assertion by the appellant is without merit and is not supported by this record. We have reviewed the testimony, objections, and rulings surrounding this “alleged” error by the trial court (R. 164-205) and have found nothing improper. The trial court’s rulings were correct.

Moreover, the appellant was allowed to “refresh” his witness’ memory on “voir dire” examination and the witness’ subsequent testimony in the presence and hearing of the jury corresponded to the prior out-of-court statement relied upon by appellant. We fail to see how any of this could have prejudiced the appellant in any aspect of his case.

III

Finally, the appellant contends that the pre-sentence investigation report (R. 322) was erroneous because it included as part of the appellant’s record charges that were either dropped or nol prossed and charges for which the appellant was acquitted. The appellant argues that such charges, which did not result in convictions, should not have been considered by the sentencing court.

In the first place, the Alabama courts follow the rule stated in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 397 (1949), that evidence of other criminal conduct not resulting in a conviction may be considered in imposing sentence. Scopolites v. State, 50 Ala.App. 115, 120, 277 So.2d 389, cert. denied, 291 Ala. 797, 277 So.2d 395, cert. denied, 414 U.S. 977, 94 S.Ct. 299, 38 L.Ed.2d 221 (1973); Godfrey v. State, 383 So.2d 575 (Ala.Cr.App.), cert. denied, 383 So.2d 579 (Ala.), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66 L.Ed.2d 134 (1980).

Furthermore, the trial court carefully reviewed the investigation report, noted those 15 prior offenses for which the appellant was definitely convicted, and thoroughly discussed the entire list (R. 295-300) with appellant and his counsel at the sentencing hearing. The court was in no way misled as to which charges were mere arrests and which resulted in convictions.

Finally, regardless of appellant’s belief that his record was “really not bad”, the trial court was certainly justified in determining that the 15 prior convictions, including four for “assault”, two for “disorderly conduct”, two for “carrying concealed weapons” and one for “resisting arrest”, indicated that the appellant had a “continuing . .. propensity to violence.” Therefore, the imposition of an eight year sentence for this “second degree assault”, which carries a maximum sentence of 10 years, was proper under these circumstances.

This case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge. DeCARLO, Judge,

text:
    Arthur J. SCOTT, alias v. STATE of Alabama.
    6 Div. 20.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29,1982 Alabama Supreme Court 81-211.
    Michael C. Cornwell, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Arthur J. Scott was indicted for and convicted of “grand larceny” for which he received a sentence of one year and one day imprisonment. His motion for a new trial was duly denied. On July 12, 1978, Arthur J. Scott, the appellant, entered the Adkison Grocery, a retail grocery operated by Donald B. Adkison, and asked Mr. Adkison for some money. Mr. Adkison recognized the appellant as a frequent customer, but refused to give him any money. Thereafter, while Mr. Adkison continued to wait on another customer, the appellant reached over the top of the cash register and began “banging on the money keys” in an apparent attempt to help himself to the money inside.

When Adkison realized what the appellant was doing, he threatened to call the police and picked up the telephone receiver to do just that. Before he could make the call the appellant jerked the cash register around, pivoting it on a corner that remained on the counter. Mr. Adkison dropped the phone, grabbed the cash register and then picked up his pistol from behind the counter and threatened to shoot the appellant if he did not let go of the cash register.

Seeing that none of his threats was going to. deter the appellant, Mr. Adkison then pistol-whipped him until the appellant let go and ran out of the store. During this incident the appellant never threatened to harm Mr. Adkison and never attempted to do so. When he ran from the store he took nothing with him.

A police officer later stopped the appellant who “had blood all over him” and who appeared to be ‘‘intoxicated”. The appellant cooperated fully with the officer who eventually arrested the appellant for “grand larceny”.

The above facts were not in dispute at trial and are not contested on this appeal.

I

The appellant’s primary contention on appeal is that the uncontroverted evidence did not support a conviction for larceny. The critical issue is whether or not appellant’s movement of the cash register, which he at one instance nearly lifted off the counter, constituted “a severance of the possession of the owner” and “an actual possession by the wrongdoer,” and an “asportation” as required for the crime of larceny. Blakeney v. State, 244 Ala. 262, 13 So.2d 430, rev’g, 31 Ala.App. 154, 13 So.2d 424 (1943); Wilkins v. State, 373 So.2d 353 (Ala.Cr.App.1979); Mauldin v. State, 376 So.2d 788 (Ala.Cr.App.), cert. denied, 376 So.2d 793 (Ala.1979).

To satisfy these requirements, the alleged thief, at some moment, must have obtained complete, independent and absolute possession and control of the item, adverse to the rights of the owner. Blakeney, supra. If the possession is imperfect in any degree, or if the alleged thief’s control is qualified by any circumstance, however slight, the severance is incomplete and the act is only an attempt. Blakeney, supra.

Based on the undisputed facts revealed in the record and supported by both the appellant and the state in their respective briefs on appeal, it is our opinion that the appellant’s possession was imperfect to some degree and his control was qualified under the circumstances.

It is true that the appellant swung the cash register around in a manner which, arguably, demonstrated an intent to take the entire cash register with him. However, he was, unquestionably, only after its contents, the money, and undoubtedly rotated the cash register only to facilitate entry to the cash drawer.

Moreover, the appellant never removed the cash register from the counter upon which it rested. Even if he intended to do so, his efforts were thwarted by Mr. Adki-son who grabbed the cash register with one hand and pistol-whipped the appellant with the other. Appellant’s possession was, therefore, never perfected and he never even gained control of the cash register, much less the money contents inside.

Consequently, it is our decision that, although there is sufficient evidence in the record to support a conviction for “attempted grand larceny,” the evidence falls short of that required for the completed offense. Wolf v. State, 41 Ala. 412 (1868); Edmonds v. State, 70 Ala. 8 (1881); Thompson v. State, 94 Ala. 535, 10 So. 520 (1892); Molton v. State, 105 Ala. 18, 16 So. 795 (1895). The trial court, therefore, erred in overruling appellant’s motion for a new trial.

Moreover, under the facts of this case, there was no asportation or carrying away of the goods of the owner, Mr. Adki-son, as required by the Alabama cases. Milam v. State, 240 Ala. 314, 198 So. 863 (1940); Latham v. State, 56 Ala.App. 234, 320 So.2d 747, affirmed, 294 Ala. 685, 320 So.2d 760 (1975). Under the facts as set forth above there was no severance of the possession of the owner.

Where, as here, the complete, independent and absolute possession (by the “alleged thief”) was never obtained, the larceny was not consummated.

In Blakeney v. State, 244 Ala. 262, 13 So.2d 430 (1943) we find the following statements supportive of our position here:

“Hence it is not a taking for one merely to compel another by threats to lay a thing down, or to strike the hand of another and knock money from it, or to jostle him, or tear his clothes, or break his belt, so that his watch or purse is dislodged from his person and falls to the floor or ground, if the prospective thief desists or is prevented from seizing the thing thus laid down or dropped; nor is the act of thrusting one’s hand into the pocket of another and merely touching his money or purse, or of unscrewing a shirt stud in the bosom of his shirt, a taking, if the would-be thief does not grasp the money or purse, or does not entirely unscrew the stud, or if he drops the stud in the act of unscrewing it.” (Citation omitted)
“For like reason if the possession of the would-be taker is imperfect in any degree, or if his control of the thing desired is qualified by any circumstance, however slight, the taking is incomplete and the act is only an attempt. Thus if goods, displayed on the counter of a shop or in front of it, are attached to the building by a cord, however slender, which the would-be taker does not sever, there is no taking, although the article itself is wholly in his grasp when he is detected and stopped. So the lifting of a watch from a man’s pocket does not constitute a taking, unless the chain by which it is attached to his person is disconnected or broken.” (Citation omitted). (Emphasis added).

Inasmuch as we have determined the alleged larceny was never in fact consummated under the evidence in this cause, the judgment of the trial court must therefore be reversed and this cause is remanded.

REVERSED AND REMANDED.

HARRIS, P. J., and TYSON, BOOKOUT and BOWEN, JJ., concur.

DeCARLO, J., dissents with opinion.

DeCARLO, Judge,

dissents.

The majority opinion holds that the appellant’s possession was “imperfect” and his control was “qualified.” It states that the appellant’s possession was never “perfected” and he never gained control of the register. In Thompson v. State, 94 Ala. 535, 10 So. 520 (1891), the Supreme Court of Alabama defined larceny as:

“[A] felonious taking and carrying away of personal property. There must be such a caption that the accused acquires dominion over the property, followed by such an asportation or carrying away as to supersede the possession of the owner for an appreciable period of time.” [Emphasis added]

In Phelps v. State, 6 Ala.App. 58, 60 So. 537 (1912), the court gave meaning to the expression “an appreciable period of time." There it determined that “appreciable” meant:

“[N]o more than that time which, though short, is yet actual, and long enough to be capable of being appreciated or ascertained.”

Sue Smith, a witness to the occurrence, appreciated and ascertained that appellant gained control of the register for a moment of time. Ms. Smith testified that appellant “just picked it up.” Further, she said the appellant had removed the front end of the register from the counter.

Also, the court in Phelps, supra, stated: “[I]t makes no difference, so far as these essential elements going to constitute the crime of larceny are concerned, how short the duration of the time of such dominion over the property, or how short the distance of removal.”

But for the intervening acts of the store-owner, appellant’s dominion would have been complete and his control “perfect” for all time. The fact that his control and dominion were brief does not negate their existence.

The Alabama Supreme Court in Blakeney v. State, supra, observed:

“The severance of the possession of the owner and the actual possession of the wrongdoer may be but for a moment; the length of time they continue is not important; but, as appreciable facts, they must exist.”

Although the appellant had taken only three corners of the register off the counter when he picked it up, he, for that brief moment, had complete and exclusive dominion and control over the cash register. At that point, the severance was complete for an “appreciable time” and the offense was committed.

In accord with the foregoing, the court in Johnson v. State, 41 Ala.App. 351, 132 So.2d 485 (1961), stated:

“It is immaterial how short the distance moved or the length of time he exercised dominion over it. It may constitute larceny if there was a severance of the possession of the owner and an actual possession and removal by the wrongdoer.”

Also, in Tucker v. State, 50 Ala.App. 405, 279 So.2d 576 (1973), this court observed:

“The least removing of the thing taken from the place where it was before, with intent to steal it, is a sufficient asportation to constitute larceny even though the property is not quite carried off.” [Emphasis added]

Thus, the fact that appellant did not completely remove all four corners of the cash register is immaterial.

In a recent case, Mauldin v. State, supra, Judge Bookout writing for this court, stated the law of larceny in the following:

“To constitute larceny, there must be a severance of the possession of the owner and an actual possession by the wrongdoer. When the wrongdoer obtains at some moment complete and exclusive dominion and control of the chattel, the taking is complete. Such severance of possession by and actual possession in the wrongdoer may be but for a moment. The length of time is unimportant.. . . Furthermore it is immaterial how short the distance the chattel was moved for slight asportation will be deemed sufficient to support a conviction of larceny.” [Emphasis added and citations omitted]

The store owner testified that at the time the appellant “grabbed” the register, he, the store owner, was not touching it and the appellant had moved the register “six to twelve inches.” There is nothing in the record to indicate that the cash register was chained or otherwise attached to the counter.

Under the facts presented, the evidence was sufficient for a jury reasonably to infer the appellant’s guilt, and in my judgment, the trial court properly overruled the appellant’s motion for a new trial.

For the foregoing reasons, I respectfully dissent.


author: BOWEN, Judge.

text:
    Patrick A. BENNETT v. STATE.
    7 Div. 849.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81-244.

      Richard W. Bell, Pelham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for burglary in the third degree. He was sentenced as an habitual offender to ten years’ imprisonment. Two issues are presented on appeal.

I

The defendant vigorously argues that his confession was involuntary because it was the product of “a distinct hope of a lighter sentence or punishment, or total forgiveness” created by the statements of the arresting officer.

During the early morning hours of August 2, 1980, the Interstate Gulf Station in Alabaster was burglarized. Upon learning that the defendant had recently been dismissed from employment at the station, Shelby County Sheriff’s Deputy John Pratt telephoned the defendant’s mother and told her that “it appeared” that the defendant was involved in the burglary and “if he was for her to go talk to him.” Mrs. Bennett said that she would go to her son’s residence and talk to him and see if he was involved. “If he was involved she said that she would get the property and call” Deputy Pratt.

Around noon on the 2nd of August, Deputy Pratt went to the defendant’s residence to question him about the burglary. Pratt testified that he had probable cause to believe that the defendant was a participant in the crime. In the past Pratt had been involved in two criminal investigations of the defendant.

Deputy Pratt and Sergeant Davenport arrived at the residence of the defendant and found the defendant and Walter Strickland in the yard. Pratt took the defendant aside and told him that he wanted to talk to him. Pratt stated that before any conversation was had with the defendant he advised him of his Miranda rights: “I told him I wanted to talk to him, that he knew what I was there about, and I made a reference of had he talked with his mother, and he said yeah, she either called or came by there. That is when we started talking. I said, ‘You don’t have to talk to me.’ That is when I told him (his Miranda rights). This was all done outside.” The defendant said “that was fine.” Pratt testified:

“A. ... I informed Pat (the defendant) it appeared to me he was in some trouble, and I wanted to get to the bottom of it, and if he was in trouble — I meant involved in the burglary at Interstate Gulf — that we wanted to try and get back as much of the property as we could before the stuff was disposed of.
“Q. What was his response to you?
“A. He knew what I was talking about.
“Q. What did he say?
“A. He said, T know I am in trouble. What is the best way out for me?’ ”
******
“A. I told him, when he asked me what he could do, that he realized he was in trouble, I told him the best thing he could do was tell the truth and help us get the property back, if they had not already disposed of it, that things would be better if we could get the property back and satisfy the victim.
“Q. Things would be better?
“A. Yes, sir.
“Q. What type of things would be better?
“A. As I stated to. him, we would be able to introduce into court that he cooperated, was my exact words, that I would tell the court, the District Attorney and the Judge that he cooperated with us in this burglary investigation.”
* * * * $ *
“A. As I stated before, I told him my best recommendation to him was to tell the truth and if he was involved to help us recover the property.”
* * * * * *
“A. ... I told him I would tell them he cooperated and helped us recover the property, if he was involved.”

The defendant testified that Deputy Pratt did not advise him of his rights before he “told me I was in a lot of trouble and told me he was talking about the service station.”

“He (Deputy Pratt) asked me if I knew anything about it, and I told him yes. I told him I knew I was in trouble and how would be the easiest way for me to go about getting out of it. * * * He told me to tell where everything was and he would help me. * * * He told me he would talk to the D.A., and he said everything might go easier in court if I helped him.”

On cross examination by the Assistant District Attorney, the defendant stated Deputy Pratt never promised him that it would go easier and never promised that his sentence would be lighter if he talked to him. Pratt did not tell the defendant that he could make it go easier.

The defendant, on redirect, testified that his statement was given in response to Officer Pratt’s statement that he would help if he could; that “he would talk to the D.A. and the Judge and see if he could make it go easier.”

On the 4th of August, the defendant signed a written statement after signing a waiver of his constitutional rights.

Before the jury, Officer Pratt testified that, upon arriving at the defendant’s residence, he advised the defendant that he would like to talk to him and then advised the defendant of his Miranda rights. Pratt testified that he then stated to the defendant

“that he was aware of what I wanted to talk to him about; that it was in regards to the burglary that had occurred the previous night or the early part of the morning at the Interstate Gulf Station. I asked him if his mother had contacted him or come down to see him or talk to him, and he said he had talked to his mother, and that he knew he was in a lot of trouble.”
* sfc s(s * * #
“My response to him, if he was in trouble was for him to tell the truth, and if he was involved to help recover the stuff, if it had not been disposed of.”

Pratt further stated that at this point the defendant wanted to go inside his trailer and talk to his wife: “(H)e stated he was concerned about the other Defendant, or Co-defendant in the case, but he stated that this subject would fall under the habitual criminal law, and if he told the whole truth on this matter, that this subject would serve a lot of time in the pen.”

Deputy Pratt responded:

“I told him at that time if he was involved in it, that he should be concerned about himself and not about the co-defendant, and at that time I let him go into the trailer to talk to his wife.”

We have gone into quite some detail in reporting Deputy Pratt’s testimony in an effort to determine exactly what was said and when it was said. Perhaps the case is clarified by the following portion of Pratt’s testimony before the jury.

“Q. Now, you did, in fact, tell Mr. Bennett at the time that you initially went to his trailer on August 2, 1980, that Saturday morning around noon, that if he would tell the truth that this would be best for him, is that correct?
“A. When he asked me what I thought he should do, I instructed him the best thing for him to do if he was involved was to tell the truth.
“Q. And you went on to also tell him you would endeavor in some way to tell the District Attorney and Court of his cooperation in order to help him out?
“A. He asked me if it would be brought out through the District Attorney and the Court if he cooperated and I told him yes it would.”

Although it is disputed exactly what Deputy Pratt told the defendant and when he advised the defendant of his Miranda rights, this was a matter the trial judge had to resolve. Even where there is credible testimony to the contrary, if the evidence as to the voluntariness of the confession is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge that the confession was voluntary need only be supported by substantial evidence and not to a moral certainty. When a conflict occurs in the evidence with respect to the voluntariness of a confession, great weight must be given to the judgment of the trial judge, and his finding of voluntariness will not be disturbed on appeal unless this Court is convinced that his conclusion is palpably contrary to the weight of the evidence. Thompson v. State, 347 So.2d 1371 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 347 So.2d 1377 (Ala.1977).

In Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978), we held:

“In order to be admissible a confession must be free and voluntary and cannot be the result of any direct or implied promises, however slight. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963); Bell v. Alabama, 5 Cir., 367 F.2d 243, cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1966); Wallace, supra. The question of whether a confession was obtained by coercion or improper inducement can be determined only by examination of all the attendant circumstances. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Wallace, supra. Each case must stand or fall' on its own merits for the constitutional inquiry into the issue of voluntariness requires more than a mere ‘color-matching of cases’. Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967). The true test of determining whether extrajudicial confessions are voluntary is whether the defendant’s will was overborne at the time he confessed and therefore not the product of a rational intellect and a free will. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Elliott v. State, 338 So.2d 483 (Ala. Cr.App.1976)”
“A promise or inducement for a confession cannot be implied from an exhortation to a prisoner that it is best or better to tell the truth. The rule is otherwise, where the party has been told by a person in authority that it is better for him to confess, or that he will be bettered by saying a particular thing. Edwardson v. State, 255 Ala. 246, 251, 51 So.2d 233 (1951). Here the appellant was only told that it would ‘be better to make a statement.’ This was not tantamount to an urging to confess or to admit guilt. We consider this more consistent with a mere adjuration to tell the truth.” 387 So.2d at 859-60.

In United States v. Frazier, 434 F.2d 994, 995-6 (5th Cir. 1970), it was held:

“Frazier’s confession was not involuntary by reason of the single fact that the F.B.I. agents told him that if he cooperated with them his cooperation would be made known to the United States Attorney, that there might be some consideration given by the United States Attorney but that the agents could make no promises. Standing alone this was not sufficient to establish that appellant’s in-custody statement was involuntary. United States v. Ferrara, 377 F.2d 16 (2d Cir. 1967); Fernandez-Delgado v. United States, 368 F.2d 34 (9th Cir. 1966).”

The quoted statement from Frazier was also quoted, approved and applied in Wallace v. State, 290 Ala. 201 (206), 275 So.2d 634 (1973).

“(A) representation that the fact of cooperation will be made known to prosecuting authorities is insufficient to make a confession involuntary. United States v. Curtis, 562 F.2d 1153 (9th Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 279, 58 L.Ed.2d 256 (1978).” United States v. Prescott, 480 F.Supp. 554, 559 (W.D.Penn.1979) (The defendant alleged that his oral statements were involuntary because his cooperation was induced by a promise that if he cooperated the F.B.I. Agents would tell the United States Attorney and it would go easier on him.) “(T)elling the (defendant) in a noncoercive manner of the realistically expected penalties and encouraging (him) to tell the truth is no more than affording (him) the chance to make an informed decision with respect to (his) cooperation with the government.” United States v. Ballard, 586 F.2d 1060, 1063 (5th Cir. 1978) (Defendant told that in return for her cooperation the government would make a recommendation and inform the court of her cooperation); United States v. Morris, 491 F.Supp. 226 (S.D.Ga.1980) (F.B.I. agents told defendant: “If you cooperate, it will go easy on you”, and further told him the possible penalties for armed robbery.) See also United States v. Hart, 619 F.2d 325 (4th Cir. 1980); United States v. Jacks, 634 F.2d 390 (8th Cir. 1980); United States v. Grant, 622 F.2d 308 (8th Cir. 1980); Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Moss v. State, 347 So.2d 569 (Ala.Cr.App.1977); Tanner v. State, 57 Ala.App. 254, 327 So.2d 749 (1976).

From the totality of the circumstances here, we conclude that the defendant’s will was not overborne and his admissions to Deputy Pratt were voluntarily given.

II

The defendant’s second argument is answered in Motley v. State, 409 So.2d 945, Ala.Cr.App. (1981), wherein we held that “the legislature intended that all felons, whether drug offenders or otherwise, be subject to enhanced punishment under the Alabama Habitual Felony Offender Act when prior convictions have been shown.” See also Terrell v. State, 406 So.2d 456, Ala.Cr.App. (1981).

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

AFFIRMED.

All Judges concur.


text:
    Tommy Lee TEAT v. STATE.
    7 Div. 876.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81-213.

      Gary L. Smith, Birmingham, and Donald R. Hamlin, Pell City, for appellant.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for theft in the first degree. He was sentenced as an habitual offender to life imprisonment.

This Court has no difficulty in determining that the two St. Clair County Sheriff’s deputies were lawfully on the defendant’s property on an “investigating mission.” Franklin v. State, 357 So.2d 364 (Ala.Cr.App.), cert. denied, 357 So.2d 368 (Ala.1978). From the record it appears that the deputies had a “legitimate reason for being present” in the precise location where they observed the contents of the Chevrolet whose driver’s door was open. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Bradshaw, 490 F.2d 1097 (4th Cir. 1974).

Likewise, we have no difficulty in determining that there was probable cause to arrest the defendant. Cook v. State, 377 So.2d 162 (Ala.Cr.App.1979). However, this Court does have serious problems concerning the seizure of several items from the defendant’s trailer after the defendant had been arrested.

The evidence shows that the defendant was arrested at the back door of his trailer after being compelled to open the door by Deputy Downing who pried open a window and “stuck” his pistol inside. The two St. Clair County Sheriff’s deputies went inside the trailer “with the Jefferson County deputy to serve the (arrest) warrant.”

It is generally said that a search may be incidental to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Anno. 19 A.L.R.3d 727 (1968). However, a cursory inspection of other parts of the premises or surrounding areas may be made for the purpose of determining whether there are others present who are possible accomplices of the arrestee, W. LaFave, 2 Search and Seizure, Section 6.4(b) at p. 424 (1978), or so that the police may ensure their own safety while departing with the arrestee. 2 LaFave, Section 6.4(c) at p. 427. United States v. Davis, 423 F.2d 974 (5 Cir.), cert. denied, 400 U.S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69 (1970). See also 19 A.L.R.3d 727, Sections 21, 28.

Here, the victim reported seeing two occupants besides the defendant in the black Chevrolet in which the defendant arrived at and fled from the scene of the burglary. The two deputies who were the first to arrive at the residence of the defendant could see “them ” inside the trailer, “pulling back the curtains” and “looking at us.” Without question then, the officers were justified in making a cursory search of every room in the trailer to discover possible accomplices of the defendant and to ensure their own safety. However, these were the only justifications for any search of the remainder of the trailer other than the area in which the defendant was arrested.

Although it was argued at trial, as it is here, that the television and the jewelry seized in the trailer were in plain view and were seized incident to the defendant’s arrest, the error lies in the fact that the State offered no proof that these items were actually found in plain view during the search incident to arrest. See United States v. Woods, 560 F.2d 660 (5th Cir. 1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1452, 55 L.Ed.2d 497 (1978). This error is magnified by the fact that both the prosecutor and the trial judge acknowledged this at trial. From the record:

“THE COURT: Mr. Burttram (District Attorney), what is the response to that? What do you say in regard to the T.V. and items taken out of the house?
“MR. BURTTRAM: They were removed after arrest.
“MR. FAMBROUGH (Deputy District Attorney): Incidental to the arrest.
“MR. BURTTRAM: The removal was incidental to a lawful arrest, felony arrest.
“THE COURT: Make entry into that house without a search warrant?”
* * * * * *
“MR. FAMBROUGH: Judge, I think the testimony was when the officer put his gun in the back window he told him (defendant) to open the door. He opened the door and the deputies from the Jefferson County and St. Clair County Deputies, entered the house to make the arrest.
“MR. HAMLIN (Defense Counsel): They testified that the objects discovered were in another room.
“THE COURT: They made the arrest at the door?
“MR. BURTTRAM: They entered the house in the bedroom where they saw the Defendant in the bed in the bedroom.
“THE COURT: Once they made the arrest in the front door what right would they have to go back in the bedroom where the T.V. was found?
“MR. FAMBROUGH: That would involve the physical outlay of the trailer. I don’t think their testimony of that, but they could see the T.V. and the jewelry box where they consummated the arrest.
“THE COURT: Where were they?
“MR. FAMBROUGH: That could be done at a mobile home.
“MR. HAMLIN: The testimony was they were in another room of the trailer. The testimony was they were in another room of the trailer.
“MR. FAMBROUGH: The testimony was they were in another room from the room which the Defendant and this girl were laying in bed.
“THE COURT: Gentlemen, the law is if they were in there legally without a warrant, and there’s any of the described property in plain view, then they would not need a warrant from that point in order to confiscate it, but they would first have to be in that position where it was legally — . ..
“MR. BURTTRAM: They were in here with a valid warrant, they had already crossed the threshold and was in there arresting him and saw the T.V.
“MR. HAMLIN: There’s no testimony they were in the room where they seized it.
“MR. BURTTRAM: They didn’t have to be in the same room with him and saw it.
“THE COURT: They had a right to be inside the door and could see it, then it would be sufficient. The evidence is not too clear on that point.”
(Emphasis added)

After defense counsel made a short argument that there was no probable cause to arrest the defendant, the trial judge stated:

“THE COURT: I think you have got enough evidence, but I tell you this as the State of Alabama is concerned. You have failed to make an important point in this case.
“I’m going to overrule your objection just the same."
(Emphasis added)

This Court is a reviewing court and is therefore bound by the record. Although the Attorney General’s argument in brief is based on the assumption that the articles seized were in plain view, that fact is not supported by the record. An appellate court cannot consider contentions in a brief not supported by the record on appeal. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971). Here the prosecutor’s argument to the trial court is simply not sustained by the evidence. Likewise, the evidence does not sustain the finding of the trial judge.

Where there is a proper objection to the admission of the fruits of a search, the burden is on the State to show that the intrusion and seizure were lawful. McDaniel v. State, 54 Ala.App. 314, 307 So.2d 710, cert. denied, 293 Ala. 765, 307 So.2d 712 (1974). The State did not sustain its burden in this case by proving that the objects seized in the defendant’s residence were lawfully seized. The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Randy Martin HILL v. STATE
    8 Div. 537.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81-196.

      W. H. Rogers, Moulton, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

Murder; sentence, thirty-six years imprisonment.

On June 20, 1980, appellant and the victim, Carlo Eugene Phillips, were drinking at the victim’s home in Lawrence County. Around mid-afternoon the appellant became angry at the victim for refusing to drive him to get assistance in repairing his car, shot him several times at close range with a .22 caliber automatic pistol, with several of the wounds being to the face. Both men had been drinking together the previous day and had gotten into several scuffles. They had also been drinking together on the morning of the fatal shooting. Appellant fled the scene but was apprehended shortly thereafter in a wooded area near his home.

The State’s evidence clearly established a prima facie case of murder under § 13A-6-2, Code of Alabama (Amended 1977). Appellant’s defense was that of self defense, which the jury chose to disbelieve. We find its verdict consistent and reasonable under the evidence presented.

I

Appellant contends that the trial court improperly charged the jury that murder was not a “classified” crime. Apparently, appellant is arguing that murder is a class A felony which the trial court should have stated. Appellant also contends that the trial court erred in charging the jury that he, when testifying, had a natural bias and prejudice in the outcome of the trial.

Appellant made no exception to the trial court’s oral charge. Consequently, he failed to preserve any error for our review. Travis v. State, Ala.Cr.App., 397 So.2d 256, cert. denied, Ala., 397 So.2d 265 (1981); Yates v. State, Ala.Cr.App., 390 So.2d 32 (1980); 6B Alabama Digest Criminal Law 1056.1(1).

Furthermore, there are no degrees of murder under § 13A-6 — 2, Code of Alabama 1975 (Amended 1977) as there once were under § 13-1 — 70, Code of Alabama 1975. Thus, the trial court properly instructed the jury in that regard.

After reviewing the applicable portions of the trial court’s oral charge pertaining to the weight to be given to the witnesses’ testimony in general, as well as to that portion pertaining to appellant’s testifying, we find no error in the trial court’s charge. Mosley v. State, 241 Ala. 132, 1 So.2d 593 (1941); Scruggs v. State, 224 Ala. 328, 140 So. 405 (1932); Hogue v. State, 54 Ala.App. 682, 312 So.2d 86 (1975).

II

Appellant asserts that the trial court erroneously failed to consider his timely presented written requested charges.

During the trial court’s oral charge to' the jury, appellant’s counsel presented 47 written charges.

The court concluded its oral instructions and the jury was sent to deliberate. The following occurred:

“THE COURT: Let the record show that the Counsel for the Defendant, between one third and one half into my charge submitted approximately 50 written charges to me, which I had not previously seen. I am not going to endorse them or whatever, I am just merely going to denote that they came to me late.
“MR. POWELL: Let the record show that they were placed on the Judge’s desk during the Judge’s charge to the jury.
“THE COURT: Okay.”

No exception or objection was made to invoke a ruling of the trial court nor was any objection made to the failure of the trial court to rule.

This court’s jurisdiction is appellate only, and its review is limited to matters upon which rulings are invoked in the trial court. Boykin v. State, Ala.Cr.App., 398 So.2d 766, cert. denied, Ala., 398 So.2d 771 (1981); Brown v. State, Ala.Cr.App., 392 So.2d 1248 (1980), cert. denied, Ala., 392 So.2d 1266 (1981); 6B Alabama Digest Criminal Law 1045. In the instant case, it is this court’s duty to search the record for preserved error. Harris v. State, Ala.Cr.App., 371 So.2d 979, cert. denied, Ala., 371 So.2d 984 (1979); § 12-22-240, Code of Alabama 1975.

Without an objection to the trial court’s action and an adverse ruling thereon, or an objection to the failure of the trial court to rule, nothing has been preserved for our review. Kiker v. State, 233 Ala. 448, 172 So. 290 (1937); Gaddis v. State, 39 Ala.App. 68, 94 So.2d 228 (1957); Rogers v. State, 36 Ala.App. 602, 61 So.2d 249 (1952); Pate v. State, 32 Ala.App. 22, 21 So.2d 551, cert. denied, 246 Ala. 521, 21 So.2d 552 (1945).

Smith v. State, 51 Ala.App. 527, 287 So.2d 238 (1973), cert. denied, 292 Ala. 750, 289 So.2d 808 (1974), and Core v. State, 50 Ala.App. 533, 280 So.2d 794, cert. denied, 291 Ala. 776, 280 So.2d 797 (1973), cited by appellant, applying the predecessor to A.R. A.P. 45, are distinguishable from the case at bar since preserved error was found in Smith and an exception was taken in Core to the trial court’s refusal to consider the defendant’s written requested charges. See also Hudson v. State, 49 Ala.App. 282, 270 So.2d 828 (1971).

Nevertheless, we have individually reviewed appellant’s requested charges and find that they were either fairly and substantially covered by the trial court’s oral charge, confusing, misleading, ungrammatical, not predicated on a consideration of the evidence, argumentative abstract, or a mis-tatement of the law. Thus, had the trial court erred, the error would have been harmless. A.R.A.P. 45.

We have examined the record and transcript of evidence and find no error prejudicial to appellant. Therefore, the judgment of the Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    John Russell MOTLEY v. STATE.
    8 Div. 544.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81-225.

      Jimmy F. Carnes, Albertville, and Clark E. Johnson III, Arab, for appellant.
    Charles A. Graddick, Atty. Gen. and Robert S. Thompson, Sp. Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

This is an appeal by an indigent from a conviction of attempt to commit murder. After a plea of guilty, appellant was adjudged an habitual offender and sentenced to life without parole.

Briefly, the facts in this case show that the appellant, under the guise of using the telephone, entered the victim’s home, grabbed her, and demanded money. When she replied that she did not have any, the appellant tore part of her clothes from her body and attempted to rape her at knife point. The victim struggled and the appellant stabbed her approximately twelve times in an attempt to cut her throat and broke a rocking chair over her head. The appellant then went into a room where the victim’s infant child was crying, picked up the child, and turned and ran from the house when he heard the sound of a car driving up.

No contention is made that the guilty plea was involuntary. Nonetheless, we have examined the record and have found the plea to be voluntary and not induced or coerced. The record shows court Exhibit A, or an “Ireland Form” outlining the appellant’s rights in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Also the record indicates that the questions by the judge and answers by the appellant demonstrate that the appellant understood the rights he was waiving by his plea of guilty. Under these circumstances, we believe the plea of guilty was in complete compliance with Boykin, supra.

At the sentencing hearing for the determination of whether the appellant was to be treated as an habitual offender under § 13A-5-9, Code of Alabama 1975, the appellant admitted he had been previously convicted of six felonies, to-wit: five burglaries in the second degree and one grand larceny.

I

The appellant’s only contention is that the Alabama Habitual Felony Offender Act is unconstitutional because it does not subject drug offenders to the enhanced punishment all other offenders receive for repeated felonies. Appellant claims that this difference in treatment denies him equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution.

In our judgment, however, no equal protection question is presented because we hold that the legislature did not intend to exclude drug-related offenses from the operation of the Habitual Felony Offender Act. Section 13A-5-9, supra, directs that “a criminal defendant [who] has been previously convicted of any felony” be punished according to its terms. Under § 20-2-70, Code of Alabama 1975, all narcotic offenses not specifically excluded are felonies. Section 20-2-70 provides:

“[A]ny person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony.. .. ”

Thus, the legislature intended that all felons, whether drug offenders or otherwise, be subject to enhanced punishment under the Alabama Habitual Felony Offender Act when prior convictions have been shown. It is also clear that the legislature intended to provide for the classification of offenses defined outside Title 13A. Section 13A-5-4, Code of Alabama 1975, states:

“Any offense defined outside this title which is declared by law to be a felony without specification of its classification or punishment is punishable as a Class C felony.” [Emphasis added]

Therefore, for enhancement purposes under Alabama’s Habitual Felony Offender Act, as the law pertains today, narcotic offenses are to be considered Class C felonies.

The fact that there is a lack of complete classification of drug offenses does not make a narcotics violation any less a felony or the perpetrator any less an habitual offender. The drug offender, therefore, is no less subject to the recidivist penalties than any other repeat felon. To hold otherwise would undercut the very purpose of the Alabama Habitual Felony Offender Act.

Therefore, for the foregoing reasons, the judgment of conviction by the Marshall Circuit Court, Albertville Division, is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Joe Louis ARNOLD v. STATE of Alabama.
    1 Div. 303.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 19, 1982 Alabama Supreme Court 81-339.

      D. E. Brutkiewicz, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

The appellant was indicted for the offense of grand larceny being charged with the theft of three candles of the value of $15.00 from a Mobile, Alabama store. At arraignment the appellant pled not guilty. Thereafter, his retained counsel commenced negotiations with the district attorney’s office. Based upon negotiations and a recommendation of probation, the appellant changed his plea following a hearing at which his mother testified to certain mental problems that her son had had and for which he had been going to the Mobile Mental Health Center for treatment. The trial court accepted the appellant’s plea of guilty after ascertaining that the appellant did in fact remove three boxes containing decorative type candles valued at $15.00 from the store. The court then deferred sentencing until a pre-sentence report could be obtained.

At the sentencing hearing, the state recommended that the appellant be given a two year suspended sentence and placed on probation on the condition that he continue his psychiatric counseling at the Mobile Mental Health Center. (R. 13).

The cause was continued until the report was received, at which time the trial court stated that it was not going along with the recommendations because the appellant had other previous convictions of which the court was unaware at the time the plea was entered. From the record, pages 16-17:

“THE COURT: I have likewise looked at it and I am most distressed; this man has been on probation before, he’s been in the penitentiary before with the same types of charges. And I’m not going along with the recommendation.
“MR. BRUTKIEWITZ: Would you allow us to withdraw our guilty plea, Judge? We did so on the condition that the State would offer probation when we entered that guilty plea.
“THE COURT: No, I’m not going to allow the plea to be withdrawn. Do you have anything to present in the way of sentencing?
“Mr. BRUTKIEWITZ: No sir, nothing except the . ..
“THE COURT: I don’t think that the Court — I think the Court made it clear at the time that I was going to look at a pre-sentence investigation.
“Joe Louis Arnold, do you have anything to say as to why the sentence of law should not now be passed upon you?
“MR. BRUTKIEWITZ: Judge, for the record I would like for the District Attorney’s office to inform the Court of the plea bargained arrangement.
“THE COURT: Mr. Deen, my records reflect that you recommended a two year sentence suspended for three years.
“MR. DEEN: Yes, sir, that’s what the file shows. That was Ms. Patterson’s recommendation.
“THE COURT: The Court was unaware of these previous convictions when the plea was entered.
“The Court sentences you to serve a term of seven years in the State Penitentiary.
“MR. BRUTKIEWITZ: We’d like to file notice of appeal, Judge.
“THE COURT: Note your notice of appeal.
“MR. BRUTKIEWITZ: We’d like a bond set, Judge.
“THE COURT: The Court will set a bond at $7,000.00.”

From this judgment and sentence of seven years’ imprisonment, the appellant prosecutes this appeal.

I

The appellant contends that the trial court’s refusal to allow him to withdraw his guilty plea based upon his understanding with the district attorney that he would receive a suspended sentence and placed on probation for three years is reversible error. We agree.

In Blow v. State, 49 Ala.App. 623, 274 So.2d 652 (1973), Judge DeCarlo writing for a unanimous court held:

“The disposition of criminal cases by negotiated pleas of guilty (plea bargaining) resolves the overwhelming majority of criminal matters in this country every year. Many agree and others disapprove, but the result is inescapable that plea negotiations have been with us a long time and are used universally. This procedure has served the administration of criminal justice well, and any negotiations wherein two trained professionals submit their findings to a learned judge for his concurrence has a forthrightness and fairness deserving of enforcement.”

In English v. State, 56 Ala.App. 704, 325 So.2d 211, cert. denied, 295 Ala. 401, 325 So.2d 216 (1975), Presiding Judge Harris, speaking for the court stated:

“In United States v. Brown, 500 F.2d 375, the Court of Appeals, Fourth Circuit, held that when a guilty plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
“In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, the Supreme Court of the United States held that where the state failed to keep a commitment concerning a sentence recommendation on a guilty plea, the court would remand the case to the state court to decide whether the circumstances of the case required only that there be specific performance of the agreement on the guilty plea, or whether circumstances required that the defendant be granted an opportunity to withdraw his plea of guilty.”

The court went on to say:

“ . . . The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.”

It is clear that appellant in this cause should have been given an opportunity to withdraw his plea of guilty inasmuch as he had done so based upon his understanding with the district attorney’s office and the recommendation of that office in this cause.

This cause is reversed and remanded with the proceedings below to commence with a new arraignment on the indictment in this cause. See Griswold v. City of Enterprise, 384 So.2d 1219 (Ala.Cr.App.1980).

REVERSED AND REMANDED.

All the Judges concur.


text:
    Dennis WILLIAMS v. STATE of Alabama.
    4 Div. 916.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 19, 1982 Alabama Supreme Court 81-331.

      Donald C. McCabe of Nomberg, McCabe & Fulford, Daleville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain & James F. Hampton, Sp. Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Dennis Williams was charged with the unlawful sale of marijuana contrary to law. The jury found him “guilty as charged,” and the trial judge set sentence at seven years’ imprisonment in the penitentiary.

Houston County Police Officer Wallace Williams testified that he received a telephone call from one Jimmy Ray King, who made inquiry as to whether or not Officer Williams would like to purchase some marijuana, to which Williams responded that he would. King indicated that he knew someone who had 25 pounds that he wanted to sell. Officer Williams then made arrangements to meet King and his friend at room 278 at the Leon Motel at 3:00 o’clock that afternoon. King indicated that his friend was one Dennis Williams, the appellant. Officer Williams then indicated that they would meet as arranged and make payment at the time of the purchase that afternoon at the Leon Motel.

After this telephone conversation Officer Williams and Dothan Police Officers Robert Sorrells and Wendell White went to room 278 at the Leon Motel and installed a transmitting device known as a “bug” in the room. Officer Wendell White remained in the room and the other two officers went just down the hall where they could monitor the conversation.

About 3:00 o’clock in the afternoon, Officer Williams stated that he recognized Jimmy Ray King drive into the area in an automobile and saw him get out and that King and the defendant, Dennis Williams, then entered room 278 at the motel. A short time latér Williams saw Jimmy King come back out and back the automobile near the door of room 278 and he overheard part of a conversation with Officer White, King and the defendant. From the record, R. 14:

“Q All Right. Go ahead — go ahead and tell the jury, now, what you heard them say in there in the room?
“A Mr. Williams here had gone in the door with a little shoulder bag on and I heard him say, you know, said here is a sample. And, then I heard him say, ‘Do you have the money?’ And Wendell White replied, ‘Yes, I do.’ And there was a little pause there and then the defendant here was telling Wendell White, T don’t want to do the deal here. Let’s go down the road and we transport it from my car to your car.’ And Wendell was telling him he didn’t want to do that, that it was safer right there at the room and just back the car up there and let’s do it right here.
“Q What happened at that time, Sergeant Williams?
“A So Jimmy King backed the car up there and they unloaded four paper bags out of the trunk of the car into the room.
“Q Who was doing that unloading?
“A The defendant and—
“Q Was White with him at that time?
“A I believe it was the defendant and Wendell White. I don’t recall where Jimmy King was there helping them unload or not.
“Q Okay. Now, these four bags that the defendant was getting out of the trunk, would you describe those to the jury, please?
“A They were just brown paper bags; all that I could see was just brown paper bags like grocery shopping bags.
“Q Okay. Now, when he went to the trunk to get those bags out, did he take the key out of his pocket or anything?
“A I don’t recall who opened the trunk of the car because there was — we were so close by that we were not observing everything that happened other than the — hearing what was going on because we — part of the time when they were outside, we had to keep down real low in the van because we were real close by.
“Q But, you saw the defendant carry the grocery bags inside that room, is that correct?
“A Yes, sir.
“Q Okay. From the trunk of that vehicle? Could you describe that vehicle to the jury the best you can, please, sir?
“A It was — an older model car, a white or an off-white, I believe it was a Pontiac.
“Q Okay. Now, after they did that, what was the next thing that happened in regards to you; did you receive a phone call?
“A Yes, I did. Well, the signal was from Officer White, when he got the marijuana, he would start weighing it and he — you could hear him on the transmitter when — -he was in the process of weighing. And he weighed it, he told the defendant here that — said, T can call and get the remainder of the money.’ And he placed the phone call to the girl that works in our office. And she, in turn, called the radio dispatch and told me to meet Wendell White at 278 Leon Motel. I waited five, six, seven, eight minutes before I went to the door. I went and knocked on the door and Wendell White opened the door.
“Q Okay. Did you have anything with you at that time?
“A Yes, sir, I had a briefcase.
“Q Were you going to act as the person that was going to buy or bring the additional money?
“A Yes, sir.
“Q Okay. After you appeared at the door with the briefcase, what happened at that time?
“A I knocked on the door and Wendell White let me in.
“Q Who all was in the room at that time?
“A Wendell White and the defendant here.
“Q Was Jimmy Ray King in the room?
“A No, Sir.
“Q But the marijuana was in the room, is that correct?
“A Yes, sir.
“Q Okay. Now, after you went inside, what happened, then, please, sir?
“A Wendell, I believe, asked me, ‘Do you have the rest of the money?’ And I indicated yes I did and when I went in at the door, I left it cracked three or four inches and then right behind me, just a minute or so behind me, in walked Officer Sorrells with — and two of the investigators from the State Attorney’s Office and one of the investigators was in the car with Chief Williams and they came walking in right behind Mr. Sorrells and the two Florida State Investigators.
“Q Okay. And what happened at that time?
“A Robert Sorrells placed the defendant under arrest.
“Q And did he search him at that time?
“A Yes, sir, he did.”

Officer Williams then stated that he and the other officers began looking for the appellant and found that he had left Alabama and that it was about a two-year period before he was located and brought to trial.

Dothan Police Officer Wendell White stated that together with Officers Wallace Williams and Robert Sorrells, he went to the Leon Motel July 27, 1978. He stated that earlier that. day they had placed a listening device in the room. White stated that the appellant, Dennis Williams and Jimmy Ray King came into the room and that the appellant asked White where was the money; that he wanted to see it. At this point, White stated that he showed him part of the money and then Dennis Williams removed a shoulder bag and from it pulled out approximately one pound of marijuana and stated that this was “a sample” and for White to look at it. White stated he recognized the green vegetable material as being marijuana and took it and weighed it on some scales which he had in the room. White stated that the appellant wanted to transfer the remaining marijuana in some cars at a different location, but that White insisted that the exchange be made in the room where he could weigh it. From the record, R. 38:

“Q And what did you do with it at that time?
“A At that time I weighed it, examined it and asked him where the other was. And he said that he had the rest of it in his car. And I asked him to bring it to the room and, at this point, he didn't want to bring all of it to the room. He wanted me to leave with him and go somewhere and make the exchange in the cars.
“Q Okay. Now, at this point, was it just you and the defendant talking about all this?
“A Yes, Sir.
“Q Was Jimmy Ray King talking?
“A No, sir. He was just sitting on the bed.
“Q Okay. And the defendant wanted you to go down the road to make the transfer?
“A Right. He didn’t want to do the deal in that room.
“Q Okay. And what happened then?
“A I told him that I wouldn’t do the deal unless I could weigh it all and get it in that room where I could weigh all of it. And, at that point, Mr. Williams had Jimmy King bring the car to the room and backed it up to the door. We got the marijuana out of the trunk in four grocery bags, brought it into the room and proceeded to weigh each bag of it.
“Q Okay. Now, who is ‘we’ that got the marijuana out?
“A Dennis Williams and myself.
“Q Okay. Did ya’ll just go to the trunk and was it open or what?
“A Yes, sir. He opened the trunk and started getting it out and handing it to me and I’d take it in and set it down by the night stand where the scales was. (sic)
“Q Okay. Was Jimmy Ray King around at that time?
“A To the- — he could have been standing around or somewhere, but Dennis Williams was doing all of the exchanging with myself. He would hand it to me and I’d set it down by the night stand.
“Q Okay. So, this grocery bag, he’d take one out of the trunk, hand it to you, you’d take it inside the motel room?
“A Yes, sir.
“Q Okay. These grocery bags, how many of them were there, please, sir?
“A There were four.
“Q And what was in those grocery bags?
“A Green vegetable material.
“Q Were they packaged?
“A They was (sic) in a large zip-loc baggie approximately hold a pound of marijuana.
“Q Okay. And how many packages were in the four grocery bags?
“A In those four, there was (sic) nineteen.”

White testified that a few moments later he went to the door on the pretext of answering a phone call so that he could obtain the additional money and as he did so, Officer Sorrells, Officer Williams and three Florida agents came into the room and placed the appellant, Dennis Williams, under arrest.

Houston County Officer Robert Sorrells corroborated the testimony of Officer Wallace Williams and Officer Wendell White concerning the events at the Leon Motel on July 27, 1978, and his arrest of the appellant. He identified some photographs made of the appellant at the time, showing a blue purse or shoulder bag which the appellant carried on that date. Officer Sorrells then marked the marijuana which was seized in the room with his initials and took it to the Enterprise Crime Lab where it was turned over to Investigator Charles Brooks.

Charles F. Brooks testified that he was a Laboratory Administrator and Evidence Analyst at the Enterprise Criminal Lab, and on August 9, 1978, he received a large, sealed cardboard box from Officer Robert Sorrells which contained 21 clear plastic bags, each containing green leafy plant material. He stated that he weighed the material and analyzed it, making several tests, and found that it contained a total of 9,195 grams, or 20)4 pounds of marijuana, the most active ingredient of which is tetrahy-drocannabinol.

At this point, the appellant made a motion to exclude the State’s evidence on the basis that a prima facie case had not been presented. This motion was overruled.

The appellant took the stand in his own defense and testified that he had been employed with the Holmes County Ambulance Service in Florida from 1974 until July, 1978, and was making approximately $500.00 a month. He stated that he was not married, but he was working to help support some younger brothers and sisters. Dennis Williams admitted that he had tried smoking marijuana in school but had stopped that. He admitted he had one arrest in January, 1974, for possession of marijuana. He stated that he had graduated from high school and that he had known Jimmy Ray King growing up, and that King did not graduate. Williams indicated that he had run into Jimmy Ray King several days prior to July 27, 1978, and that they had a drink together and that since he had a day off, King had asked him to go with him and help him get a house trailer. He stated that he did so and they had borrowed a friend’s automobile and had driven to Vernon, Florida. They ran into some “lady friends,” messed around and decided to come on back. He stated that they did stop in Vernon and that he saw King talking to a man and saw someone put some material in the trunk of the car. He stated that they then drove back toward Dothan and that when they got back, King stopped and made a telephone call and then made some comment about wanting to meet a fellow at a hotel. Williams stated that King drove the car to the Leon Motel and that King unloaded the car, taking the bags of materials into the room where they encountered the Dothan police officers. Williams maintained that he was not aware that the marijuana was in the car, but that he and King were arrested and put in a police car and taken t.o the city jail for questioning. He stated that three days la-' ter he got out on bond and thereafter left the state of Alabama and remained away for approximately two years before he was subsequently arrested and brought back to trial.

On cross-examination, Williams admitted that he had some valium in his pocket and that it was removed by the police officer at the time of his arrest. He stated that he had a prescription and had three “pills” which he used as a relaxer and that he had this prescription about two years prior to his arrest.

The State recalled Charles Brooks who identified valium as a mild tranquilizer which is prescribed by doctors and that valium is on the Alabama Uniform Controlled Substances list. Brooks indicated that valium was the trade name for the drug and that it was manufactured by Roche Laboratories.

Officer Sorrells was then recalled and testified that he knew that Jimmy Ray King, at the time of the incident on July 27, 1978, had charges of possession or sale of marijuana and sale of phencyclidine pending against him.

I

The appellant contends that he was induced or lured by the arresting officers into the commission of the offense in question, and asserts the defense of entrapment.

Former Presiding Judge Carr, in Johnson v. State, 36 Ala.App. 634, 61 So.2d 867 (1952) stated:

“The pertinent parts of Sec. 45, 22 C.J.S. Criminal Law § 45, p. 100 et seq. are as follows:
‘The doctrine of entrapment, however, has a limited application, the basic thought being that officers of the law shall not incite crime merely to punish the perpetrator; hence a distinction has been drawn between the inducing of an innocent person to do an unlawful act, and the setting of a trap to catch one in the execution of a criminal plan of his own conception, an act of the latter character by an officer not being regarded as against public policy, and entrapment is not available as a defense to a person who has the intent and design to commit a criminal offense and who in fact does commit the essential acts constituting it, merely because an officer of the law, in his effort to secure evidence against such person, affords him an opportunity to commit the criminal act, or purposely places facilities in his way or aids and encourages him in the perpetration thereof.
‘An officer may, when acting in good faith with a view to detecting crime, make use of deception, trickery, or artifice; and so it is not a defense that decoys were used to present an opportunity for the commission of the crime or that detectives or others feigning complicity in the act were present and apparently assisting in its commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct; it has been held that in such cases the entrapper may even provoke or induce the commission of a particular violation of the law, if he knows or has reasonable grounds to believe that accused is a repeated or habitual offender.’ ”

More recently, this court in Miller v. State, 53 Ala.App. 213, 298 So.2d 633 (1974) held:

“Of particular importance on the question of inducement of appellant to commit the crime is Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716, cert. stricken, 271 Ala. 549, 125 So.2d 725; Garsed v. State, 50 Ala.App. 312, 278 So.2d 761.
“Other cases from this jurisdiction where the criminal sale of unlawful commodities such as liquors, narcotics, etc., were made-at the solicitation and request of officers whose identity was disguised are Webb v. State, 42 Ala.App. 385, 166 So.2d 510; Dodd v. State, 32 Ala.App. 307, 26 So.2d 273, cert. denied 248 Ala. 103, 26 So.2d 274; Nelson v. City of Roanoke, 24 Ala.App. 277, 135 So. 312, cert. denied 223 Ala. 317, 135 So. 314. These cases hold that where the appellant is disposed to commit the crime and the officers merely provide the opportunity by request or encouragement to commit the criminal act, there is no entrapment. See Alabama Digest, Criminal Law, Volume 6, Key number 37.”

Under the circumstances in this case, and the authorities herein cited, we see no room for the operation of the defense of entrapment in the instant case. See Reynolds v. State, 56 Ala.App. 509, 323 So.2d 394, cert. denied, 295 Ala. 415, 323 So.2d 404 (1975). See also Pearson v. State, 362 So.2d 1278 (Ala.Cr.App.1978).

II

The appellant asserts as error the overruling of his motion to exclude the State’s evidence for failure to establish a prima facie case. We are of the opinion that the trial court correctly overruled this motion and submitted this case to the jury. Authorities herein cited and McCart v. State, 387 So.2d 232 (Ala.Cr.App.1980), cert. denied, 387 So.2d 237 (Ala.1980).

Ill

Appellant asserts that the trial court improperly permitted the State to question him concerning the possession of some vali-um tablets at the time of his arrest.

It should be first noted that no objection was interposed at trial to this line of questioning, thus this matter is not preserved for our review.

Moreover, those items found in the possession of appellant at the time of his arrest were properly admitted. See Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975) and authorities therein cited.

We have carefully examined this record and find no error therein. This ease is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    John A. THOMAS v. STATE.
    5 Div. 566.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, Feb. 19, 1982 Alabama Supreme Court 81-334.

      Thomas S. Melton of Melton, Gunter & Melton, Opelika, for appellant.
    Charles A. Graddick, Atty. Gen. and Bill North, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Sentence was twenty-five years’ imprisonment. The defendant argues that the trial judge erred in allowing the State to introduce, as part of its case in chief, evidence of a second robbery committed by the defendant.

The indictment charged the defendant with the robbery of Mary Pugh. In proving this charge, the State was allowed to introduce evidence that the defendant robbed Carol Wright shortly after the Pugh robbery. The evidence of the subsequent crime was admitted to prove the identity of the defendant under the rule that evidence of prior and subsequent crimes is admissible when such other crimes go to show the identity of the perpetrator of the now-charged offense. C. Gamble, McElroy’s Alabama Evidence, Sections 69.01(8), 70.-01(24)(c); Anno. 42 A.L.R.2d 854 (1955).

“(T)he identity exception to the general exclusionary rule . . . contemplates the situation where the now-charged crime was committed in a novel and peculiar manner and the state is allowed to show that the accused has committed other similar offenses, in the same novel and peculiar manner, in order to show him the perpetrator of the now-charged crime.” MeElroy, Section 69.01(8).

I

The defendant argues, in substance, that the two robberies in this case were not committed in such a “novel and peculiar manner” as to warrant the invocation of the exception to the general rule excluding evidence of other crimes by the accused. True the two robberies were not committed in such a “novel or extraordinary means”, as that phrase is ordinarily employed. However, the second robbery bears such a close resemblance to the charged robbery that its admission was proper. The two robberies were committed on the same night, within thirty minutes of each other and less than one mile apart. In both robberies the robber’s appearance was similar, a pistol was used, the victims were both Auburn students, entrance into the apartment was gained the same way, the robber stated that he did not want any change the victims had, and, in both, he made the victims go into the bathroom and remain there until he had left. A significant factor was that in each robbery the robber had difficulty detaching the telephone cord from the wall outlet and the telephone. The total combination of circumstances involved in each robbery indicates that the robber was the same individual in each crime. The defendant had placed his “mark” or signature upon each offense. Williams v. State, 350 So.2d 708 (Ala.1977).

“Identity may be thought of as a quality of a person or thing — the quality of sameness with another person or thing. The essential assumption is that two persons or things are first thought of as existing, and then, because of common features, the one is alleged to be the same as the other.
“The process of inference thus has two necessary elements: (1) it is a concomitant one, in its logical scheme (Section 130 supra); and (2) it operates by comparing common marks, found to exist in the two supposed separate objects of thought, with reference to the possibility of their being the same. It follows that its force depends on the necessariness of the association between the mark and a single object ... . ”
**:}!***
“For simplicity’s sake, the evidential circumstance may thus be spoken of as ‘a mark’. But in practice it rarely occurs that the evidential mark is a single circumstance. The evidencing feature is usually a group of circumstances, which as a whole constitute a feature capable of being associated with a single object. Rarely can one circumstance alone be so inherently peculiar to a single object. It is by adding circumstance to circumstance that we obtain a composite feature or mark which as a whole cannot be supposed to be associated with more than a single object.
“The process of construing an inference of identity thus usually consists in adding together a number of circumstances, each of which by itself might be a feature of many objects, but all of which together make it more probable than they coexist in a single object only.” 2 Wigmore, Evidence Section 411 (Chadbourn rev. 1979).

The issue we are presently confronted with was addressed recently by the Supreme Court of Louisiana.

“This court has previously sanctioned the use of other crimes evidence to prove identity of the perpetrator through use of system. See State v. Moore, 278 So.2d 781 (La.1972). The threshold requirement for admissibility is that the instant crime and the other offense constitute ‘signature crimes’. This requirement is satisfied if the ‘modus operandi of the (other) offenses is so peculiarly distinctive that one must logically say that they are the work of the same person, i.e., they are “signature crimes.” ’ ” (Citations omitted) State v. Davis, 389 So.2d 71 (La.1980)

II

The defendant also argues that the evidence of the second robbery committed by the defendant was not admissible during the State’s case in chief.

The rule is that the “identity exception to the general exclusionary rule only becomes applicable when the identity of the person who committed the now-charged crime is in issue.” McElroy, Section 69.-01(8). In Williams v. State, 350 So.2d 708 (Ala.1977), the Supreme Court of Alabama held that where the accused offers no other defense beyond his plea of not guilty and the State’s witness makes a positive identification based upon his observation of the accused at the scene of the first robbery, the identity of the accused is not in issue so as to justify the admission of evidence of a subsequent robbery: “Merely entering a plea of not guilty without presenting any witnesses, or an alibi, or other defense, did not place identity in issue.” Williams, 350 So.2d at 710.

However, efforts by the defendant on cross examination of a witness to show mistake on the part of the witness in respect to the identity of the defendant places the defendant’s identity in issue. Scott v. State, 150 Ala. 59, 43 So. 181 (1907), involved a prosecution for an unlawful sale of liquor made to Bossie McCondichie. At trial, Mr. McCondichie positively identified the defendant. On cross examination, the defendant sought to show that he was mistaken as to the defendant being the man who sold the whiskey to him. Our Supreme Court held:

“In view of this effort to discredit the evidence of the witness in respect to the identity of the defendant, it was competent for the state to show other sales made by defendant at the same time and place to other witnesses who were examined by the state. The solicitor, it is true, elected to prosecute for the sale made to McCondichie and the defendant could not, after such election, be legally convicted for any other sale; but we do not understand that the evidence of other sales was offered for the purpose of asking a conviction on them, or that such conviction was insisted upon, but simply as corroborative of McCondichie’s evidence as to the identity of the defendant — to show that it was he, and not another, who was vending the liquor.” Scott, 150 Ala. at 63, 43 So. 181.

Here defense counsel attempted on cross examination to discredit Ms. Pugh’s identification of the defendant as the robber.

Also, in this case the trial judge responded to the defendant’s objection and argument that the evidence of the second robbery was inadmissible:

“THE COURT: Mr. Sundock (Defense Counsel), you have argued (apparently on opening remarks), I believe, that your defense in this case would be .. . alibi.
“MR. SUNDOCK: Correct, Sir.
“THE COURT: We could assume he could then introduce this in rebuttal if he wished. Rather than go through that route, because of the exceptions that say there are incidences in other crimes outside the one charged, are admissible, I overrule your objection.”

In presenting an alibi defense, the identity of the defendant is placed in issue. Williams, supra; Johnson v. State, 242 Ala. 278, 5 So.2d 632 (1941). Under Scott, the identity of the accused is also placed in issue when the defendant attempts by cross examination to discredit or impeach a witness’s identification. Consequently, under either the holding of Williams or that of Scott, the State was properly permitted to present in its case in chief evidence of a subsequent robbery committed by the defendant.

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

AFFIRMED.

All Judges concur.