author: BOWEN, Judge. DeCARLO, Judge,

text:
    Ted Allen McGINNIS v. STATE.
    6 Div. 851.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.

      J. Massey Relfe, Jr., of Relfe, Ramsey & Evans, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Paul E. Johnson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the capital offense involving a nighttime burglary of an occupied dwelling when any of the occupants is intentionally killed. Alabama Code 1975, § 13-ll-2(a)(4). The jury found the defendant “guilty in the nighttime with intent to steal of breaking into and entering the inhabited dwelling occupied by Florence Confer Kahler and in the course of said nighttime burglary of said occupied dwelling, did intentionally kill Florence Confer Kahler, as charged in the indictment” and fixed his punishment at death. After a sentencing hearing and after weighing the aggravating and mitigating circumstances, the trial court refused to accept the death penalty as fixed by the jury and sentenced the defendant to life imprisonment without parole.

Three issues are presented on appeal from this conviction: (1) Was the defendant tried by a “prosecution prone” jury because the veniremen were qualified on their beliefs regarding capital punishment?; (2) Does the death penalty constitute cruel and unusual punishment as applied to the defendant considering his involvement in the crime?; (3) Is the Alabama Death Penalty Act unconstitutional since the jury is not permitted to consider any lesser included offense and does not impose sentence after a finding of guilt?

I

Six veniremen were excluded for cause on the basis of their opposition to capital punishment. No claim is made under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), that it was error to exclude them. At trial, defense counsel made only a general objection without any specific grounds to the exclusion of each venireman.

From our review of the record we are satisfied that their exclusion was not error because from the voir dire testimony, read as a whole as to each juror, it is unmistakably clear that, irrespective of the evidence that would be presented, each excused juror would not return any vote which would impose the death penalty. Witherspoon; Wilson v. State, 371 So.2d 932 (Ala.Cr.App. 1978), affirmed, 371 So.2d 943 (Ala.1979). The defendant does contend that the exclusion for cause of prospective jurors who had conscientious scruples against capital punishment subjected him to a “prosecution prone” jury in violation of his constitutional rights. This contention was not presented to the trial court and is initially asserted on appeal.

In Witherspoon, the petitioner alleged that a jury from which have been excluded those who say they could never vote to impose the death penalty, unlike a jury chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction. He maintained that “the kind of juror who would be unperturbed by the prospect of sending a man to his death, . . . , is the kind of juror who would too readily ignore the presumption of the defendant’s innocence, accept the prosecution’s version of the facts, and return a verdict of guilty”. To support this view, the petitioner referred to three studies: W. C. Wilson, Belief in Capital Punishment and Jury Performance (Unpublished Manuscript, University of Texas, 1964); F. G. Goldberg, Attitude Toward Capital Punishment and Behavior As a Jur- or in Simulated Capital Cases (Unpublished Manuscript, Morehouse College, undated); and H. Zeisel, Some Insights Into the Operation of Criminal Juries 42 (Confidential First Draft, University of Chicago, November 1957). The Court commented upon this information.

“The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. In light of the presently available information, we are not prepared to announce a per se constitutional rule requiring the reversal of every conviction • returned by a jury selected as this one was.” Witherspoon, 391 U.S. at 517-518, 88 S.Ct. at 1774-1775.

The Court indicated that competent evidence establishing “that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt” would be sufficient to show that the jury was not constitutionally “neutral”. This language was qualified with a warning that it would be necessary to show “that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction”. Witherspoon, 391 U.S. 518-520, 38 S.Ct. 1775-1776; W. White, The Constitutional Invalidity of Convictions Imposed by Death—Qualified Juries, 58 Cornell Law Review 1176, 1188 (1973).

Here, the defendant has cited several additional studies, besides those available when Witherspoon was written, to support his contention: Bronson, On The Conviction Proneness and Representativeness of the Death Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U.Colo.L.Rev. 1 (1970); Goldberg, Toward Expansion of Witherspoon Capital Punishment Scruples, Jury Bias and Use of Psychological Data to Raise Presumptions in the Law, 5 Harv.Civ. Rights — Civ.Lib.L.Rev. 53 (1969); Crosson, An Investigation Into Certain Personality Variables Among Capital Trial Jurors, Doctoral Dissertation, Western Reserve University (1966); Rokeach & McClellan, Dogmatism and the Death Penalty: A Reinterpretation of the Duquesne Poll Data, 8 Duq.L. Rev. 125 (1970); and White The Constitutional Invalidity of Convictions Imposed by Death — Qualified Juries, 58 Corn.L.Rev. 1176 (1973).

In Witherspoon, fn. 11, 391 U.S. at 517, 88 S.Ct. at 1175-1176, the record was “almost totally lacking in the sort of factual information that would assist the Court”. In this case the record is totally lacking. No evidence was presented to the trial court on this issue. Indeed, the issue now under discussion was not even made the basis for any objection in the circuit court. Specific objections are necessary before a ruling of the trial judge is subject to review, unless the matter is clearly not proper for any purpose. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Echols v. State, 256 Ala. 389, 55 So.2d 530 (1952). The Plain Error Rule is limited to cases “in which the death penalty has been imposed”. Rule 45A, Alabama Rules of Appellate Procedure. This Court can only consider a case as presented by the record, Jackson v. State, 260 Ala. 641, 71 So.2d 825 (1954), and will not presume a fact not shown by the record and make it a ground for reversal. Duncan v. State, 88 Ala. 31, 7 So. 104 (1889). Furthermore, we do not think that the contention advanced by the defendant is so well established that it is subject to judicial knowledge. See C. Gamble, McElroy’s Alabama Evidence, § 480.01 (3rd ed. 1977).

The argument that the State has no legitimate interest in qualifying a jury on the death penalty where that jury does not determine punishment but only guilt is not applicable to the statutory scheme in Alabama. True, under “Alabama’s sentencing statute in death cases, the. jury is powerless to fix any punishment other than death, if they find the accused guilty” and the jury does not exercise any discretion in fixing punishment. Jacobs v. State, 361 So.2d 640, 643 (Ala.1978). However, the jury’s verdict involves more than a simple determination of mere guilt or innocence.

“Under Alabama’s scheme, if the jury refuses to follow the legislative mandate, and does not fix the penalty at death, the statutory scheme acts as a form of safety valve, favorable to the accused, because if one single juror refuses to follow the legislative mandate, and refuses to fix the penalty at death, then the trial court may grant a mistrial.” Jacobs, 361 So.2d at 643.

For the above reasons, the defendant’s argument misses its intended mark.

II

The defendant contends that the sentence of life imprisonment without parole is disproportionate and constitutes cruel and unusual punishment. The defendant’s uncle, Charles Holloway, pled guilty to a charge of nighttime burglary and was sentenced to twenty years’ imprisonment. He testified against the defendant and admitted aiding the defendant in breaking into the victim’s house and stealing her property. However, he denied any participation in the killing which he testified occurred when Mrs. Kahler awoke and recognized the defendant standing in her bedroom while Holloway was in another part of the house. At the sentencing hearing the court found that the killing was “especially heinous, atrocious and cruel because of the 20 to 30 stab wounds on the victim’s body”.

The trial judge determined that the mitigating circumstances outweighed the aggravating.

“The following are the mitigating circumstances which the Court finds to be present. Firstly, the defendant has no significant history of prior criminal activity. The Court feels and finds that the defendant could be considered under some mental or emotional disturbance, whether it be extreme or mild, the Court would not know, because of the intoxication which I will refer to later. The Court finds that the defendant was under substantial- domination of another person, namely Charles Terry Holloway, a hardened criminal, 35 years of age with four felony convictions and an escaped convict at the time of the killing. That is covered by Section 5. The next section is Section 6, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law were substantially impaired and the Court finds, of course as everyone has heard, the defendant was a chronic and acute alcoholic of long duration and on this tragic occasion was in the opinion of the Court drunk or substantially intoxicated so that his capacity to understand or appreciate his conduct was in the Court’s judgment impaired. The last one is the age of the defendant, 22 years of age, is not in and of itself mitigating, but when you look at the other circumstances taken as a whole, the Court so considers it.
“After weighing the aggravating and mitigating circumstances, the Court refuses to accept the death penalty as fixed by the jury and sentences the defendant to life imprisonment without parole.”

In view of these circumstances, we do not consider the defendant’s sentence cruel and unusual. While the defendant’s sentence is in fact disproportionate to Holloway’s, Holloway was neither charged nor convicted for killing Mrs. Kahler.

The punishment given an accomplice may exceed that given the principal. Bridges v. State, 48 Ala.App. 249, 263 So.2d 705 (1972). Moreover, it is not required that the principal be convicted or even that his identity be established. United States v. Merriwether, 329 F.Supp. 1156 (S.D.Ala.), affirmed, 469 F.2d 1406 (5th Cir. 1971).

Ill

Alabama’s sentencing scheme is constitutional. Jacobs v. State, 361 So.2d 640, 654 (Ala.1978).

We have searched the record as required by law and found no error prejudicial to the rights of the defendant. The judgment of the circuit court is affirmed.

AFFIRMED.

HARRIS, P. J. and TYSON and BOOK-OUT, JJ., concur.

DeCARLO, J., concurs specially.

DeCARLO, Judge,

concurs specially.

Although it is alleged that this appellant was under the dominion of another person, the hard fact remains that the victim of this nighttime burglary was stabbed some twenty to thirty times by this appellant while the person who was supposed to be the dominant force was in another room at the time.

Further, the fact that appellant was a chronic alcoholic and was alleged to have been under the influence of alcohol at the time, in no way excuses this barbaric nighttime attack on a defenseless woman while she lay in her bed in the confines of her home.

Appellant’s complaint that his punishment of life without parole was cruel and unusual is empty when compared to the victim’s fate. I am sure she would have preferred the luxury of a trial before her life was butchered from her. However, she was not afforded the rights which the appellant enjoys today, the least of which is being able to see another new day of life.

From the facts in this case compared with other cases before this court where death has been mandated, the true heinousness and atrociousness of this vile act is shown. It is unfounded that appellant should suffer any lesser punishment.

This case should be remanded to the Jefferson Circuit Court for proper sentencing under the rationale of Lewis v. State, 380 So.2d 970 (1979).


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    Ex parte Ted Allen McGINNIS. (Re: Ted Allen McGinnis v. State of Alabama).
    79-342.
    Supreme Court of Alabama.
    May 2, 1980.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Wesley Samuel CARTER v. STATE.
    6 Div. 49.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    Mark B. Poison, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted under an indictment in pertinent part as follows:

“The grand jury of said county charge that, before the finding of this indictment, WESLEY SAMUEL CARTER, whose name is otherwise unknown to the Grand Jury, unlawfully and without the consent of the cardholder, to-wit: Walter F. Logan, did have in his possession, custody or control, a credit card or the information therefrom, ti[sic]-wit: a Master Charge, Account Number 543-990-430-043-170, issued to the said Walter F. Logan, contrary to and in violation of Section 13-4-32(a), Code of Alabama, 1975, against the peace and dignity of the State of Alabama.”

Said Section 13-4-32(a), Code of Alabama, 1975, provides as follows:

“Theft by taking or retaining possession of card taken. — A person who takes a credit card or the information therefrom from the person, possession, custody or control of another without the cardholder’s consent or who, with knowledge that it has been so taken, receives the credit card or the information therefrom with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder is guilty of credit card theft and is subject to the penalty set forth in subsection (b) of Section 13-4-40. Taking a credit card or the information therefrom without consent includes obtaining it by conduct defined or known as statutory larceny, common-law larceny by trespassory taking, common-law larceny by trick, embezzlement or obtaining property by false pretense, false promise or extortion.
“A person who has in his possession or under his control a credit card or the information therefrom issued in the name of another person without the cardholder’s consent is presumed to have violated this subsection.”

No demurrer or other instrument was filed in the trial court testing the sufficiency of the indictment. Appellant pleaded not guilty. A jury found him “guilty as charged in the indictment.” The court adjudged him “guilty of Violation of Credit Card Act as charged in the indictment,” fixed his punishment at imprisonment for the term of one year and one day as provided by Section 13-4-40, Code of Alabama 1975, as follows:

“Ten years. — A person who is subject to the penalties of this subsection shall be imprisoned not more than ten years.”

By reason of his indigency, an attorney was appointed to represent defendant. Said attorney was allowed to withdraw from the case, and the court appointed another attorney, who represented him on the trial and who continues to represent him on appeal by appointment of the trial court.

The evidence established that the credit card described in the indictment was owned by Walter F. Logan, that Mrs. Logan had it and other credit cards of Mr. Logan with her, with his consent, on August 28,1977, at “Horst’s Wholesale” on Third Avenue in Birmingham. They were in her purse, which she left in the automobile as she went in Horst’s; when she returned from the flower shop, her purse and its contents were gone. She did not know the defendant. On the afternoon of August 28, 1977, officers of the Birmingham Police Department responded to a call that a shooting had taken place near “5th or 6th Avenue between 12th and 14th” Streets South in Birmingham. There they found defendant who had been shot in the lower abdomen or the leg. He was taken to the hospital. Officers also went to the hospital. In order to determine defendant’s identity, one of the officers looked in his trousers and found a wallet that contained the mentioned credit card and other credit cards of the same owner.

Defendant testified that he did not take the credit cards from the possession or control of anyone, that he did not know they were in his wallet. He said that some time earlier on August 28, 1978, a friend of his family borrowed his automobile and that defendant’s wallet was in the automobile at the time. He testified that after his friend returned with the automobile, he rode in the automobile with his friend driving. He said that after the automobile stopped and he and his friend were leaving the automobile, his friend and defendant’s brother were tussling for possession of a gun owned by his brother, and that while they were doing so the “gun went off and they shot me in the thigh.”

During the trial, there was considerable colloquy among the court and the attorneys for the respective parties as to the allegations in the indictment, and the meaning thereof, as well as to the language of Code 1975, § 13-4-34(a). A part of the colloquy out of the presence of the jury was as follows:

“MR. POLSON: And I feel like this indictment — There is a variance in it. It does not allege that Mr. Carter possessed this credit card with the knowledge that it was stolen. Now, there is a presumption, but again as the Court pointed out, I am not sure about the constitutional amount of that presumption. I feel like this indictment is void because it leaves out the allegation that he possessed the credit card with the knowledge that it was stolen as you have to do — Just as you do in a regular buying and receiving case, that it was presumed or with knowledge that it was stolen.
“THE COURT: Mr. Gillis, what do you think this indictment is brought under? •“MR. GILLIS: Your Honor, the indictment, the way I see it, is specific to put the defendant on notice that he is violating the Credit Card Act.
“THE COURT: I know, but there are three parts to that subsection. I want to know what part you think is applicable.
“MR. GILLIS: Well, I think arguably he could violate the first part by taking. Taking can entail activity other than a theft. It can be a taking by whatever means; a taking from another’s possession; a taking from a particular place, etc. More than that, possession of stolen property recently after it was stolen creates a presumption that the person in possession of the property stole it. I think that is the situation that we have here. I think that arguably at least the first part of subsection A would apply. “Secondly, I think that the defendant had the credit card and thus as the law presumes in the second paragraph, subsection A, he was presumed to have knowledge that it was ‘so taken’ and had the intent to use it or sell it or transfer it to a person other than the issuer or the card holder.
“THE COURT: So you think that this indictment falls under the second part of this thing, the second part where it begins ‘with knowledge that it has been stolen — ’?
“MR. GILLIS: Yes, sir, I think it falls under the second paragraph for those reasons.”

During the court’s oral charge, after it had given the jury splendid instructions as to the burden of proof, the presumption of innocence, the nature of circumstantial evidence, etc., the court stated:

“All right, now, ladies and gentlemen, to get down to the essence of this thing, what is this charge? There has been a lot of confusion about it. There has been some confusion in my mind. This indictment says this: It charges that the defendant — It only charges three things. It charges that the defendant had in his possession a credit card issued to Walter F. Logan, and he had it without the consent of the card owner. Only three things involved in this case. This man is not charged with the theft of the card. Theft of the card is not involved in this case at all. There is no charge that the defendant stole the card. All the charge is, is that he had it in his possession or control. Two, that it was in the name of someone else, and it was without the consent of the owner or that someone else. Where does this charge come from? This charge comes from this paragraph in the State code 13 — 4-32. The number matters not. This is the way this thing is headed up. ‘Theft By Taking Or Retaining Possession of Card.’ This paragraph which I am going to read to you is where this charge is, this indictment, comes forth. This paragraph says this: ‘A person who has in his possession or under his control a credit card or information therefrom, in the name of another person, without the cardholder’s consent, is presumed to have violated this section.’ I’ll read it again. ‘A person who has in his possession or under his control a credit card issued in the name of another, without the consent or permission of another, is presumed to have violated this section.’ This is what the law says. I don’t make the law. These lawyers don’t make the law. All I do is charge you as to what I think the law is, and this is my judgment what the law is. I don’t say it’s right. I don’t say it’s wrong. All I know is when the legislature makes the law, I have to charge you as to what the law is. You are duty-bound to follow the law as I charge it to you.
“Further on in this code it says this — and I’ll have to do it slowly because at best it’s not completely clear. That this presumption — when I told you is presumed to have violated this section. It says that the presumption or the presumed fact, that is, the violation, on all the evidence must be proved beyond a reasonable doubt, as I have told you this, and the law declares that the jury may regard the facts, giving rise to the presumption— and that is the fact of possession in the name of another, without the consent of another — may regards the facts giving lies to the presumption as sufficient evidence of that fact. I don’t know whether that’s clear. I guess it is. You may regard these three factors if you are convinced beyond a reasonable doubt that these factors are present. You may regard them as proof. But, that does not stand by itself in anywise. You must and have to consider all the circumstances and all the facts surrounding this entire incident. Because this presumption is put in here does not conclude you in any way, shape or form. This presumption is to be considered with all the evidence in the case, all the other evidence in the case. It is definitely and most emphatically a jury question for you to decide.”

Appellee commences its argument in support of the indictment as follows:

“Although the State will not contend before this Honorable Court that the indictment in this case represents model pleading, the indictment does charge that the Appellant ‘unlawfully and without consent of the cardholder, to-wit: Walter F. Logan, did have in his possession, custody or control a credit card or the information therefrom, to-wit: a Master Charge, Account No. 543-990-430-043-170, issued to the said Walter F. Logan, contrary to and in violation of Section 13-4-32(a) Code of Alabama 1975, against the peace and dignity of the State of Alabama’, and thereby notifies the Appellant that he is charged with violation of Section 13-4-32(a).”

The crux of the insufficiency of the indictment lies in the fact that it does not allege any crime whatever. It is not a crime for one to have “in his possession or under his control a credit card or the information therefrom issued in the name of another person without the cardholder’s consent.” Such fact creates the presumption, but does nothing more, that there has been a violation of Code of Alabama 1975, § 13-4-32(a). The consequences of such presumption are stated in Section 13-4-39:

“When this article establishes a presumption with respect to any fact which is the element of a crime, it has the following consequences:
“(1) When there is sufficient evidence of the facts which give rise to the presumption to go to the jury, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly negatives the presumed fact; and
“(2) When the issue of the existence of the presumed fact is submitted to the jury, the court shall charge that while the presumed fact must, on all the evidence, be proved beyond a reasonable doubt, the law declares that the jury may regard the facts giving rise to the presumption as sufficient evidence of the presumed fact.”

Nothing can be plainer than that a person can be guilty of the fact that constitutes the essence of the presumption and not be guilty of the crime so described by § 13-4-32(a). The indictment charges no offense whatever. It is impotent and void. The allegation in the indictment “contrary to and in violation of § 13-4-32(a), Code of Alabama, 1975,” does not save it from its invalidity or afford it any strength. This for the reason that the act charged in the indictment is not “contrary to and in violation of § 13 — 4-32(a), Code of Alabama 1975.”

The evidence in the case established without dispute that defendant had had possession of the credit card without consent of the cardholder, the cardinal fact establishing the presumption. The evidence was in dispute, however, as to the fact constituting the statutory consequence of the presumption. The learned trial judge charged the jury as well as a judge could on the insoluble anomaly presented. His own concern as to the problem, as shown hereinabove to some extent in the colloquy among the court and the attorneys and in the court’s oral charge to the jury, emphasizes the difficulty for the defendant to be assured by the indictment of what he was called upon to defend.

The infectious nature of the invalid indictment is emphasized by the judgment in the case, which reads in pertinent part:

“it is the judgment'of the Court that said defendant is guilty of Violation of Credit Card Act as charged in the indictment.”

Most of the offenses defined in the “Credit Card Act” are felonies, but one of the crimes, § 13-4-35(a) is a misdemeanor.

There have been defects in indictments of an important nature that have been the source of disagreement among judges as to whether they could be waived and presented for the first time on appeal, but the Supreme Court, the Court of Appeals and the Court of Criminal Appeals, of Alabama, have uniformly held that where the indictment is entirely void in failing to state a criminal offense it contravenes a Sixth Amendment provision entitling a defendant to be informed of the nature and cause of the accusation and the due process mandate of the Fourteenth Amendment to the Constitution of the United States. After a review and consideration of apposite authorities on the subject, the principle is clearly stated by Judge Harris, now P. J., in Nelson v. State, 50 Ala.App. 285, 278 So.2d 734, 737 (1973):

“There is a line of cases holding that where an indictment fails to state any offense such defect must be noticed despite the absence of any attack on it in the court below. Brown v. State, 32 Ala. App. 246, 24 So.2d 450; Raisler v. State, 55 Ala. 64; Emmonds v. State, 87 Ala. 12, 6 So. 54; Gaines v. State, 146 Ala. 16, 41 So. 865; Mehaffey v. State, 16 Ala.App. 99, 75 So. 647; Jetton v. State, 29 Ala. App. 134, 195 So. 283.
“The conviction in this case cannot stand as it offends the first requirement of constitutional due process. The failure to charge an offense and the obvious harm to the defendant resulting therefrom, is the kind of defect involved in due process of law and it cannot be waived.”

The judgment is due to be reversed and the cause remanded for further proceedings in accordance with this opinion.

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.

      . At that time there had been no reported case under the Act. See subsequent case of Wells v. State, 378 So.2d 747 (1979), cert, den., 378 So.2d 756 (Ala. 1979).


author: SHORES, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re: Wesley Samuel CARTER v. STATE of Alabama).
    79-410.
    Supreme Court of Alabama.
    May 2, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES, and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Ervin ABERCROMBIE v. STATE.
    6 Div. 58.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      Mark B. Poison, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for unlawfully attempting to obtain a controlled substance, talwin by the use of a forged prescription. Alabama Code 1975, Section 20-2-72(3). Sentence was fixed at six years’ imprisonment.

On appeal the defendant challenges the sufficiency of the evidence to support the conviction. The question we must specifically answer is whether the testimony of a third person who heard and observed the extrajudicial identification of the defendant is admissible as to the fact of such identification. We hold that it is.

Ethel Walker was employed at Southway Drug Department in Jefferson County. At approximately 9:30 on the morning of July 10,1978, a customer entered and gave her a prescription to be filled. She gave this prescription to the pharmacist. Because Mrs. Walker admitted that she could not identify this customer her in-court identification of the defendant was suppressed.

The pharmacist, James Arthur Beard, Jr., did not see who handed Mrs. Walker the prescription. However, at the time, Mrs. Walker identified the man to Mr. Beard who then saw the individual. Once Mr. Beard received the prescription he telephoned the police. When the police arrived, Mr. Beard identified the defendant who was still in the store and the defendant was arrested. Upon being arrested the defendant denied giving anyone a prescription.

When the defendant was arrested, Mrs. Walker made a statement that “she would have trouble about identifying the person, or something” meaning that “she could identify him on that occasion, but that she didn’t know about six months from now”.

The testimony in the record reveals that Mr. Beard’s identification of the defendant as the individual who gave Mrs. Walker the forged prescription was based on what she told him at the time. It is equally clear that Mrs. Walker was able to identify the man who gave her the forged prescription when he actually handed it to her and that she could not identify him at a subsequent date.

Any review of the law on Alabama evidence must begin with a reference to the works of Judge J. Russell McElroy. In C. Gamble, McElroy’s Alabama Evidence § 273.01, the rule is stated:

“A statement which is useful in identifying a person, time, place or other thing is admissible for that purpose as a hearsay exception. The statement, of course, may not be considered as evidence of the truth of the matter asserted but only for the limited purpose of identification.” (Footnote citing authority omitted).

While there is a split of authority on this issue among the different states, the rule above cited is the law in Alabama. Anno. 71 A.L.R.2d 449, at 482-485, 491 (1960). The fact that a third person observed another identify the defendant is “an independent fact to which the witness . could testify just as to any other fact”. Key v. State, 240 Ala. 19, 20, 197 So. 364 (1940), relying on Green v. State, 96 Ala. 29, 11 So. 478 (1891); see also State v. Wilson, 38 Wash.2d 593, 231 P.2d 288, cert. denied, 342 U.S. 855, 72 S.Ct. 81, 96 L.Ed. 644 (1951).

Under these circumstances the identification of the defendant was sufficient to present a question of fact for the jury. The discrepancies in the testimony of Mr. Beard and the arresting officer as to the defendant’s dress involve the weight to be given to the identification testimony rather than its admissibility. Colston v. State, 57 Ala.App. 4, 15, 325 So.2d 520, cert. denied, 295 Ala. 398, 325 So.2d 531 (1975).

In this case, the defendant was connected to the crime only through eyewitness testimony and his presence in the store. It is uncontradicted that the defendant was the only male observed in the store during the particular time involved. No fingerprint or handwriting analysis was made of the forged prescription. While the basic deficiencies inherent in human observation and perception must be recognized, T. Cunningham and D. Tyrrell, Eyewitness Credibility: Adjusting The Sights of the Judiciary, 37 Ala.Law. 561 (1976), the evidence in this case is legally sufficient to support the verdict of the jury.

We have searched the record for error prejudicial to the defendant. Finding none, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


text:
    Ex parte Ervin Laverne ABERCROMBIE. (Re: Ervin Abercrombie v. State of Alabama).
    79-429.
    Supreme Court of Alabama.
    May 7, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J, and MADDOX, JONES, and BEATTY, JJ., concur.


text:
    Larry Wayne GILHAM v. STATE.
    6 Div. 103.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      J. Louis Wilkinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of rape, and the court fixed his punishment at imprisonment for twenty years and sentenced him accordingly.

The sufficiency of the evidence to support the verdict is not challenged on appeal. For an understanding of the essential facts pertinent to the questions raised on appeal, there is little need to go beyond the following STATEMENT OF THE FACTS contained in appellant’s brief:

“In the early morning hours of November 21, 1976, Renee Dobbs was returning home from a date when a car pulled up beside her while she had stopped for a stop sign (T. 138). Ms. Dobbs identified, in court, the defendant, Larry Wayne Gil-ham, as the person in the other car. (T. 139). At this time Ms. Dobbs testified that Mr. Gilham turned on the interior light in his car, held up what appeared to be a badge and motioned for her to pull over. She continued on to the next stop sign where he again motioned for her to pull over, which she did. (T. 138). The man then got out of his car and came to the side of her car. She cracked her window and he asked to see her driver license, which she gave him. He then pulled out a ‘gun’ and told her to move over. (T. 140). Ms. Dobbs then stated that the man drove the car until they reached an alley where he stopped the car and had sexual intercourse with her.”

Appellant argues that there were three errors of the trial court that should result in a reversal of the judgment, which we now consider in the order presented in appellant’s brief.

The first asserted error is based upon the action of the court in overruling defendant’s objection to a part of the closing argument of counsel for the State as follows:

“MR. DUNN: He’s seen that composite. How do you think he knew to arrest that man if she was so unsure or that composite is so bad?
“MR. WILKINSON: We object to that. There is no testimony to that effect none at all, none at all.
“THE COURT: Overruled.
“MR. WILKINSON: We except.
“MR. DUNN: She didn’t know him, did she? She didn’t know who he was. If she was able to sit down and put him together like pieces of a puzzle — so good that Glover sees his picture on the bulletin board and sees him out there, three months later, and arrests him.
“MR. WILKINSON: We object.
“THE COURT: Overruled.
“MR. WILKINSON: We except.”

The item called “composite” and the item called “picture” in the argument of counsel were the same. The reference was to a picture, drawing or “composite” that the alleged victim of the crime had made in the course of interviews of officers with her as to the crime. It appears that neither the particular picture nor a reproduction thereof was in evidence on the trial of the case before the jury. However, in a lengthy pretrial hearing of motions of the defendant to suppress contemplated evidence, the picture, or a reproduction thereof, was admitted in evidence as defendant’s Exhibit 1.

Officer Terry Glover arrested defendant about three months after the alleged crime, when he saw him driving an automobile that resembled, according to reliable information, the automobile the man who committed the crime was driving when he stopped the victim under the pretense that he was an officer. Officer Glover and the victim testified as to the victim’s description of defendant as portrayed by defendant’s Exhibit 1, admitted in evidence on the pretrial hearing. Officer Glover testified that he had seen a reproduction of the picture on the bulletin board at police headquarters. It appears that perhaps the recollection of counsel for the State as to the evidence on the trial erroneously extended to the evidence on the pretrial hearing, but the evidence on the trial was sufficient, we think, to support the inference drawn by State’s counsel in his argument that the picture drawn by the victim of the rapist was good enough to have been a factor in influencing Officer Glover in arresting defendant as the man who had committed the rape and therefore arguendo enhance the trustworthiness of her testimony as to his identity. We think it is clear that counsel was not attempting to make a statement of fact that was not in evidence, but that he was merely arguing reasonable inferences to be drawn from the evidence. Braden v. State, 49 Ala.App. 97, 268 So.2d 877 (1972). Reasonable latitude is afforded counsel in arguing deductions from the evidence. Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974); Bryson v. State, 264 Ala. 111, 84 So.2d 785 (1956). The argument would have been much stronger in favor of the prosecution if the picture drawn by the victim had been in evidence on the trial for the jury to consider, for the picture drawn by the victim and the photograph in the evidence of the defendant seem about as much alike as an artist’s drawing and a photograph of the same person can be. The court was not in error in overruling defendant’s objection to the argument.

The second contention of appellant relates to the action of the court in overruling objections of defendant to the introduction in evidence of a deputy sheriff’s badge and a mock pistol found in defendant’s automobile at the time of his arrest. Appellant argues that such badge and mock pistol were not admissible in evidence. He says that “the victim-witness could not identify them” as the badge and the pistol her assailant displayed the night of the crime. As to the badge in defendant’s automobile at the time of his arrest, the victim testified, “Yes, that looks like the badge.” As to the mock pistol the officer recovered from defendant’s automobile the night he was arrested, the victim testified, “That looks like the gun.” It is to be seen therefrom that the items were sufficiently identified and were properly admitted in evidence. In the absence of circumstances logically requiring a different conclusion, the identification by a witness of an object exhibited to him in court as “similar” to a particular object previously observed by him is sufficient. Davis v. State, Ala.Cr. App., 352 So.2d 3 (1977), and cases there cited. Furthermore, under the circumstances of this particular case, taking into consideration the bizarre behavior of the person who raped the alleged victim, the particular objects found in defendant’s automobile that were “similar” to the objects used by the rapist, constituted not only evidence of the identity of the objects but also evidence of the identity of the person who committed the crime.

Appellant’s third insistence on error relates to evidence of the lineup identification of defendant by the victim. Appellant takes the position that the absence of a lawyer for him at such lineup rendered the identification inadmissible. At the time of the lineup, adversary judiciary proceedings had not been instituted against defendant. In that circumstance, the fact that defendant did not have counsel at the time of the lineup, not otherwise subject to criticism, did not violate his constitutional rights. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690 (1972).

Evidence of the lineup identification was not presented until after the victim had been vigorously cross-examined as to her in-court identification of defendant. The trustworthiness of her in-court identification was seriously attacked. An attack upon the credibility of a victim’s in-court identification of defendant, sufficient to raise an inference of misidentification, authorizes the offer and admission in evidence of an earlier, extrajudicial identification. Aaron v. State, 273 Ala. 337, 139 So.2d 309 (1962); Carlisle v. State, Ala.Cr.App., 371 So.2d 975 (1979).

We have searched the record for error prejudicial to defendant and have found none. 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 below is hereby

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Larry Wayne GILHAM. (Re: Larry Wayne Gilham v. State of Alabama).
    79-415.
    Supreme Court of Alabama.
    May 2, 1980.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


text:
    Larry Lee GREEN, alias v. STATE.
    4 Div. 775.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
    Rehearing Denied Feb. 26, 1980.
    J. Allen Cook, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of burglary in the first degree. The court fixed his punishment at imprisonment for twenty years and sentenced him accordingly.

The indictment alleged that the inhabited dwelling house involved was “owned by or in possession of,” and was “occupied by Lucile Rogers Palmer.”

According to the testimony of Mrs. Palmer, about eighty years of age, she owned the house and was living in it when it was burglarized on a night in April 1979. Also living in the house was a man by the name of Johnny Rodgers, who was sleeping in the front room of the house while Mrs. Palmer was sleeping in the back of the house. According to Mrs. Palmer’s further testimony, she was awakened about 1:00 A.M. by being beaten upon by one Jessie Berry. Two other people were in the room at the time, including appellant. Jessie did all the talking. She noted no affirmative conduct on the part of the other two men. She said that Berry also attacked and injured Rodgers. Berry took three hundred dollars from Mrs. Palmer. Thereafter the three left out of the door which had been broken into.

Defendant, twenty-two years of age, testified that he met Jessie Berry in Luverne a few hours before the burglary. He had never known Jessie, but had heard of him. According to defendant’s testimony, he was driving an automobile owned by his grandfather. He said he and his brother had been riding around in it when they met Jessie Berry. They went to a house in Luverne, known as a place in which people assembled to drink. While there, Jessie Berry told him that “he wanted to got to his crib in Andalusia.” He further said, “On the street, crib is known as a place where you live, your home.” His testimony continued as follows:

“Q. I see. And, then, what did you say about that?
“A. I said, I had to think about it. “Q. Well, did you finally decide to come on and go to Andalusia?
“A. I told him I would bring him as long as I didn’t have to stay down here very long.
“Q. All right. Did he say anything to you about breaking in — going down here and breaking in anybody’s house or anything like that?
“A. Not at that time..
“A. We fooled around until about — late that night, and he said that he was ready to go. And, so, we got into the car and we began our journey on down here to Andalusia.
“Q. A1 right. Then, about what time of the night or early morning did you arrive at Andalusia? Just about now?
“A. I would say about midnight.
“Q. Do you know where you went?
“A. I am not that familiar with Andalusia.
“Q. Well, did it turn out to be the house of Lucile Palmer, that testified here a while ago?
“A. Yes, sir.
“Q. All right, now, when you first got there, just who did what and who said what?
“A. Well, when we first got out here, I was going to pull up in front of the house, because being a person’s crib, you always pull up in front of a person’s house, if you know them. And, Berry told me, naw. He said, back up in here. G-. damn it. Do what I say. That is his. words. Back up in here. And, so, I did.
“Q. Did he say at any time that he was going to hurt you if you didn’t do what he—
“Q. Go ahead and answer that.
“A. Yes, sir, he did.
“Q. Then what happened?
“A. Well, he got out of the vehicle and he went up on the porch. And, that is the last time I saw him right then— “Q. You saw him up on the porch? “A. I was motioning to get out of the car behind him and he told me, you stay here. You stay in the car.
“Q. And, you took that to be his house, his crib?
“A. Right. . . .
“Q. Now, go on from there, Larry. What happened then?
“A. Well, me and my brother were sitting in the car and I heard a voice, sounded like somebody was screaming, sounded like somebody was in trouble or something. And , I said, uh-uh, something wrong. I said, this ain’t right, something is happening, something going on. And, my curiosity was over powering me, and so I got out of the car. Then, when I got out of the car, I wanted to find out what was happening so I entered into the house.”

The witness further testified that he saw Jessie take the money off the woman, that he never helped Jessie that he never helped the woman and that he never did anything to help or to hurt, that they then came out of the front door and saw the police. He said that at that time he and his brother “went to the woods.” He denied having any intention to steal, burglarize or rob.

Soon after appellant was arrested, he gave a statement to the authorities after being fully advised as to his constitutional rights. There was no contention on the trial to the contrary. In that statement he said that the other “fellow” with him and Jessie while they were together in Luverne, on the trip to Andalusia, and at the house that was burglarized, was a man by the name of Angelo. He did not say that the man was his brother. Also in the statement, the defendant said that he and Angelo remained in the automobile, that they did not go in the house, that he heard the woman scream and saw the police arrive and, “I pulled the key out of the switch, we hit the woods.” About two days after making his first statement, he called the authorities and made a statement more nearly in line with his testimony on the trial.

In urging that the evidence was insufficient to support the verdict finding defendant guilty, appellant lays stress upon what he refers to as the “undisputed testimony” and the “harmonious and consistent pattern” thereof “in favor of the defendant.” The test as to the sufficiency of evidence to justify a submission to the jury ■of the issue as to defendant’s guilt has been variously stated in innumerable cases. More often, perhaps, than otherwise it is said that the result of the test hinges on the question whether there is a conflict in the evidence materially bearing upon the crucial issue. In those cases, it is but natural that the line of differentiation is emphatically expressed, and sometimes exclusively expressed, in terms of reference to the disputed or undisputed character of the evidence. By this it is not meant that only in cases in which there is a conflict in the material evidence should the issue be submitted to the jury. To the contrary, even in cases in which the evidence is undisputed, the issue as to defendant’s guilt should be submitted to the jury if and when reasonable persons can draw contrary inferences therefrom as to defendant’s guilt. Stated otherwise, the issue should be taken from the jury if, but only if, the evidence having a material bearing upon the issue of guilt is undisputed and only one reasonable inference as to guilt vel non can be drawn therefrom.

“Where a case is tried by the court without the intervention of a jury, the credibility of the witnesses is, of course, a matter for the court to determine. On the other hand, where the case is tried by the court and a jury, the credibility of particular witnesses and the weight and value to be given to their testimony are questions exclusively for the jury, and this applies even in cases tried by the court and a jury where there is no conflict in the testimony." (emphasis supplied) . . . 23A C.J.S. Criminal Law § 1138b

It is stated in 23A C.J.S. Criminal Law § 1139:

“. . . Where, however, there is any evidence, however slight, on which the jury may justifiably find the existence or ,the non-existence of material facts in issue, and the evidence is conflicting, see supra § 1138c, or of such a character that different conclusions as to such facts reasonably may be drawn therefrom, the issue should be submitted to the jury for determination, even though the court does not believe the evidence, or is of the opinion that it is not sufficient to convict, or is doubtful whether the evidence presented will be convincing to the jury. .” (emphasis supplied).

Whether the evidence in this case was undisputed may itself be a matter of dispute, but even if there is no conflict in the evidence, the issue of defendant’s guilt was properly submitted to the jury if reasonable persons could infer therefrom that defendant was guilty. In Byrd v. State, 213 Ala. 333,104 So. 830 (1925) the principle is clearly and succinctly stated and authorities cited:

“It is the province of the jury, and not the court, to draw inferences of fact from the evidence susceptible of adverse inference. That is to say, when applied to criminal cases, the court may announce presumptions of law to the jury; the inferences of fact are for the jury in arriving at a verdict. The weight of evidence, the credibility of witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone. Dillard v. State, 151 Ala. 92, 44 So. 396; Kennedy v. State, 147 Ala. 687, 688, 40 So. 658; Hornsby v. State, 94 Ala. 55, 10 So. 522; Gibson v. State, 89 Ala. 121, 8 So. . 98, 18 Am.St.Rep. 96; Hadley v. State, 55 Ala. 31; Mitchell v. State, 60 Ala. 26; Henderson v. State, 49 Ala. 20.”

In Reliford v. State, 37 Ala.App. 684, 75 So.2d 88 (1955), the court affirmed a conviction for the unlawful possession of prohibited liquor. The evidence was undisputed. State’s witnesses had testified that they found six gallons of whiskey about one hundred yards behind defendant’s barn inside the pasture and that there were glass jugs in the smokehouse of the same type as the jugs in which the whiskey was contained. There was also evidence as to paths leading through the barn by the place where the whiskey was found. Defendant testified that he had never been in that part of the pasture where the whiskey was found and that he knew nothing about the whiskey. He said the jugs in his smokehouse were to be used to put syrup in. He had something like an acre in cane sugar. The court held:

“In considering the court’s ruling on the motion to exclude the evidence we are required to take the evidence in its most favorable light for the "prosecution. Jones v. State, 33 Ala.App. 451, 34 So.2d 483; Womack v. State, 34 Ala.App. 487, 41 So.2d 429.
“It is also a legal truism that when the evidence affords inference adverse to the accused the question is one for the determination of the jury. Emerson v. State, 30 Ala.App. 89, 1 So.2d 604; Hargrove v. State, 147 Ala. 97, 41 So. 972.
“We are of the opinion the evidence submitted affords inference of defendant’s guilt and that it was sufficient, if believed by the jury beyond a reasonable doubt, to sustain the judgment of conviction. ...”

Appellant herein was not an inexperienced dullard. He had been in military service. He had graduated from MacArthur Technical College. He had been previously convicted of grand larceny. Although he expressed fear of personal violence upon him by Jessie Berry, he did not claim that Berry was armed. Furthermore, there is nothing in the evidence to indicate that appellant and his brother could not have manhandled Jessie if they cared to do so. The possibility of his innocence exists, but to say with assurance that the jury should have found him not guilty is to have expected of them a similar gullibility to that which defendant claims he had as to the professed innocent intention of Jessie Berry.

It was not contended by the State that appellant actually broke into the house. The issue between the parties and amply declared to the jury by the court was whether defendant aided or abetted Jessie Berry in the burglary. The issue was properly submitted to the jury, and the jury was well within its province in finding defendant guilty.

The trial court did not instruct the jury on the subject of duress, which appellant claims justified a verdict in favor of defendant. There was no request that the court instruct the jury on that subject. If a party desires that the court extend its oral charge to cover some applicable law, his remedy is to request a written charge on the subject. Lewis v. State, Ala.Cr.App., 372 So.2d 882, cert. denied, 372 So.2d 885 (1979); Thigpen v. State, Ala.Cr.App., 369 So.2d 291, cert. denied, 369 So.2d 297 (1979).

There is no error in the record prejudicial to defendant, and 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 below is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte Larry GREEN. (Re: Larry Lee Green, alias v. State of Alabama).
    79-406.
    Supreme Court of Alabama.
    May 2, 1980.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


text:
    William WOODALL v. STATE.
    1 Div. 95.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.
    Gary D. Porter, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a denial of appellant’s petition for a writ of habeas corpus, after a submission by the parties on the pleadings and the evidence.

Petitioner had been arrested under a warrant issued by the Governor of Alabama on a requisition of the Governor of Texas. The warrant recited that appellant and another person stood charged with the crime of “misapplication of construction contract trust funds over $250, a felony in violation of Art. 5472e, Tex.Civ.Stat., committed in Texas,” that petitioner was in Texas at the time of the commission of the crime and thereafter fled from the justice of Texas and had taken refuge in Alabama.

At the beginning of the hearing, the State introduced in evidence the warrant of the Governor of Alabama and the requisition of the Governor of Texas, which included as an exhibit copy of an indictment of the grand jury of Rusk County, Texas, returned on March 15, 1978, which charged that on or about October 13,1977, appellant and another person committed a felony particularly alleged therein, which will hereinafter be quoted in pertinent part and discussed in connection with the specific law of Texas proscribing the alleged crime and prescribing the punishment.

After introduction in evidence of the supporting documents, the point was made by petitioner as to whether the evidence showed that he was the same person named in the supporting documents, but such question is not presented on this appeal. After the trial court ruled against appellant on the particular point, petitioner proceeded with his evidence, which consisted of the testimony of the petitioner, the appellant herein.

Appellant testified that he then lived with his wife and three children in Sara-land, Alabama, that he had been living there and working in that region since about the middle of December 1977. He said that prior to that time he was in Texas: that while in Texas he was engaged in the improvement or construction of a residence for a Paul and Marie Peterson, during the months of October and November, 1977. He said he received directly from them, upon the commencement of the work, the sum of ten thousand dollars, one-third of the contract price; another ten thousand dollars when one-half of the work was completed. According to him, the work was never completed, but that ninety percent or more was completed. He said he never received any money from the Petersons in addition to the total of twenty thousand dollars that he had received about the time of the commencement of the last half of the work. The only issue presented on appeal is whether, under all the circumstances shown by the record and the evidence, extradition from Alabama to Texas is inhibited by Ala.Code 1975, § 15-9-48 as follows:

“Nothing in this division shall be construed as authorizing the extradition of any person in this state to any other state where the extradition proceedings, directly or indirectly, seek to aid in the collection of any debt, demand or claim against the party sought to be extradited.”

The specific testimony of petitioner relied upon by appellant in his brief is as follows:

“Q. Tell us what the Petersons told you or one of them told you when they called, [about the first of December 1977].
“A. That [they] stated that if I didn’t complete the job that they would file charges against me.
“Q. All right. Did they tell you anything else?
“A. Only a few words of threat, probably, but I couldn’t put my finger on the exact words.
“Q. But they did tell you if you didn’t complete the job that they would have you arrested?
“A. Yes.”

Appellant relies largely on cases in Alabama holding that the particular person or persons personally interested in obtaining satisfaction of a debt by defendant were influencing the prosecution of defendant in order directly or indirectly to enforce payment of a debt. Chatham v. State, 46 Ala. App. 729, 248 So.2d 768 (1971); Bishop v. State, 38 Ala.App. 667, 92 So.2d 323 (1957); Scott v. State, 33 Ala.App. 328, 33 So.2d 390 (1948). On the other hand, appellee seeks to distinguish those cases from Busey v. State, 56 Ala.App. 205, 320 So.2d 709, cert. denied 294 Ala. 753, 320 So.2d 713 (1975), in which it was held that the mere expression of a desire on the part of a defrauded person for the arrested person to return her money did not show that extradition proceedings were sought to aid in the collection of a debt, in violation of Ala.Code 1975, § 15-9-48.

The issue raised by the pleadings and the evidence in the instant case is different from the crucial issue in any of the cases relied upon by appellant or by appellee. A transcendent question in the instant case is whether petitioner owed the Petersons anything. True, he had not performed the contract in full, but he lacked only one-tenth of full performance, according to his testimony. There is no indication whatever that the balance of the work could have been performed for less than the ten thousand dollars that the Petersons would have owed appellant if he had fully performed.

To focus more clearly upon the crucial issue in the matter, the language of the indictment and the language of the statute upon which the indictment was based require consideration.

The indictment is in pertinent part as follows:

“[Appellant and another] after having theretofore been paid funds under a construction contract' entered into with Paul Peterson and Marie Peterson for the improvement of specific real property . and while acting as trustees of such construction contract funds not covered by a corporate surety payment bond, did then and there unlawfully, intentionally and knowingly, directly and indirectly and with intent to defraud, retain, use, disburse, misapply, and otherwise divert said trust funds over the value of $250.00 paid to them ... by the said Paul Peterson and Marie Peterson under said construction contract, without first fully paying and satisfying all obligations of the said trustees ... to Moon Builders Supply of Overton, Texas, mate-rialmen, which were incurred in connection with the construction and improvements, for which said funds were received.” (emphasis supplied)

The applicable provisions of the Texas statute on the subject, Art. 5472e, Tex.Civ. Stat., are as follows:

“Section 1. All moneys or funds paid to a contractor . . . for the purpose of improving such real property which are secured in whole or in part by a lien on the specific property to be improved are hereby declared to be Trust Funds for the benefit of the artisans, laborers, mechanics, contractors, sub-contractors or mate-rialmen who may labor or furnish labor or material for the construction or repair of any house, building or improvement whatever upon such real property; . The contractor, . . . receiving such payments or funds or having control or direction of same, is hereby made and constituted a Trustee of such funds so received or under his control or direction. “Sec. 2. Any Trustee, who shall, directly or indirectly, with intent to defraud, retain, use, disburse, misapply, or otherwise divert, any trust funds, or part thereof, as defined in Section 1 of this Act, without first fully paying and satisfying all obligations of the Trustee to all artisans, laborers, mechanics, contractors, subcontractors, or materialmen, incurred or to be incurred in connection with the construction and improvements, for which said funds were received, shall be deemed to have misapplied said Trust Funds. . Misapplication of Trust Funds hereunder, of the value of $250 or over shall be punished by confinement in the Department of Corrections for a period not exceeding ten years.”

It may well be that under all conceivable circumstances, there is an indebtedness on the part of appellant to the Petersons, but, if so, it is not disclosed by the pleadings or the evidence. The possibility that appellant owed such a large amount to Moon Builders Supply of Overton, Texas, materialmen, incurred in connection with the construction and improvements involved, and that in the final resolution of the matter between the lienor and the lienee, appellant would be indebted to owners of the property is obvious, but the existence of such an indebtedness is not shown.

By taking the stand and testifying as to the conversation between him and the Petersons, it seems clear that petitioner recognized that after the respondent had established by the documents introduced in evidence the prima facie legality of petitioner’s restraint, the burden was then upon him to show that the restraint was illegal. Such is the general rule. Alvis v. State, 36 Ala.App. 370, 56 So.2d 388 (1952); Crayton v. State, 284 Ala. 95, 222 So.2d 351 (1969). Nothing was presented by petitioner to shift the usual burden from him to the State. The evidence would not support a finding of fact that “the extradition proceedings, directly or indirectly, seek [sought] to aid in the collection of any debt, demand or claim against the party sought to be extradited.” 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.


author: BEATTY, Justice.

text:
    Ex parte William WOODALL. (Re: William Woodall v. State of Alabama).
    79-461.
    Supreme Court of Alabama.
    May 2, 1980.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: BOOKOUT, Judge.

text:
    Harvie D. RENFROE v. STATE.
    6 Div. 19.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      James M. Sizemore, Sylacauga, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

First degree manslaughter (uxoricide); sentence: five years imprisonment.

This is an appeal from a conviction resulting from a retrial mandated by this court’s reversal of appellant’s initial conviction of second degree murder on an indictment charging first degree murder. In order to avoid unnecessary restatement of the essential facts surrounding this case, we adopt the statement of facts reported by this court per Judge Tyson in Renfroe v. State, 49 Ala.App. 713, 275 So.2d 692 (1972).

Appellant contends the trial court erred in refusing to grant his motion to exclude the State’s evidence and in refusing to give the affirmative charge to the jury. In approaching this review, we are required to take the evidence favorable to the prosecution as true and accord to the State all legitimate inferences therefrom. Jones v. State, 33 Ala.App. 451, 34 So.2d 483 (1948).

From a review of the evidence presented by the State, the following facts and circumstances tended to connect the appellant with the crime:

(1) There was no evidence of forced entry into the house.

(2) The deceased’s purse containing over $1,300 was left undisturbed in the master bedroom.

(3) There was evidence of marital discord.

(4) There was testimony that the deceased had telephoned a moving company two days prior to her death.

(5) The testimony of the toxicologist was that death occurred between 2:00 and 6:00 a. m.

(6) In the appellant’s statement given to police after proper Miranda warnings, appellant said he ate breakfast at home with his wife and departed around 8:00 a. m.

(7) There was testimony from several witnesses who saw appellant eating breakfast in a restaurant about 8:00 a. m. on the morning in question.

In our view the State presented sufficient evidence to make out a prima facie case against the appellant. Thus, we hold that the trial judge properly denied the motion to exclude the State’s evidence and the request for the affirmative charge.

II

Appellant contends that the trial judge erroneously refused to allow appellant to present evidence seeking to prove that one Earl L. Daugherty committed the instant homicide. In his offer of proof, defense counsel summarized the expected testimony of Patricia Bennett, former wife of Earl L. Daugherty. According to defense counsel, Ms. Bennett would have testified that on September 7, 1971, Earl L. Daugherty attempted to choke one Joann Peters in Ray City, Georgia. Defense counsel argued that, since the excluded testimony would have been admissible against Daugherty had he been charged with the instant homicide, it should be admissible in exoneration of the defendant citing Davis v. State, 8 Ala.App. 211, 62 So. 382 (1913). However, appellant’s argument is faulty in its presumption of a sufficient connection between Daugherty and the deceased to support a prosecution of Daugherty. The facts, including those in the offer of proof, simply do not establish any reasonable connection between Daugherty and the instant homicide.

“Even though the accused offers sufficient and proper evidence of another’s guilt to render it admissible, such evidence may still, within the discretion of the trial court, be held inadmissible upon the ground of its being too remote from the crime in question.” Gamble, McEl-roy’s Alabama Evidence, § 48.01(11), (3d ed. 1977).

In the instant case appellant seeks to introduce testimony that Daugherty committed a subsequent, unrelated offense in another state in order to show that he could have committed this homicide because both cases involved female victims who were choked. In our view the trial judge properly excluded the testimony concerning the alleged assault of Joann Peters. The proffered testimony relating to the alleged assault of one Doris Register on December 11, 1973, was likewise properly excluded for the same reasons.

According to the testimony of Derrick Vincent and Howard Shell, employers of Daugherty, he would not even have had an opportunity to commit the instant homicide because he was assigned work in another city on the day the victim died. Thus, it was proper to sustain the State’s objection to a question seeking to ascertain whether or not the assigned work was done because such was not probative of the issue of Daugherty’s opportunity to commit the offense in question. No error having been shown in the trial judge’s individual rulings on these related matters, there can be no cumulative prejudicial effect as argued by appellant.

III

Appellant contends that the trial judge twice erred during the State’s opening statement by overruling defense counsel’s objections to the prosecutor’s remarks. We need not quote the State’s specific remarks deemed objectionable by appellant because we find evidence in the record to support them. Thus, the prosecutor was properly explaining to the jury what he expected the evidence to show. Wilson v. State, 52 Ala.App. 680, 296 So.2d 774, cert. denied, 292 Ala. 759, 296 So.2d 778, cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1974).

In Winnings v. State, Ala.Cr.App., 370 So.2d 323, cert. denied, Ala., 370 So.2d 329 (1979), we said:

“The scope and latitude of counsel’s opening statement are matters addressed to the trial court’s discretion, and such ruling will not be disturbed on appeal without a showing of abuse. . . . ”

The trial court did not abuse its discretion in overruling defense counsel’s objection to the State’s opening statement. Thus, appellant’s contentions in this regard clearly are without merit.

IV

Appellant next contends the trial court erred in allowing the physician who examined appellant’s wife on June 23,1971, to testify over proper objection that sexual intercourse causes heart rate and blood pressure to rise slightly. In his statement to police, appellant said that he had sexual intercourse with his wife on the night before she died. We fail to see the relevancy or materiality of the physician’s testimony in this regard. There was no evidence linking the victim’s death to either high blood pressure or heart disease. In our view the error, if any, in the admission of the physician’s testimony was harmless. Rule 45, Alabama Rules of Appellate Procedure.

V

Appellant contends that on numerous occasions during his cross-examination of various State witnesses, the trial judge unduly restricted his cross-examination by sustaining the prosecutor’s objections. Appellant relies on authority which states in substance that the cross-examiner is entitled to elicit any facts relevant to the issues in the case even though not brought out on direct examination. Furthermore, we find in § 12-21-137, Code of Ala.1975, the following: “The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him.”

After careful examination of the portions of the record wherein appellant asserts infringement or undue restriction of his right to cross-examination, we find no justification for such assertions. The law is well settled that the extent of cross-examination is a matter addressed to the sound discretion of the trial court and is not subject to review except in case of abuse. Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968); Maund v. State, Ala.Cr.App., 361 So.2d 1144 (1978). In this case the trial court did not abuse its discretion with respect to its rulings during defense counsel’s cross-examination of State witnesses.

VI

Appellant asserts that the trial court erred in admitting the testimony of several witnesses who saw appellant eating breakfast in a restaurant between 7:30 and 8:30 a. m. on the morning of his wife’s death. Appellant’s statement to police was in conflict with the testimony of these witnesses. Appellant argues that the witnesses’ testimony was irrelevant, immaterial, and offered solely for the purpose of contradicting appellant’s statement. Thus, the testimony was an impermissible attempt to impeach appellant’s credibility on an immaterial matter. We do not agree with appellant’s assertions.

According to the coroner’s testimony, appellant’s wife died between 2:00 and 6:00 a. m. Appellant told the police he had eaten breakfast at home with his wife and departed around 8:00 a. m. The testimony of witnesses who saw appellant eating breakfast in a restaurant between 7:30 and 8:30 a. m. is therefore certainly material. It has material value, as opposed to being merely contradictory, as it is the earliest documentation by witnesses of appellant’s whereabouts on the morning of the homicide. See: Gamble, McElroy’s Alabama Evidence, § 156.01(3)(4), (3d ed. 1977). Thus, the trial court properly allowed the witnesses’ testimony.

VII

Appellant contends the trial court erroneously allowed a witness who saw appellant eating breakfast in a restaurant about 8:00 a. m. on the morning of the instant homicide to testify that appellant “acted pretty occupied.” The record clearly indicates that appellant’s objection came too late. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974). Furthermore, the trial court made no ruling on the objection. Thus, there is nothing for this court to review. Mitchell v. State, Ala.Cr.App., 338 So.2d 524 (1976).

VIII

Appellant next contends that the State was improperly allowed to elicit opinion evidence from a nonexpert as to the mental status of the appellant while the witness observed him eating breakfast on the morning of the wife’s death. From the record:

“Q. Would you tell the jury how Mr. Renfroe appeared to you that morning?
“A. How he appeared?
“Q. Yes, sir.
“A. Well, he was quiet. And he was eating eggs and bacon, I think, in a booth there.
“Q. Was there anything else that attracted your attention to him?
“A. He just didn’t act like himself.
“Q. Did—
“MR. BOLTON: Now, Your Honor, I move to exclude that.
“MR. HOLLINGSWORTH: Is that your best judgment?
“MR. BOLTON: I move to exclude it. I move to exclude it.
“THE COURT: Overruled.”

The witness’ answer clearly was not an opinion as to appellant’s mental status. The witness simply noted that the appellant’s behavior was not customary. “Witnesses may always be allowed to testify as to the appearance and emotions of other persons.” Hamilton v. State, 281 Ala. 448, 203 So.2d 684 (1967); Garraway v. State, Ala.Cr.App., 337 So.2d 1349 (1976); Beard v. State, Ala.Cr.App., 337 So.2d 1372 (1976). Thus, no error is shown.

IX

Appellant asserts error in the trial court’s failure to grant a mistrial when on two separate occasions Luther D. Brewer, former sheriff of Talladega County, made reference to a previous trial. The initial reference mentioned by the appellant in brief was not objected to nor was there a motion for a mistrial. Furthermore, the reference was so slight as to present no threat of prejudicial effect.

The second reference was as follows: “I told the Court that in that other trial.” Extensive discussion was reflected in the record out of the jury’s presence as to whether the trial court should give an instruction to the jury to disregard any statement by the witness about another trial. At the request of defense counsel, the trial court did not give a jury instruction. In a private notation to the record, the trial court stated:

“The Court did not poll the jury and did not instruct the jury after the defense requested it not to. The Court felt that it was wiser not to instruct them since the Defendant requested it, because to do so would simply educate them on what had gone on about a previous trial and that it was of some importance. As it is now the jury really doesn’t know whether they were talking about some other trial not connected with Mr. Renfroe or talking about a preliminary hearing.
“So, I felt that it was better not to go into detail about it since the Defendant requested me not to. Or the jury could have thought it was a pure mistrial and no more than that. But for me to have remarked on it would have educated them to the fact that there was a previous trial.”

In Shadle v. State, 280 Ala. 379,194 So.2d 538 (1967), we find:

“. . . the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury’s ability to decide the defendant’s fate fairly and justly. And we will not interfere with the trial judge unless there had been a clear abuse of discretion.

The trial court did not abuse its discretion in overruling the motion for a mistrial.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Harvie D. RENFROE. (Re: Harvie D. Renfroe v. State of Alabama).
    79-481.
    Supreme Court of Alabama.
    May 2, 1980.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


text:
    Willie James CHAMBERS v. STATE.
    6 Div. 202.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied March 18, 1980.

      Albert C. Hultquist, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of William Henry Craig. A jury convicted him of manslaughter in the first degree and fixed punishment at ten years’ imprisonment. The only issue raised on appeal concerns the impropriety of the prosecutor’s remarks in closing argument to the jury.

During closing argument, defense counsel made four objections to the prosecutor’s remarks. Those remarks and the objections made by defense counsel, as well as the action by the trial court, appear in the record as follows.

I AND II

“MR. GOMANY (Deputy District Attorney): Now, what actions did Chambers do? Did he retreat? We say that he went and got' that gun — I don’t know whether he got it in his house or from Mullins or—
“MR. HULTQUIST (Defense Counsel): I am going to object to that, Your Honor. There is absolutely no proof that this defendant went and got a gun. Strongly object to that.
“THE COURT: Sustained.
“MR. GOMANY: (Continuing) Well, you can draw reasonable inferences from the evidence, testimony, that Chambers walked up to these people standing out on the corner and told them what happened and you know he was mad. And, I think Willa Johnson said he left for a while and then she heard the shots. He came back out there looking for prey. “MR. HULTQUIST: I object to that, Your Honor. There is no evidence that he was looking for anybody.
“THE COURT: Sustained.”

III

“MR. GOMANY: The law says you can take a man’s life to protect your own, but Chambers chased him — went after the deceased, the deceased—
“MR. HULTQUIST: Object, Your Honor, there is no proof that the defendant chased anybody and I ask the jury be instructed to disregard that statement. “THE COURT: Ladies and gentlemen, let me caution you this. The statement of these lawyers, either one of them, is not evidence and you are not to consider these statements as evidence. The only evidence that you will consider in this case came from this witness stand, and I will leave it up to your individual recollection as to what that evidence was.”

IV

“MR. GOMANY: He (the defendant) had that gun because his own witness, Willia Johnson, they (defense) called her as a witness, she said in her statement, remember a couple of hours later on when that was fresher in her mind, she said, ‘He opened the door’, referring to Craig, ‘and he sits down, and Jack Chambers pulled out a gun with a brown handle, a little one that fit in his back pocket — you know — pocket—his back pocket — covered it — you know — and he pulled it out’. “MR. HULTQUIST: I object to that, Your Honor, I don’t believe that statement is in evidence.
“THE COURT: Ladies and gentlemen, here again, I will leave it up to your recollection as to what the evidence has been. Go ahead.”

V

The objection to a fifth remark is made for the first time on appeal. That remark by the prosecutor was: “This man (defendant) ran up there and gunned him down.”

The defendant contends that these comments are not based on the evidence and are not reasonable inferences to be drawn therefrom. Additionally, he argues that the cumulative effect of the prosecutor’s remarks is so prejudicial that a reversal of his conviction is required.

The principles by which this case must be decided are set forth in Allred v. State, 291 Ala. 34, 38, 277 So.2d 339, 342 (1973).

“It is a general rule that where prejudicial statements are made in the heat of argument, even though improper, in accommodation of our adversary system, such statements are considered capable of being eradicated by the trial judge in sustaining objections thereto or by appropriate instructions to the jury or both. Dunn v. State, supra, [277 Ala. 39, 166 So.2d 878]. See also Arant v. State, 232 Ala. 275, 167 So. 540. But our cases also recognize that an exception to this rule exists where, irrespective of the best efforts óf the trial judge to disabuse the mind of the jury of any prejudicial impression, the conviction obtained is not in an impartial atmosphere. Blue v. State, supra, [246 Ala. 73,19 So.2d 11]. See also Pointer v. State, 24 Ala.App. 23, 129 So. 787; DuBose v. State, 148 Ala. 560, 42 So. 862.”

As in Allred, 291 Ala. at 37-38, 277 So.2d at 342

“In answering the question before us, we cannot analyze each statement separately to see whether, if standing alone, it would create an ineradicable bias or prejudice; but rather they must be considered together to determine whether or not, in their cumulative effect, they created a prejudicial atmosphere incapable of eradicability. Blue v. State, 246 Ala. 73,19 So.2d 11; Kabase v. State, 244 Ala. 182, 12 So.2d 766.”

The State argues that the prosecutor was merely arguing legitimate inferences from the evidence and that, since the trial court sustained every objection made by defense counsel, nothing is presented for review. On this second point, the Alabama Supreme Court has ruled:

“The ineradicable error rule in this jurisdiction provides an exception to the general rule that improper argument of counsel is not a ground for a new trial or even the subject for review upon appeal unless there has been a timely objection by counsel or a motion to exclude, a ruling thereon by the Court, or a refusal of the Court to make a ruling. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Washington v. State, 259 Ala. 104, 65 So.2d 704 (1953); Anderson v. State, 209 Ala. 36, 95 So. 171 (1922).”
Christian v. State, 351 So.2d 623, 626 (Ala.1977).

Considering the prejudicial quality of the prosecutor’s remarks preserved for review, we do not find that his statements were such that their impact upon the jury was ineradicable.

The facts show that on May 30, 1979, the defendant and Craig engaged in a fight. The defendant left the scene but later returned and shot at Craig five times as Craig was sitting in his automobile. According to the State’s evidence Craig never had a pistol and, inferentially, the defendant brought the pistol he used to kill Craig with him to the scene of the homicide.

The defense presented testimony that Craig had a pistol sometime prior to the killing. When the defendant approached Craig to make up after their fight, Craig pulled the weapon. At that point, the defendant managed to get the pistol away from Craig which accidentally fired. When the defendant “went down under his seat, looked like he was going to get something else” the defendant “fired pistol again and backed off holding the pistol”. Two of the five shots fired struck Craig and caused his death.

Under the testimony presented, there is a basis for finding that the prosecutor’s arguments were inferences from the evidence. See Stewart v. State, 231 Ala. 594, 165 So. 840 (1936), and Langham v. State, 12 Ala.App. 46, 68 So. 504, cert. denied, 192 Ala. 687, 68 So. 1019 (1915), for analogous though not identical situations. “Liberal rules are allowed counsel in drawing inferences from the evidence in their arguments to the jury, whether they are truly drawn or not.” Smith v. State, 344 So.2d 1239, 1242 (Ala.Cr.App.), cert. denied, 344 So.2d 1243 (1977). “Counsel has a right to argue any reasonable inference from the evidence or lack of evidence, Davis v. State, 49 Ala.App. 587, 274 So.2d 360, cert. denied, 290 Ala. 364, 274 So.2d 363 (1972), and to draw conclusions from the evidence based on their own reasoning. Carter v. State, 56 Ala.App. 450, 322 So.2d 741 (1975); Cazalas v. State, 43 Ala.App. 6, 78 So.2d 562, cert. denied, 278 Ala. 708, 178 So.2d 565 (1964).” Roberts v. State, 346 Sb.2d 473, 476 (Ala.Cr. App.), cert. denied, 346 So.2d 478 (Ala.1977).

When prejudicial remarks have been made, the trial judge is in a better position than an appellate court to determine whether the remarks were so prejudicial as to be ineradicable. McAllister v. State, 44 Ala.App. 511, 214 So.2d 862 (1968); Evans v. State, 42 Ala.App. 587, 172 So. 796 (1965). The action of the trial court in regard to argument arousing adverse sentiment is reviewed with all presumptions in favor of such action. Beaird v. State, 219 Ala. 46, 121. So. 38 (1929). There is a prime facie presumption against error where the trial court immediately charges the jury to disregard the prosecutor’s improper remarks. Nix v. State, 370 So.2d 1115 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979).

Here the trial judge sustained all four objections made by defense counsel and, of his own initiative, instructed the jury. Vigorous objections, repeated requests to strike and motions for mistrials often accompany arguments that are considered highly prejudicial. Here we note what objections were made and that there was no motion for a new trial.

While the inferences drawn by the prosecutor may have been weak, the action taken by the trial judge in sustaining objection and instructing the jury was sufficient. We further note that the jury returned a verdict of manslaughter in the first degree obviously giving the prosecutor’s comments their true worth and considering them in the context in which they were made. McQueen v. State, 355 So.2d 407, 411 (Ala. Cr.App.1978).

We would be negligent in our duty if we did not issue a stern caution to all prosecutors to avoid persistently pursuing a line of argument or interrogation “which the court rules to be wrong, and which one reasonably well acquainted with the rules governing the admission of evidence (or argument) must know to be improper”. Where the prosecutor continues to argue improperly “the conclusion is irresistible that it is done for the purpose of influencing and prejudicing the minds of the jury in arriving at a verdict”. Pointer v. State, 24 Ala.App. 23, 27, 129 So. 787 (1930). We need not indicate what our decision would be had not the wise trial judge taken his independent action in instructing the jury.

A thorough consideration of the evidence convinces this Court that the poison of improper argument did not infect the verdict of the jury. We have searched the record as required by law and affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


text:
    Ex parte Willie James CHAMBERS, alias Jackson Chambers. (Re: Willie James Chambers v. State of Alabama).
    79-480.
    Supreme Court of Alabama.
    May 2, 1980.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.