author: TORBERT, Chief Justice.

text:
    Ex Parte Essel McDonald GLENN. (Re: Essel McDonald Glenn, alias v. State of Alabama).
    80-110.
    Supreme Court of Alabama.
    March 24, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

MADDOX, JONES, SHORES, and BEATTY, JJ., concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Billy Wayne CARPENTER v. STATE.
    6 Div. 293.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
    Rehearing Denied Jan. 20, 1981.

      Michael W. McCormick, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sandra M. Solowiej, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of murder in the second degree and fixed his punishment at imprisonment for twenty-five years. He was sentenced accordingly. The indictment alleged:

“The Grand Jury of said County charge that before the finding of this indictment, Billy Wayne Carpenter, whose name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforethought, killed Oscar Carden by shooting him with a pistol against the peace and dignity of the State of Alabama.”

One of the five contentions for a reversal is stated in appellant’s brief as follows:

“The court committed reversible error by allowing the State to introduce into evidence the Appellant’s inculpatory statement made to law enforcement officers without the advice of counsel.”

The same contention was determined adversely to appellant in Carpenter v. State, Ala., 378 So.2d 730-731 (1979), wherein the issue was between the same parties as the parties in the instant case. The Supreme Court held in that case:

“The defendant also claims the trial court erroneously admitted the testimony of a law enforcement officer concerning a statement made by the defendant while in the custody of the family court. The record indicates a court-appointed Legal Aid attorney was present during the interview for the purpose of representing the defendant. The attorney asked the defendant if he objected to making a statement; the defendant replied that he did not, and a statement was then made. “Code 1976, § 12-15-67, and Rule 21, A.R.J.P., provides that statements made by a child to law enforcement authorities are inadmissible unless the child is advised by counsel. We affirmed a finding by the trial court that defendant was adequately advised by counsel, and that the statements were, therefore, admissible.”

Notwithstanding some details in the evidence on the point on the trial of the case that perhaps are not found in the evidence on the hearing in Carpenter, supra, for the purpose of determining whether the case should be transferred from family court to the circuit court, the question was essentially the same then as it is now, and we reach the same conclusion, that the trial court was not in error in admitting the statement.

Another contention of appellant is that the indictment was void in that at the time of the indictment the defendant was “under the original jurisdiction of the Family Court.” As shown by Carpenter, supra, appellant was seventeen years old at the time of the commission of the alleged crime, a petition was filed in family court alleging his delinquency and that he had unlawfully and with malice aforethought killed Oscar Carden by shooting him with a pistol; an attorney for the State filed a motion to transfer him to “the Circuit Court for trial as an adult.” The family court granted the motion after a hearing; Carpenter appealed to the circuit court for a de novo review. After such de novo review the circuit court ordered transfer of the cause to the “Criminal Division of the Circuit Court for the Tenth Judicial Circuit of Alabama as provided by Section 12-15-34, Code of Alabama 1975.” Such order was entered on May 21, 1979. The indictment had been returned on March 9, 1979, and a copy served on the defendant. On March 23, 1979, he was arraigned and made application for treatment as a youthful defendant, which was denied. Appellant cites some sections of Chapter 15, (Juvenile Proceedings) of the Code of 1975, but therein we find nothing to support appellant’s position that “at the time of Appellant’s indictment in March of 1979 he was still under the original jurisdiction of the Family Court.” Without attempting to decide at this time the status of any indictment against a juvenile for a felony that is returned at a time in which a proceeding in a juvenile court is pending against him for alleged delinquency based on particular conduct involved in the indictment, this appellant’s status at the time of the return of the indictment against him was not that of a juvenile against whom proceedings were pending in a juvenile court. On the contrary, previous proceedings against him in the family court were no longer in existence, for the case had been transferred to the circuit court about two weeks before the indictment was returned. At the time of the indictment, there had been no appeal from the judgment or order transferring the cause, but even if there had been an appeal, it would not have stayed “the order, judgment or decree appealed from.” Code of Alabama 1975, § 12-15-120(d). Defendant’s motion to quash the indictment, by which he challenged the validity of the indictment for reasons we have discussed above, was properly overruled.

Defendant challenged the indictment by a demurrer also. One ground thereof states: “That the facts as alleged are vague, indefinite, overbroad and the Defendant is not apprised of that which he is called upon to defend.” The parties are in accord that the indictment charges murder in the first degree and that it is in Code form for such an indictment. Code of Alabama, § 15-8-150(72). There is accord between the parties also to the effect that the evidence in the case shows that the appellant herein did not actually shoot a gun and thereby kill the alleged victim, as alleged in the indictment, but the prosecution proceeded on the theory amply supported by the evidence that the victim was killed in the manner alleged in the complaint by Stanley Lee James while he was engaged in a robbery and that appellant herein, with two others, was an accomplice in the robbery. Code of Alabama 1975, § 13-1-70, provides in pertinent part:

“Every homicide perpetrated by poison, lying in wait or any other kind of willful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery or burglary ... is murder in the first degree .... ”

The issue between the parties is whether, under the circumstances of this case, defendant was denied the right “to be informed of the nature and cause of the accusation” against him as provided by the Sixth Amendment to the Constitution of the United States, or “to demand the nature and cause of the accusation,” as provided by Art. I, Sec. 6, of the Constitution of Alabama of 1901. For a better understanding of the problem presented by the issue now under consideration, a summary of the evidence would be of some benefit. Except as to a few details, there was no material dispute.

Prior to the trial in the instant case, two trials had been conducted as to the same homicide, one in which Stanley Lee James was charged under Code of Alabama, § 13-ll-2(a)(2), with intentionally killing Carden during the course of a robbery or attempt to rob him. In accordance with a plea bargaining arrangement, a jury found James guilty and fixed his punishment at death, but thereafter, pursuant to §§ 13-11-3 and 13-11-4, the court sentenced him to imprisonment for life without parole. See James v. State, Ala.Cr.App., 380 So.2d 995, cert. denied, Ala., 380 So.2d 999 (1980).

In another of the other two cases, James Earl Carpenter, an older brother of the appellant herein, was found guilty of murder in the first degree and his punishment was fixed at imprisonment for life. In the opinion in that case Carpenter v. State, Ala.Cr.App. (Ms. 6 Div. 154, June 30, 1980), Judge Tyson narrates the evidence, which was substantially the same as the evidence in the instant case, with the exception that neither of the two brothers testified in the other’s case, but each testified in his own case to the effect that he voluntarily accompanied Stanley Lee James to the Mountain Brook Swim and Tennis Club on the night of December 21-22, 1978, at the suggestion and request of Stanley Lee James, who informed them and Chauncey Simmons of his plan to go to the Club and “tie the guard up and lock him in a room” and then take liquor and money from the Club. According to the undisputed evidence, the mission was accomplished. Appellant herein drove the other three to and from the Club. However, his testimony was to the effect, and there was little, if any, substantial evidence to the contrary, that the actual shooting of the guard (the named victim) was committed by James while neither of the Carpenter brothers nor Chauncey Simmons was with the victim or with James.

The contention of appellant that he was denied his right to be informed of the nature and cause of the accusation against him has been rejected time and again, particularly in the recent case of Garrett v. State, Ala., 369 So.2d 833, 837, in which Justice Embry states:

“The trial court in its charge to the jury included instructions concerning the felony-murder doctrine. Garrett contends this was error because the indictment did not refer to the doctrine. Yet it did charge a violation of § 13-1-70.... Garrett cannot successfully maintain he had no notice that he was charged with felony-murder because it is included in the statutory definition of murder in the first degree.
“Although it would have been preferable for the indictment to have been more specific, the fact that it wasn’t does not create a fatal variance. Harvey v. State, 341 So.2d 187 (Ala.Cr.App.1977); State v. Smith, 223 N.C. 457, 27 S.E.2d 114 (1943).”

In accordance with Garrett and other authorities, we must conclude that defendant’s demurrer to the indictment was properly overruled and that there was no variance between the indictment and the proof. Moreover, we should say that in this particular case, whatever possibility there might be in some cases for injury to a defendant by reason of the omission in an indictment for murder in the first degree of language that would call his attention to his susceptibility to a conviction under the felony-murder doctrine, to assume that such an injury was caused to this appellant, when his brother had been previously convicted under the same form of an indictment and in accordance with the same felony-murder doctrine, would be in ignoration of the obvious reality of the contrary. He was not surprised; he was to no extent misled; by the demurrer itself it is manifest that he had been fully informed, extrinsically if not intrinsically, of the nature and cause of the accusation against him.

Appellant’s final insistence on reversible error is based upon the court’s refusal of some written charges requested by defendant. Appellant states in his brief:

“The Appellant at the conclusion of the trial requested charges on conspiracy which the Court refused to give the jury. (R. 522-25). All the charges cited correct statements of the law which was not included in the Court’s charges, in that the accomplice is criminally responsible for acts which are the direct, proximate, natural result of the conspiracy formed and he is not responsible for any specific act not within the scope of the common purpose, but grows out of individual malice of the perpetrator. Clements v. State, Ala., 370 So.2d 723 (1979).
“If a person acts independently of the common purpose and kills the deceased for malice and motives of his own, then the accomplice is not criminally responsible. Singley v. State, 256 Ala. 56, 53 So.2d 729 (1951); Williams v. State, 81 Ala. 1, 1 So. 179 (1913).”

Appellant does not deem it necessary to set forth in his brief the language of the several charges to which his argument is addressed, and we see no necessity for doing so, as we are convinced that appellant is incorrect in his contention that charges asserting the principles stated by him as quoted above should have been given to the jury in the instant case. As previously shown, the defendant herein is prosecuted as an accomplice in the murder in the first degree in the second class of such murder, which is provided by the language, “Every homicide ... committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery or burglary,” of Code of Alabama 1975, § 13-1-70. In none of the three cases cited by appellant was there such a prosecution for murder under the quoted provision of said § 13-1-70. In Clements v. State, Ala., 370 So.2d 723 (1979), the prosecution was under the Death Penalty and Life Imprisonment Without Parole Law (Code of Alabama 1975, § 13-11-1, et seq.), which by § 13-11-2(b) provides, “Evidence of intent under this section shall not be supplied by the felony-murder doctrine.”

In Singley v. State, 256 Ala. 56, 58, 53 So.2d 729 (1951) it is stated:

“The evidence for the State tends to show it was this defendant, Pete Singley, who delivered the hard blows to the head of deceased. Moreover, the evidence for the State tends to show that there was pre-concert or community of purpose between defendant and Clinton Stokley. If this evidence was believed by the jury beyond a reasonable doubt, then the defendant Singley was responsible for the acts of Clinton Stokley, although they intended only a battery upon deceased, and a verdict of guilty would be warranted against defendant unless Stokley acted independently of the common purpose and struck deceased for malice and motives of his own and was not at the time previously incited thereto by defendant. Stokley v. State, supra. [254 Ala. 534, 49 So.2d 284], and cases cited.”

One of appellant’s written charges that the court refused is as follows:

“The Court charges that in the case of conspiracy Billy Carpenter is responsible for only those acts which are the probable and natural consequences of the conspiracy formed. He is not responsible for any special act not within the scope of the common purpose, but grows out of the individual malice of the perpetrator.”

Insofar as appellant’s criminal responsibility for the homicide here involved is affected by reason solely oí the law pertaining to the criminal responsibility generally of a cocon-spirator in the commission of a felony, there is considerable merit in the substance of the principle set forth in the quoted charge. Nevertheless, the charge totally ignores the felony-murder doctrine applicable at common law to homicides occurring in the process of committing or attempting to commit some felonies and applicable under Code 1975, § 13-1-70, to homicides occurring in committing or attempting to commit “any arson, rape, robbery or burglary.” In the latter type of cases, the charge is at least misleading. It directs attention to one felony or attempted felony only, in the instant case the robbery or attempted robbery. It diverts attention from the homicide and thereby, in effect, vitiates the felony-murder doctrine.

The felony-murder doctrine is not a creature, except in an amplified form, of Code 13-1-70, or any of its predecessors. It is a firmly established principle of common law.

“If the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force and violence, which may result in the taking of a life unlawfully, every party to such agreement will be held criminally liable for whatever any of its coeonspirators may do in furtherance of the common design. Accordingly, one person may be held liable for the homicidal act of another where such act results from their combined efforts to commit robbery, burglary, jail delivery, breaking in and stealing, or assault merely. Again, where persons combine to stand by one another in a breach of the peace, with a general resolution of resistance to the death of oppo-sers, and in the execution of their design, homicide is committed, all of the company are equally principals in the crime.” 40 Am.Jur.2d, Homicide, § 44.

Code 13-1 — 70 demarcates two degrees of murder; the common law “knows no degrees of the crime.” 40 Am.Jur.2d, Homicide, § 44. The law of Alabama retains the felony-murder doctrine of the common law and applies it to murder in the first degree if the other felony or attempted felony is arson, rape, robbery or burglary. The doctrine is sufficient to have justified a conviction of appellant for murder in the first degree. He has no legal right to complain of the finding of the jury that he was guilty of murder in the second degree.

The charges that the court refused that appellant now asserts that the court should have given are subject to the same criticism as the refused charge quoted above. The trial court was not in error in refusing any of them.

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

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

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex Parte Billy Wayne CARPENTER. (Re: Billy Wayne Carpenter v. State of Alabama).
    80-288.
    Supreme Court of Alabama.
    March 24, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Bill HINOTE v. STATE.
    1 Div. 131.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.
    Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Baldwin County returned an indictment for cattle theft against the appellant, Bill Hiñóte; he entered a plea of not guilty, was found guilty as charged, and duly sentenced to 6 years imprisonment.

The appellant was at all proceedings in the trial court represented by counsel of his choice, and is so represented in this Court. This appeal was submitted to this Court on briefs.

The appellant states in his brief that the trial court erred to his prejudice by improperly overruling his motions to exclude state’s evidence, and for a new trial because: 1st. The state failed to prove the ownership of the calves as laid in the indictment. 2nd. Failed to prove that the aspor-tation of the calves was without the owner’s consent. 3rd. Failed to prove the calves appellant had possession of were the same calves he was indicted for feloniously taking.

State’s evidence tended to prove that state’s witness, Laurence Lipscomb, was manager of Robertsdale Livestock Auction, a bonded livestock auction business situated in Baldwin County, Alabama, engaged in the business of selling cattle; that when a customer brought cattle and put them in the auction, the cattle became the responsibility of the auction until they were sold, and the owner paid; that on the night of July 17, 1979 ten head of feeder cattle out of a consignment of thirty were stolen from a pen in the auction barn; that the auction had a good description of the missing cattle because they had been individually tagged on both sides with tags glued on, weighed, and run through the auction on Monday, July 16, 1979; that four of the ten head of cattle that had been stolen from the Rob-ertsdale Auction barn were returned to the Robertsdale Auction barn from Montgomery and Andalusia, Alabama, and were identified by Mr. Lipscomb as being four of the ten head of the cattle that had been stolen from the Robertsdale Auction barn on the night of July 17, 1979; that when the four head of cattle were returned to the Robertsdale Auction barn on July 18, 1979, they had identifying tags of Frisco City Stockyard glued to each of the four, and spots of glue at the place where Roberts-dale Auction placed tags on the cattle that were sold through its auction.

State’s evidence further tended to prove that Sherman Hinote was engaged in the business of buying and selling cattle; that on Wednesday, the 18th day of July, 1979, he attended the cattle auction held in Frisco City, at which place he saw the appellant, Bill Hinote, buy two head of cattle; that he, Sherman Hinote, bought cattle at Frisco City most every Wednesday.

State’s evidence further tended to prove that Norman Ray Harvill was and had been a friend of the appellant for the past ten or twelve years. That on or about July 19, 1979 he went with the appellant from Bay Minette to the Frisco City cattle auction where the appellant sold some cows, and bought some cows; that the appellant bought a little calf for Harvill to give his son; that the appellant drove appellant’s pickup truck, with a red cattle trailer hitched to it that had five head of cattle in it, from Bay Minette to Frisco City Cattle Auction where the appellant sold the cattle, and received a check for $1,300.00 from Frisco City Auction.

State’s evidence further tended to prove that Benny Schumack was employed with the Farmers Co-op Livestock Auction in Frisco City in July, 1979, and remembers the occasion when the appellant ran some cattle through the auction, bought some cattle, and was paid the difference in the amount of the cattle sold and the cattle bought; that some of the cattle that the appellant sold in the Frisco City auction went to a buyer that goes by the name of Prairie Land in Montgomery, Alabama, and that some of the others to a buyer known as Stokes and Brogden in Andalusia, Alabama; that the cattle the appellant sold through the Frisco City Auction, and went to Montgomery and Andalusia, could be specifically identified by the numbers on the tags that were put on the cattle by the Frisco City Auction; that Frisco City Auction was not paid for four head of the cattle that the appellant brought in and were sold, and that two went to Montgomery and two went to Andalusia.

State’s evidence further tended to prove that Randall Jones worked for Robertsdale Livestock Auction during the middle of July, 1979 when the cattle came up missing from the Robertsdale Auction barn; that the time they were missing was the time between the Robertsdale sale and the Frisco City sale; that he attended the Frisco City sale that week, and he saw the appellant there; that Jones went to Montgomery where he saw two head of cattle that had Frisco City tag markers with numbers on them, and had glue on both sides at the place where Robertsdale Cattle Auction places its tags on sale cattle; that he brought the two head of cattle from Montgomery back to Robertsdale at which time they both had Frisco City identifying tags glued on them; that all Frisco City auction tags have 64FA followed by numbers on them, and all Robertsdale auction tags have 64RC followed by numbers on them; that Robertsdale Livestock Auction is situated in Baldwin County, Alabama. State rested.

Appellant moved the court to exclude all of the state’s evidence which motion was overruled. The appellant offered no evidence in his behalf, and filed a motion for a new trial which was overruled.

The first matter complained of by appellant in his brief is that the state failed to prove the ownership of the cattle as laid in the indictment. The indictment charged that the animals taken were the personal property of Laurence Lipscomb. The evidence was sufficient for the jury to find that Laurence Lipscomb was the manager of Robertsdale Livestock Auction; that the stolen cattle were taken from a pen of thirty head of feeder cattle in the barn of Robertsdale Livestock Auction, and were in the possession of Lipscomb as such manager at the time they were taken.

Larceny is an offense against the possession of personal property. We hold that the trial court did not err to the prejudice of the appellant when it overruled his motion to exclude state’s evidence, and motion for a new trial. Williams v. State, Ala.Cr.App., 387 So.2d 258; certiorari denied, Ala., 387 So.2d 261; Hubbard v. State, Ala.Cr.App., 374 So.2d 427; Bell v. State, Ala.Cr.App., 364 So.2d 420; certiorari denied, Ala., 364 So.2d 424.

Appellant’s second contention in his brief is that the state failed to prove that the cattle were taken without the consent of their owner. The nonconsent to the taking of property of another may be established by circumstantial evidence as in the case of proof of any other issue of fact. After an examination of the record in this case, we are of the opinion that considering all the facts and circumstances, the trial court correctly submitted the question to the jury, and did not err when it overruled appellant’s motion to exclude state’s evidence, and motion for a new trial. Coates v. State, 36 Ala.App. 371, 56 So.2d 383; Johnson v. State, 41 Ala.App. 351, 132 So.2d 485; Davis v. State, 44 Ala.App. 284, 207 So.2d 649; Higginbotham v. State, 54 Ala. App. 633, 312 So.2d 31; certiorari denied, 294 Ala. 759, 312 So.2d 45.

The third matter complained of in appellant’s brief is that the state failed to prove that the calves appellant had possession of were the same calves he was indicted for taking. State’s witness, Lipscomb, testified that when four of the ten head of feeder cattle that had been stolen from the Rob-ertsdale Auction barn were returned to Robertsdale Auction barn on July 18, 1979, they had Frisco City Auction identifying tags glued on them, and spots of glue where Robertsdale Auction placed Robertsdale Auction tags on cattle that went through its sale, and identified them as four of the ten stolen from Robertsdale barn on the night of July 17, 1979. Schumack who worked for Frisco City Auction testified that the appellant ran the cattle through its sale, and was paid for them by Frisco City Auction. The appellant offered no evidence as to how he came into possession of the stolen cattle.

When there is evidence from which the jury can by fair inference find the defendant guilty, this Court should not disturb the verdict. In this case there was sufficient evidence for the trial court to submit to the jury, and to sustain its verdict of guilty as charged.

We hold that the trial court did not err to the prejudice of the appellant when it overruled his motion to exclude state’s evidence, and for a new trial. Clark v. City of Mobile, Ala.Cr.App., 357 So.2d 675; Allen v. State, Ala.Cr.App., 382 So.2d 11; certiorari denied, Ala., 382 So.2d 25.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex Parte Bill HINOTE. (Re Bill Hinote v. State of Alabama).
    80-286.
    Supreme Court of Alabama.
    March 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge.

text:
    Ricky A. DAY v. STATE.
    1 Div. 149.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.
    Floyd C. Enfinger, Jr. of Lacey, Enfinger & Newell, Fairhope, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Grand larceny; sentence: ten years’ imprisonment.

A Baldwin County Grand Jury indicted the appellant for grand larceny of an air-conditioner on July 7, 1977. On December 6, 1978, a hearing was held before Judge Wilson Hayes concerning motions for continuance in several cases involving the appellant at which time appellant’s counsel stated:

“Mr. HAAS: The Defendant, in open Court, moves the Court for an opportunity to file some motions supported by affidavit in the event the case has to be tried waiving Jury trial.
“THE COURT: All right. What says the State?
“MR. NORTON [Assistant District Attorney]: Judge, we don’t have any objection .... ” (Emphasis added.)

On December 27, 1979, counsel for appellant filed a motion to reinstate his demand for a jury trial. On February 20, 1980, there was a hearing on this motion before Circuit Judge Harry Wilters. At this hearing Judge Hayes testified concerning the prior waiver of a jury trial:

“I asked him, specifically, and told him he had a right not to waive his right to a jury trial. I told him that he had a right to a jury trial. And they said they wanted to have a nonjury trial.
“But before we went to trial, as I remember, Mr. Hayes [sic] sought not to go to trial, but to have the case passed over. And he announced, himself, that he was withdrawing the jury trial. He was asking for a nonjury trial. I then informed Mr. Day of the matter. I know he heard it. I affirmatively informed Ricky Day about the right to a jury trial, his right. And he said he wanted a nonjury trial or that he waived his right to a jury trial. I hesitate to say the precise wording. Mr. Norton was present. And I am satisfied that Mr. Tom Hayes [sic] was present.”

Judge Wilters denied appellant’s motion to reinstate a jury demand based on appellant’s previous waiver of his right to a jury trial. On April 15, 1980, appellant was arraigned at trial and entered a plea of not guilty. Again, appellant renewed his jury trial demand, but the judge once more denied the motion.

Appellant contends that the trial judge erred in denying his affirmative requests for a trial by jury. Alabama law is clear that a defendant charged with a non-capital felony may waive a jury trial with the consent of the State and the trial court provided the waiver is made knowingly, voluntarily, and intelligently in light of all the surrounding circumstances. Singleton v. State, 288 Ala. 519, 262 So.2d 768 (1971), reversing 48 Ala.App. 753, 262 So.2d 767 (1970), on remand, 48 Ala.App. 157, 262 So.2d 772, cert. denied, 288 Ala. 751, 262 So.2d 776 (1971); Junior v. State, Ala.Cr. App., 375 So.2d 556 (1979).

Appellant had the assistance of counsel at the 1978 hearing. Moreover, Judge Hayes could not have been any more explicit in his testimony that appellant was advised of his right to a jury trial. Therefore, it appears that the appellant effectively waived his right to a jury trial and, thus, the trial court did not err in denying the motions to reinstate the jury trial demand.

AFFIRMED.

All the Judges concur.


text:
    Ex Parte Ricky Allen DAY. (Re: Ricky A. Day v. State of Alabama).
    80-281.
    Supreme Court of Alabama.
    March 24, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Nathan BROWN v. STATE.
    2 Div. 286.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.
    J. L. Chestnut, Jr. of Chestnut, Sanders & Sanders, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Possession of marijuana; sentence: three years’ imprisonment and a fine of $15,000.

Among other issues raised on appeal, appellant contends he was denied effective assistance of counsel when the trial court refused to grant a continuance to give his court appointed counsel time to prepare for trial and to obtain a defense witness.

The record reveals that the appellant was arrested on the instant charge on October 25, 1979, and was released on bail. He was later indicted on January 16, 1980. At arraignment on April 7, 1980, the appellant pled not guilty and trial was set for April 15. On trial date the appellant appeared in court without an attorney and stated that he wanted to plead guilty. He told the trial judge that he did not possess marijuana, but would plead guilty. However, the trial judge refused to accept a guilty plea under those circumstances. After the trial judge explained the rights which the appellant would waive if he entered a guilty plea, the appellant then opted for a jury trial.

A short colloquy between the court and the appellant revealed that on April 7 the appellant informed the court that he did not want appointed counsel but would retain counsel himself. However, on April 15 the appellant appeared for trial without counsel and claimed that he could not afford to hire an attorney as he had originally desired. He had talked to one attorney, but could not afford his fee; therefore, he appeared in court without an attorney. During the interval between arraignment and trial, the appellant did not inform the trial court that he needed counsel and that he could not afford counsel of his own choosing.

After refusing to accept the appellant’s guilty plea, the court appointed William H. Traeger, III, of Demopolis, as counsel for the appellant. The trial court immediately began the process of selecting a jury wherein counsel for the appellant was given an opportunity to review the jury panel and to have each prospective juror stand and give his name and occupation. Counsel was likewise afforded an opportunity to present questions to the venire. Immediately after the jury was selected and outside their presence, the following occurred:

“MR. TRAEGER: I want to move for a continuance. I have just been appointed and I don’t know very much about the case other than what I’ve been able to find out from my client and from what the District Attorney has told me. We are simply not prepared to go to trial. I have been advised by my client that there is a witness to this case, a Phillip Wright, who is not present in court to my knowledge, and I don’t believe has been subpoenaed. And, under the circumstances we would have to move for a continuance. I don’t feel like we would be getting ample and fair representation under the circumstances.
“THE COURT: Motion denied and the reason being that this case was set quite some time ago and the defendant was told when to be in court and he informed the Court that he had enough money to hire a lawyer and he showed up today without a lawyer. And, I have appointed Mr. Traeger today on the trial of this case, and I find that the reason he is not prepared is the own fault of the defendant even though he had adequate and long term notice.”

After the appellant was convicted, his trial counsel filed a motion for a new trial alleging, among other grounds, that the trial court’s denial of a continuance deprived him of adequate time to prepare for the trial of the case. The pertinent portion of that motion stated:

“The Defendant was only appointed an attorney 30 minutes prior to the trial of this case and said Court appointed attorney had no opportunity to prepare this case for trial. Said attorney had no opportunity to file any motions whatsoever nor did he have time for any pre-trial discovery. There was no opportunity to subpoena witnesses and there was not ample opportunity for negotiations with the State in this case. Furthermore, the Defendant’s Court appointed attorney had no time to research the law applicable to this case and no time to prepare jury instructions. Also, the Defendant was only able to spend approximately 10 minutes with his Court appointed attorney prior to the trial of this case, and said Court appointed attorney had no time to investigate this case and to discover the existence of any witnesses that might appear on the behalf of his client. In light of the above, the trial Court’s denial of a motion for a continuance by the Defendant was very prejudicial to the Defendant’s case and resulted in the Defendant being denied a fair trial.”

Generally, the granting or denying of a motion for continuance on the ground that counsel had insufficient time to prepare for trial rests within the sound discretion of the trial judge, and his discretion will not be reviewed except in cases of gross abuse of discretion. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968).

The appellant’s trial counsel testified during the hearing on his motion for a new trial as follows:

“I was appointed on April 15, 1980, to represent Nathan Brown here in Marengo County. I don’t remember exactly what time of the day it was that I was appointed. It was sometime that morning. The — my best recollection is that the trial commenced somewhere around 10:00 or 10:30 and I had been appointed for thirty minutes to an hour. I’m not sure exactly how long. I spent approximately fifteen minutes with Mr. Brown during that time. The rest of the time was spent viewing the jury and striking the jury, or viewing the venire, really, and striking the jury. And I attempted to find out what I could about the case. I was advised by Mr. Brown that he had a witness that was not present in court and I believe I made an offer of proof on this. Judge Neilson did appoint me, as I said, to represent Mr. Brown that morning of the 15th and that was the first time I’d ever seen him; I didn’t know anything about him or his case; and I was unaware of any facts dealing with his case until the case began, really.”

The trial court denied the motion for new trial on the basis that the appellant had a week’s notice of the trial date and had opportunity to retain counsel or notify the court of his inability to do so, and that on trial date adequate counsel was appointed for the appellant and with from “thirty minutes to an hour” for preparation “did an outstanding job in representing the defendant.” The trial court also observed that the evidence against the appellant was “overwhelming.”

The Supreme Court of Alabama in Davis v. State, 292 Ala. 210, 291 So.2d 346 (1974), rejected the trial court’s reasoning that inadequate preparation time was overcome by “overwhelming evidence of the defendant’s guilt” and the “competent manner” in which appointed counsel had conducted the trial where the trial court’s initial ruling had deprived the accused of a fundamental constitutional right.

As stated in Mars v. State, Ala.Cr.App., 339 So.2d 104, cert. denied, Ala., 339 So.2d 110 (1976):

“We are not unmindful of the needs of the trial courts to expedite their dockets and proceed in an orderly manner, unabated by unnecessary continuances.”

We likewise are not unmindful of the actions of the appellant in appearing on trial date without an attorney. An educated and intelligent defendant would have notified the court of his inability to retain counsel and would have requested appointed counsel prior to trial date in all likelihood. However, all citizens, much less criminal defendants, are not schooled in law or courtroom procedures. The record in the instant case reveals that when the appellant was unable to retain counsel he appeared in court without one, resigned to the consequences of pleading guilty even though he contended. that he did not commit the crime. The trial court rightly refused to accept the guilty plea under such circumstances and rightly reprimanded the appellant for not notifying the court prior to trial date that he could not obtain an attorney. Nevertheless, the trial judge appointed counsel and put the appellant to trial, over objection, with only a few minutes’ time for preparation. It is this latter conduct of the trial court that we are called upon to assess.

In Kearley v. State, 52 Ala.App. 405, 293 So.2d 322 (1974), this court reversed the Circuit Court of Randolph County for putting a defendant to trial after appointment of counsel on the same day. In that case this court stated:

“It appears that the trial court gave the defendant a speedy trial. In fact, too speedy to satisfy the constitutional rights of the defendant to the assistance of counsel.
“We think that such a hurried trial after appointment of counsel (on the same day) converted the appointment of counsel into a sham, and was nothing more than a formal compliance with the constitutional requirement that the indigent defendant be given the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. This guarantee of assistance of counsel as mandated by Wainwright and the constitution cannot be satisfied by a mere formal appointment. The appointment of counsel on the same date of the trial did not give them reasonable time to plan and prepare the defense of their client and to see if they could obtain the defendant’s witnesses in person or their evidence as provided by law. Powell v. Alabama, 287 U.S. 45(4)(5), 53 S.Ct. 55, 77 L.Ed. 158.”

In Browning v. State, 57 Ala.App. 217, 326 So.2d 778, cert. denied, 295 Ala. 392, 326 So.2d 783 (1975-76), we held that where counsel was appointed on the day of trial and only had fifteen minutes for preparation the defendant was denied effective assistance of counsel by the trial court’s refusal to grant a continuance. See also Mars v. State, supra.

Pursuant to the above cited authorities, it appears that the failure to grant a continuance in order to allow trial counsel adequate time for preparation of his case amounts to an abuse of discretion on the part of the trial court in this instance and an unconstitutional deprivation of effective assistance of counsel for which the appellant should be entitled to a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex Parte STATE of Alabama, Ex Rel. Attorney General. (Re: Nathan BROWN v. STATE of Alabama).
    80-295.
    Supreme Court of Alabama.
    March 24, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Larry MITCHELL v. STATE.
    3 Div. 166.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Prank L. Thiemonge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

In the three count indictment the defendant was charged with the unlawful possession of marijuana, phencyclidine, and phen-termine. A jury found him guilty of all three counts. Sentence was twelve years’ imprisonment.

The facts of this case are virtually without dispute. The only issue on appeal is the sufficiency of the evidence to support the conviction. On February 12, 1979, Montgomery police officers executed a search warrant at 642 Morgan Avenue. When the officers executed the warrant they were looking for the defendant who was the only individual named in the warrant. The warrant and the information it contained were not introduced into evidence.

When the search was conducted there were three adults and two young children in the home. The children belonged to the defendant. The three adults were identified as Leon Curry, Tommy Lee Washington, and Jerry Mitchell. The defendant was not present when the search warrant was executed. The relationship, if any, between these adults and the defendant was never established.

A house lease in the defendant’s name was found under the mattress of the bed in the downstairs bedroom. A Storer Cable T.V. bill or contract was found on the fireplace mantel in this same bedroom. The lease and the T.V. contract were in the name of the defendant. Additionally, “there were miscellaneous papers and things under the mattress”, although these “papers and things" were not specifically identified.

Controlled substances were found in both the upstairs and downstairs bedrooms and in the dining room. There was no evidence that any drug was found under the mattress with the “papers and things”. A set of scales, which was eventually excluded from evidence, was found on the dining room table. The evidence indicates that these drugs were not concealed but were in plain view.

The District Account Manager for Alabama Power Company testified that the “electric service account” for the address of 642 Morgan was in the name of Larry Mitchell.

The defendant presented no evidence in his behalf. There was no evidence that the defendant did not reside at the residence where the drugs were found.

Because there was no direct testimony that the defendant actually lived at 642 Morgan or had ever been there, the defendant contends that the evidence is insufficient to support the verdict. We do not agree.

In Temple v. State, 366 So.2d 740 (Ala.Cr. App.1979), this Court held that where illegal drugs are found on the premises of an accused during his absence, and other persons occupy the premises, then the circumstance of the drugs being found on the premises is not sufficient, without more evidence, to establish knowledge of the presence of the drugs to the degree required to support a conviction for illegal possession.

Since the possession of illegal drugs is susceptible of joint commission, the guilt of the accused does not necessarily depend upon proof of his ownership of the drugs. McCord v. State, 373 So.2d 1242 (Ala.Cr.App.1979). Actual physical personal possession of contraband is not required and possession may be constructive as well as actual. Hancock v. State, 368 So.2d 581 (Ala.Cr.App.), cert. denied, Ex parte Hancock, 368 So.2d 587 (Ala.1979). However, where constructive possession of contraband is relied upon, it is necessary to show guilty knowledge. This knowledge may be shown by circumstantial evidence. Blaine v. State, 366 So.2d 353 (Ala.Cr.App.1978); Henderson v. State, 347 So.2d 540 (Ala.Cr.App. 1977).

In this case there is no argument with the proposition that where drugs are found on premises under the control of the defendant an inference may arise that the defendant had knowledge and possession of them. 28 C.J.S. Drugs and Narcotics Supplement, Section 210 (1974). The particular difficulty in this case is whether there was sufficient evidence of the defendant’s control of the premises to authorize an inference of his knowledge and constructive possession of the drugs found on those premises. The defendant argues that the evidence of control was insufficient because there was no evidence that the defendant was ever physically present in the house.

A review of the evidence convinces us that this was a question for the jury under the facts of this case. The jury could reasonably infer that the defendant lived or resided at the house where the drugs were found from the concurrence of three facts: (1) The lease was in the defendant’s name as was a cable T.V. contract; (2) the electric bill was in the defendant’s name; and (3) the presence of the defendant’s two children at the house. This inference is especially compelling when considered in conjunction with the fact that there was no evidence that the defendant did not reside in this house.

Keys, leases, rent receipts and account cards found in an apartment may be sufficient, in conjunction with other evidence, to support an inference that the accused constructively possessed the drugs found in that apartment. United States v. Thompson, 495 F.2d 165 (D.C.Cir.1974).

Once it is established that the defendant resided in the house, his connection with the drugs is supplied by the quantity and location of the drugs throughout the house. Phencyclidine residue was found on a mirror on top of the dresser in the downstairs bedroom. There were two baby food jars containing marijuana found on the dresser in the downstairs bedroom. Pound in the corner of this bedroom was a brown paper bag containing five plastic bags of marijuana and one plastic bag containing “roaches” and residue.

In the dining room ten phentermine capsules were found on a chest by the dining room table; on the table were “brown envelopes already packaged, had nickel and dime envelopes containing marijuana and a set of scales.”

In the upstairs bedroom a “pile of roaches” was found on a table. Marijuana and paraphernalia were also found there.

In this case, the drugs were not hidden but were so located and situated throughout the residence that it would be reasonable to conclude that any adult occupant of the dwelling would have a knowledge of their presence. This was a finding the jury was authorized to make from the facts and circumstances presented by the testimony and from the reasonable and logical inferences flowing therefrom. For the legal principles involved in determining the sufficiency of circumstantial evidence see Cumbo v. State, 368 So.2d 871 (Ala.Cr.App. 1978), cert. denied, 368 So.2d 877 (Ala.1979).

We have carefully searched the record for error prejudicial to the defendant and finding none affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


text:
    Ex Parte Larry MITCHELL. (Re: Larry Mitchell v. State of Alabama).
    80-297.
    Supreme Court of Alabama.
    March 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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