text:
    Brazil RUDOLPH v. STATE.
    3 Div. 291.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.
    Benjamin E. Pool, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Defendant (appellant) was charged in an indictment with robbery upon Victoria Dawson, while the defendant “was armed with a deadly weapon or dangerous instrument, to-wit, a pistol, in violation of Section 13A-8-41 of the Code of Alabama.” According to the Alabama Criminal Code, effective January 1, 1980, now codified as Title 13A of the Code of Alabama 1975, § 13A-8-41(a)(l), (c) the conduct alleged is one method of committing the crime of robbery in the first degree and is a “Class A felony.” A Class A felony is punishable by imprisonment “for life or not more than 99 years or less than 10 years.” § 13A-5-6. A jury found defendant guilty as charged, and the court sentenced him to imprisonment for twenty years.

The victim, twenty years of age, and Jeff Bonham, sixteen years of age, testified that a short time after midnight February 2-3, 1980, while they were watching T.V. in the office of the Highway Host Motel on the Mobile Highway in Montgomery, defendant committed the alleged robbery.

Miss Lawson testified that she went on duty about 11:00 P.M. that night and was apparently in charge of the office and lobby. She said that she had put about one hundred and fifty dollars in the cash register, that while she was getting a bag for the defendant for him to get some ice, “he pulled out a gun and told me to hit the floor.” She said that as she was complying “he shot me.” According to her further testimony, the shot entered her shoulder and came out her back; the defendant told Jeff to open the cash register and then she heard Jeff open the cash register and the defendant tell him to hit ’the floor, and she saw Jeff go down on the floor. Defendant obtained the money from the cash register and left.

According to the testimony of Jeff Bon-ham, he and his family were guests at the hotel at the time. He saw the defendant when he entered; he heard the shot that was fired, and he then turned around and saw Miss Lawson lying on the floor. The defendant then grabbed Jeff by the arm, told him to open the cash register, which he did, and then told Jeff to lie down on the floor, which he also did.

There seems to be no controversy as to whether a robbery was committed. The controverted issue was as to the identity of defendant.

Defendant testified that he was not present at the time and place of the robbery, that he had never been to the particular motel, that he had never been in any motel, that he had never owned a .38 pistol, which according to the undisputed evidence was the caliber of the pistol from which the bullet came that passed through the body of Miss Dawson.

No contention is made on appeal that the evidence was not sufficient to support the verdict, and we find no reasonable basis for such a contention.

Appellant’s first insistence on reversible error is based on the ruling of the court overruling defendant’s objection to the admission in evidence of a jacket which was taken from defendant on the day of his arrest, which was the second day after the robbery. According to the evidence for the State, it was the jacket that the robber had on at the time of the robbery. Appellant argues that the seizure of the jacket and its admission in evidence against defendant’s objection was in violation of the principle “that an accused shall not be compelled to give evidence against himself” contained in

Article 1, Section 6, Constitution of Alabama of 1901. Appellant relies exclusively upon Anthony v. State, 30 Ala.App. 425, 7 So.2d 513 (1942). In Anthony, the court was reversed for its admission in evidence, over the objection of defendant, of the testimony of an officer that when Anthony was arrested and taken to prison his shoes were “taken off of him” and taken to the scene of the alleged crime for the purpose of a comparison with tracks there. In considering what was held in Anthony, the record therein was examined by the court in Crump v. State, 43 Ala.App. 136, 181 So.2d 620, 622 (1965), in which it is stated:

“ . .. The record in that case [Anthony v. State] also shows that the same witness testified that the defendant’s shoes were compared with the tracks, and that the shoes and the tracks ‘matched up.’ Error in the Anthony case was predicated on the fact that illegal evidence was used to secure a conviction, and not solely on the fact that a law enforcement officer committed an unlawful act by taking the accused’s shoes for evidentiary purposes. The facts of this case are clearly distinguishable from those in the Anthony case. Here, neither the appellant’s shoes nor any evidence obtained as a result of taking the shoes from him was used to secure the conviction. No error can be predicated on the violation of Article 1, Section 6, of the Constitution of Alabama of 1901, under the facts of this case.”

Neither Anthony nor the distinction made in Crump between Anthony and Crump is applicable here. The case here is governed by principles that distinguish it from both Anthony and what was said in Crump to distinguish it from Anthony, that are found with a collation of authorities in the opinion on second rehearing in Hubbard v. State, 283 Ala. 183, 194, 215 So.2d 261 (1968), in which it is stated:

“The opinion on original deliverance suggests the proposition that if the clothes of the instant defendant had been manually and forcibly removed from his body by police officers, then the clothing would have been admissible in evidence, but that, because defendant was compelled to remove his clothes himself with his own hands, then he was compelled to give evidence against himself and the evidence thus given, i. e., the clothing and hairs, is not admissible because it was compelled in violation of the constitutional privilege. We do not think that this proposition is sound. The privilege is against being compelled to be a witness or give evidence against self. If the clothes of defendant are taken from him forcibly and manually by police officers, he is compelled to surrender the clothes and thus give evidence against himself just as much as if, as in the instant case, he is compelled by the show of overwhelming force to take off the clothes and surrender them himself. Where the police officers manually removed the clothes, the force is actually exercised. Where defendant removes the clothes himself, the force is merely threatened to be exercised. In either case, defendant is compelled, and the evidence is equally admissible or inadmissible. The defendant is not compelled in either case to be a witness against himself. He is not the witness, the clothing is.
“In the instant case, we are of the opinion that defendant’s clothing and the hairs from his body were real or physical evidence and were not evidence of a testimonial or communicative nature. Accordingly, we hold that admission of the clothing and hairs into evidence did not violate defendant’s privilege under the constitution which guarantees that, in a criminal prosecution he shall not be compelled to give evidence against himself.”

Hubbard v. State is dispositive of appellant’s contention.

Appellant’s next insistence on reversible error is directed at the refusal of the trial court to grant defendant’s motion for a mistrial that occurred during cross-examination of the defendant as a witness for himself. Counsel for the State was interrogating the witness with reference to his conviction in a previous case, in which the conviction was based upon his plea of guilty, in which apparently there had been a previous mistrial by reason of the jury’s inability to agree on a verdict. The transcript shows:

“Q. Oh, some of it was yours.
“A. Yeah.
“Q. A trash can_
“A. The trash, can was mine.
“MR. POOL: Your Honor, at this time, we would offer to introduce the whole transcript of that trial during which the jury did not convict the defendant.
“MR. BELL: I believe it was ten to two for conviction, Mr. Pool.
“MR. POOL: Your Honor, we move for a mistrial_
“MR. POOL: It was a mistrial.
“MR. POOL: We move for a mistrial on Mr. Bell’s statement.
“THE COURT: The jury step inside.”

Thereupon an in camera hearing was conducted, in which the court said to the attorneys in part:

“All right. I am going to instruct the Jury to — I’m not going to grant a mistrial. I am going to deny that, and the reason I am not is both of you all proceeded and got into the area, improper as to both of you, and I would view Mr. Bell as having to make some response as a result of that. You both got into it and got to carrying it too far, so I am going to have to instruct the Jury to disregard the testimony of both of you at this point.”

Soon thereafter the trial was resumed in the presence of the jury, and the court instructed the jury at length on the subject. Included was the following:

“And I’m instructing you that that’s the only purpose in getting into details of something that is not proper and somehow both sides got into those details, and I am going to state to you to just completely disregard that line of testimony.”

Notwithstanding the impropriety of the remarks made by counsel for the State that the jury had “ten to two for conviction,” it was obviously provoked to some extent by the immediately preceding statement of counsel for defendant that “the Jury did not convict the defendant.” The trial court correctly appraised the situation. We agree with it that defendant’s motion for a mistrial should have been denied, as it was.

During the testimony of Berry Miles, a witness for defendant, who lived next door to defendant and who testified that he was at defendant’s house the night of the alleged robbery, the following occurred on cross-examination:

“Q. You never have. Did you go over to Mr. Rudolph’s house on this Friday night, did you go over there to drink? Do you buy your liquor from Mr. Rudolph?
“A. One beer.
“Q. Okay. Does he sell beer over there? Is that why you went over there?
“A. No, that’s not the reason.
“Q. But he does sell beer over there. Right, sells drinks by the shot? .
“MR. POOL: We object to the relevancy of this, Your Honor, and move for a mistrial. How a man drinks or gives drinks to friends doesn’t have anything to do with robbery.
“THE COURT: What is the purpose?
“MR. BELL: Judge, I am going into this witness’ possible condition or state that he might have been in_
“THE COURT: Overrule your objection. For that purpose only.
“Q. You have gone over there and you had purchased some beer from him, and you had gone over there on many Friday nights to purchase beer from him?
“A. No, hunh-uh.
“Q. You had not?
“A. Hunh-uh.
“MR. BELL: Thank you, Mr. Miles.”

Without approving the particular cross-examination, we disagree with the argument that the State was “attempting to secure a conviction based upon another crime other than the crime instantly charged, which is impermissible. Brantley v. State, 294 Ala. 344, 317 So.2d 345; Lucy v. State, [Ala.Cr.App.], 340 So.2d 840.” We are unwilling to ascribe that motive to counsel for the State. The questions along the line could have been more specific, but they were in an area as to which counsel was justified in testing by cross-examination the accuracy of the witness as to when he was with the defendant that night. Furthermore, although we are not certain as to the meaning of the witness’s “hunh-uh,” it appears that it was a negative answer to any questions purporting to elicit evidence to the effect that defendant was illegally engaged in the sale of any intoxicating drinks.

In addition to their in-court identification of defendant as the robber, Victoria Dawson and Bonham testified that they identified him from photographs shown to them by the officers, and thereafter they identified him as one of six men in a police lineup. Their testimony as to their identification by photographs and by the lineup was largely without objection on the part of defendant. However, the witnesses as to such identifications were carefully and critically interrogated, as they should have been, by defendant’s counsel in his valiant effort to show that there had been a mis-identification. There were two sets of photographs shown them, one of which purported to be pictures of former prisoners charged with felonies and the other of former prisoners charged with misdemeanors. Their testimony indicated that defendant’s photograph was not in the felony group but was in the misdemeanor group. The book of photographs was first referred to as “mug book” by counsel for the State. No objection was made to that denomination at the time, and thereafter it was copiously used by both counsel in repeated references to the book or the photographs. Before the State closed its case, it offered in evidence that which was shown the witnesses in the misdemeanor part of the book, marked it as State’s Exhibit 2, and it was admitted in evidence over the objection of defendant. Appellant says that this action of the court constituted reversible error and relies upon Holsclaw v. State, Ala.Cr.App., 364 So.2d 378 (1978).

We cannot overemphasize the importance of adherence to what was held in Holsclaw and the advisability that prosecuting attorneys be always on guard against the danger of injustice toward a defendant by its utilization of pictures that portray defendant as a previous inmate of a jail or of any other kind of a prison.

We think that counsel for the State should not have referred to the book of photographs as a “mug book” in the presence of the jury, but that point was not raised on the trial and is not raised here. We quote a pertinent part of the record upon which appellant bases his assertion of error:

“MR. BELL: We would also offer into evidence that portion of the mug book marked as State’s Exhibit No. 2 that Detective Carmichael stated that he showed to the witnesses Jeff Bonham and Victoria Dawson with leave of the Court to substitute either a Xerox copy of the pictures or a Polaroid or other suitable photocopy of those pictures to the book so the book can go back down to the police station.
“MR. POOL: Your Honor, we object to that and would like to be heard on that ex parte [sic] of the Jury.”

Thereupon, an in camera hearing was conducted in which the following occurred:

“THE COURT: What do you have to say, Mr. Pool?
“MR. POOL: Judge, we object to the introduction of any mug book or any mug pictures. We think any possible probative value is far outweighed by the prejudicial aspect of a mug book or mug pictures. It shows the defendant in police garb, in a police atmosphere, holding a police placket or card or sign in front of him indicating that he is in jail for some reason, and there is a date on it, I believe which shows August, 1979.
“THE COURT: That is pretty current.
“MR. POOL: And Victoria Dawson and Jeff Bonham have stated that they did, in fact, pick the defendant’s picture out of that book, and we think that suffices, and even the officer has testified the alleged victims picked that picture out of the book. And to introduce pictures or the book itself, mug shots, I don’t think would be admissible because it is so very prejudicial to the defendant in this casé. And it’s superfluous; and is not needed. It is repetitious.
“MR. BELL: Judge, Mr. Pool in his opening statement told the jury that the defendant had a record, that he had been convicted of a misdemeanor of buying and receiving or concealing some grocery products, I think as he put, so, it is no secret that defendant has a criminal record. The book has been referred to as a mug book over and over and over again and there was no objection. If the book is not going in — Mr. Pool has been holding up this lineup photograph here that admittedly doesn’t have one man that is as old as the defendant and he is a little shorter, and he is going to say this is their identification process, ladies and gentlemen, and it stinks, or words to that effect—
“MR. POOL: Well, the mere fact that a statement was made in opening argument, that is not evidence. The defendant may not even take the stand as far as that goes, and in this event that would not even be admissible, and here we are showing him as a criminal, or an alleged criminal, some time before the date in question. Now, that doesn’t shed any light on the issue to be decided by the jury.
“THE COURT: In light of the way the case has progressed and the testimony in the opening statement and this being primarily for the purpose of identification, I am going to permit this to go in except the back part here that has the peoples names and various charges and that sort of thing. I feel like that would be inappropriate. I want that removed. I will permit the mug book in for the perusal of whatever the Jury makes of it, and I will permit you to substitute this with either Xerox or whatever so it can be reviewed as to whether I was right or wrong.
“MR. POOL: Judge, you are referring to the three pages that they saw and not any other pages that they didn’t see? Those pages that they didn’t see—
“THE COURT: Well, the fact that it is a book I think it would be unfair to the District Attorney if I didn’t permit the Jury to look through it and see how they picked him out. You know, I don’t think they would ever fully understand unless we did that, so I am going to permit that.
“MR. BELL: Judge, if the Court would prefer, I will just offer the three pages.
“THE COURT: Well, all right. We will do that.
“MR. POOL: Otherwise, Judge, I think the Jury would get the impression that the whole book was viewed.
“THE COURT: All right. You can take those pages out and then we will substitute them later on which preserves your record, I think.
“MR. POOL: Yes, sir, we are still preserving objections to the admission of those three pages.
“THE COURT: You are still objecting to me doing that, and the record will reflect that.
“MR. POOL: Yes sir.
“(Whereupon, three pages from mug book No. 5880 through 5924 were marked for identification as State’s Exhibit No. 2.)

We have no reluctance whatever to follow Holsclaw v. State, supra, but we have great difficulty in the instant case finding a justification for reaching the same result as to the admission in evidence of the photographs that was reached in Holsclaw, as we place in juxtaposition the clarity of Hols-claw with the abstruseness of the circumstances of the instant case.

Some of the circumstances are the same or similar in both cases; many of them are different. There is sameness in fact that at the time of the ruling on the admissibility of the photographs, the defendant had not taken the stand and he had been identified as the person who had committed the alleged crime. There is a marked difference, however, in that at the time of the admission in evidence of the photographs in the other case the real issue was not, as it was in this case, as to the identity of the defendant but whether the defendant actually committed the crime charged. In the instant case it was clear at the time of the admission of the evidence that the only issue was as to the identity of the defendant as the person who committed the crime.

In Holsclaw v. State, supra, it was held that none of the three prerequisites to the admissibility in evidence of “mug shot” type of photographs set forth in United States v. Harrington, 490 F.2d 487 (2d Cir. 1973) was shown, for it is stated in Hols-claw at 364 So.2d 381:

“ ... In applying this analysis [the analysis of Harrington], we find that (1) the State did not have a demonstrable need to introduce the photographs in light of the two reliable in-court identifications; (2) also, the photographs in question depicted the appellant in such a way that the jury could reasonably infer that he had a prior criminal record; and (3) the manner of introduction at trial drew particular attention to the source or implication of the photographs themselves. . . . ”

Although both eyewitnesses of the robbery made an in-court identification of defendant as the robber, it cannot be said that the identification by either was so reliable as to preclude the admission of other evidence as to identity. The reliability of their testimony, particularly that of Bonham was under constant fire from defendant. Defendant’s attorney was able to raise a serious question as to the accuracy of the identification by Bonham by showing that Bon-ham had described the robber as a person with gold teeth. We have no difficulty in concluding that the State had “a demonstrable need to introduce the photographs” and thereby it met the first prerequisite of Harrington. We also have no difficulty in concluding that there was nothing in the “manner of introduction at trial” that drew “particular attention to the source or implication of the photographs,” as to which there seems to be no contention to the contrary. Accordingly, we hold that the third prerequisite of Harrington is established in this case.

We have some difficulty in concluding that the “photographs themselves” do “not imply that the defendant” had “a prior criminal record” so as to fulfill the second prerequisite of Harrington, but it is to be noted that the trial court, without being requested to do so by defendant, removed from the view of the jury the back of the photographs, which was at least a step in the right direction for compliance with such prerequisite. Perhaps it would have better insured compliance with the second prerequisite to have had the lower halves of the photographs cut off, thereby removing the legends denoting prisoners or the like and leaving only the front view of the faces and heads of the subjects, which would have been as valuable as evidence as the entire photographs. In the absence, however, of any suggestion to that effect, there is hardly reasonable ground for complaint that the court should have taken it upon itself to have thus changed the photographs.

The transcript does not contain the report of the opening statements of counsel, as they told the jury what they expected the evidence to show. The only reference to the opening statements of counsel for either party is found in the argument of counsel for the State in support of his offer of the photographs in evidence, to the effect that defendant’s counsel in his opening statement had injected into the case the defendant’s prior criminal record. The statement of State’s counsel as to what defendant’s counsel stated was not disputed, and we feel justified in accepting it as correct. It appears that the trial court so accepted it. Although what defendant’s counsel said was not “testimony” as the court called it, it was proper for the court to consider it as causing, partly at least, the State to enter the field of defendant’s criminal record. This, also, distinguishes this case from Holselaw in following what was held in Harrington, which was premised upon an absence of responsibility by the defendant for the injection into the case of the defendant’s prior criminal record. As stated in Harrington at 490 F.2d 490,

“An examination of the issue proceeds from the recognition of a basic tenet of our criminal law. If, at his trial, a defendant does not take the witness stand in his own defense, and if he has not himself been responsible for causing the jury to be informed about his previous convictions, he is entitled to have the existence of any prior criminal record concealed from the jury. .. . ” (Emphasis supplied.)

It appears that it was upon the ground that defendant first brought to the attention of the jury the fact that he had previously been convicted of a misdemeanor that the court based its action in permitting the photographs to be received in evidence. In our opinion, the action was not erroneous.

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.

AFFIRMED.

All the Judges concur, except TYSON, J., who concurs in the result only.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Jimmy Ray JOHNSON v. STATE.
    8 Div. 391.
    Court of Criminal Appeals of Alabama.
    March 17, 1981.
    Rehearing Denied April 21, 1981.

      William R. Hovater and Carl W. Stols-worth, Tuseumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty on a trial under an indictment charging him with receiving stolen property in the first degree, as proscribed by the Alabama Criminal Code (Code of Ala.1975, Title 13A) 13A-8-16, effective January 1, 1980, which by § 13A-8-17 is classified as a Class B felony.

According to the testimony of the owner of the automobile allegedly stolen, he parked it about noon January 16, 1980, on a downtown street in Sheffield and left the keys in the automobile. At approximately 1:15 P.M. he returned to where he had parked his automobile and discovered it was missing. He immediately reported the incident to the police. That same night, he identified the automobile at the Colbert County Jail; it had been wrecked and sustained damage to the front end.

The State’s evidence consisted largely of the testimony of four witnesses, Willodean Patrick, who testified she saw appellant driving the vehicle around 4:00 P.M. the day it was reported missing; Altie Turber-ville, who said she saw appellant and two others walking away from the automobile; William Lee Croy, who said he saw appellant driving the automobile around 4:30 P.M. the day it was taken; and Virgie Vickers, who testified she saw appellant driving the vehicle about “dusky dark” the same day. All of this was before the automobile was located by the officers and brought to the Colbert County Jail.

After the State rested its case, defendant presented evidence by three witnesses tending to support an alibi. Thereafter, appellant took the stand and positively denied ever stealing or riding in the automobile.

The evidence showed that the other two people whom a witness for the State testified were in the automobile with defendant as shown above had pleaded guilty to “stealing” the automobile.

Appellant complains of the refusal by the trial court of two charges requested in writing by defendant. They are:

“1. That if the jury finds that the defendant without the consent of the owner of the vehicle in question took said vehicle and used it without intending to deprive the owner of it permanently you may find the defendant guilty of the unauthorized use of the vehicle.
“2. That if the jury finds that the defendant was in possession of a stolen automobile and did not intend to permanently deprive the owner thereof of its use you may find the defendant guilty of the offense of unauthorized use of a vehicle.”

Appellant says that the misdemeanor of unauthorized use of a vehicle proscribed by Alabama Criminal Code, § 13A-8-11 is a lesser included offense of larceny of a motor vehicle or receiving a stolen motor vehicle. He relies upon Moore v. State, 52 Ala.App. 394, 293 So.2d 309 (1974), in which a conviction for the misdemeanor of taking or using temporarily any animal or vehicle of another without authority as proscribed by Code of Alabama 1940, Tit. 14, § 339 was upheld in a trial on an indictment charging grand larceny of a motor vehicle. Appellant overlooks McMurphy v. State, Ala.Cr. App., 358 So.2d 1065 (1978), and authorities there cited, in which it is held that the unauthorized use of a vehicle as proscribed by § 13A-8-11 is not a lesser included offense of larceny of the vehicle. McMurphy controls, and following it we find that the court was not in error in refusing either of the charges requested. We are of the opinion that the court was not in error in refusing either of said written charges for the additional reason that there was no evidence whatever in the case that tended to prove the commission of the offense that is claimed to be a lesser included offense. In that circumstance, it has been repeatedly held that the failure of the court to instruct the jury as to a lesser included offense is not error. Harvest v. State, Ala.Cr.App., 342 So.2d 1369 (1977). Furthermore, neither charge hypothesized a belief or finding “from the evidence,” which of itself justified the refusal thereof. Thompson v. State, Ala.Cr.App., 369 So.2d 50 (1979).

While Investigator Ronnie May, of the Colbert County Sheriff’s Office, was testifying as a witness for the State, there were indications that he was using some notes in a file to refresh his recollection. At the end of the testimony of the witness, defense counsel moved as follows:

“I would make a motion at this time that the defense be allowed access and the right to copy all reports, police notations, photographs, witness statements, and all documents contained in the file of Mr. Ronnie May from which he just testified from to refresh his recollection. I would move that the State let me have the right to examine this file, that there might be evidence beneficial to the defendant with which he could defend himself.”

The transcript does not show or even indicate that the witness in testifying was referring to “reports, police notations, photographs, witness statements,” in his file. Under the circumstances, including an indication in the transcript defendant had been given an adequate opportunity for a discovery of all discoverable material in the possession of the prosecution, the particular motion of defendant was unreasonable and properly overruled. The right of defendant to see and examine material used by a witness while on the stand to refresh his recollection is not an unbridled right but is subject to reasonable limitations. Russell v. State, Ala.Cr.App., 365 So.2d 343, 348 (1978); Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973). It appears that the target of defendant’s motion was much larger than a combination of the text and context of any information used by the witness while on the stand to refresh his recollection. The motion was properly overruled.

The transcript indicates some connection between the issue we have just discussed and the issue now to be discussed, but as the parties on appeal have treated them as separate and independent issues, we will do so. Appellant asserts that the trial court “committed reversible error by allowing testimony concerning an inculpatory comment to be introduced after granting Appellant’s Motion to Suppress the statement and without having determined if the statement was voluntarily given.” The reference is to testimony of Investigator Ronnie May as to a statement to him by defendant while he was in custody. Testimony of the witness as to the statement was admitted in evidence, over the objection of defendant, while the witness was testifying on call of the State as a rebuttal witness. Appellant is correct in saying that the testimony of the same witness as to the same statement had been suppressed on motion of defendant. That motion was presented and the ruling thereon made during the presentation of the State’s case in chief. The particular testimony in rebuttal was as to an inculpatory statement of defendant offered and received in evidence in impeachment of defendant as a witness for himself. The question asked the witness, defendant’s objection, the ruling of the court and the answer of the witness are in the following part of the transcript:

“Q. Did he [defendant] make any statement to you concerning a car or wanting to see a car—
“MR. STOLLSWORTH: Your Honor, we object to that on the grounds if for no other reason, it has been ruled upon by the Court.
“BY THE COURT: It has been gone into and I will allow it at this time.
“MR. STOLLSWORTH: We except, Your Honor.
“BY THE COURT: Overruled.
“MR. MAY: He made a verbal statement to me, yes, sir.
“MR. PATTON CONTINUES: Would you tell the Court and jury what he said on that occasion?
“A. During the course of the conversation, he got up from the desk where he was sitting and walked to the window and looked out and said, ‘Come and show me the car ya’ll got, it might not be the one I stole.’
“Q. Did you ask him any further questions at that time?
“A. Yes I said, what do you mean it might not be the one you stole. And at that time, he said, that’s all I am going to say. I’m not going to sign anything or say anything else. I want to see my lawyer.”

While defendant was testifying on direct examination, he was asked in detail about the circumstances of his arrest and of the interrogation by law enforcement authorities, including Investigator Ronnie May, in which testimony it was emphasized that notwithstanding some claimed efforts on the part of the officers to get him to make a confession, he had not done so. Among the questions of his attorney on the subject and his answers as a witness were the following:

“Q. Did you tell Mr. May you had stolen any car?
“A. I told him I didn’t know nothing about the car and I didn’t know why he was questioning me on the car, because I didn’t know about it.”

It should be explained that the sustention of defendant’s motion to suppress evidence of the extrajudicial statement made by defendant to the witness Ronnie May was not based on any conclusion of the trial court that a proper predicate for the admission of a confession or incriminating statement of an accused had not been laid. To the contrary, it appears that such a predicate had been laid but that defendant declined to make any statement, particularly a written statement, other than what he said, as quoted above, until he had a lawyer. Furthermore, the transcript shows that defendant’s grounds of objection to the admission in evidence of the oral statement of defendant were:

"... That the same is surprise to the defense, it is prejudicial to the defendant’s rights, the only information pertaining to any statement made and the only notes of Mr. May state simply that Johnson denied any knowledge of the stolen vehicle, and that any reference to a stolen vehicle as testified to by Mr. May is irrelevant to this case, prejudicial and inadmissible and we move to suppress any evidence of an alleged oral statement, both on the grounds of surprise and grounds that the defense was informed that no statements—no such statements had been made and also on the grounds of irrelevancy.”

We think enough has been stated to show that under all the circumstances the mere fact that the court at one time ruled in favor of defendant’s motion to suppress evidence of the statement does not constitute a valid ground for placing the trial court in error in thereafter overruling defendant’s objection to the offer of the oral statement in evidence. There was not a change in the substance or nature of the ruling of the court but a change in the status of the case. Appellee agrees that the trial court was correct in its first ruling in that, as then urged by defendant, the statement was not relevant to the issue of defendant’s guilt, although it would have been relevant if defendant had been charged with larceny of the motor vehicle. Appellee further argues that the statement was relevant on rebuttal to the question of the credibility of defendant as a witness and was properly shown against him in impeachment of him as a witness.

As stated above, when defendant interposed its objection to the second offer of the statement in evidence, the court said, “It has been gone into and I will allow it at this time.” That it had “been gone into” by defendant is fully supported by the transcript.

We think we have said enough to show that the ruling of the court did not constitute any contravention of defendant’s right not to “be compelled in any criminal case to be a witness against himself,” as guaranteed by the Fifth Amendment, or his right to “the assistance of counsel” as provided by the Sixth Amendment, to the Constitution of the United States. However, any uncertainty on that subject should be removed by a consideration of the now established principle as to the admissibility of an extrajudicial inculpatory statement of an accused when offered in impeachment of him as a witness, as distinguished from its admissibility when offered by the prosecution before the accused has taken the stand as a witness. As to impeaching evidence, the test is less favorable to the accused; the statement is admissible if its “trustworthiness satisfies legal requirements” or is shown to be “free from coercive or involuntary influence,” as expressed respectively in Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1, 4 (1971) and Campbell v. State, Ala., 341 So.2d 742 (1977), aff’g Ala.Cr.App., 341 So.2d 735 (1976). In accord therewith is Walker v. State, Ala., 369 So.2d 825, rev’g Ala.Cr. App., 369 So.2d 814 (1979).

The trial court was not in error in its action as to the admission in evidence of the testimony of Investigator Ronnie May as to the statement made to him by defendant.

Officer Wesley M. Ausley of the Cherokee Police Department was permitted to testify, over the objections of defendant, that soon after 5:00 P.M., January 16, 1980, he investigated what obviously had been a collision between two motor vehicles at an intersection in Cherokee, in Colbert County, Alabama. He said one of the motor vehicles was still at the intersection at the time but that the other was not. He took some pieces of glass from near the place of the impact and thereafter compared or matched them with broken pieces of glass on the allegedly stolen and obviously damaged automobile of the instant case, and testified to the effect that the pieces of glass he had found at the scene of the collision came from said automobile. Appellant says, as he did on the trial, that such evidence was inadmissible in that it “constitutes a distinct and separate offense” from that “charged in the indictment and it is prejudicial to defendant.” However criminal the conduct of the driver of the motor vehicle that had left the “scene” may or may not have been, the evidence was admissible as “a part of the res gestae” of the crime for which defendant was being tried or, stated otherwise, for the reason that the collision and the crime charged were “parts of one continuous transaction or one continuous criminal occurrence.” Gamble, McElroy’s Alabama Evidence, § 69.01(3) (1977). The evidence had a material bearing on the question of the intent of the defendant in driving the automobile when seen, according to two witnesses, about half of an hour before the collision occurred. It was competent and relevant, as well as material, and was properly admitted regardless of any incidental effect tending to implicate defendant in another crime. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457, cert. denied, 292 Ala. 743, 294 So.2d 462 (1974).

As a final insistence on a reversal, appellant urges that as applied in this case the Alabama Habitual Felony Offenders Act, Code of Ala.1975, 1980 Cum.Supp., § 13A-5-9, is unconstitutional. The Act has been upheld as constitutional against attacks made and considered in Watson v. State, Ala.Cr.App., 392 So.2d 1274 [1980], cert. denied, Ala., 392 So.2d 1280 [1981]. Appellant attacks it as applied in this case on six separate grounds, which we will separately consider.

Appellant argues that he was denied due process as to his sentence in accordance with the Habitual Felony Offenders Act in that he was not charged in the indictment in this case with having been previously convicted of a felony. Long before the Alabama statute was enacted, the particular contention of appellant now considered was determined adversely to him.

“Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual offender is ‘essentially independent’ of the underlying substantive offense. Chandler v. Fretag, 348 U.S. 3, 8, 75 S.Ct. 1 [4], 99 L.Ed. 4, 9 (1954). Thus, although the habitual offender issue may be combined with the trial of the felony charge, ‘it is a distinct issue, and it may appropriately be the subject of separate determination.’ Graham v. West Virginia, 224 U.S. 616, 625, 32 S.Ct. 583 [586], 56 L.Ed. 917, 921 (1912). If West Virginia chooses to handle the matter as two separate proceedings, due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding. See Graham v. West Virginia (U.S.) supra.” Oyler v. Boles, 368 U.S. 448, 452, 82 S.Ct. 501, 503, 7 L.Ed.2d 446, 450 (1962).

Although the prescribed procedure in some states differs from that prescribed in Alabama and that approved in Oyler v. Boles, by which different procedure a defendant may properly be charged in an indictment with having been convicted of previous offenses, the same is not required in order to preserve the defendant’s right to due process, as was noted in Spencer v. Texas, 385 U.S. 554, 566, 87 S.Ct. 648, 655, 17 L.Ed.2d 606, 615 (1967), in which it is stated:

“Tolerance for a spectrum of state procedures dealing with a common problem of law enforcement is especially appropriate here. The rate of recidivism is acknowledged to be high, a wide variety of methods dealing with the problem exists, and experimentation is in progress. The common-law procedure for applying recidivist statutes, used by Texas in the cases before us, which requires allegations and proof of past convictions in the current trial, is, of course, the simplest and best known procedure. Some jurisdictions deal with the recidivist issue in a totally separate proceeding, see, e. g., Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446, and as already observed (n. 2, supra) Texas to some extent has recently changed to that course. In some States such a proceeding can be instituted even after conviction on the new substantive offense, see Ore.Rev.Stat. § 168.040 (1959); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 .... ”

The next issue presented by appellant as to his being sentenced as an habitual offender is whether “imposition of a greater sentence under the Habitual Offenders Act constitutes ex post facto treatment if his prior conviction occurred before the effective date” of the Act. The same issue was raised in Williams v. State, Ala.Cr. App., 393 So.2d 492 [1981], in which a pertinent prior conviction had also occurred before the effective date of the Act. We follow now what was said by Judge DeCar-lo in Williams that the Act “has not been unconstitutionally applied in a retroactive manner as to make it an ex post facto law.”

A third issue presented as to the Act is whether it “constitutes cruel and unusual punishment in disproportion to the crime by not providing that one adjudged to be an Habitual Offender be previously confined to the penitentiary?” Appellant cites no authority, and we find none, to the effect that the failure of the Act to require that the prior felony convictions resulted in actual imprisonment in the penitentiary, as distinguished from convictions in which execution of the sentence as to such imprisonment may have been suspended, establishes that the Act is violative of the “cruel and unusual punishments” provision of the Eighth Amendment to the Constitution of the United States. Inapplicable are authorities dealing with statutes which expressly or impliedly exclude convictions that are themselves left in suspense, that remain conditional or inchoate.

We are unable to see that punishment for a second offense can become cruel or unusual merely because one has not been punished for an offense for which he has been previously convicted. Does he not have less reason to complain than one who has suffered in full the punishment that has been imposed upon him for his previous crimes? The defendant was sentenced in this case to imprisonment for twenty years and one day, which was only one day beyond the maximum provided for the Class B felony for which he was convicted, without regard to his prior felony convictions. Code § 13A-5-6(a)(2). It was only five years and one day beyond the minimum provided for his conviction now under review where, as here, there had been three or more previous felony convictions, and it is greatly less than the maximum of “imprisonment for life or any term not more than 99 years,” as specified in § 13A-5-9(c)(l).

We find nothing in the Alabama Act, nor in the application of it in the instant case that is violative of “the cruel and unusual punishment” clause of the Eighth Amendment.

Appellant’s contention that the Act is unconstitutional in that it causes double jeopardy has also been disposed of adversely to him in Williams v. State, supra, wherein the following from Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683, 1687 (1948) is quoted:

“... The sentence as a ... habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.... ” (Emphasis supplied)

Appellant also argues an issue as to whether the Act dealing with the subject of prior felony offenders causes or permits an unconstitutional deprivation of the right to a trial by jury. He does not support his side of the issue by authorities or by any effort to draw any distinction between the Alabama statute and the uniformly recognized rule in this jurisdiction and elsewhere that “Where the fine or period of imprisonment is fixed by law, it is usually for the court and not for the jury to assess it, unless such power is conferred on the jury by constitutional or statutory provisions, as is frequently the case where the charge is murder or an offense punishable by death.” 23A C.J.S. Crim. Law, § 1141. At this time we do not endeavor to pass upon the question whether under the Alabama Act a defendant would ever be entitled to have a jury determine whether he has been previously convicted for a felony or felonies, to which according to some authorities he is entitled when there is a disputed issue of a material fact as to the prior conviction or convictions, such as the identity of the defendant as the person previously convicted. See 50 C.J.S. Juries § 78a. No such disputed issue was presented in the case under review. To the contrary, while testifying on the trial, defendant affirmatively afforded proof of his previous convictions. Furthermore, duly certified copies of the previous convictions were introduced in evidence, the Clerk of the Circuit Court trying all of the cases and an assistant clerk testified as to the records, and the actual fact that defendant had been previously convicted, as charged by the State well before and at the sentencing hearing, was never challenged.

We find 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 of the trial court is hereby

AFFIRMED.

All the Judges concur.

      . It appears that in fixing the punishment at a mere tissuey difference between the minimum provided by statute, the trial court considered of great importance the fact that the sentences in the previous convictions ran concurrently.

      . No provision pertinent to this case is as severe as a provision mandating the sentence to life imprisonment upon a third conviction for a felony less than capital, which a majority held was not cruel and not unusual punishment in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).


author: BOWEN, Judge. DeCARLO, Judge,

text:
    Randall LOLLAR v. STATE.
    6 Div. 418.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied May 5, 1981.
    Michael C. Cornwell, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Deborah Hill Biggers, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted for the offenses of grand larceny and buying, receiving and concealing stolen property. A jury found him guilty of grand larceny “as charged in the indictment.” Sentence was three years’ imprisonment. The defendant is represented at trial and on appeal by the Public Defender. The only issue raised on appeal is the sufficiency of the evidence.

The conviction of the defendant is based on pure speculation, suspicion and surmise. Affording the State all the reasonable inferences from the evidence which we view in the light most favorable to the prosecution, the evidence connecting the defendant to the crime is grossly deficient to support his conviction.

The only evidence which even tends to connect the defendant with the charged crime came from witness Julie Beard. In its brief, the Attorney General “adopts” the facts as stated by defendant’s appellate counsel and acknowledges them as being “substantially correct”. Mrs. Beard’s testimony is summarized in appellant’s brief as follows:

“MRS. JULIE BEARD was called as the State’s first witness. She testified that she went to Appellant’s parents’ home on the morning of May 10, 1979. While at that resident, she saw Appellant and his brother-in-law, Bobby Cannon and Mr. Cannon’s dark green Dodge pickup. The witness took Appellant’s mother to a store and then back to the Lollars’ residence. Mrs. Beard returned home around eleven-thirty and found a torn screen. While gathering her garbage, she saw the green pickup pass in front of her house. It was occupied by two young males, but Mrs. Beard could not identify them. She took her garbage to the dumpster approximately a half mile away. On returning home, she saw a green pickup leaving the upper part of her driveway. When Mrs. Beard entered her home, she discovered that her stereo, a tape player and a shotgun were missing. Further checking revealed that her back door was now unlocked. The truck she saw leaving was dark green and ran loud like Bobby Cannon’s. Mrs. Beard reported the incident to the Sheriff’s office and after talking with an officer she found the truck on a logging road a half mile from her home. No one was around the truck and there was nothing in the truck. She later returned to the vicinity with her husband and they located the missing items near the location where she had seen the truck. (Mrs. Beard estimated the value of the missing items to be approximately $250.00). During the interim between the first officer coming to her house and her husband arriving, Mrs. Beard saw the truck after seeing it on the logging road. The truck passed her house and she went to Lena Kimbrall’s residence where she found the truck, Appellant, and Bobby Cannon. When she saw the truck pass on this occasion, she could not tell how many people were in the truck or identify any of them.
“ON CROSS, MRS. BEARD stated that Appellant is her nephew by marriage and she had known him for thirteen years at the time of the incident. Her home is located on County Road 63 near the Gorgas community and is situated approximately 75 feet from the road. She described the green pickup as a 1961 or 1962 model that was noisy. When Mrs. Beard saw Appellant and Bobby Cannon at the Lollars’ residence that morning, they left some thirty minutes before she left with the Lollars. During the time she was getting her garbage, she saw the truck pass once going in a northern direction. This occurred between 10:00 and 11:15 a. m. She could not tell who was in the truck. She viewed the truck from her porch on this occasion. The witness then took her garbage for disposal, returned fifteen minutes later, and saw a green truck leaving her driveway about two hundred feet away. She could tell that the truck was a green Dodge but she could not tell how many people were in it or whether it had a tailgate. There was nothing unusual about the manner of the truck’s leaving. She next saw the green pickup on the logging read at approximately twelve noon. The truck could be seen from County 63. A green pickup was subsequently seen by Mrs. Beard when it passed her house around twelve-thirty. She only saw Appellant in the truck on one occasion that day — when she first saw it at the Lollars’ residence that morning. (R. 36) The witness last saw the truck at the Kimbrells’. When she arrived there the truck was unoccupied but she found several persons there: Appellant, Bobby Cannon, Mr. and Mrs. Kimbrell, Mr. and Mrs. Lollar, and another boy. Appellant and Bobby Cannon were fixing someone else’s vehicle.
“Mrs. Beard further testified that three neighbors live within a half mile from her house and the county road which passes in front of her house carries traffic which passes on a pretty regular basis.”

The Attorney General argues that this testimony is sufficient to connect the defendant with the crime because of Mrs. Beard’s testimony that one of the men in the truck “resembled” the defendant. This is not an accurate summary of Mrs. Beard’s testimony as shown by the following question and answer.

“Q. And so while you couldn’t tell exactly who was in the truck, the persons in the truck, one of the persons in the truck had the same color and length of hair as Mr. Lollar (the defendant)?
“A. Yes, sir.”

The defendant had long, “about neck length”, blonde hair. There was no testimony that his hair was especially distinctive in any particular way. We emphasize that this was all the evidence which, under any interpretation, could be construed as even tending to implicate or incriminate the defendant.

The mere presence of a person at the time and place of a crime is not sufficient to justify his conviction for the commission of the crime. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978); Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977). The possibility that a thing may have occurred is not evidence, even circumstantial, that the thing did occur. White v. State, 373 So.2d 356, 358 (Ala.Cr.App.1979).

We need not add more. Convictions based on speculation and suspicion have no place in our system of criminal justice requiring proof beyond a reasonable doubt. Because the State utterly failed to connect the defendant with the crime for which he was convicted, his conviction must be and is reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED AND RENDERED.

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

DeCARLO, J., dissents.

DeCARLO, Judge,

dissenting.

In view of the Alabama Supreme Court’s recent holding in Dolvin v. State, Ala.Cr. App., 391 So.2d 139, I do not believe it was unreasonable for the jury to exclude every reasonable hypothesis except that of the appellant’s guilt.

My review of the facts as shown in the majority opinion, when examined by the test of the Supreme Court in Dolvin v. State, supra, and laid down in Cumbo v. State, Ala.Cr.App., 368 So.2d 871, indicates the existence of a reasonable theory from which the jury could have concluded that the appellant was guilty of the burglary. Therefore, I respectfully dissent.


author: BOWEN, Judge.

text:
    Michael ELLIS v. STATE.
    5 Div. 544.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.

      Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted of burglary in the second degree. Sentence was seven years’ imprisonment.

I

The defendant was caught “red-handed” by Mrs. Sandra Baldwin when she returned home and found the defendant in her house. Her identification of the defendant as the burglar was not questioned. The sufficiency of the evidence cannot be doubted.

II

The defendant’s confession was admitted into evidence over the objection of defense counsel. The defendant was 20 years of age, had an I.Q. of 59, and was classified as “educable mentally retarded.”

The defendant was arrested and then given his “Miranda” rights in the back seat of a sheriff’s car parked at his house. He stated that he understood his rights. The deputy stated that the defendant appeared to understand his rights. Present were a deputy and a Mrs. Motes — a close friend of the defendant and his family.

The defendant testified that Mrs. Motes told him “to tell the truth, it would go more easy” for him.

The deputy stated that Mrs. Motes told the defendant to “go ahead and tell Mr. May (the deputy) the truth about it”; and to “go ahead and tell Mr. May what you done with the, with that gun.” After Mrs. Motes said whatever she said to the defendant, the deputy then advised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The mental subnormality of an accused does not in and of itself render a confession involuntary. Hines v. State, 384 So.2d 1171 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980); Parker v. State, 351 So.2d 927 (Ala.Cr.App.), cert. quashed, 351 So.2d 938 (Ala.1977); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977). In Twymon v. State, 358 So.2d 1072 (Ala.Cr.App.1978), the confession of a defendant with an I.Q. of 57 was held to be voluntary.

It is constitutionally permissible to tell the accused that it is best to tell the truth. Eakes v. States, 387 So.2d 855 (Ala. Cr.App.1978).

The trial judge had an opportunity to observe the demeanor and character of the defendant when defendant testified at the suppression hearing. Considering the totality of the circumstances we find no abuse of discretion in the ruling of the trial judge admitting the confession.

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

AFFIRMED.

All Judges concur.


text:
    Tommy BRYAN v. STATE.
    6 Div. 338.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Bill Fite, Hamilton, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Jones, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty under an indictment that charged that he “did unlawfully transport quantities of five gallons or more prohibited liquors or beverages, contrary to law.” Code of Ala. 1975, § 28-4-115, which is applicable to the subject of Alcoholic Beverages in Dry Counties, provides:

“It shall be unlawful for any person, firm or corporation or association within this State to transport in quantities of five gallons or more any of the liquors or beverages, the sale, possession or transportation of which is prohibited by law in Alabama. Any person convicted of violating this Section shall be guilty of a felony and, upon conviction, shall be imprisoned in the penitentiary of this State for a period of not less than one year, nor more than five years.”

The court fixed defendant’s punishment at imprisonment for three years and sentenced him accordingly. His application for probation was denied. His motion for a new trial was overruled.

Appellant urges that defendant “was improperly convicted of a felony under Ala. Code § 28-4-115 (1975) when this statute had actually been changed to a misdemean- or by Ala.Code §§ 28-4-200 & 201 (1975).” With commendable candor, counsel for appellant acknowledges that the same contention was rejected in Johnston v. State, 54 Ala.App. 100, 304 So.2d 918 (1974). He in effect asks at this time for a reconsideration of what was held in Johnston v. State, supra, that § 28-4-115 had not been repealed and that the crime proscribed thereby is still a felony, even though §§ 28-4-200 and 28^-201 provide that the possession, not the transportation, of alcoholic beverages in excess of five gallons constitutes a misdemeanor only. We are not persuaded that we should depart from, or qualify, the conclusion reached in Johnston, supra.

In continuance of his insistence that defendant could not have been legally convicted of a felony, appellant says that he should have been allowed to subtract five gallons of alcoholic beverage, the amount he would have been permitted to possess in a dry county, from the total amount that the evidence shows he was transporting in the instant case, and that the remainder would have been less than five gallons, which if true, would have constituted a misdemeanor only. According to the undisputed evidence, which included testimony of defendant, defendant was transporting by hand three cases of beer containing more than five gallons, but if a case had been deducted therefrom, the total of that which he was transporting by hand would have been less than five gallons. Irrespective of this contention, however, there was substantial evidence in the testimony of witnesses for the State, which defendant denied, that he was transporting by automobile an additional twelve cases of beer, which far exceeded five gallons. This of itself was sufficient to support the verdict to the effect that he was transporting an intoxicating beverage in a quantity of “five gallons or more,” and testimony as to the beverage left no doubt as to its intoxicating nature.

Appellant attempts to base prejudicial error on the refusal by the court of each of twenty-nine written charges requested by defendant. Defendant requested a total of seventy-eight written charges, and all were refused. Many of them were substantially covered by the courts oral charge. We are not fully persuaded that there are not some that state correct principles of applicable law and are not covered by the court’s oral charge. Nevertheless, we deem it unnecessary to point out as to each individual charge that defendant could not have been injured by its refusal. This for the reason that, although defendant denied being in the automobile in which the beer was transported, the overwhelming weight of the evidence, including defendant’s own testimony, was to the effect that he was either the principal, or an aider and abettor of the principal, in the transportation of fifteen cases of beer in the automobile on the occasion involved. None of the good charges requested would have been of any benefit to defendant. There was no injury to defendant by reason of the court’s refusal of any of the charges. Miller v. State, 168 Ala. 100, 53 So. 278 (1910); Glasscock v. State, 159 Ala. 90, 48 So. 700 (1909). This, we think, justifies our not discussing herein any of the large number of refused charges.

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

Notwithstanding due deference to the trial judge as to his ruling on defendant’s application for probation and our usual indisposition to comment on a matter that is not within our province, we would like to say that we are favorably impressed by the showing made by defendant and his counsel as to his background, character and reputation for law observance, except in the area of illegal traffic in intoxicating liquor or beverages. As to this, he made no effort to mislead or conceal, but frankly admitted that he had engaged in “bootlegging for quite a period of time.” Our best wishes go out to him, his young wife and his young child, with a considerable measure of faith in him, and in the earnest hope that he will, as he certainly can if he tries hard enough, during his term of imprisonment and thereafter, become and continue to be a useful, productive and law-abiding citizen. In saying this, we do not mean to imply that we feel that he should have been granted probation. We are confident that the trial court gave due consideration to all of the facts and circumstances involved and reached the right conclusion. We are hopeful that appellant will understand that the trial court had his welfare in mind, as well as the interest of the State, and acted not as it wished but in accordance with its duty. Appellant should also understand that he has had the full benefit of all the protection the law affords and of counsel who has been keenly aware of appellant’s need and has given full measure of able advocacy and devotion to his client in the trial court and here.

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.

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

BOWEN, J., concurs in result.


author: HARRIS, Presiding Judge.

text:
    Carl H. BAILEY, Jr., alias v. STATE.
    6 Div. 421.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.

      Dan J. Willingham, Cullman, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Michael Horsley, Asst. Atty. Gen., Mill-brook, for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of the offense of first degree theft of a,1974 Harley Davidson motorcycle and sentenced to six years in the State Penitentiary. At arraignment and throughout the trial proceedings he was represented by court-appointed counsel who represents him on this appeal. In the presence of counsel he pleaded not guilty to the indictment.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said county charge that before the finding of this indictment, Carl H. Bailey, Jr., alias Carl H. Bailey, alias Carl Bailey, whose name is otherwise unknown to the Grand Jury, did, on to-wit: February 29, 1980, knowingly obtain or exert unauthorized control over a motor vehicle, to-wit: one 1974 Harley-Davidson motorcycle, black in color, vehicle identification no. 2A24719H4, 1979 License No. M40216, said motorcycle is equipped with two white saddle bags, white seat with a white box directly behind said seat, the property of Victor Bradford, with the intent to deprive said owner of said motor vehicle, in violation of Title 13A-8-3 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

The sufficiency of the evidence is not presented for review, although it is extremely conflicting. There was no motion to exclude the State’s evidence; no request for the affirmative charge; no exceptions reserved to the oral charge to the jury, and there was no motion for a new trial.

The victim, Mr. Victor Bradford, testified that, on February 29, 1980, he lived in Cull-man and owned a 1974 Harley Davidson motorcycle. The motorcycle was black with a white seat, storage box, and saddlebags and weighed over 700 pounds. On February 29, around 6:45 a. m., Mr. Bradford saw his motorcycle parked in its usual place, in the hallway of his apartment building. The front wheel was padlocked and would only roll in circles although the motorcycle would be started without a key. Mr. Bradford owned the only key to the padlock. He testified that, on February 29, it was locked. Mr. Bradford valued the motorcycle at between $2,000.00 and $2,500.00. When he returned from work around 4:30 p. m., his motorcycle was gone. He had not given anyone permission to take or ride it. In early July, Mr. Bradford identified several motorcycle parts which were being held by the Cullman Police Department as belonging to him. A copy of his tag receipt including the vehicle identification number (VIN) was introduced into evidence.

During his cross-examination, Mr. Bradford stated that after he had purchased the motorcycle he added the white storage box to it. He stated that he always parked his motorcycle in the same place and did not put any special identifying marks on it. He testified that he knew the various parts held by the police came from his motorcycle as he was familiar with their appearance and distinguishing characteristics.

Chris Bradford, the eleven year old son of Victor Bradford, testified that he resided with his father on February 29, 1980. He stated that his father drove him to school that morning but that he did not attend classes and walked home. Mr. Bradford testified that his father’s motorcycle was at the apartment when he went to school.

Around 7:15 a. m., he returned home but could not get in because he did not have a key. Chris Bradford saw the appellant drive into the parking lot in a red over white car which had a cracked windshield. He stated that there was a passenger who remained in the car. He described the appellant as a man dressed in blue jeans and a jacket with a long red beard and long hair. Chris saw appellant knock on a downstairs apartment door. Afterwards, the appellant asked him if he was locked out, to which he affirmatively replied. Chris Bradford stated that the appellant, armed with a driver’s license and screwdriver, forced the apartment door open for him.

Chris Bradford testified that he entered the apartment around 9:00 a. m. and began to watch television. He stated that the appellant left and went downstairs. He did not hear a motorcycle crank or see the appellant with a motorcycle helmet. He stated that he never left the apartment that day and did not know that his father’s motorcycle had been stolen until his father arrived home that afternoon.

Mr. William McGukin testified that he lived less than one block from the victim’s apartment, which was located at the end of a dead-end street. He stated that he had seen the victim’s motorcycle several times. In particular, Mr. McGukin testified that, on February 29, 1980, between 9:00 and 10:00 a. m., he saw the victim’s motorcycle leave the apartment building being driven by a man with long hair, a long red beard, and wearing a denim jacket. He stated that a car followed the motorcycle out of the apartment parking lot. Mr. McGukin testified that on the day before he had seen a man fitting the above description ride on a motorcycle to the victim’s apartment building.

On cross-examination, Mr. McGukin stated that, when he saw the motorcycle pass his residence, he assumed that the victim was driving it, but later realized that he was not. He stated that the motorcycle he saw leaving the victim’s apartment was equipped with white saddlebags.

Cullman Police Investigator Lynn Wood testified that he had served as an investigator for two and two-thirds years and specifically handled all thefts of automobiles and motorcycles. Approximately seven weeks prior to the date of trial, Investigator Wood located several pieces of the victim’s motorcycle including the engine at the residence of Mr. David Butler. Mr. Butler told him that the motorcycle frame could be found in a nearby pond. Investigator Wood performed a chemical analysis on the frame and engine VIN which had been physically altered. The VIN that he found matched that given to him as belonging to the victim’s motorcycle.

Investigator Wood testified that, on March 15,1980, another officer arrested the appellant. He was brought to the police station wherein he gave him his Miranda warnings. Afterwards, Investigator Wood asked the appellant whether he had shaved his beard to which he replied that about three weeks ago he had. The appellant stated that he had a white car and thought that his wife had driven it to work. The stolen motorcycle had not been located when Investigator Wood talked to appellant. The seat and saddlebags to the victim’s motorcycle were never found.

On cross-examination, Investigator Wood testified that the appellant did not tell him the model of his car or whether it had a maroon top. Subsequent to their conversation, Investigator Wood went to the appellant’s house in an attempt to locate parís of the stolen motorcycle. He found nothing. Investigator Wood described Mr. Butler as being about 5'7" or 5'8", weighing about 160 pounds, with shoulder length curly or fuzzy black hair and an inch to one and one-half inch beard.

Mrs. Lanita Butler, wife of David Butler, testified over the objection of the appellant that she was familiar with the 1974 Harley Davidson motorcycle that was in her husband’s possession and which was picked up by Investigator Wood about seven weeks prior to appellant’s trial. Mrs. Butler stated that the motorcycle was black with twin gas tanks, but could not describe the seat. She stated that between February 28 and March 3, she was in the hospital and that her husband did not have the motorcycle prior to then. Mrs. Butler testified that, two or three days after being released from the hospital, her husband and the appellant had a conversation about trading motorcycles. Mr. Monroe Chandler and she were present during this conversation. Mrs. Butler stated that her husband and the appellant decided to trade motorcycles with the appellant trading the 1974 motorcycle previously described. Mrs. Butler testified to a second conversation between her husband and the appellant with the appellant’s wife present. Mrs. Butler testified that she heard the appellant say, “.. . that he felt much better after the saddlebags were at the bottom of the lake.” Mrs. Butler stated that the conversation concerned the motorcycle the appellant had traded to her husband. A few weeks after the second conversation, the appellant and Mr. Butler had a conversation at the appellant’s house. Both wives were present. Mrs. Butler testified that the appellant talked "... about how he was going to get out of this, as long as the motorcycle wasn’t found that there wouldn’t be any way that he could be charged with it, could be proven guilty of stealing it.”

On cross-examination, Mrs. Butler testified that, although her husband has not been charged with a crime arising out of the instant incident, he had been arrested and charged with making a false report to the police. She stated that her husband falsely reported that the 1974 Harley Davidson motorcycle had been stolen. Mrs. Butler testified that her husband traded appellant a 1954 Model K Harley Davidson for the 1974 motorcycle. She has not seen the 1954 motorcycle since her husband traded it and does not know if the appellant still owns it. Mrs. Butler stated that she had previously seen the appellant drive several different cars, but in February, 1980, remembers his driving a Gremlin. She stated that they owned a solid beige Chevrolet. Mrs. Butler testified that, on February 29, around 9:00 a. m. her husband visited her at the Cullman Medical Center.

With the conclusion of Mrs. Butler’s testimony, the State rested.

The appellant’s first witness was his girl friend Miss Pat House, who testified that she was not married to the appellant but had lived with him for about one and one-quarter years. She stated that, on February 29, 1980, she was at home with the appellant, Monroe Chandler, and Michael Burnett. Around 10:00 or 10:30 a. m., she left to go to the grocery store and returned between 11:30 a. m. and 12:00 noon. The appellant, Chandler, and Burnett were still there. Miss House testified that the appellant and she remained at home the rest of the day. She stated that Monroe Chandler left at dark, riding the appellant’s 1974 motorcycle. She estimated that the appellant had owned the bike approximately two or three months and stated that it had a black seat and no saddlebags. Miss House stated that Mr. Chandler was stopped by the police for driving without a license and having an improper tag on the motorcycle. She stated that the motorcycle was impounded by the police as they thought it had been stolen. The motorcycle is now owned by Michael Burnett as he traded another black Harley Davidson for it. She stated that the appellant has sold the motorcycle Mr. Burnett traded to him. Miss House stated that the appellant owned a 1954 Model K Harley Davidson motorcycle and had owned it prior to their living together.

Miss House testified that the appellant has been buying and selling automobiles and motorcycles for the past nine or ten years. She stated that within the last year she has owned several cars. She stated that, on February 29, the appellant owned a four-door solid white Oldsmobile.

On cross-examination, Miss House stated that Investigator Wood picked up the appellant for shooting some windows. She testified that, on March 15, she was working at Pasquales and had driven to work in a solid white Dodge. She said it did not have a red top or a cracked windshield and denied ever owning a car matching the above description. However, she stated that, on March 15, the appellant owned a solid white Oldsmobile which was parked in the Pasquales’ parking lot. She denied that it had a red top or cracked windshield and denied seeing a car matching that description parked there. Miss House stated that the appellant shaved his beard after February 29 but before he was arrested on March 15. She testified that he shaved it because she wanted to see how he looked without it. She testified that the appellant’s beard was dark brown in color.

Mr. Monroe Chandler testified to his arrest on February 29, 1980, for driving the appellant’s 1974 motorcycle without a driver’s license and proper tag. Mr. Chandler stated that Michael Burnett currently owns the motorcycle. The motorcycle was impounded for a period of time as the police suspected that it was stolen. He stated that, on February 29, he arrived at the appellant's house between 8:00 a. m. and 9:00 a. m. and assisted him in repairing the appellant’s 1954 motorcycle. He stated that the appellant had bought it from someone in Florida either in 1974 or 1975. Mr. Chandler testified that he and Michael Burnett and his wife were at the appellant’s house all day although they arrived after he did.

On cross-examination, Mr. Chandler stated that he did not know if the appellant had sold the 1954 motorcycle that they had worked on in February to David Butler. He stated that in February he owned a solid white Oldsmobile.

Mr. David Butler testified that he owned a black 1954 Harley Davidson motorcycle for about four years until he traded it to the appellant in March, 1980. He stated that the only person who had possessed the motorcycle during the four years he owned it was Teddy Russell who kept it for about one year when he moved. He last saw the motorcycle at the appellant’s house. The appellant traded a 1974 Harley Davidson motorcycle for his motorcycle. No cash was exchanged or bill of sale drawn. Mr. Butler painted the motorcycle red. The last time he saw the motorcycle, it was at his house dismantled. Mr. Butler testified that it was dismantled because he knew it had been stolen and the parts could be more easily hidden. He stated that he was arrested for making a false report to the police.

On cross-examination, Mr. Butler testified that the appellant had telephoned him and discussed trading motorcycles. He stated that he picked up the motorcycle at the appellant’s house one night while his wife was in the hospital. He testified that at his house a few days later, in the presence of his wife, Teddy Russell and Russell’s girl friend, the appellant and he had a conversation about the 1974 motorcycle he had received. He stated that the appellant told him that the 1974 motorcycle was stolen. Mr. Butler could not remember any other conversations with the appellant concerning the 1974 motorcycle or any discussion about any saddlebags.

On redirect, Mr. Butler testified that he took Investigator Wood to the pond where he had thrown the frame of the 1974 motorcycle, although he did not tell him that it had been stolen. He told another police officer that he had thrown the frame into the pond to dispose of it. Mr. Butler testified that the engine to the 1974 motorcycle had been on his property. He stated that he reported the 1974 motorcycle, the frame of which he had thrown into the pond, as stolen. Mr. Butler testified to his February 29 visit to his wife in the hospital. He stated that he drove his beige Chevrolet to the hospital.

The appellant took the stand and testified that, for the past ten years, he had been in the business of buying and selling automobiles and motorcycles although he had no business license to do such. He stated that he had owned a 1954 Harley Davidson motorcycle since 1975, having purchased it in Jasper. He had onee traded it to Gary Coker but repossessed it because Coker did not finish paying for it. He testified that it had been in his possession since September, 1979. The appellant stated that no other person had possessed the motorcycle. He stated that, two or three days prior to his testifying, he traded the motorcycle to Bobby Bright. In February, the appellant owned the 1954 motorcycle and a 1972 Harley Davidson motorcycle which was impounded by the police when Monroe Chandler was arrested. The appellant traded the same motorcycle to Michael Burnett. It was again impounded.

The appellant testified to Monroe Chandler’s February 29 visit to his house and Pat House’s trip to the grocery store. The appellant testified that he was home during the period of time that Miss House was shopping. He testified to Michael Burnett’s arrival at his home shortly before Miss House’s departure. The appellant denied transacting any business with David Butler and denied having any conversation with him concerning motorcycles. He denied owning a motorcycle with a white seat or saddlebags and ever seeing a Harley Davidson motorcycle so equipped. The appellant stated that there is no difference between a 1972 and 1974 model Harley Davidson motorcycle unless altered by the owner. He testified that a 1974 Harley Davidson motorcycle with stock exhaust pipe could probably be heard up to a distance of about one mile. The appellant testified that he shaved his beard around March 1st because his girl friend had never seen him clean shaven. He began to regrow it immediately thereafter. He testified that, in February, 1980, he owned a solid white Oldsmobile and had borrowed an off-white Dodge from his brother-in-law.

On cross-examination, the appellant denied helping Chris Bradford enter his apartment on February 29. The appellant recalled a March 15 conversation with Investigator Wood wherein he told, him that Miss House’s car, a white Oldsmobile, would be found parked at Pasquales. He stated that, in February, his hair would have extended beyond the base of his motorcycle helmet. The appellant denied knowing that the VIN numbers on the motorcycle which he loaned Monroe Chandler had been altered and that it had been stolen. He stated that he did not think that Michael Burnett’s wife, Nina Burnett, owned a red over white Oldsmobile and denied borrowing a car from her matching that description.

At the end of his testimony, the appellant requested a continuance until Gary Coker could be located and brought to court to testify. He stated that Mr. Coker would contradict Mr. Burnett’s testimony concerning ownership and possession of the 1954 motorcycle. The appellant had knowledge of such alleged testimony prior to trial and apparently had not subpoenaed Mr. Coker until the last day of trial. The jury had been sequestered in his trial. The trial court denied the appellant’s motion and the appellant rested.

On rebuttal, Investigator Wood testified to his March 15 conversation with the appellant concerning the location of Miss House’s car. He stated that the appellant said her car, a white Oldsmobile Cutlass, would be found in the Pasquales parking lot where she worked. Investigator Wood drove to Pasquales and found a white Cutlass with a maroon top and cracked windshield parked in the lot. A tag check revealed that the car was registered to Nina Burnett, Michael Burnett’s wife. He stated that he has not discussed this matter with her. Investigator Wood talked to Miss House about the ear. She denied any knowledge of it.

Appellant’s first insistence of error concerns itself with the failure of the trial court to warn Mrs. Butler, at his request, of her constitutional right against self-incrimination.

Outside the presence of the jury, the State informed the trial court of the substance of Mrs. Butler’s testimony and her overhearing several conversations between the appellant and her husband concerning the stolen motorcycle. The State was not opposed to the trial court informing the witness of her right against self-incrimination.

The appellant argued that her testimony might implicate both her husband’s and her participation in receiving stolen property.

Apparently, Mrs. Butler was not present during the above colloquy. It is clear that she merely witnessed and heard the conversations between her husband and the appellant. Her testimony was certainly not incriminating in any manner, form or fashion.

The privilege of a witness to refuse to incriminate himself by answering pertinent questions is personal to the witness, and cannot be claimed by or for another, including the party by or against whom he is called to testify. Warren v. State, 292 Ala. 71, 288 So.2d 826, (reversed on other grounds), Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040; Dickerson v. State, 21 Ala.App. 631, 111 So. 190. We find no error in the action of the trial court in refusing to act upon the request of the appellant.

The application of the privilege of confidential communications between spouses is applicable only in a prosecution against either spouse where a spouse is a competent witness. § 12-21-227, Code of Alabama 1975; Gamble, McElroy’s Alabama Evidence, § 103.01 (3rd ed. 1977). It is inapplicable to exclude testimony by one spouse concerning an overheard conversation between the other and a third party. Arnold v. State, Ala., 353 So.2d 524.

In connection with the above issue, the appellant asserts that the State, through its Assistant District Attorney, and the trial court, through its actions, improperly granted Mrs. Butler immunity from prosecution in exchange for her testimony.

Outside the presence of the jury, the trial court inquired of the State as to whether it planned to indict Mrs. Butler to which the Assistant District Attorney negatively replied. The trial court stated that if she was indicted, apparently for some crime evidenced by her testimony, the court would help in getting the charges dismissed.

Apparently, Mrs. Butler was not present during the above colloquy. It appears that neither the trial court nor the Assistant District Attorney made an express promise of immunity to Mrs. Butler. Moreover, her testimony at trial was not incriminating. See generally Long v. State, 86 Ala. 36, 5 So. 443; Gipson v. State, Ala.Cr.App., 375 So.2d 504, cert. denied, Ala., 375 So.2d 514 (1979); Yarber v. State, Ala.Cr.App., 375 So.2d 1212, reversed on other grounds, Ala., 375 So.2d 1229, on remand, Ala.Cr.App., 375 So.2d 1231, reversed, Ala., 375 So.2d 1231.

Appellant contends that the trial court erred in allowing the State to cross-examine him concerning whether he had shot out some windows in the vicinity of the victim’s apartment.

We note that initial inquiry into the subject was made by the State through its cross-examination of Miss House. No objection was interposed by the appellant. On his redirect examination of Miss House, the appellant further inquired into the matter. We find no error intervened here.

During his cross-examination, the appellant was asked and answered several questions concerning the shooting of some windows before his general objection to a question was made. The trial court overruled the objection stating that such had been brought out during the appellant’s direct examination. The appellant answered the question in the negative. Several questions and answers followed the objected to question with no objection being interposed to any of them.

A negative response from an accused to a question causes no injury to him. Yates v. State, Ala.Cr.App., 390 So.2d 32; 7 Alabama Digest Criminal Law 1170V2(2).

Appellant’s last contention of error centers upon the trial court’s refusal to grant him a continuance in order that he might locate a witness he had subpoenaed but who had not been served.

A motion of continuance and the denial thereof due to an insufficiency of time to locate a witness is addressed to the sound discretion of the trial court, the exercise of which will not be disturbed unless clearly abused. Fletcher v. State, 291 Ala. 67, 277 So.2d 882; Wilson v. State, Ala.Cr. App., 384 So.2d 1243; Williamson v. State, Ala.Cr.App., 370 So.2d 1054, cert. denied, Ala., 370 So.2d 1066; Rogers v. State, Ala. Cr.App., 365 So.2d 322, cert. denied, Ala., 365 So.2d 334; Hillyer v. State, Ala.Cr.App., 351 So.2d 646, cert. denied, Ala., 351 So.2d 648. A reversal of conviction because of the trial court’s refusal to grant a continuance requires “a positive demonstration of abuse of judicial discretion.” Beauregard v. State, Ala.Cr.App., 372 So.2d 37, cert. denied, Ala., 372 So.2d 44.

Counsel is expected to exercise diligence in preparing his case for trial and for procuring necessary witnesses. Godfrey v. State, Ala.Cr.App., 383 So.2d 575, cert. denied, Ala., 383 So.2d 579.

We find no abuse of the trial court’s discretion in denying the appellant’s motion for a continuance.

The evidence is clearly sufficient for the jury to have found the appellant guilty of theft of property in the first degree. § 13A-8-3(b) Code of Alabama 1975 (Supp.1979). His alibi evidence presented a jury question and the jury chose to ignore it completely.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Eugene E. RAUGHLEY v. STATE.
    6 Div. 440.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Gerald S. Topazi of Propst, Topazi & Morton, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Appellant was convicted in the District Court of Jefferson County for speeding. He appealed his conviction to the Jefferson Circuit Court where he was tried without a jury, found guilty, and fined $100.00 and costs.

The undisputed facts indicate that on August 6, 1980, at approximately 10:25 P.M., Officer Harry Stephen Lawson, a Jefferson County sheriff’s deputy, observed and followed appellant, who was travelling at speeds above the posted limit on Old Highway 280 in Jefferson County for a distance of about 1.7 miles. At one time the appellant’s speed exceeded seventy miles per hour. It was Deputy Lawson’s testimony that, “After I turned the blue lights on he continued driving into Shelby County.” Deputy Lawson followed appellant across the county line and arrested him approximately three-quarters of a mile into Shelby County.

I

Appellant argues that his conviction for speeding must be overturned because, by virtue of § 15-10-1, Code of Alabama 1975, Jefferson County Deputy Lawson had no authority to arrest him in Shelby County. We disagree.

An officer may arrest without a warrant for an offense committed in his presence. § 15-10-3, Code of Alabama 1975. It is without dispute that appellant committed the speeding offense within the presence of Deputy Lawson and within Jefferson County-

Section 15-10-4, Code of Alabama 1975, qualifies the arrest power of officers outlined in §§ 15-10-1 and 15-10-3, Code, supra, by providing the following:

“When arresting a person without a warrant, the officer must inform of his authority and the cause of arrest, except when the person is arrested in the actual commission of a public offense or on pursuit.'’ [Emphasis added.]

It is our judgment that by the addition of the phrase “or on pursuit” in § 15-10-4, Code, supra, the legislature intended to create a pursuit exception to the general rule restricting a deputy’s arrest authority to his own county. Compare Boswell v. State, 31 Ala.App. 518, 19 So.2d 94 (1944) (construing § 15-10-9, Code of Alabama 1975), to allow pursuit of an escaped arrestee across county lines).

Even assuming, however, that appellant’s arrest was illegal, his subsequent conviction is not due to be overruled. Holloway v. State, 38 Ala.App. 501, 88 So.2d 700 (1956). In Holloway, the court observed the following:

“However, admitting that the officers executing the warrant had no authority to arrest defendant outside the county without endorsement on the warrant as required by statute, the Inferior Court nevertheless acquired jurisdiction of appellant, and the fact that he may have been brought within the jurisdiction of the court after an unlawful arrest made in another jurisdiction, did not render the proceedings void in the Inferior Court.”

It is well-settled that an illegal arrest or detention does not void a subsequent conviction. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980); Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 3010-11, 61 L.Ed.2d 739 (1979) (Stewart, J., concurring); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975); Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886).

II

Appellant contends that the complaint against him was fatally defective because it omitted the designation “Jr.” from his name. This contention is without merit. The suffix “Junior” or “Jr.” is merely a matter of description and not part of a person’s legal name. Hembree v. City of Birmingham, Ala.Cr.App., 381 So.2d 664 (1980). A complaint omitting such a suffix is not subject to a plea of misnomer. Hembree, supra; Taylor v. State, 282 Ala. 567, 213 So.2d 566 (1968).

We have searched the record and have found no error prejudicial to appellant. The judgment of conviction by the Jefferson Circuit Court is therefore affirmed.

AFFIRMED.

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

BOWEN, J., concurs in result.


author: TYSON, Judge.

text:
    Lee HATCH v. STATE of Alabama.
    6 Div. 469.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.

      Rocco J. Leo, Birmingham for appellant.
    Charles A. Graddick, Atty. Gen. and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

On April 11,1980, Lee Hatch was indicted for the first degree murder of Carrie Bell Goodgame by shooting her with a pistol. The jury found Hatch “guilty as charged” and the trial court set sentence at life imprisonment.

On January 17, 1980, appellant and the victim had a brief argument in a residential “shot-house.” Appellant exited quickly and returned a few minutes later with a .22 caliber pistol saying he was going to “blow her brains out.” Two eye witnesses saw the appellant slap the victim to the floor, jump on top of her and taunt her with the gun, firing several shots in the process. Finally, after the victim got to her feet, appellant pulled her to him, put the gun to her head and pulled the trigger. The result was a fatal wound to the brain.

The only defense offered by appellant was that he was somewhat intoxicated. The jury chose to believe that Hatch had the presence of mind to leave the scene and return with a pistol with the intention of killing the victim. The jury’s verdict was “guilty as charged.”

I

The sole contention on appeal is with reference the testimony of an eye witness that she warned the appellant not to shoot the victim because he was already “on probation”.

Based purely on the facts as evidenced by the trial record, we find it very remote that such a statement had any harmful effect on the jury’s consideration as the appellant contends. Moreover, the witness’ statement was not solicited by the prosecution, but was instead, an unresponsive answer to a proper question.

A

Appellant complains that he made a Motion in Limine, prior to the trial, to have such evidence preempted, and that the trial court’s failure to rule on said motion was reversible error. He also argues that even though the trial court sustained appellant’s objection and instructed the jury to disregard the statement pertaining to appellant’s probation, the information was so highly prejudicial as to be ineradicable and, thus, grounds for reversal. We disagree with both of these contentions.

In lieu of ruling on appellant’s pretrial motion, the trial court below stated at R. 13:

“THE COURT: Well, I will attempt to only allow admissible evidence. A very fine line we will be dealing with. Should it [evidence of probation] be part of the res gestae or admissible through the defendant we may have a different matter to consider.”

In a similar case on point in response to a request for a ruling on a pretrial motion to suppress, that trial court stated:

“THE COURT: .. .
“As I say, I will have to rule on matters one at a time in this regard as they come up, and that will largely be governed by the manner in which they do come up. So I do overrule the motion at this time for a ruling on the pretrial motion, because I wouldn’t know how to rule on it.”
“THE COURT: Okay. Let me say this: I said that I wouldn’t know how to rule on it. I meant by that that I wouldn’t know how to approach it pretrial, because it may, or may not, ever arise, and I don’t know how it would arise. That is what I was trying to say.”

See Patton v. State, Ala.Cr.App., 379 So.2d 1275 (1979), cert. denied, Ala., 379 So.2d 1277 (1980).

This court ruled that there was no error in the trial court’s failure to rule on the motion. In keeping with that ruling we likewise find no error in the present case. Patton, supra.

B

As to the trial court’s actions, when the probation information was revealed, the record reflects at R. 23:

“Q. That’s what Mr. Hatch said?
“A. That’s what he said, and I went behind patting with both hands, jumped up and said, ‘Lee, please don’t kill her; you’re on probation and you got little children.’
“MR. JAFFE: Object to that.
“THE COURT: Sustain.
“MR. JAFFE: Ask that the jury disregard that.
“THE COURT: Disregard that last statement, ladies and gentlemen. It was not responsive. You are not to consider it in any manner whatsoever.
“MR. JAFFE: Respectfully move for mistrial, violation of the Fifth and Fourteenth Amendments.
“THE COURT: Overrule.”

We hold that since the trial court sustained the appellant’s objection and gave proper curative instructions to the jury, the result, in light of the particular circumstances of this case, was that the “probation information” was effectively removed from the jury’s consideration. Adair v. State, 51 Ala.App. 651, 288 So.2d 187 (1973) and cases cited therein; Retowsky v. State, Ala.Cr. App., 333 So.2d 193 (1976); Williams v. State, Ala.Cr.App., 354 So.2d 829 (1977), cert. denied, Ala., 354 So.2d 838, cert. denied, 437 U.S. 908, 98 S.Ct. 3100, 57 L.Ed.2d 1139 (1978); Ingram v. State, Ala.Cr.App., 356 So.2d 761 (1978); Earley v. State, Ala. Cr.App., 358 So.2d 494, cert. denied, Ala., 358 So.2d 501 (1978); Gipson v. State, Ala. Cr.App., 375 So.2d 504 (1978).

There being no error to reversal, this case is due to be and is, hereby affirmed.

AFFIRMED.

All the Judges concur.