author: HARRIS, Presiding Judge.

text:
    Paul Leonard MAYS v. CITY OF PRATTVILLE.
    3 Div. 338.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      Kenneth Shinbaum and W. Clarence At-keinson, Prattville, for appellant.
    Theron 0. McDowell, Jr. and J. Myron Smith, Prattville, for appellee.
   HARRIS, Presiding Judge.

Appellant was arrested on July 19, 1980, by the City of Prattville Police Department in Prattville, Alabama, and charged with driving while intoxicated. He was tried in the Municipal Court of the City of Pratt-ville on September 22, 1980, and was found guilty and fined two hundred fifty dollars ($250.00) and fourteen dollars ($14.00) in court costs. Appellant appealed to the Circuit Court of Autauga County, Alabama, for a trial de novo.

The City of Prattville filed the complaint signed by the City Attorney against appellant with the Circuit Court of Autauga County on October 1, 1980. The complaint read as follows:

“The City of Prattville, Alabama, a municipal corporation organized and existing under the laws of the State of Alabama, by its attorney, complains that, on or about the 19th day of July, 1980, within twelve months prior to the commencement of this prosecution, and within the corporate limits or the police jurisdiction of said City: Paul Leonard Mays did operate a motor vehicle upon Kerlin Drive while intoxicated in violation of Section 32-5A-191, Code of Alabama, 1975, contrary to the provisions of a valid existing ordinance of the City of Prattville, Alabama, duly adopted and ordained by the City Council of said City, prior to the commission of said act or acts, and prescribing the punishment for violations thereof.”

Appellant demurred to the complaint on the basis that § 32-5A-191 of the Code of Alabama (1975) which the complaint referred to was not in effect on July 19, 1980, and that the complaint fails to set out the provisions or the substance of the ordinance appellant was to have violated. Appellant’s demurrer was denied. He claims on appeal that denial of his demurrer was error.

Appellant entered a plea of not guilty. In a trial by jury he was found guilty and fined two hundred fifty dollars ($250.00). At the trial the City of Prattville introduced into evidence a certified copy of the ordinance which appellant allegedly violated. The relevant portion of that ordinance provides:

“Section 1. Any person or corporation committing an offense within the corporate limits of the City of Prattville, Alabama, or within the police jurisdiction thereof, which is declared by a law or laws of the State of Alabama now existing or hereafter enacted to be a misdemeanor, shall be guilty of an offense against the City of Prattville, Alabama.
“Section 7. This ordinance shall become effective on January 1, 1980.
“ADOPTED AND APPROVED THIS THE 18th DAY OF December 1979.”

The complaint attempted to charge appellant with violation of § 32-5A-191 of the Code of Alabama (1975) (1980 Cumulative Supplement) which was adopted by a City ordinance of the City of Prattville, Alabama. § 13-5A-191 was enacted as part of the Alabama Rules of the Road Act, 1980 Alabama Acts, No. 80-434, p. 604. The Alabama Rules of the Road Act became effective on the 90th day after May 19, 1980, which was August 17, 1980. When appellant was arrested, § 32-5A-191 of the Code of Alabama (1975) (1980 Cumulative Supplement) was not in effect.

Appellant contends on appeal that, because § 32-5A-191 was not in effect, it was error to deny his demurrer. In addition to enumerating § 32-5A-191, the complaint also specified that appellant “did operate a motor vehicle upon Kerlin Drive while intoxicated.” § 32-5-170 of the Code of Alabama (1975) was in effect at the time of appellant’s arrest. § 32-5-170 makes it unlawful for any person who is intoxicated to drive a motor vehicle upon any highway of the state. The elements set forth in the complaint charged appellant with violation of § 32-5-170 even though the complaint mistakenly specified § 32-5A-191.

Where the complaint sets forth full information of the nature of the offense, mis-recital of the code section does not render the complaint void if the information set forth constitutes an offense under any statute. Allen v. State, 33 Ala.App. 70, 30 So.2d 479. See: Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162. If the information in the complaint adequately informs the accused of the nature of the offense he was charged with committing, then the reference to the code section is mere surplusage.

The complaint by the City of Prattville, however, does not set forth in substance the provisions of the ordinance, nor the ordinance number or name which appellant was to have violated. The complaint only generally refers to the ordinance by the words: “... contrary to the provisions of a valid ordinance of the City of Prattville, duly adopted and ordained by the City Council of said city .... ”

In Miles v. City of Montgomery, 17 Ala.App. 15, 81 So. 351, the late Justice Brown, then Presiding Judge of the Court of Appeals, said:

“And it is well settled, unless by statute so required, courts do not take judicial notice of the ordinances and by-laws of municipal corporations.
* * * * * *
“Hence it is essential to the statement of a cause of action in cases of this character that the complainant aver, not only the facts constituting the violation, of the ordinance, but must set out the provisions of the ordinance or the substance thereof and aver that the ordinance was duly adopted and ordained prior to the commission of the offense, by the proper official board — in this case the city commissioners of the city of Montgomery — and the mere statement, as a legal conclusion, that the acts of the defendant were done ‘in violation of an ordinance’ will not suffice, in the absence of a statement of the provisions of the ordinance or the substance thereof. Rosenburg v. City of Selma, 168 Ala. [195], 198, 52 So. 742; Benjamin v. City of Montgomery, [16 Ala.App. 389] 78 So. 167; Case v. City of Mobile [30 Ala. 538] supra; Eberlin v. Mayor of Mobile, 30 Ala. [548], 550; Goldthwaite v. City Council of Montgomery, 50 Ala. [486], 487; Tomlin v. City of Birmingham, 109 Ala. [243], 245, 19 So. 521.”

In the case of Town of Lineville v. Gauntt, 20 Ala.App. 135, 136, 101 So. 154, 155, it was stated:

“A complaint for violation of a municipal ordinance must show, not only the facts constituting the violation of the ordinance but must aver the substance of the ordinance, its authoritative ordination as a rule of conduct in the municipality, and that the party charged has violated it. The mere statement that the acts done were ‘in violation of a valid ordinance’ of the municipality is not sufficient. Rosenberg v. City of Selma, 168 Ala. [195], 198, 52 So. 742; Benjamin v. City of Montgomery, 16 Ala.App. 389, 78 So. 167. “The complaint in this case omitted a sufficient averment of authorized ordination by the municipality and the substance of the ordinance assumed to have been violated, and hence charged no offense. Prosecutions for the violation of ordinances of municipal corporation are quasi criminal.
“Where a complaint in a quasi criminal prosecution fails to charge an offense, it will not support a judgment of conviction, and the only proper judgment is an acquittal of the defendant. State v. Quarles, 158 Ala. 54, 48 So. 499.”

Although the complaint refers to a statute of the State of Alabama (“... Paul Leonard Mays did operate a motor vehicle upon Kerlin Drive while intoxicated in violation of Section 32-5A-191, Code of Alabama, 1975...), the complaint was brought in the name of the City of Prattville and was signed by the City Attorney. A prosecution under a state statute on trial de novo requires that the complaint be signed by the District Attorney. § 12-22-113, Code of Alabama (1975); Williamson v. City of Greenville, 39 Ala.App. 237, 97 So.2d 600; Pearson v. City of Huntsville, 42 Ala.App. 458, 168 So.2d 24; Whitehead v. City of Russellville, 54 Ala.App. 289, 307 So.2d 94 (1975). Therefore, if the case were treated s a prosecution under the state statute, it would require a reversal.

The complaint was brought in the name of the City and signed by the City Attorney and must be treated as a prosecution under the City ordinance only. The ordinance which the City of Prattville relies upon adopts the laws of the State of Alabama. That ordinance was properly introduced into evidence at trial in the Circuit Court. The complaint, however, lacks sufficient reference either in substance or by name to the City ordinance which appellant was charged with violating. Since appellant was prosecuted under the ordinance and not the state statute, the failure to refer to the ordinance either by name or in substance makes the complaint subject to demurrer. The trial court therefore erred in overruling appellant’s demurrer.

For failure of the complaint to state an offense the judgment of conviction was a nullity. In Town of Lineville v. Gauntt, 20 Ala.App. 135, 136, 101 So. 154, 155 (1924) it was stated:

“Where a complaint in a quasi criminal prosecution fails to charge an offense, it will not support a judgment of conviction, and the only proper judgment is an acquittal of the defendant. State v. Quarles, 158 Ala. 54, 48 So. 499.”

Therefore, the judgment below must be reversed and one entered ordering that the defendant be discharged sine die. Graves v. Town of Gulf Shores, Ala.Cr.App., 371 So.2d 984; Whitehead v. City of Russellville, 54 Ala.App. 289, 307 So.2d 94; Cooper v. City of Daphne, 54 Ala.App. 555, 310 So.2d 479.

REVERSED AND RENDERED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Isaac Charles DAILEY v. STATE.
    3 Div. 366.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      William D. Melton, Evergreen, for appellant.
    Charles A. Graddick, Atty. Gen. and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

This is an appeal from a revocation of probation. The record reveals that the defendant began serving his ten year sentence for forgery in the second degree on June 26, 1979. Dailey v. State, 374 So.2d 414 (Ala.Cr.App.1979). On November 2, 1980, the Circuit Court issued the following order:

“The Defendant having moved the Court for the suspension of his sentence and the Court having duly considered said Motion, it is
“ORDERED and ADJUDGED as follows:
“(1) The sentence of the Defendant in the above styled cause is hereby suspended and the Defendant is placed on probation during his good behavior for the balance of his sentence.
“(2) The probation granted herein is subject to further Orders of this Court, if and when, the Board of Corrections places the Defendant on parole.
“(3) The Clerk is directed to send a copy of this Judgment to the Board of Corrections and the Parole Supervisor for this Circuit.”

The Circuit Court had no jurisdiction to suspend the defendant’s sentence and place him on “probation”. Section 15-22-50, Alabama Code 1975. A trial court’s authority to suspend sentence and place a person on probation terminates when that person has actually entered on service of his sentence. Ex parte Smith, 252 Ala. 415, 41 So.2d 570 (1949); Ex parte Robinson, 44 Ala.App. 469, 213 So.2d 409 (1968).

Since the Circuit Court had no jurisdiction, power or authority to order the suspension of sentence and probation of the defendant, the court’s order revoking probation is likewise without authority. Consequently, the judgments of the Circuit Court granting and revoking probation are null and void. The judgment of the Circuit Court is reversed.

REVERSED AND RENDERED.

All Judges concur.


text:
    Richard Jerome FLOWERS v. STATE.
    4 Div. 862.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      James H. Weatherford, Jr., Enterprise, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverett, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

On the afternoon of September 15, 1979, Leroy Leverette was brutally beaten to death with a shovel. The sixteen year old defendant was indicted for his first degree murder. A jury found the defendant guilty of murder in the second degree and fixed his punishment at 99 years’ imprisonment. Three issues are raised on appeal.

I

The trial judge gave very thorough and lengthy oral instructions to the jury. Defense counsel announced that he was “satisfied” with these instructions. On two separate occasions the trial judge, at the jury’s requests, repeated his instructions on the elements of first and second degree murder and first and second degree manslaughter.

The trial judge also repeated the instructions he had given on reasonable doubt at the request of a juror. However, the judge refused defense counsel’s request to also reread to the jury defendant’s written requested charge number 29 dealing with reasonable doubt. We find no error in this refusal.

Requested charge number 29 was marked given. Alabama Code 1975, Section 12-16-13, requires that given charges be taken by the jury into the jury room and, there being no evidence to the contrary, there exists the presumption that this was done in this case. Curry v. State, 23 Ala.App. 140, 122 So. 303 (1929). Because the defendant’s requested written charge was in the jury room during the deliberations of the jury, we find no error in the refusal of the trial judge to read it a second time. This was a matter within his discretion of which we have found no abuse. Parsons v. State, 251 Ala. 467, 480, 38 So.2d 209 (1948); Turner v. State, 160 Ala. 40, 47, 49 So. 828 (1909); Harper v. State, 109 Ala. 66, 70, 19 So. 901 (1895). We only add that the court should admonish the jury that the additional instructions must be regarded with all the other instructions given.

II

After the jury had begun their deliberations, they were allowed to separate for the night. When the jury returned the next day, defense counsel moved for a mistrial because four of the jurors indicated that they had read newspaper articles or “heard news” on radio or television regarding the trial. This mistrial was properly denied. Woods v. State, 367 So.2d 982 (Ala.1978). The trial judge carefully instructed the entire jury that such was not evidence and was not to be considered by them in their deliberations. The judge questioned the entire jury and determined that the news releases would not affect the jury’s verdict.

Jurors should not be permitted, while in the discharge of their duty, to read newspapers containing editorials or statements of fact pertaining to the trial calculated to affect their verdict. Leith v. State, 206 Ala. 439, 444, 90 So. 687 (1921). However, the fact that a juror has read a newspaper in which the case is discussed does not entitle the defendant to an automatic mistrial.

“Even where the jurors receive newspaper accounts of, or comments on, the case, the verdict will not be disturbed if the papers contain nothing calculated to mislead or improperly to affect their minds or to prejudice their verdict, or if the court is satisfied that none of the jurors was influenced thereby. The court is not required to discharge the jury or to reverse the verdict because of a newspaper article which, it is satisfied, the jurors have neither seen nor heard, ...”

23A C.J.S. Criminal Law, § 1364 (1961).

Here there was no showing that any jur- or had seen any prejudicial newspaper article or heard any offense news broadcast. The only indication is that some of the jurors heard or read that the jury “hadn’t finished” and would “reconvene in the morning.”

Ill

An adhesive bandage, not introduced into evidence, was found in the jury room after the jury had left the room to announce its verdict. There was absolutely no showing that any of the jurors examined this bandage or considered it in reaching their verdict.

Although the defendant did testify that at the time of the crime his finger was bandaged, this fact was of absolutely no significance to the issues in the trial of this case. We do not see how the presence of the bandage in the jury room, even if it had been observed by the jury, could have possibly or probably prejudiced the defendant. A.R.A.P. 45. Merriweather v. State, 364 So.2d 374 (Ala.Cr.App.), cert. denied, Ex parte Merriweather, 364 So.2d 377 (Ala.1978). The case of Gilliland v. State, 266 Ala. 24, 93 So.2d 745 (1957), cited by the defendant to support his argument, is distinguishable upon the facts.

We have searched the record and found no error prejudicial to the defendant’s right to a fair trial. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Billy E. MINOR v. STATE of Alabama.
    6 Div. 196.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Ronald H. Strawbridge, Vernon, for appellant.
    Charles A. Graddick, Atty. Gen. and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Billy E. Minor was indicted for the “first degree murder” of Clarence Guyton “by shooting him with a gun or pistol.” The jury found the appellant “guilty as charged” and the trial court fixed punishment at life imprisonment.

On March 24, 1979, Billy E. Minor shot Clarence Guyton with a .380 caliber pistol. Mr. Guyton was unarmed at the time.

The incident occurred during a “card game” at the trailer home of Teddy Joe and David Black. Teddy Joe Black was highly intoxicated when the shooting occurred because he and Clarence Guyton and the appellant had been “out” drinking earlier.

David Black testified that the shooting occurred just after Mr. Guyton returned to the trailer after using a nearby restroom. David had tried to hurry Mr. Guyton who exclaimed that David was not “his boss.” The appellant then jumped up, pulled his pistol and told Mr. Guyton that the pistol made him (the appellant) “the boss.” According to David Black, appellant then jumped around the table, grabbed Mr. Guy-ton around the neck, cocked the pistol and pointed it at Mr. Guyton’s head. David then left the room to go to the bathroom. Seconds later he heard a gunshot and returned to the room in. time to see Mr. Guyton fall to the floor with a fatal wound to the neck. David “slipped out” behind the appellant and called the police who later arrested the appellant.

The appellant did not deny that he shot and killed Mr. Guyton nor did he deny that Mr. Guyton was unarmed. Appellant claimed, however, that he shot in self-defense after Mr. Guyton had come toward him with his hand in his pocket. The appellant claimed that he knew Mr. Guyton’s reputation for violence and that he pulled his gun only because he thought Mr. Guyton was reaching in his pocket for a weapon. A brief skirmish followed during which the appellant shot Mr. Guyton.

The jury chose to disregard the appellant’s claim of self-defense in spite of evidence of Mr. Guyton’s (the deceased) bad character.

I

After the appellant had testified that he acted in self-defense, the prosecutor on cross-examination asked him whether or not he had a bad reputation and whether or not he had ever shot anyone else. Both questions were objected to by defense counsel because the appellant had not previously introduced evidence of his good character. Both of appellant's objections were sustained and the trial court instructed the jury to disregard the improper questions. (R. 71-73). The trial court then received no response when the trial judge asked the jurors to raise their hands if they could not put the illegal questions out of their minds.

Appellant’s sole argument on this appeal is that the questions regarding his bad character were so prejudicial that they were ineradicable by the efforts of the trial judge. He, therefore, asserts that his subsequent motion for a mistrial should have been granted. We disagree.

We need not determine whether or not the questions of the prosecutor in this instance were proper because it is the general rule in Alabama that even improper questions are rendered harmless when timely objections are made by defense counsel and sustained by the trial court, so that the witness is never allowed to answer them. Strickland v. State, 269 Ala. 573, 114 So.2d 407 (1959); Woods v. State, 344 So.2d 1225 (Ala.Cr.App.1976), cert. denied, 344 So.2d 1230 (Ala.1977); Grey v. State, 369 So.2d 889 (Ala.Cr.App.1979); Kennedy v. State, 373 So.2d 1274 (Ala.Cr.App.1979).

Moreover, where, as here, the trial court acts promptly to impress upon the jury that improper questions are to be disregarded by them in their deliberations, the prejudicial effects of such remarks are removed. Woods, supra; Brown v. State, 366 So.2d 334 (Ala.Cr.App.1978); Grey, supra. This is especially true where the jurors do not respond when asked to inform the trial court if they have been prejudiced by the improper questions. Grey, supra.

We hold that any potential prejudice in the minds of the jury, due to the alleged improper questions, was eradicated by the prompt actions of the trial judge. This case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Bertha Mae GUNN v. CITY OF BIRMINGHAM.
    6 Div. 345.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      J. Edmund Odum, Jr., Birmingham, for appellant.
    W. O. MacMahon, III, Asst. City Atty., for appellee.
   HARRIS, Presiding Judge.

Appellant was charged by five separate complaints with selling liquor without a license in violation of § 28-2 of the General Code of the City of Birmingham, Alabama. The illegal sales took place on five separate dates and each complaint corresponded with a different date. The primary offense charged was identical in each complaint. However, two of the complaints contained a second count charging appellant with selling beer without a license which count was ultimately struck by the Circuit Court. After conviction on all five counts in Municipal Court, the appellant appealed to the Circuit Court of Jefferson County. The five separate complaints were consolidated, over appellant’s objection, and tried together before a jury. Appellant’s motion to exclude the City’s evidence was denied. Separate guilty verdicts were returned for each complaint, with a separate fine assessed by the jury for each complaint. The trial court then pronounced a separate judgment and sentence on each complaint. The court, treating each complaint as a separate case, added a sentence of hard labor to each fine assessed by the jury.

The City’s case was based solely on the testimony of undercover Officer A. W. Ellis. Officer Ellis testified he had purchased one to two shots of whiskey on each occasion from the appellant. He would knock on her door, be escorted back into the kitchen, and sit at a small table where he and, on occasion, several other customers were served their shots of whiskey. The residence was a duplex, and both sides appeared to Officer Ellis to be under the appellant’s control. No actual ownership or lease of the premises was proven. Officer Ellis also testified he at no time during any of his several visits observed a City license to sell liquor displayed in the appellant’s premises. The appellant rested without presenting any testimony.

Appellant was put to trial, over her attorney’s objection, on multiple complaints charging five distinct and separate crimes which occurred on five separate occasions ranging over a period of several months in two different years, 1979 and 1980. Appellant argues that the trial court erred to reversal in allowing appellant to be put to trial on multiple complaints over her attorney’s objection to consolidation.

A defendant in this state may not be put to trial on multiple indictments without his express agreement and consent, unless he fails to object. Hopkins v. State, 54 Ala.App. 75, 304 So.2d 629 (1974). The complaints by which appellant was brought to trial in the instant case were in the nature of indictments, differing only in that they were presented by a public officer (a City Attorney) upon his oath of office, rather than by a grand jury on their oath. See Code of Alabama 1975 § 15-7-1, § 15-8-1. The term complaint, used in this sense, is synonymous with the term information, and is an economical, convenient, and speedy aid to the administration of justice which omits the necessity of a grand jury indictment. Ex parte State, 71 Ala. 371 (1882); see Black’s Law Dictionary, 4th Edition Revised, 1968, Complaint, Information defined. The Constitution of Alabama of 1901 Art. I § 8, (amendment #37), makes specific provisions for the omission of grand jury indictments in the prosecution and proceedings in certain well defined situations. Accordingly, Alabama cases have treated complaints of this nature much the same as if they were indictments and have applied the substantive laws of each interchangeably. See, Mitchell v. State, 41 Ala.App. 254, 130 So.2d 198, cert. denied, 272 Ala. 707, 130 So.2d 205 (1961); Anderton v. State, Ala.Cr.App., 390 So.2d 1083, cert. denied 390 So.2d 1087 (Ala.1980); Hembree v. City of Birmingham, Ala.Cr.App., 381 So.2d 664 (1980).

We are of the opinion that the rule of law applied to consolidation of multiple indictments over a defendant’s objection is applicable to the multiple complaints in the instant case. The record reveals that the. five separate complaints do not treat the offenses as one continuous crime, but rather as five separate illegal criminal sales. See Gamble, McElroy’s Alabama Evidence, 1977, § 7Q.01(14)(a)(b). The judge in his charge to the jury described the cases as separate cases entirely which were tried together only to expedite matters and save money. The jury’s five separate verdicts and the judge’s sentencing hearing likewise treated the complaints as separate cases. We are constrained to hold that the appellant was entitled to a separate trial on each complaint, such being necessitated by the form and substance of the complaints brought before the trial court. These complaints are to be distinguished from one indictment charging multiple misdemeanors. Boatner v. State, 8 Ala.App. 361, 63 So. 33 (1913). The rights of the defendant, who upon conviction may be sentenced to fines or hard labor, cannot be sacrificed merely to promote a more rapid and economic dispensation of trial court dockets. Ex parte Beard, 246 Ala. 338, 20 So.2d 721 (1945).

The trial court erred in consolidating the five cases over the objection of the appellant. Because the case must be reversed on this issue, we pretermit discussion of other substantive issues. However, to avoid future error, we urge the trial judges of this state to refer to those statutory provisions of the new criminal code which have changed sentencing authority before charging the jury in new code cases in order to assure the use of the proper sentencing authority in the handling of those cases.

For the error noted this case is reversed and remanded. .

REVERSED AND REMANDED.

All the Judges concur.


text:
    Wayne Cameron HURST v. STATE.
    6 Div. 536.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      James M. Scroggins, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Jefferson County returned an indictment against the appellant, Wayne Cameron Hurst, charging him in count one with theft of property in the first degree; in count two with receiving stolen property in the first degree; in count three with burglary in the third degree. The appellant entered a plea of not guilty. A jury found the appellant guilty of theft in the first degree as charged in the indictment. The appellant being a habitual offender was duly sentenced to be imprisoned in the penitentiary for a term of life, and appeals to this Court.

Appellant was represented at all proceedings in the trial court, and in this Court, by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief four reasons why his conviction should be reversed; first, that the trial court denied appellant’s motion for a value appraisal at state’s expenses; second, the trial court erred in admitting into evidence state’s exhibit one, a photograph of jewelry and items of silverware described in the indictment; third, the trial court erred in its oral charge to the jury; fourth, that the verdict of theft, first degree, was contrary to the evidence, and contrary to the law as charged to the jury by the court.

State’s evidence tended to prove: That on May 6, 1980 Mrs. Nancy Miller Crawford, a schoolteacher, lived at 1915 Charlotte Circle, Fultondale, in Jefferson County, Alabama; that after locking her home, she left about seven-fifteen or seven-thirty, A. M.; that Mrs. Crawford and her little three-year-old girl were the only persons in her home just before they left; that the doors and windows of her home were locked when she left; that she is familiar with all the items alleged in the indictment to have been taken from her home in this case, and they were all locked up in her home when she left; that when she returned to her home at about three-thirty that afternoon, her gold bracelet, gold wedding band, gold bead necklace, class ring, four silver tablespoons, two silver dinner forks, one silver meat fork, two silver salad forks, one silver teaspoon, one silver demitasse spoon, and one silver gravy ladle were gone from her home. That they were all of the items described in the indictment, and were of the value of $2,300.00.

State’s evidence further tended to prove that on the 7th day of May, 1980 Mrs. Crawford, after receiving a telephone call while she was at school, went down to the Title Book Store where she met Mr. Herman Moore for the first time, and made a positive identification of each article that had been removed from her home without her permission; Mrs. Crawford was shown state’s exhibit number one, and testified that it was a photograph that truly and accurately shows each item taken from her home as when she next saw them after they were removed from her home. That the police took custody of the items, and returned them all to Mrs. Crawford in August when she moved to Knoxville, Tennessee; that she now has all the items, and they are at her home in Knoxville, Tennessee.

State’s evidence further tended to prove that on the 6th day of May, 1980 Mr. Herman Moore was President of Title Book Company situated at 3013 Second Avenue, South, Birmingham, Jefferson County, Alabama, and was engaged in the business of buying gold and silver. That he knew the appellant; that about eleven, A. M. on May 6, 1980 the appellant brought in the articles described in the indictment, and that Mr. Moore classified them as junk jewelry and silverware, evaluated them, and weighed up the silver and gold, and paid the appellant, in cash, $292.00 for them. That the next day, the 7th of May, 1980, Sergeant Cole and Officer Short went to Mr. Moore’s place of business, and showed him a picture of the appellant, and Mr. Moore identified him as the person who brought the articles described in the indictment in and sold them to him; that Mr. Moore turned the articles he had bought from appellant on May 6, 1980 over to the officers. That Mr. Moore knew the appellant, and had bought merchandise from him before on four or five different occasions. That Mrs. Crawford came to Mr. Moore’s place of business while Officer Short and Sergeant Cole were there, and was able to, and did, identify her property for Mr. Moore and the officers.

State’s evidence further tended to prove that on May 7, 1980 Sergeant W. E. Cole was employed by Fultondale Police Department; that he was involved in the investigation of a breaking and theft from the home of Mrs. Crawford; that state’s exhibit one is a picture of the items that were recovered from the Book Store, and also identified by Mrs. Crawford as being her property, and were later turned over to her by Sergeant Cole; that on the 7th day of May, 1980 he talked with the appellant on two occasions; that after proper predicates were laid on each occasion, the first being about eleven, A. M., the appellant stated that he knew nothing at all about the matter. At a conversation held about two P. M. appellant stated that there was no one with him when he broke into the home of Mrs. Crawford; that he was the one that sold the stuff to Mr. Herman Moore; that the appellant refused to sign anything. The state rested. The appellant moved to exclude the state’s evidence on the basis that it failed to make out a prima facie case on either count of the indictment. This motion was overruled. The state moved to strike counts two and three. Appellant offered no evidence on his behalf, and rested his case. Counts two and three were withdrawn from the consideration of the jury, and only count one of the indictment was submitted to the jury for its consideration.

The first error complained of by the appellant is that the trial court refused to grant his motion for a value appraisal of the items described in the indictment. Appellant made a pre-trial motion stating that he was arraigned on a three-count indictment alleging violation of Title 13A-8-3, 13A-8-17, and 13A-8-43. That in counts one and two the value of the property taken was alleged. That appellant was determined to be an indigent, and counsel was appointed for him, and that appellant was without funds to hire an expert appraiser to aid him in his defense. Appellant asked that the court allow him to hire an expert appraiser at state’s expense.

The Alabama law for the defense of indigents, Code Of Alabama, 1975, Chapter 12, Sec. 15-12-1 to Sec. 15-12-46 provides no statutory authority to provide funds for an expert appraiser for a defendant charged with theft of property. This is a matter for the legislative branch of our Government. We hold that the trial court did not err when it denied appellant’s motion for an expert appraisal of the items described in the indictment at the expense of the state. Tillis v. State, 292 Ala. 521, 296 So.2d 892; Brown v. State, Ala.Cr.App., 392 So.2d 1248; Certiorari Denied, Ala., 392 So.2d 1266; Thigpen v. State, Ala.Cr.App., 372 So.2d 385; Certiorari Denied, Ala., 372 So.2d 387.

The second contention of appellant is that the trial court allowed state’s exhibit one to be introduced over his objection. The ground of appellant’s objection to the exhibit was that it was not the best evidence. A photograph is properly admissible in evidence if it is properly verified by a person who is familiar with the subjects of the photograph, and it tends to prove, or disprove, some other evidence offered in the case. Mrs. Crawford testified what items were taken from her home, she identified the items for Mr. Moore, and for the police, and she testified that state’s exhibit one truly and accurately showed each item as when she next saw them after they were removed from her home. That their value was $2,300.00. Mr. Moore testified the jewelry and silverware was classified as junk, and he paid $292.00 for it. A proper picture of the articles taken would shed light on their value, and on evidence given by Mrs. Crawford and Mr. Moore and assist the jury in arriving at the truth of the matter. We hold that the trial court properly admitted state’s exhibit one into evidence. Crane v. State, 55 Ala.App. 619, 318 So.2d 315; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Moore v. State, 50 Ala.App. 616, 282 So.2d 56; Reaves v. State, 47 Ala.App. 386, 255 So.2d 55; Shields v. State, 52 Ala.App. 690, 296 So.2d 786.

The third contention of the appellant is that the trial court erred in its oral charge to the jury. Objections to an oral charge, or to a part of the trial judge’s oral charge, should set out the particular parts which are objectionable, and not merely refer to the charge on a particular subject. The objection of the appellant to the court’s oral charge is stated in the record, as follows: “Your Honor, I want to object to that portion of the Court’s charge where the Court indicated that the monogramming of the silver cannot be determined market value.” The foregoing objection to a part of the judge’s oral charge to the jury presents nothing to this Court for review. Alabama Power Company v. Smith, 273 Ala. 509, 142 So.2d 228; Shields v. State, supra.

The sufficiency of the evidence to make out a case of theft of property in the first degree is properly raised by the appellant. The evidence in this record sustains the jury verdict of guilty of theft in the first degree. The evidence tended to prove: That Mrs. Crawford was the owner, and in possession, of the gold jewelry and silverware when it was taken from her home without her consent; that its value was $2,300.00 when it was taken; that the appellant had possession of it, and sold it to Mr. Moore as junk jewelry and silverware for $292.00 in cash. That the police recovered the jewelry and silverware, and returned it to Mrs. Crawford. The question of its value, and the appellant’s guilt was for the jury. Code of Alabama, 1975, Title 13A-8-l(7), 13A-8-3(a), Ala.Cr.App., 395 So.2d 1128.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Ricky Wayne BLACK v. STATE.
    7 Div. 835.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Grant A. Paris, Jacksonville, for appellant.
    Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence on a plea of guilty to an indictment charging defendant with the crime of escape in the first degree defined and made a Class B felony by Code of Alabama 1975, § 13A-10-31. The punishment for a Class B felony is “not more than 20 years or less than 2 years.” § 13A-5-6.

Before accepting the plea of guilty, the court thoroughly questioned the defendant and the attorney who represented him and fully apprised the defendant of all of his constitutional rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A guilty plea, intelligently, voluntarily and understanding^ entered by an accused, waives all non-jurisdictional defects. Lancaster v. State, Ala.Cr.App., 362 So.2d 271 (1978), cert. denied, Ala., 362 So.2d 272; Mack v. State, 51 Ala.App. 611, 288 So.2d 150 (1974). Defendant had previously entered a plea of not guilty, but he made it clear to the court that he was voluntarily, intelligently and understandingly withdrawing the previous plea and entering a plea of guilty, which the court permitted him to do. We have no doubt the proceedings preliminary to the entry of the judgment of conviction and sentence met all constitutional and legal requirements and that the judgment appealed from is valid. There is no contention to the contrary. If there were nothing involved other than that which has been stated, we think there would be no need for an opinion and that the judgment of the trial court should be affirmed without an opinion.

That which prompts us to render this brief opinion is a copy of a letter from defendant to the trial judge, which is now in the transcript before us, filed with the Clerk of the Circuit Court within thirty days after the sentence, in which he requests reconsideration of the punishment imposed by the court and states inter alia, “The only reason I plead guilty in the first place is that I was threatened with life without parole by the District Attorney’s office.”

The court sentenced defendant to imprisonment for twenty years, which is the maximum provided for punishment for the crime charged in the instant case, a Class B felony. § 13A-5-6(a)(2).

In justice to the District Attorney’s office and in explanation to appellant and anyone else concerned, we attempt this explanation, which should disabuse appellant’s mind of any notion that he has been mistreated.

The transcript before us shows that prior to the sentence hearing, the State had given defendant written notice that it would proceed against him under the Habitual Felony Offenders Act (Code 1975, § 13A-5-9), and the State contended therein that defendant had been previously convicted of more than three felonies. At the sentencing hearing, the State withdrew its motion to proceed under the Habitual Felony Offenders Act. Under that Act, if it had been proved that defendant had been previously convicted of three felonies, the court would have found it necessary to sentence him to “imprisonment for life without parole,” for § 13A-5-9(c) provides:

“In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions he committed another felony, he must be punished as follows:
“(1) • • ■
“(2) • • •
“(3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole.”

We are of the opinion that whatever information defendant and his attorney received from the District Attorney’s office as to the possible subjection by defendant to a sentence of life imprisonment without parole was not in the nature of a threat that would tend to nullify or adversely affect the validity and acceptability of defendant’s plea of guilty that otherwise, as we have stated, was voluntarily, intelligently and understanding^ entered.

Without the benefit of an understanding of all that transpired between the parties and their respective attorneys and in the absence of any point made by either party as to the action of the State in filing and thereafter withdrawing a motion to proceed under the Habitual Felony Offenders Act, we express no opinion as to what occurred in connection therewith.

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.


text:
    Annie Pride WHERRY v. STATE.
    8 Div. 290.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      Susan L. Cloud of Cloud & Cloud, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of second degree murder for the pistol slaying of her husband and was sentenced to forty years’ imprisonment in the State penitentiary. Appellant pleaded not guilty and not guilty by reason of insanity at arraignment in the presence of counsel. Upon being sentenced appellant gave oral notice of appeal. She also filed a motion for new trial which was subsequently denied. Appellant has been furnished with appointed counsel, her trial counsel, and has been provided with a free transcript on this appeal.

The State’s evidence was sufficient to prove beyond any reasonable doubt that appellant murdered her husband by shooting him with a pistol. Testimony by State witnesses established that appellant left her place of employment at Redstone Arsenal in Huntsville around 10:00 a. m. on Thursday, September 28, 1978, for a “doctor’s appointment” after obtaining permission from her supervisor, Mr. O. C. Ashworth. Appellant was “quite calm” at the time. Around 10:30 a. m. appellant and the deceased arrived at the office of Anthony H. Capowski, a psychiatric social worker, whom they had seen the previous two Thursdays for “family problems”.

According to Mr. Capowski and other witnesses, appellant suspected that the deceased was being unfaithful to her and was attempting to poison her. Mr. Capowski stated that there were “areas of irrationality in her,” but that there “were a lot of places where she was rational.” Specifically, appellant had associated certain colors with particular emotions, such as the color red being an indication the deceased “wanted to fight.” Appellant and the deceased left Mr. Capowski’s office at 11:30 a. m. In his opinion, appellant was not psychotic when she left.

A neighbor of the appellant and the deceased saw appellant “coming out of her house going towards the car” at 12:00 noon. The neighbor heard the deceased “talking loud” as appellant walked to the car. Appellant called Versie Cole, her minister’s wife, at 12:45 p. m. to pick up her son from school that afternoon. Mrs. Cole stated that that was the only telephone conversation she had ever had with appellant.

Appellant returned to work later that afternoon and sat at her desk with a wet paper towel on her forehead. She told a co-worker that her appointment “didn’t go so good, before it was all over my husband got mixed up in it and everything ended up in a big mess.” Appellant had asked another co-worker three days earlier whether “they still have the death penalty in Alabama? ... I need to find out about that.”

Around 3:00 that afternoon, in the presence of several eyewitnesses, appellant entered Mr. Ashworth’s office and shot him with her pistol. Appellant had previously filed a formal complaint charging him and several other men in the office with sexual misconduct. The allegations were later determined to have no foundation. Testimony regarding these charges revealed that appellant had made the allegations in a ploy to obtain a promotion which was undeserved. After shooting Mr. Ashworth appellant was asked did she want someone notified. Her response was, “Yes, you can call my mother in Decatur, she’s my next of kin now.” She gave her mother’s telephone number from memory.

The deceased’s body was discovered by his sister at his and appellant’s house after appellant had been arrested for shooting Mr. Ashworth. Appellant subsequently confessed to Huntsville Police that she had shot the deceased, but that she had fired in self-defense.

During the course of the trial, there was considerable testimony concerning appellant’s mental condition. Evidence was presented by expert and lay witnesses on behalf of the State and the defense as to the appellant’s sanity at the time of the commission of the crime. Without setting out the testimony of each witness, it is sufficient to say there was a conflict in the evidence. We find, however, that the testimony of the witnesses for the appellant did not constitute a “preponderance of the evidence” that appellant was legally insane at the time of the commission of the crime. In order to overcome the presumption of sanity, the appellant must prove by a preponderance of the evidence that she was in fact insane when the crime was committed. Christian v. State, 351 So.2d 623 (Ala.1977); Jerome Vincent Berard v. State, Ala.Cr.App., 401 So.2d 1044, [1980]; Woods v. State, Ala.Cr.App., 364 So.2d 1178, cert. denied, 364 So.2d 1186 (Ala.1978). The determination against appellant of that issue was clearly within the province of the jury and was fully supported by the State’s evidence.

Appellant’s primary contention on appeal is that the State during closing argument impermissibly commented on her failure to testify. For the sake of clarity those portions of the argument that are referred to are here set out in their entirety:

“MR. SIMPSON: They made reference after reference about what went on during the break, something was said out here, a question about didn’t I see you and some other gentlemen going to the bathroom and you all were talking together. They bring this defendant here and here she sits, quietly, calmly, never says — move, her head or nothing, with her head down.
“MR. CLOUD: We object to that.
“THE COURT: Overruled.
“MR. CLOUD: We except.
******
“MR. SIMPSON: And what is that supposed to show, that she is totally insane during this minute at this trial, that she can’t talk, that she doesn’t have any personality, that she is not normal, but during the break, she gets up and goes over here with her friends and her family and talks to them and carries on a normal life. And why the rhubarb of sitting here in the trial in this condition and act like she is not even competent enough to speak to her family and do it outside the presence of the jury. And who is playing games with who in a trial of this nature, as if I dreamed up for my own personal benefit that a citizen is dead in this community.
“MR. CLOUD: If the Court please, we object to the comments and statements made by the District Attorney about the defendant.
“THE COURT: Overruled.
“MR. CLOUD: We except.”

It is a basic principle of law that once á defendant chooses not to testify at his trial the exercise of that choice is not subject to comment by the prosecution. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Unless this principle is observed with the strictest of scrutiny this court has no alternative but to reverse and remand an accused’s conviction. Qualls v. State, Ala.Cr.App., 371 So.2d 949, cert. denied, 371 So.2d 951 (Ala.1979); Lamberth v. State, 54 Ala.App. 233, 307 So.2d 43 (1975).

Appellant in this case relies on Hall v. State, 364 So.2d 866, 867 (Fla.App.1978), where a reversal was mandated because of a prosecutor’s remark during closing argument that the defendant was “sitting over here quietly.” (Emphasis added) However, it must be pointed out that in Hall, supra, there is no indication in the opinion that the defendant was relying on the defense of insanity. Furthermore, in Hall, supra, the prosecutor’s remark could have been made for no other reason but to draw attention to the defendant’s failure to testify. The facts in the case at bar are distinguishable.

The conduct of the accused or the accused’s demeanor during the trial is a proper subject of comment. Brothers v. State, 236 Ala. 448, 183 So. 433 (1938). In Brothers, supra, a case not unlike the instant case, the defendant pleaded not guilty and not guilty by reason of insanity. There, our Supreme Court, speaking through Justice Bouldin, wrote:

“The argument ‘The defendant was sitting around looking at the floor and faking insanity,’ is challenged on the ground that it invades the constitutional guarantee against compelling one to be a witness against himself, and the statutory inhibitions against comment on the failure of the defendant to testify.
“Whether the defendant was faking insanity was a primary inquiry in the case. If, instead of taking the stand, he was seeking to make evidence for himself by his demeanor before the jury, this was the legitimate subject of comment.
“The trial court was in position to see whether this line of argument was within the rule that counsel may draw any inference which the facts tend to support. The conduct of accused during trial is a proper subject of comment. 1 Thompson on Trials § 989; Inman v. State, 72 Ga. 269, 277, 278.”

On review of these portions of the prosecutor’s argument which have been preserved for our consideration, we cannot say that the District Attorney’s comments were made to draw attention to appellant’s failure to testify. In light of the principles stated in Brothers, supra, we hold that the District Attorney’s remarks were references to the accused’s demeanor during trial and were, thus, a proper subject of comment.

Appellant next argues that reversible error occurred during the following testimony by State rebuttal witness B. J. Nea-ley:

“Q. All right, and could you tell us what, when a person is on leave from South Central, what benefits they have, if they’re just on leave from the company?
“MR. CLOUD: We object to that, there’s no probative value on this case, the benefits of any person on leave from South Central Bell.
“MR. SIMPSON: We expect to tie it up, Your Honor.
“THE COURT: Overruled.
“A. She’s considered to still be employed by the company and one thing she gets is a 40% concession on her telephone service while she’s on maternity leave until she returns.”

Mr. Nealey had previously testified without objection that appellant had been employed by South Central Bell from July of 1973 until June of 1974 and that, during her employment, she had requested an extension of maternity leave after her baby was born and after she had requested to come back to work. Mr. Nealey also testified without objection that appellant never came back to work for South Central Bell, that she was terminated from the company after an investigation revealed that she was working at Redstone Arsenal. Mr. Nealey stated that appellant, while on maternity leave, became employed with the United States Army without notifying South Central Bell.

On appeal appellant contends that the testimony proffered over her objection was an attack on her character where she had not placed her character at issue. We disagree with appellant’s argument.

In the first instance, the trial court’s overruling of appellant’s objection to the State’s examination of Mr. Nealey must be considered harmless error at most. A.R. A.P., Rule 45. What benefits a person might have from South Central Bell while on leave from that company can in no way be interpreted as an attack on that person’s good character. Any question of remoteness, which appellant attempts to raise in brief, or any question which might be interpreted as an attack on her character was not objected to at trial. Thus, no error in that regard was preserved for review.

In addition, as is stated in Brothers, supra, “It has become a maxim of the law that in cases where insanity is relied upon as a defense, ‘Every act of the party’s life is relevant to the issue.’ ” 183 So., at 435, and authorities cited therein. As was stated by our Supreme Court in Parvin v. State, 248 Ala. 74, 26 So.2d 573, 574 (1946):

“On the issue of insanity, proof of the acts, conduct and declarations of the accused is not confined to those at the time of the crime, but includes previous and subsequent ones, as well, which have a tendency to shed light on his state of mind when the act was committed.”

In the case at bar appellant attempted to show through various defense witnesses that she had become insane over a period of time. The fact that she had been calculating and manipulative, if not dishonest, in her employment relationships at Red-stone Arsenal and earlier at South Central Bell was evidence tending to refute her plea of insanity and was relevant, at least, in placing fixed dates on which she clearly was not insane. This was not an attempt by the State as in Watts v. State, 282 Ala. 245, 210 So.2d 805 (1968), to introduce prior convictions of the appellant. In short, we hold that the evidence of which appellant complains was properly admissible.

In addressing appellant’s final issue, case law makes clear that the procedure outlined in Ala.Code § 15-16-21 (1975) is not the only way the competency of an accused to stand trial may be determined. Seibold v. Daniels, 337 F.Supp. 210 (M.D. Ala. 1972); Atwell v. State, Ala.Cr.App., 354 So.2d 30, cert. denied, 354 So.2d 39 (Ala.1978). We see no reason to here restate the alternative methods set out in those opinions, which a trial court has available for determining an accused’s competency. Suffice it to say that in the instant case the trial court followed an alternative method from Section 15-16-21, Code 1975, in conformity with Atwell, supra. Appellant was examined by a team of experts, including a psychiatrist, at Bryce Hospital and was found to be competent to stand trial.

And for the same reasons outlined in Atwell, supra, we hold that the trial court did not abuse its discretion in failing to initiate a second inquiry into the question of appellant’s competency to stand trial. We find that the requirements of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), were fully complied with.

We have considered each issue raised by appellant. In addition, we have searched the record, as required by law, for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    William Wyeth CRAFT v. STATE.
    8 Div. 450.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    John F. Porter, III, of Livingston, Porter & Paulk, Scottsboro, for appellant.
    Charles A. Graddick, Atty. Gen., and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Grand Jury of Jackson County for the murder of John David Robinson. After entering a plea of not guilty, appellant was tried before a jury and found guilty. The trial court sentenced the appellant to fifty years’ imprisonment in the State penitentiary. Appellant subsequently filed a motion for new trial. The motion was denied and this appeal followed.

Aneva Robinson, the deceased’s mother, testified she lived in “the hill” area of Scottsboro. She stated she observed her son, John David Robinson, at the funeral home and that he was deceased.

Keith Smith, a Captain with the Scotts-boro Police Department, testified concerning a diagram he made of the area surrounding the scene of the murder. Captain Smith stated the murder occurred in an area of project house duplexes, where the appellant’s wife resided. The diagram indicated the location of the victim’s body, duplex houses, and vehicles on the street at the scene.

Witness Chester Lee Cox testified the deceased and appellant lived in neighboring houses on Joe Boulevard in Scottsboro, a short distance from the project. Cox stated he was at his home on the evening of May 12, 1980, at 1113 Houston Street, across the street some fifty feet from the residence of the appellant’s wife. He was standing in his front yard at approximately 5:30 p. m. when he observed Buddy Craft, appellant’s brother, drive up to the Craft residence. Buddy and the appellant talked for a while. They each obtained a “long gun,” and then crouched between the Craft brothers’ two automobiles which were parked end to end on the street. They used the vehicles as shields for protection as they rested their guns on the hoods. Cox stated he saw both men fire several times that day. He heard no other shots before the Craft brothers began firing. After the shooting, Cox stated he went around to see what the Crafts were shooting at and saw the deceased lying on the ground. Cox stated he saw no weapons around the area of the deceased.

James Albert Dillard was on the porch of a neighboring residence the afternoon of the murder and observed the deceased driving his pickup truck with his two-year old child as a passenger. As the deceased drove down the road toward the project, the witness heard gunshots and observed gunshots hit the deceased’s moving vehicle. The deceased then stopped the truck and opened the door. Shots began to enter the truck and the deceased pushed the child down to the floorboard, jumped from the truck and ran. The shooting continued as he fell, got up, and ran and fell again as he tried to escape. The witness first observed the appellant and his brother as they came up tp the deceased and shot him again as he lay on the ground. The appellant and his brother then fled across the street. The witness testified he saw the appellant shoot the shotgun the afternoon of the murder and that five or six shots were fired. He testified further that he saw no weapon in the hands of the deceased.

Martha Fay Grayson testified she lived directly across the street from the appellant’s wife. She was sitting on her front porch the afternoon of the shooting and observed the appellant walking up the street with a gun on his shoulder. She saw the appellant’s brother drive up in his car and park in front of the appellant’s car. The appellant turned around and walked toward his brother, who was also carrying a gun. Mrs. Grayson heard the appellant shout to his wife, “Get my kids inside; I’m going to do some shooting.” As Mrs. Gray-son was in the process of calling the police, she heard gunshots. She observed the appellant’s brother stooped down between two automobiles aiming a rifle. After the shots, she heard screaming. She ran to the door and saw the deceased lying on the ground. Immediately after the shooting, she saw appellant’s brother leave in his automobile.

Keith Smith, Captain of the Scottsboro Police Department, testified as to the position of the Craft brothers’ vehicles. He also observed dents from 00 buckshot in the deceased’s vehicle and the area surrounding the scene of the crime. Captain Smith identified photographs he had taken of the deceased at the Jackson County Hospital emergency room, which were admitted into evidence over the appellant’s objection.

Captain Smith testified out of the presence of the jury that he had advised the appellant of his constitutional rights, both orally and in writing, at the police station after the appellant was taken into custody. The appellant gave an oral statement, which Captain Smith took down in longhand. After the statement was typed the following day, the appellant read and signed it.

Appellant testified on voir dire that Captain Smith did not read his rights to him the night he made the oral statement. He did recall Smith reading him his rights when Smith returned the following day. The trial judge, however, found the statements made by the appellant to have been voluntarily made and proper for the jury to consider. The appellant’s statement appears in the record as follows:

“He stated he was laying on the couch at 1106 North Houston Street when his three kids ran in and said John David is killing your dog. He stated he told the kids to go on back up there and get the dog off of him before they kill him. This happened about 5:30 p. m. He stated he stayed there and his wife told him, ‘Don’t go up there honey, you know how it will be.’ He stated he then went out in the yard because he was afraid John David might shoot one of the kids. He stated he went out close to the car so to be near his gun. John David drove down the road in a blue truck. He looked over at Craft, stopped the truck and started running toward Craft. He had a gun or something in his hand. He stated he emptied his shotgun at John David. He stated he didn’t take his sights off him until the gun was empty. He stated his brother, Buddy Craft, said, ‘You’ve done killed him, you shouldn’t have done it.’ Buddy took the gun.”

Captain Smith testified appellant identified a .12 gauge shotgun as one which belonged to him and as the same gun with which he shot the deceased. Wadding and shells found by Captain Smith at the scene indicated that both a .12 and a .16 gauge shotgun had been fired.

Joseph Embry, a forensic pathologist for the State, testified he examined the deceased on May 14 and that the deceased had eleven shotgun wounds from the top of his head to the sole of his foot. He stated the cause of death was multiple gunshot wounds.

Keith Smith, on being recalled, testified a shotgun belonging to the deceased’s grandfather was found between the deceased’s body and his vehicle by Officer Truman Dawson. Also a .38 caliber pistol was found on the truck seat of the deceased’s vehicle. Neither gun had been fired.

Officers John Childress and Truman Dawson testified concerning their on-the-scene investigation and corroborated the testimony of Captain Smith, after which the State rested its case. The appellant moved for a directed verdict on the grounds the State failed to prove a prima facie case of an intentional killing. The defense also moved to exclude the State’s evidence. The trial court denied both motions.

Charlie Noble, the appellant’s sixteen year old stepson, testified he was at his mother’s house on the afternoon the shooting occurred. His father was there, also, lying on the couch. A neighbor called and said the Crafts’ dogs were fighting with the deceased’s dogs up at his stepfather’s house. Charlie and his two brothers went to break up the fight. He observed the deceased standing in his stepfather’s yard holding a gun. As Charlie was tying up the dogs, after the fight was broken up, he heard gunshots and fell to the ground. He returned to his mother’s house after the shooting stopped, where he saw his stepfather, William Craft, and uncle, Buddy Craft.

Wilson Junior Cothron, thirteen year old stepson of the appellant, corroborated Charlie Nobles’s testimony. He stated he did see his stepfather with a gun on that occasion, but did not see the shooting.

Ann Craft, the appellant’s wife, testified she saw her husband bending down by his automobile in front of her house the evening of the shooting. He had a gun and she saw him fire it. As the shooting started she saw Buddy Craft run and get her daughter to bring her into the house. Mrs. Craft also testified she saw the deceased’s truck come down the hill toward her house. The deceased jumped out of his truck and ran towards the project holding a shotgun. She stated he appeared to aim the gun to fire as he ran, while her husband, the appellant, shot at him.

Mrs. Craft testified that the Saturday before the shooting occurred she was with her husband in his truck parked at the culvert located between the appellant’s and the deceased’s houses. She stated the deceased ran into his house, and the appellant told her to jump out of the car. A shot came from inside the Robinson house and her husband was struck. Her husband was also armed with a rifle. She took her husband to the emergency room, where he was treated and released.

Mrs. Craft further testified that the appellant’s brother, Buddy Craft, did not arrive at the scene until after the shooting began. He fired no shots, nor did he have a gun.

Buddy Craft, the appellant’s twenty-one year old brother, testified the first thing he saw when he arrived at the scene was the deceased jumping out of his truck with a gun. The witness stated he grabbed his brother’s little girl and ran towards the house. He heard some shots as he ran with the girl, but could not see the actual shooting. Craft stated he did not have a gun, nor did he fire a shot that day.

William Craft, the appellant, took the stand to testify in his own defense. He stated he received shotgun wounds in his arms, forehead, and chest in an altercation with the deceased the Saturday before the shooting on Monday. The altercation arose over the relocation of a culvert tile between the homes of the appellant and the deceased. He stated the deceased fired twice at him from inside his house, after which the appellant then got his rifle and fired three times toward the deceased.

The appellant testified that, on Monday morning of the day the fatal shooting occurred, the deceased drove by in an automobile and shouted at him, “That’s all you can do is set on that porch bandaged up.” The defendant stated he turned and walked back into the house upon hearing that statement.

The appellant recalled a dog fight occurring the Monday afternoon of the fatal shooting. He stated he went out into his wife’s yard where he saw. the deceased standing in his yard and the dogs fighting. He saw a long gun in the hands of the deceased. The deceased arrived at the house of the appellant’s wife shortly thereafter and got out of his truck with a gun. He approached the appellant, got into a crouched position, and fired the gun. The appellant then reached into his car, got his automatic shotgun, and fired it until it was empty. Appellant also stated his brother, Buddy Craft, did not have a gun and did no shooting that day.

After recalling Captain Smith for the purposes of introducing into evidence the pistol found in the deceased’s truck, the defense rested.

Hugh Denny Carter, called by the State on rebuttal, testified that he was present at the Saturday morning altercation between appellant and the deceased. He stated that the appellant arrived on the scene in his automobile, with his wife, and exited the vehicle with rifle in hand. The deceased asked appellant to put down the gun and settle the matter. Appellant responded with a profane refusal to put down the rifle and began firing. The deceased was unarmed at the time the witness observed the scene. The witness fled immediately as the shooting began and saw nothing further.

Police Officer Clarence Bolte was called and after testifying to having informed appellant of his rights, stated the appellant told him at the police station that the deceased never fired a gun at him the day of the fatal shooting. After Officer Bolte’s testimony, the State rested. The defendant’s motions for a mistrial, directed verdict, and to exclude the State’s evidence were overruled by the trial court, and closing arguments were made without objection.

The appellant argues the trial court abused its discretion in admitting into evidence certain photographic exhibits of the deceased’s body which appellant contends were highly inflammatory and prejudicial.

Photographic exhibits which tend to prove or disprove a disputed or material issue, illustrate or elucidate relevant evidence or to corroborate or disprove other evidence, are properly admissible, even where such exhibits were merely cumulative and demonstrative of undisputed facts. Lewis v. State, Ala.Cr.App., 339 So.2d 1035, cert. denied, Ala., 339 So.2d 1038; Hines v. State, Ala.Cr.App., 365 So.2d 320, Ala., 365 So.2d 322.

We have carefully reviewed the photographs and find they were properly received into evidence by the trial judge. While the pictures depicted wounds over a large area of the body, they were not particularly ghastly or offensive. The photographs substantiated and illustrated testimony given by State witnesses and were of sufficient probative value to merit their admission into evidence.

Appellant contends the trial judge erred in his oral charge to the jury as it pertained to self defense by omitting to charge as to the exculpatory effect of the withdrawal from conflict by an original aggressor. The withdrawal to which appellant alludes appears to be his reaction to an alleged statement made by the deceased the morning before the murder occurred. Appellant testified the deceased shouted at him from his automobile, “That’s all you can do is set on that porch bandaged up,” after which appellant went into his house.

We have reviewed the entire record and found no factual basis which would have required the trial judge to expand his oral charge in the manner insisted upon by the appellant. The charge was not requested in writing by the appellant, but was merely raised by way of exception to the court’s oral charge. We find no evidence of a withdrawal from conflict by the appellant, but, on the contrary, find the appellant both initiated and fatally resolved the attack, without withdrawal and apparently without any hesitation or remorse on his part. To require the expansion of the court’s oral charge in this manner would require the giving of an abstract charge which was in no way predicated upon the relevant and material facts of the ease. Boggs v. State, 270 Ala. 209, 116 So.2d 903. Additionally, the remedy for supplying a pertinent principle of law omitted from the trial court’s oral charge is.to submit a written charge which supplies the omitted principle. Snider v. State [6 Div. 461, Ms. May 26, 1981, Ala.Cr.App.1981.] The record reveals no written charge requested by the defendant.

No prejudicial error to the substantial rights of appellant having been found in our review of the record, the judgment of conviction is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    James Harrison CHUNN, Jr. v. STATE.
    8 Div. 489.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      Tazewell T. Shepard, III, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Marda Walters Sydnor, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Robbery; twenty years.

On August 8, 1980, Bruce Charles Hamilton was the co-manager of Wendy’s Hamburgers in Huntsville, Alabama. About 11:15 P.M., two black males wearing stocking masks rushed into the store, pointed guns at the employees and ordered them to open the register. The two men took approximately $300. from the register and, as they ran out the building, one of the men fired a shot over the employees’ heads.

Phil Guthrie of the Huntsville Police Department investigated the robbery, and received information implicating the appellant. On October 3, 1980, he went to the appellant’s residence and, according to Guthrie, the appellant voluntarily went with him to the Huntsville Police Department. Guthrie stated that prior to any questioning, appellant was warned of his constitutional rights and he indicated that he understood them. Guthrie testified that the interview with the appellant lasted approximately two hours. Without any promise of reward or coercion, the appellant gave the following hand-written statement confessing his part in the robbery:

“I James H. Chunn, Jr. & Carl Draper robber [sic] Wandys [sic] on South Parkway no drive. And the only robber [sic] that i [sic] every [sic] did in my life. We get [sic] about $300.00 altogether.”

The above statement was signed by James H. Chunn, Jr. and witnessed by Detective Jerry Hammonds and Officer Phil Guthrie.

Detective Hammonds’ testimony was substantially the same as that given by Officer Guthrie. At the end of Hammonds’ testimony, the State rested its case and the appellant made a motion to “dismiss for lack of evidence.” The motion was overruled and the appellant took the stand in his own behalf.

The appellant testified that he accompanied Officers Guthrie and Hammonds to the police department because he felt “obliged” to go. Chunn stated that four officers questioned him and they were “switching backwards and forward.” According to Chunn, the officers told him that if he would give a written statement admitting to one robbery, he would not be charged with other robberies. He also stated that the officers told him his bond would be reduced to $5,000. and it would cost him $750. cash to get out of jail if he confessed.

Chunn stated that before he wrote the statement his rights were explained to him, but the confession was dictated to him. He said, however, that it was not dictated word-for-word. The appellant explained at the time he made the statement he was tired and nervous and was convinced it would be better for him to admit one robbery than to have four or five robbery charges. The appellant testified that he did not rob Wendy’s and that he was home on the evening of the robbery.

During cross-examination, Chunn denied that on his arrival at the Huntsville Police Department he was advised of his constitutional rights. He also said that Officer Hammonds lied when he said that he had told the appellant that he would be charged with robbery. Appellant admitted that he had been convicted of burglary of a motor vehicle in 1971, and had been placed on probation.

Larry Andrews testified that he had known the appellant for approximately thirteen years and that his general reputation was good.

Catherine Wherry Richburg, the appellant’s girl friend, testified that his reputation was good and that she would believe him under oath. She said that on Friday, August 8 at 11:15 P.M., she was with the appellant and they returned home at midnight after attending a barbeque with some friends.

I

The appellant complains that his handwritten confession was coerced and it should have been suppressed.

Prior to trial, at a hearing on appellant’s motion to suppress the confession, Officers Guthrie and Hammonds testified that the appellant accompanied them to the Huntsville Police Department voluntarily and that, prior to any questioning, they advised him of his constitutional rights. They said that the appellant indicated he understood those, rights and afterwards talked to the officers. According to the officers, the interview with the appellant took about two hours and the appellant was not physically mistreated or coerced into making the confession. At the conclusion of all the testimony, the court overruled the motion to suppress the confession.

Under these circumstances, the trial court, after having determined the confession to be voluntary, properly admitted it into evidence. Pike v. State, Ala.Cr.App., 340 So.2d 865, cert. denied, Ala., 340 So.2d 870 (1976). Only a preponderance of evidence indicating the confession was voluntary is needed to convince the court that it should be admitted into evidence. Bufford v. State, Ala.Cr.App., 382 So.2d 1162, cert. denied, Ala., 382 So.2d 1175 (1980). The voluntariness of a confession is a question of law for the court to be determined from the facts and circumstances surrounding the confession. Garrison v. State, Ala.Cr.App., 372 So.2d 55 (1979); Stewart v. State, 49 Ala.App. 681, 275 So.2d 360 (1973).

The only evidence that the appellant’s confession was involuntary and coerced came from the appellant. We recognize that it is not unusual for a conflict of evidence to be presented on the question of whether a confession is voluntary. See Tanner v. State, 57 Ala.App. 254, 327 So.2d 749 (1976); Webb v. State, 55 Ala.App. 258, 314 So.2d 711, cert. denied, 294 Ala. 774, 314 So.2d 717 (1975). After considering all the evidence, the trial judge resolved the factual dispute in favor of the State, and his decision was not against the great weight of the evidence. See Garrison v. State, supra; Stewart v. State, supra.

II

The appellant contends that the trial court committed reversible error when it would not permit the appellant to question witnesses about his general reputation in the community. He maintains that the trial court materially hampered the presentation of an adequate defense by sustaining the prosecution’s objections to appellant’s attempt to establish his good character.

Specifically, the appellant refers to the following portion of the record:

“Q. [By defense counsel] Let me ask you this, Mr. Andrews: You say you are very familiar with Mr. Chunn?
“A. Yes.
“Q. Are you familiar with Mr. Chunn’s general reputation in the community pri- or to August 8th, 1980?
“MR. GARDNER: [Assistant District Attorney] I object to the form of that question.
“THE COURT: Overruled.
“A. His general reputation?
“Q. Yes, sir.
“A. What do you mean by that?
“Q. I mean are you familiar with his reputation for good or bad?
“MR GARDNER: I object to that question.
“Q. Are you familiar with his general reputation in Huntsville, Alabama, around or prior to August 8, 1980?
“MR. GARDNER: Judge, I object to that question. I don’t think it’s properly asked.
“THE COURT: Overruled.
“Q. All right. Mr. Andrews, what is, based on your experience, the Defendant’s general reputation in Huntsville, Alabama, at the time I just mentioned?
“A. I think it’s good.
“Q. Is it a reputation for truthfulness or untruthfulness?
“MR. GARDNER: I object to that question.
“THE COURT: Sustained.
“Q. Based on the general reputation as you know it, would you believe a person under oath?
“MR. GARDNER: I object to that question.
“THE COURT: Sustained.
“Q. Once again, I ask you, Mr. Andrews, what is the general reputation of the Defendant in the community?
“MR. GARDNER: I object, its already been asked.
“Q. Around the time of August, 1980, say, prior to August 8th, 1980?
“MR. GARDNER: I object to that question, Your Honor, asked and answered.
“THE COURT: Sustained.
“MR. SHEPARD: No further questions.”

The law is clear in Alabama that the character of the accused may be proved by evidence of his general reputation in the community where he lives prior to the offense in question. Hill v. State, Ala.Cr.App., 366 So.2d 296 (1978), affirmed, Ala., 366 So.2d 318 (1979). This rule is also applicable to testimony regarding the accused’s general reputation for a specific trait germane to the prosecution. C. Gamble, McEI-roy’s Alabama Evidence §§ 27.01(3) (3d ed. 1977).

In the present case, the witness was allowed to testify that the appellant’s general reputation in the community was good. However, the remaining questions were not predicated on the witness’ knowledge of the appellant’s reputation for a specific trait, such as truthfulness, and were properly disallowed.

Ill

The appellant insists that the trial court committed reversible error when it allowed into evidence unsubstantiated statements regarding the appellant’s prior record. He argues that the State was allowed to show his prior conviction for burglary of a motor vehicle without proof of a “certified record of the prosecution.”

We note that the appellant did not object at trial when questions were asked concerning his record. Under these circumstances, there is nothing preserved for this court to review. Oates v. State, Ala.Cr.App., 375 So.2d 1285 (1979).

In the present case the appellant took the stand in his own behalf and the State had a right to impeach his credibility by proving his previous conviction of a crime involving moral turpitude. § 12-21-162(b), Code of Alabama 1975. Burglary is a crime involving moral turpitude and is properly used for impeachment purposes. Edmonds v. State, Ala.Cr.App., 380 So.2d 396 (1980).

On cross-examination, the appellant admitted the conviction. Under these circumstances, the State is not required to prove a prior conviction with a certified copy of the judgment entry or the docket sheet. C. Gamble, MeElroy’s Alabama Evidence, 145.01(15) (3d ed. 1977). See also Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1975), cert. denied, 295 Ala. 414, 327 So.2d 740 (1976).

IV

The appellant asserts that the State failed to prove a prima facie case of robbery. The facts presented by the State in this case, when considered with the appellant’s confession, are sufficient to present a question of fact for the jury. Oatsvall v. State, supra. In our judgment, there was legal evidence from which the jury could by fair inference find the appellant guilty of robbery in the first degree. See Wilcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969). Therefore, the overruling of the appellant’s motion to exclude and motion for new trial was proper. See Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

We have examined the record and have found no error; therefore, the judgment and conviction by the Madison Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: ENGLAND and ALDERMAN, Justices, concurring specially. PER CURIAM.

text:
    In re INQUIRY CONCERNING A JUDGE 80-125 Re: Dick C. P. LANTZ.
    No. 59489.
    Supreme Court of Florida.
    Order Feb. 2, 1981.
    Opinion April 16, 1981.
    Joseph J. Reiter and John Scarola of Montgomery, Lytal, Reiter, Denney & Sear-cy, Counsel, John H. Moore, II, Chairman, West Palm Beach and John S. Rawls, Gen. Counsel, Tallahassee, for Florida Judicial Qualifications Commission, petitioner.
    Robert L. Shevin of Sparber, Shevin, Ro-sen, Shapo & Heilbronner, Miami and Hugo L. Black, Jr. of Kelly, Black, Black & Earle, Miami, for Judge Dick C. P. Lantz, respondent.
   AMENDED ORDER

This matter is set for oral argument for Tuesday, March 3, 1981, at 9:30 a. m., with twenty minutes to the side allowed for presentation.

Briefs on behalf of the petitioner and respondent shall be filed on or before Friday, February 13, 1981; responsive briefs may be filed on or before Friday, February 20, 1981.

SUNDBERG, C. J., and OVERTON and McDONALD, JJ., concur.

ENGLAND and ALDERMAN, JJ., concur specially with an opinion.

ADKINS and BOYD, JJ., would accept the recommendation of the Commission.

ENGLAND and ALDERMAN, Justices,

concurring specially.

Pursuant to article V, section 12(a) of the Florida Constitution, the Judicial Qualifications Commission brings us their recommendation that we reprimand Circuit Judge Dick C. P. Lantz of Miami for misconduct in office, and that we impose other requirements and costs incidental thereto. Judge Lantz pled guilty or no contest to these acts of judicial misconduct:

(1) repeated instances of arrogance, and a lack of courtesy, dignity and patience to litigants, witnesses, lawyers and others, in violation of Canons 1 and 3(A)(3) of the Code of Judicial Conduct (guilty);

(2) creation of the appearance of impropriety in contacting a law professor, who was also a litigant before him, to request assistance for the admission of a friend to law school, in violation of Canons 1 and 3(A)(3) (guilty);

(3) commenting adversely in open court on the Episcopal Church and the sovereign nation of Spain, with the effect of casting doubt on the impartiality of the judiciary in violation of Canon 2(A) (guilty);

(4) direct solicitation of election support from a member of the bar, in violation of Canon 7(B)(2) (no contest);

(5) taking possession of and refusing to release to counsel the untranscribed notes of a court reporter taken in the course of a proceeding before him, in violation of Canons 1, 2(A) and 3(B) (no contest); and

(6) ordering a $10,700 attorney’s fee for a close personal friend who had withdrawn from the dissolution proceeding before him because of that close relationship, knowing full well that the issue of fees had been settled by the parties and that his friend appeared on his own behalf requesting fees without his former client’s approval, in violation of Canons 1, 2(A), 2(B) and 3(A)(1) (no contest).

The record shows that Judge Lantz has been a full-time judicial officer of the state since 1975, and that in early 1979 he was assigned for thirteen months to the intensely emotional and overworked family division of the Dade County Circuit Court. His counsel suggested to the commission that this assignment would explain the temperamental problems which form the basis for the commission’s first finding, and that a public reprimand was appropriate as Judge Lantz’ tenure in the family division has now terminated.

We cannot understand, and therefore cannot accept, the commission’s recommendation for a public reprimand in this proceeding. That recommendation is inconsistent with prior recommendations of the commission and with prior action of this court in matters involving equal or lesser judicial misconduct. No explanation is offered by the commission with respect to the standards which were applied or the mitigating circumstances which were considered. Nor is any justification apparent to us from the modest record developed by the commission, which consists only of opening, statements by counsel, the testimony of Judge Lantz and the chief judge of his judicial circuit, and the presentation of a plea bargain made and accepted by all concerned at an early break in the proceeding.

Whatever may be said of the commission’s recommendation in relation to Judge Lantz’ bench conduct, there is no plausible explanation in the record for the recommendation of a reprimand for the other misconduct found by the commission. On all other recent occasions, such pervasive and serious violations of the Code of Judicial Conduct have prompted the commission to recommend more severe discipline. See In re Inquiry Concerning a Judge, Joseph M. Crowell, 379 So.2d 107 (Fla.1979), recommending removal from office for repeated arrogance, abuse of judicial contempt powers, and undermining public confidence in the judiciary; In re Inquiry Concerning a Judge, J. Q. C. No. 77-16, 357 So.2d 172 (Fla.1978), recommending removal from office for multiple acts of an admittedly compassionate non-lawyer judge, where the conduct raised questions as to impartiality and an understanding of the Code of Judicial Conduct; In re LaMotte, 341 So.2d 513 (Fla.1977) recommending removal from office for intentional, repeated use of a state credit card for personal expenses; In re Dekle, 308 So.2d 5 (Fla.1975), and In re Boyd, 308 So.2d 13 (Fla.1975), both recommending removal from office for a single instance of an improper ex parte communication which created an appearance of improper influence. In fact, the only instance of a lesser recommended punishment in recent years, a reprimand, involved an isolated act of public, sexual misconduct not directly related to the performance of judicial duties. In re Inquiry Concerning a Judge, J. Cail Lee, 336 So.2d 1175 (Fla.1976).

The seeming inconstancy of the commission is nowhere explained in the record of this proceeding. Formal presentations to the Court were apparently omitted after settlement of the case had been reached, and it may be surmised that both sides expected us to view the recommended disposition as proper. It may well be appropriate, of course, but we cannot discern that fact from what has thus far been presented.

We note that the commission specifically advised Judge Lantz that his plea agreement with the commission was not binding on this Court, and that more severe disciplinary measures — including removal— could result from his pleas to the charges against him. Nonetheless, Judge Lantz’ plea was tendered voluntarily and the scheduled evidentiary proceeding prematurely terminated when the agreement was accepted. Judge Lantz then waived his right to appear here in order to explain why we should not accept the negotiated punishment.

Since we cannot on this record approve the commission’s recommendation of a public reprimand, we are reluctant to impose other sanctions without the benefit of further information from the parties. Since apparently the pleas of guilty and no contest were entered knowingly and only the matter of discipline was left open to the Court’s determination, we would accept the commission’s findings of misconduct and, on the issue of discipline alone, consider parties’ briefs and, unless expressly waived by the parties, oral presentation.

PER CURIAM.

In connection with an inquiry concerning Judge Dick C. P. Lantz, the Florida Judicial Qualifications Commission has filed recommendations together with its findings of fact and conclusions of law in accordance with the Florida Judicial Qualification Rules and article V, section 12, Florida Constitution (1968 as amended). Judge Lantz waived the requirements of Fla.App. Rule 9.520(b) for issuance to him of a rule to show cause why the action recommended by the Qualifications Commission should not be taken.

We recognized a similarity between the facts sub judice and the facts requiring the removal of Judge Joseph M. Crowell, In Re Inquiry Concerning a Judge, Joseph M. Crowell, 379 So.2d 107 (Fla.1979), so the matter was set for oral argument and briefing by the parties. From the briefs and oral argument it appears that Judge Lantz has confessed his misdeeds, repented, and is sufficiently rehabilitated to continue service as a circuit judge.

The recommendations and record filed by the Commission reflect that Judge Lantz pled guilty or no contest to the following acts of judicial misconduct:

1) repeated instances of arrogance, and a lack of courtesy, dignity and patience to litigants, witnesses, lawyers and others, in violation of Canons 1 and 3(A)(3) of the Code of Judicial Conduct (guilty);

2) creation of the appearance of impropriety in contacting a law professor, who was also a litigant before him, to request assistance for the admission of a friend to law school, in violation of Canons 1 and 3(A)(3) (guilty);

3) commenting adversely in open court on the Episcopal Church and the sovereign nation of Spain, with the effect of casting doubt on the impartiality of the judiciary in violation of Canon 2(A) (guilty);

4) direct solicitation of election support from a member of the bar, in violation of Canon 7(B)(2) (no contest);

5) taking possession of and refusing to release to counsel the untranscribed notes of a court reporter taken in the course of a proceeding before him, in violation of Canons 1, 2(A) and 3(B) (no contest); and

6) ordering a $10,700 attorney’s fee for a close personal friend who had withdrawn from the dissolution proceeding before him because of that close relationship, knowing full well that the issue of fees had been settled by the parties and that his friend appeared on his own behalf requesting fees without his former client’s approval, in violation of Canons 1, 2(A), 2(B) and 3(A)(1) (no contest).

The recommendations contain the following conclusions of law:

In accordance with the terms of the negotiated proposal accepted by the Commission, the Commission by a vote of at least nine of its members does hereby recommend the following to the Supreme Court of Florida:
1. That Judge Dick C. P. Lantz be publicly reprimanded for the violations of the Code of Judicial Conduct as set out in detail in the Commissions’ Findings of Fact.
2. That Judge Dick C. P. Lantz be ordered to pay the amount of $3,000.00 to the State of Florida in partial reimbursement of the costs expended as a consequence of these proceedings.
3. That Judge Dick C. P. Lantz dismiss with prejudice all pending appellate proceedings regarding this matter.
4. That Judge Dick C. P. Lantz recuse himself from presiding in any matter involving any of those individuals who have provided Affidavits against him in these proceedings.
5. That Judge Dick C. P. Lantz be prohibited from appointing Gus Efthemious, Jr., Esq., in any proceedings in the future before him.
6. That Judge Dick C. P. Lantz be ordered to direct Gus Efthemious, Jr., Esq., to withdraw from further representation in any matter on which he had previously been appointed by Judge Dick C. P. Lantz, except where such withdrawal would prejudice the interests of his clients. (Footnote 2 reads: The terms of the negotiated proposal presented to the Commission included agreement on the part of the Respondent to accept a period of probation up to one year, the terms and conditions of which were within the discretion of the Commission. However, the Commission chose not to impose a probationary period based upon the consensus of the Commission members that all judges are continuously under the jurisdiction of the Commission.)

The Qualifications Commission recommended that Judge Dick C. P. Lantz be publicly reprimanded and be ordered to comply with the terms of the negotiated proposal as reflected in the conclusions of law.

Upon consideration by this Court, the recommendations of the Florida Judicial Qualifications Commission are hereby approved. This opinion shall be considered as a public reprimand to Judge Dick C. P. Lantz and he is hereby ordered to comply with the terms of the above quoted conclusions of law.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.

      . Leniency for intemperance on the bench is ostensibly inconsistent with the commission’s recent recommendation and our approval of far more severe discipline for similar misconduct. In re Inquiry Concerning a Judge, Joseph M. Crowell, 379 So.2d 107 (Fla.1979). Indeed, unlike the Crowell matter there is no suggestion in this record that Judge Lantz’ insensitivity to the Code of Judicial Conduct was at least explainable on medical grounds.

      . See Art. V, § 12(f), Fla. Const.

      . Fla. R. App. Proc. 9.520(b).