source: Caselaw Access Project

author: PER CURIAM. FAULKNER, Justice

license: Public Domain

text:
    Ex Parte Melba Till ALLEN. In re Melba Till Allen v. State of Alabama.
    79-271.
    Supreme Court of Alabama.
    Feb. 8, 1980.
    Richard D. Horne and James E. Atchison, of Hess, Atchison & Stout, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

Writ denied. No opinion.

TORBERT, C. J., and BLOODWORTH, MADDOX, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER, J., dissents, with opinion.

FAULKNER, Justice

(dissenting).

I would grant the petition for Writ of Certiorari to the Court of Criminal Appeals.

By denying the petition without an opinion, the majority may be saying that the petition, as filed, is insufficient, as drafted, to invite review by this Court. On the other hand, the majority may be saying that they agree with the majority opinion of the Court of Criminal Appeals. My dissent is based upon the sufficiency of the evidence before the trial court as it relates to defendant’s connection with Leisure & Development Properties, Inc. to convict the defendant. In this regard, I agree with the dissent authored by Judge John Bookout of the Court of Criminal Appeals. This is what Judge Bookout said:

“The State proved that the appellant used her official position to obtain a letter of credit for Leisure and Development Properties, Inc. This alone amounts to no crime under the statute. The State must have also proved that through the letter of credit she obtained ‘a direct personal financial gain’ for herself or for a business with which she was associated.
“The evidence fails to establish a ‘direct personal financial gain’ prohibited by the statute. The gain, if any, would have been through one of the corporations involved in the transactions. Under the specific charge in the indictment, it may only come through Leisure and Development Properties, Inc., in which she inferentially held some interest.
“In order to prove the appellant’s corporate dealings to be in violation of the Ethics Act, the State had the burden of proving that the financial gain was for a business with which she was associated, as defined in § 2(b) [now § 36-25-1(2)]: “ ‘ “Business with which he is associated” [means] any business of which the person or a member of his family, is an officer, owner, partner, employee or holder of more than 10 percent of the fair market value of such business.’ ” (Emphasis supplied.)

“No proof was made that the appellant was an officer or employee of Leisure. It being a corporation, she could not have been a partner within the legal definition of that term. Ownership in a corporation is denoted by holding or owning stock therein. Therefore, for the appellant’s actions to be in violation of the terms of the statute, the State must have proved that she owned or was the ‘holder’ of ‘more than 10 percent of the fair market value of such business.’ This the State failed to do, and the appellant’s motion to exclude the State’s evidence should have been granted.”


author: TYSON, Judge.

text:
    Charles M. STONOKER, alias v. STATE.
    3 Div. 81.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.

      Elno A. Smith, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Charles M. Stonoker was indicted by the grand jury for assault with intent to murder. The jury found the appellant “guilty as charged in the indictment,” and the trial court set sentence at one year in the penitentiary and two years on probation. From that judgment and sentence, the appellant prosecutes this appeal.

At trial the witnesses for the State testified that an altercation occurred between appellant and Bobby Barefoot at Jimmy’s Marina in Montgomery County on October 26, 1978. Jimmy’s Marina was at that time a combination saloon and bait shop and was operated by Bobby Barefoot on the date in question.

Although the testimony was conflicting regarding the cause of the altercation, the evidence was undisputed that appellant shot Bobby Barefoot in the chest and the shoulder with a .38 caliber pistol. Since Barefoot was also armed with a pistol at the time of the altercation, a jury question was presented as to whether appellant was acting in self-defense.

I

Appellant testified in his own defense at trial. On cross-examination the following occurred (R. pp. 85-86):

“A. He said, ‘They are fixing to fight.’
“Q. Up there at the bar?
“A. Right.
“Q. So, you went straight to the bar?
“A. Before I went to the bar three of them went outside. And I presume to fight. I don’t know. I don’t know what they were saying to each other.
“Q. Mr. Stonaker, you ever been convicted of a crime involving moral turpitude?
“MR. SMITH: Objection to the form of the question.
“THE COURT: I sustain.
“Q. You have been convicted in the past, haven’t you, Mr. Stonaker?
“MR. SMITH: Objection. Again, not a proper predicate being laid.
“THE COURT: Lay you some time in there.
“MR. CHANDLER: Yes, sir.
“Q. Prior to the time that this occurred, Mr. Stonaker, and prior to the time that you went in that place out there armed with a pistol, have you been, in fact, convicted of a felony in the State of Alabama?
“MR. SMITH: Again, Your Honor, we object. Not proper predicate being laid.
“MR. CHANDLER: Your Honor
“THE COURT: Overruled.
“THE WITNESS: Can I answer?
“THE COURT: Yes, sir.
“THE WITNESS: 1968.
“Q. And, what was that?
“A. Burglary and grand larceny.
“Q. Did you subsequently get out of the penitentiary?
“A. Got out in March, 1970.
“Q. Did you know there was a prohibition against an ex-felon carrying a pistol?
“A. I do.”

Appellant contends on appeal that the trial court erred in allowing the prosecutor to question him about his prior felony convictions.

It is well settled that an opponent can impeach his adversary’s witness by proving a prior conviction of a crime involving moral turpitude. § 12-21-162, Code of Alabama 1975; White v. State, Ala.Cr.App., 347 So.2d 566 (1977); West’s Alabama Digest, Witnesses, «=» No. 345(1); Daniels v. State, Ala.Cr.App., 375 So.2d 523 (1979).

“The most common manner of eliciting a witness’ former conviction for a crime involving moral turpitude, as a means of impeaching his credibility, is to question him on cross-examination regarding such conviction .
“While there is no prescribed form for the question which is asked to elicit a conviction for impeachment purposes, there have been judicially declared guidelines for such a question. For example, the question must be structured in such a way as to exclude any reasonable supposition that the witness is being called upon to answer concerning his conviction for an offense which does not involve moral turpitude. In addition, the question must be specific to the point of naming the crime for the conviction of which the witness is being impeached. The question: ‘Have you ever been convicted of a crime involving moral turpitude?’ is ⅛ sufficient and improper because an answer to such a question would involve the witness’ judgment as to what offenses involve moral turpitude.” [Footnotes omitted.]
Gamble, McElroy’s Alabama Evidence § 145.01(8) (3d ed. 1977).

Likewise, the question: “Have you ever been convicted of a felony,” is insufficient and improper because, while most felonies involve moral turpitude, there are some felonies which do not. Lyles v. State, 23 Ala.App. 135, 122 So. 611 (1929). See Gamble, supra, at § 145.01(9) and (10), for a list of crimes which do and do not involve moral turpitude.

Thus, in the present case the trial court erred in overruling defense counsel’s objection to the district attorney's question about appellant’s prior felony convictions. Authorities herein cited.

In order for this Court to reverse the judgment of the trial court, however, the appellant must not only show error but must also show that such error probably injuriously affected his substantial rights. Rule 45 of the Alabama Rules of Appellate Procedure; Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Kabase v. State, 244 Ala. 182, 12 So.2d 766 (1943).

Such was not done in the instant case. Appellant was asked whether he had been convicted of a felony and he immediately admitted that he had been convicted of burglary and grand larceny. Although the form of the question propounded to the appellant was improper the evidence elicited thereby was not, i. e., both burglary and grand larceny are crimes involving moral turpitude. Matthews v. State, 51 Ala.App. 417, 286 So.2d 91 (1973). Since the evidence elicited by the district attorney’s question was proper, no prejudicial injury occurred to appellant’s rights. Therefore, we cannot reverse the judgment of the trial court. Meriwether v. Crown Inv. Corp., 289 Ala. 504, 268 So.2d 780 (1972), and authorities herein cited.

This record is free of error. This case is hereby

AFFIRMED.

All the Judges concur.


text:
    Charles M. STONOKER, alias v. STATE.
    3 Div. 83.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.
    Elno A. Smith, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Charles M. Stonoker, alias, was indicted, tried and convicted for the offense of ex-felon in possession of a pistol. The trial court sentenced him to one year in the penitentiary and one year on probation. This appeal followed.

The evidence adduced at this trial does not materially differ from that present in Stonoker v. State, Ala.Cr.App., 380 So.2d 342. The evidence was uncontradicted that appellant had been convicted of burglary and grand larceny and that on October 26, 1978, he shot Bobby Barefoot with a .38 caliber pistol.

Appellant raises the.same issue on this appeal as that raised and decided in Stonoker v. State, Ala.Cr.App., 380 So.2d 342, and, in fact, his counsel has submitted the same brief as filed in Stonoker, supra.

On authority of Stonoker, supra, this cause is

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Roy Allen SMITH, Sr. v. STATE.
    1 Div. 72.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      Charles H. Morris, III, of Morris & Faile, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of his son, Roy Allen Smith, Jr. A jury convicted him of murder in the second degree and set punishment at twenty years’ imprisonment.

I

The defendant maintains that the only eyewitness to the homicide, Elizabeth Ann Smith, was so mentally defective as to be incompetent to testify as a witness.

Prior to the actual trial of the case, the trial court conducted a hearing to determine Miss Smith’s competency to testify as a witness. Miss Smith was twenty years old and the daughter of the defendant. The trial judge questioned Miss Smith and ascertained that she knew what it was to tell the truth and that she must tell the truth when placed under oath.

Defense counsel did not cross examine Miss Smith but called two expert and one lay witness to establish her alleged incompetency. That testimony revealed that in 1975 Miss Smith had a full scale I.Q. of 51, that she was “moderately mentally retarded”, had a “low level ability to perceive details”, had difficulty in accurately relating what she had observed, and was easily influenced especially by her mother.

At the conclusion of the hearing, the trial judge ruled that Miss Smith was competent to testify.

“Let the record show that this court, after observing the demeanor of the proffered or expectant witness Elizabeth Ann Smith, and after listening to her responses to questions propounded to her by the Court respecting her understanding of the nature of an oath, rules that she is prima facie competent; the weight and credibility of her testimony to go to the jury for whatever weight they see fit to attach to it.”

The applicable rule of law is concisely stated in C. Gamble, McElroy’s Alabama Evidence, § 94.01(2) (3rd ed. 1977). This is a revision of the material which was quoted with approval in Orton v. Gay, 285 Ala. 270, 277, 231 So.2d 305 (1970).

“Alabama statute provides that: ‘Persons who have not the use of reason, as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, are incompetent witnesses.’ A person is disqualified to be a witness if, by reason of mental derangement, he lacked the capacity to observe the matter to be testified about, if he now lacks capacity to narrate such matter or if he does not understand that it is his moral duty to speak the truth.
“The fact that a person’s mental disorder renders him incapable of managing his own affairs, that he is under guardianship or that he, by reason of the mental disorder, is kept confined in a hospital for the mentally ill, does not necessarily disqualify him to be a witness. It has been said that it is no objection to the competency of a witness that he may be subject to fits of derangement if, at the time he is offered, it appears that he is sane. “Whether a person’s affliction with a mental defect is such as to incapacitate him to be a witness is a matter to be determined by the trial judge. In fact, he is specifically charged with this duty by a statute which states: ‘The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness or infancy.’ It has been held that a trial judge’s ruling on this question stands on appeal unless there is strong evidence of an abuse of sound discretion.” (footnotes omitted)

One of the oldest and perhaps the best statements of the rule is found in Worthington & Co. v. Mencer, 96 Ala. 310, 314, 11 So. 72, 73 (1892).

“ ‘The general rule, therefore, is that a lunatic or a person affected with insanity, is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself, and any competent witness who can speak to the nature and extent of his insanity.’ District of Columbia v. Arms, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618.”

See also McKinstry v. City of Tuscaloosa, 172 Ala. 344, 350, 54 So. 629 (1911), where the witness’s competency was upheld although the witness was assailed as a “moral imbecile” incapable of separating truth from falsehood and an expert testified in support of this allegation.

In each particular case where the competency of a witness is challenged the fundamental question is whether “the derangement or defect is such as to make the person highly untrustworthy as a witness”. 2 Wigmore, Evidence § 492 at p. 698 (Chadbourn rev. 1979). It is generally accepted that “the derangement or defect, in order to disqualify, must be such as substantially negatives trustworthiness upon the specific subject of the testimony”. 2 Wigmore, § 492 at 699. In order “to exclude a witness on the ground of mental or moral incapacity, the existence of the incapacity must be made to appear”. 2 Wigmore, § 497 at 703, citing Puckett v. State, 213 Ala. 383, 105 So. 211 (1925); Conner v. State, 52 Ala.App. 82, 86, 289 So.2d 650, cert. denied, 292 Ala. 716, 289 So.2d 656 (1974). “A presumption of competency attends a witness.” Hutcherson v. State, 40 Ala.App. 77, 79, 108 So.2d 177, 178 (1958). The burden of proving the incompetency of a witness is upon the party objecting. Birmingham Ry., Light & Power Co. v. Jung, 161 Ala. 461, 49 So. 434 (1909). “The discretion of a trial judge as to the competency of a witness is of a well nigh irrevisable nature.” Trammell v. State, 53 Ala.App. 246, 247, 298 So.2d 666, 667 (1974).

In its ruling that Miss Smith was competent to testify, we find no abuse of the discretion of the trial judge. The particular defects in the witness’s capacity to observe and remember went to her credibility and were matters for the jury.

II

The State’s evidence shows that the defendant and his wife were having an argument — “fussing and fighting”. The defendant left the room and “got a gun”. The defendant was mad and said “Well, I’ll just kill all of you” when his wife told him that she was going to leave and take the children with her. The weapon fired killing Roy Allen Smith, Jr. The defendant cried, “Oh, my God, I’ve killed my baby”, and said “Don’t call the law because I’m afraid they might come and lock me up”. He went outside the house carrying the shotgun and “went on down in the woods”.

Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. The defendant did not have to have the actual intent to kill his son to be guilty of second degree murder.

“It is not necessary that there was an intent to kill to constitute murder in the second degree. It is sufficient if the defendant voluntarily set in motion or applied an unlawful force from which death ensued, however free the action may be from actual purpose to kill.”
Smith v. State, 154 Ala. 31, 34, 45 So. 626, 627 (1908).

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

AFFIRMED.

All Judges concur.


text:
    Jenkins WHITE v. STATE.
    2 Div. 256.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.

      Donald M. .McLeod, Camden, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the shotgun slaying of his wife, Roberta White. A jury convicted him of second degree murder and set sentence at twenty-five years’ imprisonment.

Although the sufficiency of the evidence to support the verdict was attacked by the defendant’s motion for a new trial, no specific objection has been raised. Basically, the State’s case was that the defendant intentionally shot his wife following an argument and a day during which both he and his wife had been drinking. The defendant maintained that neither he nor his wife knew that the shotgun was loaded. During an argument his wife grabbed the barrel of the weapon, which the defendant was carrying to put away, and this caused the shotgun to fire accidentally. The evidence was conflicting and presented a question for the jury as to the defendant’s guilt. Consequently, the verdict will not be disturbed on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909); Woods v. State, 344 So.2d 1225 (Ala.Cr.App.1976), cert. quashed, Ex parte Woods, 344 So.2d 1230 (Ala.1977).

I

The defendant alleges that the trial court committed reversible error in admitting evidence that the defendant had cut his wife “a long time ago”. The defendant’s objection to the admission of this testimony was based on the fact that the District Attorney established no time frame with regard to this prior act of hostility. The defendant also contends that this testimony should have been excluded because of the remoteness of the “cutting”.

The State may prove former acts of hostility by the accused toward his homicide victim for the purpose of showing motive and intent. Dickerson v. State, 360 So.2d 1053 (Ala.1978). A number of Alabama cases have specifically involved former difficulties between a husband and wife. Shiflett v. State, 262 Ala. 337, 78 So.2d 805 (1955); Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944); Padgett v. State, 49 Ala.App. 130, 269 So.2d 147, cert. denied, 289 Ala. 749, 269 So.2d 154 (1972); Mahaley v. State, 36 Ala.App. 89, 53 So.2d 594, cert. denied, 256 Ala. 77, 53 So.2d 595 (1951).

Generally, remoteness of time affects the weight and probative value of evidence rather than its admissibility.

“Ordinarily, remoteness of time affects the weight and probative value of evidence rather than its admissibility. It rests largely in the enlightened discretion of the court whether or not such proof will be allowed. Remoteness has regard also to factors and considerations other than mere lapse of time. It results, therefore, that it is practically impossible and not at all accurate to attempt to state a fixed rule or standard with particular reference to the time element. Of course it can be said with certainty that the • tendered evidence must not be so remote in point of time as to be without causal connection or logical relation to the main event. Notwithstanding evidence may be logically relevant, its admissibility does not follow unless it has some probative value to the inquiry of instant concern.”
Smitherman v. State, 33 Ala.App. 316, 318-319, 33 So.2d 396 (1948).

Remoteness with respect to the admissibility of evidence is a relative idea and varies in its application according to the facts of each case. Dorch v. State, 40 Ala.App. 475, 476, 115 So.2d 287 (1959).

While remoteness of time alone does not render the prior event inadmissible, Fields v. State, 362 So.2d 1319, 1320 (Ala.Cr.App.1978), the trial court “is without discretion to admit a statement that is so remote as to time or circumstances that its relevance or materiality must rest in conjecture and speculation”. Roberson v. State, 339 So.2d 100, 104 (Ala.Cr.App.), cert. denied, 339 So.2d 104 (Ala.1976).

“Whether evidence offered is too remote to be admissible is for the court, in the exercise of a sound discretion, and such ruling will not be revised on appeal unless it is plain that error was committed. However, where the competency of evidence is doubtful, the better practice is to allow the evidence to go to the jury, leaving them to determine its weight and credibility. That is to say, if the evidence tends to prove a fact for determination by the jury, however slight the evidence may be, it is relevant.”
Sorrell v. Scheuer, 209 Ala. 268, 269, 96 So. 216, 217 (1923). (Citations omitted)

See also Pitts v. State, 261 Ala. 314, 316, 74 So.2d 232 (1954).

We do not know when the defendant cut his wife except that it was “a long time ago”. Under such circumstances we cannot find an abuse of the trial judge’s action.

The State also proved that, “about three or four weeks” before the murder, the defendant threatened to kill the deceased; that it was a “pretty common thing to hear them arguing”, and that the defendant had. threatened to kill the deceased “several times”. When the defendant testified in his own behalf, he admitted cutting the deceased but did not know when it happened. In light of these circumstances we hold that even if there were error in the admission of the testimony concerning this prior incident it was harmless. Alabama Rules of Appellate Procedure, Rule 45.

II

We find no reversible error in the fact that a juror examined a shotgun, similar to that with which the victim was killed, in the privacy of her own home while the jury had separated for the evening.

The juror testified at the hearing on the motion for new trial that she “was just curious to see if my gun was like the gun of the State’s evidence. The gun had no bearing on the way I went on the case.” The juror stated that she did not reach a conclusion from observing the gun and did not perform any tests or experiments with the weapon other than holding it up and drawing a “bead” on a bird sitting in a tree: “I looked at the gun. I did not fire it. I did not put a shell in it. I did not mess with the hammer. I did not mess with the trigger.” She testified that her shotgun “didn’t aid me or it didn’t help me in my deliberations” and that her examination of her weapon did not influence her decision in any way.

In O'Berry v. State, 361 So.2d 1132, 1133 (Ala.Cr.App.), cert. denied, 361 So.2d 1135 (Ala.1978), this Court stated the controlling principles. The jury should not consider evidence outside that produced at trial. Each case of alleged improper conduct must be judged by its own particular facts. The test is not whether the conduct did influence the jury but whether it might have.

While a juror’s consideration of any extraneous matter is strongly condemned, Gilliland v. State, 266 Ala. 24, 93 So.2d 745 (1957), in view of the juror’s own testimony we do not see how the defendant could have been or was prejudiced by her actions. See Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1978).

As is our statutory duty, we have searched the record for error prejudicial to the defendant. Finding none, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.


text:
    Floyd CHATMAN v. STATE.
    3 Div. 42.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Yon G. Memory, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., George Hardesty, Jr., Special Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Floyd Chatman was indicted, tried, and convicted for robbery. The trial court set sentence at twenty years imprisonment, and this appeal followed.

On August 18, 1978, at approximately 6:00 p. m., Robert Cato was preparing to close the Texaco service station which he managed, located on the Birmingham Highway in Montgomery County, Alabama. While Mr. Cato was serving one of his last customers, a black male, later identified as Charles Chatman, approached Mr. Cato and asked for and received change for a soft drink machine. Shortly thereafter, Charles Chatman and an individual, positively identified in court by Mr. Cato as the appellant, entered the service station. According to Mr. Cato, the appellant was carrying a sawed-off shotgun and told him, “This thing will cut you in two, man” (R. p. 38). While his companion rifled the station’s cash register, the appellant forced Mr. Cato into the station bay area where he held the shotgun against Mr. Cato’s body and removed a billfold and money from Mr. Cato’s pockets. Thereafter, the appellant and his companion fled into a wooded area adjacent to the station. Mr. Cato testified that he was subsequently unable to positively identify appellant from mug shots shown to him by the police and that he was also unable to positively identify appellant at two lineups conducted at police headquarters. At appellant’s preliminary hearing, and again at trial, however, Mr. Cato positively identified appellant as one of the participants in the robbery of his Texaco service station and his person. •

Detective V. H. Hicks of the Montgomery Police Department testified that he participated in the investigation of the robbery of Cato’s Texaco service station. Detective Hicks related that on the day of the robbery he searched a wooded area near the service station and found a loaded twenty-gauge shotgun.

Detective William R. Wilson of the Montgomery Police Department testified that pursuant to an anonymous telephone tip on the day of the robbery he and other detectives visited an address on Philip Street where the appellant, among others, was present and was questioned. Appellant, however, was not arrested until August 23, 1978.

Detective Wilson stated that after appellant was transported to the police station he was advised of his constitutional rights from a “standard Miranda rights form,” and appellant signed this form. Detective Wilson stated that the appellant did not ask for a lawyer or indicate in any way that he did not want to talk with the police at this time.

Appellant was placed in a lineup at approximately 9:45 a. m. on the day of his arrest. After the lineup, the appellant was again advised of his constitutional rights a second time and was further informed that he had been tentatively identified from this lineup. At this time appellant gave an oral confession to police officers, but refused to make a written statement.

Detective Wilson denied that the appellant had been physically abused, threatened, coerced, or promised lenient treatment, or otherwise induced into giving a statement.

On cross-examination, Detective Wilson admitted that the appellant was told that, if he would help the officers solve other robberies, they would do everything they could to help him with the robbery charge which was then pending.

“I stated to him very clearly that I was not promising him any probation or anything like that because it was not in my power to do it, but I would talk to the judge or a D.A., or whoever it was feasible to help him if he could turn some more robberies for us.”
(R. p. 81)

On redirect examination, Detective Wilson stated that all of the discussions with the appellant about mutual cooperation took place after appellant had confessed (R. p. 83).

Testimony from other police officers corroborated the testimony of Detective Wilson.

The appellant’s sister and grandmother testified that, as far as they knew, the appellant had never been in trouble before and that his reputation in the community for telling the truth was good.

The appellant testified in his own behalf that he was eighteen years old and had moved to Alabama from New York earlier that year. He recounted that he was visiting a relative, Brenda Steele, on the day of the robbery. The police made two visits to the Steele residence that day, but made no arrests.

Six days later, however, the appellant was arrested and taken to the police station. According to the appellant, at the station he was physically abused and forcibly compelled to participate in a lineup. He claimed he requested the opportunity to see a lawyer, but was refused. The appellant maintained that, despite the efforts of the police, he refused to make a confession or incriminate himself in the robbery of the Texaco service station in question.

Several of the police officers who testified previously maintained on rebuttal that the appellant was not physically abused in any manner.

I

Appellant first contends on appeal that the trial court erred in refusing to allow Bertha Allen to testify as an alibi witness for the defense at trial. It appears from the record that the rule was invoked to exclude witnesses from the courtroom during trial.

Bertha Allen, however, apparently was not properly sequestered with the other witness.and, consequently, was present during part or all of the proceedings. When defense counsel attempted to call her in order to bolster appellant’s alibi defense, the trial court refused to let her testify (R. pp. 176-179).

The general rule in Alabama is that the invocation and enforcement of the rule of exclusion of witnesses is a matter within the sound discretion of the trial court and is not normally subject to appellate review. Stone v. State, 55 Ala.App. 663, 318 So.2d 359 (1975); Patterson v. State, 53 Ala.App. 567, 302 So.2d 540, cert. denied, 293 Ala. 770, 302 So.2d 545 (1974); Gamble, McElroy’s Alabama Evidence, § 286.01 (3d ed. 1977).

“The better practice, however, seems to be to permit the witness to testify and punish for the violation of the rule. We are of the opinion that where the rule is invoked as to witnesses, and is violated by a witness without any fault on the part of the defendant, the court has not the right under the law to deprive the defendant of the testimony of such witness. We think the right is one guaranteed to the defendant by the Constitution, and of which he may not be deprived without fault on his part.” (Emphasis in original)

Mitchell v. State, 28 Ala.App. 119, 122, 180 So. 119, 123, cert. denied, 235 Ala. 530, 180 So. 123 (1938), quoting from Degg v. State, 150 Ala. 3, 43 So. 484 (1907).

Because appellate judges cannot observe the demeanor of the parties at trial nor hear the inflection of their voices, the determination of whether the defendant was at fault rests in the discretion of the trial court, and is hot subject to appellate review in the absence of clear abuse. Johnson v. State, 8 Ala.App. 14, 62 So. 450, rev’d on other grounds, 183 Ala. 88, 63 So. 73 (1913).

In the present case, the record is unclear with reference to whether Bertha Allen was ever subpoenaed to serve as a witness. The following exchange, however, indicates that defense counsel knew the witness yet failed in his duty to apprise the court of her presence in the courtroom. From the record:

“MR. MEMORY: Judge, there is a witness that is in the courtroom that has not been sequestered that we would like to call in light of cross-examination by the prosecutor.
“THE COURT: Is this a surprise?
“MR. MEMORY: No, I—
“THE COURT: Why haven’t—
“MR. MEMORY: It just involves him being at the address of Philip Street.
“THE COURT: Then it’s not a surprise and the witness has been in the courtroom the whole time. •
“MR. MEMORY: Well, I apologize. It has just come to my attention that she is in the courtroom.
“THE COURT: Has she been subpoenaed?
“MR. MEMORY: To the best of my knowledge she has.
“THE COURT: How long have you known about this witness, since August?
“MR. MEMORY: Well you see, I am familiar with most of the faces but she’s the only one that was at this address that is here today.
“THE COURT: Was she in court this morning when she was due to be here? Which one is she? Where were you this morning?
“A WITNESS: Well, Judge, I wasn’t here. I have a nine to eleven o’clock class—
“THE COURT: But you also had a subpoena to come to Court, didn’t you? Or did you?
“A WITNESS: No, I didn’t.
“THE COURT: Motion denied.”
(R. pp. 175-176)

We hold that the trial court did not abuse its discretion in refusing to permit the proposed witness to testify. Jeter v. State, Ala.Cr.App., 376 So.2d 808 (1979).

“To hold otherwise would unduly impair the authority of the court to enforce a regulation having for one of its objects the guarding of witnesses against improper influences or suggestions to which they might be subjected if they were permitted to remain in the courtroom during the progress of the trial.” Johnson v. State, supra, 8 Ala.App. at 19-20, 62 So. at 453.

II

Appellant lastly contends that the trial court erred in allowing testimony regarding his alleged oral confession because “a strong inference exists that significant inducements and promises were offered in order to persuade the defendant to enter his confession” (Brief of Appellant, page 13).

We first note that the evidence regarding the voluntariness of appellant’s oral confession is conflicting. Thus, great weight must be given to the judgment of the trial court on this issue. Jordan v. State, Ala.Cr.App., 380 So.2d 999 (1979); Twymon v. State, Ala.Cr.App., 358 So.2d 1072 (1978).

Detectives Wilson and Alford both testified that any discussion with appellant regarding possible lenient treatment occurred after his oral confession. Moreover, appellant had been advised of his rights on at least two occasions prior to making the statement.

Since any discussion of possible lenient treatment of appellant occurred after appellant’s confession, no inducement to confess was present. Therefore, we determine that the trial court was correct in admitting this confession. Israel v. State, Ala.Cr.App., 363 So.2d 1044 (1978).

There being no error shown by the record in this case, this case is due to be and is hereby

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Leola SANKEY v. STATE.
    3 Div. 64.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.

      George E. Hutchinson, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., George Hardesty, Jr., Special Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of murder in the first degree. It was alleged in the indictment that defendaht “unlawfully, and with malice aforethought, killed Jimmy Tucker, by shooting him with a shotgun.”

The undisputed evidence shows that the alleged victim was wounded about 10:00 or 11:00 P.M. June 13, 1978, by one or two blasts from a .410 gauge shotgun that resulted in his death the following day.

Defendant pleaded not guilty and not guilty by reason of insanity. Appellant urges that on the issue raised by each plea the evidence was not sufficient to support the verdict and the court’s action in overruling defendant’s motion for a new trial. We discuss each contention under a separate caption.

PLEA OF NOT GUILTY

Jerome Tucker, the son of the alleged victim, testified that he had had a fight with the defendant prior to the time his father was shot, that later that evening while he was at home, he saw an automobile with defendant in it go by and that defendant shouted out of the window of the automobile “that we got the ‘MF.’ ” He said he then went to look for his father and found him on the ground with gunshot wounds in the area of his abdomen; he and his brother then took the victim to the hospital. He said that on the way to the hospital his father told him that defendant and her son, Max Hall, Jr., shot him.

Patricia Hall, the thirteen-year-old daughter of defendant, testified that defendant told her son, Max Hall, Jr., that Jerome Tucker had beaten her; her mother got a pistol and Max got a shotgun; the three of them, with two other persons, went in an automobile to where Jimmy Tucker was at the time. Defendant and Max got out of the automobile and soon thereafter she heard Jimmy Tucker’s voice and some shots from a shotgun or shotguns. The witness ran from the scene. Upon her return her mother told her that they had killed “Mr. Jimmy.”

The sister of defendant testified that having heard of the fight between defendant and Jerome Tucker, she and Jimmy Tucker went down to Lacie Evans’ .house to use his telephone and call the Sheriff’s Department; she went inside the house and Jimmy Tucker stayed on the outside with a shotgun. She heard a shot on the outside arid heard the voice of Jimmy Tucker and the voice of her sister, defendant. She heard Jimmy Tucker say, “Leola, you done shot me once so don’t shoot me no more.” She heard her sister say, “I done killed that Mother _,” and that there were two more she was going to kill. She said defendant then broke into the house.

Other witnesses testified as to the events that culminated in the death of Jimmy Tucker, but there is no substantial evidence that points to any reasonable conclusion other than that defendant, though perhaps provoked, took an active part with her young son, while each was armed, in aggressively planning and causing the death of Jimmy Tucker. The testimony is inconclusive as to whether defendant or Max Hall fired the .410 shotgun that killed Tucker, but there is no escape from the conclusion that one of them did so; that if Max Hall did so, defendant was aiding and abetting him at the time.

PLEA OF NOT GUILTY BY REASON OF INSANITY

Almost all of appellant’s assertions of reversible error revolve around this issue.

■ The evidence from witnesses called by the State, as well as witnesses called by defendant, is profuse with testimony as to defendant’s irrational behavior during the day and night of the homicide and at times for a long period before. According to the evidence, defendant had been a patient at Bryce Hospital in 1969 for an “acute schizophrenic episode.” She was later treated at the Montgomery Mental Health Clinic, provided medication on a monthly basis to control her psychotic symptoms and continued on such medication until April 1978, two months before the homicide.

Defendant was again admitted to Bryce Hospital two days after the homicide, where she remained until August 16, 1978, when her condition had stabilized because of medication.

All of the lay witnesses who testified as to defendant’s mental condition were relatives of defendant. They included a daughter and sister who testified on call of the State and whose testimony we have discussed under the caption of “PLEA OF NOT GUILTY.” Testifying on call of the defendant were Lucille Pritchett, defendant’s aunt; Pauline Sankey, defendant’s daughter; Mossie Thomas, defendant’s sister, and Samuel Thomas, the husband of Mossie Thomas. By mentioning the relationship between said witnesses and defendant, no implication is intended in derogation of the trustworthiness of their testimony. As a whole, all of their testimony as to the mental condition of defendant is impressive as a sincere effort to adhere strictly to the truth in their unenviable status as witnesses, torn between a natural affection for defendant and their consciousness of the consequences of her conduct. In general, their testimony is remarkable for the abundance of their recognition of defendant’s “strange,” “crazy,” and abnormal behavior at times and the scarcity of definite opinions that she was insane at the time of the crime or that she was incapable of discernment between right and wrong. Most of them referred particularly to the occasion of a funeral for defendant’s grandmother that occurred the Sunday before Jimmy Tucker was killed. One was impressed by defendant’s conduct while the two were looking around the cemetery before the funeral, when defendant seemed “upset” and stated that on a gravestone of one of their relatives the date was wrong. Another observed that on the day of the funeral of defendant’s grandmother, defendant made the statement that some of the people at the funeral were talking about defendant. It seems that she was not in complete control of her emotions on that occasion.

Reference was made, by most of the relatives who testified, to occasions when defendant would undress in their presence. The record is not clear as to whether this was done in an area of relative privacy or otherwise.

There was also testimony by relatives of defendant that at times she claimed that she was God. Her claim in this respect seems to have been stressed soon after the death of Jimmy Tucker.

Although Samuel Thomas, defendant’s brother-in-law, had not known defendant as long as her relatives by consanguinity, it appears from his testimony that the only time she had ever caused him to consider her conduct “strange” was on the occasion of her grandmother’s funeral. Excerpts from his testimony are as follows:

“A. Yes. It was a time at her grandmother’s funeral, we was going to the cemetery and she walked over toward me and said, ‘Samuel, people was riding with us.’ And she said, they were talking about her. I said, ‘No, they aren’t talking about you, they don’t even know you.’ And she said, ‘Yes, they are. They are talking about me.’ And I said, ‘No, they aren’t talking about you.’ And we left it like that.
“Q. Anything else that indicated to you or was a strange incident or occurrence that you can remember?
“A. No, that was all.
“Q. And this was the Sunday before the shooting of Jimmy Tucker on that Tuesday.
“A. That’s right.
“Q. And in the seven or eight years that you have been knowing her, did you have occasion to spend time with her?
“A. No.
“Q. But on this particular occasion of the funeral, that was strange to you? “A. Right, yes.
“Q. Mr. Thomas, being upset at the funeral, you are not equating that to be crazy, are you?
“A. No, I wouldn’t call it that.”

The only lay witness unrelated to defendant who testified as to her mental condition was Jerome Tucker, son of the victim. On redirect examination he seemed to sum up his opinion as to her mental condition as follows:

“Q. Jerome, I believe you answered defense counsel’s question when he asked you about Leola’s sanity from the time she left the hospital until the time of this incident. And he asked you whether or not she was crazy. Was your answer that she was not crazy?
“A. I don’t know, sir.
“Q. Well, did she give you the impression that she was crazy?
“A. The way she was acting — the way she acted about do you want to fight or anything, she acted like she was crazy.
“Q. Okay. What I’m saying is, between the time that she — was it more like she was crazy or she was mad?
“A. Both to me.
“Q. Okay. The time between when she went off the crazy house—
“A. Yes, sir.
“Q. —Would this have been the first time that she acted crazy or anything like that?
“A. The first, you know, I have seen her.
“Q. I believe you stated you saw her almost every day.
“A. Yes, sir.”

Defendant testified in her own behalf. Her testimony as to what occurred between her and Jerome Tucker is reasonably clear. Her testimony as to what occurred at the time of the killing of Jimmy Tucker is not clear. A part of it is as follows:

“Q. But you do remember seeing Jimmy Tucker?
“A. Yes, sir.
“Q. Did you shoot Jimmy Tucker?
“A. No, sir.
“Q. With a shotgun?
“A. No, sir.
“Q. Did you shoot Jimmy Tucker with a pistol?
“A. No, sir.
“Q. Well,, what happened to Jimmy Tucker after you first saw him?
“A. Jerome went and got them. Jimmy Tucker was going to shoot me and my son with this shotgun right here.
“Q. Is that Jimmy Tucker’s shotgun?
“A. Yes, this is his gun right here.
“Q. Okay. Did you tell Max to shoot Jimmy Tucker?
“A. No, sir. I didn’t tell Max nothing like that.
“Q. Did you and Max plan to shoot Jimmy Tucker?
“A. No, sir.
“Q. Did you plan to shoot anyone?
“A. No, sir.
“Q. Do you remember going — do you remember seeing Jimmy Tucker shot?
“A. Yes, sir. I see him shot at us. They shot at us first.
“Q. Did you see Jimmy Tucker get shot?
“A. No, sir, I ain’t seen him get shot.
“Q. Did you see him at all after he ran?
“A. Jerome ran. Jimmy Tucker stayed with his shotgun.
“Q. Did Jimmy Tucker run?
“A. No, sir.
“Q. But you didn’t see him any more after he shot in the air?
“A. Yes.”

On recross-examination, defendant said:

“Q. Are you crazy now?
“A. Who?
“Q. You.
“A. No, sir, not now.
“Q. Not now?
“A. Not now.”

No physician testified in the case. No witness with any special education, training or experience in the field of mental disorders, other than Carolyn Pike, who only saw defendant on “one occasion” prior to her testimony, who worked with the Montgomery Area Mental Health Center and spoke largely from the record of such Center, commencing in 1969 and continuing with interruptions until September 1978. She prefaced some of her answers to questions by stating, “I have no medical qualifications.” The salient part of her testimony on direct examination by defendant is as follows:

“Initially, I believe — now, I’ll have to check the record to be sure, but I believe she was taking mellaril, which is an anti-psychotic medicine, which is a tranquilizer. We soon switched her to another anti-psychotic medication, compazine, on which she was maintained from 1971 until April 1978, when we recommended she discontinue the medication.”

The witness referred to side effects from some of the medication. She also referred to Dr. Averrett, a physician, who saw defendant in October 1978, about three months before her trial. As a part of defendant’s Exhibit 1, admitted in evidence, an entry by Dr. Margaret Averrett, physician consultant, is as follows:

“Sankey, Leola # 3281
“10-24-78 PHYSICIAN’S NOTE:
“The patient is a 36-year-old black female with the diagnosis of Schizophrenia, Chronic, Undifferentiated Type, recently discharged from Bryce Hospital. On discharge, she was taking Thorazine, 200 mgs. t.i.d., Lithium Carbonate, 300 mgs. t.i.d., and Akineton, 2 mgs. b.i.d. On 9-19-78, she was seen by Ms. Smith and medication was changed to Thorazine, 400 mgs. h.s., and Cogentin, 2 mgs. h.s. Today, she is neatly dressed, pleasant and cooperative. She has no complaints, says she is doing alright, sleeps well and is happy at home. She shows no sign of extrapyramidal symptoms. She is being followed in HSI Clinic for hypertension and takes some medication for that. Prescription given for Thorazine, 200 mgs. 2 h.s., # 70, 1 refill, Cogentin, 2 mgs., 1 h.s., # 35, 1 refill, to return in two months.”

Appellant argues that the evidence overcame as a matter of law the presumption of sanity to be found in the Code of Alabama since 1896.

“Every person over 14 years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon' the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.” Code 1975, § 15-16-2.

Appellant places reliance largely upon the authority of Christian v. State, Ala., 351 So.2d 623 (1977). The action of the Supreme Court in reversing the conviction of Christian on the ground “that the overwhelming evidence presented by appellant has amply overcome the presumption of sanity as to this accused” and that the verdict in the case was “contrary to the preponderance of the evidence and that this cause must be reversed” has been followed by a reversal for the same reason in Woods v. State, Ala.Cr.App., 364 So.2d 1178, cert. denied Ala., 364 So.2d 1186 (1978) and Herbert v. State, Ala.Cr.App., 357 So.2d 683, cert. denied Ala., 357 So.2d 690 (1978). We are informed by Judge Bowen in Meredith v. State, Ala.Cr.App., 370 So.2d 1075, 1076, cert. denied, Ala., 370 So.2d 1079, as to Christian, Woods and Herbert, with “the addition of Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954),” that:

“. . . [Tjhese four cases represent the only occasions where judgments of conviction have been reversed by an appellate court of Alabama because the jury verdicts were contrary to the preponderance of the evidence on the issue of insanity.”

As was found in Meridith, supra, we find that the evidence on the question of insanity “falls far short of that presented in Christian, Woods, Herbert, and Pickett.”

As opposed to the absence of any testimony of experts in the instant case, in Pickett, supra, there was strong, unchallenged testimony of one or more medical experts. A physician who practiced in the town where defendant lived, who had previously treated him, whose practice included treatment of patients of unsound mind, said that in his opinion “The appellant was congenitally feeble minded and was of a mental age of four or five years.” There was evidence that defendant could never get beyond a “D” in his ABC’s. A trustee of the school attended by Pickett testified that he never “made a grade” during his schooling.

In Christian, supra, each of three psychiatrists testified that “Christian was insane at the time he committed the homicide.” In Woods, supra, defendant was examined by competent psychologists and a psychiatrist at Bryce Hospital. Both concluded that he was “legally insane at the time he committed the offense and that he did not know right from wrong.” In Herbert, supra, a professor in psychology at the University of Alabama testified that the appellant was insane at the time of the crime. The then chairman of the Forensic Evaluation Board at Bryce Hospital, testified that, in his opinion, “the appellant did not know right from wrong” with regard to “the homicide with which he was charged.”

In the four cases cited, the testimony of recognized experts of insanity at the time of the alleged crime was definite, clear, positive and uncontradicted. There is no such testimony in this case. In the case now before us, the non-expert testimony unquestionably portrayed defendant as a person with serious mental problems. However, it missed the mark of convincing proof that defendant was insane at the time she committed the crime.

That issue was properly submitted to the jury, and the trial court was not in error in overruling defendant’s motion for a new trial.

Appellant’s only asserted issue unresolved hereinabove is focused upon the following part of the State's cross-examination of Ms. Carolyn Pike, the mentioned employee of the Montgomery Area Mental Health Center:

“Q. Are you’all concerned at the present time about whether or not she would retrogress and commit other schizophrenic episodes — go into other schizophrenic episodes?
“A. Yes, sir.
“Q. You are concerned about this?
“A. Yes. That is why we have her on medication at this time.
“Q. And if she happened to kill people when she is one of the schizophrenic episodes, do you just keep her on medication?
“MR. HUTCHINSON: Judge, I am going to object to the speculative-type question. We haven’t laid a predicate that she is an expert.
“THE COURT: Well, if she can’t answer, she won’t have to.
“Q. These schizophrenic episodes, do they go and come?
“A. May I say that I am being asked, it seems to me, to testify as an expert witness.
“Q. Well, you are an expert witness.
“THE COURT: Don’t argue. If you can’t answer, just tell him you can’t answer. Let’s move along.
“The Witness: I can answer it, but it would be speculative. In my experience, yes. Psychotic episodes do come and go.
“Q. Okay. And notwithstanding that fact, you just still keep them on medication and’let them run out in public.
“THE COURT: You are arguing.
“MR. GILLIS: No other questions at this time.
“THE COURT: Anything further from this witness?
“MR HUTCHISON: That’s all, Your Honor.
“(At this time, the witness was excused and released.)”

Appellant likens the quoted cross-examination to the argument of counsel for the State which the Supreme Court held to be so improper and prejudicial as to require a reversal of the judgment of the trial court in Christian v. State, supra. In some respects, implications of the quoted questions in the instant case are similar to the argument considered in Christian, supra, as well as in the most recent reported case on the subject. White v. State, Ala.Cr.App., 376 So.2d 1129, cert. denied, Ala., 376 So.2d 1132 (1979). They border upon efforts to influence the jury into believing that when a verdict of not guilty by reason of insanity is returned, the defendant will immediately or eventually be released from confinement as a likely prospect for a repetition of criminal conduct. Such argument, such efforts have been uniformly condemned. Allred v. State, 291 Ala. 34, 277 So.2d 339. They are highly improper. Christian v. State, supra; Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973); Dunn v. State, 277 Ala. 39, 166 So.2d 878 (1964); Boyle v. State, 229 Ala. 212, 164 So. 575 (1934); Anderson v. State, 209 Ala. 36, 95 So. 171 (1922).

We do not approve the quoted questions asked by counsel for the State. Nevertheless, we do not find that they transgress the established rule. They fall short of the highly prejudicial argument made in Christian, supra, and cases relied upon therein, which argument rose in crescendo to the final statement of State’s counsel on the subject as follows:

“If you return a verdict of not guilty by reason of insanity against this man, this means this man is scott free — free to walk the streets of Tuscaloosa again.”

Such statement is unmatched by anything contained in the quoted questions in the instant case.

Moreover, we should note that in Christian the Supreme Court held that the issue as to the prejudicial remarks of the prosecution was raised by defendant on his motion for a new trial, which “preserved the issue” for review. There was a motion for a new trial in the instant case, but it contained no ground referable to the point now under consideration. It is to be noted in the portion of the record quoted above the defendant did not make a similar complaint to the one now made by appellant.

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

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

AFFIRMED.

All the Judges concur.


text:
    Hattie Mae BURTON v. STATE.
    3 Div. 117.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    William W. Gobrecht, of Skinner & Go-brecht, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Montgomery County returned an indictment for grand larceny against the appellant, Hattie Mae Burton, and she entered a plea of not guilty, and was convicted, sentenced to three years imprisonment, and placed on probation for five years conditioned that she serve one full year, and upon release maintain steady and full time employment.

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

Appellant states in her brief that the issues presented for review by this Court are: 1st., that the trial court erred in its oral charge to the jury by improperly defining, (a) “reasonable doubt” (b) “aider and abetter,” and (c) “circumstantial evidence.” 2nd., that the trial court erroneously sentenced the appellant by invading the province of the legislative and executive branches of the government of the State of Alabama.

The first issue complained of by appellant is not presented to this Court for our consideration. We have searched the entire record and do not find any objections or exceptions made to any part of the trial court’s oral charge to the jury at any time before the jury retired for its deliberation. We hold that an objection or exception to a part of a trial court’s oral charge to a jury must be made before the jury retires from the courtroom to begin its deliberation. Tillis v. State, 292 Ala. 521, 296 So.2d 892; Holliday v. State, Ala.Cr.App., 346 So.2d 26.

. The second issue contained in appellant’s brief states that the trial judge’s sentence is erroneous to the extent that it invades the province of the legislative and executive branches of the government of the State of Alabama wherein the trial judge purports to retain administrative control over the sentence after the appellant is delivered to correction authorities.

From the record before us we find that on February 16,1979 the appellant was duly tried and a jury verdict was returned finding the appellant guilty of grand larceny. That the appellant requested probation and the case was continued to March 7,1979 for sentencing and probation hearing. That on May 10, 1979 appellant was duly sentenced to be imprisoned in the penitentiary for three years.

Appellant’s request for the benefits of probation was considered by the trial court, and an order suspending the sentence of three years was entered, and appellant placed on probation for five years conditioned that she serve one full year in the penitentiary and upon her release maintain steady and full-time employment. Appellant gave notice of appeal to this Court on May 10, 1979.

The punishment for grand larceny is not less than one nor more than ten years. Code Of Alabama, 1975, Sec. 13-3-50. The appellant was indicted for grand larceny and the jury verdict was: “We the jury find the defendant guilty as charged in the indictment,” and the court’s sentence was within the limits provided by the statute. We hold that the trial court did not err when it imposed a 3 year sentence on the appellant. The appellant contends that the court committed error when it suspended the sentence of 3 years and placed the appellant on probation for 5 years conditioned that appellant serve one full year of the sentence, and upon release maintain steady and full-time employment.

This Court is committed to the proposition that no appeal lies from an original order of a trial court granting or denying, probation. We hold that an original order granting or denying probation is within the discretion of the trial judge and is not reviewable on appeal from a judgment of conviction. Turner v. State, Ala.Cr.App., 365 So.2d 335, certiorari denied, Ala., 365 So.2d 336; Woods v. State, Ala., 371 So.2d 944; Hughes v. State, 45 Ala.App. 250, 228 So.2d 862; Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218.

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.


text:
    Clem TAYLOR v. STATE.
    3 Div. 139.
    Court of Criminal Appeals of Alábama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    Horace N. Lynn, of Piel & Lynn, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of robbing Jack Reep and was sentenced to imprisonment for forty years.

According to the testimony of Jack Reep, he was employed at North Court Street Grocery and while he was working on the evening shift, January 13, 1979, defendant entered the store and inquired whether there was a pair of scissors in stock. Reep directed defendant to the scissors, defendant went toward the scissors, returned to the counter, stuck the scissors in Reep’s side and stated, “This is a robbery, give me the money.” Reep’s testimony continued in part as follows:

“I said, ‘Yes, sir,’ and he shoved me on back behind the counter in the corner with the scissors, and I just could get in the cash drawer to get the money out.
“Q. How did you manage to do that?
“A. Well, I couldn’t hardly reach the register where the money was.
“Q. Why was that?
“A. Well, he had me pretty tight with those scissors, and he said, ‘give me all the money.’ I said, ‘All right.’ and I kept trying to get the money out of the drawer and finally I got the money out of the drawer and put it in his hand, and I tried to keep my eye on him because I was scared of those scissors, and I put the money in his hands, and I don’t know why he looked off or looked down, or what, but I happened to knock the scissors out of his hand or money out of his hand and put my gun on him.
“Q. The gun? Where did you have your gun?
“A. I had it in my left pocket.”

Further testimony of the witness and the evidence as a whole show without dispute that the amount of money involved was $71.00 in currency, as charged in the indictment; all of it and the scissors fell or were knocked from the hand of defendant to the floor; Reep, by actual force or by means of his gun, put defendant on the floor and about the same time pressed an alarm buzzer. Defendant was held to the floor until someone called the police by phone, and they promptly arrived and arrested him.

In its oral charge, the court fully instructed the jury as to the offense of robbery, the offense of assault with intent to rob, and the offense of attempt to rob (Attempted robbery). Upon further consideration, however, the court withdrew its instruction to the jury as to an attempt to rob (attempted robbery), limited the jury to a consideration of whether defendant was guilty of robbery and a consideration of whether he was guilty of an assault with intent to rob, and to three forms of verdict, (1) guilty of robbery, (2) guilty of an assault with intent to rob, and (3) not guilty, and refused a written charge requested by defendant that would have permitted a verdict of guilt of an attempt to rob.

According to the evidence as stated and indicated, there was either a robbery or an assault with intent to rob. The undisputed evidence shows that force was used by defendant that caused the victim to put the money in defendant’s hand, that an assault was committed upon the victim, that defendant clearly had the intent to rob, and that there is no basis for the application of the lesser included offense principle to the offense of an attempt to rob. Only when there is evidence sufficient to show that a particular lesser included offense only has been committed, is there any occasion for an instruction as to such lesser included offense. As stated in Golston v. State, 57 Ala.App. 623, 330 So.2d 446, 450 (1975):

“. . . The question here is not whether defendant was guilty of an attempt to rob. A robbery cannot be committed without some effort, some attempt to rob on the part of the robber; in any robbery there is an attempt to rob. The question here is whether defendant could have been guilty under the evidence of merely an attempt to rob as distinguished from robbery. . . . ”

The court was not in error in refusing defendant’s requested charge as to an attempt to rob or attempted robbery.

A more difficult question is presented as to whether defendant should have been convicted of robbery on the one hand, or an assault with intent to rob on the other. This turns on whether the evidence was sufficient to warrant a conclusion that there was an asportation of the money. The facts are similar to the facts in Golston v. State, supra, but more favorable to appellant herein than to the appellant therein on the question. In Golston, we said:

“. . . Asportation is necessary in robbery, as it is in larceny, but the aspor-tation does not have to be for any extended distance.
‘The crime of robbery is complete as soon as the robber unlawfully and by means of force or fear gains possession of the movable property of another in the presence of its lawful custodial [n instead of 1] and reduces it to his manual possession. Robbery is committed when a thief puts a man in fear, and then in his presence drives away his cattle, or takes his goods, or intimidates the owner into opening his desk or safe, from which the defendant then takes the papers. . .’ Wharton’s Criminal Law and Procedure, § 553 (12th Ed.)”

Some light is shed upon exactly what occurred during the few moments of the encounter between defendant and the victim by photographs introduced in evidence of the scene, including the cash register and the money, and by demonstration of bodily movement in the presence of the jury. The court thoroughly and accurately instructed the jury on the difference between a robbery and an assault with intent to rob. The record does not convince us that the evidence was insufficient to support the verdict that defendant was guilty of robbery. Golston v. State, supra; Webb v. State, 55 Ala.App. 195, 314 So.2d 114 (1975), cert. denied, 294 Ala. 774, 314 So.2d 116; Walker v. State, 43 Ala.App. 582, 196 So.2d 727 (1967), cert. denied, 280 Ala. 719, 196 So.2d 729.

A written statement was obtained from defendant that set forth substantially what Jack Reep had testified. Although there was some evidence that he was intoxicated at the time he made the statement, the evidence is not sufficient upon which to base a conclusion that his intoxication amounted to mania in which he was unconscious of the meaning of his words. By that criterion the extent of his intoxication is to be judged for the present purpose. Edwards v. State, 56 Ala.App. 405, 321 So.2d 744 (1975); Patterson v. State, 56 Ala.App. 359, 321 So.2d 698 (1975). In that respect, as well as in all other respects, as to which no special contention is made, the preliminary proof met the test of voluntariness, and after the Miranda warnings were given, which clearly they were, the statement was admissible in evidence.

Appellant asserts another ground for the objection made on the trial to the admission in evidence of the incriminating statement. He contends that the statement should not have been admitted for the reason that it contained two references by defendant to previous criminal conduct. This objectionable feature of the statement does not furnish a valid ground for the rejection of the statement in its entirety. Furthermore, we are of the opinion that such references did not injure defendant. In the statement, defendant attempted to excuse or extenuate his conduct by claiming that he was acting under duress of persons named by him and that his previous criminal conduct made him less resistant to such duress.

As there is no error in the record prejudicial to defendant, the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Cornelius Donald LYNN v. STATE.
    3 Div. 974.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Donald R. Harrison, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the robbery of Willie L. Boswell. Sentence was fifty years’ imprisonment.

I

The testimony of the victim presented clear and unequivocal evidence of each of the three elements of the crime of robbery. Baker v. State, 344 So.2d 547, 549 (Ala.Cr.App:l977). His testimony alone was sufficient to authorize the submission of the issue of the defendant’s guilt or innocence to the jury. If believed, his testimony would support a conviction for robbery. Arnold v. State, 348 So.2d 1092, 1097 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977).

II

Under the evidence the defendant was guilty of robbery or he was innocent; either the jury believed the victim’s testimony or they accepted the defendant’s alibi defense. Consequently, the trial judge properly refused to give the defendant’s requested charges on assault and battery, attempted robbery and grand larceny, as the evidence did not warrant a finding of guilt as to any lesser included or related offense. Henderson v. State, 373 So.2d 1218, 1221 (Ala.Cr.App.), cert. denied, 373 So.2d 1221 (Ala.1979); Golston v. State, 57 Ala.App. 623, 627, 330 So.2d 446 (1975).

III

Following the robbery, Mr. Boswell identified the defendant at the police station. The trial judge found and we agree that the evidence does not support the defendant’s motion to exclude Mr. Boswell’s in-court identification. The showup identification procedure was not unduly suggestive, Brazell v. State, 369 So.2d 25, 29 (Ala.Cr.App.1978), and did not present a substantial likelihood of misidentification. Griffin v. State, 356 So.2d 723, 724 (Ala.Cr.App.), cert. denied, 356 So.2d 728 (Ala.1978); Jackson v. State, 361 So.2d 1152, 1156 (Ala.Cr.App.1977). The evidence shows that Mr. Boswell identified the defendant when he “walked in the door” at the police station and that the police did not suggest any identification. The uncontradicted evidence is that Mr. Boswell “knew him before I walked in the door. They didn’t have to tell me.” “We know of no presumption of suggestiveness, and hence prima facie inadmissibility, which attaches to a pretrial pre-indictment identification procedure.” Henderson, 373 So.2d at 1221.

IV

The defendant contends that his right to appeal was “thwarted by inaction on the part of the court reporter”. The record shows that this Court, pursuant to Rule 11 of the Alabama Rules of Appellate Procedure, granted three extensions of time for the filing of the court reporter’s transcript. The question raised by the defendant was fully considered in Carter v. State, 356 So.2d 682, 688 (Ala.Cr.App.), cert. denied, 356 So.2d 689 (Ala.1978), wherein it was held that a criminal defendant was not effectively denied procedural due process in perfecting his appeal from his conviction merely by virtue of the fact that the trial court had granted twelve extensions of time to the court reporter for preparing the trial transcript. Those same principles apply in this case and we find the defendant’s argument to be without merit.

V

The screwdriver used by the defendant was properly admitted into evidence over defense counsel’s objections that the State had failed to prove a proper chain of custody. Williford v. State, 365 So.2d 1257, 1258 (Ala.Cr.App.), cert. denied, 365 So.2d 1258 (Ala.1979); Thomas v. State, 356 So.2d 210, 212 (Ala.Cr.App.), cert. quashed, 356 So.2d 214 (Ala.1977). The screwdriver was not linked to the defendant by scientific analysis (i. e., fingerprints) in an inculpato-ry fashion. Under such circumstances,

“the practicalities of proof may not require a party offering certain evidence to negative the remotest possibility of substitution or alteration; all that need be established is a reasonable certainty that there has been no substitution, alteration, or tampering with the specimen.” A. Moenssens & F. Inbau, Scientific Evidence in Criminal Cases, at 58 (1978).

VI

On rebuttal the State attempted to elicit testimony about a statement the defendant made to a police officer after his arrest. The trial judge sustained the defendant’s objections and would not allow the State to pursue the matter. The defendant now contends that it was error for the court to fail to instruct the jury to disregard any references to the statement.

While defense counsel did move to strike “anything about that” the trial judge never ruled on that particular motion. From the record it appears that the judge merely failed to rule and did not refuse. No ruling was sought on this particular motion, and the court granted the defendant’s specific objection that the statement was not proper rebuttal. The defendant did not request any instructions be given the jury on this matter.

Under these circumstances, the defendant has no adverse ruling from which to appeal. Van Antwerp v. State, 358 So.2d 782, 790 (Ala.Cr.App.), cert. denied, Ex parte Van Antwerp, 358 So.2d 791 (Ala.1978). This case does not fall within the exception stated in Small v. State, 348 So.2d 507 (Ala.1977).

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

AFFIRMED.

All Judges concur.


text:
    Robert CARPENTER, alias v. STATE.
    6 Div. 65.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.

      John A. Bivens, of England & Bivens, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant “guilty of unlawfully selling, furnishing, or giving away marijuana” as charged in an indictment and fixed “a fine of $5,000 as punishment,”'to which additional punishment of imprisonment for four years was imposed by the trial court. The punishment was within the range of the fine and imprisonment prescribed by Code of Alabama 1975, § 20-2-70.

By his counsel appointed to represent him on appeal by reason of his indi-gency, appellant makes a strong argument challenging the sufficiency of the evidence to withstand defendant’s motion for a new trial, which the trial court overruled. Appellant lays stress upon the fact that there was no corroboration of the testimony of an undercover narcotic agent for the Alabama Beverage Control Board that on October 12, 1978, he paid defendant ten dollars for a packet of substance that an expert witness testified was marijuana. He argues that the nature of the agent’s work and the compensation that he is paid therefor preclude his classification as a disinterested witness. In addition, appellant urges that defendant’s testimony, supported to some extent by other witnesses, that he was not present at the time and place the undercover agent testified the sale occurred, outweighs testimony of the undercover agent. Without denigrating the contention of appellant, we must answer by stating that an appellate court should not override the determination by the trial court as to the weight of the evidence in a case unless it clearly appears that the verdict is palpably wrong or unjust. Colvin v. State, 39 Ala.App. 355, 102 So.2d 911 (1958); Barker v. State, 55 Ala.App. 332, 315 So.2d 129, cert. denied 294 Ala. 752, 315 So.2d 130 (1975); Smith v. State, Ala.Cr.App., 342 So.2d 422 (1977). The verdict of the jury was within its province. The action of the trial court in overruling defendant’s motion for a new trial was within the range of the discretion vested in the trial court and did not constitute error.

While the undercover agent was testifying as tó the identity of the person who sold him marijuana, defendant requested a hearing out of the presence of the jury, which was granted, and defendant then endeavored to show that there had been a pretrial identification by the witness of the defendant, which defendant contended was an improper lineup that tainted his in-court identification and that the witness should not have been allowed to testify in court as to who the person was who sold him the controlled substance. Appellant now presents the same contention. It is to be noted, however, that the hearing out of the presence of the jury did not show a lineup, or any conduct that would have had the effect of an improper lineup. Pertinent parts of the testimony of the undercover agent on the hearing out of the presence of the jury were as follows:

“Q. Mr. Crawford, did you have occasion to be at the county jail, Tuscaloosa county jail, some time around November 16, 1978?
“A. Yes, sir.
“Q. All right, and on that occasion, was that in the late afternoon you were there?
“A. I was there about all day.
“Q. All right, did you have occasion to observe the defendant at the Tuscaloosa county jail on that occasion?
“A. Yes, sir.
“Q. And was he not put in a lineup room on that occasion?
“A. No, he was not.
“Q. Where was he?
“A. He was brought in separately.
“Q. He was brought in by himself, wasn’t he?
“A. Yes, sir.
“Q. And shown to you at that time?
“A. Yes, sir.
“MR. BIVENS: We strenuously object to the Court proceeding with identification of this witness when this man sat up here and testified that he saw the defendant by himself pointed out to him at the county jail.
“THE WITNESS: No, he was not pointed out. . . .”

After the undercover agent had testified, he was recalled by defendant for further cross-examination, and during the further cross-examination he was again interrogated as to his pretrial identification of defendant. He testified as follows:

“Q. Tell the jury, please, how that iden-. tification process came about.
“A. How the identification process came about, they put you in a room.
“Q. Put who in a room?
“A. Me, in a room by myself and they have what you call a one-way mirror and they will bring a suspect in and they will ask who is that, and I tell them that is John Doe, Jane Doe, or whoever it might be.
“Q. They didn’t tell you that was Robert Carpenter?
“A. No, sir, they didn’t.
“Q. They didn’t tell you that was 180 pound small goatee, mustache and small afro black man, did they?
“A. No sir.
“MR. BIVENS [Counsel for defendant]: No further questions, Judge.
“MR. BERTOLOTTI [Counsel for the State]: No further questions.”

The record does not disclose any impermissible suggestiveness in a pretrial identification of the defendant. Furthermore, the record affirmatively shows that the undercover agent had adequate opportunity to observe carefully the person who sold him the marijuana, The transaction between the two covered approximately eight minutes. The lighting conditions were good. The witness placed the name of the defendant on an envelope before handing it to another officer for security and chemical analysis. He wrote a description of the defendant that corresponded with the correct description of defendant on the date of the sale. Defendant testified that the apartment at which the undercover agent said the sale was made was the home of a female with whom defendant occasionally lived and that he was the “father of one of her kids.”

We conclude, not only that there was no improper pretrial identification of defendant, but also that the in-court identification was independent of any pretrial identification. The in-court identification was properly admitted in evidence. DeLoach v. State, Ala.Cr.App., 361 So.2d 19, writ quashed, Ala., 361 So.2d 21 (1977); Jackson v. State, Ala.Cr.App., 361 So.2d 1152 (1977); Hatchet v. State, Ala.Cr.App., 335 So.2d 415 (1976); McGuff v. Alabama, 566 F.2d 939 (5th Cir. 1978).

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

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

AFFIRMED.

All the Judges concur.


text:
    Willie TODD v. STATE.
    6 Div. 130.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      James M. Scroggins, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was convicted of the second degree murder of Carrie Houston “by beating her with a tire tool, shovel” or by means 'unknown. Sentence was fifty years’ imprisonment.

The two issues raised on appeal stem from the hearing difficulties suffered by prosecution witness Percy Thomas.

I

Here Mr. Thomas was not totally deaf but only hard of hearing although to a very significant degree. However even as to a deaf mute “(i)t is well settled by modern authority that it is permissible for such witness to testify against the objections that the party against whom such testimony is given will be put to great disadvantage in cross-examination to test the witness’s credibility”. Burgess v. State, 256 Ala. 5, 8, 53 So.2d 568, 571 (1951); Hyman v. State, 338 So.2d 448, 453 (Ala.Cr.App.1976); Brown v. State, 331 So.2d 820, 826 (Ala.Cr.App.1976).

“A deaf mute is not disqualified to be a witness by reason of such handicap. A deaf mute who can read and write, may give his testimony by the procedure of written questions to him and his written replies thereto and, if he can be communicated with by signs, his testimony may be given through an interpreter who understands such signs. In determining qualifications of a deaf mute to testify and the selection and qualification of the interpreter, much must be left to the sound discretion of the trial judge who has full opportunity to see and observe the witness and the interpreter in the presence and the hearing of the interested parties and their counsel. While a deaf mute may testify, the opposing party is entitled to request a written charge to the jury that the disability of the witness may be considered as bearing on the weight to be given the witness’ testimony.” C. Gamble, McElroy’s Alabama Evidence, § 94.-01(4).

II

The State was properly permitted to use an “interpreter” in examining Mr. Thomas.

“The use of an interpreter to convey a witness’ testimony to the jury is a practice approved by the judiciary. The determination of whether an interpreter should be used and whether a person is properly qualified to act as an interpreter rests largely within the discretion of the trial court.
“The constitutional right of an accused to be confronted with the witnesses against him requires the court to provide a deaf accused with an interpreter to interpret to the accused the testimony given against him. This requirement permits the accused to properly cross examine or aid his counsel in cross examining the witnesses against him.
“It should be pointed out that an interpreter is subject to impeachment the same as is any other witness called to testify.” McElroy, § 125.01.

Here the “interpreter”, John Hall, lived in the same neighborhood as Mr. Thomas. Mr. Hall was also a prosecution witness.

Defense counsel objected “for the record” but did not assign any specific ground. Unless the evidence objected to is patently illegal or irrelevant, an overruled general objection is insufficient to predicate error on appeal. McElroy, § 426.01(8). On cross examination, defense counsel requested and received “the benefit of the interpreter”.

In “interpreting” the testimony of a witness, an “interpreter” should be placed under oath. McElroy, § 125.01. Here, however, Mr. Hall did not translate or give the meaning of Mr. Thomas’ answers but only asked him questions so that Mr. Thomas could understand the questions asked by the district attorney and defense counsel. Since Mr. Hall did not testify to what Mr. Thomas was saying or attempting to say, there was no need to place Mr. Hall under oath.

Consequently, we find that there was no proper objection to the use of the interpreter, that even if there were proper objection, it was waived when defense counsel had the “benefit” of the interpreter and that the use of Mr. Hall in examining the witness was proper.

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

AFFIRMED.

All Judges concur.


text:
    Johnny HERREN v. STATE
    6 Div. 199.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
   BOWEN, Judge.

This is an appeal from a denial of a petition for writ of habeas corpus.

The petitioner was incarcerated in Jefferson County under a $3,000 bond on an indictment for robbery. Petitioner alleged he was indigent and therefore entitled to release without bond. A hearing was held at which petitioner was represented by counsel and the petition for habeas corpus was denied. The record contains no transcript of the testimony of that hearing. Consequently, this Court has nothing to review with respect to the order overruling the petition for writ of habeas corpus. Johnson v. State, 56 Ala.App. 627, 324 So.2d 341 (1975). Where an appeal is on the record proper without a transcript of the evidence, the only question presented on review is the regularity of the proceedings. Pitts v. State, 38 Ala.App. 342, 83 So.2d 258 (1955). In the absence of a showing to the contrary, the presumption is always that the trial court ruled correctly. Ballard v. State, 236 Ala. 541, 184 So. 260 (1938).

AFFIRMED.

All Judges concur.


text:
    Tom M. DEASON v. STATE.
    7 Div. 673.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    Tom. M. Deason, pro se.
    Charles A. Graddick, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Tom M. Deason was indicted by the grand jury for the offense of selling or offering to sell an unregistered security in violation of §§ 8-6-4 and 18, Code of Alabama 1975. Because of appellant’s claim of indigency, the trial court appointed counsel to represent appellant at trial. Appellant, however, objected to his appointed counsel and elected to proceed pro se. Trial was held on a plea of not guilty and the jury returned a verdict of “guilty as charged.” The trial court sentenced appellant to twenty months imprisonment in the penitentiary and fined him five thousand dollars ($5,000.00). This appeal followed.

The testimony of witnesses for the State clearly showed that in 1976 the appellant offered to sell stock in “Leaves of Gold, Inc.,” a Texas corporation organized to conduct gold mining operations in Cleburne County, Alabama. Prospective stockholders in “Leaves of Gold, Inc.” actually received shares in “Multi-Mode, Inc.,” an Alabama corporation which held a substantial block of shares in “Leaves of Gold, Inc.”

Leonard Mayes, Chief Securities Examiner, for the Alabama Securities Commission, testified that he began an investigation of “Leaves of Gold, Inc.” in October of 1976 and discovered that, although stock in the company was in Alabama, the stock was not registered with the Alabama Securities Commission.

Wiley Deal testified that in July of 1976 the appellant discussed with him “Leaves of Gold’s” process of extracting gold from ore. At that time, Mr. Deal contracted with the appellant to buy stock in “Leaves of Gold” and gave him a check. The check, however, at appellant’s insistence was made payable to “Multi-Mode, Inc.” The appellant explained to Mr. Deal that “Leaves of Gold, Inc.” pertained only to gold mining in Alabama while “Multi-Mode” stock would allow him to benefit from mining operations all over the United States.

The defense advanced by appellant at trial and continued on appeal primarily consisted of denials of responsibility for registration of the stock, coupled with vague allegations of harassment from Alabama public officials.

I

Section 8-6-4 of the Alabama Code 1975 reads as follows:

“It is unlawful for any person to offer or sell any security in this state unless:
(1) It is registered under this article;
(2) The security is exempt from registration under section 8-6-10; or
(3) The transaction is exempt under section 8-6-11. (Acts 1959, No. 542, p. 1318, § 3.)”

“Offer” or “offer to sell” includes every attempt to offer or dispose of, or solicitation of an offer to buy, a security or interest in a security for value. § 8-6-2(8), supra.

The evidence presented at trial clearly established the offense charged in the indictment.

II

The grand jury of Calhoun County charged by indictment that appellant “willfully and unlawfully aided and abetted and caused Leaves of Gold, Inc. (not indicted herein), a corporation organized under the laws of the State of Texas, to offer or sell a security, to-wit: ten cents par value common stock of said Leaves of Gold, Inc., in the State of Alabama at the time said security was not registered under Chapter 1 of Title 53, Code of Alabama (1940), as amended, against the peace and dignity, etc.” (Omitting formal parts)

Appellant demurred to the indictment on the following grounds:

1. For that said indictment is vague and uncertain.

2. For that said indictment fails to adequately apprise the defendant of what he is called upon to defend against.

3. For that said indictment fails to adequately describe or identify the person or entity of which the defendant is alleged to have aided or abetted.

4. For that said indictment fails to adequately describe the alleged manner or actions in which the defendant willfully and unlawfully aided or abetted any person or entity.

5. For that said indictment merely states a conclusion.

6. For that said indictment fails to adequately identify or describe what sections or provisions of Chapter 1 of Title 53, Code of Alabama (1940), were allegedly violated.

7. For that said indictment makes reference to a security not registered “under” Chapter 1 of Title 53, Code of Alabama (1940). This defendant nor his attorney is not appraised and does not know what said term means or attempts to mean or signify.

The indictment clearly is phrased “in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.” § 15-8-25, Code of Alabama 1975; Manson v. State, Ala.Cr.App., 349 So.2d 67, cert. denied, Ala., 349 So.2d 86 (1977).

Moreover, an indictment must not be held insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of any defect or imperfection in any matter of form which does not prejudice the substantial rights of the defendant on the trial. § 15-8-4, supra.

The trial court correctly overruled appellant’s demurrer in this cause.

Ill

The written requested charges by appellant which were refused by the trial judge were either incorrect or abstract statements of the law, misleading or invasive of the province of the jury, or were fairly and adequately covered by the trial court’s oral charge, or by other written requested charges which were given to the jury. § 12-16-13, supra. Mains v. State, Ala.Cr.App., 375 So.2d 1299 (1979), and authorities therein cited.

The record discloses no error. The judgment is hereby

AFFIRMED.

All the Judges concur.