text:
    David Claude WEAVER v. STATE.
    7 Div. 897.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 8, 1982.
    Certiorari Denied, Aug. 20, 1982 Alabama Supreme Court 81-794.
    Jake B. Matthews, Jr. and Hugh D. Merrill, of Merrill, Merrill, Mathews & Allen, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Trafficking in cannabis; three years imprisonment and a $25,000 fine.

I

Appellant claims that §§ 20-2-80 and 20-2-81 of the Code of Alabama (Supp. 1981) are unconstitutional because they provide for no maximum punishment and because they delegate judicial functions to the executive branch of government. This court has upheld the constitutionality of the statute on both grounds in Dickerson v. State, 414 So.2d 998 (Ala.Cr.App.1982); Wheatt v. State, 410 So.2d 479 (Ala.Cr. App.1982).

II

In addition, appellant contends that the State did not meet its burden of proving that he possessed more than 2.2 pounds of cannabis. He insists that the evidence was insufficient because the State did not establish that the total weight of the plant material was exclusive of non-prohibited parts such as “mature stalks” and “sterilized seeds.” In Dickerson v. State, supra, we held that once the State proves the requisite total weight of 2.2 pounds, the burden is then on the accused to bring himself within any exclusion contained in the definition of “marihuana.” Here, the appellant presented no evidence which tended to show that any part of the vegetation was excluded from the operation of the statute.

III

Appellant also argues that the State did not prove his actual or constructive possession of the cannabis. While the testimony of appellant’s girl friend and co-defendant, that appellant brought the cannabis to her house, cannot be used as the sole basis for his conviction, see Ala.Code § 12-21-222 (1975), we find that her testimony was corroborated by that of Anniston police officer, Mike Hembree, who testified that immediately after he informed appellant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant stated that all the drugs belonged to him and not to his girl friend. In our judgment, therefore, the State presented a prima facie case of possession and the trial court did not err by overruling the motion to exclude. See Dickerson v. State, supra; Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d 725 (Ala.1981).

We have searched the record for error and have found none. The judgment of conviction by the Calhoun Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BARRON, Judge.

license: Public Domain

text:
    Earnest ELDRIDGE v. STATE.
    4 Div. 938.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 20, 1982 Alabama Supreme Court 81-854.

      Kenneth L. Funderburk and Robert P. Lane of Phillips & Funderburk, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Appellant was indicted for trafficking in cannabis in violation of § 20-2-80(l)(a) (Supp.1981), Code 1975, as amended. A hearing on appellant’s motion to suppress was held and the motion was overruled. Appellant was tried and found guilty, and the court fixed his punishment as nine years imprisonment and a fine of $25,000. Subsequently, a motion for new trial was denied, and a notice of appeal to this court was filed. The facts of this case are as follows:

With the cooperation of a reliable informant, police officers Arrington and Carey maintained surveillance, hoping to apprehend marijuana traffickers Della Mae Nick-erson and a then unidentified co-conspirator. Nickerson had arranged to make a delivery of a quantity of marijuana at Idle Hour Park in Phenix City to police informant Phillips. Phillips was to signal police officers by turning on a light in his van when he was presented the opportunity to make an illegal marijuana purchase. Although Nickerson usually drove a green Chevrolet, she and appellant arrived at the prearranged time and place in a silver Ford Granada, which had a large garbage bag full of 15 zip-loc bags of “a green/brown vegetable matter” in the trunk. After discussing the transaction, appellant allowed Phillips to see the plastic bag and its contents in the trunk. Phillips smelled the matter to determine it was in fact marijuana, then gave police the signal agreed upon. The police saw the signal from a nearby location, where they were observing the transaction with binoculars. The officers responded to the signal and arrived on the scene. The appellant closed the trunk of the Granada as the police appeared. Police had obtained a search warrant for the green Chevrolet belonging to Nickerson. Under the authorization of the search warrant, the officers proceeded to search the silver Granada, which was under the control of the appellant. The garbage bag was discovered and was later established to contain 14.76 pounds of marijuana.

I

The first issue appellant brings before the court is whether the trial court properly overruled appellant’s objections to testimony of conversations of informant Phillips with officers Arrington and Carey, and with Della Mae Nickerson.

The evidence brought forward in this case indicates that a conspiracy was entered into for the unlawful purpose of trafficking in marijuana. The conspiracy was between Della Mae Nickerson and a co-conspirator who was nameless prior to his arrest on March 12, 1981.

In the cases of Cox v. State, 367 So.2d 535 (Ala.Cr.App.), writ denied, 367 So.2d 542 (Ala.1978), and Conley v. State, 354 So.2d 1172 (Ala.Cr.App.1977), this court held that where proof of a conspiracy exists, any statement by accused’s co-conspirator in commission of a crime, made before commission of the crime, during the existence of the conspiracy and in furtherance of a plan or design, is admissible against the accused.

Appellant cites Guntharp v. State, 54 Ala.App. 363, 308 So.2d 722, writ quashed, 293 Ala. 756, 308 So.2d 728 (1974), wherein this court held that the admissibility of an accomplice’s statement made outside the presence and hearing of the other accused depends on whether there is, at the time of the accomplice’s utterance, a viable nexus of mutual agency between the alleged criminal joint venturers. That such a nexus was present in this case, at the time of the out-of-court statements of Della Mae Nickerson, is evidenced in the record.

An unlawful conspiracy need not be proved by positive evidence, but may be proved from the conduct of the parties, circumstances surrounding the act and from conduct of the accused subsequent to the act. Williams v. State, 375 So.2d 1257 (Ala. Cr.App.1979), writ denied, 375 So.2d 1271. The evidence in the instant case is such that it could have reasonably been found that a conspiracy did in fact exist between the appellant and Miss Nickerson. We find no error in the admission of this testimony.

II

In the second issue presented for review, the appellant states that the State’s evidence obtained from the trunk of a car in his possession was the fruit of an illegal search and seizure. Appellant claims the trial court erred in overruling a motion to suppress and exclude the evidence. The appellant asserts that there should have been a properly executed search warrant to allow a search of the automobile which was in the possession and under the control of the appellant at the time and place of the arrest.

The search warrant obtained by the officers pursuant to their investigation into suspected drug trafficking was directed toward a green Chevrolet. The green Chevrolet was not the automobile searched. In deciding upon the legality of the search, we must consider it a warrantless search. However, the fact that a warrant was properly issued for a car expected to be the vehicle used in transporting illegal drugs by these persons at this location, time, and date is important. Together with other facts, it helps establish probable cause for search of the vehicle actually used in the violation of the drug trafficking statute.

The rule for such searches is that they cannot be upheld unless they fall within a recognized exception to the requirement for a valid search warrant. Warrantless searches are “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Kinard v. State, 335 So.2d 916 (Ala.Cr.App.), reversed, 335 So.2d 924 (Ala.), on remand, 335 So.2d 927 (Ala.Cr.App.1976). In the case of Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973), Justice Bloodworth points out those exceptions. They are when (1) something is in plain view, (2) consent is voluntarily, intelligently and knowingly given, (3) the search is incident to a lawful arrest, (4) there is a hot pursuit or emergency situation, (5) there are “exigent circumstances” coincidental with “probable cause,” or (6) there is a stop and frisk situation. Daniels, supra, at page 318, 276 So.2d 441.

The exception that applies to this search is the exception that allows for warrantless searches when exigent circumstances exist coincidental with probable cause. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

An officer may search an automobile without a search warrant if he has probable cause to believe that the automobile carries contraband. Probable cause here requires a reasonable ground for belief of guilt. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied, 291 Ala. 778, 282 So.2d 279 (1973). Whether the officers had a reasonable ground for such a belief of guilt must be determined from the facts confronting the officers who were entrusted with making the decision whether or not to search.

The officers had obtained confidential information from their previously reliable informant Mr. Phillips, and had numerous personal observations to corroborate the informant’s information. This court has recognized:

“[An] informant’s report may still constitute the sole basis for a finding of probable cause if the information provided is in such detail and minute particularity that a ‘magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.’ This is the self-verifying tip. Spineili v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Less detailed information from a reliable source may also be used as grounds for a finding of probable cause where the key elements of the tip are verified or corroborated. ... Finally a tip that will not meet any of these standards may still be used in conjunction with a number of other factors of ‘further support’ to show probable cause.” (Citations omitted.)

Hatton v. State, 359 So.2d 822, 826 (Ala.Cr. App.1977), writ quashed, 359 So.2d 832 (Ala. 1978); Spencer v. Town of Gordo, 389 So.2d 182 (Ala.Cr.App.1980). Those “other factors of further support” existed here. The totality of circumstances evinced from the testimony of Officer Arrington showed cause to search appellant’s automobile. The officers had obtained enough grounds to obtain a proper search warrant for a car they expected to be the delivery vehicle. The officers personally observed the signal that was to be given to them by their informant when an illegal drug transaction was underway, and they observed the slamming of the car trunk as they approached. These factors cause a reasonable, prudent man to believe the silver Granada automobile at the scene contained contraband. United States v. Edwards, 577 F.2d 883 (5th Cir. 1978).

To establish the second part of the exception, there must be exigent circumstances that require a response. An automobile’s inherent mobility may provide the required exigency. In determining if it does, one may look to see where the car is located, and whether it is capable of being moved. A deciding factor is whether or not there is probable cause to believe the car contains evidence that needs to be preserved. Hancock v. State, 368 So.2d 581 (Ala.Cr.App. 1979); Landry v. State, 56 Ala.App. 421, 321 So.2d 759 (1975); Reid v. State, 388 So.2d 202 (Ala.Cr.App.1979), reversed, 388 So.2d 208 (Ala.1980).

Our Supreme Court spoke to the exigency question relative to warrantless automobile searches in the case of Rickman v. State, 361 So.2d 22 (Ala.Cr.App.), reversed, remanded, 361 So.2d 28 (Ala.), on remand, 361 So.2d 31 (Ala.Cr.App.1978). In that case, the court quotes the U.S. Supreme Court decision in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), which states:

“The judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.”

The appellant claims that this case is similar to Hall v. State, 399 So.2d 348 (Ala. Cr.App.1981), where an officer’s “gut feelings” were the basis for probable cause to search, and the appellant had been initially stopped on the highway for a noisy muffler. This case is distinguished from Hall in that circumstances called for an immediacy of action that was not present in that case.

The facts of this case are such that the trial court was proper in overruling the appellant’s motion to exclude the evidence.

Ill

The third issue to be presented by appellant is whether §§ 20-2-80, -81, Code 1975, as amended, violate appellant’s constitutional rights. Appellant claims that the jury should have been charged on the law found in § 20-2-70, Code 1975, as amended. This issue has been answered by this court in the case of Beasley v. State, 408 So.2d 173 (Ala.Cr.App.1981). Evidence in the case at bar indicates that appellant was in the possession of 14.76 pounds of marijuana. The Beasley case states that:

“Section 20-2-80 supersedes the application of § 20-2-70 when the offender possesses in excess of 2.2 pounds of marijuana, whether for personal use or sale.” Beasley, 408 So.2d 173 (Ala.Cr.App.1981).

Appellant also argues that the provisions of the Alabama Code addressing drug trafficking are unconstitutional because the trial judge cannot grant probation or reduce sentence unless the prosecuting attorney so moves the court, § 20-2-81(b). This statute’s constitutionality has been established by this court in the recent case of Wheatt v. State, 410 So.2d 479 (Ala.Cr.App. 1982). The Wheatt case relied on the case of State v. Benitez, 395 So.2d 514 (Fla.1981), which addressed this question relative to a similar Florida drug trafficking statute.

The Benitez case concludes that even when the reduction or suspension of sentence is triggered by the initiative of the State’s attorney,

“as long as a statute does not take from the courts the final discretion to impose sentence, it does not infringe upon the constitutional division of responsibilities.” Benitez, 395 So.2d at 519. (See also People v. Eason, 40 N.Y.2d 297 [386 N.Y.S.2d 673], 353 N.E.2d 587 (1976).)

The appellant also argues that the statute is unconstitutional in that the mandatory fine of $25,000 is excessive and subjects the appellant to cruel and unusual punishment. The appellant’s argument that the only way many convicted felons might have of paying such a fine would be to sell “enormous quantities of marijuana” is without merit. Indigent offenders would be advantaged over other offenders if they were not subject to fines because of their inability to pay. Wheatt v. State, 410 So.2d 479 (Ala.Cr.App.1982); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). There are other alternatives to which the state may resort to serve its concededly valid interest in enforcing payment of fines, e.g., paying fines in installments, Tate, supra, and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). The Eighth Amendment to the Constitution guarantees that statutes will not be excessively vague or indefinite, and trial courts may not inflict excessive fines and cruel and unusual punishment. Therefore, the punishment inflicted under § 20-2-80(1) should not be grossly disproportionate to the severity of the crime. A New York court has determined that even a maximum sentence of life imprisonment for conviction of a drug offense is not violative of constitutional guarantees. People v. Broadie, 37 N.Y.2d 100, 332 N.E.2d 338. While this court may rule a fine or sentence as excessive, the separation of powers doctrine forces this court not to substitute its own judgment for that of the legislature unless those constitutional guarantees of the Eighth Amendment to the U.S. Constitution or of Article I, § 15, 1901, Alabama Constitution are clearly violated. Cabble v. State, 347 So.2d 546 (Ala.Cr.App.), cert. denied, 347 So.2d 551 (Ala.1977).

The appellant claims that this court should rule that § 20-2-80 and § 20-2-81 are unconstitutional as they provide for no maximum sentence. This issue has been addressed in numerous cases. In Ligon v. State (50 Ala.App. 658), 282 So.2d 97 (1973), defendant was charged with robbery under an Alabama statute that provided for no maximum sentence. A sentence of 90 years in that case was found to be within the limits prescribed and was not found to constitute cruel or unusual punishment.

In numerous instances, statutes with similar sentencing schemes as § 20-2-80(1) have been determined not to be constitutionally infirm as too vague or indefinite. Dickerson v. State, 414 So.2d 998 (Ala. Cr.App.1982); United States v. Hayes, 589 F.2d 811 (5th Cir. 1979); United States v. Kuck, 573 F.2d 25 (10th Cir. 1978); United States v. Jones, 540 F.2d 465 (10th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977).

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    William Walter DYESS v. STATE.
    1 Div. 260.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-845.

      Claude D. Boone, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Assault and battery; sentence: six months’ imprisonment in the Mobile County Jail.

Patricia Rutherford testified she was a student at the University of South Alabama Medical School on September 19, 1979, shortly after the occurrence of a severe hurricane. After a disagreement with her boyfriend that night, Ms. Rutherford left her apartment, which was without electrical power or potable water because of the hurricane, and walked about three miles to the University Medical School building, which had auxiliary power. After a short stay there Ms. Rutherford began to walk home. As she was walking, a “1965 or 1967” Chevrolet pulled up beside her driven by the appellant. He said, “Don’t you know you’re out after curfew. The police will pick you up and put you in jail. You better let me take you home.” The appellant was dressed in the national guard uniform which she had seen worn by guardsmen all week in the aftermath of the hurricane. She got into the car and began to direct him to her apartment, indicating appropriate turns at intersections, but without letting him know her ultimate destination. After entering the vehicle, she noticed a rifle standing beside the appellant with the barrel pointed toward the roof. On making a turn, appellant said, “Let me get this thing out of the way,” and placed the rifle on the seat with the barrel facing toward the right front tire and the butt toward appellant.

Ms. Rutherford became nervous when appellant failed to heed her instructions to turn at one point, and began to get out of the slowly moving vehicle. As she put her foot out the door, appellant grabbed her and said, “You’re not going anywhere.” The first thing Ms. Rutherford remembered was hearing and feeling a gunshot in the abdomen. Next she recalled coming to, and lying on the ground with appellant choking her. She started to scream and the appellant put his hand over her mouth. She tried to bite him and he said, “Go ahead and bite it.” Again she passed out and reawakened with him choking her.

Donald Robert Oglesby testified that he and his companion, Charles Jackson, observed two parked vehicles on the evening of September 19,1979. Thinking one of the vehicles had car trouble, Oglesby drove toward the two vehicles. As they approached the vehicle, Oglesby stated he heard two gunshots. The second vehicle then backed up and drove off. Oglesby leaned out his front window and asked what was the trouble. A man, identified as appellant, called out to get medical attention and stay back. A man in another vehicle who was with civil defense arrived at that time and called for help. Oglesby approached the appellant’s vehicle and observed appellant leaning over the victim. Appellant instructed him to stop traffic. Oglesby stopped the first vehicle and got its occupant to direct traffic. He returned to the appellant and victim, and saw that the appellant had his hands around the victim’s neck. When he walked up, appellant pulled his hands away. Oglesby also stated he observed an M16 rifle on the front seat of appellant’s automobile. Appellant told Oglesby that the girl had attempted to jump out of the automobile and the gun accidentally went off as he tried to stop her. The victim told him appellant shot her as she attempted to jump out of the vehicle.

William C. Garrett, the first police officer on the scene, testified appellant appeared to be supporting the victim’s head with his hands when he arrived. The victim had sustained a gunshot wound to her lower body, and appeared to be talking out of her head. Officer Garrett observed that appellant had a slight odor of alcohol on his breath.

Charles Sullivan, a Mobile City policeman, stated he was also at the scene of the shooting. He observed an M16 automatic rifle on the front seat of appellant’s vehicle. He photographed the weapon on the seat, and then removed it and two empty rounds of ammunition. He kept the weapon with him until he turned it in as evidence at the docket room. He observed, at the scene, that the rifle had a device that prevented it from firing in the automatic position. Later, he recorded the serial number as 297917 upon turning the rifle in as evidence. He stated he could identify the weapon if he saw it again. Officer Sullivan was shown a rifle at trial and identified it as the same as the one he removed from appellant’s vehicle, despite the fact that the serial number it bore was 297912.

The record reflects that after the witness stated he was sure the rifle was the correct weapon, the trial judge stated the weapon should be admitted into evidence.

Dr. Robert Bucher testified concerning the wounds Ms. Rutherford received. The bullet entered the abdomen and exited from the left leg. Ms. Rutherford also evidenced bruising and scratching about her neck which appeared to be caused by human hands.

Charles Park, a sergeant major in the United States Army, was qualified as an expert on the M16 rifle. He testified that the rifle introduced at trial was blocked to prevent it from firing in the automatic position.

At the close of the State’s case, appellant moved to exclude the State’s evidence for failure to prove a prima facie case and also moved to require the State to elect which theory of assault was to be submitted to the jury, i.e., the gunshot or the strangulation. Appellant’s motion was denied and appellant took the stand to testify in his own behalf.

Appellant denied shooting or strangling the victim. He stated the gun fired accidentally as he reached to grab Ms. Rutherford because he thought she was accidentally falling out of the vehicle. He testified his statement to her at the time she appeared to be falling was, “You’re not going to fall out of the car.” The defense rested at the close of the appellant’s testimony.

I

Appellant contends the trial court erred in refusing to grant his motion to require the State to elect which criminal act the State intended to prove as the basis of the offense charged in the indictment. The failure to require the State to elect, appellant argues, allowed appellant to be tried for two separate and distinct actions under a single count of the indictment. If evidence of the alleged second separate criminal act of choking the victim was allowed, appellant contends, the trial court should have instructed the jury that such evidence was only admissible to show the intent of the appellant in perpetrating the simple criminal act of shooting the victim.

Reviewing the evidence in the light most favorable to the State, it appears appellant shot the victim, who then fell out of the automobile. Within a matter of minutes, appellant had disembarked the vehicle and was observed by the victim and at least one other witness in the act of choking Ms. Rutherford. The exact time span which elapsed between the two modes of assault upon the victim is unclear from the record. However, the record is clear that there was but one assault and battery which occurred, although appellant chose more than one method of carrying out his criminal activity-

The indictment appears in the record as follows:

“The GRAND JURY of said County charge, that, before the finding of this indictment WILLIAM WALTER DYESS whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought, did assault Patricia Rutherford with the intent to murder her, against the peace and dignity of the State of Alabama.”

Appellant concedes that assault and battery is a lesser included offense of assault with intent to murder. Wilson v. State, 53 Ala.App. 653, 303 So.2d 153 (1974). There is but one crime charged in the single-count indictment. The specific mode or manner in which the assault was carried out is not specified by the indictment.

The rule requiring the state to elect appears in Deason v. State, 363 So.2d 1001 (Ala.1978), as follows:

“The doctrine of election operates to protect a defendant from being prosecuted for more than one offense in the same count of an indictment. Where the evidence discloses two or more offenses growing out of distinct and separate transactions, a court should grant a timely motion to require the State to elect, (citations omitted)”

The evidence in the instant case does not require the application of the rule requiring election. The indictment did not charge, nor did the State’s evidence prove, two separate and distinct offenses growing out of separate and distinct criminal transactions.

Additionally, both acts were part of one continuous criminal occurrence and everything done was admissible as part of the res gestae. Lambert v. State, 48 Ala. App. 600, 266 So.2d 812 (1972). Even if the two acts are viewed as separate crimes, they were admissible for the purpose of showing scienter, intent, and motive. Lambert, supra. The record does not reflect that appellant sought a charge limiting the introduction of the evidence of the choking to one of the above purposes. There was no error in the trial court’s refusal to grant appellant’s motion to require election.

II

The appellant maintains that the rifle allegedly used to shoot the victim was improperly admitted because the State failed to prove a complete chain of custody. He argues that the State failed to show control over the weapon after it was taken from the scene or that it was the weapon.

Although the rifle appears to have been admitted by the court without an offer to introduce it by the State, appellant failed to make a specific objection to the introduction of the evidence based upon failure of the State to establish a proper chain. A general objection to evidence subject to specific objection is properly overruled. Thornton v. State, 55 Ala.App. 462, 316 So.2d 710 (1975). No error results in overruling a general objection unless the evidence is illegal for any purpose, and cannot be made legal by other evidence, or by supplying additional evidence. Moates v. State, 40 Ala.App. 234, 115 So.2d 277, cert. denied, 269 Ala. 698, 115 So.2d 282 (1959). Because it was possible that the State could have provided further evidence to establish the chain at that point, and because the rifle was relevant to the commission of the crime, the judge’s ruling was not in error. Sprinkle v. State, 368 So.2d 554 (Ala.Cr. App.), cert. quashed, Ala., 368 So.2d 565 (Ala.1978). Since no proper objection was made at the time the rifle was admitted into evidence, appellant’s later, more specific objections came too late. Murrell v. State, 377 So.2d 1102 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979).

All other objections made by appellant concerning testimony about the rifle were either sustained, or came too late and were not followed by a motion to exclude the testimony.

While the State did not establish a complete chain of custody for the rifle, we find no harm to appellant by the rifle’s reception into evidence. Appellant admitted he accidentally shot the victim with an M16 National Guard rifle. Expert testimony indicated National Guard M16’s were blocked to prevent automatic repeat firing. Officer Sullivan testified he was sure the weapon was the same one he obtained from the front seat of appellant’s vehicle the night of the assault. Officer Sullivan also testified the weapon was in the same condition at trial as when he originally obtained the rifle. Therefore, the admission of the rifle into evidence was not error. Douglas v. State, 366 So.2d 373 (Ala.Cr.App.1979); Gentry v. State, 344 So.2d 1246 (Ala.Cr. App.) cert. denied, 344 So.2d 1249 (Ala. 1977).

We have examined the record for error and have found none. Therefore, the judgment of conviction by the Mobile Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Joseph Ralph STEVENS v. STATE.
    1 Div. 302, 313, 314.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 20, 1982 Alabama Supreme Court 81-846.
    Joseph M. Bolton, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Peggy Schmitz, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

These three consolidated appeals involve convictions for two robberies, two kidnappings, two crimes against nature, and one grand larceny. The respective punishments were two life sentences, two twenty-year sentences, and three ten-year sentences.

All of the offenses charged to the appellant occurred during a three-day period when he escaped from the State penitentiary, where he was serving time for robbery and violation of the Alabama Controlled Substances Act.

The only question raised by appellant is whether he was deprived of his constitutional right to a speedy trial.

The chronology of events involving the seven felony offenses which are the subject of these appeals is as follows:

April 8, 1977, indictments were returned against the appellant for the seven named felonies.
August 6, 1980, a pro se motion for a speedy trial was filed.
August 20,1980, counsel was appointed to represent appellant in the above seven cases.
August 21,1980, motion for a speedy trial was granted in every case except circuit court case No. CC 80-1260, which was a robbery involving one of the female victims.
August 21, 1980, a plea of not guilty was filed in each of the above cases, along with a request, and permission, to file any special pleas within thirty days.
September 16, 1980, motion to withdraw was filed by appointed counsel and was granted in all of the above cases.
September 16, 1980, the Honorable Joe Bolton was appointed to represent the appellant in all of the above cases.
June 26,1981, date of letter submitted by Dr. Claude L. Brown, a psychiatrist, stating that he could not evaluate appellant’s mental condition at the time of the offenses due to the lapse of time.
June 29, 1981, a plea of not guilty by reason of insanity was filed in all of the cases.
June 29, 1981, a motion to dismiss the indictment was filed in all of the above cases.
July 1, 1981, a jury trial was held on circuit court case No. CC 80-1260, robbery, and the appellant was found guilty and sentenced to life.
July 30, 1981, a trial by jury was waived in five of the other six cases and the appellant was convicted and sentenced by the trial judge.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court announced a balancing test, in which the conduct of the prosecution and the defendant is weighed on a case by case basis, to answer speedy trial questions. The court identified four factors that should be assessed in the determination of this question. They were: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.

The fourth factor, prejudice, should be assessed “in the light of the interests of defendants which the speedy trial right was designed to protect.” 407 U.S. at 532, 92 S.Ct. at 2193. The court identified the following interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. The last of the three, according to the court, is the most important.

The Supreme Court observed that no single factor was determinative. “Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” 407 U.S. at 533, 92 S.Ct. at 2193.

In the present case, the delay of approximately four years and three months between indictment and trial was not “extraordinary.” See Barker v. Wingo, supra, 407 U.S. at 533, 92 S.Ct. at 2193. No evidence was presented to show that the delay was intentional on the part of the State or was done in order to hamper appellant’s defense. The record seems to indicate that the delay was caused by negligence attributed to the change in administration of the prosecuting attorney’s office. The Barker court noted that, although the State has the responsibility to bring the accused to trial, negligence is a “neutral” reason for delay and should be weighed less heavily against the State than deliberate delay. 407 U.S. at 531, 92 S.Ct. at 2192.

For the third factor, the defendant’s responsibility to assert his rights, we find nothing in the record to establish that the appellant requested a speedy trial prior to his pro se motion filed August 6, 1980, and granted August 21, 1980.

Also relevant to the issue of appellant’s timely assertion of his right to a speedy trial is the point that he made a statement on March 16, 1977, admitting the offenses of robbery, crime against nature, kidnapping and theft. Shortly after the commission of crime he also appeared in a lineup and signed a form waiving his right to have counsel present.

Although appellant’s statement and his appearance in the lineup cannot be considered notice to him of the charges, they are relevant circumstances in determining the timeliness of his assertion of rights. There is no explanation in the record for his three years and four months delay in requesting a speedy trial. Appellant refers to letters he wrote to the clerk’s office prior to his pro se motion filed on August 6, 1980, but he presented no evidence to corroborate this point, and it is, therefore, not reviewable. Lucy v. State, 340 So.2d 840 (Ala.Cr. App.), cert. denied, 340 So.2d 847 (Ala.1976).

Although we recognize that it was not the appellant’s responsibility to bring his cases to trial, the failure to assert his right at an earlier time tends to indicate that if any prejudice existed it was minimal. See U.S. v. Palmer, 537 F.2d 1287 (5th Cir. 1976).

The appellant maintains that, as a result of the delay in bringing his cases to trial, his defense was impaired. In particular, he claims that he was prejudiced because he was unable to perfect his insanity plea because Dr. Brown was unable to give an opinion about appellant’s condition at the time of the offenses.

The record shows that the appellant filed his plea of insanity over ten months after he pleaded not guilty while being represented by his first appointed counsel. We note that appellant was given thirty days to file special pleas, and although his first counsel withdrew during that period, his second counsel was appointed within the thirty-day period. His insanity plea filed nine months later was, therefore, untimely. Further, the record indicates that sometime after September 16, 1980, the appellant, at the request of his attorney, was evaluated by a State psychologist and found competent to stand trial. No claim of insanity at the time of the offenses was made. It was only after the appellant secured the services of an independent psychiatrist that his insanity plea was filed, and it appears to have come to light after the evaluation by the State psychologist. Also we note at the time the defendant was being represented initially by his first counsel, no mention was made of his mental condition or his plea of insanity.

Moreover, we note that no evidence was presented to show an absence or loss of any witness or that any witnesses’ memory had failed as a result of the delay.

Under these circumstances, we do not believe that dismissal based on an actual claim of prejudice or a reasonable possibility of prejudice as urged by the appellant is warranted. Therefore, after a consideration of the factors of prejudice, appellant’s assertion of his right, together with the length of delay and the reasons applicable to each, we find that the appellant was not denied his right to a speedy trial. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Barker v. Wingo, supra.

We have searched the record and have found no error. The judgments of conviction by the Mobile Circuit Court in these consolidated appeals are affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Donald Lewis OWEN v. STATE.
    1 Div. 311.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 20, 1982 Alabama Supreme Court 81-873.

      Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes, and J. Thomas Leverette, Asst. At-tys. Gen., for appellee.
   BOWEN, Judge.

In the early morning of April 8,1980, two shotgun blasts took the life of Chickasaw Police Officer John Dotson, who was issuing a traffic citation to the defendant.

The defendant was indicted and convicted for the capital offense of murdering a police officer while the officer was on duty. Alabama Code, Section 13A-5-31(a)(5) (Amended 1977). Sentence was fixed at life imprisonment without parole.

I

The statute under which the defendant was indicted and convicted, as construed by our Supreme Court in Beck v. State, 396 So.2d 645 (Ala.1981), is constitutional. Willie Clisby, Jr. v. State (Ala. Cr.App., 6 Div. 576, Ms. March 2, 1982); Jody Lynn Potts v. State (Ala.Cr.App., 4 Div. 948, Ms. March 2, 1982). We find no error in the defendant’s prosecution under Section 13A-5-31(a)(5) as modified by Beck, supra. The trial and sentencing procedures outlined in Beck were followed by the trial court and no error in this regard is apparent from the record.

II

Contrary to the defendant’s contention that he was only charged with the common law crime of second degree murder, the indictment clearly tracks the statutory language of the offense codified in Section 13A-5-31(a)(5). The gravamen of this capital offense, as well as the thirteen other capital offenses found in Section 13A-5-31(a), is an “intentional killing.” “Without an ‘intentional killing’ there could be no death penalty.” Kyzer v. State, 399 So.2d 330, 335 (Ala.1981).

“Without question, the legislature has spelled out specifically what offenses it considers to be capital offenses. The Alabama legislature has substantially followed the Model Penal Code in describing with specificity those offenses which are deemed capital offenses. Code 1975, Section 13A-5-31. Each of the fourteen crimes specified requires an intentional killing with aggravation, and not some crime other than homicide under aggravated circumstances.”
Beck, 396 So.2d, at 661-662.

The indictment in this case clearly charges that the defendant committed an intentional killing by alleging that the defendant “unlawfully, intentionally, and with malice aforethought, but without premeditation or deliberation, killed John Dotson.”

The defendant’s sentence of life imprisonment without parole does not constitute cruel and unusual punishment in violation of the Eighth Amendment. Certainly, for the capital offense that was committed in this case the defendant’s punishment could have been fixed at death. See George Daniel v. State (Ala.Cr.App., 4 Div. 987, Ms. April 20, 1982). Life imprisonment without parole is a constitutionally permissible sentence even for offenses which do not involve homicide. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Britton v. Rogers, 631 F.2d 572, 578 (8th Cir. 1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981).

Ill

. The defendant argues that his warrant-less arrest and the warrantless search of his home were unconstitutional. He also contends that his confession should not have been admitted into evidence because it was adduced in violation of his Sixth Amendment right to counsel.

At approximately 2:14 on the morning of April 8, 1980, Officer Marvin T. Booker of the Chickasaw Police Department testified that he received a radio dispatch to “backup” Officer Dotson at the intersection of Highway 43 and Saw Mill Road. Officer Booker heard Officer Dotson radio that he was stopping a traffic violator “for speeding and possibly DWI.” Approximately three minutes later and before Officer Booker arrived at the intersection, Officer Dotson radioed that no backup was needed. Officer Booker resumed patrolling and a few minutes later received a third radio dispatch that Officer Dotson was “in trouble”. Officer Booker arrived at the scene at approximately 2:27 A.M. and found Officer Dotson lying “in a pool of blood” at the rear of his patrol car. Officer Booker radioed for help and within two minutes other police officers began to arrive. Officer Dotson had sustained two shotgun blasts, one to the head and the other to the abdomen. An autopsy revealed that either of the two shotgun wounds would have been fatal.

Officer R. G. Jones of the Chickasaw Police Department arrived at the scene shortly after Officer Booker and found two spent shotgun shells near the victim’s body. Officer Jones discovered a “ticket book” used by the Chickasaw Police Department lying on the victim. A ticket for a speeding violation made out to the defendant had been “all but completed” by the victim. The ticket contained the defendant’s name, address, date of birth and tag number of his automobile. The defendant’s driver’s license was also located at the scene. The driver’s license was current and had the defendant’s photograph, address and “everything on it.” Officer Jones also saw the victim’s service revolver lying on the ground near the victim. The weapon was cocked but had not been fired.

Lieutenant G. E. Robinson of the Criminal Investigation Detective Division of the Prichard Police Department was dispatched to the murder scene around 2:30 A.M. With the defendant’s driver’s license in hand and tag number written on a slip of paper, Lieutenant Robinson dispatched four of his units along with Sergeant Bradford of the Saraland Police Department and Chief Barlowe of the Satsuma Police Department to the intersection of Highway 45 and McLeod Road where they were joined by two deputy sheriffs. From there the law enforcement officers proceeded to the defendant’s home on Ulysses Drive where they arrived at approximately 3:00 A.M. Lieutenant Robinson parked his patrol car approximately twenty feet from the defendant’s home, leaving the headlights on the front of the house. Robinson positioned two men at the rear' of the defendant’s home, one man on each side and “three or four of us in the front.”

At this point in the proceedings the trial court conducted two hearings, out of the presence of the jury, to determine the legality of the warrantless search of the defendant’s house and the admissibility of his confession. The substance of these hearings reveals the following.

Lieutenant Robinson verified that the tag number of the defendant’s automobile, which had been backed in the carport, matched the tag number Officer Dotson had written on the defendant’s traffic citation. One of the officers stationed to the rear of the defendant’s house radioed Lieutenant Robinson that “he saw movement in the rear of the house.” Approximately thirty seconds later, Lieutenant Robinson also observed a curtain in the front of the house open and close.

Lieutenant Robinson used a bull horn and called for the defendant to “come out”. After three to five minutes the defendant came out the front door, waving and calling for the officers to “come on in.” Robinson told the defendant, “No, I would rather you come on out.” According to Lieutenant Robinson, as the defendant began walking towards the officers:

“I let him get approximately ten to fifteen feet from the front of the house, and I walked up to him and I advised him ‘Mr. Owens, you are under arrest for investigation of murder. You have the right to remain silent and not make any statements at all. You have the right to an attorney. If you can’t afford one, one will be afforded for you.’ At that point, he says T know my damn rights. Put me in the car.’ And I obliged him.”

The defendant was placed in the custody of two officers. Lieutenant Robinson, Sergeant Bradford and Chief Barlowe next proceeded to go inside the house because they had “no idea or no knowledge of how many people were involved in the shooting.” As the officers approached the front door a white male named Mahan appeared in the doorway. Mahan rented a room from the defendant. When Mahan was asked if the officers could go in and look around, he gestured that it made no difference to him. Lieutenant Robinson testified that “We were looking for anybody else that may have been in the house” in order to secure “the premises for the safety of my people.”

Inside a closet in a rear bedroom a .12 gauge pump shotgun was discovered. The closet did not have a door but “had a curtain on a string across the front.” The curtain was “pulled back” so that Robinson was “able to look into that closet and see what was there.” Lieutenant Robinson determined that the weapon had been recently fired. Robinson also saw a box of green, .12 gauge shotgun shells in plain view on a bedroom dresser. These shells were the same type as those found at the scene. Ballistics tests later demonstrated that the shells found at the scene had been fired from the shotgun found in the closet.

Sergeant Jack Creekmore of the Saraland Police Department first saw the defendant at the Saraland Police Station around 4:30 A.M. on the morning of the shooting. Through Sergeant Creekmore’s testimony the proper voluntariness predicate for the defendant’s confession was established. Prior to questioning the defendant, Sergeant Creekmore advised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sergeant Creekmore stated that when he was giving the defendant his Miranda warnings and had gotten to the point “If you cannot afford a lawyer, one will be appointed for you before any questioning”, the defendant told him, “I think I’ll let ya’ll appoint me one.” Sergeant Creekmore then continued reading the remainder of the Miranda warnings to the defendant and ascertained that the defendant understood his constitutional rights. The defendant refused to sign the waiver of rights form.

“I asked him if he understood his rights. He replied, ‘Yes, I do, but I’m not signing anything.’ I told him ‘that’s all right, just as long as you understand your rights.’ He then stated, T know my rights. I know that you are just doing your job. I know because I was a police officer for four years.’ ”

Sergeant Creekmore then began questioning the defendant concerning the events which had transpired earlier that morning. Sergeant Creekmore related the defendant’s incriminating statement as follows:

“Q. What was that statement?
“A. He told me about being stopped by the Chickasaw Police Officer, and what took place after the officer stopped him.
“Q. What did he tell you took place?
“A. Said the officer told him he was speeding, and that he thought he was going to give him a warning and they talked a little. The officer went back and sat down in his car a minute or so and then got out and came back and told him he was doing sixty-five and he was going to give him a ticket. The defendant said he couldn’t reason with him and that’s when they had words. He said T told him this is the end of life for myself. You are going to give me a ticket you son-of-a-bitch. Well, you are going to kill me or I’m going to kill you.’ I went crazy. That was it.
“Q. Did he admit to you, or did he tell you whether or not he did or did not shoot John Dotson?
“A. Yes, sir. From that point I asked the defendant where was his gun. He told me in the trunk. I asked him what did Officer Dotson do while he was getting the shotgun out of the trunk. He replied, ‘It seemed like I saw him go for his gun. I kept waiting for to get hit. I shot twice and pumped the gun and clicked it. It wouldn’t shoot no more. There was just two shells in the gun, that’s all. I don’t know what kind of shells were in the gun. I just shot twice. If I had a thousand in there I would have shot a thousand. Maybe this will teach them a lesson. They ought to know better than to have just one man in a car on patrol. Now, maybe they will hire some more. I was in law enforcement for four years, you know.’ ”

The defendant did not request a lawyer at any time during the interrogation. Sergeant tireekmore testified that later that morning, around 7:30 or 8:00 A.M., the defendant informed the district attorney, “I want my lawyer now”, and that the district attorney “stopped talking with him.”

The trial court determined that the search of the defendant’s house and subsequent seizure of the murder weapon and shotgun shells were lawful and that the defendant’s confession to Sergeant Creek-more was admissible. On the issue of whether or not the defendant had invoked his right to counsel, the trial judge stated:

“I’m going to take the position that here is a man that said he was a police officer, knew his rights, didn’t need to be advised of them. That, as I understood it, that when he got a lawyer he expected the State to furnish it, but that if he didn’t want to answer questions he would say ‘I don’t want to answer questions until I have a lawyer here and until you get me a lawyer.’ I don’t take the position and don’t think that he took the position that he had to have a lawyer before he would talk further. And for that reason, I’m going to overrule your objection and admit the statement.”

The facts pertaining to the defendant’s arrest, the search of his house and subsequent seizure of the shotgun and shotgun shells, and the confession the defendant made to Sergeant Creekmore were then presented to the jury.

A

THE WARRANTLESS ARREST

The defendant contends for the first time on appeal that his warrantless arrest was unconstitutional. He maintains that the arresting officers acted on a “mere suspicion” as justification for his arrest. There is no merit to this argument. Initially, it must be noted that objections to evidence cannot be raised for the first time on appeal. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Thornton v. State, 390 So.2d 1093 (Ala.Cr.App.), cert. denied, 390 So.2d 1098 (Ala.1980). We have carefully searched the entire record and fail to see where the defendant questioned the legality of his arrest. Even constitutional rights can be waived on appeal if they are not seasonably raised in the trial court. Fuller v. State, 269 Ala. 312, 113 So.2d 153 (1959); Harris v. State, 347 So.2d 1363 (Ala.Cr. App.), cert. denied, 347 So.2d 1368 (Ala. 1977).

The defendant did call the trial court’s attention to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), but only in reference to the search and seizure aspects of that case. There was no claim that Payton had any application to the defendant’s warrantless arrest. Indeed, there would have been no validity to such claim, had it been made, because Payton was decided by the Supreme Court on April 15, 1980, seven days after the defendant’s arrest. Payton does not have retroactive applicability. Clements v. State, 390 So.2d 1131, 1135 (Ala.Cr.App.), cert. denied, 390 So.2d 1136 (Ala.1980).

However, even if Payton were applied retroactively, the principles announced in that case would not in any way invalidate the defendant’s arrest. There were “exigent circumstances” in this case which would have justified a warrantless entry into his house for the purpose of arrest. 100 S.Ct. at 1378. The defendant’s felony arrest in this case was anything but “routine”. Some forty minutes before the arrest a police officer had been murdered and all the evidence pointed to the defendant. Clearly, the arresting officers were in “hot pursuit” of the defendant at the time of his early morning arrest. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Taylor v. State, 399 So.2d 881, 891 (Ala.1981). Even Payton recognized the “hot pursuit” exception. 100 S.Ct. at 1386.

Here, the arresting officers were acting on much more than a “mere suspicion”. Without question, the arresting officers had probable cause (or “reasonable cause”, as that term is used in Alabama Code, Section 15-10-3(3) (1975)) to arrest the defendant without a warrant. The evidence found at the murder scene implicating the defendant in the crime was overwhelming. As this Court stated in Tice v. State, 386 So.2d 1180, 1183 (Ala.Cr.App.), cert. denied, 386 So.2d 1187 (Ala.1980):

“An officer may arrest without a warrant when ‘a felony has been committed and he has reasonable cause to believe that the person arrested committed it.’ Section 15-10-3, Code of Alabama 1975. The rule of reasonable or probable cause is a ‘practical, nontechnical conception.’ Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). As defined in Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959):
“ ‘Probable cause exists where “the facts and circumstances within their (the arresting officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed.... ’ (Citations omitted)
“In determining whether there is probable cause to arrest, it is not necessary that the officer have before him evidence that would support a conviction for the offense. He need only have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the accused had committed or was committing an offense.”

Another appropriate factor to take into consideration in determining the existence of probable cause is the “gravity of the offense.” People v. Sirhan, 7 Cal.3d 710, 102 Cal.Rptr. 385, 497 P.2d 1121 (1972).

In applying the above principles of law to the facts and circumstances in this case, we hold that the defendant’s warrantless arrest was lawful in all respects.

B

THE WARRANTLESS SEARCH

The warrantless search of the defendant’s house after he had been taken into custody and the seizure of the shotgun and shotgun shells were constitutionally permissible due to “the exigencies of the situation.” Warden v. Hayden, supra. Even in Payton, the Supreme Court indicated that the result in that case might have been different if exigent circumstances had been present. 100 S.Ct. at 1378.

In Warden v. Hayden, the police entered Hayden’s house a short time after Hayden had committed an armed robbery and placed him under arrest. After his war-rantless arrest it was reported by officers in the house “that no other man was in the house.” In the meanwhile, however, a police officer discovered a shotgun and pistol in the flush tank of a bathroom. A clip of ammunition for the pistol was found under Hayden’s mattress and shells for the shotgun were found in a bureau drawer in Hayden’s room. The Supreme Court held that these items, as well as items of Hayden’s clothing, were properly introduced at Hayden’s trial.

“(N)either the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, ‘the exigencies of the situation made that course imperative.’ McDonald v. United States, 335 U.S. 451, 456 [69 S.Ct. 191, 193, 93 L.Ed. 153]. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.” 87 S.Ct. at 1645^46 (emphasis added).

We find the above rationale applicable in this case. Lieutenant Robinson’s testimony made it abundantly clear that at the time the shotgun and shotgun shells were discovered he was attempting to secure the premises for the safety of his men, that “we were looking for anybody else that may have been in the house.” At the time the defendant’s house was searched, the law enforcement officers did not know how many persons were involved in the murder or if Mahan was the only other occupant of the house. It has been recognized that “the police may need to check the entire premises for safety reasons.” Payton, supra, 100 S.Ct. at 1381. And, where the initial intrusion that brings the police within plain view of an incriminating article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is legitimate. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971).

On the basis of information acquired pri- or to entry and prior to the defendant’s arrest, the police had probable cause to believe that there were at least two people inside the house because of movements inside the residence which they had observed. Because the defendant had been arrested, it was not unreasonable for them to walk through the house to see if others were there. Indeed, under the circumstances of this case, “(i)t was not only prudent to check the house for additional confederates, it would have been careless not to do so. While in the house, the officers had no duty to shut their eyes.” United States v. Spanier, 597 F.2d 139, 140 (9th Cir. 1977). Generally, see W. LaFave, 2 Search and Seizure Section 6.4(b) (1978).

In addition to being justified as a search for potential accomplices, the entry into the house was justified under the “protective sweep” doctrine.

“In some situations, the ‘potentiality for danger surrounding the arrest’ may be so high that entry of premises to make a ‘protective sweep’ will be permissible even though the arrest itself was achieved without entry. Typically, the reason no entry was made to arrest is because the police perceived the situation as a very dangerous one and thus took steps to cause the prospective arrestee to exit the premises and submit to arrest outside. Even with that person now in custody, the police may have good reason to doubt whether they can withdraw from the area with their prisoner without being fired upon, in which case an entry and ‘protective sweep’ is justified. Such entries have been upheld when a weapon used in a recent crime by the arrestee or a weapon used by someone in firing at the police from those premises is as yet unaccounted for, and also when police have information the defendant was traveling with armed associates or that the defendant was armed and accompanied by another.”
2 LaFave 431 (emphasis added).

C

THE CONFESSION

We have carefully examined the surrounding facts and circumstances attending the confession the defendant made to Sergeant Creekmore in light of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and find no error.

The critical issue is whether the remark the defendant made while being advised of his constitutional rights, “I think I’ll let ya’ll appoint me one”, meant that he wanted a lawyer before answering any questions. We think not. The entire context of this remark is set out above.

The standards for determining whether an accused has waived his right to counsel during interrogation are stated as follows in Edwards, supra:

“(W)aivers of counsel must not only be voluntary, but constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ ”
101 S.Ct. at 1883-1884.

Here, the defendant stated unequivocally on several occasions following his arrest that he knew his rights and understood them. He repeatedly emphasized the fact that he had been a police officer for four years. Further, he specifically invoked his right to counsel when questioned by the district attorney later in the morning when he said, “I want my lawyer now.” This fact demonstrates that he was well aware that he didn’t have to answer questions without a lawyer.

In Edwards, it is clear that the accused wanted an attorney “before making a deal” or before answering any further questions. Here, the defendant did not make any definite request for a lawyer before he was questioned. The defendant simply stated, “I think I’ll let ya’ll appoint me one.” In our opinion this statement, at most, indicates that the defendant wanted appointed counsel, as opposed to retained counsel, to represent him. It does not indicate that the defendant was unwilling, or that he even hesitated, to answer Sergeant Creekmore’s questions. At no time before or during Sergeant Creekmore’s questioning did the defendant specifically request a lawyer to be present even though he was apprised of that right. Under the circumstances of this case, Officer Creekmore was not required to initiate some form of inquiry designed to clarify the defendant’s intentions. Williams v. State, 387 So.2d 295, 297 (Ala.Cr. App.1980).

We find that based upon the particular facts and circumstances surrounding this case, including the background, experience and conduct of the defendant, the defendant made a voluntary, knowing and intelligent waiver of counsel before giving his confession.

IV

Upon review of the defendant’s refused charges 7, 9, 10 and 11, we find that these instructions were either covered in other requested charges that were given or were substantially covered in the trial court’s oral charge. Thus, their refusal was without error. Lambeth v. State, 380 So.2d 923 (Ala.1979); Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956).

V

Finally, it is contended that the trial court committed reversible error in its oral charge by incorrectly placing the burden of proof on the defendant to establish self-defense. That portion of the oral charge to which the defendant duly excepted reads as follows:

“Now, if you believe beyond a reasonable doubt and to a moral certainty that the defendant acted in what he thought was self-defense and that he actually committed this act because he felt that his life was in danger and that he could not get away from there without increasing that danger, then the defendant would be entitled to a verdict of not guilty at your hands.”

There can be no question, and it is conceded by the State, that this portion of the oral charge states an incorrect proposition of law. See Lester v. State, 270 Ala. 631, 121 So.2d 110 (1960); Howard v. State, 390 So.2d 1070 (Ala.Cr.App.), cert. denied, 390 So.2d 1077 (Ala.1980). However, this error was harmless under Rule 45, ARAP. It appears from a review of the oral charge that the trial judge decided to instruct on self-defense because he felt there was “the possibility that there might have been evidence of self-defense” and because defense counsel had argued self-defense in closing argument. The undisputed evidence shows that the defendant was not free from fault in bringing on the difficulty and that he was, in fact, the aggressor. He could not, therefore, set up the plea of self-defense. The error in the oral charge placing too great a burden on the defendant to establish self-defense was harmless. Ragsdale v. State, 134 Ala. 24, 32 So. 674 (1901); C. Gamble, McElroy’s Alabama Evidence, Section 457.02(5)(a) (3rd Ed. 1977).

At trial, the defense was insanity. The defendant, through the testimony of others, admitted that he shot Officer Dotson but maintained that he suffered from a mental disease or defect. In our opinion, the fact that the jury did not sentence the defendant to death is due solely to the strength of this evidence.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . Our review of this case is not governed by Rule 45A, Alabama Rules of Appellate Procedure, the “plain error” rule, because there was no imposition of the death penalty. Graham v. State, 403 So.2d 275 (Ala.Cr.App. 1980), cert. denied, 403 So.2d 286 (Ala.1981).


text:
    Roy Edward HEPSTALL v. STATE.
    1 Div. 357.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-849.

      Michael E. Box, Saraland, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Roy Edward Hepstall was indicted by a Mobile County Grand Jury in September, 1981 for rape in the first degree and for sodomy. The charges, which were consolidated for trial, were tried by a jury on November 18,1981. The jury returned verdicts of guilty of rape in the first degree as charged and guilty of sexual misconduct, a lesser included offense of the sodomy charge. The trial court entered judgments in accordance with the jury verdicts, and sentenced appellant to 10 years in the penitentiary on the rape charge and to 12 months in the county jail on the second charge to run concurrent with the felony conviction. This appeal follows.

The incidents forming the basis of the charges in this case occurred at Dauphin Island during the late evening hours of July 12, 1981, and the early morning hours of July 13, 1981. The prosecutrix, a college student, was at Dauphin Island for the purpose of taking a class at the Marine Consortium. She had attended a party from 8:30 to 10:30 that evening and was riding a bicycle to her dormitory. The bicycle became difficult to pedal so she pushed it. She stopped by a bar, the Neptune, to get a drink of water and to ascertain if she could see anyone she knew who could give her a ride to the dormitory. She found no one to give her a ride so she decided to leave, walking the bicycle to the dormitory, because the people she saw outside the Neptune were “smoking drugs.”

As the prosecutrix was leaving the Neptune appellant, whom she testified she did not know, came up to her and told her he lived in the same vicinity as the dormitory and offered to walk with her and to push the bicycle for her. She accepted his offer and they started walking. It was then shortly after midnight.

During the walk, appellant stopped at a road where he said he lived and suggested that he and the prosecutrix go to his house so his roommate could take her and the bicycle on to the dormitory in the roommate’s car. She declined the offer, and appellant then decided that he was mistaken as to the road on which he lived. They continued the walk, during which time appellant “turned the conversation around to sex.”

During the continuation of the walk, appellant stopped and said, “Let’s rest,” pulling the bicycle from between them and laying it on the ground. Appellant then attacked the prosecutrix and she began to cry and scream. He put his hand over her mouth and pulled or dragged her off the side of the road, forcing her to take off her clothes and to lay down on the ground. Appellant forced her “to have oral sex and receive oral sex.” The prosecutrix freed herself from appellant and ran, but she fell and he overtook her. He then forced her to the side of the road and began having sex with her again.

The prosecutrix coaxed appellant to go with her to the dormitory on the pretense that her roommate would not be there and they would be alone. On the way to the dormitory, within sight of the ferry dock, appellant dropped the bicycle and told the prosecutrix “in no uncertain terms” to- lie down on the ground, and he made her “have sex in a very strange position.” After he finished, he inquired as to what kind of birth control she had. She replied that she was not on any birth control, and that she needed to get to the dormitory soon so she could take preventive measures to prevent becoming pregnant. Appellant permitted her to leave and she returned to the dormitory where she reported the incident.

I

Appellant urges error on the part of the trial court in refusing to give two of his requested written charges. We have reviewed the court’s oral charge and are convinced that the matters raised in the refused requested charges were adequately covered by the trial court’s instructions.

Refusal to give requested jury instructions does not constitute prejudicial error when the principles of law embraced therein are substantially and fairly covered elsewhere in the trial court’s instructions. Lamberth v. State, 380 So.2d 923 (Ala.1979).

The trial court did not act improperly in refusing requested charge number five and charge number six.

II

Appellant contends in brief and on oral argument that the verdict of guilty of rape in the first degree and the verdict of guilty of the lesser included offense of sexual misconduct are contradictory and inconsistent verdicts. These offenses were charged in separate indictments, arose out of the same set of facts, and were tried simultaneously.

The indictments charge two separate offenses: (1) rape in the first degree and (2) sodomy in the first degree. The jury could have returned guilty verdicts of a lesser included offense under either indictment upon proper proof and instructions.

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Brown v. State, 367 So.2d 557 (Ala.Cr.App. 1978), cert. denied, 367 So.2d 559 (Ala.1979). The rape statute requires proof of an additional fact, i.e., sexual intercourse; and the sodomy statute requires proof of an additional fact, deviate sexual intercourse.

Appellant claims inconsistency in that rape requires proof of forcible compulsion while sexual misconduct evidences lack of forcible compulsion, leading to the conclusions that the jury found a lack of forcible compulsion and that, therefore, the jury could not have returned a verdict of guilty on the rape charge. We find this contention to be wholly without merit. According to the testimony of the prosecutrix, the incident occurred over an approximate two-hour period, and consisted of several sexual assaults of various kinds. We find ample and sufficient evidence in the record to sustain the jury’s findings.

Ill

Appellant urges that the State failed to prove penetration, a material element of the rape charge. The record does not substantiate this argument.

The direct examination of the prosecutrix contains the following:

“Q. Go back up. When you had this sexual intercourse with the defendant, was that done with your consent?
“A. No.”
And on cross-examination:
“Q. How did he have his hands on you? Hold yours up and show the ladies and gentlemen of the jury how he had his hands on you.
“A. He had large hands and they fit around my neck (indicating).
“Q. Did you stop breathing at any time? “A. Yes, I did.
“Q. While he was choking you or was that when you testified when he was raping you that you kept passing out and coming back to?
“A. I would pass out and come back to during the — during the intercourse.”

The physician, who examined the prose-cutrix shortly after the incident, testified that his examination of her “showed that there had been recent intercourse.”

Additionally, there was other sufficient evidence to justify the jury’s conclusion relative to this issue.

IV

Finally, appellant complains that the rape statute is unconstitutional in that it excludes women as possible offenders, that is, it provides an unconstitutionally discriminatory classification based on sex, in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution.

This court has previously considered this issue in Smith v. State, 409 So.2d 455 (Ala. Cr.App.1981), wherein it was held:

“It is our decision that Section 13A-6-61, Code of Alabama 1975, is not unconstitutional due to its alleged discriminatory treatment of males because the punishment prescribed therein was reasonably designed to deter and control a specific and serious problem of legitimate concern to the citizens of this state.”

For the reasons stated, the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Thomas W. THOMPSON v. STATE.
    4 Div. 952.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 • Alabama Supreme Court 81-841.

      J. Allen Cook, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BARRON, Judge.

Thomas W. Thompson was indicted for murder by a Covington County Grand Jury in March, 1981, and was tried and convicted by a jury on August 24, 1981. The trial court entered a judgment of conviction and sentenced him to 25 years imprisonment. This appeal follows.

During the early evening hours of September 24,1980, appellant and a companion, Gathriel Bolling, were involved in an incident with the deceased, Thomas Ward, and a companion, Ernest Jackson. The incident, which occurred in the parking lot of the Firestone store on River Falls Street in Andalusia, culminated in the fatal shooting of Ward and the wounding of appellant with the same gun.

A number of witnesses who were at or near the scene at the time of the incident testified at the trial.

I

Appellant urges that the verdict of murder is an improper one because of the evidence that he had withdrawn from the conflict and that it is not clear from the evidence that he was the original aggressor.

With respect to claims of self-defense in the killing of an aggressor, this court, in Moore v. State, 364 So.2d 411 (Ala.Cr.App.), cert. denied, 364 So.2d 416 (Ala.1978), has held that self-defense, like alibi evidence and all other conflicting evidence, is a question for the jury to determine. See, also, Graham v. State, 339 So.2d 110 (Ala.Cr.App. 1976).

To excuse one charged with murder on the grounds of self-defense, the accused must neither provoke nor encourage the difficulty, and must at the time have been, or appeared to have been, so menaced as to create a reasonable apprehension of loss of life or grievous bodily harm. There must be no reasonable mode of escape from the menace. McDonald v. State, 340 So.2d 80 (Ala.Cr.App.1976).

In determining the issue of who was the aggressor, we must look to the facts of the case. There is conflicting testimony as to how the parties came to be on the scene. Appellant and his companion, Bolling, testified that they were driving behind a car occupied by Ward and Jackson when the deceased, Ward, motioned for them to pull into the parking lot. Jackson, who was riding with the deceased, testified that he and Ward were driving by the parking lot when Thompson, who was at the parking lot, whistled at them, indicating that they should join him.

There is also conflicting testimony as to the series of events in the parking lot. Jackson, the companion of the deceased, claimed that appellant approached the car, leaned his head down, and said that the two occupants were “just the people he was looking for”, and that thereafter appellant and Ward got into a “scuffle” between the two parked cars. Appellant claims that he said nothing and was pulled into the car by Ward, thereby precipitating the “scuffle.” Appellant admitted shooting Ward but recalled nothing about how he became wounded. Appellant testified that Ward was moving toward him.

Bolling, appellant’s companion, testified that Ward said he was “going to get” appellant, and that appellant told Ward “to stay back and just go on and there wouldn’t be no more trouble.” Bolling further testified that appellant had a gun in his back pocket.

There was no testimony that either the deceased or his companion possessed, displayed, or threatened to use a weapon of any type during the altercation.

Fisticuff blows do not, as a rule, inflict the grievous bodily harm which, other means of escape being cut off, will excuse the slaying of the assailant. Howard v. State, 390 So.2d 1070 (Ala.Cr.App.), cert. denied, 390 So.2d 1077 (Ala.1980).

Appellant’s trial testimony contradicted a prior statement he gave to police officer Treadaway shortly after the incident. A portion of officer Treadaway’s testimony follows:

“Q. All right. Did Tommy Thompson further describe to you how Thomas Ward got shot?
“A. Yes sir, he said what had happened, Mr. Ward had taken the gun out of his pocket, he was wrestling with him over the gun, said he heard a pop. He let go and backed up about a foot, then Mr. Ward brought the gun down and shot him in the left side.
“Q. Thomas Ward had the gun in his hand during this whole time, is that correct?
“A. By Mr. Thompson.
“Q. By his statement on September the 27th.
“A. Yes, sir.
“Q. And Thomas Ward got the gun out of his back pocket and they were tussling over the gun?
“A. Yes, sir.
“Q. And that Thomas Ward shot himself and killed himself, is that correct?
“A. Yes, sir.
“Q. And further that Thomas Ward shot the Defendant, Tommy Thompson? Is that correct?
“A. Yes, sir.”

During his trial testimony, appellant testified that he shot Ward, and that he had no recollection of the events after seeing Ward fall down. Appellant did not deny shooting himself, and there was evidence from witnesses indicating that he did, in fact, shoot Ward and then, minutes later, himself.

Applying the law to the facts in this case, it is clear that appellant’s claim of justifiable homicide is without merit.

II

Appellant argues that photographs released into evidence showing blood on the deceased’s forehead should not have been admissible because it was unproven that the forehead wound was the cause of death. The rule as to admissibility of such photographic evidence was stated in McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950):

“[t]he art of photography is generally relied on for depicting the resemblance of persons, objects, things and places, and when verified by evidence, extrinsic of the photographs, going to show that they correctly depict the thing or object at the time they were taken, photographs are admissible in evidence in a criminal prosecution, if they tend to shed light on, strengthen or illustrate the truth of other testimony offered by the prosecution.”

See also Braswell v. State, 371 So.2d 992 (Ala.Cr.App.1979); McKee, supra.

The photographs illustrated the testimony of the medical examiner, Dr. Gilchrist, which was extrinsic of the photographs, and were clearly admissible. Appellant relies on Walker v. State, 37 Ala.App. 639, 74 So.2d 617 (1954), which is distinguished from the instant case in that the Walker photographs of a wrecked car and injured passengers were improperly admitted to prove intoxication of a driver who caused the accident.

The photographs in the instant case did not and could not prove cause of death. They simply depicted the physical appearance of the deceased in a manner long recognized by this court as acceptable.

There was no error in the admission of the photographs in this case.

III

Appellant urges that the trial court erred in overruling his motion for a new trial on the basis of newly discovered evidence concerning the deceased’s reputation for violence. The testimony of appellant’s witness was heard by the trial court at a hearing on the motion for a new trial.

On a motion for a new trial, based upon newly discovered evidence, the decision of the trial court will not be disturbed unless there is an abuse of discretion. McBryar v. State, 368 So.2d 568 (Ala.Cr. App.1979), cert. denied, 368 So.2d 575 (Ala. 1979); White v. State, 294 Ala. 265, 314 So.2d 857 (1975).

Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958), provides the applicable rule:

“In order for a new trial to be granted on newly discovered evidence, the movant must show that the proffered evidence could not have been discovered before trial by use of diligence, that it was material and competent, not merely cumulative, and will probably change the result.”

We hold that appellant did not meet the required tests, and that there was no abuse of discretion by the trial court in denying the motion for a new trial on the basis of newly discovered evidence.

IV

The appellant claims that there was error in the procedure used in sentencing the defendant.

It is unclear what error is claimed, as the record is silent as to whether or not the judge received and relied on a presentence report.

The error complained of is not a part of the record, and there was no objection and adverse ruling to preserve this complaint for review. Cooper v. State, 331 So.2d 752 (Ala.Crim.App.1976), cert. denied, 331 So.2d 759 (Ala.1976).

For the reasons stated, the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Claude Arthur THOMAS, Jr. v. STATE of Alabama.
    6 Div. 753.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-876.

      Virginia A. Vinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Claude Arthur Thomas, Jr., was indicted for and convicted of the first degree robbery of a grocery store, and sentenced pursuant to the Habitual Felony Offender Act to life imprisonment.

Four eyewitnesses made positive in-court identifications of this appellant at trial.

I

Identity was the sole issue at trial only because the appellant said he did not commit the crime.

On appeal, the sole contention of the appellant is that the trial court erred in refusing his written requested jury charge number one (R. 269), which emphasized the importance of the identification issue.

However, in this cause there was clearly no error by the trial judge, who gave appellant’s requested charge number two (R. 249, 269) which adequately covered the identification issue. Moreover, the trial judge’s oral charge (R. 247, 248) also instructed the jury that they must be convinced that this defendant, Claude Arthur Thomas, Jr., committed this crime.

Furthermore, this alleged error was not properly preserved for our review because the appellant’s counsel announced (R. 250) that he was satisfied with the trial court’s oral charge, which included the appellant’s requested charge number two. Allen v. State, 414 So.2d 989 (Ala.Cr.App. 1981).

There is no error in this record. Therefore, this case is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Johnny RICE v. STATE.
    6 Div. 775.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-875.

      J. Louis Wilkinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Appellant was charged with theft in the first degree in violation of Ala.Code § 13A-8-3 (1975). He pleaded not guilty and was convicted in the Circuit Court of Walker County on September 18, 1981. Appellant was sentenced to a term of 45 years in the State penitentiary. This appeal followed that conviction.

On the first week in March, 1980, appellant leased a trailer designed for transporting heavy machinery from a rental firm in Jasper, Alabama. During that same week, the City of Jasper, Alabama reported a $40,000 1972 model Caterpillar tractor-loader stolen.

A week later, this trailer and tractor-loader were being offered for sale by appellant in Houston, Texas. There was evidence that appellant falsely claimed ownership of the tractor-loader and produced a forged bill-of-sale to potential buyers. The tractor-loader was painted in various places with the words “City of Jasper.” Tags and identification numbers for the tractor and trailer had been removed or altered.

The appellant rode with a Mr. Owens to Houston, Texas, with the trailer and the stolen machinery. There was evidence that Mr. Owens and appellant were accomplices in the crime.

After the unsuccessful attempt was made to sell the machinery, both tractor and trailer were found abandoned at a Houston truck stop. The tractor and trailer were subsequently returned to Walker County with the help of Houston law enforcement officials.

The appellant offered no direct evidence at trial. Appellant complains of two errors in the trial court’s charge to the jury.

I

The first charge objected to was as follows:

“Now you have heard testimony in this case that there was probably two persons involved in this transaction as this is what is known in the law as complicity.”

Appellant correctly notes that the case of Cole v. State, 75 So. 261, 16 Ala.App. 55 (1917), requires that a trial judge refrain from comment on the effect or the weight of evidence presented in a case. A judge should, when instructing a jury, take care not to intimate opinion on evidence. N. Chiarkas, Alabama Criminal Trial Practice, § 24-2 (1982).

Appellant claims that the use of the word “probably” in this portion of the charge amounted to a comment on the evidence. The defense claims that appellant was merely an unwitting passenger on the trip to Houston and not an accomplice in crime.

Appellant cites the cases of Panty v. State, 193 So.2d 418, 43 Ala.App. 507 (1966), and Hicks v. State, 58 So.2d 903, 36 Ala. App. 464 (1952). The jury charges challenged in these cases and in Cole, supra, however, are distinguished from the charges challenged in the instant case.

The trial court in the instant case did not inject its opinion as to the importance of the evidence adduced as did the court in Cole and Hicks, and it certainly did not tell the jury that the corpus of the crime had been proven as the court did in Panty.

The law in this state is that the court does not invade the province of the jury in a criminal prosecution by stating that there is evidence of a particular fact when such is the case. Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970).

The case of Crumpton v. State, 402 So.2d 1081 (Ala.Cr.App. 1981), is the most recent of many decisions of the Alabama courts which state that a trial court’s charge is to be construed as a whole, and if, when so construed, it asserts a correct proposition applicable to the evidence, a disconnected part of a sentence is not reversible error.

In the instant case, we conclude that the trial court’s use of the word “probably” rather than “possibly” or “allegedly” was harmless error. Though ill advised, the wording was innocuous in its effect. The trial court in this charge simply made a reference to, rather than a comment on the evidence. This was not an invasion of the province of the jury, and did not, when taken in context with the rest of the charge, have the prejudicial impact that would require a reversal.

II

The appellant also claims as error this portion of the court’s oral charge:

“If you find, after hearing the evidence, that there is conflict in the evidence as to any material facts, you must make a bo-nofide [sic] effort to reconcile that conflict with all the other evidence in the case and to make all of the witnesses speak the truth if you can reasonably do so.”.

Appellant claims that this charge detracts from the appellant’s presumption of innocence when, as in this case, the defense has offered no affirmative testimony.

We find that this portion of the oral charge is a proper statement of the law, when considered with the court’s entire charge, and is not contrary to the appellant’s presumption of innocence. This charge is similar to a charge properly given in the case of Jeter v. State, 339 So.2d 91 (1976). The charge in the Jeter case was given under similar circumstances in that there was no affirmative defense testimony in the record.

We find no error in these oral charges to the jury.

AFFIRMED.

All the Judges concur.


text:
    Benny EDWARDS v. STATE.
    7 Div. 923.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-825.

      Kermit Mac Downs, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Appellant was adjudged guilty of burglary in the third degree and theft of property in the first degree and sentenced to fifteen years. He claims that he was convicted on the uncorroborated testimony of an accomplice, Richard Carter.

Carter testified that on June 28, 1980, he and two or three other companions went to the Big Warehouse in Attalla, climbed through the roof and took four television sets. When Carter displayed some reluctance to implicate the appellant, the State claimed surprise and was allowed by the trial judge to impeach the witness with a prior statement made to sheriff’s deputies. The statement clearly indicated that appellant had taken part in the burglary of the warehouse and theft of the televisions.

After a question by the State concerning whose vehicle was drivén to the warehouse, the following occurred:

“A. I don’t know whose car it was. “DEPUTY DISTRICT ATTORNEY MARTIN: Your Honor, I think it is only fair that I tell that witness that he is under oath now and he is subject to the laws of perjury if he is not going to tell the truth. He certainly is.
“THE COURT: Do you understand that, Mr. Carter?
“A. No, sir.
“THE DEFENDANT: They was in my car, your Honor.
“DEPUTY DISTRICT ATTORNEY MARTIN: Now, are you going to answer the question? Whose car were you in? “A. I told them I didn’t know whose car it was. As far as I know it was either Benny’s or Ruby’s or somebody’s “DEPUTY DISTRICT ATTORNEY MARTIN: Well, who ordinarily drove that ear?
“A. Benny and Ruby.”

Tammy Jones, appellant’s cousin by marriage, testified that on the date in question she went to appellant’s house to babysit with his children. When she arrived at the residence, appellant and his wife, Richard Carter and his wife, and three other people were present. After a while, appellant, Carter, and two other men left. They returned two hours later with four television sets. The witness testified that “all of them” discussed how “they” had broken into the Big Warehouse and had taken the television sets. The witness did not remember who made the statements but she recalled that appellant was present.

Richard Carter’s admitted and undisputed participation in the burglary and theft renders him an accomplice as a matter of law, see Jacks v. State, 364 So.2d 397 (Ala. Cr.App.), cert. denied, 364 So.2d 406 (Ala. 1978), whose testimony required corroboration, Ala.Code § 12-21-222 (1975).

In our judgment, Carter’s story was corroborated by the testimony of Tammy Jones and by the spontaneous outburst of appellant himself quoted above. Mrs. Jones’ testimony that Carter, the appellant, and two companions left appellant’s house and returned with four television sets “tends to connect” appellant with the burglary and theft. See Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966). In addition, Mrs. Jones’ statement that “all of them,” including the appellant, were discussing the burglary of the warehouse and theft of the property after they returned two hours later ties appellant to the offense. See Staton v. State, 397 So.2d 227 (Ala.Cr.App.), cert. denied, 397 So.2d 232 (Ala.1981); Moore v. State, 30 Ala.App. 304, 5 So.2d 644 (1941). Finally, appellant’s own utterance to the court, “They was in my car, your Honor,” provides an additional circumstance linking him to the offense.

The judgment of conviction by the Eto-wah Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.