author: TYSON, Judge.

text:
    Steve A. IRVIN v. STATE.
    6 Div. 613.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, June 25, 1982 Alabama Supreme Court 81-647.

      Larry Waites of Dinsmore, Waites & Sto-vall, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Appellant was indicted and convicted for the murder of James Richard Fielden, Jr. by shooting him with a pistol in violation of Ala.Code § 13A-6-2 (Supp.1977). The trial court fixed his punishment at twenty-five years’ imprisonment in the state penitentiary-

The sufficiency of the state’s evidence is not questioned. Briefly stated, appellant shot the deceased in the back of the head around 3:00 a. m. on October 8, 1980 at the state fairgrounds in Birmingham. The deceased had been arguing with his girlfriend, Carrie Hancock, and had slapped her causing her to scream. Appellant and two other men heard the scream and ran to where the deceased and Miss Hancock were. After ascertaining that Miss Hancock was “all right,” appellant became incensed. Miss Hancock ran to Michael Curry’s trailer. Mr. Curry, the employer of both the deceased and Miss Hancock, testified that he heard and saw “some scuffling going on at the back of my trailer.” (R. 80). The deceased managed to break away from the scuffling momentarily and was almost inside Curry’s trailer to safety when appellant’s two cohorts “grabbed the back of his jacket and pulled him away.” (R. 81) Curry tried to explain to the deceased’s assailants that he would handle the situation, but received the following rebuke from appellant: “I don’t give a damn who he works for; he is not going to do what he did to her and get away with it.” (R. 81) Curry then witnessed appellant place his pistol against the back of the deceased’s head and fire.

I

As stated previously, Michael Curry on direct-examination testified that he saw appellant place a pistol against the back of the deceased’s head and fire the weapon. Curry stated that he was two or three feet away from the defendant and deceased and was standing on a step approximately three feet above them when he witnessed the shooting. From Curry’s vantage point appellant was standing behind the deceased “when he pulled the trigger.” (R. 88) Curry testified that as he was looking down he saw appellant hold the gun for two or three seconds before he fired. Curry described the small caliber weapon in detail.

Appellant’s sole defense was that the shooting had been accidental. In an attempt to discredit Curry’s observation of the shooting on cross-examination, it was shown that Curry did not see appellant’s “finger pull the trigger,” that from Curry’s angle he had seen appellant’s “hand go up, and the gun fired.” (R. 106) Later on recross-examination, appellant attempted to impeach Curry’s testimony by having him read the words, “The gun went off,” from page seven of Curry’s grand jury testimony regarding the shooting. Curry admitted that he had probably used those words, but did not recall his former testimony verbatim.

The following then occurred on redirect-examination by the state:

“Q What was the sentence just preceding that sentence, ‘The gun went off.’
“MR. WAITES: Well, Judge, if he doesn’t recall I object to his reading from the grand jury testimony, unless he introduces the whole thing.
“THE COURT: Overrule. Go ahead.
“A You want me to read out loud?
“Q Yes, sir.
“A ‘He placed the gun on the back of his head, pulled the trigger, which shot the bullet, which killed Richard.’
“Q Then the sentence says: ‘The gun went off.’ And the next sentence?
“A I pulled the door to.
“MR. GOMANY: That’s all.
“MR. WAITES: That’s all.
“THE COURT: Come down, please, sir.
“Witness excused.”

(R. 118)

Appellant contends that Curry’s redirect-examination violated the principle that proof of statements, verbal or written, made by a witness out of court are, as a general rule, inadmissible to corroborate his testimony at trial. This rule has been variously expressed and applied. See Long v. Whitt, 197 Ala. 271, 72 So. 529 (1916); McKelton v. State, 86 Ala. 594, 6 So. 301 (1889); Nichols v. Stewart, 20 Ala. 358 (1852). We disagree, however, that this rule has application in the instant case.

Initially, it must be noted that appellant’s objection at trial was not specific as to this issue. Appellant’s objection to Curry’s reading from the grand jury testimony was that the “whole thing” was not introduced. As this court stated in Bland v. State, 395 So.2d 164, 168 (Ala.Cr.App.1981):

“Only those grounds of objection presented to the trial court can serve as a basis for reversal of its action. Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976). The trial judge will not be placed in error on grounds not assigned in the objection. Cook v. State, 384 So.2d 1158 (Ala.Cr.App.), cert. denied, Ex parte Cook, 384 So.2d 1161 (Ala.1980); Knight v. State, 381 So.2d 680 (Ala.Cr.App.1980); Cooper v. State, 380 So.2d 1003 (Ala.Cr.App.1980). Even though evidence may have been inadmissible on different grounds, the defendant is bound by the specified grounds of objection. Turley v. State, 356 So.2d 1238 (Ala.Cr.App.1978). The trial court must be apprised of the basis for the objection with sufficient particularity to allow an informed decision to be made on the particular legal issue involved. Ward v. State, 376 So.2d 1112 (Ala.Cr.App.), cert. denied, 376 So.2d 1117 (Ala.1979).”

Moreover, even if appellant’s objection below had been specific to the issue he attempts now to raise, we cannot agree with his contention under the present facts. A similar situation occurred in Falkner v. State, 151 Ala. 77, 44 So. 409 (1907). In Falkner, supra the defendant undertook on cross-examination to impeach the testimony of state witness Williams by offering evidence tending to show that Williams had testified at the preliminary hearing, in the particular specified, at variance with her testimony given at trial. In order to refute any such impeachment, the state offered the written synopsis, signed and verified by Williams, of her testimony at the preliminary hearing which was shown to be true and correct. The trial court permitted its introduction, but limited the jury to the consideration of the written synopsis in the particular as it related to the controverted point. This was held not to be error. In addressing this issue the Supreme Court in Falkner, supra wrote the following:

“[W]e are of the opinion that, under the circumstances in this case shown above, no possible injury to or wrong was committed against the defendant in the admission of the paper under the limitations stated by the court.” (Emphasis added) 44 So., at 410.

And in Lester v. Jacobs, 212 Ala. 614, 103 So. 682 (1925), where the defendant, on cross-examination of the plaintiff’s witness, introduced part of the former testimony of such witness without limitation and without declaring its purpose, but apparently for the purpose of impeachment, it was held that the plaintiff was properly permitted to introduce the whole of such testimony on rebuttal. The Supreme Court in Lester, supra, stated that it was proper to allow the witness to be subjected to such re-examination:

“to give her an opportunity to explain what she did say and acquaint the jury of the nature and extent of her former examination. The plaintiff had this right and was in justice to be accorded the witness as to any apparent or inferential conflict in her two statements of fact under oath of the same subject-matter in the same suit.” (Emphasis added). 103 So., at 687

II

Appellant argues that the trial court committed reversible error in allowing the introduction of state’s exhibit 5, a photograph of the deceased taken at the scene. Appellant alleges that the state did not lay the proper predicate in establishing that the scene had not been altered from the time the shooting occurred until the photograph was made. We disagree with appellant’s arguments. The photograph was introduced during the testimony of Deputy Coroner Joe Canoy of the medical examiner’s office. Mr. Canoy took the photograph when he arrived on the scene. He referred to the photograph in describing the wound he observed on the deceased’s body. The trial court made it clear at the time the photograph was admitted into evidence that it was being received for the purpose of showing the wound as described by the coroner, not for the purpose of showing the scene. The question appellant raises was thoroughly treated in McKee v. State, 253 Ala. 235, 44 So.2d 781 (1949). We see no need to here recite those principles of law.

We have carefully examined each issue raised by appellant and have found no error prejudicial to his substantial rights. The circuit court’s judgment of conviction is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Earnest ELDRIDGE v. STATE.
    4 Div. 943.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, June 25, 1982 Alabama Supreme Court 81-634.

      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.
   BOWEN, Judge.

The defendant was indicted and convicted for receiving stolen property in the second degree. Alabama Code 1975, Section 13A-8-16 (Amended 1977). Sentence was two years’ imprisonment.

I

The defendant contends that Section 13A-8-16(b)(2) creates a new crime and unconstitutionally shifts the burden of proof from the State to the accused.

Section 13A-8-16(b)(2) provides that if a person “(p)ossesses goods or property which have been recently stolen * * * this shall be prima facie evidence that he has the requisite knowledge or belief.” In the crime of receiving stolen property, the “requisite knowledge or belief” is that the accused knows that the property has been stolen or has reasonable grounds to believe it has been stolen and does not have the intent to restore the property to the owner. Section 13A-8-16(a).

The inference of guilty knowledge which may be drawn from the unexplained possession of recently stolen property is a “traditional common-law inference deeply rooted in our law.” Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973); Malachi v. State, 89 Ala. 134, 141-2, 8 So. 104 (1889). In dealing with the related concept that the unexplained possession of goods recently stolen is a fact from which the jury may infer that the possessor is guilty of larceny, Wigmore states that the “use of this sort of evidence goes back as far as any in our law.” 1 Wigmore, Evidence, Section 152 (Chadbourn rev. 1981).

This inference comports with due process of law and satisfies the “reasonable-doubt standard” because the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt. Barnes, 412 U.S. at 846, 93 S.Ct. at 2363. “There has never been any question on this.” Wig-more, section 152. “There is no unfairness in the presumption; it is reasonable.” Martin v. State, 104 Ala. 71, 78, 16 So. 82 (1893).

This evidentiary rule has been recognized by the Supreme Court of this state as “sound law.” Buckles v. State, 291 Ala. 352, 356, 280 So.2d 814 (1972). The doctrine is of “crucial” importance in “bringing about the conviction and punishment of guilty possessors of stolen goods” where direct evidence of actual knowledge or belief in the stolen character of the property is rarely going to be available. Buckles, supra.

A portion of the defendant’s objection to Section 13A-8-16(b)(2) lies in the fact that the statute omits the term “unexplained” in making the possession of recently stolen property prima facie evidence of the guilty intent and knowledge. At first reading, this argument would appear to have some merit as it is well settled that, whenever there is evidence tending to explain the possession, it is error to charge the jury that the possession of property recently stolen is prima facie evidence of guilt without the qualification “unexplained”. Orr v. State, 107 Ala. 35, 39, 18 So. 142 (1895).

However, if the statute is examined carefully and strictly construed as criminal statutes must be, Robinson v. State, 361 So.2d 1113 (Ala.1978), the apparent omission of the term “unexplained” from the statute does not vitiate the inference or create any “new” crime as argued by the defendant.

The defendant’s question of the statute is answered when the term “prima facie” is defined. This term has a definite and specific meaning. In view of the historical and common law existence, application and purpose of the inference itself, we must assume that the legislature was aware of that meaning in enacting the statute. Ex parte Vincent, 26 Ala. 145, 62 Am.Dec. 714 (1855). It is not disputed that the legislature may provide by statute that certain facts are prima facie evidence of other facts, providing reason and experience connect the ultimate fact inferred with the facts proved. Wells v. State, 378 So.2d 747, 750 (Ala.Cr. App.), cert. denied, Ex parte Wells, 378 So.2d 756 (1979). See Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975); Ex parte Woodward, 181 Ala. 97, 61 So. 295 (1912); Aldridge v. State, 351 So.2d 656 (Ala.Cr.App.), cert. denied, Ex parte Aldridge, 351 So.2d 658 (Ala.1977); Dees v. State, 16 Ala.App. 97, 75 So. 645 (1917).

The term “prima facie evidence” has been defined by the courts of this state.

“ ‘Prima facie evidence’ means that which brings about a measure of proof which, unless it is self contradictory or is contradicted by the defense, would support the jury’s inferring the existence of one or more elements of a crime.” Kizziah v. State, 42 Ala.App. 303, 305, 162 So.2d 889 (1964) (unexplained possession of part of a still prima facie evidence of violation of statute).

Briggs v. State, 375 So.2d 530, 534 (Ala.Cr.App.1979); Stiles v. State, 55 Ala.App. 374, 376, 315 So.2d 609 (1975); Sheppard v. State, 49 Ala.App. 400, 272 So.2d 605 (1973); Cunningham v. State, 47 Ala.App. 730, 734, 261 So.2d 69 (1972).

In Tittle v. State, 252 Ala. 377, 379, 41 So.2d 295 (1949), it was held:

“Prima facie evidence is ‘evidence which suffices for the proof of a particular fact until contradicted or overcome by other evidence.’ * * * An inference or presumption of law, affirmative or negative of a fact, in the absence of proof, or until proof can be obtained or produced to overcome the inference. Black’s Law Dictionary, 3d Ed., p. 700.
“Ballentine’s Law Dictionary defines the term as ‘such evidence as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose. In a legal sense, such prima facie evidence, in the absence of all controlling evidence, or discrediting circumstances, becomes conclusive of the fact.’ P. 1009.”

The defendant cannot argue that we have given the term a highly technical meaning rather than one that is natural, plain, ordinary and commonly understood. Webster’s Third International Dictionary (1971) defines prima facie evidence: “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted.” The American Heritage Dictionary of The English Language (1969) defines it: “Evidence that would, if uncontested, establish a fact or raise a presumption of a fact.”

Thus, the statutory inference does not create a new crime and authorize the conviction of an accused for receiving stolen property simply upon proof of the possession of recently stolen property as argued by the defendant.

This is merely a rule of evidence fixed by the legislature in its efforts to suppress crime. It simply fixes what will be prima facie evidence of a violation when certain facts have been proven. Little v. State, 27 Ala.App. 119, 120, 166 So. 618 (1936).

“The unexplained possession, ... looks to and calls on the possessor for an explanation of how he came by the recently stolen goods, for otherwise, an inference arises out of an incriminating circumstance from which the accused may be found guilty and convicted.”

Buckles, 291 Ala. at 354, 280 So.2d 814. See also Martin v. State, 104 Ala. 71, 78, 16 So. 82 (1893) (Possession of recently stolen property imposes on the possessor the “onus” of explaining the possession). “It is the ‘unexplained’ recent possession of stolen property that authorizes the inference of guilt. Whether the explanation offered is credible or satisfactory is a question for the jury.” Orr, 107 Ala. at 39, 18 So. 142.

The effect of establishing a prima facie case is stated in Ogletree v. State, 28 Ala. 693, 702 (1856).

“In a criminal case, the establishment of a prima facie case does not, as in a civil case, take away from the defendant the presumption of innocence, or change the burden of proof. A solid reason for the distinction is, the well known difference in the measure of proof in the two classes of cases. In a civil case, the plaintiff is not required to prove, beyond all reasonable doubt, the facts on which he relies for a recovery; and therefore, when he establishes a prima facie case, the burden of proof is thereby shifted, and the prima facie case so established entitles him to recover, unless it is destroyed by proof from the other party. But in a criminal case, the State is required to prove, beyond all reasonable doubt, the facts which constitute the offense. The establishment, therefore, of a prima facie case merely does not take away the presumption of innocence from the defendant, but leaves the presumption to operate, in connection with, or in aid of, any proofs offered by him to rebut or impair the prima facie case thus made out by the State. A circumstance, aided by that presumption, may so far rebut or impair the prima facie case, as to render a conviction upon it improper.” (Emphasis in original)

“Prima facie evidence of guilt does not shift the burden of proof.” Hurston v. State, 235 Ala. 213, 215, 178 So. 223 (1938). “Until the State proves, in the first instance, beyond a reasonable doubt, the facts which constitute the offense, the accused is not required to establish his innocence by exculpatory evidence.” Segars v. State, 86 Ala. 59, 60, 5 So. 558 (1888); Hodges v. State, 42 Ala.App. 147, 148, 155 So.2d 533 (1963).

This statutory inference does not shift the burden of proof to the defendant. Coats v. State, 257 Ala. 406, 60 So.2d 261 (1952). See also United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971). There is a manifest distinction between the burden of proof and the burden of adducing evidence or the burden of explanation. Buckles, 291 Ala. at 357, 280 So.2d 814; C. Gamble, McElroy’s Alabama Evidence, Section 444.-01 (3rd ed. 1977). Even where a prima facie case is established, it is for the jury to determine whether there was sufficient evidence from which to infer guilt due to the unexplained possession of recently stolen property. Odom v. State, 44 Ala.App. 534, 215 So.2d 596 (1968). Hale v. State, 45 Ala.App. 97, 225 So.2d 787, cert. denied, 284 Ala. 730, 225 So.2d 790 (1969); 9 Wigmore, Section 2513.

In proving a prima facie case in a criminal prosecution, all the State has done is fulfill its duty of proving the elements of the offense so that the jury may be allowed to consider its case. Vinet v. State, 38 Ala. App. 299, 83 So.2d 357, cert, denied, 263 Ala. 701, 83 So.2d 359 (1955); 9 Wigmore, Section 2494.

“(T)he practical effect of instructing the jury on the inference arising from the unexplained possession of recently stolen property is to shift the burden of going forward with evidence to the defendant.” Barnes, n. 11, 412 U.S. at 846, 93 S.Ct. at 2363. However, this is permissible. Barnes, supra. “The possession of property recently stolen does not raise a presumption or inference, as a matter of law, of the guilt of the possessor, but the presumption arising from such possession is a matter of fact to be passed on by the jury.” Wilson v. State, 361 So.2d 1167, 1170 (Ala.Cr.App.1978).

“(I)t is error to instruct the jury, as matter of law, that it is their duty to convict a defendant who is found in the possession of goods recently stolen, unless he can explain his possession to their reasonable satisfaction. The weight to be given such evidence should be left to the jury, to be considered in connection with the other evidence in the case; and, unless the jury is satisfied from all the evidence beyond a reasonable doubt of the defendant’s guilt, the jury should acquit.” Thomas v. State, 109 Ala. 25, 27, 19 So. 403 (1895).

Upon the authorities cited above, we find the inference created by Section 13A-8-16(b)(2) constitutionally sound and fundamentally fair.

II

The defendant argues that the receiving stolen property statute is unconstitutionally vague and indefinite because it employs the term “recently stolen property.” He contends this term is ambiguous, indefinite and incapable of precise definition.

In this regard, “the courts have uniformly adopted the view that ‘recent’ is a relative term which depends upon all the facts and circumstances of each case and must be left for the determination of the trier of fact.” Anno., 89 A.L.R.3d 1202, 1206 (1979). The question of what is recent is “usually one of fact for the determination of the jury.” White v. State, 72 Ala. 195, 200 (1882); Yielding v. State, 371 So.2d 951, 959 (Ala.Cr.App.), cert. denied, 371 So.2d 962 (Ala.1979). “ ‘Recent possession’ must be determined from the facts of each case and may vary from a few days to many months.” Buckles v. State, 50 Ala.App. 548, 552, 280 So.2d 810 (1972).

We have found no case, and have been cited none, where the term “recently” has been held to render a statute vague and unconstitutional. The inference of guilt arising from the unexplained possession of recently stolen property has been held to pass constitutional muster. Barnes, supra.

Ill

The defendant’s argument that the property in this case was not, as a matter of law, recently stolen is without merit.

In United States v. Underwood, 588 F.2d 1073, 1077 (5th Cir. 1979), it was held:

“We have specifically declared that there is no set period of time during which property remains recently stolen for purposes of the presumption. Hale v. United States, 410 F.2d 147, 151 (5th Cir. 1969). Because it varies under the circumstances of each case, it is a question of fact for the jury. Id. Since the jury is to decide what constitutes recently stolen property for purposes of applying the presumption, we hold that it was not error for the court to fail to explicitly limit the application of the presumption to the charged offense.”

In this case there was a period of approximately five and one-half months between the theft of the pistol and the time it was found in the defendant’s possession.

Within the meaning of the rule allowing an inference of guilt from the defendant’s possession of recently stolen property, the defendant’s possession of a stolen gun three years from the date of the theft has been held to be “recent”. Hardage v. State, 552 S.W.2d 837 (Tex.Cr.App.1977). Whether possession of a pistol one and one-half years after the theft was recent was held to be a question for the jury in Yielding, supra. However, in People v. Taylor, 25 Ill.2d 79, 182 N.E.2d 654 (1962), the court found that the defendant’s possession of a revolver more than four months after the robbery in which the gun was stolen was not such recent possession as to satisfactorily raise an inference of his guilt of the robbery. For other uses see 89 A.L.R.3d, Section 13.

It has been noted that the lapse of a long interval between the theft and the subsequent possession “opens a greater possibility of innocent explanations, and may prevent the raising of a presumption of law.” Wigmore, Section 152. “(T)he presumption grows weaker as the time of possession recedes from the time of the original taking.” Martin v. State, 104 Ala. 71, 78, 16 So. 82 (1893). This concept has also been explained:

“The more remote in time the possession stands to the time of the theft the less strong are the circumstances of possession.
“Conversely, the sooner after the taking the more likely it is that the possessor is the thief, (citations omitted).”'
Bullock v. State, 54 Ala.App. 609, 610, 311 So.2d 332 (1975).

Here the fact that the defendant was found in possession of the stolen pistol approximately five and one-half months after the weapon had been stolen is not so long a time as to extinguish the inference of guilt arising from the unexplained possession of property recently stolen as a matter of law. This was a question of fact for the jury. Underwood, supra; White, supra; Yielding, supra.

In determining whether the possession was recent within the meaning of the rule there are other factors to consider in addition to the mere passage of time between the theft and possession. Other facts which should be examined are “the type and kind of property, the amount or volume thereof, the ease or difficulty with which it may be assimilated into legitimate trade channels, and the circumstances under which the property is alleged to have been acquired.” 89 A.L.R.3d at 1214. See also Wood v. State, 18 Ala.App. 654, 655, 94 So. 256 (1922) (Jury may consider “the character of the merchandise, the unusual manner in which they came into his possession, his evasive statements concerning them, together with the attending surrounding circumstances.”)

In a statement to the police following his arrest, the defendant stated that he received the pistol in partial payment for some “body work” he had done. He refused to give the name of the individual from whom he had received the weapon. Initially, he told the officers that he had received the pistol on a date prior to the theft but when informed of this fact he said he made a mistake on that date and changed it to a date after the theft.

At trial the defendant stated that Red Dawkins gave him the pistol as partial payment for some body work the defendant had performed on Dawkins’ automobile. The defendant produced an estimate of repairs dated “12/20/81” which he testified should have been dated “12/20/80”. He testified that Dawkins picked up his car and gave him the pistol sometime in February, about six weeks later. On rebuttal, the State proved that Dawkins died on the 8th of January, 1981.

. Under these circumstances we are unwilling to hold as a matter of law that the possession was too remote to support an inference of guilt. Under the facts of this case, the question of recency was one for the jury. We make this determination with due regard for the considerations stated in Hale v. United States, 410 F.2d 147, 150 (5th Cir. 1969) and United States v. Robertson, 417 F.2d 873, 877 (5th Cir. 1969).

“The inference allowed by unexplained possession is a powerful one. It is a substitute for direct proof of guilty knowledge and courts, both trial and appellate, should proceed with extreme care in determining whether the evidence sufficiently establishes a basis for the inference. Cautious vigilance must be maintained against the employment of naked legal principle in a factual setting which provides no reasonable basis for the principle’s application. On the other hand, the jury must not be unduly inhibited in its search for truth; it must be permitted to draw fair and reasonable inferences from credible evidence.”
(Emphasis in original)

Hale, 410 F.2d at 150.

IV

The defendant’s contention that the State failed to prove that the pistol had actually been stolen when he received it is without merit.

To sustain a charge of receiving stolen property, the State must prove that the property has been previously stolen. However, this and all elements of the crime need not be proved by direct evidence. The corpus delicti “may be proven by facts and circumstances from which the jury may infer that the offense has been committed.” Tanner v. State, 37 Ala.App. 256, 261, 66 So.2d 827 (1952), cert. granted, 259 Ala. 306, 66 So.2d 836 (1953).

“To sustain the charge of a felonious taking, it is not required that it be proved when, where or by whom the goods were stolen. It is sufficient if the evidence introduced affords an inference of the larceny of the goods. McKee v. State, supra (24 Ala.App. 175, 132 So. 68); Hester v. State, 103 Ala. 83, 15 So. 857; Smith v. State, 133 Ala. 145, 31 So. 806. “The State’s evidence that the property listed in the indictment had disappeared from the home of the owner without her knowledge or consent, was sufficient to authorize the jury to infer that the goods were stolen by some person.”

Tanner, 37 Ala.App. at 261, 66 So.2d 827. See also Waters v. State, 360 So.2d 358 (Ala.Cr.App.), cert. denied, Ex parte Waters, 360 So.2d 367 (Ala.1978); Buckles, 50 Ala.App. 548, 280 So.2d 810, reversed, 291 Ala. 352, 280 So.2d 814 (1973), on remand, 50 Ala.App. 552, 280 So.2d 820 (1973), affirmed, 291 Ala. 359, 280 So.2d 823 (1973); Coates v. State, 36 Ala.App. 371, 56 So.2d 383 (1952); Tyler v. State, 18 Ala.App. 546, 93 So. 288 (1922).

All of the necessary ingredients or elements of the crime of receiving stolen property “may be, and most of them usually are, shown by circumstantial evidence, from which the jury, using their everyday common sense and observation, must draw their conclusions.” Tyler v. State, 17 Ala.App. 495, 496, 86 So. 93 (1920).

Under these authorities, the State’s evidence that the pistol was “shoplifted” from a pawn shop is sufficient to show that the property was stolen.

V

The arguments that the trial court erred by failing to charge the jury on receiving stolen property in the third degree (Section 13A-8-19) and gave an erroneous instruction on the inference which the jury may draw from the unexplained possession of recently stolen property have not been preserved for review. Thompson v. State, 405 Ala.App. 717 (Ala.Cr.App.), cert. denied, 405 So.2d 721 (Ala.1981); Barclay v. State, 368 So.2d 579 (Ala.Cr.App.), cert. denied, 368 So.2d 581 (Ala.1979); Alabama Code 1975, Section 12-16-13.

VI

The defendant contends that the police had no probable cause to arrest him and seize the weapon from his back pocket. We find this particular search and seizure to be legal. We do not decide the issue of the subsequent search of the trunk of the defendant’s automobile.

While the Attorney General has admitted in oral argument that the search of the defendant’s silver Granada could not be justified under the warrant particularly describing a green Chevrolet as the place to be searched, the pat down of the defendant’s person was lawful as a search incident to a lawful arrest. Here the officers had probable cause to arrest the defendant based upon the information they had received from a reliable informant and their verification and corroboration of that information. Rickman v. State, 361 So.2d 28 (Ala.1978); Williams v. State, 401 So.2d 312 (Ala.Cr.App.1981); Hatton v. State, 359 So.2d 822 (Ala.Cr.App.1977), cert. quashed, 359 So.2d 832 (Ala.1978). See also Thomas v. State, 342 So.2d 405 (Ala.Cr.App.), cert. denied, Ex parte Thomas, 342 So.2d 407 (Ala.1976); Hart v. State, 337 So.2d 111 (Ala.Cr.App.1976); Cook v. State, 56 Ala.App. 250, 320 So.2d 764 (1975); Miller v. State, 53 Ala.App. 213, 298 So.2d 633, cert. denied, 292 Ala. 741, 298 So.2d 639 (1974); Tadlock v. State, 45 Ala.App. 246, 228 So.2d 859 (1969).

The limited “frisk” or “pat-down” of the defendant was lawful. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We have previously recognized that it “ ‘is generally known by the police and others that those who traffic in large quantities of narcotics are often armed’, and the ‘mere presence of a person or persons in such an environment presents that reasonable suspicion and belief, which gives rise to sufficient and legal justification to frisk all present for weapons.’ People v. Finn, 73 Misc.2d 266, 340 N.Y.S.2d 807, 816 (1973).” Travis v. State, 381 So.2d 97, 101 (Ala.Cr.App.1979), cert. denied, 381 So.2d 102 (Ala.1980).

The defendant has been well represented by competent and experienced counsel both at trial and on appeal. Our review of the record and the issues presented convinces us that the defendant received a fair trial and that the judgment of the Circuit Court should be affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

On application for rehearing the defendant argues that the principle we enunciated in Bowen v. State, 406 So.2d 1077 (Ala.Cr.App.1981), was violated when Phenix City Police Officer Johnny Arrington was allowed to state, before the jury, the hearsay information he was given by an informant in order to obtain the search warrant. We agree.

The Attorney General admits that this was error. Bowen; Satterwhite v. State, 364 So.2d 359 (Ala.1978); Tierce v. State, 396 So.2d 1090 (Ala.Cr.App.1981). However, the Attorney General argues that this constitutes only harmless error because the information did not name or pertain to either the defendant or the place searched, did not constitute evidence on a fact in issue or evidence of the defendant’s guilt, and did not attribute any criminal conduct to the defendant. The hearsay information contained no “definite complaints of a particular crime by the accused.” Small v. State, 348 So.2d 504, 507 (Ala.Cr.App.), affirmed, 348 So.2d 507 (Ala.1977). The record clearly shows that when the police obtained the search warrant they were looking for one Della Nickerson and did not know or even suspect that the defendant or the automobile in which he arrived would be involved. The hearsay information simply was not concerned with the defendant or his conduct.

Additionally, defense counsel stated that he had no objection to the introduction of the search warrant. A comparison of Officer Arrington’s affidavit in support of the search warrant and the search warrant itself shows that, except for the description of the automobile which is contained in the affidavit but not the warrant, the information contained in the warrant is substantially identical to that contained in the affidavit. Consequently, we find that the admission of the hearsay evidence constituted harmless error. Rule 45, A.R.A.P.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.

      . Although many cases use the term “presumption” of guilt growing out of the unexplained possession of recently stolen property, the later cases use the term an “inference” of guilt. Buckles v. State, 291 Ala. 352, 353-4, 280 So.2d 814 (1972).


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Tracy R. HEATHCOCK v. STATE.
    6 Div. 620.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, July 2, 1982 Alabama Supreme Court 81-640.

      Donald Hugh Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of manslaughter on a trial under an indictment which, omitting its formal parts, charged:

“... Tracy R. Heathcock ... did recklessly cause the death of Christopher Lane Boswell by operating a tractor-trailer truck in a reckless manner, and hitting a motor vehicle driven by Christopher Lane Boswell, in violation of 13A-6-3(a)(1) of the Code of Alabama, 1975.”

Code of Alabama 1975, § 13A-6-3(a)(l) provides:

“A person commits the crime of manslaughter if:
“(1) He recklessly causes the death of another person, or ...”

The court fixed defendant’s punishment at imprisonment for five years and sentenced him accordingly. By Code of Alabama 1975, § 13A-6-3(b), manslaughter is a Class C Felony; by § 13A-5-6(a)(3), the limitations upon a sentence of imprisonment for a Class C felony are prescribed as “not more than 10 years or less than 1 year and 1 day.”

Appellant’s first contention is that the State’s evidence did not “present a prima facie case” and that “the trial court erred in overruling defendant’s motion to exclude the evidence at the conclusion of the State’s case.” The parties agree that a correct determination of such contention hinges on whether defendant acted “recklessly” as charged in the indictment and as the word “recklessly” is defined by Code of Alabama 1975, § 13A-2-2(3) as follows:

“The following definitions apply to this Criminal Code:
“(3) RECKLESSLY. A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates a risk but is unaware thereof solely by reason of voluntary intoxication, as defined in subdivision (e)(2) of section 13A-3-3, acts recklessly with respect thereto.”

We now set forth a brief summary of the evidence for the State. Christopher Lane Boswell, the alleged victim, was killed about 3:30 P.M. on June 20,1980, as a result of a collision between the Honda automobile he was driving and a tractor-trailer truck being operated at the time by the defendant. The truck had been proceeding down a hill on Rock Creek Road as the automobile was proceeding up the hill. The “right front tire of the tractor had rolled over the hood of” the Honda automobile. Both vehicles were proceeding around a curve. Only a few moments before said collision, the truck had collided with another motor vehicle as the truck was going down and the other vehicle was going up the same hill. The other vehicle was knocked off the road by the collision. Immediately before the first collision mentioned, the truck was a little over the line and “into the lane” of the other vehicle. According to one witness for the State who arrived at the scene of the accident soon after it occurred, the defendant was seen “sitting on the highway beside the police car and upon being asked ‘what happened,’ the defendant ‘said he just lost control of it.’” The first automobile that collided with defendant’s truck, the automobile that the victim was driving, and the tractor-trailer truck defendant was driving came to rest in the lane of travel, or on the shoulder of the lane of travel, to defendant’s left of the center of the pavement of the road upon which the three vehicles were travel-ling immediately before each collision.

The “posted speed limit” on the Rock Creek Road was thirty-five miles per hour, as to which there seems to be no dispute. According to one of the witnesses for the State, the driver of the automobile that first collided with defendant’s truck, the truck was travelling at the time “between 45 and 50.” Another witness for the State testified that he conversed with defendant on the scene soon after the accident happened and was informed by the defendant as follows:

“He was asked how fast he was traveling and he stated approximately 37 to 38 miles an hour. When asked how big a load he had, he stated he did not know. “He thought the accident occurred around 3:15 or so. He stated that he had been driving this particular rig — this truck and trailer three months. The trailer however was new and he had— they had purchased or started driving that particular trailer on Monday of that week. This was the first or second time that he had been down Rock Creek Road. “They normally haul down the Alliance Road to Birmingport. The driver felt the reason he lost the truck was that he cut the steering wheel too quickly.”

Deputy Royce Field testified that about 1:30 on the afternoon of June 20, 1980, he saw the tractor-trailer truck traveling between 15 and 20 miles an hour proceeding down Rock Creek Road and followed it, that the driver crossed the double yellow line approximately two and a half feet on two occasions, but on neither instance for a distance of more than fifty feet. The officer stopped the tractor-trailer and identified defendant as the driver thereof and the tractor-trailer truck as the same unit that was involved in the collision in which Christopher Boswell was killed. The truck was loaded with coal. The officer required that the truck be weighed and it was found to weigh 96,400 pounds, which was in excess of the gross weight limit. He told defendant that he had crossed the solid double yellow line, that he was gaining speed coming down the mountain and had reached the speed of between 40 and 45 miles per hour, that it was hazardous for the large coal truck to be running in such a manner and that he should keep his truck weight within the state limit. He further told appellant that he had observed the brakes of the left front tandem axle overheating and smoking. The witness testified that the “State weight limit” on the truck was 80,000 pounds with an allowance for “10 percent tolerance for scale tolerances.” The witness testified that he issued an overweight ticket to appellant but that he did not give him a ticket for “speeding, driving on the wrong side of the road, or for reckless driving.” He further testified that the brakes continued to operate even when hot and that the truck had operative brakes.

The truck weight ticket on the truck on the trip on which the collision occurred shows a gross weight of 94,660 pounds.

There was no evidence and no claim by the State that defendant was intoxicated, which leaves the third sentence of Code 1975, § 13A-2-2(3) without a field of application. We must now determine whether there was substantial evidence to support the finding of the jury that defendant acted “recklessly” within the meaning of that adverb as defined by the remaining two sentences of § 13A-2-2(3). Although the evidence is far from conclusive on the point, we find that the evidence as summarized above constitutes substantial evidence that defendant was “aware of and consciously disregarded” a substantial and unjustifiable risk that the result [the collision in which a human being was killed] would occur and that the “risk” was “of such nature and degree that disregard thereof” constituted “a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” We realize that his conduct can readily be judged too harshly and that the jury could have done so by the verdict it rendered. Nevertheless, the verdict is supported by substantial evidence, and we should not disturb it on the grounds asserted by appellant as to the sufficiency of the evidence at the time the State rested its case and defendant’s motion to exclude the evidence was presented. The trial court was not in error in overruling the motion.

Although no issue is raised on appeal as to the sufficiency of the evidence at the time of the submission of the case to the jury, we note that the evidence presented by the defendant consisted exclusively of his testimony. It was generally exculpatory of a state of mind requisite to manslaughter. Nevertheless, though favorably impressive from a reading thereof, it was not sufficient to justify a withdrawal of that issue from a determination by the jury.

Appellant’s second contention is that the trial court erred in admitting the testimony of Deputy Royce Field as to what he observed and what he told defendant on the occasion when defendant was going down the same hill in the same truck about two hours before the fatal collision occurred. As soon as it became apparent that the State proposed to introduce such evidence by Deputy Field, a hearing was conducted out of the presence of the jury in which the witness was interrogated by State’s counsel and defendant’s counsel. The hearing comprises about twelve pages of the transcript. During the first part of the hearing, the State showed by the witness what he had observed when he saw the truck proceeding down the hill about two hours before the fatal collision occurred and what he told defendant when he thereafter stopped the truck and had it weighed. Thereupon, with the jury still out of the courtroom, the following occurred:

“THE COURT: Any other questions, Mr. Short?
“MR. SHORT: That is all I have.
“THE COURT: I understand there are probably several aspects you want to object to.
“MR. MARTENSON: Judge, I think you can divide it up into two separate parts of his testimony. The first part I think is clearly a classic case of inadmissible testimony. That is, what he saw the operator do at a time prior to the accident in question at or near where the latter scene would be. I think it is just completely offered for the probative value of showing that what he did some two hours before was some custom or habit in driving down where this accident occurred, and would be very comparable in attempting to elicit testimony of the day before or a couple of hours before the accident. I saw the same accident — in a section where the accident occurred, the Defendant run the traffic light. Attempting to show that he ran it at the time of the accident which is clearly not admissible in this case.
“So, that part I don’t have any trouble with at all. I think it is definitely inadmissible.
“The next part is the portion of his testimony concerning conversations which he had, even if he doesn’t go into what occurred beforehand. Conversations he had beforehand with Defendant, here, they say, well that is admissible as tending to show — give the Defendant some knowledge of danger involved. But yet, they don’t show that what this man told the Defendant had any relationship to the— what occurred at the time of the accident in question. That is, he says well, I told him to watch his brakes coming down there or I told him to be careful and not cross the yellow line coming down there.
“But, that doesn’t necessarily show that this is any knowledge of inherently dangerous situation or something that is going to cause an accident later on under different circumstances and different loads to the Defendant.
“So, if you would weigh all the factual circumstances, I don’t think that you can say that that conversation gives any knowledge or intent on the part of the Defendant.”

A long colloquy then transpired among the court and counsel for the respective parties, which resulted in a statement by the court that it would overrule defendant’s objections to the questions relative to what the witness observed as he saw the truck going down the hill and what he told defendant after he stopped the truck and had it weighed. The colloquy was concluded as follows:

“THE COURT: Brakes, what caused the brakes to smoke. There is no testimony as to how Deputy Field was able to determine speed. I am sure there may be evidence.
“But, with that in mind we will bring the jury back in. I will give you an exception.
“MR. MARTENSON: Judge, could I ask the Court when the jury comes back in, to note our objection to the questions concerning the previous driving down this road and concerning the conversation that he had with Mr. Heathcock without me having to make them and I will assign the grounds that I have just assigned here?
“THE COURT: Mr. Murray. If you will, let the record reflect that. Bring the jury back in.”

Appellant’s present insistence as to the admissibility of Deputy Field’s testimony is prefaced by the following statement:

“On the trial of a person for the alleged commission of a particular crime, evidence of the defendant doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show the defendant’s bad character, inclination, or propensity to commit the type of crime for which he is being tried.”

The statement is supported in almost identical language in Gamble, McElroy’s Alabama Evidence, § 69.01(1), which is footnoted by a number of authorities, including Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947), relied upon by appellant. Notwithstanding the correctness of the statement, we are unable to agree with appellant that “the only probative function” of the evidence under consideration “is to show his [defendant’s] bad character, inclination or propensity to commit the type of crime for which he is being tried.” Another probative function of the evidence under consideration was to furnish evidence of defendant’s awareness of a substantial and unjustifiable risk, in driving as he did on the occasion of the fatal accident, of a collision between the truck and another motor vehicle in which a human being would be killed. The general exclusionary rule does not prohibit such evidence. The trial court was not in error in admitting it.

A third contention of appellant is concluded by the following argument in appellant’s brief:

“In the case at the bar, the court erroneously admitted evidence that Appellant’s tractor-trailer was overloaded in excess of the weight limits set by 32-9-20, Code of Alabama 1975, (R. 23) (R. 49). The statute was intended by the Legislature to prevent injury to the roads and not intended to impose culpability in a criminal action. In admitting such evidence, over objection of counsel, the Appellant’s rights were substantially prejudiced.”

We have no doubt that one intention of the Legislature in enacting the law as now found in Code of Alabama 1975, § 32-9-20, a lengthy section governing the size and weight of trucks, trailers and semi-trailers traveling on the highways of Alabama, was, as appellant says, “to prevent injury to the roads,” but we do not agree with appellant that this was the only intention of the Legislature:

“The obvious purposes for enacting truck weight laws is for the safety of the public, and keeping highways in good condition for the traveling public. Travel upon the highways must be as safe as it can reasonably be made consistent with their efficient use. Any overloaded truck creates a safety hazard upon the public highway as well as contributing to a bad state of repair.” State Department of Public Safety v. Scotch Lumber Co., Inc., 293 Ala. 330, 302 So.2d 844, 846 (1974)

A final insistence on a reversal is directed at the following portion of the court’s oral charge:

“The fact that I told you that [“the weight limit of the type vehicle alleged in this incident is eighty thousand pounds” with “an enforcement tolerance of ten percent” and “that is a violation of the Code of Alabama.”] is no indication that it has been violated or that such a violation is criminal negligence or any such violation proximately caused the death of the deceased. It is for you [the jury] to decide whether or not the statute is applicable. Whether it has been violated and whether or not such violation is criminal negligence. And whether or not any such violation proximately caused the death of the deceased.”

At the apparent conclusion of the court’s oral charge, the court called upon the attorneys for any “exceptions to my charge,” and defendant’s counsel said:

“... We object to the Court’s charge that the jury may find negligence — criminal negligent homicide or manslaughter based upon a violation of the weight limit statute which you read. And then told them toward the end of your charge, that the fact that you read the statute was not an insinuation that it was or was not violated or that it did or did not cause the accident. But, that it was up to them to determine whether or not there had been a violation of that statute which proximately caused the accident in question. “There are two reasons we cite as that being erroneous. Number one, there is absolutely no testimony sufficient to allow the jury to determine that the weight of that truck had anything to do with this accident. Number two, the law of the State of Alabama is clear that the purpose of that statute was for the purpose of the protection of the roads and the highways and not for the purpose of the protection of the public. That would be an issue for the jury to determine in determining either criminal negligent homicide or manslaughter itself.”

Without approving the exact language of the portion of the charge to which the objection was made or the exception taken, or any implication thereof to the effect that the court was submitting to the jury the determination of a legal question as distinguished from a factual issue, the action of the court in the premises does not constitute reversible error. The reasons for the exception, or the grounds of the objection, to the particular part of the court’s oral charge, as stated by defendant, cannot be sustained. His “Number one” reason that “there is absolutely no testimony sufficient to allow the jury to determine that the weight of that truck had anything to do with this accident” when applied to its excess weight over the limit prescribed by statute could well be true, but, even so, it is hardly questionable that its enormous weight under all the circumstances of the incident was a factor in the causation of the collision that caused the fatal injury to the alleged victim of the homicide. The “number two” reason includes an incorrect statement, as previously shown herein, that the weight statute is not partly at least “for the purpose of the protection of the public.” The particular part of the court’s oral charges was as favorable to defendant as any absolutely correct charge on the subject could have been, and perhaps it was more so.

We have reached our conclusions in this case with great respect for the view of appellant that the judgment of conviction and sentence is more severe than justice requires. To a great extent, he and Mr. Boswell were victims of misfortune, rather than a heart bent on evil. Nevertheless, the question as to whether defendant “recklessly caused the death” as alleged in the indictment was an issue for the jury to determine, and we find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

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


author: HARRIS, Presiding Judge.

text:
    Robert LOPEZ, alias v. STATE.
    7 Div. 892.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, June 25, 1982 Alabama Supreme Court 81-649.

      H. Keith Pitts of Hawkins & Pitts, Gad-sen, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Presiding Judge.

The appellant was indicted and convicted of first degree robbery in violation of Alabama Code § 13A-8-41 (Supp.1977). It being ascertained at appellant’s sentencing hearing that he had been convicted of felony offenses on three or more prior occasions, the trial court, in accordance with Alabama’s Habitual Offender Act, fixed punishment at life without parole in the state penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty to the charges. Appellant is represented on this appeal by court-appointed counsel and has been furnished with a free transcript.

The state’s evidence, which included the accounts of two eyewitnesses to the crime, was sufficient to prove appellant’s guilt beyond any reasonable doubt. Mr. Everette “Sonny” Helms, one of the eyewitnesses to the crime and the victim named in the indictment, testified that he was the owner of H & B Jewelers in Gadsden. Mr. Helms first noticed appellant drive very slowly by his store in a large dark automobile around 1:00 p. m. on February 23,1981. Appellant was sitting on the passenger side of the car.

Later that afternoon, around 3:00 p. m., Mr. Helms purchased a television set and as he walked back to his jewelry store carrying the set he saw appellant “coming down the block towards me.” Mr. Helms stated that, after he had entered the store and had walked a short distance inside, he heard the door open. He turned around and saw appellant holding a pistol “pointed towards me.” Mr. Helms described the revolver as having a blue gun barrel. “I would guess it was a 38, but I am not sure of the caliber.”

Appellant ordered Mr. Helms and Miss Dawn Phillips, a store employee and the other eyewitnesses to the crime, “to get on the floor.” Mr. Helms lay face down on the floor and as Miss Phillips started to do the same, appellant ordered her to lock the front door and “start clearing the jewelry case.” While Miss Phillips was complying with these demands, under threat of being shot or killed, appellant knelt beside Mr. Helms, placed a knee in his back and held the pistol against the back of his head. Appellant further ordered Mr. Helms to take off his rings. Appellant placed these rings, valued at approximately $9,000, in his pocket. The jewelry Miss Phillips had gathered from the showcase and had placed in a trash bag was valued at approximately $32,000. During the time appellant was collecting the jewelry and was holding his pistol to the back of Mr. Helms’s head, appellant conversed with Mr. Helms about Mr. Helms’s former business partner, Joe Bearden, and Bearden’s brother, Phillip. Mr. Helms testified that as appellant was ordering Miss Phillips to “start down the hall towards the back,” he told me “that when he found Phil that I would get my jewelry back.” Appellant then struck Mr. Helms across the head with the pistol. Mr. Helms stated that the blow “cut my head open” and required several stitches.

Miss Phillips testified that, after appellant told her “to go back and unlock the back door”, she heard appellant hit Mr. Helms in the back of the head. “I started running to the back door and he yelled at me to slow down or he’d kill me.” Miss Phillips stated that she “tried to slow down” and was able to unlock the back door. “He had come up behind me and he hit me on the back of the head, and I fell to the ground.”

Mr. Helms testified that, after appellant and Miss Phillips started down the hall, he waited until he heard the first door in the back of the shop open. Mr. Helms fired four shots at appellant as he made his escape. “I believed that I did hit him.” Appellant dropped the bag of jewelry in the back doorway, but fled with Mr. Helms’s rings. Miss Phillips notified the police department.

Mrs. Dorothy Singleton testified that, around 3:15 or 3:30 p. m. on the date in question, she saw appellant running “from the building, and he jumped into a car.” Appellant got in the passenger side. The car’s motor was running and it took off very quickly. Mrs. Singleton identified the car as a green Pontiac, memorized the tag number and called the police.

Captain Jerry Bone of the Gadsden Police Department testified that the vehicle Mrs. Singleton had described was located at the intersection of Highway 227 and Highway 11 in Reese City a short time after the robbery was reported. Captain Bone saw blood inside the car on the passenger side of the front seat. Around 4:00 p. m., appellant approached the group of officers gathered at the vehicle and made the following spontaneous exclamation to Captain Bone: “I am the fellow you are looking for.... I have been shot. I need to go to the hospital.” Appellant received a standard pat down before he was taken to the hospital. Mr. Helms’s rings were discovered in appellant’s windbreaker jacket.

There can be no question from the foregoing facts that the jury’s verdict was well supported. Every element necessary to prove a prima facie case of first degree robbery was firmly established. Alabama Code § 13A-8-41 (Supp.1977). See Marvin v. State, Ala.Cr.App., 407 So.2d 576 (1981). The testimony of an eyewitness, standing alone, is sufficient to support a defendant’s conviction for robbery. Williamson v. State, 384 So.2d 1224 (Ala.Cr.App.); Wil liams v. State, 367 So.2d 990 (Ala.Cr.App.); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.).

It cannot be seriously contended that appellant did not intend to “deprive” Mr. Helms of his property. Appellant’s bare statement that Mr. Helms would get his jewelry back as soon as he found Phil in no way negates the fact that a robbery occurred. Such argument is wholly without merit. Mr. Helms assuredly was “deprived” of his property within the meaning of the applicable statutes. Alabama Code §§ 13A-8-41, 13A-8-43, 13A-8-2 (Supp. 1977) and Alabama Code § 13A-8-l(2) (Supp.1981).

Appellant’s motion for change of venue was properly denied by the trial court. The trial court conducted a pretrial hearing relative to appellant’s motion and it was ascertained that pretrial publicity had been broadcast in the Gadsden area by newspaper and radio concerning the robbery. Radio broadcasts were aired on four separate days and the Gadsden Times carried front page reports about the crime on February 24 and 25, 1981. Both the newspaper accounts and the radio transmissions mentioned appellant by name. We have carefully reviewed this evidence and find no error in the trial court’s ruling. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

The granting of an accused’s motion for change of venue rests within the sound discretion of the trial court and its ruling thereon will not be disturbed except for gross abuse. Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Burnett v. State, 350 So.2d 718 (Ala.Cr.App.1977). As this court stated in Anderson v. State, 362 So.2d 1296, 1298-1299 (Ala.Cr.App.1978):

“Section 15-2-20, Code of Alabama 1975, authorizes a defendant to have his trial removed to another county if he cannot receive a fair and impartial trial in the county in which the indictment is found. Gilliland v. State, 291 Ala. 89, 277 So.2d 901 (1973). However the existence of widespread publicity alone does not indicate that a defendant will not get a fair trial. The law focuses on the impartiality of the trial jury. Turk v. State, 348 So.2d 878 (Ala.Cr.App.1977); Mathis v. State, 52 Ala.App. 668, 296 So.2d 755, cert. quashed, 292 Ala. 732, 296 So.2d 764 (1973); cert. denied, 419 U.S. 1106, 95 S.Ct. 777, 42 L.Ed.2d 802 (1975). Actual prejudice directed toward the accused resulting from the extensive publicity must be shown. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835 (1974), cert. denied, 293 Ala. 745, 309 So.2d 844 (1975); Annotation, 33 A.L.R.3d 17 (1970).
“On motion for a change of venue in a criminal case, the defendant has the burden of showing, to the reasonable satisfaction of the court, that a fair and impartial trial cannot be had and an unbiased verdict cannot reasonably be expected. Boutwell v. State, 279 Ala. 176, 183 So.2d 774 (1966); Godau v. State, 179 Ala. 27, 60 So. 908 (1913).
“Newspaper articles, without more, are not evidence on a motion for change of venue; their effect must be shown. Beddow v. State, 39 Ala.App. 29, 96 So.2d 175 (1956), cert. denied, 266 Ala. 694, 96 So.2d 178 (1957), 355 U.S. 930, 78 S.Ct. 412, 2 L.Ed.2d 414 (1958).
“Except in the situation where there is a showing of ‘inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors’, the trial court’s primary responsibility in dealing with allegedly prejudicial pretrial publicity is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); United States v. Jones, 542 F.2d 186 (4th Cir. 1976); McWilliams v. United States, 394 F.2d 41 (8th Cir. 1968).
“In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), the United States Supreme Court recognized that:
“ ‘Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
“ ‘ “To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. (Citations omitted.)” ’
“At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate “the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.”
“Recently the Supreme Court affirmed the principles expressed in Murphy.
“ ‘Petitioner’s argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of neither the crimes nor the putative criminal is sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a “trial atmosphere utterly corrupted by press coverage.” ’ Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977).
“The proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.”

Both the transcript that was originally filed in this case and the supplemental transcript that was later submitted to this court in compliance with the trial court’s order demonstrate that the prospective jurors were broken down into four panels of twelve for voir dire questioning by the state and by appellant’s counsel. Each panel of prospective jurors was subjected to rigorous and thorough examination regarding the publicity concerning the robbery. Of the fifty-one prospective jurors, thirty-two subscribed to the Gadsden Times. Some of these thirty-two remembered reading the articles reporting the robbery. Even fewer remembered seeing appellant’s picture. From a close examination of the record it is apparent that a greater number of the thirty-two subscribers did not remember reading the articles or seeing the picture. Again, of the fifty-one prospective jurors, some heard radio broadcasts concerning the robbery. However, without exception, none of the prospective jurors felt that they would be prejudiced or biased against appellant because of any radio transmission or newspaper articles. None of the fifty-one jurors so questioned expressed any doubt whatsoever that they would be able to return a fair and impartial verdict. From these facts we believe that the jury was impartial and adhered to its sworn duty to base its verdict upon the evidence adduced and the law as expounded by the court’s instruction. Bowen v. State, 274 Ala. 66, 145 So.2d 421 (1962); Anderson, supra. The fact that jurors knew of the case did not establish that at the time of empaneling they were biased against the defendant where they swore that their knowledge would not affect their judgment. Hale v. United States, 435 F.2d 737 (5th Cir. 1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971). Absent inherently prejudicial publicity which has so saturated the community as to have a probable impact upon the prospective jurors, there must be some showing of a connection between the publicity generated by the news articles, radio and television broadcasts, and the existence of actual jury prejudice. Anderson, supra.

The trial court correctly overruled appellant’s Motion to Quash the Indictment or, in the alternative, to Quash the Venire. Appellant contends that lower income groups were unlawfully excluded from jury service because the Clerk of the Etowah County Jury Commission used driver’s license lists provided by the Department of Public Safety in filling the jury box with prospective jurors. There is no merit to this contention.

Mrs. Ruth Moon, the Clerk of the Etowah County Jury Commission, testified that the Jury Commission had been using the driver’s license list only in compiling the jury roll. There were then 65,000 prospective jurors on the jury roll in Etowah County. Mrs. Moon stated that, prior to using the driver’s license lists only, the Jury Commission had used the voters list, the car tag list and the driver’s license list. This process had resulted in some 147,000 names being placed on the jury roll whereas the population of Etowah County was between 95,000 and 100,000.

From Mrs. Moon’s testimony there can be no question that the requirement of Alabama Code § 12-16-57 (Supp.1981) was fully met in compiling the master jury list for Etowah County. Alabama Code § 12-16-57(a) (Supp.1981) reads as follows:

“(a) The jury commission for each county shall compile and maintain an alphabetical master list of all persons in the county who may be called for the jury duty, with their addresses and any other necessary identifying information. This list may include all registered voters, persons holding drivers' licenses and registering motor vehicles, and may include other lists, such as lists of utility customers and persons listing property for ad valorem taxation, which will include persons whose listing will foster the policy and protect the rights provided in sections 12-16-55 and 12-16-56. This list shall avoid duplication of names. The list shall be reviewed and corrected and new names added from time to time, but at least once every four years.” (Emphasis added.)

The law in Alabama does not require, literally, that every qualified person’s name be placed on the rolls or in the box. Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966). Failure to include the name of every qualified person on the jury roll is not a ground to quash an indictment or venire, absent fraud or purposeful discrimination. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

There is no substance to appellant’s allegation that the prosecution systematically excluded blacks and hispanics by use of its peremptory strikes. Appellant’s jury, in fact, contained two blacks and one individual of hispanic descent. This question has been treated time and time again by this court. See Ben Allen, III v. State, Ala.Cr.App., 414 So.2d 163, 1982; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972).

The jury’s verdict in this case was returned on May 21, 1981. Appellant was sentenced on August 3, 1981, at the conclusion of the sentence hearing. Appellant contends this passage of time resulted in a denial of his right to a speedy trial as guaranteed by the Sixth Amendment of the United States Constitution. We disagree.

This court in Noe v. State, 391 So.2d 151, 152 (Ala.Cr.App.1980), speaking through Judge DeCarlo, stated:

“It is well settled that the passage of time alone will not bar imposition of a sentence or require an accused’s discharge. In order to assert that speedy trial was denied, the delay must be purposeful or oppressive. United States v. Grabina, 2d Cir., 309 F.2d 783. Whether the delay amounts to a deprivation of an accused’s right to a speedy trial depends upon the circumstances of the particular case. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393.”

It was determined in Noe, supra, that a thirteen-month interval between judgment and sentencing was not a deliberate or an unjustifiable delay on the part of the state.

Here, the passage of some two and one-half months between the jury verdict and the date of sentencing was not unreasonable. In the interim it was necessary for the prosecution to locate out-of-state witnesses who could offer evidence concerning appellant’s prior felony convictions and procure their attendance in court in Alabama. This evidence was necessary for appellant to be properly sentenced as a recidivist. It cannot be said that the state acted oppressively.

As the Supreme Court recognized in Bozza v. United States, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818 (1947):

“This Court has rejected the ‘doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the court committed an error in passing the sentence.’ (Citation omitted.) The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.”

We have reviewed the issues in this case as presented by appellant. In addition, we have searched the record, as required by law, for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.

      . The Supplemental transcript indicates that panel four contained fifteen prospective jurors. (Supp. R. 69-72, 85).


text:
    Joseph MOORE v. STATE.
    3 Div. 426.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.
    Certiorari Denied, July 2, 1982 Alabama Supreme Court 81-728.

      Frank W. Riggs, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of his two month old son. Alabama Code 1975, Section 13A-6-2 (Amended 1977). Sentence was 50 years’ imprisonment.

I

The defendant argues that his confession was involuntary because he was exhausted, intoxicated, intimidated and subjected to eight hours of interrogation.

The question of whether a confession is voluntarily made turns on the totality of the circumstances in each particular case. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Crawford v. State, 377 So.2d 145 (Ala.Cr.App.), affirmed, Ex parte Crawford, 377 So.2d 159 (Ala.1979). The constitutional inquiry into the issue of voluntariness requires more than a mere color matching of cases. Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978).

The facts relevant to this issue are that in the early morning hours of Saturday, November 8, 1980, the defendant and his wife took their infant son to the emergency room because the baby had been having “convulsions, fever, breathing difficulties, things like that.” The defendant remained at the hospital from 1:20 A.M. until 3:35 A.M. when he took the child home and went to bed.

Saturday night the defendant called the paramedics at approximately 11:55 P.M. because his son was again having difficulty.

The child was found dead in his baby bed at 6:00 Sunday morning when the defendant awoke. That morning, Montgomery Police officers talked to the paramedics and to the defendant and his wife. Investigator Ralph Connor and his partner investigated what they thought was a natural death. They interviewed the defendant regarding the circumstances of the death, and were finished with the defendant around 8:00 or 8:30 that morning. Nothing was told to these investigators about “any kind of injury or blow or anything.”

Dr. Thomas Gilchrist performed an autopsy on the infant, Joseph Moore, Jr., beginning at 3:00 Sunday afternoon. Officers B. W. Smith and Allen Blankenship attended this autopsy and learned that the child “had died of a brain hemorrhage suffered by a lick” and that the child had died of “unnatural causes.”

At trial, Dr. Gilchrist testified that, although he found no external evidence of injury, internal examination of the infant’s head “showed extensive hemorrhage or bruising between the scalp and the skull. Underlying this, there was a fracture or breaking of the bones of the skull at the right back of the head” and one area of the brain itself had been bruised. These injuries “all related to blunt force or blunt trauma to the head.” Dr. Gilchrist testified that the infant died of “blunt trauma to the head.”

Dr. Gilchrist found “at least two events of injury” to the child’s head. The various degrees of healing on the head indicated that some of the injury was several hours to a day old and other damage was four to six days old.

“Some of the injury, obviously, in my opinion, occurred before twenty-four hours before death because I think it is three or four days old. This injury may or may not have been apparent to the physician (in the emergency room). Other of the injury may well have occurred after that twenty-four hour period because we are talking about approximately several hours.”

Dr. Gilchrist also testified as to the degree of force necessary to inflict or cause such an injury.

“It takes a considerable amount of force to cause such an injury to a child’s head. More force than can be applied, say, from dropping a child on the floor, even, say, from a ceiling eight foot high down to a floor eight feet below.”

After talking to Dr. Gilchrist, Officer Smith went to the defendant’s residence “to pick up the mother and father of the baby to talk to them about what had occurred with the baby.” The defendant was located and he and his wife were taken to police headquarters in a patrol car, arriving between 7:05 and 7:10 P.M. Sunday evening. At the hearing on the defendant’s motion to suppress, it was apparently undisputed that the defendant was in custody at this time.

Officer Smith testified that before taking the defendant and his wife to police headquarters, they were advised that “we would like to talk to them at police headquarters, and that we were investigating Joseph Moore, Jr.’s death, and we would like to interview them.” The Moores never asked if they could stay — “the question never came up.” The Moores were neither told that they had to go nor were they told that they did not have to go.

“He (defendant) asked us what we were doing there, and we explained to him that we were investigating the death of Joseph Moore, Jr. and we would like to talk to them at police headquarters. And that we would be glad to carry them down in a police vehicle. And they had volunteered to go with us.”

Prior to this time, Officer Smith had talked to Investigator Connor and knew that the Moores had taken their child to the emergency room early Saturday morning.

Smith testified that at this time, the defendant did not appear to have been drinking.

At police headquarters, the defendant and his wife were separated. Officer Smith gave the defendant his Miranda warnings and the defendant signed a waiver of rights form at 7:30 Sunday night, less than thirty minutes after he had arrived at the police department.

In talking with the defendant, Officer Smith stated that “this was more of an interview in my estimation than it was an interrogation.” Officer Smith “advised Joseph Moore, Sr. that the baby had died of unnatural causes, and that an autopsy had been performed by Doctor Gilchrist, the extent of the autopsy; and asked him had the baby received any type lick. And at that point, he gave me this statement.” Smith began typing this first statement at 8:40 P.M. The defendant signed it at 9:15 P.M.

Prior to the time this first statement was actually taken, the defendant told Officer Smith that he had fallen down a staircase with the baby. Smith called Dr. Gilchrist between 8:00 and 8:10 P.M. to find out if the child’s injuries could have been caused by such a fall. Before the defendant signed his statement, Smith told him that it was Dr. Gilchrist’s opinion that “it couldn’t have happened that way.”

After the defendant signed the statement, Officer Smith talked to Dr. Gilchrist for 25-30 minutes at the police station. During this time the defendant was left alone in the interrogation room and there was no one watching him. Smith testified that the defendant “was not in custody” and had not been placed under arrest. Smith “did not feel like it warranted anyone sitting and watching him.” The defendant was not told and did not ask if he was free to go.

Sometime after 10:00 P.M., the defendant changed his story and told Officer Smith that he had “slapped at a roachie bug and hit the baby on the head.” Smith then went back and conferred with Dr. Gilchrist who said “that the blow that the baby received to the head could not have come from a human hand; not enough force alone.”

Around 11:00 or 11:30 P.M., Smith and the defendant took a “break” and Smith bought the defendant a Coca-Cola. Smith told the defendant that he did not feel like the defendant was being truthful. At that point, the defendant told Smith that he wanted to get it off his mind and wanted to tell what really happened.

At approximately 11:45 P.M., the defendant changed his story again. This resulted in a second typewritten statement being signed by the defendant at 2:25 Monday morning. Before this statement was given, the defendant was again warned of his constitutional rights. He signed a written waiver at 1:20 A.M.

Smith testified that the only complaint the defendant ever made was “Did I (Smith) honestly think that he would kill his baby?” The defendant did not tell Smith that “he was sleepy, tired or hungry, or anything like that.” The defendant did not appear tired to Officer Smith and Smith did not observe any signs of fatigue about him. The defendant never told Smith that he wanted to go home.

The defendant was not denied food or drink.

“Yes, sir, between the first and second statement, I did (offer him food). I did buy him a coca cola. I asked him if he would like a candy bar or anything from downstairs. I let him get approximately two to three drinks of water while he was up there. And I did offer him a cup of coffee when I got a cup of coffee just before we started the second statement.”

Although Smith did raise or “slightly elevate” his voice “to express points” he did not “holler” at the defendant.

Sometime during the questioning Officer Smith advised the defendant that “his wife had made the statement that she had heard a noise (a thud) and heard the baby screaming upstairs, and asked him what the noise was.” Several times after the defendant give the first statement, Smith told him that he didn’t believe it.

Officer Smith testified that he never forced, threatened, or coerced the defendant, and that he made no promises or other inducements in order to get a statement.

The defendant was twenty years old and employed with the City Sanitation Department. He had never been arrested before. He had a ninth grade education and because of this Officer Smith “made it very clear that he understood his constitutional rights.” See Berry v. State, 399 So.2d 354 (Ala.Cr.App.1981).

The defendant presented evidence which revealed that he was extremely tired and highly intoxicated when he was taken into custody.

Although the defendant did not testify at the pretrial suppression hearing, at trial the defendant testified that during the interrogation, he kept “passing out” and that he was “tired, sleepy, worried, hurt and hungry.” He denied being informed of his constitutional rights and denied any knowledge of the statements attributed to him.

In order for intoxication to render a confession involuntary and inadmissible, it must be shown that the mind would have been substantially impaired. See Palmer v. State, 401 So.2d 266, 267 (Ala.Cr.App.), cert. denied, 401 So.2d 270 (Ala.1981); Tice v. State, 386 So.2d 1180 (Ala.Cr.App.), cert. denied, Ex parte Tice, 386 So.2d 1187 (Ala.1980). Here the evidence of whether or not the defendant was intoxicated was disputed.

The age and education of the defendant are merely factors to consider in determining voluntariness, Garrett v. State, 369 So.2d 833 (Ala.1979); Rhine v. State, 360 So.2d 1056 (Ala.Cr.App.), cert. denied, 360 So.2d 1060 (Ala.1978), as is the fact that the defendant is “confused” or “nervous”. Mack v. State, 348 So.2d 524 (Ala.Cr.App.1977). Another factor to consider is the fact that the defendant was not in full possession of his mental faculties. Sullivan v. State, 351 So.2d 659 (Ala.Cr.App.), cert. denied, 351 So.2d 665 (Ala.1977).

Other factors which must be considered in determining voluntariness, but are not necessarily controlling, are the fact that the defendant was physically weak and under a severe strain, Dennison v. State, 259 Ala. 424, 66 So.2d 552 (1953); the fact that the confession was made late at night or after lengthy interrogation, Hutto v. State, 278 Ala. 416, 178 So.2d 810 (1965); Huff v. State, 267 Ala. 282, 100 So.2d 769 (1958); Austin v. State, 56 Ala.App. 307, 321 So.2d 272 (1975). Confronting a suspect with a co-defendant’s confession is not an unfair tactic nor is it legally coercive. Gibson v. State, 347 So.2d 576 (Ala.Cr.App.1977); Sharp v. State, 338 So.2d 518 (Ala.Cr.App.1976); Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 (1971).

Where the voluntariness inquiry presents conflicting evidence, great weight must be given the trial judge’s finding of voluntariness. Even when there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Thompson v. State, 347 So.2d 1371, 1375 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 347 So.2d 1377 (Ala.1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 740, 54 L.Ed.2d 765 (1978). “The trial court does not have to accept the testimony of (the) defendant as to the voluntariness of a confession if there is substantial testimony by others sufficient to constitute a predicate for the admission in evidence of the confession.” Bradley v. State, 337 So.2d 47, 50 (Ala.Cr.App.1976).

The issue of the admissibility and hence the voluntariness of the statements and the confession in this case turns, as it does in so many others, on the question of which witnesses the trial judge believed. We have reviewed the surrounding circumstances in this case and conclude that the finding of voluntariness by the trial judge is supported by substantial evidence and that consequently there was no error in the admission of the defendant’s statements into evidence.

II

The defendant also maintains that because he was seized and arrested without probable cause his statements and confession were inadmissible under Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). See also Taylor v. State, 399 So.2d 881 (Ala.1981); Reynolds v. State, 396 So.2d 1076 (Ala.Cr.App.1981); Hadley v. State, 391 So.2d 158 (Ala.Cr.App.), cert. stricken, Ex parte Hadley, 391 So.2d 162 (Ala.1980); Clements v. State, 390 So.2d 1131 (Ala.Cr.App.), cert. denied, Ex parte Clements, 390 So.2d 1136 (Ala.1980).

However, under the facts of this ease we find that the police did have probable cause to arrest the defendant.

As noted earlier in this opinion, there was apparently no dispute at trial that the defendant was in custody, and therefore under arrest under Dunaway, when the police took him to the police department for questioning. When Officer Smith took the defendant into custody, he had already talked with Officer Connor and Dr. Gilchrist. Officer Smith knew that the two month old infant had died an “unnatural” death and that the infant was under the care of the defendant and his wife. Even without additional information we think that these facts are sufficient to support a finding of probable cause. See Flair v. Cox, 402 F.Supp. 818 (M.D.Tenn.1975), affirmed, 556 F.2d 580 (6th Cir. 1977), where it was held that a police officer who observed an unattended infant at or near a road had probable cause to arrest the infant’s father for child neglect.

We also think it reasonable to infer that Officer Smith knew that the defendant had not given Officer Connor any information that would explain or account for the injury and that the injury or injuries to the infant had been inflicted or sustained within the past one to six days. However, the record does not affirmatively reveal that Officer Smith possessed such information and we have not considered these inferences in making our finding of probable cause. It has been observed that the fact that the mother could not give an explanation of how the injuries were inflicted coupled with the knowledge that the dead child was taken from the mother’s home would lead a reasonable person to believe that the mother was trying to cover up her involvement in the death of the child, and probable cause would then exist to arrest the mother. People v. Ray, 80 Ill.App.3d 151, 35 Ill.Dec. 688, 399 N.E.2d 977 (1979).

In Knight v. State, 346 So.2d 478 (Ala.Cr.App.), cert. denied, 346 So.2d 483 (Ala.1977), we held:

“Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he has reasonable trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed... Mere suspicion or good faith on the part of the arresting officer is not sufficient to constitute probable cause for an arrest ...; common rumor or report, suspicion, or even ‘strong reason to suspect’ is not adequate ...; more than a good faith suspicion is required . .. . ”
346 So.2d at 481. (citations omitted)

“There is no litmus paper test for determining probable cause, ... and each case must be determined upon its own facts and circumstances.” Hatton v. State, 359 So.2d 822, 829 (Ala.Cr.App.1977), cert. quashed, 359 So.2d 832 (Ala.1978); Yeager v. State, 281 Ala. 651, 207 So.2d 125 (1967).

The information possessed by a police officer when he takes a suspect into custody is not required to constitute evidence sufficient to support a conviction. Dolvin v. State, 391 So.2d 666, 675 (Ala.Cr.App.1979), affirmed, 391 So.2d 677 (Ala.1980).

“The ‘probabilities’ implied by the term ‘probable cause’ are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar, supra (338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Probable cause does not preclude all room for doubt nor need the officers be absolutely certain and positive that a crime is in the making.”
Hatton, 359 So.2d at 829.

United States v. Seay, 432 F.2d 395 (5th Cir. 1970). “(O)nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” Rudolph v. State, 371 So.2d 962, 964 (Ala.Cr.App.), cert. denied, Ex parte State ex rel. Attorney General, 371 So.2d 965 (Ala.1979). An officer need not possess knowledge of facts sufficient to establish guilt, but more than mere suspicion is required. United States v. Matthews, 615 F.2d 1279, 1284 (1980). Probable cause for arrest is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. State v. Knapp, 294 So.2d 338, 341 (Fla.App.1974); see 34 Words and Phrases, “Probable Cause”. Probable cause for arrest without a warrant is something less than proof needed to convict and something more than a raw unsupported suspicion; it is a suspicion or belief of guilt that is “well-grounded”. State v. Vaughn, 12 Ariz.App. 442, 471 P.2d 744, 746 (1970); State v. Davis, 50 N.J. 16, 231 A.2d 793, 797 (1967).

“In determining whether the police have probable cause to believe that a felony was being committed so as to justify an arrest without a warrant, the sufficiency of the knowledge of the officers must be determined, not by an analysis of the effect of each known circumstance in isolation, but by a conclusion as to what a reasonable man, knowing all the facts which the officers knew from their investigation, would have believed under these circumstances.”
Knapp, 294 So.2d at 341.

Measuring probable cause by the nontechnical yardstick of the reasonably factual and practical considerations of everyday life and common sense, we find that there was probable cause to arrest the defendant.

Ill

The defendant argued at trial as he does here that it is impossible for a jury to distinguish between an act which constitutes murder by one recklessly engaging in conduct which creates a grave risk of death under circumstances manifesting extreme indifference to human life (Alabama Code 1975, Section 13A-6-2(a)(2) (Amended 1977)) and an act which only amounts to manslaughter where one recklessly causes the death of another person (Section 13A-6-3(a)(l)).

The distinction is explained in the commentary to Section 13A-6-3.

“Section 13A-6-2(a)(l) includes reckless conduct causing death, if it manifests extreme indifference to human life. ‘What amounts to such extreme indifference depends upon the circumstances of the particular case, but some special heinousness must be manifested. Recklessly causing death, without more, is manslaughter (Section 13A-6-2(a)(l)).’ Commentary, Michigan Revised Criminal Code, Section 2015.”

The comprehensibility by a jury of the distinction between reckless conduct as murder or manslaughter has tacitly been recognized by the courts of this state. Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969); Napier v. State, 357 So.2d 1001 (Ala.Cr.App.1977), reversed, 357 So.2d 1011 (Ala.1978); Langford v. State, 354 So.2d 297 (Ala.Cr.App.), reversed, 354 So.2d 313 (Ala.1977).

A diligent and thorough search of the record reveals that the objection raised in Northington v. State, 413 So.2d 1169 (Ala.Cr.App.1981), was not made in the trial court and is not argued or presented to this Court on appeal. This Court will not consider on appeal any constitutional questions not raised below. Steele v. State, 289 Ala. 186, 266 So.2d 746 (1972). Matters not objected to at the trial level cannot be considered for the first time on appeal. Bridges v. State, 391 So.2d 1086 (Ala.Cr.App.1980).

The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . From the record:
      “THE COURT: ... Is there any real contention that the Moores weren’t in custody at this time?
      “MR. RIGGS (Defense Counsel): Yes, Sir. Is there no contention that they were in custody?
      “MR. GILLIS (Assistant District Attorney): Your Honor, we don’t have any problem with that.”
      In brief, the Attorney General states: “Later that day at approximately 6:30 P.M., the Appellant was taken into custody by investigators ... . ” App. Brief, p. 4.

      . The amount of evidence required for probable cause to arrest and for probable cause to search is generally the same. Nikolic v. State, 384 So.2d 1141, 1148 (Ala.Cr.App.), cert. stricken, Ex parte Nikolic, 384 So.2d 1151 (Ala.1979).