author: DeCARLO, Judge.

text:
    Wayne MILINER, alias v. STATE.
    7 Div. 839.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    Certiorari Quashed, May 21, 1982 Alabama Supreme Court 81-31.

      H. Keith Pitts, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Appellant pleaded guilty to robbery in the third degree and unlawful possession of controlled substances. He was sentenced to twelve years in each case, with the sentences to be served concurrently.

The record reveals that the trial judge explained to the appellant his privilege against self-incrimination, his right to a trial by jury, his right to confront his accusers, the nature of the charges, and the acts sufficient to constitute the offenses, according to the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

However, an accused must also be informed of the minimum and maximum possible sentence for his offense as an absolute constitutional prerequisite to acceptance of a guilty plea. Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973). The record reveals that on the matter of the possible range of punishment for robbery in the third degree the following occurred:

“THE COURT: Now, do you understand that in this Robbery, Third Degree—
As I understand it, you have previous convictions, is that correct?
“THE DEFENDANT: Yes, sir.
“THE COURT: You have three — more than three convictions of felonies?
THE DEFENDANT: Yes, sir.
“THE COURT: Do you understand that the punishment then on a conviction of Robbery, Third Degree, would subject you to punishment of not less than 15 or up to life imprisonment? Do you understand that?
“MR. WRIGHT: [Defense counsel] Wait a minute. Your Honor, we would like to submit these pleas on the basis that he has had at least one prior felony conviction and we would waive any presentence investigation. What we have done is by agreement with the State agreed on 12 years — 12 year concurrent sentences.
“THE COURT: All right. But you understand that on that basis that the minimum sentence would be 2 years or not more than 20 years?
“THE DEFENDANT: Yes, sir.
“THE COURT: And that you are subject also to a fine of not more than $10,000.00? Do you understand that?
“THE DEFENDANT: Yes, sir.”

Based on appellant’s admission that he had previously been convicted of three or more felonies, it is clear that he was subject to the provisions of § 13A-5-9, Code of Alabama 1975 (The Habitual Felony Offender Act). That section mandates:

“In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows ... . ” [Emphasis added]

Here appellant’s admission of the prior convictions provides the “showing” necessary for § 13A-5-9, supra. It is our judgment, moreover, that whenever the district attorney has knowledge of a defendant’s prior convictions, he must, as an officer of the court, “show” those convictions to the court, so that the trial judge can sentence the accused in accordance with the clear mandate of the recidivist statute. In other words, we do not believe the prosecution has any discretion about whether or not to “show” the prior convictions; if he is aware of the accused’s record he must apprise the court of that fact.

In the present case it is clear that appellant’s attorney, the district attorney, and the trial court were under the impression that a plea-bargained agreement could circumvent the provisions of the Habitual Felony Offender Act. However, those provisions are absolutely mandatory and are not discretionary. Watson v. State, Ala.Cr. App., 392 So.2d 1274 (1980), cert. denied, Ala., 392 So.2d 1280 (1981).

Subsection (c) of § 13A-5-9, specifies that a defendant previously convicted of any three felonies, must, on conviction of a Class C felony, be punished as follows:

“[B]y imprisonment for life or for any term not more than 99 years but not less than 15 years.”

Robbery in the third degree is a Class C felony. Ala.Code § 13A-8-43 (1975).

Therefore, the minimum sentence appellant would have received for his robbery conviction was fifteen years. The maximum punishment was properly life imprisonment, or a term not exceeding 99 years.

Thus, it is our judgment that the trial court did not properly apprise appellant of the permissible range of punishment which could result from his plea of guilty. In fact, he reinforced appellant’s belief that a prior agreement between the two attorneys could nullify the mandatory provisions of the Habitual Felony Offender Act. The convictions are therefore reversed, and the causes remanded to the Etowah Circuit Court.

REVERSED AND REMANDED

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Terry Lamar LEWIS v. STATE.
    1 Div. 284.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 2, 1982.

      M. A. Marsal, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Sp. Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Murder; life.

On May 14, 1980, Detective Willie Estes of the Mobile County Sheriff’s Department was called to investigate a pickup truck located on a dirt road about thirty yards off Hamilton Boulevard in south Mobile County. There Estes discovered the body of Houston Busby, with a hole in the top of his head, lying across the front seat of the vehicle. Estes stated that, considering the position of the body, blood and tissue, it was his opinion that Busby had been killed outside the truck and later placed inside the vehicle.

On cross-examination by defense counsel, Detective Estes testified, without objection, that his investigation of the facts surrounding the Busby murder revealed that there was a history of “family violence,” and that Houston Busby “had been beating his wife and children for many years.”

Dennis Cross, who entered a plea of guilty to conspiracy to commit the murder of Houston Busby, was living in the Busby household at the time of the killing. He had been working for Busby and had been dating one of the victim’s daughters. He stated that, on two occasions before the murder, the appellant approached him about killing Houston Busby and said that Cross could make $5,000. Cross refused. Cross also said that Marie Busby, the wife of the victim, asked the appellant and Cross if they knew of “anybody that would kill somebody for her;” she stated that she would pay $10,000 for the job. Cross told Mrs. Busby “no” both times she brought up the subject.

The afternoon before the murder Cross heard appellant ask Kenneth Ladner, Marie Busby’s son and the victim’s stepson, if he could borrow a rifle. On the day of the murder Cross and the appellant rode to the Busby residence together. Appellant stated that he “was gonna hide in the back of Marie’s pickup and shoot him [Houston Busby] when he come up in the yard.” When they reached the house appellant said, “he’s already here, I can’t do it that way, I’m gonna have to find another way.”

According to Cross, after dinner that night, appellant asked Houston Busby if he would like to see appellant’s new gun. Appellant showed Busby a rifle that looked like the one belonging to Kenneth Ladner. After Houston retired for the evening, appellant took the rifle, went to Houston’s bedroom door, aimed, and shot. Cross testified that appellant attempted to shoot Busby again, but he [Cross] prevented the second shot.

Cross and the appellant then put Busby’s body in a pickup truck and drove it out to Hamilton Boulevard. Marie, the victim’s wife, and' Tonya, the victim’s daughter, along with Cross and the appellant, cleaned up the bedroom and put the bed linens in a plastic bag. Kenneth Ladner then took the rifle and the plastic bag across the Mississippi State line and threw them off a bridge.

Tonya Busby, the victim’s fifteen-year-old stepdaughter, testified that she had been dating appellant for over two years and had been engaged to marry him. She denied that she and the appellant had ever communicated about having her father killed. Miss Busby admitted that after her father’s killing and her mother’s trial for that offense, she lived in the same house with appellant for about two months. At the time of the trial she was still “seeing” the appellant, but she was unsure whether they were still engaged.

Over appellant’s objection, the trial judge granted the State’s motion to declare Miss Busby a witness of the court. Also over appellant’s objection, the court admitted into evidence several letters written prior to Houston Busby’s death from Tonya Busby to the appellant. The following excerpts from the letters were read to the Jury:

“After my dad is gone my mom will be a lot happier and so will I.
“I hate that bastard. I want that done this week.
“You f-right I’m going to have your baby and only your baby.”

The prosecution questioned Miss Busby about the meaning of having “that done” in an attempt to show that Miss Busby plotted with the appellant to have her father killed. The witness denied a plot and stated that she did not recall what she had meant by the phrase.

After the testimony of Dr. Leroy Riddick, Department of Forensic Sciences, who stated that in his opinion the victim’s death was caused by a gunshot wound to the head, the State rested. The appellant moved to exclude the evidence arguing that there was no evidence to corroborate the testimony of Dennis Cross, a claimed accomplice. The court overruled the motion and the defense rested without presenting any evidence. The trial judge charged the jury that they must decide, as a question of fact, whether Dennis Cross was an accomplice. The court instructed them that if they determined that Cross was an accomplice, then in order to convict the defendant they must determine that there was evidence presented to corroborate Cross’ testimony.

I

Initially appellant contends that the trial judge erred by granting the State’s motion to declare Tonya Busby the court’s own witness, thereby allowing the State to ask leading questions and attempt to impeach her.

Section 12-21-138, Code of Alabama 1975, provides the following:

“Leading questions are generally allowed in cross examinations and only in these, but the court may exercise a discretion in granting the right to the party calling the witness and in refusing it to the opposite party when, from the conduct of the witness or other reason, justice requires it.”

In view of the fact that Tonya Busby was the appellant’s fiance and, according to the testimony of Dennis Cross, she herself had a role in concealing the evidence of her father’s killing, it is our judgment that the trial court did not abuse its discretion by allowing the State to question her as on cross-examination. See Anderton v. State, Ala.Cr.App., 390 So.2d 1083 (1979), cert. denied, Ala., 390 So.2d 1087 (1980); Helton v. State, 55 Ala.App. 428, 316 So.2d 355 (1975).

II

Appellant next asserts that his motion to exclude for lack of evidence corroborating the testimony of Dennis Cross, whom he claims was an accomplice, was due to be granted.

The threshold question is whether, in fact, Cross was an accomplice. The classic test to determine whether a witness is an accomplice is whether he could be indicted and convicted for the same offense for which the accused is then being tried. Jacks v. State, Ala.Cr.App., 364 So.2d 397, cert. denied, Ala., 364 So.2d 406 (1978); Strange v. State, 43 Ala.App. 599, 197 So.2d 437 (1966).

We do not consider that Cross’ guilty plea is determinative of the issue here. Cross confessed his guilt and was adjudged guilty of the offense of conspiracy to commit murder, whereas appellant was tried for the offense of murder. Compare Kimmons v. State, Ala.Cr.App., 343 So.2d 542 (1977) (accomplices entered pleas of guilty to the same crimes for which defendant was convicted). The question is: could Cross have been indicted and convicted for the offense of murder?

It is clear that Cross’ mere presence at the scene of the homicide, without more, is insufficient to show his complicity. Jacks v. State, supra. Cross testified that he did not plan, intend or participate in the actual killing. However, he stated that on the day of the murder he was aware that appellant had borrowed a gun, and during a ride to the Busby home he heard appellant discuss how the victim would be killed. Cross also participated in the cleanup and disposal of evidence after the murder. From these conflicting facts, the question whether Cross was an accomplice was for the jury. The following observation by the court in Jacks v. State, supra is fitting here:

“[Although it was difficult to reconcile the witness’s statement that he and the defendant were driving around trying to find someone to rob and his other testimony to the effect that immediately on observing the actions of the others (i.e., picking up a stick and a pipe and stating that they were ‘going to get them’) he left the scene, the witness was not an accomplice absent any showing that he said or did anything in the way of encouragement or assistance.”

Jacks v. State, supra at. 403.

Similarly, in the present case there was no showing that Cross encouraged or aided appellant in the murder of Houston Busby. When a witness denies his participation in the crime charged against the defendant, despite inferences to the contrary, the question is one of disputed fact presenting a jury question. Yarber v. State, Ala., 375 So.2d 1229 (1978).

Though Cross helped conceal evidence after the crime, and would, under former law, have been deemed (if not an accomplice) at least an accessory after the fact, see Ala.Code § 13-9-2 (1975), corroboration is not required for the testimony of an accessory after the fact. Jacks v. State, supra; Cooper v. State, 43 Ala.App. 385, 191 So.2d 224, cert. denied, 280 Ala. 711, 191 So.2d 229 (1966); Belser v. State, 16 Ala. App. 504, 79 So. 265 (1918). The cases holding that corroboration of the testimony of an accessory after the fact is not necessary are based upon the following reasoning:

“The test of complicity is: Could the witness be indicted for the offense either as principal or accessory? If not, he is competent. An accessory after the fact is a separate and distinct offense, made so by Section 6220 of the Code of 1907.” [Citations omitted] Belser v. State, 16 Ala. App. at 505, 79 So. 265.

Section 6220 of the 1907 Alabama Code was the predecessor of § 13-9-2 of the 1975 Alabama Code; both sections made accessories after the fact separately indictable from principals and accessories before the fact. Section 13-9-2, however, was repealed by Acts of Alabama No. 77-607, § 9901 (May 16, 1977), and replaced with § 13A-10-2 of the 1975 Alabama Code (Supp.1978) (obstructing governmental operations) and §§ 13A-10-42 through 44 of the 1975 Alabama Code (Supp.1981) (Hindering prosecution or apprehension).

“Under the present law the conduct described under § 13A-10-42 and prohibited by §§ 13A-10-43 and 13A-10-44 would ordinarily make one an ‘accessory after the fact.’ § 13-9-1 and 13-9-2. .. .
“These sections, as most modern codes, break away from the common-law notion that a person who helps an offender somehow becomes an ‘accessory’ or ‘accomplice’ in the original crime. Instead of proceeding on an ‘accomplice’ theory, the drafters have employed the theory of obstructing justice.”

We therefore hold that, because the new code sections, like the former § 13-9-2, define after-the-offense actions such as those undertaken by Dennis Cross in terms of separate crimes, Cross could still be deemed, under one view of the evidence, an accessory whose testimony did not require corroboration. There was no error in the trial judge’s overruling appellant’s motion to exclude because of a lack of corroboration.

Ill

Finally, appellant contends that the trial court erred by admitting letters written to the appellant by Tonya Busby.

As a general rule, a letter written to the accused and found in his possession is admissible if there are facts tending to connect him with the letter. Cox v. State, Ala.Cr.App., 367 So.2d 535 (1978), cert. denied, Ala. 367 So.2d 542 (1979). In the instant case, there is nothing in the record to show that the letters were found in appellant’s possession, and there is only Miss Busby’s assertion that either she or appellant’s sister delivered the letters to indicate appellant’s receipt of the writings. Under ordinary circumstances, then, the letters would have been inadmissible hearsay if offered against appellant. See Cox v. State, supra; Gamble, McElroy’s Alabama Evidence, § 193.06 (3d ed. 1977).

If, however, there is evidence that the writer and the intended recipient of the letters were co-conspirators, then the writings may be admitted as the statements of one co-conspirator attributable to the other partner in crime. See Gamble, supra at § 195.03. Where proof of a conspiracy exists, any act or statement by an accused’s co-conspirator in the commission of the crime, done or made before the commission of the crime, during the existence of the conspiracy and in furtherance of a plan or design, is admissible against the accused. Conley v. State, Ala.Cr.App., 354 So.2d 1172 (1977); Svirbely v. State, 53 Ala.App. 452, 301 So.2d 219 (1974). See also Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

It is well-settled that a conspiracy need not be proved by direct and positive evidence, but may be determined from the conduct and relationship of the parties, from relevant testimony, from the circumstances surrounding the act, and from the conduct of the accused and his confederates subsequent to the act. Williams v. State, Ala.Cr.App., 375 So.2d 1257, cert. denied, Ala., 375 So.2d 1271 (1979). Before the statements of one co-conspirator may be admitted against another co-conspirator, only prima facie evidence of the existence of the conspiracy is necessary. Cox v. State, 240 Ala. 368, 199 So. 806 (1941).

In the present case, we believe that the cumulative effect of the following testimony provided prima facie evidence that Tonya Busby and the appellant conspired to cause the death of Houston Busby and authorized the admission of the letters:

1. The victim, Houston Busby, had been beating his wife and children for years.
2. The victim’s wife, Tonya Busby’s mother, attempted to set up a murder-for-hire of her husband.
3. Tonya Busby was engaged to the appellant at the time he allegedly shot her father.
4. Miss Busby helped to clean up and dispose of evidence after the shooting.
5. Miss Busby and the appellant lived under the same roof after the killing and continued to see each other up to the time of appellant’s trial.

We have carefully searched the record for error and have found none; therefore the judgment of conviction by the Mobile Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Terry Lamar LEWIS. (In re: Terry Lamar Lewis v. State of Alabama).
    81-485.
    Supreme Court of Alabama.
    April 30, 1982.
    M. A. Marsal and George L. Simons, Mobile, for petitioner.
   ALMON, Justice.

The only question presented by the petition for writ of certiorari is whether the witness, Cross, is an accomplice as a matter of law. The writ will not issue because the Court of Criminal Appeals has reached the right result, 414 So.2d 135.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: TYSON, Judge.

text:
    Toofie DEEP, alias v. STATE of Alabama.
    3 Div. 391.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 2, 1982.
    Certiorari Denied, May 21, 1982 Alabama Supreme Court 81-499.

      William N. Clark of Redden, Mills & Clark, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Toofie Deep was indicted under § 13A-8-3, Code of Alabama 1975, for “knowingly obtaining or exerting unauthorized control over a Morgan Portable Building, ... the property of the State of Alabama, . .. with the intent to deprive the owner of said property.” The jury returned a verdict of “guilty as charged” and the trial court sentenced Mr. Deep, the appellant, to three years’ imprisonment in the state penitentiary.

In summary, the state theorized that the appellant, as an employee of the “Hurricane Frederick” Disaster Housing Office in Mobile, transported a Morgan Portable Building, which had been used as a community “cook shack” at the Sea Pines Trailer Park during the disaster relief effort, from the Park in Mobile, Alabama, to his home in Montgomery, Alabama, “with the intent to deprive the owner of [its] property.” The “owner” in this instance was the State of Alabama which had purchased the building with federal funds earmarked for the disaster relief effort.

The appellant’s theory of the case was that, although he did take the building to his home in Montgomery, he was “authorized” by his immediate supervisor, who had the power to so authorize, to take it and use it only until the state needed it again or until a “staging area” (storage facility) in Montgomery could be completed. The appellant’s contention is that this “temporary” use of the building was “authorized” in exchange for appellant’s services of transporting the building to and “storing” it at his home in Montgomery at his own expense.

It was undisputed at trial that the appellant was hired by Lee Killough, Director of Disaster Housing in Mobile, to assist him in securing temporary housing for eligible victims of the 1979 Hurricane Frederick disaster, and that in that capacity the appellant performed a valuable service for the citizens of this state. It was during the “winding down” phase of this disaster relief effort, during the first week of January, 1980, that the alleged “theft” by the appellant of the Morgan Portable Building occurred.

The funding for the disaster relief program begun in the aftermath of Hurricane Frederick, was supplied by the federal government through the Federal Emergency Management Agency (FEMA), but the program was implemented through the State Department of Civil Defense, State of Alabama. Joe Hedrick, acting Director of the State Department of Civil Defense at that time, appointed Mr. Killough as Director of the Disaster Housing Office in Mobile and authorized him to hire the personnel and purchase the equipment required to provide the necessary housing for disaster victims.

One item purchased during this disaster relief effort was a 10 foot by 20 foot Morgan Portable Building, which was used as a temporary “cook shack” at the Sea Pines Trailer Park in Mobile. This building was used as a “cook shack” until electricity was restored to the surrounding homes. After its useful purpose had been served the building was left vacant at the Park where it became susceptible to vandalism. On or about January 5, 1980, this building was transferred by the appellant to the back yard of his home in Montgomery where it was used to store motorcycles, trash cans, garden tools and other miscellaneous items of personal property.

The prosecution presented evidence that supported its theory that the appellant intended to exercise “unauthorized” control over this item of state property and to “deprive” the state thereof.

Perhaps the evidence most damaging to the appellant on the issue of “intent” was the state’s exhibits 16, 17, and 19, which were color photographs depicting the Morgan Portable Building as it was positioned in the appellant’s back yard when it was seized by the authorities. Exhibits 16 and 17 demonstrated that although there had been no apparent attempts to hide or otherwise camouflage the building, shrubbery had been planted around its perimeter in front, and on both sides, and some white picket fencing had been placed around the base of the building. The back of the building was bordered by the chain-link fence which surrounded the appellant’s back yard and which was partially “taken down” to move the building to its back yard location.

Exhibit 19 was a photograph of the aluminum identification plate which displayed the model number and serial number of the building. This plate was located on the outside of the door of the building just above the doorknob and was attached to the door with four bolts. The photograph revealed a number of vertical and horizontal scratches curiously located only on the identification plate with only a few extending a short distance onto the surface of the door itself. The state contended that these scratches were the result of an apparent attempt by the appellant to obliterate the model and serial numbers. The location of these scratches, which were most intense over the serial number “supports” this contention. However, both the serial number and the model number were quite legible in spite of the scratches. Also, the entire identification plate could have been removed by simply removing the four bolts holding it in place.

In addition to this physical evidence, the state presented several witnesses whose testimonies inferred appellant’s alleged criminal intent.

George Dean, the State Comptroller, testified that the Morgan Portable Building was purchased with four $421.00 installments. Two of these installments were paid on January 14, 1980, and February 27, 1980, respectively, after the building had been transferred to appellant’s home in Montgomery. However, the vouchers signed by Mr. Killough for these two payments indicated that the building was still part of the Sea Pines Trailer Park, thus implying that it was still being used in the disaster relief effort.

Robert Thomson, a “fiscal officer” hired by the appellant for service as a member of the disaster relief team, testified that he asked Mr. Killough in March, 1980, (after the appellant had transported the building to this home in Montgomery) why the Morgan Portable Building was not listed on the inventory of disaster relief equipment and was told by Mr. Killough that it was still part of the Sea Pines Trailer Park and did not need to be itemized.

Eddie Foster, another employee of the Disaster Housing Office hired by the appellant and the key witness for the prosecution, testified with reference several conversations either that he had with appellant privately or that he participated in with appellant and others. Mr. Foster stated that appellant told him on October 6, 1979, that he, the appellant, had made some “extra money” during the “last disaster” and intended to make as much as possible on “this one” and asked Mr. Foster if he wanted to do likewise. (R 106-109). He further stated that he, Mr. Foster, told appellant that he did not wish to participate in any schemes to make extra money and that he refused appellant’s request for help in transporting the Morgan Portable Building to Montgomery. He stated that in a conversation with the appellant and Bobby Kelley, one of the men who did move the building, Mr. Kelley told Mr. Foster that they had to “take down” appellant’s fence in order to get the building in his back yard and that it took them all day. (R 115).

The appellant did not testify in his own behalf. The evidence which was presented in his behalf confirmed that the appellant did transport the Morgan Portable Building to his home in Montgomery where it was used to store personal property.

However, in defense of this action, appellant’s evidence theorized that he was “authorized” to use the building until a “staging area” (a storage facility) in Montgomery could be completed or until the state again needed it and that he did not intend to “deprive” the state of its property.

Mr. Killough was the key witness for the appellant. He testified that he “authorized” the appellant to take possession of and to use the portable building until a storage facility could be prepared for it or until it was needed again by the state. (R 312). He stated that in exchange for the “temporary” use of the building the appellant agreed to and did transport it to Montgomery at his own expense. Mr. Killough explained that he made this “authorization” when it came to his attention that the building had served its useful purpose as a “cook shack”, had been vacated, and had become susceptible to vandalism at the Sea Pines Trailer Park. He acknowledged that he considered storage of the building at a federal “staging area” in Mobile and at a state “staging area” in Montgomery. He did not want to store the building at the nearby federal “staging area” because the state would have forfeited its right to future use of it. The state “staging area” in Montgomery would have been the best location, but he did not feel that it was in the proper state of repair to store the building. However, he expected the appellant to transfer the building to the Montgomery facility as soon as the facility was completed.

Mr. Killough admitted signing, after the appellant had taken the building, the two vouchers which indicated that the Morgan Portable Building was still part of the Sea Pines Trailer Park. However, he explained that he felt that he still had control of the building even while it was being “used and stored” at the appellant’s home. He also emphasized that the cost to the state of transporting the building to Montgomery was saved because the appellant transport ed it at his own expense. In Mr. Killough’s opinion the option of authorizing its temporary use by appellant was the best solution for the “temporary” disposition of the Morgan Portable Building.

Three other witnesses testified that they had visited the Montgomery “staging area” and had found it to be in a state of disrepair.

These same witnesses, Shirly Reinhardt, William Beech and Thomas Reinhardt, testified that they knew Mr. Foster, the prosecution’s key witness, and that he had a bad reputation at work for telling the truth. On cross-examination they admitted that they were good friends of the appellant. Two other witnesses, Cynthia Cauthen and Kimberly Clark (Mr. Foster’s own secretary) testified that Mr. Foster’s reputation for telling the truth was bad and that they “would not believe him under oath.”

Mr. Beech also admitted that the inventory which omitted the Morgan Portable Building was taken by him and that he must have “overlooked the building.” In any event he accepted responsibility for its omission on the inventory list. Mr. Reinhardt stated further that he reported the alleged vandalism of the building to Mr. Killough and that he and Mr. Beech and (he thought) Mr. Foster, too, participated in the meeting during which Mr. Killough gave appellant the authority to “temporarily” use the portable building.

Mrs. Reinhardt, Mr. Beech, Mr. Reinhardt, and Mr. Killough each testified that various other items of state property (e.g. disaster relief forms, desks and other office furniture) were routinely stored in the appellant’s garage, also at no cost to the state.

The appellant also presented four character witnesses. Monsignor Michael McGuiness (a Montgomery pastor), Father Gordon Milstead (a priest), Charles McVay and James Farmer, each testified that they knew the appellant personally and that his reputation in the community was either good or very good.

Appellant’s final witness, Joe Hedrick, the Director of the State Department of Civil Defense, testified that while he would not have authorized the final two payments for the Morgan Portable Building had he known that it had been transferred to appellant’s home, he nevertheless, agreed that if Mr. Killough indeed considered all of the circumstances with reference the “staging areas”, the transportation costs, and the agreement allegedly entered with appellant, then he would have had the authority to “authorize” appellant to “temporarily” store the building at his home.

I

The appellant properly questioned the sufficiency of the evidence in support of the state’s case in his motions to exclude the state’s evidence and for a new trial. He cites as reversible error the trial court’s denial of these two motions on this “sufficiency of the evidence” ground.

We have carefully scrutinized the evidence in this case and' have concluded that, while the appellant presented a defense which, if believed by the jury, might have justified his conduct with reference this alleged removal of the structure, there was, nevertheless, sufficient evidence to support the jury’s verdict of “guilty as charged.”

Under the circumstances present in this case, the critical elements of the alleged offense were “unauthorized control” and “intent to deprive.” Did the appellant obtain or exert unauthorized control over the Morgan Portable Building and did he intend to deprive the state of this property? Affirmative answers to each of these questions were required for a conviction under § 13A-8-3, Code of Alabama 1975.

These questions were properly put to the jury which had the responsibility of assessing the credibility of each witness and weighing all of the evidence, whether direct or circumstantial, as they viewed it. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.), cert. denied, 368 So.2d 877 (Ala.1978); McBryar v. State, 368 So.2d 568 (Ala.Cr.App.), cert. denied, 368 So.2d 575 (Ala.1979); Reed v. State, 372 So.2d 872 (Ala.Cr.App. 1978), rev’d on other grounds, 372 So.2d 876 (Ala.1979); Crowell v. State, 389 So.2d 545 (Ala.Cr.App.1980).

The appellant argues that the evidence is uncontroverted that Mr. Killough “authorized” the appellant to use and “store” the building at his home either until the state “needed it” or until the “staging area” in Montgomery was completed. This fact was confirmed by Mr. Killough himself, and corroborated by Mr. Reinhardt. As the appellant points out, the jury should not have arbitrarily disregarded these testimonies if they were not disputed at trial.

However, we find nothing in the record to indicate that the jury’s determinations were “arbitrary”, and contrary to appellant’s assertions, evidence was introduced by the prosecution which at least inferentially challenged the credibility of these testimonies. There was evidence that Mr. Kil-lough signed two expense vouchers which misrepresented the use of the building at that time and there was evidence that Mr. Killough approved an inventory list requested by FEMA even though he knew the list did not include the Morgan Portable Building. These factors were inconsistent with the appellant’s “valid authorization” theory and might have persuaded the jury to disbelieve Mr. Killough’s story as corroborated by Mr. Reinhardt.

Furthermore, even if the jurors believed that some “control” of the building by the appellant was properly “authorized”, evidence was introduced which might have convinced them that the “control” actually exerted by the appellant went beyond that amount so authorized. The testimony of Mr. Foster that the appellant had told him that he (the appellant) had made “extra money” on the last disaster and intended to make all that he could on this one coupled with the photographs depicting the permanency with which the appellant had installed the building in his back yard would have supported such a conclusion. Also, a period of five months elapsed from the time of Killough’s alleged “authorization” to the time the building was seized in appellant’s back yard. Perhaps the jury did not believe that restoration of the Montgomery “staging area” would have taken that long if that restoration had, indeed, been a factor which would have terminated the appellant’s “authorized control.”

We have no way of knowing how the jury weighed the facts presented, but they need not have totally disregarded Mr. Killough’s testimony that some control was “authorized” in order to conclude that appellant “intended to deprive” the state of its property and eventually “exerted unauthorized control over” same. Unauthorized control could certainly have been exerted even if the initial possession had been acquired with the consent of the owner.

Appellant contends that the jury’s finding of guilt in this instance could only have been based on circumstantial evidence and inferences therefrom. Be that as it may, in Stewart v. State, 405 So.2d 402 (Ala.Cr.App.1981), in commenting on a similar situation where the evidence presented questions of fact for the jury, we stated the law in Alabama that:

“Circumstantial evidence is not inferior evidence, Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978), and will support a conviction as strongly as direct evidence provided it points to the guilt of the accused. Kelsoe v. State, 356 So.2d 735 (Ala.Cr.App.1978). While mere speculation, conjecture, or surmise, will not authorize a conviction, the jury is under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inferences it chooses to draw. Kontos v. State, 363 So.2d 1025, 1034 (Ala.Cr.App.1978)”

Since there was sufficient evidence to contradict the strong case presented by the appellant and to support the jury’s verdict, the trial court correctly denied appellant’s motions on the “sufficiency of the evidence” ground. Fuller v. State, 269 Ala. 312, 113 So.2d 153 (1959); Harris v. State, 358 So.2d 482 (Ala.Cr.App.), cert. denied, 358 So.2d 487 (Ala.1978); Crowell v. State, supra; Stewart v. State, supra.

II

Another contention of appellant with reference his “motion to exclude” is that the trial court erred in denying said motion on the ground that the value of the building in question was not proven, said value being an essential element of the offense charged.

We need only comment that sufficient evidence of value was established by the prosecution. The purchase price in mid-October of 1979 was $1684.00. The building was used for less than two months at the trailer park. The alleged offense occurred on or about January 5, 1980, less than three months from the initial date of purchase. The jury had in evidence photographs of the building depicting its condition on March 1, 1980, the date it was seized.

These facts gave the jury ample evidence, from which to conclude “beyond a reasonable doubt” that the building was worth more than $1,000.00 (the minimum amount required for the alleged “first degree theft”). Had the jury concluded otherwise, they, undoubtedly, would have returned a verdict for “second or third degree theft,” which were discussed as “lesser included offenses” by the trial court in its charge to the jury. (R 435-437).

III

Appellant filed a demurrer to the indictment stating as grounds, among others, that the indictment was defective in that it failed to specify the date of the alleged offense, said date being material because of the changes in Alabama’s “theft” statutes as of January 1, 1980, and that the statute which he allegedly violated, § 13A-8-3, Code of Alabama 1975, is unconstitutional because it is “vague, uncertain, indefinite and overbroad in violation of the Fourteenth Amendment to the United States Constitution.” The trial court’s action of overruling appellant’s demurrer on both grounds is cited as error.

A

Appellant argues that the date of the alleged offense was necessary in the indictment because the new statute, § 13A-8-3, which was not effective until January 1, 1980, encompasses broader conduct than the “theft” statutes (“larceny” and “embezzlement”) prior to 1980. Appellant complains, therefore, that defensive strategy would not necessarily have been the same under the applicable statutes before and after January 1.

Having reviewed all of the circumstances involved, we have determined that the demurrer was, on this ground, properly overruled by the trial court.

In upholding a robbery indictment recently in Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978), Judge Harris, speaking for this court stated:

“The constitutional right of an accused to demand the nature and cause of the accusation against him is not a technical right, but is fundamental and essential to the guaranty that no person shall be deprived of his liberty except by due process of law, nor be twice put in jeopardy for the same offense.
“An indictment should be specific in its averments in four prime aspects to insure this guaranty: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record.
“The indictment in this case is couched in language so clear that any person of common understanding would know that the crime of robbery was charged against appellant.”

In the instant case, in spite of appellant’s technical arguments to the contrary, we find that the indictment is, likewise, “couched in language so clear that any person of common understanding would know” that the appellant was charged with violating the new “theft” statute, § 13A-8-13, Code of Alabama 1975, a violation of which could only have occurred after the effective date of the statute, January 1, 1980, as specified in § 13A-1-11, Code of Alabama 1975. Summers v. State, supra; Black v. State, 401 So.2d 320 (Ala.Cr.App.1981).

Furthermore, the trial court, in light of appellant’s demurrer to the indictment, ordered that the state respond thereto “by setting out the date on which the offenses occurred.” The state complied with this order stating that the instant offense occurred on or about January 5, 1980. Such response was made on November 7, 1980, some two weeks before trial of this cause.

We therefore find no merit to appellant’s contentions that he was denied “due notice” of the charges against him because of technical defects in either the indictment (R 450) or in the state’s response to the Bill of Particulars. (R 468). Holt v. State, 238 Ala. 219, 193 So. 101, rev’g, 29 Ala.App. 100, 193 So. 98 (1939); Black v. State, supra.

We are also not convinced that appellant’s strategy in defense would necessarily have been different had he been charged under one of the “theft” statutes applicable prior to January 1, 1980. The new definition of “theft” specified in § 13A-8-2, Code of Alabama 1975, as clarified by the definitions given in § 13A-8-1, Code of Alabama 1975, was not intended to and in our opinion does not create a broader range of “theft" crimes. Instead it was intended to unify the old “theft” offenses and thereby “eradicate the common law distinctions between the crimes of larceny, embezzlement and false pretenses” so that “one accused of one form of theft [would not be allowed] to escape a legal sanction because of proof of a different form which interferes with property rights in essentially the same way.” See Commentary to §§ 13A-8-2 through 13A-8-5, Code of Alabama 1975. Therefore, assuming the offense had occurred prior to January 1, 1980, and he had been charged under the proper “larceny” or “embezzlement” statute, and the jury had decided the facts as they apparently did here, we see nothing in the law of “theft” prior to January 1, 1980, which would have saved this appellant.

B

Appellant’s constitutional challenge due to vagueness also fails in this instance.

The new code sections challenged by appellant read as follows:

“§ 13A-8-2. Theft of property — Definition.
A person commits the crime of theft of property if he:
(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or
(2) Knowingly obtains by deception control over the property of another with intent to deprive the owner of his property. (Acts 1977, No. 607, § 3201.)” (Emphasis added).
“§ 13A-8-1. Definitions Generally.
(2) To ‘DEPRIVE.. . ’ means:
a.To withhold property or cause it to be withheld from a person permanently or for such period or under such circumstances that all or a portion of its use or benefit would be lost to him ; or
b. To dispose of the property so as to make it unlikely that the owner would recover it; or
c. To retain the property with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or
d. To sell, give, pledge, or otherwise transfer any interest in the property; or
e. To subject the property to the claim of a person other than the owner.
(7) OBTAINS OR EXERTS CONTROL OR OBTAINS OR EXERTS UNAUTHORIZED CONTROL over property includes but is not necessarily limited to the taking, carrying away or the sale, conveyance or transfer of title to, or interest in, or possession of, property, and includes but is not necessarily limited to conduct heretofore defined or known as common law larceny by trespassory taking, common law larceny by trick, larceny by conversion, embezzlement, extortion or obtaining property by false pretenses.” (Emphasis added).

Appellant asserts that the use of “exerts unauthorized control” and “deprive” in § 13A-8-2 as they are defined in § 13A-8-1 creates an overbroad statute which (hypothetically) could be violated by one who temporarily borrows his neighbor’s lawn mower without that neighbor’s expressed permission. Appellant explains that the “not necessarily limited to” language used in § 13A-8-l(7) in conjunction with the “under such circumstances that all or a portion of its use or benefit would be lost to him” language of § 13A-8-l(2) gives § 13A-8-2 a sufficiently indefinite meaning to encompass the “borrowed lawn mower” situation and, thus, to make the statute void for vagueness. We disagree.

The focus of § 13A-8-2 is ascertained by reading the statute as a whole with every word and phrase in context. Few statutes could withstand the dissecting and restructuring process hypothesized by appellant, here.

The import of § 13A-8-2 is to proscribe all similar conduct motivated by similar intent which has similar results. The focus of this new “theft” statute is on the intent of the perpetrator (thief) to deprive the owner of his property. The legislature’s objective was to remove the distinctions in the old theft statutes based on the manner of obtaining control and, thereby, shed the old classifications of “larceny”, “embezzlement”, etc., which allowed those guilty of one type of theft to escape punishment when the evidence proved a different type. See Commentary to § 13A-8-2 through § 13A-8-5, Code of Alabama 1975. The language challenged by this appellant, “[withholding of property] under such circumstances that all or a portion of its use or benefit would be lost to him” in § 13A-8-1(2) and “not necessarily limited to” in § 13A-8-l(7), comports with this legislative objective.

We see nothing constitutionally infirm in § 13A-8-2, as a whole, and see nothing unconstitutional in this statute as applied to the appellant. We agree with appellant that the borrower of a lawn mower should not be punished under § 13A-8-2. Indeed such a “borrower” would not fit under this statute because he does not intend to withhold the owner’s property [see § 13A-8-l(2)a]. However, as under the old theft laws, one who obtains authorized possession might be punished if and when he exerts unauthorized control.

The jury was adequately instructed by the trial court and was justified by proper inference to conclude that even if the appellant obtained authorized possession, at some point in time his intentions fit the conduct proscribed in § 13A-8-2.

IV

The trial court did not err in sustaining the state’s objection to appellant’s question of Robert Thomson which called for “hearsay” testimony with reference an alleged request by Mr. Killough that Thomson keep the paper work on the Morgan Portable Building “right”. (R 67). The question posed was not specific enough nor was a sufficient predicate established to justify its admission over the state’s timely, hearsay objection.

V

Neither did the trial court err in admitting the testimony of Eddie Foster (R 107-111) which related statements by the appellant pertaining to his intent to make “extra money” on this disaster as he had during the “last one.”

This testimony was indeed damaging to the appellant and generally would not have been allowed because of the rule prohibiting evidence of prior misconduct. However, since appellant’s intent was a key issue in this case, the testimony was properly allowed as an exception to the general rule to prove appellant’s motive or intent in taking possession of the portable building. Lucy v. State, 340 So.2d 840 (Ala.Cr.App.), cert. denied, 340 So.2d 847 (Ala.1976); Pope v. State, 365 So.2d 369 (Ala.Cr.App.1978); Howard v. State, 371 So.2d 475 (Ala.Cr.App.1979); Hayes v. State, 384 So.2d 623 (Ala.Cr.App.1979), cert. denied, 384 So.2d 627 (Ala.1980); Howton v. State, 391 So.2d 147 (Ala.Cr.App.1980); Laing v. State, 390 So.2d 1154 (Ala.Cr.App.), cert. denied, 390 So.2d 1160 (Ala.1980).

Moreover, the jury was properly instructed by the trial court as to the limited use of this testimony solely on the issues of intent or knowledge. (R 108, 110-111 and 431).

VI

Appellant further contends that the trial court erred in denying his request to review prior written statements made by and a diary belonging to witness Eddie Foster. Appellant insists that this information was necessary for impeachment purposes.

The trial court reviewed the requested material and made the determination that the information contained therein was of no value to the appellant. (R 118, 124 and 288). Since the witness made no reference to these statements on direct examination (R 290) and since appellant was given ample opportunity to question the witness as to any inconsistencies (R 122) therein, the trial court decided to refuse appellant’s request to review these statements.

Such a determination was within the proper discretion of the trial court. Mabry v. State, 40 Ala.App. 129, 110 So.2d 250, cert. denied, 268 Ala. 660, 110 So.2d 260 (1959); Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973); Giddens v. State, 333 So.2d 615 (Ala.Cr.App.1976); Beard v. State, 337 So.2d 1372 (Ala.Cr.App.1976); McLaren v. State, 353 So.2d 24 (Ala.Cr. App.), cert. denied, 353 So.2d 35 (Ala.1977).

We find nothing in this record to indicate any abuse of discretion by the trial court and, consequently, see no error in this instance.

VII

Finally, appellant asserts that certain questions and remarks by the prosecution were “so prejudicial as to deny the appellant a fair and impartial trial based on the evidence alone.”

A

The trial court sustained appellant’s objection to a question posed to Mr. Kil-lough regarding an alleged “civil suit” pending against the “whole Sea Pines Mobile Park thing down there in Mobile.” (R 374). . Appellant complains that the trial court’s action, without a further curative instruction to the jury to disregard the question, was insufficient to eradicate the bias injected by the question. He, therefore, asserts that this failure to give a curative instruction was reversible error.

Having reviewed this record, we do not feel that this unanswered question was so “highly prejudicial” as to mandate a curative instruction. For aught that appears, and appellant has offered no proof to the contrary, the potential prejudicial effect of this unanswered question was removed by the action of the trial court in sustaining appellant’s objection. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312 (1974); Wright v. State, 57 Ala.App. 401, 328 So.2d 650 (1976); Henley v. State, 361 So.2d 1148 (Ala.Cr.App.), cert. denied, 361 So.2d 1152 (Ala.1978); Kennedy v. State, 373 So.2d 1274 (Ala.Cr.App.1979), and cases cited therein; Kendricks v. State, 378 So.2d 1203 (Ala.Cr.App.1979).

B

Appellant also argues that the prosecution improperly remarked that Mr. Kil-lough had “lied” about the use of the Morgan Portable Building in the final two expense vouchers. (R 375-376). Appellant asserts as reversible error the cumulative effect of this remark when combined with the errors discussed above with reference the “civil suit” inquiry and the admission of Mr. Foster’s testimony concerning appellant’s alleged criminal intent.

Since we find no error in the prosecutor’s remark challenged here, just as we found no error either in the admission of Mr. Foster’s testimony with reference appellant’s criminal intent or in the trial court’s failure to give a curative instruction to the jury after sustaining the appellant’s objection to the “civil suit” inquiry, appellant’s “cumulative effect” argument must fail.

The remark challenged here came in the form of a question to Mr. Killough:

“Q. All right, sir. And let me ask you this: Would the fact that you lied to the —” (Emphasis added).

This question was cut short by appellant’s objection and after some discussion between counsel and the trial court, the question was rephrased in terms of Mr. Kil-lough’s having filed “false documents” (i.e. the final two expense vouchers which misrepresented the use of the Morgan Portable Building.) This entire line of questioning was subsequent to the cross-examination question at (R 370-371):

“Q. Then you admit here today in this Courtroom in filing a false document with the Finance Director of the State of Alabama and the Department of Civil Defense, don’t you?
MR. JORDAN: Object. He is arguing with the witness. Repetitious.
THE COURT: Overruled.
“A. Yes.” (Emphasis added).

The use by the prosecution of the term “lied” might have been technically incorrect in referring to Mr. Killough’s admitted act of “filing a false document” but we fail to find in the prosecution’s remark prejudice to the point of error, especially since at the trial court’s request the question was rephrased using the latter language which referred to acts already admitted by Mr. Killough.

Questioning Mr. Killough about the validity of vouchers signed by him, which at least implied the continued use of the building at the trailer park in Mobile, was proper impeachment of him on the issue of his “authorization” for appellant to take the building.

Since there were no errors committed at trial requiring a reversal of this cause, and there was sufficient evidence to support the jury’s verdict, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur, except BOOK-OUT, J., not sitting.


author: BOOKOUT, Judge.

text:
    Barry MATHIS v. STATE.
    7 Div. 866.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Rehearing Denied March 23, 1982.
    Certiorari Denied, May 28, 1982 Alabama Supreme Court 81-566.

      John C. Nicholson and Thomas Nicholson, Jasper, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOOKOUT, Judge.

Murder; sentence: life imprisonment.

The State’s evidence was sufficient to prove beyond any reasonable doubt that the appellant intentionally killed Cornelia Eddy at her place of employment in Jasper, Alabama, by shooting her with a pistol on the evening of February 26, 1980. Viewing the evidence in the light most favorable to the State, as this court is required, Curtis Williams testified that he first saw appellant on the date in question around 10:30 or 11:00 a. m. at appellant’s house. Later, around noon, Joe Lee Guyton came to appellant’s house. Williams overheard appellant ask Guyton for a gun. Appellant told Williams and Guyton that he owed the “dope man” $500 and that the “dope man” was coming by later to collect his money. Appellant needed the gun to kill the “dope man.” Guyton told appellant his mother had a gun, but he “didn’t want to get his mother involved.” Williams stated that appellant already had a pistol of his own at the time he asked Guyton for one.

Williams next saw appellant around 5:30 or 6:00 p. m. in front of Ethel Brown’s house. At this time appellant asked Williams if he would “get hold of a gun.’ Williams told him no. An argument later ensued between Williams and a man named Houston. Williams borrowed appellant’s .22 pistol, Williams and Houston quit arguing, and Williams reentered Brown’s house and returned appellant’s pistol. Williams then left Brown’s house and started toward Melvin Collins’s house when appellant stopped him. It was approximately 7:00 p. m.

Appellant resumed the conversation with Williams that he owed the “dope man” $500 and he “had to get some money.” Williams testified that appellant “asked me to go down to the store with him to rob Handy Dandy, and I told him I didn’t have the nerve.” Appellant again asked Williams if he could get a gun and Williams said no. Appellant then told Williams “not to worry about it but come go with him.” Williams testified that he and appellant “went on down, and as we went down he instructed me what to do and how to do.” Williams admitted his voluntary participation in the robbery throughout his testimony.

When appellant and Williams arrived at the Handy Dandy convenience store, appellant told Williams “to be the lead man, to go in and check the place out and see who all was in there and come back out and let him know about it.” While appellant hid behind a dumpster-type garbage can near the store, Williams stood outside the store “for a few minutes and then went inside.” Williams bought a pastry and a soft drink and proceeded to leave when he saw Vera “Cookie” Shelton entering the store. “She was coming in the door when I come out.... She spoke and I spoke and I headed toward where Barry was [still behind the dumpster] until he told me to keep going.” After Miss Shelton left the Handy Dandy, Williams returned to the dumpster and told appellant that “the store was clear.”

Williams testified that he and appellant then entered the store together. “There was nobody in there but me and him and the girl.” Williams stated that he heard appellant order an ice cream cone while he (Williams) went to the back of the store “to the drink box.” Williams stated that as he picked up a can of soda he “heard a gun go off, a ‘pow’ sound.” He also heard the deceased make “a small squeak, a little holler.” Williams testified that he turned around instantaneously and saw appellant behind the cash register. “He had the cash drawer in his hand, and he told me to come on and let’s go. I started running and I came to the cash register and looked behind there. She was behind there; I saw blood and I started running behind.” Williams also saw appellant leap over the sales counter, knocking over a rack of cigarettes while holding the cash drawer in his hands. No other eyewitness besides Williams could positively place appellant at the scene of the crime.

Williams and appellant ran in opposite directions when they left the Handy Dandy, but met a short time later at Ethel Brown’s house. Appellant gave Williams some of the money taken in the robbery and told him to keep his “mouth shut.” Appellant had his .22 pistol in his trousers. While Williams did not actually see appellant fire the weapon, he knew appellant had the pistol both before and after the murder. Williams identified the murder weapon and stated the following: “To the best of my recollection that is the only gun Barry took around. That is the only gun I have ever seen Barry carry around.”

Williams stated that he next went over to Mrs. Janie Clopton’s house, bought a beer, and paid Vera “Cookie” Shelton for some beer he had purchased earlier on credit. Mrs. Clopton, Vera Shelton’s mother, was a bootlegger. Williams left Mrs. Clopton’s house and later returned to order more beer before going home.

Williams testified that the next time he saw appellant was on March 7, 1980, at the city jail in Jasper. Williams stated that his cell was separated from appellant’s and that another cell was occupied by an inmate, Steve Daniel. Williams admitted that he and appellant had a conversation about the robbery/murder while they were in their respective cells. “We hollered back and forth to each other.” Williams testified that the gist of their conversation was appellant telling him “to take the rap and say I killed the girl and tell the police I had lied, to free him and if I don’t do it that I wouldn’t make it to prison.” Williams stated that appellant also offered to help him if he would take the “rap” and talked about “where the gun was.” Their conversation was in “pig Latin” as well as in English. Williams refused to acquiesce to appellant’s proposals and demands.

I

Appellant contends that he was unlawfully convicted on the uncorroborated testimony of Williams, an accomplice. We disagree. Williams’ testimony was sufficiently corroborated by other evidence tending to connect appellant with the commission of the offense. Ala.Code § 12-21-222 (1975).

The State concedes, and we find, that as a matter of law Williams was an accomplice. He freely admitted throughout his testimony that he had voluntarily participated in the armed robbery of the Handy Dandy convenience store which led to the murder of the deceased. Yarber v. State [6 Div. 351, Ms. October 27, 1981] (Ala.Cr.App.1981); Yarber v. State, 375 So.2d 1229 (Ala.1978). The State’s evidence undisputedly makes Williams an accomplice. Yarber, 375 So.2d at 1230; Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978). Williams knew that appellant was armed with a pistol when the two entered the Handy Dandy and that appellant was desperate to get $500 to pay the “dope man.” While Williams’s personal motive for participating in the crime is not so evident, there is no doubt that he willingly participated and voluntarily gave the necessary aid and assistance, whether on his own initiative or at appellant’s suggestion, to insure the success of the venture. There was no testimony by Williams, as by Miles in Yarber v. State, 375 So.2d at 1230, trying to “pin the offense” or “put all the blame” on appellant. There was no testimony by Williams, as by the witness in White v. State, 352 So.2d 29 (Ala.Cr.App.1977), that he “left the scene” just prior to the robbery. Further, based on all the facts and circumstances, it cannot be seriously questioned that Williams had knowledge that appellant intended to take murderous action, if necessary, to succeed in their robbery scheme. As was stated in Jacks, supra: “Thus a participant in an illegal venture for one purpose becomes one for all where the additional crimes are the proximate, natural, and logical result of the adventure upon which the actors engaged with a common purpose.” 364 So.2d at 402-403. While application of this principle is limited, as this court points out in Jacks, we believe that it has application in the instant case.

Having determined that Williams was an accomplice as a matter of law, we find the following evidence corroborative of his testimony and tending to connect appellant with the commission of the crime.

(1) Joe Lee Guyton, in addition to confirming Williams’s testimony that appellant had asked him (Guyton) if he had a gun on the morning of the robbery/murder, testified that he saw appellant at Ethel Brown’s house around 8:00 p. m. that night. Guyton stated that appellant called him upstairs and “said he had let Curtis (Williams) use his gun, and he thought Curtis had shot somebody with it and he asked me to smell of it.” Appellant put the pistol “back in his pocket” after Guyton had examined it. Guyton identified State’s Exhibit No. 10 as appellant’s .22 pistol. This was the same pistol that Williams testified appellant used in the robbery/murder. Three days later appellant told Guyton he was going to talk to the district attorney about Williams. After this conversation with the district attorney took place, appellant informed Guyton that “he had told the D. A. that the dude dropped the gun off by the swimming pool.” Guyton testified that the appellant immediately returned to his house and “said he had to get the gun out of the premises.” Guyton saw appellant retrieve his pistol from a box under some clothes on his back porch and wrap it in a blue towel. Guyton then went with appellant to the swimming pool near the Carver Court Apartments and saw him drop the pistol, still wrapped in the towel, into a hole in the woods nearby. On March 10, 1980, Guyton led Detective Charles Fleming of the Jasper Police Department to the hole and the pistol was recovered.

(2) When Lawden Yates of the Department of Forensic Sciences compared the bullet recovered from the deceased with appellant’s pistol (State’s Exhibit No. 10), he could not state for certain that appellant’s pistol was the murder weapon because of the amount of rust that had collected in the barrel. However, he found the class characteristic between the recovered projectile and appellant’s pistol to be consistent. Yates stated with certainty that the bullet had been fired out of a barrel manufactured by R. G. Industries. Appellant’s pistol barrel was manufactured by R. G. Industries.

(3) Steve Daniel testified that he was in the Jasper city jail with appellant and Williams on March 8, 1980. Daniel stated that appellant’s cell was between his cell and Williams’s cell. During the course of the evening, Daniel heard appellant talk to Williams “about the rap for the crime.” Daniel heard appellant tell Williams that “if he would take the rap for whatever they had done he would pay him and get him a lawyer and get him out on bond.” (Emphasis added.) Williams told appellant “he was crazy.” Daniel also heard appellant tell Williams that “they needed to get rid of some things and cover up.” (Emphasis added.) When appellant told Williams about hiding the gun, Williams responded, “I think you better leave it alone.” Daniel stated that appellant’s language was interspersed with “pig Latin and regular English.” Daniel stated that Williams “had started talking about the crime itself... . He was talking about when he was at this building, which was the Handy Dandy, that when he went to get a coke that he heard something go off and it scared him.”

(4)Mrs. Janie Clopton and Miss Vera Shelton both verified that they had seen Williams at the Handy Dandy around'7:00 p. m. on February 26, 1980, prior to the robbery/murder. Mrs. Clopton stated that Williams “was acting suspicious,” that he hesitated outside the store “like he was going to the garbage or some kind of building.” Mrs. Clopton stated that she and her daughter left the Handy Dandy about fifteen minutes later. Mrs. Clopton’s house was a three-minute drive from Handy Dandy. Williams came to her house a little past 7:30 p. m. and “gave Cookie some money.” Appellant then came to Mrs. Clopton’s house and asked if she had seen Williams and how long it had been since Williams left.

Corroborative evidence need not be strong or sufficient of itself to support a conviction, the criterion being that it legitimately tends to connect the accused with the offense. Andrews v. State, 370 So.2d 320 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979). Both circumstantial and direct evidence are competent to connect the defendant independently with the crime about which the accomplice has testified. Yarber v. State [6 Div. 351, Ms. October 27, 1981] (Ala.Cr.App.1981). Our supreme court stated the following in Dolvin v. State, 391 So.2d 133, 137 (Ala.1980), quoting from White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975):

“ ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty. Lowe v. State, 90 Fla. 255, 105 So. 829 (1925). Circumstantial evidence is said to be the inference of a fact in issue which follows as a natural consequence according to reason and common experience from known collateral facts. Lowe, supra.’ ”

As this court stated in Jacks v. State, 364 So.2d at 404-405:

“The corroborative evidence need not refer to particular statements testified to by the accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776 (1936); Malachi v. State, 89 Ala. 134, 8 So. 104 (1889). “ ‘It is not necessary that the corroborating evidence refer to any particular statement or fact testified to by the accomplice. If it strengthens the probative cri-minating force of his testimony and tends to connect the defendant with the commission of the offense it is sufficient to warrant the submission of the issue of guilt or innocence to the jury.’ Smith v. State, 230 Ala. 413, 416, 161 So. 538, 542 (1935).
“Additionally, sufficient corroboration of the testimony of an accomplice may be furnished by a tacit admission by the accused, by the suspicious conduct of the accused, and the association of the accused with the accomplice, or by the defendant’s proximity and opportunity to commit the crime. Cheatwood v. State, 22 Ala.App. 165, 113 So. 482, cert. denied, 216 Ala. 692, 113 So. 915 (1927); 23 C.J.S. Criminal Law § 812(4).
“ ‘In determining the sufficiency of corroborative evidence testimony the entire conduct of an accused within reasonable time limits of the date of the offense may be examined.’ Fuller v. State, 34 Ala.App. 211, 215, 39 So.2d 24, 27, 252 Ala. 20, 39 So.2d 29 (1949). An accused’s consciousness of guilt as shown by the evidence may be corroborative. Fuller, 34 Ala.App. 215, 39 So.2d 24.”

Although evidence of motive alone is not sufficient corroboration, Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947), it may be considered in connection with other evidence tending to connect the accused with the crime. Slayton v. State, 27 Ala.App. 422, 173 So. 632, rev’d on other grounds, 234 Ala. 1, 173 So.2d 642 (1937). Moreover, voluntary statements by the accused may constitute sufficient corroboration of an accomplice to authorize a conviction. Snoddy v. State, 75 Ala. 23 (1883); Williams v. State, 52 Ala.App. 406, 293 So.2d 324 (1974).

Applying the foregoing principles to the facts before us, we have no difficulty in finding that the incriminating testimony of Williams' was sufficiently corroborated.

II

We have carefully examined the admission of the bloody fingerprint discovered on the sales counter of the Handy Dandy in light of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and do not find that the principles enunciated in those cases were violated. The comparison conducted by fingerprint expert James A. Howell of the Jefferson County Sheriff’s Department of the bloody fingerprint with appellant’s known fingerprints was not exculpatory of appellant’s guilt. At most, Howell’s comparison was inconclusive as to appellant’s guilt. It is true that Howell testified that he could not identify the bloody fingerprint as belonging to appellant; however, his inability to make an identification was because the bloody fingerprint had been smeared leaving only three identifiable points matching appellant’s known prints. Howell testified that the least number points of identification he could use to make a positive identification comparing a known print to a latent print was seven. Howell was able to determine with certainty that the bloody fingerprint did not belong to Williams, the deceased and certain medical technicians who arrived on the scene shortly after the robbery/murder. This was so because none of the identification points on the bloody fingerprint matched their known prints.

In addition, the State presented evidence through Investigator John Vaughn, of the Walker County Office of the District Attorney, that defense counsel Eddie Jackson had, in fact, been informed of Howell’s findings. Vaughn testified that Howell told him that he had found two or three points of similarity between the fingerprints in question, but that he would not make a positive identification “with less than seven points.” Vaughn stated that he “related to Mr. Jackson” this information. We hold that the trial court’s ruling admitting Howell’s testimony was without error.

Ill

Appellant contends that the State argued facts which were not facts pertaining to the bloody fingerprint in its closing argument. There is no need to here set out those portions of the State’s argument because the trial court sustained appellant’s objections and also instructed the jury to “disregard that line of argument” thus curing any error. May v. State, 42 Ala.App. 401, 166 So.2d 860, cert. denied, 277 Ala. 700, 166 So.2d 865 (1963).

It should further be pointed out that statements of counsel in argument to the jury must be viewed as in the heat of debate, and such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of the verdict. Arant v. State, 232 Ala. 275, 167 So. 540 (1936); Hayes v. State, 395 So.2d 127 (Ala.Cr.App.), cert. denied, 395 So.2d 150 (Ala.1981). The prosecutor has, as does defense counsel, a right to present his impressions from the evidence. McQueen v. State, 355 So.2d 407 (Ala.Cr.App.1978). He may argue every matter of legitimate inference and may examine, collate, sift, and treat the evidence in his own way. Hayes, supra; McQueen, supra. We therefore find no error in this regard.

AFFIRMED.

All the Judges concur.

      . At the time Williams offered his testimony in this cause he had pleaded guilty to robbery of the Handy Dandy and was serving a twenty-year sentence. An indictment against Williams for murder arising out of the same transaction was still pending. Williams, though at all times admitting his complicity in the crime, insisted that it was the appellant who pulled the trigger killing the deceased.


text:
    Charles Fulton ETHERIDGE, Sr. v. STATE.
    4 Div. 858.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied March 23, 1982.
    Certiorari Denied, May 21, 1982 Alabama Supreme Court 81-553.

      George E. Trawick, Ariton, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

Possession of marijuana; fifteen years and a fine of $25,000.

The State’s evidence showed that on April 23, 1980, Dothan police officers, along with agents of the Alabama and Georgia Bureaus of Investigation, went to the farm of one Jack Hall in Houston County, Alabama, to execute a search warrant. The warrant had been issued by William G. Hause, deputy recorder of the Dothan Municipal Court, on affidavit of James G. Ward of the Alabama Bureau of Investigation.

Jack Hall’s premises consisted of a house and two barns, one of which was used as a mechanic’s shop. Two vehicles belonging to the appellant, a locked two and one-half ton International Harvester truck and a three-fourth-ton-Ford pickup truck with a locked camper top, were parked behind the shop. The appellant’s son and his daughter’s boyfriend were seated in the pickup truck when the officers arrived on the scene. Execution of the search warrant revealed 88 wrapped bales of vegetation weighing 1,620 pounds concealed in the appellant’s two trucks.

After the search had been initiated, appellant appeared on the scene. Agent James G. Ward testified that he observed the appellant drive up in a blue Jeep Wago-neer and get out of the vehicle. Ward stated that “when I turned to a point I saw Mr. Etheridge see my badge, and ... he turned in his tracks and started back toward his jeep.” Ward testified that he searched the jeep and found a paper sack with one ounce of marijuana in the glove compartment.

Appellant was arrested on the scene for possession of marijuana and his two trucks were moved to the Dothan Civic Center, inventoried, and guarded by Dothan police officers. The following day, the trucks and their contents were driven to the Enterprise Laboratory of the Alabama Department of Forensic Science and turned over to Mr. Charles F. Brooks. Brooks submitted the evidence to Mr. Joe Saloom, State Crime Laboratory Analyst, who tested eighty-five bales weighing a total of 1,596 pounds and found them to contain marijuana with a street value of 1.25 million dollars.

Agent Freddy Strength of the Alabama Bureau of Investigation testified that, prior to the date of the search, he had seen the appellant in the same three-fourth-ton Ford pickup truck on several occasions at the “old Municipal Airport” in Selma, a facility which Strength described as “closed down.”

Jack Hall testified that he had known the appellant since 1963 and had done work on numerous motor vehicles for him. Hall repaired the two trucks in question for appellant, but stated that he did not lock them. Hall said that on April 22, the day before the search, he went fishing and, when he returned, appellant was in his (Hall’s) yard working on a car. Appellant returned the next morning to finish working on the vehicle with tools he borrowed from Hall. Hall said that the International Harvester two and one-half ton truck had been parked on the premises since appellant left it there in 1979. The pickup truck had been on the premises for one day prior to the search. Hall stated that he did not know what was inside either vehicle.

At the conclusion of the State’s case, appellant moved to exclude the evidence on the ground that the State failed to present a prima facie case. He also renewed his objection, made earlier during the hearing on a motion to suppress the evidence, to the search and seizure of the marijuana. The motion was overruled and the defense presented its case.

The appellant called numerous friends and family members who testified to his good general reputation and his reputation for truthfulness. He testified in his own behalf that he was a pilot and had worked for many years in the aircraft industry, beginning as a mechanic. He stated that he had also been employed by Aero Corporation in Lake City, Florida, and his work in marketing required him to travel to foreign countries. He said that on April 23, he had two trucks at Hall’s repair shop, but stated that he did not put the bales of marijuana in the vehicles and he did not know how they got there.

I

Appellant contends that the search warrant was totally defective because it was issued by an official without legal authority-

The authority to issue search warrants is vested in “judges,” [including “municipal judges,” Ala.Code § 12-14-32 (1975)] and “magistrates,” Ala.Code § 15-5-1 (1975). The warrant in the present case was issued by William G. Hause, acting as “Deputy Recorder” of the Dothan Municipal Court. Mr. Hause testified that he was appointed deputy recorder on October 2, 1973, by Resolution No. 4581 of the Board of Commissioners of the City of Dothan, and that he had not been “reappointed” since that time.

A “recorder” is defined in T. 37, § 582 of the Code of Alabama (1940) as “any person authorized herein to hold municipal court.”

However, Amendment 328 of the Constitution of Alabama of 1901 (the Judicial Article) created a new unified court system designating city (recorder’s) courts as “municipal courts,” and giving the governing body of each municipality the option of abolishing its municipal court and transferring jurisdiction to a newly-created “district court,” or, in the alternative, re-establishing its municipal court under the new system. Ala.Const.Amend. 328, § 6.065.

Section 6.21(a) of the Amendment provided the following:

“All courts not herein authorized which are in existence at the time this article becomes effective shall retain their powers for four years, unless sooner terminated. by act of the legislature.”

The Judicial Article was ratified on December 27, 1973. Ala.Const.Amend. 328. Therefore, by virtue of § 6.21(a), supra, the court of v/hich Mr. Hause was deputy recorder could have remained in existence no later than December 27, 1977.

The record does not indicate whether the governing body of the City of Dothan elected to abolish its recorder’s court and transfer jurisdiction to a district court, whether it chose to re-establish its city court as a “municipal court” under the unified system, or whether Mr. Hause was ever recommissioned, and later elected, as a district or municipal judge. We have only his testimony that he was originally appointed deputy recorder on October 2, 1973, and has not been “reappointed” since then.

Rather than remand this cause for a determination of the jurisdictional questions regarding Mr. Hause’s position, we assume, without deciding, that his authority as deputy recorder did not extend past December 27, 1977, and that the search warrant he issued in that capacity in 1980 was invalid.

We hold, however, that the search in the present case was justified as a warrantless search by virtue of the probable cause plus exigent circumstances exception to the warrant requirement. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Simpson v. State, 51 Ala.App. 279, 284 So.2d 734 (1973).

Probable cause may be based solely on information obtained from an informant, provided the tip meets the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964): the veracity prong and the basis of knowledge prong.

In the case before us, Agent James G. Ward testified that he received a tip from an informant which led him to believe that contraband was present in appellant’s vehicles on the Hall property. Ward’s testimony during the motion to suppress indicated that his tip from the informant was the same as that to which he had sworn in the affidavit for the search warrant, which, omitting the formal parts, reads as follows:

“[0]n the premises known as Route One, Box 23, McAllister Road, Dothan, Houston County, Alabama, said residence consisting of a house trailer, a metal barn or building, two old frame houses and several old cars and a large white truck, or its Police Jurisdiction, there is now being concealed certain property, namely Marijuana, which is illegally kept, used and/or sold and that the fact tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: ‘I am James G. Ward of the State of Alabama, assigned to the Alabama Bureau of Investigations, presently working with drug violations. Yesterday I talked with a reliable informant. This informant has given me reliable information in the recent past, which after being checked has proven reliable. This informant told me that conversations in negotations with Charles F. Etheridge for the purpose of buying Marijuana indicate that the drugs are there and are at the above described residence and curtilage, and in the possession of a subject known to the informant as Jack Hall, whose name to the affiant is otherwise unknown.’ ”

Ward’s affidavit satisfies the veracity prong of the Aguilar test because it recites more than a mere conclusion that the informant was reliable. It states, “This informant has given me reliable information in the recent past, which after being checked has proven reliable.” This recitation establishes the underlying facts upon which the officer’s conclusion was based, and it more than meets the minimum information required by Neugent v. State, Ala., 340 So.2d 52 (1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977), wherein the affidavit indicated that the information came from “a person whose record of reliability for correctness has been good.” See also Waters v. State, Ala.Cr.App., 360 So.2d 347, cert. denied, Ala. 360 So.2d 358 (1978); Hatton v. State, Ala.Cr.App., 359 So.2d 822, cert. denied, Ala., 359 So.2d 832 (1977).

The affidavit also satisfies the second prong of the Aguilar test; it sets out the circumstances under which the informant learned that marijuana was present in the vehicles on the Hall premises. The tipster’s information came from the appellant himself; the informant had “conversations in negotiations with Charles F. Etheridge for the purpose of buying Marijuana.” The fact that the informant admitted to having negotiations for a marijuana buy also strengthens his credibility because the information imparted was against his penal interest. See Yielding v. State, Ala.Cr.App., 371 So.2d 951, cert. denied, Ala., 371 So.2d 962 (1979).

In addition to the information stated in the affidavit, Agent Ward testified at the suppression hearing that the informant told him that appellant stated that the marijuana was in his (appellant’s) truck. Ward also said that he had personally corroborated some of the details of the informant’s tip. He testified that he put the Hall premises under surveillance the day before the search and he observed appellant’s truck on the Hall property the morning of the search.

In our judgment, the facts and circumstances within the knowledge of Agent Ward and the other officers who conducted the search were sufficient to warrant a man of reasonable caution in the belief that an offense had been or was being committed. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), that is, that there was probable cause for the search.

Even though probable cause exists, there must also be exigent circumstances to excuse a warrantless search. Simpson v. State, supra; Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Exigent circumstances exist whenever an object to be searched is mobile or movable, such as an automobile. Reid v. State, Ala., 388 So.2d 208 (1980); Spencer v. Town of Gordo, Ala.Cr.App., 389 So.2d 182 (1980). Here, the fact that the marijuana was found in appellant’s two trucks, both of which were capable of being moved, provides the urgency necessary to excuse a search without a warrant.

II

Approximately two months prior to trial appellant filed a motion to produce, requesting, among other things, the opportunity to submit “a similar quantity of the material tested by the State Toxicologist’s Office” to an independent laboratory for testing and analysis. The motion was granted.

One week later, appellant moved to dismiss the indictment, arguing that the State failed to comply with the order to produce and had destroyed the evidence. On the date set for trial, appellant filed a plea in abatement alleging that he had been denied access to the physical evidence which would be introduced by the State. The court denied the motion and overruled the plea, finding that, although some of the bales of plant material had been destroyed, eighteen full bales were intact and samples of all the bales had previously been made available to the appellant for testing.

We find no error in the trial court’s ruling in this regard. Appellant had a right to a' sample of the allegedly prohibited substance, Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973); Powers v. State, 49 Ala.App. 690, 275 So.2d 369 (1973), and he was provided with everything to which he was entitled under the law.

III

Appellant offered evidence of his good reputation for truth and veracity through the testimony of his cousin, Sharon Ether-idge Strickland. On cross-examination of Ms. Strickland, the following occurred.

“Q. All right. You say you know of his reputation. Have you ever heard that he was jailed in South America?
“A. No.
“Q. Never heard that? Ever heard that he was involved in a smuggling ring, smuggling in marijuana? Have you ever heard that?
“A. Yeah.
“Q. Have you heard, you have heard that? Have you heard recently that he was arrested for conspiracy to smuggle in ten tons of marijuana in Panama City, Florida and the Tallahassee area?
“MR. TRAWICK: We object to that, may it please the Court. Counsel knows what he is referring to is an indictment since this one and arising out of the same evidence. And, I have it in my briefcase, documented evidence to prove to this Court. And we move for a mistrial and assign as grounds the remarks that Counsel has just made.
“MR. SORRELLS: Judge, we can reply to that. I don’t know if it arises out of the same situation, I don’t think it does. But, be that as it may, if he will look at the law it is true that you must limit these questions to before the arrest except in one exception. When he places a witness on the stand to testify as to truth and veracity, because the Court has said that when he does that, he is testifying about his present reputation for truth and veracity, because he has testified about that. When that is done, the State is allowed to ask questions up to the time of trial when is asked about truth and veracity not general reputation. We will be glad to show you that in McElroy and it is in all the cases that when you open the door by asking about truth and veracity, then you open it up to the day of the trial, right up to the very day of the trial.
“THE COURT: Okay. Let me see the citation.
“MR. SORRELLS: All right. I will be glad to.
“(Thereupon, Mr. Sorrells left the presence and hearing of the Court Room in order to secure the citation in question. After a short period of time, he returned to the presence and hearing of the Court Room, and the following proceedings were had, to-wit:)
“MR. SORRELLS: Judge, I cite to you McElroy’s 26.02, Subsection 14: If a witness testifies to another’s good general reputation, only with respect to truth and veracity, for the purpose of supporting such other’s credibility as a witness, the supporting witness may be asked on Cross Examination whether he, at any time, heard rumors derogatory to such other’s truth and veracity. We submit that is the law in the case. It certainly applies on his credibility.
“THE COURT: (Studies the citation in question.) Where were you reading from?
“MR. SORRELLS: I am sorry, Judge. Right here, this paragraph right there. That section.
“THE COURT: (Studies the citation in question.) Okay. I overrule you. Go ahead.
“MR. TRAWICK: We except.”

Although it is proper to question a witness, who has testified to another’s good reputation for truthfulness, about whether he has heard rumors derogatory to the other, the rumors must relate to the specific trait of truthfulness. C. Gamble, McElroy’s Alabama Evidence, § 26.02(14) (3d ed. 1977).

In our judgment, whether appellant was arrested for conspiracy to smuggle marijuana was not directly related to his truth and veracity. However, to be timely, an objection must be made as soon as the ground for the objection becomes apparent. Smith v. State, Ala.Cr.App., 344 So.2d 1239, cert. denied, Ala., 344 So.2d 1243 (1977).

Here, appellant did not object to the two previous questions regarding whether the witness had heard appellant “was jailed in South America” or “was involved in a smuggling ring, smuggling in marijuana,” both of which were non-germane to the trait of truthfulness. In our opinion, appellant’s objection and motion for mistrial were untimely and were, therefore, properly overruled.

IV

The evidence introduced by the State was sufficient to present a prima facie case of possession of marijuana. Although appellant disclaimed any knowledge of the marijuana, the State established that over 1500 pounds of the prohibited substance were found in his two vehicles.

Knowledge of the presence of a controlled substance may be proved by circumstantial evidence, see Reed v. State, Ala.Cr.App., 368 So.2d 326 (1979); Henderson v. State, Ala.Cr.App., 347 So.2d 540, cert. quashed, Ala., 347 So.2d 543 (1977). Here, appellant’s ownership of the two trucks containing the contraband, coupled with the fact that marijuana was also found in the glove compartment of his jeep and the fact that he “turned in his tracks” at the recognition of law enforcement officers on the Hall premises furnish circumstantial evidence from which his guilty knowledge may be inferred. See Smith v. State, Ala.Cr.App., 351 So.2d 668, cert. denied, Ala., 351 So.2d 675 (1977); Roberts v. State, Ala.Cr.App., 349 So.2d 89, cert. denied, Ala., 349 So.2d 94 (1977). Under these circumstances, the trial court properly submitted the ease to the jury to resolve the disputed questions of fact.

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

AFFIRMED.

All the Judges concur.