text:
    Claude J. CRUMPTON v. STATE.
    1 Div. 127.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied June 23, 1981.

      Barry Hess and Daniel L. McCleave of Hess, Atchison & Stout, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Murder in the second degree; fifteen years.

Appellant was indicted for the January 9, 1979, unlawful killing of his wife by shooting her with a pistol. He pleaded not guilty to the charge and later amended his plea to not guilty by reason of insanity. The jury found appellant guilty of second degree murder and the trial court set sentence in accordance with the jury’s verdict.

The evidence presented by the State showed the following:

Mrs. Fay Howell testified that appellant and his wife had been her next-door neighbors for eight years. She stated that approximately 1:30 P.M. on January 9, 1979, appellant “came running into my house and was, you know, real upset and said he had killed his baby and then he changed it. He said, ‘Lou’s killed herself. She said she didn’t want to live any more. Come help me.’ ” Appellant told Mrs. Howell not to call his son because “he’ll think I did it and he’ll kill me.”

On cross-examination, Mrs. Howell testified that appellant had a good reputation in the community, that he was truthful, hardworking, peaceful and law-abiding. Mrs. Howell was aware appellant and his wife were having domestic problems prior to the incident in question and that a divorce suit was pending.

Lane Winfield, a paramedic with the Prichard Fire Department, testified that he arrived at appellant’s residence and found the deceased lying in the front yard on her stomach. Mr. Winfield stated that his examination of the deceased revealed no pulse or respiration.

John D. Powell of the Prichard Police Department testified that he went to appellant’s residence on the date in question and observed the deceased lying in the yard and the appellant walking around wringing his hands saying, “My baby’s been shot.”

In response to Officer Powell’s questions, appellant said that his wife, “had shot herself,” and he led Officer Powell to the gun at the end of the kitchen table. Officer Powell stated that he did not see any blood or signs of a struggle near the gun. Appellant stated that his wife had the gun for protection. Appellant was placed under arrest and taken to the police station.

On cross-examination, Powell testified that he had known appellant for twenty years and that appellant had a good reputation in the community.

Detective Frank Dees of the Prichard Police Department testified that he received a .22 caliber pistol at the scene and took it, along with the deceased’s clothing, to the toxicologist. Detective Dees stated that the pistol contained three or four spent shells and one or two live rounds. It was stipulated that Mrs. Crumpton’s death was caused by a gunshot wound which entered her lung. It was further stipulated that the deceased was shot three times, twice in the arm and once in the back of the shoulder. The fatal bullet traveled through the deceased’s arm and into her lungs.

Ms. Althea Lewis testified that she was friends with appellant and his wife and had known them for approximately ten years. Ms. Lewis recalled that in a conversation she had with appellant during the first part of January, 1979, appellant told her that he and his wife were going to have to go to court and he “didn’t feel that it was right for him to have to move out and give up everything that he owned, you know, and worked for, and before he would do that, that he would kill Lou.... ”

On cross-examination, Ms. Lewis stated that when appellant said he would “kill her (Lou) first,” it did not sound like him and she “didn’t think he would do it.”

Ms. Inez Crumpton, a sister of the deceased, testified that she was aware that the deceased had initiated a divorce proceeding against appellant. Ms. Crumpton stated that in a telephone conversation with appellant two or three months prior to the shooting, appellant told her the deceased “would die before he moved out of the house.” Ms. Crumpton stated that she did not believe appellant at the time.

Detective J. R. Rigby of the Prichard Police Department, talked with appellant at the police station. Appellant was given his Miranda warnings and voluntarily signed a waiver and made a statement. In the statement appellant adhered to his story that the deceased “shot herself.”

On cross-examination, Detective Rigby stated that he found appellant’s house orderly. There did not “appear to have been any big fight going on in the place.”

Richard D. Carter, a Firearms Examiner with the Department of Forensic Sciences, verified that the .22 caliber pistol recovered from the scene was the weapon that fired the fatal shot which struck the deceased. The deceased’s robe, which contained three bullet holes, was also introduced. Mr. Carter said that in his opinion the revolver was fired from a distance of one-half inch, two inches and twelve inches, respectively, for the three gunshot wounds.

At the conclusion of Mr. Carter’s testimony the State rested its case. The defense motion to exclude the State’s evidencé was denied and the defense presented its case.

Appellant testified in his own behalf that he and the deceased were married in June, 1960. He stated that the deceased had filed for a divorce in the latter part of 1978, and that he “didn’t want one.” Appellant stated that after the divorce proceedings were filed, he was of the impression “good progress” was being made towards a reconciliation. On the Saturday before the shooting appellant said that he and his wife “went out to a steak house and had supper and then we went clubbing until 2:00 o’clock in the morning.” The following day he and the deceased went to his sister’s house and “told her everything was going to be all right.”

On the day of the shooting appellant testified that he got up around 11:00 A.M. The deceased had “gotten up around 7:00” A.M., left the house, and had come back about 11:30 A.M.

Appellant testified that while the deceased was fixing his lunch, she started an argument which lasted one and a half or two hours. The deceased told appellant, “I’m doing what I want to do. You always accused me of things so I’m just telling you I’m doing them now.... If you don’t like it you can just kill me.” Appellant stated that the deceased had been involved with several men during the last four or five years. “One time I caught her with one man, and, you know, actually caught her in there.” Appellant testified that his wife’s involvement with other men had been a constant source of friction between them. He stated that her past encounters were “all brought up” when the two were arguing. The last thing appellant remembered clearly before the shooting occurred was the deceased’s telling him “it wasn’t any of my business even if she decided she wanted to go with a nigger.”

When questioned about his pending divorce from the deceased, appellant stated that his wife’s filing for exclusive possession of their house “didn’t make me mad, it just didn’t help my feelings.” Appellant testified that he could not remember telling Inez Crumpton he would have the deceased “dead” before she put him out of the house. Appellant also denied ever telling Althea Lewis he would “kill Lou before she makes me get out of that house.”

However, appellant did testify that if he told Mrs. Howell, “I shot my baby, I killed my baby, Lou shot herself” then, “I said it.” Appellant stated that he remembered very little about the incident, but did remember some people coming to the scene.

Appellant denied shooting the deceased. He said that he told “the truth” to Dr. Brown, a psychiatrist whom he consulted on the recommendation of his attorney after being charged with murder. He thought he told Dr. Brown that the deceased shot herself. “I don’t remember if she shot herself, but I say she shot herself. I don’t feel responsible.”

Ms. Kay Phillips, appellant’s sister, testified that she talked with the deceased on the Sunday night before she died and was of the opinion appellant and the deceased were getting back together. Ms. Phillips testified that appellant loved the deceased and was dependent on her.

Vincent P. Bitowf, appellant’s former supervisor at the Alabama Shipbuilding and Dry Dock Company, testified that he knew appellant very well and “found him to be a very humble man, a hard working man.” He stated that appellant had a good reputation and was truthful.

Daniel J. Maloney, also a co-worker of appellant, testified that he had known appellant at the Alabama Dry Dock since 1946, and that appellant’s reputation was very good. Mr. Malone knew appellant to be truthful and “absolutely nonviolent.”

Charles E. Gunter, appellant’s immediate supervisor, testified that he had known appellant approximately thirty years. Mr. Gunter stated that appellant had a good reputation and was truthful.

Dr. Claude L. Brown testified that he saw appellant in his office twice after the shooting. Appellant told Dr. Brown that his marriage to the deceased had been a very mixed one in terms of gratification and frustration. The primary problems were brought on by the deceased’s consistent infidelity over the years. Although appellant reproached the deceased concerning her behavior, he made no move to end their marriage. Four months prior to her death the deceased indicated that she was going to get a divorce. Appellant became extremely disturbed and increasingly unhappy at the thought of a divorce.

Dr. Brown stated that appellant gave him the following version of the shooting:

On the day of her death the deceased taunted appellant a great deal about seeing other men, living her own life and getting a divorce. Appellant felt hopeless and shot his wife with a .22 caliber pistol he had in his pocket. Immediately afterwards, he was overcome with terror and remorse and went to a neighbor to get help for the deceased.

Dr. Brown testified that there was no history of any relevant medical or psychiatric disorder in appellant’s background. “Mr. Crumpton does not demonstrate any specific diagnosible mental disease. He does not have a mental disorder.”

Dr. Brown explained that, psychologically, appellant viewed the deceased as a replica of his mother, and himself as the infant in their relationship. He stated that appellant made “a kind of unconscious treaty or pact” with the deceased. Dr. Brown said, “This pact being that I will stay with you forever regardless of what you do as long as you stay with me.” Dr. Brown stated that the “pact” was working until the deceased, four months prior to her death, interjected a new element, the divorce, which ruined the balance of the equation. “This is tantamount in his unconscious to mother’s leaving, which means death ... he felt this whole process is really being tantamount to his own annihilation.” Then, out of an unconscious belief that it is “better to do it yourself than to have it done to you,” appellant shot the deceased.

At the conclusion of Dr. Brown’s testimony, the defense rested its case.

I

The State’s evidence was sufficient to prove appellant’s guilt beyond reasonable doubt. Section 13-1-70, Code of Alabama 1975. Although the evidence was conflicting in certain instances, any differences of fact were resolved by the jury. It is not the function of this court to re-weigh the evidence. We are required to review the evidence presented in the light most favorable to the State, Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975), and not to substitute our judgment for that of the jury, Cumbo v. State, Ala.Cr.App., 368 So.2d 871, cert. den., 368 So.2d 877 (Ala. 1979).

II

Appellant maintains that the trial court committed reversible error when it gave the following statement of the law in its oral charge to the jury:

“As you know, there is conflict of testimony in this case. Of course, you must determine which witness you will believe and which witness you will not believe. However, I will tell you that every person who comes into this or any other courtroom in this State, takes the oath and takes this stand, is presumed to speak the truth. It is your duty as the jury in this case to reconcile the testimony of all of the witnesses with that of being the truth if it is possible for you to do so. As the sole triers of the facts, however, if you are unable to do this then you and you alone must decide which witness you are to believe and which witness you are not to believe, and if you believe any witness has willfully sworn falsely to a material fact, as the sole triers of the facts in this case you may disregard any person’s testimony who has sworn falsely to any material fact. The reason for this being simply the law would presume that if a person would testify falsely in any one material aspect the law would presume that person would testify falsely in any other material aspect. So, like all of the other issues, you must determine which witness you are to believe and which witness you are not to believe.
“In weighing the testimony of the witnesses who took the stand you may consider many things, the demeanor of the witness on the stand, that is, his ability to see and know the facts about which he has testified; ■ the relationship which he bears to the party; their interest in the suit; the manner in which the witness may be affected by your verdict; and, of course, any bias or prejudice which any witness may possibly possess.
“By way of a summary it has been said, and I think correctly so, that you are not required to leave your common sense outside of the jury room when you commence your deliberations. On the contrary, the law calls upon you 12 reasonable prudent men to use all of you combined wisdom, experience and common sense in sifting through the evidence, accepting the true and, of course, rejecting the false.” (Emphasis added.)

Appellant excepted to this portion of the oral charge as follows:

“Next, Your Honor charged the jury that you may disregard any witness’ testimony who has willfully sworn falsely to a material fact. The law presumes all of his testimony is false. We object to that in that law—
“THE COURT: I don’t think I said that, Barry.
“MR. HESS: I may have written it down wrong—
“THE COURT: You did.
“MR. HESS. — but that’s the way I understood it.
“THE COURT: I said that the law presumes all witnesses speak the truth, but if any witness has sworn falsely to a material fact they may if they wish disregard that person’s testimony. The theory of law being that if one would testify falsely in any one material aspect the law would presume he would testify falsely in any other material aspect, but go ahead.
“MR. HESS: We submit that the law does not presume that, it merely permits the jury to draw that conclusion if they see fit and this is falsely telling them that the law in fact presumes it to be totally false.”

Appellant contends that the oral charge was defective in two ways: first, that the falsus in uno, falsus in omnibus (false in one thing, false in everything) instruction, while stated correctly once, was stated incorrectly twice because the trial court failed to instruct that the false swearing must be “willful;” and second, that the maxim is not a mandatory legal presumption but merely a permissible aid which the jury may use in weighing the evidence.

Initially, we note that the trial court’s oral charge must be considered and construed as a whole and in connection with the evidence, and if, when so construed, it asserts a correct proposition applicable to the evidence, a disconnected part or sentence is not reversible error. Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. den., 358 So.2d 791 (Ala.1978); Johnson v. State, 33 Ala.App. 159, 31 So.2d 667, cert. den., 249 Ala. 433, 31 So.2d 670 (1947).

An exception to the oral charge reaches only what the court did say, Grisham v. State, 147 Ala. 1, 41 So. 997 (1906). The objector or exceptor must select and recite, or state the substance of that part of the court’s instruction to which the objection is made or the exception is taken. Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); Walker v. State, 269 Ala. 555, 114 So.2d 402 (1959); Crear v. State, Ala.Cr.App., 376 So.2d 778, cert. den., 376 So.2d 788 (Ala.1979); Oates v. State, Ala.Cr.App., 375 So.2d 1285 (1979). An exception to a charge must be specific and must quote the court’s approximate language so that the trial judge will have an opportunity to correct the error, if any. Orr v. State, 40 Ala.App. 45, 111 So.2d 627, aff’d, 269 Ala. 176, 111 So.2d 639 (1959).

An exception to a charge should set out the objectionable portion, and not merely refer to the charge on a particular subject. McGhee v. State, 178 Ala. 4, 59 So. 573 (1912); Shields v. State, 52 Ala.App. 690, 296 So.2d 786, cert. den., 292 Ala. 749, 296 So.2d 793 (1974). It is the accused’s duty in excepting to separate the bad part from the good. Treadwell v. State, 168 Ala. 96, 53 So. 290 (1909). An exception merely describing the subject treated by the trial court in an oral charge is bad. Ex parte Cowart, 201 Ala. 55, 77 So. 349 (1917).

Based on the foregoing principles of law it is our opinion that appellant’s exception did not adequately apprise the trial judge of the omission of the “willful” element of false swearing. In fact, in repeating the objectionable portion of the charge to the court, appellant stated that the trial judge “charged the jury that you may disregard any witness’ testimony who has willfully sworn falsely to a material fact.” (Emphasis added). Appellant’s rephrasing, in which he recited what he thought he heard the trial judge charge, correctly states the very law appellant now complains was not stated. In other words, there was nothing in appellant’s exception which alerted the trial judge to the omission of the word “willful” from the instruction. On the contrary, appellant’s exception that the trial judge “charged” on willful false swearing did nothing more than reinforce to the judge that he had correctly charged the law on this point.

Thus, we hold that appellant’s exception was insufficient to focus the trial judge’s attention on any defect or misstatement in his instructions on willful false swearing, or to afford him an opportunity to make corrections on this matter. Exceptions to an oral charge cannot be made for the first time on appeal. Hall v. State, Ala.Cr.App., 375 So.2d 536 (1979).

Even assuming that appellant had properly excepted to the charge, and we hold that he did not, the trial court’s instruction was not so defective as to require reversal. The trial judge did instruct that the false swearing must be done “willfully,” Pinkerton v. State, 246 Ala. 540, 22 So.2d 113 (1945); Montgomery v. State, 17 Ala.App. 469, 86 So.2d 132, cert. den., 204 Ala. 389, 85 So. 785 (1920), although he did not repeat the word “willfully” each time in connection with the phrases “sworn falsely” or “testify falsely” in his charge. Taken in context with the court’s entire charge on this subject, we do not find that appellant’s substantial rights were injuriously affected.

Appellant did correctly except to that portion of the charge stating “the law would presume that if a person would testify falsely in any one material aspect the law would presume that person would testify falsely in any other material aspect." Appellant, as can be seen from the record, excepted to what “the law presumes.” The trial court’s attention was thus focused in a sufficient manner on the claimed defect in his oral charge.

Appellant is correct that a fal-sus in uno charge requiring, instead of permitting, the jury to disbelieve a witness is error. See Lowe v. State, 88 Ala. 8, 7 So. 97 (1889); Watson v. State, 19 Ala.App. 267, 97 So. 118 (1923); Butler v. State, 16 Ala.App. 234, 77 So. 72 (1917). The charge must be phrased in permissive (“may disregard”) rather than mandatory (“must disregard”) terms. Lowe v. State, supra. See generally Annot. 4 A.L.R.2d 1077 (1949).

It is our judgment that the trial court’s additional sentence by way of explanation, and its use of the word “presume,” did not amount to a mandatory falsus in uno, falsus in omnibus charge. The charge must be taken and construed as a whole, Van Antwerp v. State, supra. We note that immediately preceding the claimed objectionable portion of the charge, the court stated:

“As the sole triers of the facts ... you and you alone must decide which witness you are to believe... . ”

Likewise, immediately following the part to which appellant excepted, the court stated:

“So, like all of the other issues, you must determine which witness you are to believe and which witness your are not to believe.”

When the foregoing statements are considered, along with the court’s instruction that a willfully false swearing witness may be disregarded, we believe the clear impact of the whole charge to be permissive rather than mandatory. Therefore, we find no reversible error.

Ill

Next, the appellant complains that the trial court should have charged the jury on the law of mental disease or defect, a defense outlined in section 13A-3-1, Code of Alabama 1975, as amended.

The new Criminal Code, T. 13A, which includes section 13A-3-1, applies only to offenses committed on or after its effective date. Section 13A-1-7, Code of Alabama 1975. All of title 13A, including section 13A-3-1, took effect on January 1, 1980. Acts of Alabama No. 79-125 (May 29,1979), section 13A-1-11, Code of Alabama 1975, as amended. The offense in the instant case occurred on January 9, 1979. Therefore, the law of mental disease or defect contained in section 13A-3-1, supra, has no application here.

We have examined the record and have found no error prejudicial to appellant. Therefore, the judgment of conviction by the Mobile Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte Claude J. CRUMPTON. (Re: Claude J. Crumpton v. State of Alabama).
    80-676.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: DeCARLO, Judge.

text:
    Billy Alfred FLOWERS v. STATE.
    6 Div. 344.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied June 23, 1981.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Robbery; fifty years.

Eyewitness accounts conclusively demonstrated that appellant was one of the two robbers who walked into Hardee’s on Fourth Avenue North in Birmingham, Alabama on September 16, 1979, and who, at gunpoint, forced employees there to empty the safe and cash registers of approximately $1340.25. Eyewitness accounts further demonstrated that appellant was the robber who shot one of the customers in the back as the customer was trying to get out of appellant’s way.

Each element necessary to sustain a conviction for robbery was firmly established. Morris v. State, 97 Ala. 82, 12 So. 276 (1893); Robinson v. State, Ala.Cr.App., 337 So.2d 1382 (1976); Tarver v. State, 53 Ala.App. 661, 393 So.2d 161 (1974). The testimony of the victim, Ms. Scottie Hill, alone was sufficient to establish a prima facie case. Arnold v. State, Ala.Cr.App., 348 So.2d 1092, cert. den. 348 So.2d 1097 (Ala.1977). Appellant did not present any evidence in his own behalf.

I.

The first issue raised on this appeal concerns the identification of the appellant. The trial court entertained substantial voir dire testimony in addition to the testimony presented before the jury dealing with the identification process. The evidence presented at trial was substantially as follows:

Ms. Zanis Harris testified on voir dire that she saw the two men who robbed Har-dee’s. She made a positive in-court identification of appellant as one of the two men she saw. From her vantage point at the grill, Ms. Harris was able to see appellant’s face for approximately two minutes while he struggled with a white customer behind the salad bar. Ms. Harris stated that nothing blocked her view of appellant’s face while he was struggling with the customer, until the appellant’s gun was fired.

Ms. Harris testified that Sgt. J. C. Woods of the Birmingham Police Department showed her seven or eight pictures of black males three or four weeks after the robbery. Ms. Harris stated that she identified appellant’s picture on her second time through the pictures. No one was with her except Sgt. Woods. She stated that Sgt. Woods did not indicate or suggest that appellant was in the group of pictures she examined. Ms. Harris further stated that she picked appellant’s accomplice out of a lineup, but that she did not pick appellant out of a lineup. She testified that when she saw appellant at Hardee’s he had a full beard, moustache and bushy hair. He was wearing dark clothing and a toboggan. Ms. Harris estimated appellant’s height at five feet, ten inches.

Mr. William Gary Snellings testified on voir dire that he was the customer appellant shot in the back in Hardee’s on the date in question. He made a positive in-court identification of appellant as his assailant. He stated that he got a good look at appellant’s face during the few seconds of the encounter. Mr. Snellings verified that appellant was wearing dark clothes and a toboggan, and had a beard and mous-tache.

Snellings also testified that Sgt. Woods showed him pictures on two occasions and that he did not pick out a picture of appellant on either occasion. He did state that he “picked out one” the second time but that he “wasn’t sure about it.” Mr. Snell-ings further stated that he viewed two lineups consisting of black males and that he could not positively identify appellant on those occasions. Mr. Snellings testified that when he saw appellant being led into the courtroom he was absolutely positive appellant was the man who shot him.

Ms. Scottie Hill testified on voir dire that she was the manager on duty at Hardee’s on the afternoon it was robbed. She made a positive in-court identification of appellant as one of the two men she saw approaching the side entrance of the store from the parking lot. She stated appellant was wearing navy blue pants and a blue floral shirt. Both appellant and his accomplice had on similar hats and were wearing wigs. Ms. Hill stated that appellant was “five nine to five ten” in height. Ms. Hill testified that she got a good look at appellant’s face for approximately ten seconds and that she told one of the workers “to get a good description of these two guys.”

Ms. Hill saw appellant’s accomplice place an order and then jump across the counter, point his pistol and say, “Don’t move.” Appellant’s companion forced Ms. Hill to open the safe. She heard two shots fired during this time and heard appellant say to “hurry up.” Appellant’s partner also got the money out of the registers and went out the back door.

After the robbery, Ms. Hill was shown photographs of black males on two occasions and viewed three lineups of black males. Ms. Hill selected appellant’s partner as one of the robbers at the third lineup she viewed, and selected appellant as the other robber the second time she was shown photographs. Ms. Hill stated that she was not influenced in her selection by Sgt. Woods or any other person.

At the conclusion of these three witnesses’ voir dire testimony, defense counsel moved to suppress any identification of appellant by Mr. Snellings on the ground his testimony was tainted. The trial court decided to hear the testimony of Sgt. J. C. Woods before ruling on this motion. The jury was returned to the courtroom and Ms. Scottie Hill was called as the State’s first witness.

Ms. Hill’s testimony before the jury was substantially the same as her voir dire testimony.

Sgt. J. C. Woods next testified on voir dire that he showed seven photographs individually to Ms. Zanis Harris, Ms. Gracie Sayles, Ms. Scottie Hill and Mr. Snellings at the Birmingham City Jail on November 28, 1979. Sgt. Woods stated that three women each identified the photograph of appellant as one of the robbers, but that Mr. Snellings did not select a photograph.

Sgt. Woods conducted a lineup on November 30, 1979, which included appellant. Sgt. Woods stated that Ms. Hill identified appellant at the November 30th lineup.

Following Sgt. Woods’ voir dire, the trial court ruled that Mr. Snellings’ identification of appellant was to be suppressed from jury consideration.

Ms. Gracie Sayles testified on voir dire that she was a cashier at Hardee’s when appellant and his confederate committed the robbery. Ms. Sayles made a positive in-court identification of appellant as one of the two robbers. Ms. Sayles testified in detail about appellant’s physical appearance on that day. Her testimony was similar to the other eyewitness accounts. Ms. Sayles’ testimony demonstrated that she had ample opportunity to observe appellant’s face during the robbery. She testified that all the lights were on in Hardee’s during the robbery and that “they were working fine.” She stated that she identified appellant’s picture from photographs Sgt. Woods had shown her.

The testimony of Ms. Zanis Harris and Ms. Gracie Sayles before the jury was substantially the same as their voir testimony concerning their identification of appellant.

Sgt. J. C. Woods testified before the jury that Ms. Hill viewed three physical lineups, that appellant was present in the third lineup only, and that Ms. Hill picked him out of the lineup at that time. Sgt. Woods further stated that Ms. Hill was shown photographs on two occasions, that appellant’s photograph was included on the second occasion only, and that Ms. Hill selected appellant’s photograph at that time.

Sgt. Woods testified that Ms. Sayles attended two physical lineups, that appellant was not present in either lineup, and that Ms. Sayles did not pick out a subject on either occasion.

Sgt. Woods next testified that Ms. Harris attended one physical lineup and selected appellant’s confederate as one of the robbers on that occasion.

On review of all the testimony dealing with the identification of appellant, we are impressed with the degree of caution exercised by the learned trial judge in avoiding any possible error. The pre-indictment lineups and photographic arrays were neither unnecessarily suggestive nor conducive to irreparably mistaken identification. Each witness who identified appellant, either from the photographic array, the physical lineup, or both, testified that he or she was in no way influenced in making the selections. The confrontation procedures simply were not suggestive. See Williamson v. State, Ala.Cr.App., 384 So.2d 1224.

From the uncontroverted testimony of the witnesses, it is apparent that every precaution was taken to insure that their identifications would not be tainted. No witness was exposed to a one-man showup, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), or to a one-photograph display, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Even had the confrontation procedures been suggestive, which we hold they were not, reliability remains the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, supra. The United States Supreme Court has set out the following five factors to be considered in determining reliability: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; Neil v. Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382. Applying these five criteria to the case before us, we conclude that the identification testimony presented to the jury was proper.

II

Appellant maintains that the trial court erred in admitting the photographic array which Sgt. Woods presented to the three female witnesses who identified appellant. The seven color photographs depicted appellant and the other subjects in the standard frontal and profile views. Appellant objected to the introduction of the photographs on the ground that they were “highly suggestive.”

Appellant relies on Holsclaw v. State, Ala.Cr.App., 364 So.2d 378, cert. den. 364 So.2d 382 (Ala.1978) for authority that the photographic array should not have been admitted. In Holsclaw this court adopted the three-prong test, originally set out in United States v. Harrington, 490 F.2d 487 (2d Cir. 1973), for determining whether “mug shot” photographs should be admitted. We ruled that these types of photographs should not be admitted unless:

“1. The Government must have a demonstrable need to introduce the photographs; and
“2. The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and
“3. The manner of introduction at trial must be such that it does not draw particular attention to the source or implication of the photographs.” Holsclaw, supra at 380.

Because the facts in Holsclaw are distinguishable from the present facts we find appellant’s reliance on that case misplaced.

In Holsclaw the appellant’s photograph depicted a placard hanging from the appellant’s neck and bearing the following words and numbers:

“Police Department
Huntsville, Alabama
1-13-75
056557.”

This court found that the prosecution failed each prong of the Harrington test in introducing the photographs. Holsclaw, supra at 381. In addition, the appellant in Holsclaw did not place his identity in issue.

The facts in the case at bar, however, are different. Appellant’s identity and the identification procedures employed remained in issue during the entire trial. Although appellant did not take the stand, as in Williamson v. State, supra, a major portion of his attack on cross-examination of the State witnesses centered on the question of his identity. Questions concerning not only the photographic array, but also the physical lineup procedures, were numerous. Clearly, appellant’s identity was centrally in issue despite the in-court identifications by three female witnesses.

Next, prior to the admission of the photographs, the Birmingham Police Department words and numbers on each photograph were completely covered with white stickers at the instruction of the trial court. See United States v. Rixner, 548 F.2d 1224 (5th Cir.), cert. den. 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 248 (1977); United States v. Davis, 487 F.2d 112 (5th Cir. 1973), cert. den. 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974).

Moreover, before the photographs were admitted, Ms. Hill, Ms. Harris and Ms. Sayles each testified before the jury, without objection, that they looked at the photographs at the Birmingham City Jail when they identified appellant as one of the robbers. Further, these three witnesses, again in front of the jury, went through the process of selecting appellant’s photograph from the seven photographs they had been shown by Sgt. Woods at the jail. There was no objection to this procedure.

Thus, in applying the three-prong test of Harrington to the present facts, we find that the State had a demonstrable need to introduce the photographs. Williamson, supra. Second, because the photographs had been “doctored” so that the prejudicial words and numbers were not visible to the jury, it cannot be said that the photographs themselves implied appellant had a prior criminal record. Third, since so much testimony concerning the place and purpose of showing the photographs came in without objection prior to their introduction, it cannot fairly be said that their actual introduction was done in such a manner as to draw particular attention to the source or implications of the photographs.

Finally, based on the strength of the State’s evidence in this case, particularly the in-court identifications by the three female eyewitnesses, if the admission of the photographic array constituted error, it was harmless error at most. Rixner, supra, at 1226; Rule 45, ARAP.

Ill

The appellant complains that his constitutional rights were violated when the State used its peremptory strikes to exclude blacks from the jury. This question was definitely answered in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972); Carpenter v. State, 404 So.2d 89 (Ala.Cr.App.1980).

IV

During the testimony of Ms. Zanis Harris, the trial court found it necessary to bring the courtroom to order due to various disturbances. From the record, we quote:

“THE COURT: I’m sick and tired, I watched it all yesterday afternoon. I watched the witnesses. I’ve already called on one of the attorneys (the Assistant District Attorney) for giggling. I’m not going to allow people sitting back there as spectators to nod, disagree, smile, and indicate their disgust or their affirmation, whichever it be. When I hear it again they are going out in the hall.”

There was no objection to this admonition, nor would the admonition have been error if objection had been made. The comment did not reflect adversely on either party. The trial judge is more than a mere moderator, Sprinkle v. State, Ala.Cr.App., 368 So.2d 554 (1978), cert. quashed, 368 So.2d 565 (Ala.1979), and it is his duty to maintain order and decorum in a trial. Lockett v. State, 50 Ala.App. 58, 276 So.2d 643 (1973).

V

Appellant insists that the indictment was defective in that it named the victim as “Scottie Hill,” but stated that the property was taken “from his person and against his will, by violence to his person or by putting him in such fear.” The only objection to the indictment came after the jury was struck, by appellant’s oral motion to quash the indictment. Appellant had pleaded not guilty at arraignment three months earlier.

As this court held in Edwards v. State, Ala.Cr.App., 379 So.2d 336 (1979), cert. den., 379 So.2d 339 (Ala.1980).

“Generally, a demurrer is the proper procedure to raise defects in an indictment. Andrews v. State, 344 So.2d 533 (Ala.Cr.App.), cert. denied, 344 So.2d 538 (Ala.1977).
“Since a plea to the merits admits the validity of an indictment, a demurrer filed after arraignment and after a plea of not guilty is properly stricken. Underwood v. State, 248 Ala. 308, 27 So.2d 492 (1946). The right to file a demurrer is waived unless the demurrer is filed before a plea to the merits. Holloway v. State, 37 Ala.App. 96, 64 So.2d 115 (1953). If an indictment is merely voidable and subject to demurrer, the failure to demur will prevent appellate review of the indictment’s shortcomings. Williams v. State, 333 So.2d 610 (Ala.Cr.App.), affirmed, 333 So.2d 613 (Ala.1976).”

Thus, there is nothing before us to review on this point.

VI

During the examination of Ms. Scottie Hill the following question and answer are recorded:

“Q. Let me ask you, the other individual you picked out, was that the same man that came out there with Flowers and robbed you at Hardee’s on the 16th?
“A. No. That was from another robbery.”

We note that appellant’s objection came after the answer, and thus was properly overruled as untimely. Woodard v. State, 253 Ala. 259, 44 So.2d 241 (1950); Kendricks v. State, Ala.Cr.App., 378 So.2d 1203 (1979). There was no motion to exclude Ms. Hill’s answer. Therefore, nothing is preserved for our review.

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

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Billy Alfred FLOWERS. (Re: Billy Alfred Flowers v. State of Alabama).
    80-707.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES, and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Roy GRIMES v. STATE.
    4 Div. 875.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      Winn S. L. Faulk, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Escape in the first degree; sentence: two years’ imprisonment.

The State presented only two witnesses.

Leon Baxter, a Sergeant with the Houston County Sheriff’s Department, testified that on June 6,1980, he was performing the duties of jailer at the Houston County Jail. The appellant was an inmate at the jail at that time and was participating in the work release program pursuant to Code § 14-8-30 et seq. Baxter testified that the appellant was released from jail on that date to work at Aamco Transmission Service until noon and was directed to be back at jail no later than 12:30 p. m. When the appellant failed to return to the jail at the designated time, Baxter went to Aamco and found that the appellant was not there.

Ralph Tice, a Houston County Deputy Sheriff, testified that on June 8, pursuant to an order to be looking for the appellant, he went to the home of the appellant’s father. He entered the house with the father’s permission and found the appellant “in a laundry room crouched behind a piece of plywood.” The appellant was then arrested, returned to the county jail and later charged with escape.

At the end of the State’s case in chief, defense counsel moved to exclude the State’s evidence “on the ground that they have not proved a prima facie case of escape under Section 13A-10-31, A-2.” Defense counsel argued that appellant’s failure to return to custody was not an escape from custody as defined by § 13A-10-30(b)(1). After argument the trial court denied the motion, and the defense proceeded with its case.

In reviewing the trial court’s ruling on the appellant’s motion to exclude the State’s evidence, this court can only consider the evidence which was before the trial court at the time the motion to exclude was made. Kent v. State, 367 So.2d 508 (Ala.Cr.App.1978), cert. denied, 367 So.2d 518 (Ala.1978). Testimony given after the State has rested its case and the motion to exclude has been presented cannot be used to support the verdict of the jury. Williams v. State, 340 So.2d 1144 (Ala.Cr.App.1976), cert. denied, 340 So.2d 1149 (Ala.1977).

The indictment in the instant case charged in pertinent part that the appellant “having been convicted of a felony, to wit: Forgery, did escape or attempt to escape from custody imposed pursuant to that conviction, to-wit: Forgery, in violation of 13A-10-31 of the Code of Alabama.”

Under Code § 13A-10-31(a)(2), escape in the first degree consists of two essential elements: (1) that the accused had been convicted of a felony, and (2) that he escaped or attempted to escape from custody pursuant to that conviction.

The State’s testimony failed to prove that the appellant had been convicted of a felony. However, prior to taking testimony in the case, defense counsel stipulated in open court that the appellant was serving a sentence for forgery at the time of the alleged escape, but refused to stipulate that appellant’s conduct amounted to an escape from custody. Thus, the State was only obliged to prove the second element of the offense, that the appellant escaped “from custody.”

“Custody” is defined by § 13A-10-30(b)(1) as:

“A restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court, but does not include mere supervision of probation or parole, or constraint incidental to release on bail.”

We do not find that the appellant was in the custody of a public servant when he failed to return to jail from work at Aamco Transmission Service. His status was more closely akin to that of a person on probation, parole, or on bail than to a person in actual custody. Appellant was not “in” custody while at work, but was out of custody with orders to report back into custody at a specific time. Therefore, he could not have escaped “from” custody. He simply failed to return to custody.

The appellant’s conduct here is analogous to that in Eady v. State, 369 So.2d 841 (Ala.Cr.App.), cert. denied, 369 So.2d 843 (Ala.1979). There, Eady was charged with escape “from” custody of the Sheriff of Houston County. However, the evidence proved that Eady was assigned to a work detail at the Houston County Farm Center to clean up after a horse show on a particular night. His work was supervised by a county employee not connected with law enforcement. Sometime during the night Eady left the facility. In that case we found that the evidence failed to prove an escape “from custody” because the evidence showed Eady was not in fact “in custody” of the sheriff when he left the unguarded facility.

In the instant case we are not holding that persons on a work release program are free to walk away without punishment. The work release statute itself provides specifically for such conduct. Code § 14-8-42 provides:

“The willful failure of an inmate to remain within the extended limits of his confinement or to return to the place of confinement within the time prescribed shall be deemed an escape from a state penal institution in the case of a state inmate and an escape from the custody of the sheriff in the case of a county inmate and shall be punishable accordingly.”

The general escape provisions in Code § 13A-10-30 et seq., do not specifically cover the failure to return to custody, whereas the work release statute was enacted by the legislature for a specific purpose and covers the conduct in question. The work release statute and the general escape provisions of the criminal code are not in conflict. The general escape provisions do not repeal specifically nor by implication the penal provisions of the work release act.

Repeal by implication is not a favored rule of statutory construction, and only when two laws are so repugnant to or in conflict with each other will it be presumed the legislature intended that the latter should repeal the former. Fletcher v. Tuscaloosa Federal Savings & Loan Association, 294 Ala. 173, 314 So.2d 51 (1975). Repeal of a statute by implication is not favored by law, and courts should interpret legislative acts so as to harmonize them. Vaughn v. State, 370 So.2d 339 (Ala.Cr.App.1979). Repeal of a statute by implication is disfavored in the law, and a particular statute will govern a general statute. Kimbrell v. State, 272 Ala. 419, 132 So.2d 132 (1961).

Here, the legislature has provided a penalty for the exact conduct in question by way of Code § 14-8-42. If that section was deemed to have been repealed by implication by the general escape provisions in the criminal code, then the instant conduct would not fall within the clear meaning of those general escape provisions in § 13A-10-30 et seq. It would take a strained judicial construction of the wording of the general escape provisions to bring the instant appellant’s conduct within their terms.

We therefore find that the appellant was indicted and tried under the wrong statute. An indictment should have been drawn tracking the wording of § 14-8-42, even though on a finding of guilt, the trial judge would have to refer to the general escape provisions of the new criminal code in determining which sentence to impose.

REVERSED AND REMANDED.

All the Judges concur.


author: TYSON, Judge.

text:
    Gregory A. TOWNSEND, alias v. STATE of Alabama.
    8 Div. 481.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.
    Rehearing Denied Aug. 4, 1981.
    John Mark McDaniel, Huntsville, for appellant.

      Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Gregory A. Townsend, alias Greg Townsend, was indicted under the alternative theories listed in § 13A-6-2(a)(l), -2(a)(2), Code of Alabama 1975, for the murder of Ollie Willie Jones by “shooting him with a shotgun.”

The jury found appellant “guilty of murder.” The trial court thereafter sentenced him to a term of 30 years’ imprisonment.

From the trial court’s denial of his motion for a new trial, he prosecutes this appeal.

On October 20, 1980, the appellant shot and killed Ollie Willie Jones with three rounds from appellant’s .20 gauge shotgun. The fatal shot caused a head wound to the left side of the deceased’s face. The appellant never denied shooting the victim, but he did raise a claim of self-defense in that the deceased “started looking crazy and reached for a gun in his belt, and [he] had to shoot.” (R. 34)

The evidence established that the appellant and the victim had an altercation two days before when the victim “pistol-whipped” appellant, because the deceased felt that the appellant had prevented him from winning or stealing some money from one of appellant’s friends. After the “pistol whipping” the victim told the appellant he had better be “armed” the next time they met.

Two days later the appellant, “armed” with his .20 gauge shotgun, went over to the victim’s residence to, allegedly, talk over their differences and “try to get this mess straightened out.” (R. 34) Townsend met the victim walking up the driveway beside the victim’s residence and told him that the two of them needed to talk. According to the appellant, he was the only witness to the shooting incident besides the deceased, Ollie Willie Jones. The victim, Jones, had started to draw a gun from his belt and Townsend shot three times, turned and left.

A short time' later police investigators examined the body and did find a pistol in the victim’s belt and a knife in the victim, Jones’, pocket.

Appellant turned himself in to the police.

Appellant introduced evidence of his good character and of the victim’s bad character, while the state countered with evidence of the appellant’s bad character.

I

The appellant contends that there is insufficient evidence to sustain the jury’s verdict because there is no proof that the appellant did not act in self-defense. We are not convinced by this argument.

Where, as here, the killing was admitted, the question of whether or not it was justified under the theory of self-defense was for the jury. Clark v. State, 39 Ala.App. 505, 104 So.2d 451 (1958). This does not mean that the burden of proving self-defense shifts to the defendant, but it does mean that in order to be acquitted the evidence must raise in the minds of the jury a “reasonable doubt” as to whether the defendant acted in self-defense. Graham v. State, 339 So.2d 110 (Ala.Cr.App.), cert. denied, 339 So.2d 114 (Ala.1976); Harris v. State, 347 So.2d 1363 (Ala.Cr.App.), cert. denied, 347 So.2d 1368 (Ala.1977); Mack v. State, 348 So.2d 524 (Ala.Cr.App.1977); Moore v. State, 364 So.2d 411 (Ala.Cr.App.), cert. denied, 364 So.2d 416 (Ala.1978).

In the case at bar the only evidence of self-defense was the testimony of the appellant, Townsend. The weight and credence to be given that testimony was a question for the jury. Peterson v. State, 350 So.2d 771 (Ala.Cr.App.1977); Warren v. State, 380 So.2d 305 (Ala.Cr.App.1979), cert. denied, 380 So.2d 307 (Ala.1980). The jury apparently chose not to believe the appellant’s testimony, in light of these circumstances, especially the fact that appellant had recently received a “pistol whipping” from the victim, Jones. The requisite “reasonable doubt” was, therefore, never raised.

The jury having resolved this issue, it is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness of appellant’s testimony, with reference the self-defense issue; therefore, we will not disturb the jury’s verdict by our review. May v. State, 335 So.2d 242 (Ala.Cr.App.1976); Peterson, supra.

II

Appellant further contends that the trial court erred by failing to charge the jury on the issues of character evidence and by refusing three of appellant’s written requested charges.

A

Considering the latter argument first, we have found that the “presumption of innocence” (R. 162) and the “reasonable doubt” (R. 164) charges requested by the appellant were “substantially and fairly” covered in the court’s oral charge. (R. 136-138) Consequently, their refusal is not grounds for reversal. Section 12-16-13, Code of Alabama 1975. Garraway v. State, 337 So.2d 1349 (Ala.Cr.App.1976).

The other refused charge (R. 163) concerns the sufficiency of circumstantial evidence. This charge was totally unnecessary because the evidence that appellant shot and killed the victim was direct evidence admitted by the appellant. Likewise, the evidence of self-defense was in fact, direct evidence by the appellant’s own testimony, even though it apparently failed to convince the jury. Thus, a charge on circumstantial evidence would have only served to confuse the jury.

B

The trial court’s alleged failure to instruct the jury with reference the evidence of appellant’s good character, and the evidence of the victim’s bad character, even if error, was not properly preserved for our review, as there was no exception to the oral charge of the trial judge. Cooper v. State, 331 So.2d 752 (Ala.Cr.App.), cert. denied, 331 So.2d 759 (Ala.1976); and cases therein cited; Cooper v. State, 364 So.2d 382 (Ala.Cr.App.) cert. denied, 364 So.2d 388 (Ala.1978).

Ill

Appellant’s final contention that the introduction of a gruesome photograph of the victim (Exhibit 2) was reversible error is without merit.

Generally, photographs of the victim’s body are admissible to prove or disprove a disputed or material issue, to illustrate or elucidate other facts or evidence, or to corroborate or disprove some other evidence. Braxton v. State, 361 So.2d 1170 (Ala.Cr.App.1978); Hines v. State, 365 So.2d 320 (Ala.Cr.App.), cert. denied, 365 So.2d 322 (Ala.1978); Brodka v. State, 53 Ala.App. 125, 298 So.2d 55 (1974) and authorities cited therein; McAdams v. State, 378 So.2d 1197 (Ala.Cr.App.1979). This is certainly true where, as here, the photo accurately depicts the character and location on the body of the fatal wound. Ellenburg v. State, 353 So.2d 810 (Ala.Cr.App.1977). Moreover, we have held such pictures admissible even if they constitute cumulative evidence based upon an undisputed matter. Ellenburg, supra; Hines, supra.

For the above stated reasons, this case is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    W. T. WEAVER, Jr. v. STATE.
    1 Div. 146.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      Willis W. Holloway, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Manslaughter in the first degree; ten years.

The evidence presented at trial was without conflict that the appellant shot “Poo-chie” Campbell, on May 21, 1978. The dispute was whether the appellant shot in self-defense.

The evidence presented by the State indicated that the victim, Willard “Poochie” Campbell, along with the appellant’s wife and two children, and others, had been riding in a car in Pritchard, Alabama. When they reached Hale Drive in Pritchard, the appellant approached on a motorcycle. The appellant had a pistol in his hand, and as he neared the car he placed it at the nose of Ulmer Reed, the driver of the car. Appellant told Reed not to move, and then he turned to the side of the car where Campbell was sitting. While the others in the car were trying to get out, appellant fired into the car at Campbell. After shooting the victim several times, the appellant left on the motorcycle. According to Ulmer Reed, the victim did not say anything to the appellant prior to the shooting and he did not see the victim with a knife.

Darlene Jarman, who was present in the car at the time of the shooting, stated that the appellant came up to the car with a gun in his hand and shot twice. Ms. Jarman said the victim, Poochie Campbell, took out a knife when the appellant approached the car with a gun.

Detective T. C. James investigated the shooting at the scene. He observed the victim and found a knife in the back seat where the victim was slumped over. At the end of Sgt. James’ testimony the State rested its case and the appellant made a motion to exclude the evidence on the grounds that the State had failed to prove a prima facie case.

The appellant testified in his own behalf that the Saturday prior to the shooting, the deceased had threatened to kill him. On the day of the shooting, the appellant said that the victim came at him with a knife before he ever pulled his gun to shoot.

The appellant also presented testimony from several witnesses, including law enforcement officers, who stated that the victim had a general reputation for carrying a knife and he was a violent, dangerous and blood-thirsty individual.

I

The appellant maintains that the court committed reversible error by not permitting him to show specific incidents illustrating the deceased’s habit of “cutting people with a knife.” In Shuler v. State, 56 Ala.App. 599, 324 So.2d 313, cert. denied, 295 Ala. 418, 324 So.2d 319 (1975), this court observed that inquiries concerning violent hostile acts by a victim toward someone other than the appellant were not admissible.

In Gamble, McElroy’s Alabama Evidence, § 63.01(3), (3 Ed. 1977) we find the following:

“In some cases where the accused is relying on self-defense he will want to show that the victim had previously committed specific acts of violence towards other persons and that the accused knew of such acts. The purpose of such evidence will be to show the accused’s reasonable apprehension of peril. The general rule is that such evidence is admissible if the person toward whom the violence was directed had a very close connection with the accused such that there would be reasonable apprehension of peril on the part of the accused. It is quite clear that such violence towards other persons is not admissible if it is remote in time or lacks any connection in circumstances with the accused.” [Emphasis added]

In the present case, the specific acts shown by the appellant at a hearing out of the presence of the jury, occurred from one to ten years before the shooting in question, and only one incident involved a person who the appellant stated was related to him “a little bit.” Therefore, under these circumstances, we believe that the court was correct in not permitting the appellant to show specific incidents of the victim’s dangerous and violent nature. The evidence presented was remote in time and lacked any connection in circumstance with the appellant.

II

The appellant complains that the prosecutor made improper statements in the following portions of his closing argument:

“MR. COPELAND: * * * Also I submit to you that criminal laws are designed not so much for law abiding citizens of this community, but for people like Poo-ehie Campbell and people like W. T. Weaver that they are going to their own—
“MR. HOLLOWAY: Judge, I am going to object to that last remark, ‘People like Poochie Campbell and people like W. T. Weaver,’ and I will ask that that be included in the record, as injecting an element of character and things that have not been testified to.
“THE COURT: I will overrule the objection.
“MR. HOLLOWAY: I move for a mistrial.
“THE COURT: The Court will deny your motion. This is argument of counsel to the Jury.
“MR. COPELAND: That's what criminal laws range at, situations like this, and these are the kinds of people it’s going to be applied to.
“MR. HOLLOWAY: Judge, I’m going to object to that again, about ‘These are the kind of people it’s going to be applied to,’ and ask that that be included in the record. I again review my objection as to the interjection of character.
“THE COURT: Overruled.
“MR. HOLLOWAY: I move for a mistrial.
“THE COURT: The Court will deny your motion.”

In its oral charge the trial court instructed the jury that argument of attorneys was not evidence in the case and that they alone were the sole judges of the facts. From the record:

“You have heard throughout the trial arguments of the lawyers to you. The opening arguments and the closing arguments of the lawyers to you. The Court will tell you, ladies and gentlemen of the Jury, that the arguments of counsel are not evidence. The evidence in this case comes from the witness stand, from the witnesses who have appeared and from any documentary or any other type of evidence, that the Court has admitted into evidence. If the Court does not admit certain items into evidence, it is not evidence to be considered by you in determining the issues in this case. The lawyers in their closing arguments to you have told you what they believe the evidence was, or showed. They have given to you their recollection of the evidence. They have made certain inferences from the evidence submitted to you. These are inferences from the evidence as they remember the evidence to be. The Court will instruct you that you are the ones who have heard the evidence. If any statement by the attorneys is different from what you recollect the evidence to be, or if they draw inferences from the evidence that you do not draw the same inferences based on the same evidence, then you should abide by your recollection of what the evidence was. You should draw your inferences from the evidence.”

We note that at the conclusion of the trial court’s instructions the appellant did not announce his dissatisfaction with the above portions of the oral charge but only took exception to a portion of a charge requested by the State, which had no bearing on the contention we are now considering. In our judgment, the instructions covered the alleged prejudicial argument so that error to reversal is not here shown. See George v. State, 54 Ala.App. 90, 304 So.2d 908 (1974).

Ill

The appellant alleges that the State’s evidence was insufficient to make out a prima facie case of manslaughter in the first degree.

In Wilkerson v. State, 50 Ala.App. 150, 277 So.2d 423, cert. denied, 291 Ala. 802, 277 So.2d 427 (1973), this court defined manslaughter in the first degree as follows:

“The unlawful and felonious killing of another without malice, express or implied by voluntarily depriving him of life.”

See § 13-1-90, Code of Alabama 1975.

Further, although intention to take life is not necessarily an ingredient of manslaughter in the first degree, “there must be either a positive intention to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily injury may be a consequence.” Harrington v. State, 83 Ala. 9, 16, 3 So. 425 (1887). See Trenor v. State, Ala.Cr.App., 354 So.2d 1180 (1977), cert. denied, Ala., 354 So.2d 1185 (1978).

Therefore, if the evidence presented at trial shows that death was caused by a pistol intentionally fired at the person killed, unless self-defense is proved, the offense is either murder or manslaughter in the first degree. Lanier v. State, 43 Ala.App. 38, 179 So.2d 167 (1965).

In the present case, the State’s evidence showed that the appellant intentionally aimed a pistol at the victim and fired approximately four shots, three of which hit the victim and killed him. The evidence of whether or not the shooting was justifiable and in self-defense was in conflict and was a question for the jury to determine. Moore v. State, Ala.Cr.App., 364 So.2d 411, cert. denied, Ala., 364 So.2d 416 (1978).

The jury decided the question against the appellant and his conviction of manslaughter in the first degree should be sustained.

We have examined the record and transcript of evidence and have found no error; therefore the judgment of conviction by the Mobile Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Charles Monroe GOODRUM v. STATE.
    1 Div. 208.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    M. A. Marsal and Neil L. Hanley, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of manslaughter in the first degree, under an indictment charging him with murder in the first degree, and fixed his punishment at imprisonment for seven years. The court sentenced him accordingly.

The alleged homicide occurred on December 30, 1979, little more than twenty-four hours before the effective hour of the Criminal Code of Alabama (Code of Alabama 1975, Title 13A), which made material changes in the statutory law of Alabama as to homicide, which, of course, properly were not applied in the instant case.

According to the undisputed evidence, including the testimony of defendant in his own behalf, Eugene Wheeler, the alleged victim, was killed almost instantly by a bullet that penetrated his forehead from a pistol in the hand of defendant. The defendant, having been apprehensive of being hurt or killed by the victim, previously armed himself with the pistol on the same night of the fatal encounter. Soon after the tragedy, defendant directed that he be taken to the police station. The conclusion of his testimony on direct examination was as follows:

“Q. And did you go back to the police station?
“A. Yes, sir.
“Q. What did you do when you got to the police station?
“A. I got out and started for the docket room.
“Q. Did you ever wait around Munche’s to see anybody throw a pistol in the bushes?
“A. No, sir. Like I said — (witness crying).
“Q. When you went to the docket room, did you tell that police station in that statement the same thing you told this jury today?
“A. Yes, sir, I have.
“Q. Did you ever intend to kill that boy? “A. No, sir (witness crying).
“MR. MARSAL: I have no further questions.”

As no contention is made as to the sufficiency of the evidence to support the verdict and we see no basis for such a contention, we make no additional comments as to it other than to say, to the credit of this youthful defendant, that, according to the undisputed evidence, he had a good reputation and that he showed what appears to us to be sincere sorrow and remorse for what occurred.

The only two issues raised by appellant are related to each other, but we will discuss them separately in accordance with their presentation by appellant.

Appellant’s first contention is that “the court erred in denying appellant’s right of compulsory process by attachment.”

When the case was called for trial, defendant’s attorney made it known that a witness by the name of Russell Cumbie had not appeared in court. The transcript shows that a subpoena had been issued for Russell Cumbie and that the request was made at the time by defendant’s attorney that the subpoena be served personally on him. However, instead of its being personally served, it was mailed to him. The transcript does not show whether Cumbie ever received the subpoena. This being true, any request or motion for an attachment was premature.

“. .. Extraordinary compulsory process, such as attachment, is not resorted to, until the witness has placed himself in contempt, and the propriety and the necessity of the process is shown ...” Childress v. State, 86 Ala. 77, 88, 5 So. 775 (1888).

Defendant’s request or motion for an attachment for the absent witness was properly denied.

Defendant’s only other insistence on a reversal is that “the Court erred in denying appellant’s motion for a continuance.” The motion was primarily based, it seems, on the ground that the subpoenaed witness Russell Cumbie was not present. In support of the motion, defendant testified at length. Included in his testimony was defendant’s statement that Russell Cumbie was with defendant and two other companions, who testified in the case, about forty-five minutes before the killing, which was before defendant obtained the pistol with which the victim was killed, and that at such time the victim threatened to kill defendant. Defendant particularly testified that Russell Cumbie, if he were present would testify to that.” However, defendant further testified that he had not “talked to Russell Cumbie since that occasion.”

As to the motion for a continuance, the defendant based his contention also on the absence of another witness for whom a subpoena had been issued but who, at the time, was apparently unable to attend court on account of her being in labor. It appears that defendant desired for that witness to be present to testify as to what occurred at the time of the fatal encounter, and in support of his motion for a continuance he offered the testimony of a witness who was with the absent witness at the time and place. She testified, however, that the two were not present at the scene of the killing at the time the killing occurred, that the victim had already fallen when they arrived.

In commenting on the motion for a continuance during the hearing thereof and in ruling on it, the judge indicated that he was overruling it for the reason that there was another witness, or that there were other witnesses, to testify as to what each of the absent witnesses would testify.

The trial court’s conclusion, as well as the appellee’s contention, that a motion for a continuance by defendant in a criminal case on the ground of the absence of a witness may be properly denied if the contemplated testimony of the witness is merely cumulative, is authoritatively supported. Segers v. State, 283 Ala. 694, 220 So.2d 882 (1969); Williams v. State, Ala.Cr.App., 354 So.2d 48, cert. denied, 354 So.2d 53 (1977); Green v. State, Ala.Cr.App., 377 So.2d 4 (1979). However, as an apparent caveat to the notion that no case can arise in which a defendant would not be entitled to a continuance because of the absence of a witness whose testimony would be cumulative, Judge Bowen in Green wisely prefaces the principle established by the word “Generally” as follows:

“. .. Generally, the refusal to continue a case on the ground of the absence of a witness is not an abuse of discretion where the testimony which the witness would have given is cumulative.... ” 377 So.2d at p. 6.

A major failure to show a valid ground for a continuance is to be found in the absence from the transcript of any testimony, affidavit, statement or showing of what either witness would reasonably be expected to testify if present. There was considerable evidence and colloquy as to the presencé of Cumbie at the time and place of the claimed threat of the victim to kill defendant. The defendant himself testified that such was made, and no one disputed his testimony in that respect. However, whether Cumbie would corroborate the testimony of defendant as to the threat was left an open question.

As to the testimony that could have been reasonably expected from the absent witness who was in labor at the time, we find in the transcript nothing that would constitute any kind of a showing as to what she would testify other than a vague reference to the position of the body of the victim and the presence or absence of a weapon on the ground at the scene of the killing. To be entitled to a continuance by reason of an absent witness, the party moving for a continuance must show in some satisfactory way the facts he expects to prove by the witness. White v. State, 86 Ala. 69, 5 So. 674 (1889); Gast v. State, 232 Ala. 307, 167 So. 554 (1936); Sparks v. State, 46 Ala.App. 357, 242 So.2d 403 (1970), cert. denied, 286 Ala. 738, 242 So.2d 408, cert. denied, 402 U.S. 909, 91 S.Ct. 1382, 28 L.Ed.2d 650; Smith v. State, Ala.Cr.App., 368 So.2d 298, writ quashed, 368 So.2d 305 (1978).

In overruling the motion for a continuance, the trial court did not abuse the discretion vested in it.

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

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

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Tony Dariel MAULDIN v. STATE.
    1 Div. 226.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Deborah Hill Biggers, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

In a three count indictment the defendant was indicted for the unlawful possession of phenmetrazine, phencyclidine, and cocaine contrary to the provisions of the Alabama Controlled Substances Act. Section 20-2-70, Alabama Code 1975. A jury found the defendant guilty of possession of phenmetrazine and phencyclidine. Sentence was five years’ imprisonment. Four issues are presented on appeal.

I

The defendant argues that his motion to suppress should have been granted because the affidavit supporting the search warrant was defective because (1) it failed to aver any underlying circumstances establishing the informer’s credibility; (2) it omitted any reference to time; and (3) it contained the hearsay conclusions of an unsworn informer.

The affidavit was made by Alabama State Narcotic Agent Harry Kearley before a District Court Judge of Mobile County. The material portions of the affidavit are as follows:

“4. The FACTS establishing probable cause for search are:
“On 4/10/80, Alabama State Narcotic Harry Kearley was notified by Drug Enforcement Administration Special Agent Paul Wallace in San Francisco, California stating that a package addressed to Tony Mouldin, 2436 Denmark Street, Mobile Alabama had been presented for shipment to National Airlines, Cargo Supervisor Kenneth Arge, by an unknown black male who stated it was electrical parts and declared the value to be $300. The unknown black male paid $23.31 to ship the package to Mobile, Alabama. Mr. Arge became suspicious because of the light weight of the package and pursuant to FAA regulations opened the package. The contents of the package were determined to be as follows:
“Packing consisting of crumpled newspaper
“1 envelope addressed to Mrs. Hester Smith, containing an Easter card “37 plastic bindles (packages) of white powder contained in a plastic baggie and wrapped with brown paper and a rubberband
“A note addressed to ‘Tony’ was also in the package
“Mr. Arge contacted Special Agent Paul Wallace of the Drug Enforcement Administration who arrived and took custody of the package at approximately 1:00 a. m. on 4/10/80. Special Agent Wallace field tested the white powder for cocaine with positive results. Special Agent Wallace marked four of the small plastic bin-dles ‘KPW’ and the date, replaced them in the package and resealed it. At approximately 9:30 a. m., Central Standard Time, Special Agent Wallace contacted ASN Agent Kearley in Mobile, Alabama and advised him that the package was placed on National Flight 32 to arrive in Mobile, Alabama at 3:52 p. m. on 4/10/80. Based on the above information, I request a Search Warrant for the above mentioned package and its contents.”

A.

In this affidavit there are two “informers”: Cargo Supervisor Arge and Special Agent Wallace.

The same showing required of an informer under Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or witness. Richardson v. State, 376 So.2d 205 (Ala.Cr.App.) affirmed, Ex parte Richardson, 376 So.2d 228 (Ala.1978); W. LaFave, 1 Search and Seizure, Section 3.4 (1978). Additionally, we note that Arge’s credibility was established when his information was verified by Special Agent Wallace. “Another law enforcement officer is a reliable source and . .. consequently no special showing of reliability need be made as a part of the probable cause determination.” 1 LaFave, Section 3.5 at p. 621. See also Richardson.

The affidavit does reveal each informer’s basis of knowledge and the defendant’s argument on this point is without merit.

B.

We also find no merit to the defendant’s argument that the vagueness of the time element in the affidavit renders the search warrant void.

“Probable cause to search, ... ordinarily may be said to exist only if it is established that certain identifiable objects are probably connected with certain criminal activity and are probably to be found at the present time in a certain identifiable place.” 1 La-Fave, Section 3.7 at p. 680. In this case, although the affidavit did not state when Cargo Supervisor Arge received and opened the package, we have no problem with stale information.

“ ‘ “The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.” 24 Md.App. at 172, 331 A.2d at 106.’ ”
Andresen v. State, 24 Md.App. 128, 331 A.2d 78 (1975), affirmed, Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976).

Special Agent Wallace determined through his own personal observation on April 10,1980, that the package did contain cocaine. The affidavit was executed and the search warrant obtained on this same day. From the facts contained in the affidavit, the district court judge could properly determine that the cocaine would probably be found in the package addressed to the defendant.

C.

Hearsay will support a finding of probable cause if there is a substantial basis for crediting the hearsay. United States v. Garner, 581 F.2d 481 (5th Cir. 1978); Satterwhite v. State, 364 So.2d 359 (Ala.1978).

II

The defendant was arrested after he had received the package at the airport but before the package had been opened. The defendant argues that therefore the officers had no reason to believe that the defendant had any knowledge of the presence of the cocaine inside the package and consequently they had no reason to arrest the defendant without a warrant. Section 15-10-3, Alabama Code 1975.

The officers had probable cause to arrest the defendant for the possession of a controlled substance where the package was addressed to the defendant, where they had reason to believe that the package contained a controlled substance and where they observed the defendant take possession of the package. Walker v. State, 356 So.2d 668 (Ala.Cr.App.), reversed on other grounds, 356 So.2d 672 (Ala.), on remand, 356 So.2d 674 (Ala.Cr.App.1977).

“The facts, information and circumstances within the knowledge of the arresting officers need not amount to evidence which would suffice to convict; but the quantum of information which constitutes probable cause — evidence which would warrant a man of reasonable caution in the belief that a felony had been committed — must be measured by the facts of the particular case. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 411; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.” Yeager v. State, 281 Ala. 651, 653, 207 So.2d 125 (1968).

See also Diamond v. State, 53 Ala.App. 556, 302 So.2d 243, cert. denied, 293 Ala. 751, 302 So.2d 247 (1974); Miller v. State, 53 Ala.App. 213, 298 So.2d 633, cert. denied, 292 Ala. 741, 298 So.2d 639 (1974).

Since the defendant’s arrest without a warrant was legal, the search incident thereto was also legal, and the controlled substances (phenmetrazine and phencycli-dine) found on his person were admissible. French v. State, 94 Ala. 93, 10 So. 553 (1892); Cooper v. State, 380 So.2d 1003 (Ala.Cr.App.1980). Evidence obtained as a result of a search conducted incident to a lawful arrest is admissible. Lackey v. State, 54 Ala.App. 693, 312 So.2d 96 (1975).

Ill

When the defendant was searched incident to his arrest one plastic bag containing nine black capsules marked RJS were found on his person. It was established through the State’s own witness that these RJS capsules contained “three noncontrolled substances.” The noncontrolled substances were never identified.

The defendant argues that the admission of the capsules “led the jury to believe that the Appellant was carrying a large quantity of controlled substances on his person when he was arrested” and that therefore his motion for a mistrial was due to be granted.

Where the defendant is charged with the possession, sale or use of drugs, other controlled substances found at the time and the scene of the crime may be admissible to show the “complete story”. Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975); Green v. State, 389 So.2d 537 (Ala.Cr.App.), cert. denied, 389 So.2d 541 (Ala.1980). Because it was established without dispute that the RJS capsules did not contain any controlled substance, their admission into evidence was not prejudicial to the defendant, A.R.A.P. Rule 45, and the defendant’s motion for a mistrial was not due to be granted. Woods v. State, 367 So.2d 982 (Ala.1978).

IV

After the defendant was arrested he was searched. On his person were found one peach colored tablet containing phenmetra-zine, a tin foil packet containing 13 grams of phencyclidine, and 9 black capsules marked RJS containing three noncontrolled substances. The defendant contends that the drugs were improperly admitted into evidence because the State failed to establish a proper chain of custody. We agree.

Agent Kearley testified that he “retained custody of these items and turned them into the Department of Forensic Sciences for examination.”

On direct examination crime laboratory analyst Ms. Deborah Senate with the State Department of Forensic Sciences testified that she had in her possession “some samples which came from Officer Kearley on the 11th” of August 1980. However, under questioning by the trial court she stated that Danny LaComp turned the drugs over to her. Mr. LaComp was never identified and the State did not even attempt to show his relationship to and position in the chain of custody. Despite this fact, the trial judge allowed the drugs to be admitted into evidence over defense counsel’s objection that “the proper chain of custody has not been shown.”

A careful search of the record reveals that State’s Exhibit Number 7 was never identified as constituting the drugs seized from the defendant’s person. Also, Agent Kearley never identified when or to whom he delivered the drugs. Additionally, there was no evidence whatsoever that the drugs tested by Ms. Senate were the same or in substantially the same condition as the drugs seized.

“The pertinent rule is that articles or objects which relate to or tend to elucidate or explain the issues or form a part of the transaction are admissible in evidence when duly identified and shown to be in substantially the same condition as at the time of the offense.” Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552 (1953). “To establish a sufficient predicate for admission into evidence it must be shown that there was no break in the chain of custody .... Identification and continuity of possession must be sufficiently established to afford ample assurance of the authenticity of the item.” Ex parte Yarber, 375 So.2d 1231, 1324 (Ala.1979) (emphasis added). A party need not negative the remotest possibility of substitution, alteration or tampering with the evidence. Lynn v. State, 380 So.2d 366 (Ala.Cr.App.1980); Murrell v. State, 377 So.2d 1102 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979); Williford v. State, 365 So.2d 1257 (Ala.Cr.App.1978), cert. denied, 365 So.2d 1258 (Ala.1979); Thomas v. State, 356 So.2d 210 (Ala.Cr.App.), cert. quashed, 356 So.2d 214 (Ala.1977).

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.”
Sexton v. State, 346 So.2d 1177, 1180 (Ala.Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977).

Because the prosecution did not fulfill the requirement that the integrity of the evidence be proved by an accounting of all the successive steps in the handling of the drugs from the time of their seizure until the time of trial, the drugs found on the defendant’s person (phenmetrazine and phencyclidine) were improperly admitted. For this reason the judgment of the Circuit Court must be reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.

      . Informer defined see Hadley v. State, 391 So.2d 158 (Ala.Cr.App.) cert. stricken, 391 So.2d 162 (Ala.1980).

      . While the proper chain of custody of the cocaine was not established either, we do not address that issue as the jury did not find the defendant guilty on the count charging possession of cocaine.


text:
    Geneva L. JOHNSON v. STATE.
    2 Div. 301.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      John A. Bivens of England & Bivens, and D. McElvy of Ford, McElvy & Ford, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty under an indictment charging her with the murder of “Jessie Burl Johnson, by shooting him with a gun, in violation of § 13A-6-2 of the Code of Alabama.” The court fixed her punishment at imprisonment for twenty-five years and sentenced her accordingly.

According to the testimony of defendant, the victim was her husband to whom she had been married about two years and with whom she had lived for approximately three years before they were married. She was the mother by a previous marriage of two children, who were living with her and the alleged victim at the time of his death, and who were present at the home of the couple in Brierfield, Alabama, when the victim was killed by one bullet shot from a pistol that entered the back of his head. The couple were father and mother of a baby who apparently was elsewhere at the time of the tragedy.

According to further testimony of defendant, on the night of February 1, 1980, the defendant fixed dinner for her children and her husband; the dinner did not meet her husband’s approval, and he knocked her to the floor and “stomped” her. She fixed him another plate, which he ate and left. Upon his return, he began to smoke marijuana as he had on other occasions and injected “white looking stuff” into his arm with a needle; he hit her on the side of the head with his fist, knocked her down and kicked her with his steel-toed work boots. He then went and obtained his pistol and loaded it, told defendant he was going to shoot her in the back of the head and kill both of the children. He put the pistol to the back of her head and said, “I just want you to feel the tip of this gun, but the bullet is going to feel a lot worse.” He then placed the gun on the piano nearby, sat down and began to roll marijuana cigarettes and to describe how he was going to kill her and her children. When he turned away from defendant, she seized the gun, and shot her husband in the back of the head. Expert testimony showed that the one shot was fatal.

Defendant further testified that she attempted to move the body of her husband out of the house to the automobile in front of the house. She succeeded in getting it almost to the automobile, left it there, went back in the house, drank beer to a state of intoxication and did not report the incident.

Robin and Richard King, the children, testified on call of the State. They did not see any of the trouble between the defendant and her husband on the night of his death, but they heard noise coming from the bedroom of the other two. Rickey said he heard sounds of furniture moving, his stepfather cursing and a gunshot. He said that some time thereafter his mother woke him up, that she at that time had the pistol in her hand and shot it into the floor one time, that he then took the pistol outside and shot it one time and then came back into the house and put the gun “on safety and put it up.” While on the outside, he saw his stepfather on the ground but “assumed he was drunk” and returned to the house and went to sleep. He further testified:

“A. Well, it was real early that morning — about 5, but it was dark outside.
“Q. After you went to sleep, did you— did anybody ever wake you up later on?
“A. I got up by myself.
“Q. Okay. What did you do?
“A. I went outside. I was going to make a fire and he was still there.
“Q. Who was still there?
“A. Jessie. I told my mama and she said she was going to get one of the neighbors to help pick him up and bring him in the house.”

According to the testimony of David Boll-ing, a witness for the State, he was a neighbor of the Johnsons and on the morning of February 2,1980, the defendant came to his house and asked for his help, stating that her son had gone out into the yard and “found her husband laying out there” and saying also that “he left that night” and she “thought he went off with somebody else.” The witness then went to his daughter’s house and “called the rescue squad.”

There was further evidence that the rescue squad and law enforcement authorities arrived soon after the rescue squad was called, that Jessie Johnson had been dead for some time, his body removed from the yard, and an autopsy was duly performed.

No contention is made on appeal to the effect that the verdict was not supported by the evidence. We have summarized enough of it to show that no such contention can reasonably be made, in our opinion.

We must reject appellant’s contentions I and II, wherein she challenges as violative of her constitutional right to security against unreasonable search and seizure the admission in evidence of various items, including the pistol with which defendant killed her husband, two empty .32 caliber cartridges and a .32 caliber bullet in the floor of the house and samples of blood that were in the home, taken by law enforcement officers as they entered the home after seeing the dead body in the yard and following the trail of blood onto the porch. Retowsky v. State, Ala.Cr.App., 333 So.2d 193, 199-200 (1976); Pope v. State, Ala.Cr.App., 367 So.2d 998, 1001 (1979). It was obvious to them that Jessie Johnson had been killed in his own home, and it then became the duty, as well as the right, of the officers to enter the house and investigate further. The fruits of that investigation, including the items named and photographs of the inside of the house, were properly admitted in evidence. The officers then had probable cause for believing that defendant had unlawfully killed her husband and their arrest of her without a warrant was fully justified.

Appellant’s further contention that defendant’s “inculpatory statements were obtained in violation” of her constitutional rights and “should not have been admitted into evidence” is not supported by the transcript. On the contrary, the evidence shows that the statements were intelligently, voluntarily and understandingly made and that the officers in taking her statements comprehensively advised her of all of her pertinent constitutional rights, including the right to an attorney at the expense of the State, and warned her fully as to the consequences of her making the statements. In each statement she acknowledged in writing that her “rights” had been read to her and that “no threats or promises” had been made to her to get her to make the statements. The statements were properly admitted in evidence.

Appellant’s final contention is that the court was in error in admitting in evidence four photographs of the body, or parts of the body, of the deceased. The photographs are thus described in appellant’s brief:

“State’s Exhibit # 18 was a photograph of the body at the autopsy; State’s Exhibit # 17 was the photograph of the head wound; State’s Exhibit # 16 was a photograph of the head of the victim immediately prior to the autopsy; State’s Exhibit # 15 was a photograph of the bullet after a section of the skull of the deceased had been removed but before the bullet had been extracted.”

Appellant characterizes the photographs as constituting “a gruesome window-dressing at trial, having no probative value.” We disagree. None of the photographs, except State’s Exhibit # 15, appears to us to be gruesome. Even so, it had probative value and was properly admitted in evidence, even though there was strong evidence without it that the bullet seen in it caused the death of the alleged victim. We do not consider it “both morbid and superfluous” as characterized by appellant. No error was committed in admitting any of the four photographs in evidence. McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950); Powell v. State, 40 Ala.App. 148, 109 So.2d 525 (1959); Braswell v. State, Ala.Cr.App., 371 So.2d 992 (1979). The record is free of error prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.