author: TYSON, Judge. BOWEN, Judge, TYSON, Judge.

text:
    Arthur James JULIUS, alias, v. STATE.
    3 Div. 5.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      George W. Cameron, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for appellee.
   On Rehearing

TYSON, Judge.

The application for rehearing in this cause by the State of Alabama is hereby granted, and the original opinion in this cause, issued on December 4,1979, is hereby withdrawn and held for naught.

Arthur James Julius was charged in a twelve-count indictment under Alabama’s Death Penalty Statute, § 13-11-1 through § 13-11-9, Code of Alabama 1975 (Act No. 213, General Acts of Alabama 1975), for “any murder committed while the defendant is under sentence of life imprisonment,” or, alternatively, for “any murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime.”

The jury found the defendant “guilty as charged” and fixed punishment at death by electrocution (R. p. 486). Thereafter, the trial court conducted a post-conviction hearing on the aggravating and mitigating circumstances pursuant to § 13-11-2, et seq., Code of Alabama 1975, which resulted in the imposition of the sentence of death by electrocution.

At trial, the State called C. W. Myers, custodian of inmate records for the Alabama Board of Corrections. Mr. Myers testified that, on January 29, 1978, the date of the offense in question, the appellant was an inmate at the Draper Work Release Center. Mr. Myers testified over defense counsel’s objection that appellant was serving a life sentence for first degree murder.

E. 0. Sanders testified that the deceased, Susie Bell Sanders, was his daughter. On Sunday, January 29, 1978, Mr. Sanders attempted to telephone his daughter sometime in the afternoon. When he repeatedly received a busy signal, Mr. Sanders decided to drive the short distance to his daughter’s house on McElvy Street in the southwestern area of Montgomery, Alabama. Earlier that day when Mr. Sanders saw his daughter at her house she had been suffering the effects of a minor cold. Mr. Sanders was uncertain of the precise time when he arrived on the second occasion. Mr. Sanders’ best estimate was that it was between 4:30 and 5:00 p. m.

When Mr. Sanders entered his daughter’s house with his granddaughter, the deceased’s daughter, he found the house in disarray. In one of the rooms, Mr. Sanders found the nude body of his daughter in an inverted position on a sofa, her head on the floor amid large bunches of hair which had been pulled out of her head. Mr. Sanders told his granddaughter to get help from the neighbors as he carried his daughter into the bedroom. Mr. Sanders said his daughter’s body was still warm but he could not hear her heartbeat. Mr. Sanders noticed scratches around his daughter’s neck and mouth. After partially dressing his daughter, Mr. Sanders called the paramedical squad for help. Mr. Sanders estimated that the paramedics arrived at about 5:20 p. m. Mr. Sanders identified numerous photographs taken by the police at the scene showing various views of the deceased and her house as it was on the date in question.

Following Mr. Sanders’ testimony, the state introduced a certified copy of the trial docket sheet from the circuit court of Jefferson County, Alabama showing the appellant’s conviction by plea of guilty to a first degree murder charge on June 8,1972. The state also introduced a copy of the transcript of the said proceedings for the purpose of showing that appellant’s constitutional rights were properly safeguarded pri- or to the court’s acceptance of his guilty plea. Both items of evidence were admitted by the trial court over timely defense objection.

Fanny Sanders, mother of the deceased, testified that appellant’s mother, one Gus-sey Byrd, was her half-sister. Thus, she explained,' the appellant and the deceased were first cousins. Mrs. Sanders stated that her daughter was employed as a secretary by the Department of Court Management and was a student at Troy State University. Mrs. Sanders testified that Andrew Boykin lived with her daughter and planned to marry her on April 14, 1978. Mrs. Sanders recalled that her daughter sometimes called the appellant Bo-Bo, a nickname. Mrs. Sanders denied ever having sexual intercourse with the appellant. Prior to her daughter’s death, Mrs. Sanders last saw the appellant on Sunday, January 22, 1978. Mrs. Sanders identified a photograph of the automobile he was driving on that occasion. The photograph was admitted into evidence.

William Gardner, paramedic with the City of Montgomery, testified that on January 29, 1978, he responded to a call to McElvy Street at 5:21 p. m. Mr. Gardner arrived at Ms. Sanders’ house at 5:24 p. m. Upon entering Mr. Gardner found the deceased lying on a bed partially clothed. Efforts to revive Ms. Sanders through use of electrical shock were unsuccessful. Mr. Gardner departed the scene at 5:49 p. m.

Detective Albert Hardy with the Montgomery Police Department arrived on the scene while the paramedics were present. Detective Hardy observed that the house was in complete disarray and that the telephone was pulled out of the wall connection. Detective Hardy identified several photographs taken at the scene.

Everett L. Rich, counselor and security guard at Draper Work Release Center, testified that the appellant was assigned to his facility on the date in question. Mr. Rich identified the daily log kept at Draper Work Release Center showing inmate activity. Mr. Rich verified his signature on an entry showing that the appellant had returned from an eight-hour pass on January 29, 1978, at 7:40 p. m.

Mr. Rich recalled that approximately thirty minutes after the appellant’s return, he had a conversation with the appellant. The appellant told Mr. Rich that he had received a telephone call informing him that his first cousin had been killed. The appellant told Mr. Rich that he had been at his cousin’s house earlier that day and she was fine when he left.

Willie Clayton, appellant’s cousin, testified that on January 29, 1978, he drove to Draper Work Release Center to get the appellant and bring him back to Montgomery for the afternoon. Mr. Clayton recalled that the appellant borrowed Mr. Clayton’s automobile leaving at approximately 3:30 p. m. Mr. Clayton identified the photograph of his automobile which had previously been identified by Mrs. Sanders. The top of Mr. Clayton’s automobile was a colorfully distinctive, plaid pattern. Pursuant to the district attorney’s request, Mr. Clayton parked his automobile in front of the courthouse. It was 6:25 p. m. when appellant returned Mr. Clayton’s automobile. At that time, appellant showed Mr. Clayton fifty dollars and a carton of Kool cigarettes he said he obtained from his girl friend. Mr. Clayton identified certain state’s exhibits as being the clothing appellant was wearing on the day in question.

Appellant told Mr. Clayton that he had been to a motel with his girl friend where they had sexual intercourse. On the drive back to Draper Work Release Center, the appellant bought some gasoline for Mr. Clayton’s automobile. Mr. Clayton confirmed the time of appellant’s return to the prison facility as being 7:40 p. m. Mr. Clayton stated that sometimes he called the appellant by the nickname, “Buddy.”

Orin Henderson, Willie Clayton’s brother-in-law, testified that appellant and Willie Clayton were at his house for dinner on January 29, 1978. Mr. Henderson recalled that his brother-in-law introduced appellant as Buddy. Mr. Clayton had arrived at about 4:00 p. m. while appellant arrived later in Mr. Clayton’s automobile at about 6:30 p. m. Mr. Henderson remarked that appellant had a fresh scratch under his eye when he arrived. Mr. Henderson stated that appellant and Mr. Clayton left his house to take appellant back to Draper at about 7:00 p. m.

William Gray, Jr., aged 17, testified that he lived nearby the deceased. Mr. Gray stated that on January 29, 1978, he drove past the deceased’s house as he was returning from his sister’s place of employment. Mr. Gray recalled that the time when he passed the deceased’s house was between 5:10 and 5:15 p. m. His estimate of the time was based on the fact that his sister had to be at work at 5:00 p. m. Mr. Gray also recalled the position of the sun as he was driving.

Mr. Gray described the automobile he saw parked in front of the deceased’s house on the day in question as a green four-door Ford automobile. Mr. Gray stated that he could remember the automobile because of the unusual color of the top. Mr. Gray identified a photograph of Mr. Clayton’s automobile as being the same automobile he had seen at the deceased’s house on the day in question between 5:10 and 5:15 p. m. Mr. Gray stated further that he had seen the appellant driving the same automobile on McElvy Street one week earlier on January 22, 1978. Mr. Gray stated that the same automobile was presently parked near the back door of the courthouse. Following the testimony of Mr. Gray, the jury, under court supervision, was allowed to view Mr. Clayton’s automobile for sixty seconds during which time no statements were made to the jury.

When the jury returned, Cliff Dickens testified he managed the Hardee’s location where Linda Gray, William Gray’s sister, was employed on January 29, 1978. According to company records kept in the regular course of business by Mr. Dickens, Linda Gray’s mechanical time clock card indicated that she began working at 5:00 p. m. on January 29, 1978.

Andrew Boykin testified that he was living with the deceased at the time of her death. They were to be married later in the year. On the day of the deceased’s death, Mr. Boykin was driving a Trailways bus to Mississippi. Mr. Boykin stated that he left the house at about 11:20 a.m. on the day in question. Mr. Boykin gave the deceased between twenty and thirty dollars before he left. Mr. Boykin recalled seeing the appellant at the deceased’s house on January 22, 1978, a week before her death. Mr. Boykin identified his daily logs kept as a matter of course which supported his account of his whereabouts when the killing occurred.

Ralph Mason, general manager of Trailways Bus Company in Montgomery, verified the reliability of Mr. Boykin’s daily activity logs. Mr. Mason produced other documentation showing that Mr. Boykin departed Montgomery for Meridian at 12:35 p. m. on January 29, arriving Meridian at 4:30 p. m. Mr. Boykin departed Meridian at 9:45 p. m. the same day arriving Montgomery at 1:30 a. m. the morning of January 30, 1978.

Because of the tardiness of one of the state’s witnesses, the parties stipulated that the testimony would show that on January 29, 1978, sunset occurred at 5:16 p. m.

Wayne Suninstein, employed by the Montgomery Police Department as jailer, testified that he searched the appellant pri- or to his admission to the city jail at 4:40 a. m. on January 30, 1978. Currency totaling thirty dollars was placed in appellant’s property envelope for safekeeping by the police prior to his being admitted to jail. Following a showing of the proper predicate, documents and receipts bearing the signatures of the witness, the appellant and a description of the appellant’s belongings were admitted into evidence.

John Byers, formerly employed in the city jail as desk officer by the Montgomery Police Department, testified to the authenticity of the documents previously identified by Mr. Suninstein. Mr. Byers stated that inmates of the city jail are allowed to possess up to twenty dollars to purchase personal items such as cigarettes. Mr. Byers stated that once an inmate’s belongings are sealed in a property envelope, a search warrant is required in order to authorize subsequent examination of the contents.

Corporal Ed Alford with the Montgomery Police Department testified that he observed appellant while he was being searched prior to his admission to city jail on January 30,1978. Corporal Alford stated that he saw a twenty dollar bill, a ten dollar bill, some ones and silver removed from appellant. Subsequently, Corporal Alford obtained a search warrant through the Montgomery Municipal Court authorizing him to open appellant’s property envelope to examine the contents. Corporal Alford identified the twenty dollar bill and the ten dollar bill he removed from appellant’s property envelope prior to their admission into evidence.

Detective D. K. Welch with the Montgomery Police Department testified that he interviewed the appellant after informing him of his Miranda rights. Following the establishment of the proper predicate as to voluntariness, the court admitted and the witness read the appellant’s signed written statement into evidence. In his statement, appellant denied killing the deceased.

Truman Bass testified that on January 29, 1978, he was director of the Draper Work Release Center. Mr. Bass testified to the authenticity of certain inmate records kept under his supervision at the Draper facility. These records showed that on January 29, 1978, appellant departed from the Draper facility at 11:50 a. m. returning at 7:40 p. m. Mr. Bass stated that appellant was serving a life sentence. Mr. Bass relate ed the substance of a conversation he had with appellant on January 31, 1978, at police headquarters. This version of appellant’s activities on the date in question was substantially the same, with added details, as the version in his signed written statement taken by Detective Welch.

Detective Leo Blankenship with the Montgomery Police Department testified that he interviewed William Gray on January 31, 1978. Detective Blankenship stated that Mr. Gray’s statement referred to events of the previous January 22 and January 29.

Gussey Byrd, appellant’s mother, testified that Fanny May Sanders, the deceased’s mother, was her half-sister. Mrs. Byrd testified that her son told her that on the afternoon in question he was having sexual intercourse with Fanny May Sanders. The state produced a letter written by appellant to his mother in which he discussed his activities with Fanny May Sanders on the date in question. Through the subsequent testimony of Allen Payton, foreman of the grand jury that indicted appellant, the state established the requisite chain of custody for introduction into evidence of the appellant’s letter to his mother. The parties stipulated the appellant’s authorship of the letter.

Detective Wayman Gant with the Montgomery Police Department testified that he met Andrew Boykin, the deceased’s fiance, at the Montgomery Trailways Bus station upon his arrival there early Monday, January 30, 1978. Detective Gant learned that Mr. Boykin smoked Salem Light Long cigarettes.

Detective Gant and two others went to Draper Work Release Center the night of January 29, 1978, to take the appellant into custody. Prior to any interrogation, the appellant was properly advised of his constitutional rights from a standard form used by the Montgomery Police Department. Detective Gant asked the appellant how he had acquired a brownish stain on his shirt sleeve. Appellant responded saying he had cut himself while shaving and used his sleeve to absorb the blood.

Evidence technician T. R. Shanks testified that he processed the scene at the deceased’s house. Among the numerous items of evidence seized at the scene, Officer Shanks recalled finding a Kool cigarette butt which was received into evidence. Officer Shanks described numerous other evi-dentiary items seized at the scene and later given to Toxicologist Thomas Hopen. Officer Shanks later seized appellant’s clothing at headquarters at the same time taking samples of appellant’s hair and scrapings from his fingernails. Officer Shanks stated that there were no identifiable latent fingerprints recovered at the scene.

Toxicologist Thomas Hopen testified as an expert witness for the state that he received and examined numerous evidentia-ry items during his investigation of the instant ease. Among his numerous findings, Mr. Hopen stated the following: a nine inch long hair recovered from the appellant’s underwear had the same characteristics as the deceased’s hair; the same hair did not come from the appellant’s body; microscopic analysis and chemical comparison of numerous fibers found adhering to appellant’s clothing showed characteristics identical to those of fibers taken from the carpets in the deceased’s house; analysis of stains on the back of a woman’s night gown found at the scene revealed the presence of seminal fluid.

Richard Roper testified that he performed a post-mortem examination on the deceased. Dr. Roper’s qualifications as an expert in the field of forensic science were admitted by the defense. External examination of the deceased revealed numerous scratches and abrasions on her neck and chin. The deceased’s left eye was swollen and there were lacerations to the inside of her mouth. Dr. Roper identified photographs of the deceased taken by him during his examination.

Results of Dr. Roper’s internal examination revealed the presence of seminal fluid in the deceased’s mouth, vagina and rectum. Dr. Roper concluded that the cause of death was manual strangulation. Dr. Roper stated that it appeared that the strangulation force was applied by the deceased’s killer from behind her. Dr. Roper estimated the time death occurred as being 5:15 p. m. on January 29, 1978.

William Landrum, forensic serologist with the Alabama Department of Toxicology and Criminal Investigation, testified that tests performed on blood samples from both the deceased and the appellant indicated that they had the same blood type. Mr. Landrum’s examination of appellant’s fingernail scrapings taken by Officer Shanks failed to detect the presence of any tissues or blood. Analysis of seminal fluid stains found on the night gown recovered at the scene indicated that the seminal fluid was produced by someone having the same blood type as the appellant. This particular blood type, AB, is shared by four percent of the population.

Ruth Wheeler, first cousin of the deceased, testified that, on the afternoon in question, sometime between 4:00 and 4:30 p. m., she telephoned the deceased to ask how she was feeling. During the brief telephone conversation, the deceased told the witness that she would call her back because she wanted to talk to her cousin, Bo-Bo. From past conversations, Ms. Wheeler knew that the deceased meant that her cousin, Bo-Bo, was present.

Following the testimony of Ms. Wheeler, the state rested its case. Outside the jury’s presence, the court overruled defense counsel’s timely motion to exclude the state’s evidence grounded upon the state’s alleged failure to prove its case. The motion did not refer to specific counts in the indictment.

Willie Clayton, called by the defense, testified that on the afternoon in question when the appellant returned shortly before 7:00 p. m. he did not notice any scratches or bleeding on his face. Mr. Clayton would not state that appellant did not have any scratches, only that he did not notice such.

Appellant took the stand to deny any involvement in the killing of his cousin, Susie Sanders. On cross-examination, the appellant admitted that he was convicted of first degree murder in Birmingham, Alabama on June 9, 1972. The conviction resulted from a plea of guilty.

Appellant stated that, on the afternoon in question, he used Willie Clayton’s automobile between 3:30 and 6:25 p. m. Appellant denied going to the deceased’s house on the day in question. Appellant detailed his whereabouts during the afternoon in question as follows:

“3:30 Left Orin Henderson’s house in Willie Clayton’s automobile; drove to Uncle Sol Julius’ house.
4:10 After leaving Sol Julius’ house, telephoned Fanny May Sanders. Had sex with Fanny May Sanders in Willie Clayton’s automobile. Went back to Sol Julius’ house. Transported unknown female to Bell Street.
6:25 Returned Willie Clayton’s automobile to him.”

Appellant admitted that his signed written statement contained lies. According to the appellant, Fanny May Sanders gave him fifty dollars on the afternoon in question. Following appellant’s testimony, the defense rested.

Fanny May Sanders was called in rebuttal by the State to testify that she never had sexual intercourse with appellant. Following the trial court’s oral charge, the jury retired to consider its verdict.

I

Appellant first asserts, that reversible error occurred when the trial court admitted certain documentary evidence which tended to show appellant’s prior conviction of first degree murder within the twenty years immediately preceding the instant murder charge.

Appellant asserts that the trial court’s error was in the admission into evidence of “certified copies of the trial court’s docket sheets with bench notes thereon” as proof of the prior conviction instead of proving such conviction through the introduction of a certified copy of the minute entry showing the conviction in question. Childers v. Holmes, 207 Ala. 382, 92 So. 615 (1922); Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975), and cases cited therein.

The appellant had properly objected to the introduction of this evidence at trial (R. pp. 73-74, and 92).

It should be here noted that, at the time this evidence was offered in the trial court, no reference was made by the assistant district attorney to a local act applicable to Jefferson County, Alabama, being Act No. 1037, Acts of Alabama, 1971 Legislature. This act in pertinent part reads as follows:

“Section 1. That in all counties having a population of 500,000 or more according to the last or any subsequent federal census, all orders and decrees shall be made and entered by Circuit Judges sitting in and for said counties on a sheet or sheets now commonly called trial sheets, that there shall be a trial sheet or sheets for each case docketed in such courts properly identified by the style of the case and a case number.
“Section 2. That after all orders and decrees have been made and entered, in any case, by the Circuit Judge or Judges sitting in and for such counties, the Clerk of the Circuit Courts of such Counties shall file such sheets in numerical order in well bound books labelled “Minute Books” and such judgments or decrees shall have the same force and effect as Minutes of the Circuit Courts of the said counties prior to the passage and approval of this act.
“Section 3. That all laws or parts of laws in conflict with this act are repealed.”

The provisions of this act were not cited to this Court in the original brief of the State of Alabama, filed in this cause, nor were the provisions of this statute, a local act, called to the attention of this Court in oral argument of this cause. This matter was first called to our attention on application for rehearing with the District Attorney’s Office for Montgomery County joining the Attorney General’s Office in brief.

We do here determine that the provisions of this statute are controlling with reference to the admission of these Jefferson County records, and, therefore, no error has been made to appear on this question.

II

Approximately two hours after the jury retired to consider its verdict, the court, in view of the late hour (11:00 p. m.), instructed the bailiff to ask the foreman of the jury to come forward. The court, in the presence of both counsel, but in appellant’s absence, told the foreman of the jury to ask the jury to vote on whether or not the jury wished to discontinue its deliberation to retire for the evening. Shortly thereafter, the foreman reported that the jury wished to retire for the evening. The jury was brought into the courtroom, seated in the jury box, instructed to discontinue deliberation and excused in the bailiff’s custody. The court requested defense counsel to inform his client, who was upstairs in the jail, that the jury had retired for the evening.

Appellant argues his absence under these circumstances deprived him of his constitutional right to be present during his trial and thereby requires reversal. While we do not condone communication between the court and jury in the defendant’s absence, the circumstances in this case do not require reversal. Isom v. State, 51 Ala. App. 114, 283 So.2d 188, cert. denied, 291 Ala. 523, 283 So.2d 194 (1973). The matter of the duration of jury deliberation is within the discretion of the trial court. Martin v. State, 29 Ala.App. 395, 196 So. 753 (1940). If the trial court decides to delegate that decision to the jury, it may do so.

Ill

Appellant contends that the trial court erred in failing to instruct the jury on the law with regard to circumstantial evidence.

Under Rule 45A, ARAP, appellant’s failure to object to the trial court’s oral charge does not preclude appellate review as was formerly the case under § 12-22-241, Code of Alabama 1975. Ex parte Jacobs, 371 So.2d 448 (Ala.1979); Watters v. State, 369 So.2d 1272 (Ala.1979).

We think Jacobs, supra, is distinguishable from the instant case in that the court’s oral charge in Jacobs was erroneous. In the case at bar, instruction on the law relating to circumstantial evidence was merely omitted from the court’s charge and omitted from defense counsel’s requested addition to the oral charge.

The colloquy at the conclusion of the trial court’s oral charge (Volume III, R. pp. 475-476) is as follows:

“Some written charges have been requested and they are correct statements of the law and I charge you to give the same weight and same effect to the written charges as you do to the oral charge. “(Court reads written charges.)
“THE COURT: State?
“MR. BENTLEY: The State is satisfied with the Court’s charge, Your Honor.
“THE COURT: Defense?
“MR. CAMERON: Judge, would you charge the jury that a reasonable doubt justifying an acquittal of the defendant may arise from a lack of the evidence as well as the evidence?
“THE COURT: Yes, sir. Anything else?
“MR. CAMERON: I believe that is all.
“THE COURT: A reasonable doubt can arise from a lack of the evidence as well as a reasonable doubt arising from the existence of the evidence. You must, in any event, be convinced beyond a reasonable doubt before you can find the defendant guilty in this or any other case. Does that cover it?
“MR. CAMERON: Yes, Your Honor.
“THE COURT: Now, Chief, lay those Exhibits in there. Now, those will be laid on the table and as soon as he does we will allow you to retire and begin your deliberation.
“Now, ladies and gentlemen, you may retire and begin your deliberations.”

Additionally, the trial judge gave the following written requested charges (Volume III, R. p. 562):

“DEFENDANT’S CHARGE TWELVE
“The court charges the jury that the jury are instructed that the defendant cannot be convicted, unless the evidence is inconsistent with any reasonable theory of innocence.
“DEFENDANT’S CHARGE THIRTEEN
“The Court charges the jury that the legal presumption of innocence is to be regarded by the jury in every case as a matter of evidence, to the benefit of which the accused is entitled, and, as a matter of evidence, attends the accused until his guilt is, by the evidence placed beyond a reasonable doubt.
“DEFENDANT’S CHARGE TWENTY
“The Court charges the Jury that if you are reasonably satisfied from the evidence in this case that the defendant was at some other place and was not at the home of the deceased at the time she was killed, then under the law, it is your duty to find the defendant not guilty.”

In view of the fact that the trial court extended its oral charge at the request of counsel for the appellant, and, in addition, gave written requested charges, which were requested by counsel, we are unwilling to predicate error within the meaning of Rule, 45A, ARAP, on an omission from the trial court’s oral charge. Thus, after careful review of the trial court’s oral charge in its entirety, we hold that no error adversely affecting the appellant’s substantial rights resulted from the omission of oral instruction to the jury on the law with regard to circumstantial evidence. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955); McPherson v. State, 198 Ala. 5, 73 So. 387 (1916).

IV

Appellant’s final contention asserts the unconstitutionality of Alabama’s Death Penalty Law. We pretermit discussion of this issue on the basis of rulings by the Alabama Supreme Court contrary to appellant’s assertion. Jacobs v. State, Ala.Cr. App., 361 So.2d 607 (1978), affirmed, Ala., 361 So.2d 640 (1978).

The application for rehearing is granted; the judgment of conviction is hereby

AFFIRMED.

DeCARLO and BOOKOUT, JJ., concur.

HARRIS, P. J., and BOWEN, J., dissent with opinion.

APPENDIX A

STATE OP ALABAMA I IN THE CIItCUIT COURT OF

VS l MONTGOMERY COUNTY, ALABAMA

ARTHUR JAMES JULIUS I CC 78-861-E

ORDER

This Court, having conducted a hearing pursuant to law to determine whether or not the Court will sentence the above defendant to death or to life imprisonment without parole; and the Court having considered the evidence presented at the trial and said sentence hearing; the Court makes the following findings of fact:

The Court first considers the aggravating circumstances:

(a) The present crime committed was especially heinous, atrocious and cruel.
(b) The previous crime committed was heinous, atrocious and cruel.
(c) The present crime falls without question in the category of capital felony.

The Court considers the mitigating circumstances:

(a) That the defendant is a cooperative inmate.

The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted.

It is therefore Considered and Adjudged by the Court that Arthur James Julius is guilty of the capital felony charged in the indictment.

It is therefore Ordered and Adjudged that Arthur James Julius shall suffer death by electrocution at any time before the hour of sunrise on the 3rd day of January, 1979, inside the walls of the William C. Holman Unit of the Prison System at At-more, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution.

It is therefore further Ordered and Adjudged by the Court that the Warden of William C. Holman Unit of the Prison System at Atmore, or in case of his death, disability, or absence, his deputy, or in the event of the death, disability, or absence of both the Warden and his deputy, the person appointed by the Commissioner of Corrections, at any time before the hour of sunrise, shall on the 3rd day of January, 1979, inside the walls of the William C. Holman Unit of the Prison System at Atmore, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through the body of the said Arthur James Julius, a current of electricity of sufficient intensity to cause his death, and the continuance and application of such current through the body of the said Arthur James Julius, until the said Arthur James Julius be dead.

ORDERED this 24th day of October, 1978.

(s) Richard Emmet

BOWEN, Judge,

dissenting.

With all due respect, I adhere to my concurring opinion in Tomlin v. State, Ala. Cr.App., 1 Div. 23 (Ms. November 20, 1979).

“(I)n my opinion, the plain error rule of ARAP, Rule 45A, does apply to instructions which the trial judge failed to mention to the jury. Omissions from the charge may constitute error just as may misstatements or incorrect charges. The absence of certain instructions by their very absence, will be just as ‘plainly visible’ as an incorrect charge.”

Rule 45A specifies that this Court “shall notice any plain error or defect in the proceedings under review . . . whenever such error has or probably has adversely affected the substantial right of the appellant”. This language encompasses plain errors of omission as well as those of commission.

Instructional error may constitute plain error where the trial court has misdirected or failed to instruct the jury on the law of the case. State v. Tilley, 569 S.W.2d 346, 349 (Mo.App.1978). “Certainly, the failure to instruct as to the necessary elements of the offense charged affects the substantial rights of an accused and such error is ‘plain error’.” Findley v. United States, 362 F.2d 921, 922 (10th Cir. 1966). In State v. Searles, 82 N.J.Super. 210, 197 A.2d 384, 386 (1964), it was held that the failure to charge the pertinent rules when there is a claim of alibi was “plain error”.

The majority states that “we hold that no error adversely affecting the appellant’s substantial rights resulted from the omission of oral instruction to the jury on the law with regard to circumstantial evidence. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955); McPherson v. State, 198 Ala. 5, 73 So. 387 (1916).” A review of these cases makes it obvious that the majority has made no such determination but has only applied the general rule of those two cases cited that the partial or total failure or omission of a trial court to instruct a jury in its oral charge with reference to principles or rules of law that may be, or even are, involved in the trial, cannot be made the basis for a reviewable question on appeal.

These cases are not applicable because in neither case was the defendant sentenced to death. The plain error doctrine applies only to death penalty cases, Pugh v. State, 355 So.2d 386, 389 (Ala.Cr.App.) cert. denied, Ex parte Pugh, 355 So.2d 392 (Ala.1977), so that even the old plain error rule which was limited to “any testimony that was seriously prejudicial to the rights of the appellant” (emphasis added), Ala. Code 1975, § 12-22-241, did not apply and was not applied in those cases.

The majority is simply “unwilling to predicate (plain) error ... on an omission from the trial court’s oral charge”. My position is simply that this Court is bound by Rule 45A, which controls over any statute, Ala.Code 1975, § 15-1-1. We should determine whether the defect in the failure of the trial judge to instruct constitutes error and whether such error did or probably did adversely affect the substantial rights of the appellant. A consideration of the existence of error should not be summarily dismissed or disregarded simply because the trial judge failed to instruct rather than erroneously instructing.

To make such a distinction in a case where capital punishment has been imposed is untenable. The majority’s position is in total disregard of the basic function of an automatic appeal in a capital case and of insuring that a defendant has received a trial at which his substantial rights have not been adversely affected. For this reason I dissent from the majority opinion.

HARRIS, P. J., joins in this dissent.

On Rehearing

TYSON, Judge.

In addition to the written requested charges shown in Part III of the original opinion of this Court,-we also find the following written charge requested by the appellant was also given by the trial judge (Volume III, R. p. 562):

“DEFENDANT’S CHARGE ELEVEN
“The court charges the jury that if there is a probability that the accused is innocent, arising from the evidence, there is a reasonable doubt as to his guilt.”

Moreover, a number of Alabama cases have pointed out that where, as here, the evidence is partly circumstantial and partly direct it is not error to refuse to give written charges based upon a consideration of the circumstantial evidence since all the evidence was not circumstantial. Jones and Weatherford v. State, 54 Ala.App. 167, 306 So.2d 33 (1974), affirmed, 293 Ala. 762, 306 So.2d 45 (1975), and authorities therein cited.

Also, the refusal of charges based upon the consideration of circumstantial evidence, where, as here, the evidence is partly circumstantial and partly direct, are properly refused since such charges on circumstantial evidence would not be predicated upon a consideration of all the evidence. Jones and Weatherford, supra; Johnson v. State, 55 Ala.App. 581, 317 So.2d 548 (1975); Lewis v. State, Ala.Cr.App., 372 So.2d 882, cert. denied Ala., 372 So.2d 885 (1979).

OPINION EXTENDED, APPLICATION OVERRULED.

DeCARLO and BOOKOUT, JJ., concur.

HARRIS, P. J., and BOWEN, J., dissent.

      . See § 13-ll-2(a)(6) and § 13-1 l-2(a)(13), Code of Alabama 1975.

      . See trial court’s findings of fact hereinafter attached as Appendix A.

      . See § 13-ll-2(a)(13), Code of Alabama 1975.


source: Caselaw Access Project

author: PER CURIAM. MADDOX, JONES and ADAMS, Justices

license: Public Domain

text:
    Ex parte Arthur James JULIUS. (In re Arthur James Julius, alias v. State of Alabama).
    79-404.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Rehearing Denied Oct. 9, 1981.
    George W. Cameron, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., Mary Jane LeCroy Brannon, Asst. Atty. Gen., for respondent.
   ON APPLICATION FOR REHEARING

PER CURIAM.

The original opinion in this case, issued June IB, 1980, is withdrawn and the following is substituted in its place.

Reversed and remanded to the Court of Criminal Appeals on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, [1981], 403 So.2d 154 (Ala.1981); and Reed v. State, 407 So.2d 162 (Ala.1981).

REVERSED AND REMANDED.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, Ala.Cr.App., 407 So.2d 152.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala.1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala.1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2386, 65 L.Ed.2d 392 (footnote 7) (1980).


author: PER CURIAM.

text:
    Arthur James JULIUS, alias v. STATE.
    3 Div. 5.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1981), and Julius v. State, 407 So.2d 152 (Ala. 1981).

REVERSED AND REMANDED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Ricky Louis REED v. STATE.
    7 Div. 697.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Rehearing Denied April 22, 1980.

      J. Louis Wilkinson, Charles M. Purvis, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Robbery when the victim is intentionally killed by the defendant — § 13-ll-2(aX2), Code of Ala.1975; sentence: death by electrocution.

Around 8:00 or 8:30 p. m. on December 23, 1978, Truman P. Johnston stopped his automobile on a downtown street in Anni-ston to make a telephone call from a telephone booth adjacent to an abandoned restaurant. He called his wife and requested that she meet him at Sears to get a Christmas present he had selected for her. Their conversation was interrupted when she heard what she thought to be a scuffle occurring at the other telephone. She heard a voice, which was not that of her husband, saying “come on” or “that’s enough.” She heard nothing else over the telephone after that. She and her son-in-law then drove to Sears looking for her husband. When they were unable to find him there, they drove around town until they saw his automobile parked in front of the telephone booth and abandoned restaurant.

The victim’s son-in-law found him lying in a pool of blood behind the restaurant. The victim was still alive and was transported to a hospital in Birmingham where he died the next day. The State’s evidence showed that the victim had been beaten about the head and face and that death was caused from gunshot wounds to the head.

Weldon Williams, in exchange for immunity from prosecution, testified essentially as set out below.

Around 3:30 or 4:00 p. m. on the date of the crime, Williams encountered the appellant at the home of the appellant’s sister. He had known the appellant for the past ten years. Williams had been having an argument with his girl friend, and he asked the appellant to accompany him to her home. The two men left with Williams’ sixteen-year-old brother Timothy. They stopped by a shoeshine parlor where the appellant procured what appeared to Williams to be a .38 caliber pistol from one Anthony Woods. They then carried Timothy Williams home and drove on to the home of Williams’ girl friend. Upon arriving there Williams took the gun from the appellant, kicked in the door, returned the gun to the appellant, and then went upstairs. After a heated discussion with Williams’ girl friend, he and the appellant left and drove to Williams’ house where they again saw Anthony Woods. The appellant returned the gun to Woods at that time. After remaining there for about an hour, the appellant and Williams drove to the home of Anthony Woods’ girl friend. It was just getting dark at that time. There they again encountered Woods, and the appellant borrowed the gun from Woods a second time. After staying there about forty-five minutes, Williams and the appellant left and headed toward Quintard Mall. Their route carried them south on Noble Street past the closed Old South Restaurant. It was there in a telephone booth adjacent to the restaurant that they saw the victim.

Williams testified that he and the appellant had no conversation about the victim or about the gun immediately prior to the crime. However, while stopped at a traffic light at the corner south of the restaurant, the appellant told Williams to turn the corner and park the car. Before Williams could do so, the appellant had exited the car and headed toward the telephone booth. Williams turned the car around, parked it, got out, and started to follow the appellant. He saw the appellant with his arm around the victim’s neck, pointing the gun at him, and backing him out of the telephone booth and around the corner of the restaurant. He then heard two shots fired, whereupon he turned and headed toward the car. Before he got there the appellant passed him in a trot. The appellant told him that he had to shoot because the victim resisted and also because the appellant did not want to be identified.

As the two moved toward their car, Williams noticed some traffic approaching them on Noble Street. The appellant told him to walk beyond their car until the traffic passed. Shortly thereafter they entered the car and continued to Quintard Mall. While in route the appellant gave Williams $40 which was half of the money he had taken from the victim. The appellant said he planned to use the victim’s checkbook, and Williams replied that it would be best for the appellant to throw away all of the victim’s personal effects.

Before reaching the mall they stopped at a convenience store to buy something to drink. While there Williams saw the appellant throw the victim’s billfold and other personal effects behind the store. They then proceeded to Quintard Mall. While there they saw and talked to Jerry and Annette Jarrells.

Some time after leaving the mall, Williams and the appellant went to the home of Mary Heath where they again encountered Anthony Woods. The appellant returned the gun to Woods and told him that “he had just killed a guy with t^e gun.”

Williams testified that he had no knowledge of the robbery before it happened. It was only after its completion that he was informed by the appellant of what transpired. On cross-examination Williams testified that he was not a participant in the commission of the crime, but based upon his knowledge of what happened he considered himself to be a part of it.

I

The appellant contends that the State did not adduce sufficient corroborative evidence of Williams’ testimony to sustain a conviction.

Section 12-21-222, Code of Ala.1975, provides:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

Assuming, arguendo, that Williams was an accomplice, the issue then is whether the State introduced other evidence independent of Williams’ testimony tending to connect the appellant with the commission of the offense. We will therefore summarize only such of the State’s evidence which was introduced for the purpose of corroborating Williams’ testimony.

Timothy Williams, brother of Weldon Williams, testified that he was with his brother and the appellant “some time near Christmas” in 1978. He did not recall how close to Christmas it was. At first he did not recall the day of the week, but later said it was on a Saturday. The prosecutor asked, “Could this have been the Saturday before Christmas?” The witness answered, “Yes.” Other evidence in the case proved that the crime was committed on the Saturday before that particular Christmas, on December 23, 1978.

Timothy Williams stated that he was with his brother and the appellant on that date “around about dinner time, 12:00, something like that.” The location was at “Joshua’s Shoe Shop” in Anniston. On that occasion the witness observed Anthony Woods give the appellant a gun (of some undesignated description), and the appellant put it in his pocket. The witness’ brother and the appellant then took the witness home and left him, and he did not see the appellant again.

Detective Sergeant Walter Williams, of the Anniston Police Department, testified that on March 19,1979, he interviewed Wei-don Williams concerning the instant offense. After that interview he, along with Lieutenant Gary Carroll, Weldon Williams and his attorney, went to the Quick Shop Convenience Store and discovered the various personal effects of the victim in a vacant lot behind the store. Sergeant Williams stated that the discovery of the items was accomplished through information provided by Williams.

Jerry Jarrells testified that he was with his wife at the Quintard Mall on the date in question and saw the appellant and Weldon Williams. Both were in the company of a third man whose identity was unknown to him. Jarrells stated that he and the appellant talked for approximately ten minutes. He later saw the appellant twice as the appellant walked through the mall; however, he could not recall the time at which that occurred other than it was near closing time.

Harold Turner testified that around 7:30 or 8:00 p. m. on December 23 he and his family were traveling north on Noble Street when he saw two black males walking north of the traffic light at the comer immediately south of the Old South Restaurant. He also saw an automobile identical in all respects to his father’s with the exception of a radio antenna mounted on the trunk. He identified a photograph of the victim’s car as the one he saw. Turner could not identify the appellant or Williams as either of the two men he had seen on that occasion.

The State’s evidence concerning ballistics was inconclusive. The bullet removed from the victim had characteristics of being fired from a .38 caliber weapon, but no further information was ascertainable concerning the bullet or the gun from which it was fired. Furthermore, no weapon was ever found during the investigation so as to supply a test weapon for a ballistics comparison.

The State’s evidence concerning possible fingerprint identification of the appellant proved useless. None of the appellant’s fingerprints were found on any of the victim’s personal effects which had been recovered by the police.

The method traditionally used by the courts of this state in analyzing the evidence to determine if there has been sufficient corroboration of an accomplice’s testimony has been to first set aside that testimony and then determine if the remaining evidence tends to connect the defendant with the commission of the offense. Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947); Kimmons v. State, Ala.Cr.App., 343 So.2d 542 (1977). The corroborative evidence of an accomplice’s testimony need only to legitimately connect the accused with the offense. Blackburn v. State, Ala. Cr.App., 372 So.2d 908 (1979). Such corroborative evidence need not be direct for circumstantial evidence is entitled to the same weight as direct evidence provided it points toward the guilt of the accused. Kelsoe v. State, Ala.Cr.App., 356 So.2d 735 (1978); McLaren v. State, Ala.Cr.App., 353 So.2d 24 (1977). Likewise, corroborative evidence need not be sufficiently strong of itself to support a conviction. The word “corroboration” has been defined to mean “strengthen,” not necessarily to prove any specific fact testified to by the accomplice. Corroboration was generally not required at common law and, therefore, our statute requiring such is in derogation of the common law and must be strictly construed. Cunningham v. State 54 Ala.App. 656, 312 So.2d 62 (1975). The corroboration requirement is a statutory rule and not a constitutional right. Alexander v. State, 281 Ala. 457, 204 So.2d 488 (1967).

In the instant case much of the State’s evidence corroborated Williams’ testimony only to the extent that it merely showed the commission of the offense or the circumstances of the offense, but failed to connect the appellant with its actual commission. For instance, details showing such things as the location of the offense, the guo modo of committing it, and where the personal effects of the victim were disposed of all substantiate the fact that the witness had a great deal of knowledge about the details of the offense. However, a mere recitation of the details of the crime is insufficient if it fails to connect the accused with the offense. Senn v. State, Ala., 344 So.2d 192 (1977).

The finding of a still where an accomplice said an accused was making whiskey was insufficient to connect the accused with that crime. Alexander v. State, 20 Ala. App. 432, 102 So. 597 (1925). Likewise, finding stolen items where an accomplice said an accused hid them was insufficient corroboration in Lotz v. State, 23 Ala.App. 496, 129 So. 305 (1930). The reason for such a rule is obvious. The accomplice knows the details of the crime because he was present and a participant and can recite those details whether or not the accused was a participant in the offense.

In the instant case the fact that items were where the accomplice said they would be found in no way independently connects the accused with the offense. The accomplice Williams may have disposed of the victim’s personal effects by himself and would certainly know their whereabouts. He likewise would know all the details of the shooting if he committed the crime and the appellant was not present. “This is why it is incumbent upon the State to present evidence independent of the accomplices’ which connects the defendant to the commission of the crime. Else, any guilty party is apt to implicate an innocent party in exchange for a grant of immunity from prosecution.” Lindhorst v. State, Ala.Cr. App., 346 So.2d 11, at 15 (1977), cert. denied, Ala., 346 So.2d 18.

Our legislature recognized a fact which has never been recognized in federal law— that a guilty party, when offered immunity from prosecution, will point an accusing finger in any direction to avoid prosecution. The more serious the penalty, the more likely a false accusation will occur. Thus, our legislature, in order to protect the innocent and to preserve the presumption of innocence, has required additional evidence for a conviction in such cases via § 12-21-222, supra.

With two exceptions, only the testimony of the accomplice Williams connects the appellant with the offense. Those two exceptions, however, are the testimony of Timothy Williams and that of Jerry Jarrells.

The testimony of Timothy Williams tends to corroborate the accomplice’s statement that on the afternoon shorty before the crime the appellant obtained a pistol from Anthony Woods.

The testimony of Jerry Jarrells places the appellant with the accomplice shortly after the commission of the offense. Of course, being in the company of an accomplice in proximity in time or place to the commission of the offense is not always sufficient corroboration. In Kimmons, supra, this court stated at 547:

“A more proper and correct statement of the rule is that the fact that at or about the time of the commission of the offense with which the accused is charged, he and the accomplice were together, in or near the place where the crime was committed, may, in conjunction with other facts and circumstances, sufficiently tend to connect the accused with the commission of the crime to furnish the necessary corroboration of the accomplice.
This conclusion is substantiated by a reading of those cases announcing the general rule. Additional facts and circumstances, however slight, must be adduced to support the testimony of the accomplice in addition to or in conjunction with those of proximity, chronologically and graphically, to the alleged offense in the association of an accomplice. ...” (Citations omitted.)

In the' instant case neither the testimony of Timothy Williams nor that of Jerry Jar-rells standing alone would be sufficient corroboration of the accomplice’s testimony. Neither would their testimony standing alone be sufficiently strong in and of itself to support a conviction. However, taken together we believe their testimony is sufficient to “strengthen” that of the accomplice Weldon Williams, thereby providing the necessary corroboration.

In Cunningham, supra, we stated at 54 Ala.App. at 659, 312 So.2d at 64:

“[T]he test to corroborate the accomplice’s testimony is not that evidence independent of such testimony standing alone would prove the appellant committed the crime. The test rather is that there be independent evidence going to strengthen or fortify the statement of the accomplice which would tend to connect the appellant with the commission of the crime....”

As in Cunningham, supra, we here find that the independent testimony of Jarrells and Timothy Williams meets the test of strengthening and making Weldon Williams’ testimony believable and likewise tends to connect the appellant with the offense.

Timothy Williams’ testimony placing the gun in the appellant’s hands shortly before the offense (see Kelsoe, supra) in conjunction with “the facts of proximity and association” supplied by Jarrells’ testimony sufficiently meets the test set out in Kimmons, supra.

We recognize the corroboration here to be slight; however, pursuant to those cases hereinabove set out and considering that the corroboration requirement is one created of statute in derogation of the common law rather than being constitutional in nature, we find no error on the part of the trial judge in overruling the appellant’s motion to exclude the evidence.

II

The appellant contends that the prosecutor concealed the existence of an eyewitness to the crime whose testimony would have been materially favorable to the defense.

It appears that the defense first learned of the existence of the witness, Renea Har-grove, through a presentence investigation report submitted to the court by the State. The appellant filed a motion for a new trial which was overruled after a hearing. From the appellant’s brief:

“At the hearing Mrs. Hargrove took the stand and her testimony disclosed that on the night of the occurrence she was driving down Noble Street when she noticed three black men take a white man from a telephone booth at the deserted Old South Restaurant and ‘carry’ him around the building, one black man on each side of the white man, and another black man following them. Mrs. Hargrove gave this information to the police the following week, but heard nothing further from them until she was served with a District Attorney’s subpoena around 8:00 p. m. or 9:00 p. m., on May 20, 1979, the night before the trial was to commence the next morning. At this time she explained that she was leaving the next morning to attend her grandfather’s funeral in Florida and, would not be back in town until Tuesday or Wednesday. The district attorney was made aware of the situation and told Mrs. Hargrove to contact his office when she returned.”

Mrs. Hargrove did not return in time to testify at the trial, and it is apparent that neither the appellant nor his counsel knew of her existence until after the trial had concluded. We find no lack of diligence on the part of the defense in failing to learn of the existence of the potential witness.

The rule applicable to the instant issue was set out by Justice Merrill in Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958):

“In order for a new trial to be granted on newly discovered evidence, the movant must show that the proffered evidence could not have been discovered before the trial by use of due diligence, that it was material and competent, not merely cumulative, and will probably change the result... .
“The granting of a motion for a new trial was addressed to the sound discretion of the trial court and will not be revised on appeal unless it clearly appears that the discretion has been abused....” (Citations omitted.)

See also: United States v. Spivey, 508 F.2d 1061 (5th Cir.1975).

In reviewing the testimony of Mrs. Har-grove given during the hearing on the motion for a new trial, we find it to be material to the ultimate issue in the case. However, we also find her testimony to be merely cumulative or at most merely impeaching. We likewise find that her testimony was not such that on a new trial would probably change the result in bringing about an acquittal for the appellant.

The appellant contends that Mrs. Har-grove saw three black males at the scene of the crime. Her testimony on that point is equivocal. When asked if she was positive that she saw three men, she stated, “I know there was two; but I can’t be sure about the third one. It looked like three.” She likewise testified that she could not identify any of the men she saw on that occasion. She again reiterated that “it could have been just two, because it was dark and I didn’t pay any attention.”

Mrs. Hargrove’s testimony is somewhat cumulative of other evidence given in the case concerning the time, location, and manner in which the robbery was committed. However, her testimony is likewise somewhat impeaching of that given by Weldon Williams. He testified that the appellant alone committed the robbery and killing, whereas Mrs. Hargrove’s testimony indicates at least two and possibly three persons were involved in the crime. Her testimony however does not exculpate the appellant. She could not testify that the appellant was not one of the persons she observed in the apparent commission of the crime.

The testimony of the new witness would certainly have been beneficial to counsel for the appellant in preparing for cross-examination of Weldon Williams. However, the new witness’ testimony was not such that would probably change the result in a new trial. That was the determination made by the trial judge, and we cannot say that he clearly abused his discretion in reaching that decision.

The appellant also contends that the prosecutor’s failure to disclose the existence of Mrs. Hargrove as a material witness is cause for reversal pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The United States Supreme Court in Brady stated:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Emphasis supplied.)

It is clear that Brady requires the production of evidence favorable to an accused when the accused makes a request for such. In the instant case, contrary to appellant’s assertions in brief, we find no such request.

Appellant contends that “requests were made during trial for any exculpatory material in the possession of the prosecutor,” but that none was disclosed. In the appellant’s motion for a new trial, appellant contends that at the close of the State’s case he made a motion requesting any “Brady material” that would be materially favorable to the accused. We do not find such a motion or a request in the record. At the end of the State’s case in chief, defense counsel moved to exclude the State’s evidence on grounds discussed in Section I, supra, but made no discovery motion. The record does reveal that during the course of cross-examining Weldon Williams defense counsel made the following request:

“May it please the Court, I would say for the record, the prosecutor’s office has kindly furnished us with one statement and at this time we request if there are any other statements this man [Weldon Williams] made we officially request we be allowed to see them and read them before continuing our examination.”

After the prosecutor assured the court that the State possessed no other statements or tape recordings made by Williams, the matter was dropped.

There is no constitutional right to discovery in a criminal case, and Brady v. Maryland, supra, did not create one. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). In the instant case there was no motion for discovery seeking the information which the defense now claims was suppressed. Brady, supra, therefore would not apply. Likewise we find no suppression by the State of evidence tending to prove the innocence of the appellant which would amount to a denial of a fair trial. Here, we find only that the State failed, on its own motion, to apprise the defense of the name of a potential State’s witness and the substance of her testimony. We find that conduct on the part of the prosecution to fall short of a constitutional violation. Weatherford v. Bursey, supra.

Ill

When a witness admits being present at the scene of a crime, but denies any participation in the offense, a question of fact arises as to whether or not he was an accomplice. Yarber v. State, Ala., 375 So.2d 1229 (1978). Mere presence at the scene of a crime without more is insufficient to show complicity in the crime. Except where the State’s evidence undisputedly makes a witness an accomplice, the defendant has the burden of showing the witness’ complicity. Jacks v. State, Ala.Cr. App., 364 So.2d 397, cert. denied, Ala., 364 So.2d 406 (1978).

The trial judge in the instant case held as a matter of law that Weldon Williams was an accomplice. Counsel for the appellant made the same contention. The jury was charged to the same effect. The appellant makes no contention on appeal that the trial judge was in error in that regard. Whether the trial judge erroneously instructed the jury that Williams was an accomplice as a matter of law or whether he should have submitted that question to the jury for their determination results in no reversible error in the instant situation.

“Whether a witness is an accomplice may be a question of law or fact. It becomes a question of law only where the court is clearly convinced by a preponderance of the evidence that the witness could have been indicted and convicted of the same charge for which the defendant is on trial and that the witness freely participated in the crime. Where there is no conflict in the testimony, the question of whether a witness is an accomplice is a question of law for determination by the trial court. . .. Where a witness denies participation in the crime, the issue of his being an accomplice is a disputed fact presenting a question for the jury despite the additional fact that the witness previously had been convicted for the identical crime for which the defendant is on trial....” Flanagan v. State, Ala.Cr.App., 369 So.2d 46 (1979).

It is unnecessary for this court to pass on whether the trial court erred in its determination that Williams was an accomplice. He was treated as an accomplice by the court, the prosecution, and the defense, and in so doing a greater burden of proof was placed upon the State in requiring independent corroboration of Williams’ testimony. Pursuant to Rule 45A, Alabama Rules of Appellate Procedure, and §§ 12-22-240, -241, Code of Ala. 1975, this court must take notice of any “plain error” only where such error has or probably has adversely affected the substantial rights of the appellant. Thus, if the trial court committed any error in determining as a matter of law that Williams was an accomplice, such a ruling inured strongly to the favor of the appellant and against the State.

IV

At the end of the sentencing hearing, the trial court set forth in writing extensive and complete findings of fact from the trial and sentencing hearing pursuant to § 13-11-4, Code of Ala. 1975. However, the court in enumerating aggravating circumstances found inter alia “that the killing of Truman P. Johnston was committed while the defendant was engaged in the commission of a robbery of Truman P. Johnston.”

The crime charged consisted of two elements: (1) the robbery and (2) the intentional killing. An element of the offense charged cannot be used as an aggravating circumstance to that offense. In other words robbery cannot be used as an aggravating circumstance to the crime of capital robbery. Keller v. State, Ala.Cr. App., 380 So.2d 926 [1979]; Colley v. State, Ala.Cr.App., 405 So.2d 374 [1980]; Bufford v. State, Ala.Cr.App., 382 So.2d 1162 [1980]. Pursuant to Johnson v. State, Ala., 378 So.2d 1173 [1979], a remandment to the circuit court for a new sentencing hearing is mandated.

The conviction of the appellant is hereby affirmed, but the cause is remanded to the trial court with directions to conduct a rehearing for the purpose of sentencing in accord with this opinion and cases cited therein.

AFFIRMED IN PART; REMANDED WITH DIRECTIONS.

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


author: BEATTY, Justice. BEATTY, Justice. MADDOX, Justice BEATTY, Justice. MADDOX, Justice

text:
    Ex parte Ricky Louis REED. (Re Ricky Louis Reed v. State of Alabama). Ex parte State of Alabama, ex rel. Attorney General. (Re Ricky Louis REED v. STATE of Alabama).
    79-560, 79-561.
    Supreme Court of Alabama.
    June 12, 1981.
    Rehearing Denied Aug. 28, 1981.
    Motion for Clarification of Opinion on Rehearing Oct. 2, 1981.

      J. Louis Wilkinson, Birmingham, for petitioner in 79-560 and respondent in 79-561.
    Charles A. Graddiek, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for respondent in 79-560 petitioner in 79-561; and Ed Carnes, Asst. Atty. Gen., on application for rehearing and motion for clarification.”
   BEATTY, Justice.

The judgment of the Court of Criminal Appeals is reversed under the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Kyzer v. State, Ala., 399 So.2d 330 (1981), and this cause is remanded to that Court with directions to order a new trial.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Justices concur.

ON APPLICATION FOR REHEARING

BEATTY, Justice.

The State of Alabama urges this Court to stay its mandate of a new trial for the defendant. The ground advanced is that, because the United States Supreme Court has granted certiorari in Evans v. Britton, 628 F.2d 400 (5th Cir. 1980), op. ex. 639 F.2d 221 (5th Cir. 1981) and will review that decision in accord with its own decision rendered in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), our own mandate should await that outcome.

We must point out that following the United States Supreme Court’s decision in Beck v. Alabama, supra, we construed the applicable death penalty statute to require bifurcated proceedings for conviction and sentencing. Beck v. State, Ala., 396 S.2d 645, 662 (1981). We also recognized the well-established Alabama statutory and common law rule requiring jury instructions on lesser included offenses supported by the evidence, and we acknowledged the requirement of applying that rule in future capital cases. Beck v. State, supra, at 657.

A majority of this Court, however, also recognized that the death penalty statute applicable to Beck, because of its preclusion clause, did not allow jury instructions on lesser included offenses. Hence, any offer of evidence thereof, or any plea based thereon, would have been irrelevant and impermissible at trial under that statute. Accordingly, the cases of persons tried and convicted under Code of 1975, § 13-11-1 to -9, as construed in Beck v. State, supra, have been remanded for new trials on the merits in order to afford them the opportunity to proffer evidence of lesser included offenses. Beck v. Alabama, supra; Beck v. State, supra. That result, of course, represents adherence to, not departure from, the rule requiring the jury instruction on lesser included offenses when such a charge is warranted by the evidence. For these reasons, we do not consider the United States Supreme Court’s review of Evans v. Britton, supra, as a compelling reason to delay the mandate in this case.

OPINION EXTENDED: APPLICATION FOR REHEARING OVERRULED.

TORBERT, C. J., and FAULKNER, AL-MON, SHORES, and EMBRY, JJ., concur.

MADDOX and ADAMS, JJ., concur specially.

JONES, J., concurs in the result to remand.

MADDOX, Justice

(concurring specially).

I concur in the judgment which denies the State’s request to stay the mandate of a new trial for the defendant Reed on the ground that the Supreme Court of the United States has granted certiorari in Evans v. Britton, 628 F.2d 400 (5th Cir. 1980), op. ex. 639 F.2d 221 (5th Cir. 1981). I also concur in the judgment that Reed is entitled to a new trial under the decision of the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). I have reviewed the facts of this case as set out in the opinion of the Court of Criminal Appeals, and I am convinced that this case is unlike that of Ritter v. State, 403 So.2d 154 (Ala.1981) (Maddox, Jones and Adams, JJ., dissenting). If this ease involved a situation where there was no evidence of a lesser included offense, I would agree to stay the mandate until the Supreme Court of the United States decides Evans v. Britton, supra.

I file this special concurrence to make one further point concerning the majority opinion. In the opinion, the majority states:

A majority of this Court, however, also recognized that the death penalty statute applicable to Beck, because of its preclusion clause, did not allow jury instructions on lesser included offenses. Hence, any offer of evidence thereof, or any plea based thereon, would have been irrelevant and impermissible at trial under that statute. Accordingly, the cases of persons tried and convicted under Code of 1975, § 13-11-1 to -9, as construed in Beck v. State, supra, have been remanded for new trials on the merits in order to afford them the opportunity to proffer evidence of- lesser included offenses. [Emphasis added.]

If the majority holds that persons tried and convicted under Code 1975, § 13-11-1 to -9, were absolutely prohibited from offering any evidence of a lesser included offense, I think the majority errs. I think that Reed, on his plea of not guilty, was not precluded from introducing evidence that he may have been guilty of some lesser included offense, thereby showing that he was not guilty of the capital offense. In fact, under the death penalty statute, with the preclusion clause in effect, a defendant, such as Reed, if he successfully proved he was guilty of a lesser included offense, could have been acquitted, because the jury had to be convinced that he was guilty of the capital offense or nothing.

ADAMS, J., concurs.

MOTION FOR CLARIFICATION OF OPINION ON REHEARING, AND MOTION FOR SUSPENSION OF RULES TO PERMIT FILING THEREOF

BEATTY, Justice.

Motion for suspension of rules to permit filing of motion for clarification of opinion on rehearing is denied.

MOTION DENIED.

TORBERT, C. J., and FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

The State files a motion which reads as follows:

MOTION FOR CLARIFICATION OF OPINION ON REHEARING, AND MOTION FOR SUSPENSION OF RULES TO PERMIT FILING THEREOF
The State of Alabama respectfully moves this Court to correct or clarify one sentence of its opinion on rehearing in this case, and to suspend the rules to permit consideration of this motion. In support, the State offers the following grounds:
1. This Court denied the State’s application for rehearing with opinion dated August 28, 1981, with the result being a reversal of the case.
2. The State does not intend to contest the reversal of this case any further either in this Court or by a petition for certiorari in the United States Supreme Court. The State accepts the result....
3. However, there is one sentence of this Court’s August 28, 1981 opinion which is unclear, and which may cause confusion and is likely to be misinterpreted unless it is corrected or clarified by this Court. The sentence in question is the one emphasized in the following quotation from page 2 of this Court’s opinion:
A majority of this Court, however, also recognized that the death penalty statute applicable to Beck, because of its preclusion clause, did not allow jury instructions on lesser included offenses. Hence, any offer of evidence thereof, or any plea based thereon, would have been irrelevant and impermissible at trial under that statute. Accordingly, the cases of persons tried and convicted under Code of 1975, §§ 13-11-1 to -9 as construed in Beck v. State, supra, have been remanded for new trials on the merits in order to afford them the opportunity to proffer evidence of lesser included offenses. .. . Slip op. at 2 (emphasis added).
4. As explained in the brief filed in support of this motion, the sentence referred to above is incorrect, or at best unclear, and not only will be misinterpreted but already has been. It is of great importance that this Court consider correcting or clarifying that one sentence.
5. Because a second application for rehearing in these circumstances is not permitted by A.R.A.P. 40 and a motion for clarification is not expressly authorized by the rules, this Court is requested to suspend the rules pursuant to A.R.A.P. 2(b) in order to consider this motion.
6. The rules should be suspended to permit consideration of this motion, because “good cause” within the meaning of A.R.A.P. 2(b) does exist. The “good cause” is the virtue of accuracy and clarity in general and the desirability of avoiding confusion and misinterpretation in particular.
7. This motion stems not from any obstreperousness on the part of the State, but rather is filed respectfully and in good faith in order to bring to this Court’s attention a problem that needs to be remedied.
WHEREFORE, for these reasons, the State requests this Honorable Court to suspend the rules and consider this motion, and having considered it to correct or clarify the one sentence of the August 28, 1981 opinion referred to in paragraph number 3 of this motion.

I concur to deny the State’s motion, but believe that the reason for my concurrence in this action should be stated. First, let me say that I share some of the same concerns as does the State that a sentence in the majority opinion is ambiguous. I pointed out this ambiguity in a special concurrence when I stated that “[i]f the majority holds that persons tried and convicted under Code 1975, §§ 13-11-1 to -9 were absolutely prohibited from offering any evidence of a lesser included offense, I think the majority errs.” The majority, aware of my concern, by reason of my special concurrence, was not persuaded to take any action with regard to the sentence. It must be remembered, however, that I concurred in the result that Reed was entitled to a new trial because there was evidence in his trial of a lesser included offénse. The State now concedes, in the motion it files today, that Reed was entitled to a new trial. Then why is the State concerned about the sentence contained in the opinion? The State asks the same question in its brief filed in connection with the motion, and states the following as the reasons why it is concerned:

Why It Matters
The State has now conceded that the appellant in this case in entitled to a new trial because there is evidence to support a lesser offense instruction in his case.. . . Since the State does not contest the result in this case, why does it matter what one sentence of the rehearing opinion says? It matters a great deal for two reasons.
The first reason is that the State is locked in a battle with defendants Evans and Ritter in the United States Supreme Court, and their attorney is arguing that the sentence in question from the rehearing opinion in this case means that the United States Supreme Court should not even consider the Evans and Ritter cases. He is arguing that the sentence in question means that this Court has reversed all pre-Beck capital cases on state law grounds and therefore federal constitutional considerations are not relevant. Respondent’s Brief in Opposition to Certiorari, Alabama v. Ritter, No. 81-247 (U.S., Oct. Term, 1981) (filed Sept. 10, 1981) pp. 4-5. After quoting the sentence in question to the United States Supreme Court, the attorney for Ritter has informed that court that the sentence means that, “[t]he Alabama Supreme Court has decided that their interpretation of the state law surrounding a defendant’s right to evidentially supported lesser included offense charges entitles all defendants tried under the 1975 law, including respondent, to a new trial as a matter of state law.” Id., at 5 (emphasis added). That obviously is not what this Court meant by the sentence in question, since this Court emphasized on rehearing in the Ritter case that this Court’s post-Beck reversals were based on federal constitutional grounds. Ritter v. State, No. 77-798 [403 So.2d 154] (Ala. June 12, 1981) (on rehearing), slip op. at 1-2 [at 154]. Nonetheless, the argument of Rit-ter’s attorney that this Court on rehearing in this case undid what it said on rehearing in Ritter is a permissible one because the sentence in question from the rehearing opinion in this case is confusing, unclear, and subject to misinterpretation.
The State realizes, of course, that a majority of this Court thinks that the State should lose the federal constitutional issues in the Evans and Ritter cases when the United States Supreme Court decides them, but that is not the question here. Certainly the State has as much right to seek review of federal constitutional issues in the United States Supreme Court as any defendant does. The limited question here is not who is correct on the federal constitutional issues, but solely whether this Court should clarify or correct a sentence that is being misinterpreted. Because an unclear sentence from one of this Court’s opinions is being misinterpreted and may mislead the United States Supreme Court about Alabama law, then this Court should clarify or correct (or delete) that sentence.

I believe the State is unduly concerned. The Supreme Court of the United States granted the State’s petition to review Evans v. Britton, 628 F.2d 400 (5th Cir. 1980) (op. ex. 639 F.2d 221 (5th Cir. 1981). The Supreme Court of the United States, I am confident, will decide the federal constitutional questions presented in that case, on their merits, without reference to some sentence contained in this case.

It is perfectly clear that the Fifth Circuit Court of Appeals, in Evans v. Britton, and this Court in Ritter v. State,403 So.2d 154 (1981), determined that the Supreme Court’s decision in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), mandated new trials in every capital case, whether there was any evidence of a lesser included offense presented at the trial or not. In fact, in Ritter, the majority of this Court opined:

We believe this result [granting a new trial] is compelled by the decision of the Supreme Court of the United States in Beck and is consistent with the interpretation of that decision reached by the Court of Appeals for the Fifth Circuit in Evans v. Britton, 639 F.2d 221 [1981] (1981), which involved Ritter’s partner in this crime.

Justices JONES and ADAMS and I dissented in Ritter. We did not construe Beck v. Alabama as requiring a new trial in any case where there was no evidence of a lesser included offense. Whether the Fifth Circuit Court of Appeals is right on the federal constitutional issue presented in Evans v. Britton will be determined by the United States Supreme Court. Because a majority of this Court, in Ritter, followed the same rationale as did the Fifth Circuit Court of Appeals in Evans v. Britton, the resolution of the federal constitutional question will be made by the Supreme Court of the United States in Evans v. Britton. I assume that the United States Supreme Court, in due time will decide whether Justices Jones and Adams and I are right in our reading of Beck v. Alabama, or whether the Fifth Circuit Court of Appeals and the majority of this Court are right. In any event, I do not believe that the Supreme Court of the United States will be distracted from its mission to decide this critical federal constitutional question because of one sentence contained in this case.

In conclusion, I do not believe that the State has shown sufficient “good cause” for this Court to suspend the rules to address the question sought to be addressed by the State. Consequently, I concur that the motion is due to be denied.


text:
    Ricky Louis REED v. STATE.
    7 Div. 697.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    J. Louis Wilkinson, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Edward E. Carnes and Jean Williams Brown, Asst. Attys. Gen., for respondent.
   BOOKOUT, Judge.

The order of the circuit court is reversed and the cause remanded with directions to grant a new trial on mandate of the Alabama Supreme Court in Reed v. State, 407 So.2d 162 (Ala.1981), and Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1981).

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur.


author: TYSON, Judge.

text:
    Willie James SHOWERS, alias v. STATE.
    5 Div. 527.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Milton C. Davis, Tuskegee, for appellant.
    Charles A. Graddick, Atty. Gen. and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Willie James Showers was indicted and convicted of carnally knowing Tommy Grant, a man, contrary to law. The trial court sentenced Showers to seven years imprisonment.

Because reversible error occurred after the jury had retired and was deliberating their verdict, we pretermit consideration of the evidence in this case.

I

Following the oral charge of the court, the members of the jury retired and began their deliberations. Record pages 67-68 read as follows:

“(THE JURY WAS CALLED BACK INTO THE COURTROOM AFTER A CONSIDERABLE TIME IN DELIBERATIONS.)
“COURT — Have you selected a foreman yet?
“JURY — Yes sir.
“COURT — I am going to ask you a few questions, all of which call for a yes or no answer. Have you made any progress toward a verdict?
“FOREMAN — Yes sir.
“COURT — I have been advised by the Bailiff, that it is 11 to 1, is that correct?
“FOREMAN — That is correct, sir.
“COURT — Do you feel like you are making any progress toward a unanimous verdict?
“FOREMAN — Very little.
“COURT — I don’t want to know who it is that’s holding out. What I want to do now is, just address myself to the whole jury. All of you were selected to be on this jury, because the lawyers on both sides considered you to be reasonable and responsible people. If you weren’t reasonable, responsible people, you wouldn’t be on this jury. And as reasonable people, you of course, will listen to one another. What one another has to say about this case, and what their feelings are about this case. And, while I’m not suggesting that any one of you give up or relinquish any sincere, honest feeling that you might have about the issues in this case, I nevertheless, suggest to you, that all of the others on the jury, the 11 others, who think opposite from the way you do, are reasonable people. And they have listened to the evidence also. And, they have formed an opinion and decision about this case, after hearing the same evidence and the same law. And, I simply ask the person who is the one that does not agree with the others, to remember, that those 11 others on the jury, are fair, and reasonable people, and if they were not so, they wouldn’t be on the jury. And so, to the one person who is holding out, I simply suggest, go back in the jury room and look deep into your heart, and ask yourself, is my conviction about this case, is my feeling about this ease, based on the evidence, is it based on the law, or is it possible that I might be mistaken. Especially in light of the fact that 11 others feel the opposite of the way I do, recognizing that they are also reasonable and honest people, who have also taken the oath as jurors to well and truly try the case based on the evidence.
“Listen to what those other 11 people have to say about this case, it might be that they heard the evidence different from the way you did. It might be that they understand the law, different from the way that you do. And, the chances are very good, that if 11 people heard the case different from the way that you did, consider the possibility that they might be right, and that you might be wrong. And look very, very deeply into your heart, and consider whether they are right, and you might be wrong.
“Now, we have all the time that it takes to allow you 12 people to reach a verdict. We could never, in Macon County, or in any other County, that I know of, empanel a better jury than you 12 to try a case like this. You are not sitting on this case by accident, you are sitting on this case because a lot of people had a lot of confidence in you. They had confidence in the fact that you are reasonable and fair people, and that you would do what was right in this case. So, we will never get a better jury than you are, and there is no reason why you all as a jury, shouldn’t be able to work this thing out. Listen to one another, talk to one another, concentrate on areas in which you can agree, and see if there is not some way that you can agree on a verdict in this case. We have all the time it takes, so don’t feel hurried. I will ask you to go back out to the jury room, and try a little bit more.
“THUS CONCLUDES THE TRIAL OF THIS CASE.”

We first note that the trial court made inquiry through the foreman of the jury as to the numerical division of the jurors in this cause. The foreman’s response indicated that the jury was divided 11-1.

This inquiry was in clear violation of the opinion of the United States Supreme Court in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). We also cite Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905); and United States v. Dunkel, 173 F.2d 506 (2nd Cir. 1949).

While the trial judge is vested with large discretion in the conduct of the trial and may admonish the jury as to the desirability and importance in agreeing on a verdict, he may also urge jurors to make every effort consistent with their consciences to reach such verdict. He may request jurors to lay aside mere pride of judgment and listen to what the other jurors believe from the evidence. The judge may ask the jurors to reason together m a spirit of fairness and candor and talk over their differences and, if possible, harmonize them. However, it is not proper to give an instruction censuring jurors for not agreeing with the majority. Ashford v. McKee, 183 Ala. 620, 62 So. 879 (1913); Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

The trial court should refrain from the use of wording “expect the verdict” or make reference to obstinacy. Orr v. State, 40 Ala.App. 45, 111 So.2d 627, affirmed, 269 Ala. 176, 111 So.2d 639 (1958).

However, by making inquiry as to the numerical division of the jurors in the instant cause and for particularizing the 11-1 split and the language to the particular juror who was apparently holding out, we are of the opinion that the trial court committed reversible error. Authorities cited.

It therefore follows that the judgment of the trial court is hereby reversed and this cause is remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte State of Alabama. (In re Willie James SHOWERS, Alias v. STATE of Alabama).
    80-289.
    Supreme Court of Alabama.
    Sept. 18, 1981.

      Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.
    Milton C. Davis, Tuskegee, for respondent.
   TORBERT, Chief Justice.

Respondent, Willie James Showers, was convicted in the Macon County Circuit Court of the crime of sodomy of a twenty-five year old retarded man and was sentenced to seven years’ imprisonment. Appeal was taken to the Court of Criminal Appeals, 407 So.2d 167, which reversed the conviction on the ground that after the jury had deliberated for some time, the trial judge called the jury into court and inquired as to how the jury was split on the verdict. The petitioner, the State of Alabama, applied for rehearing and requested the finding of additional facts under Rule 39(k), ARAP. An additional fact asserted by petitioner was that the respondent failed to object to the judge’s inquiry as to how the jury was split and to the judge’s admonition to the “holdout” to reconsider his feelings about the case. The Court of Criminal Appeals overruled petitioner’s application for rehearing without opinion. This Court granted certiorari on March 23, 1981, to review the holding of the Court of Criminal Appeals. We reverse.

The first issue before this Court is whether the rule that the trial judge may not inquire into the numerical division of the jury, announced in Brasfield v. United States, 272 U.S. 488, 47 S.Ct. 135, 71 L.Ed. 345 (1926), and Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905), is mandated by the Constitution or is merely a federal procedural rule. If constitutionally required, the rule must be adhered to; however, a rule of procedure to be followed by federal courts is not necessarily binding on this Court.

At least one court has specifically addressed this question. In Sharplin v. State, 330 So.2d 591 (Miss.1976), there was an inquiry by the trial judge into the numerical division of the jury. The defendant in Sharplin, as in the present casé, cited Brasfield for the proposition that the request was per se reversible error. The court stated, “We conclude that Brasfield was not grounded in a specific constitutional provision that has subsequently been applied to the states through the Fourteenth Amendment, but was announced as a rule of procedure to be followed in the federal courts,” Sharplin v. State, 330 So.2d at 596. We agree.

Even though the conduct of the trial court constituted reversible error under the decisions of this Court, the error must have been reserved for review on appeal. The Court of Criminal Appeals did not address the State’s request for a finding of additional facts. We accept as correct the State’s assertion that there was no objection to the trial judge’s inquiry to the jury and his admonition to the “holdout” juror. Rule 39(k), ARAP. In light of the fact that there was no objection, the Court of Criminal Appeals should have ruled in accordance with its holding in Cook v. State, 333 So.2d 855 (Ala.Crim.App.), cert. denied, 333 So.2d 858 (Ala.1976), which presented facts somewhat similar to those involved in this case. In Cook the court held:

Appellant claims the trial court committed reversible error in making inquiry as to how the jury stood numerically after the jury reported they were unable to reach a verdict. The record indicates the jury stood nine to three, but there was no indication as to how the majority stood on the question of guilt or innocence.
Under the cases of Gidley v. State, 19 Ala.App. 113, 95 So. 330 and Orr v. State, 269 Ala. 176, 111 So.2d 639, such inquiry on the part of the trial judge was held to be reversible error on the ground that the trial judge should not by word or deed give the least appearance of duress or coercion.
It is never improper for the Court to urge upon the jury the duty of trying to reach an agreement so long as the Court does not suggest which way the verdict should be returned. Martin v. State, 29 Ala.App. 395, 196 So. 753; Jones v. State, 56 Ala.App. 444, 322 So.2d 735.
However, we note in this case there were no exceptions reserved to the Court's supplemental charge. There was no motion for a mistrial and there was no motion for a new trial. In this posture of the record we cannot reach the claimed error. Shiver v. State, 49 Ala.App. 615, 274 So.2d 644; Daniels v. State, 53 Ala. App. 666, 303 So.2d 166; Wade v. State, 49 Ala.App. 601, 274 So.2d 626.
We have carefully searched the record and have found no error upon which we can predicate a reversal. Accordingly, the judgment of conviction is affirmed.

Cook v. State, 333 So.2d at 858.

It is quite clear that under Alabama law a trial judge may urge a jury to resume deliberations and cultivate a spirit of harmony so as to reach a verdict, as long as the court does not suggest which way the verdict should be returned and no duress or coercion is used. Phoenix Insurance Co. v. Moog, 81 Ala. 335, 1 So. 108 (1886); Strickland v. State, 348 So.2d 1105 (Ala.Crim. App.), cert. denied, 348 So.2d 1113 (Ala. 1977); Jones v. State, 56 Ala.App. 444, 322 So.2d 735, cert. denied, 295 Ala. 408, 322 So.2d 741 (Ala.1975). It is likewise clear that when a party contends that the trial court committed reversible error in making charges or comments to the jury, the error can not be raised for the first time on appeal. Fuller v. State, 269 Ala. 312, 113 So.2d 153 (1959); Hassell v. State, 342 So.2d 1357 (Ala.Crim.App.1977). Absent an objection to an alleged error and a ruling by the trial court, there is nothing for this Court to review. Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967) (where there is no objection to oral charge there is no reviewable issue); Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950) (where there is no objection to remarks of trial court to juror in response to question asked there is no reviewable issue); Brown v. State, 369 So.2d 881 (Ala.Crim.App.1979) (where there is no objection to trial court’s comment on the weight of the evidence there is no reviewable issue); Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250 (1973) (where there is no objection to improper statements and remarks throughout course of trial there is no reviewable issue).

Furthermore, when a court commits error in charging or commenting to a jury, an objection, sufficient to preserve the error for review on appeal, must be made before the jury retires. Webb v. City of Birmingham, 279 Ala. 272, 184 So.2d 352 (1966); Ennis v. State, 37 Ala.App. 716, 76 So.2d 183 (1954). This is also the ease when a deliberating jury returns to the courtroom for additional instructions. The objection, to properly preserve error for appeal, must be made before the jury retires again. Phoenix Insurance Co. v. Moog, 81 Ala. 335, 1 So. 108 (1886); Guthrie v. State, 24 Ala. App. 50, 130 So. 374 (1930).

For the foregoing reasons, we decline to follow the rule set out in Burton and Bras-field, and since we find no error preserved for review on appeal, the Court of Criminal Appeals is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


text:
    Willie James SHOWERS, alias v. STATE of Alabama.
    5 Div. 527.
    Court of Criminal Appeals of Alabama.
    Oct. 27, 1981.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.
    Milton C. Davis, Tuskegee, for respondent.
   TYSON, Judge.

Pursuant to the remandment of this cause to this court by the Supreme Court of Alabama, 407 So.2d 169, we have reviewed the record including all the evidence as required by law.

The State of Alabama presented a prima facie case of the carnal knowledge of one Tommy Grant by the appellant, Willie James Showers, through the testimony of the victim, Tommy Grant, the party to whom Grant made the initial complaint, Mrs. Alfreida Wallace, and the testimony of the physician, Dr. Carl Hester. They described the incident as occurring on the early morning of July 9, 1979.

The appellant’s motion to exclude the State’s evidence was overruled.

The appellant, Willie James Showers, denied carnally knowing Tommy Grant on July 9,1979 at Floyd’s Club, or at any other time. He stated that he had known the victim Tommy Grant, for about a year, that Grant had a reputation of being addicted to alcohol and also as being a homosexual. Showers denied being at Floyd’s Club on either July 7 or July 9, 1979, at the time of the alleged act or of seeing Grant on either of those days.

Showers presented two character witnesses who stated that they had heard of acts of homosexuality performed by the victim, Grant.

The victim’s mother was called in rebuttal and told of encountering her son on the morning of July 9, 1979, and he told her of the incident at Floyd’s Club a short time before. She stated that her son was slightly retarded, was visibly nervous and upset, and at one time had a problem with alcohol. She drove her son to Mrs. Wallace who in turn took them to Lakeshore Clinic where Dr. Carl Hester examined her son and found evidence of the act of carnal knowledge, showing bruises and abrasions and also the dried whiteish material which he removed with a cotton swab.

The appellant’s motion for new trial challenging the weight and sufficiency of the evidence was overruled by the trial judge.

We have carefully examined this record and found the same to be free of error. The judgment is therefore affirmed.

AFFIRMED.

All the Judges concur.