author: HARRIS, Presiding Judge.

text:
    Ernest Donald SUGGS v. STATE.
    7 Div. 692.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.

      Russell T. McDonald of McDonald, Brown & Tipler, Birmingham and Robert B. Propst of Wilson, Propst, Isom, Jackson, Bailey & Bolt, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was convicted of assault with intent to murder and the court sentenced him to fifteen years in the penitentiary. The court further ordered the sentence imposed to run concurrently with a life sentence imposed for murder growing out of the same incident in which the victim’s boy friend was shot in the neck by appellant. At arraignment, in the presence of retained counsel, appellant pleaded not guilty. After sentence was imposed appellant gave notice of appeal and filed a motion for a new trial. This motion was subsequently overruled and denied.

The evidence adduced by the state and that presented by appellant was in sharp conflict and only a jury could reconcile this conflicting testimony and arrive at a verdict.

During the late evening of Saturday, August 19, 1978, or the early morning of August 20, 1978, Leslie Hakes and Kathy Robb were hitchhiking from Jacksonville, Alabama to Anniston, Alabama. Appellant, who was driving a pickup truck, stopped to pick them up. Hakes and Robb had spent the previous Friday night, August 18, together in her Army barracks room at Fort McClellan where both were then stationed. Hakes and Robb were unmarried soldiers. While in Jacksonville they went to a lounge and drank six beers each.

Appellant lived in Anniston with his parents and was a licensed gunsmith. On Saturday morning, August 20, 1978, he went target shooting with a friend and they were shooting a .45 caliber pistol. Appellant owned several pistols including a .38 caliber revolver. On Saturday night he went to Jacksonville alone in his pickup truck and had the .45 pistol and also the .38 pistol in his truck. He drank six beers and bought a six pack of beer to carry with him. Also in the truck was some marijuana. While driving toward Anniston he saw Hakes and Robb on the highway “thumbing” a ride and he stopped his truck to give them a ride.

During the trip to Anniston appellant showed his .45 pistol to Robb and she handed it to Hakes. Hakes returned the pistol to Robb who placed it on the floorboard of the truck. None of the trio wanted to drink warm beer and appellant stated he knew a “bootlegger” where they might be able to get some cold beer. He drove to a trailer where the “bootlegger” resided and knocked on the door but got no response. He returned to his truck and asked the couple if they would like to go partying and they agreed. Appellant drove up a bumpy road which opened up into a clearing overlooking Anniston. Appellant asked Hakes if he could roll cigarettes and Hakes said he could. Appellant then got some marijuana out of his truck and Hakes sat on the passenger’s side of the truck and started making cigarettes. Appellant and Robb were standing nearby and conversing.

After talking for a few minutes appellant tried to kiss Robb and she refused. Appellant then apologized. A few minutes later appellant pulled out a pistol and pointed it at Robb and told Hakes to get out of the truck and lie down on the ground in a “spread-eagle” position. Hakes complied with this demand. Appellant then told Robb if she didn’t do what he told her that he would shoot Hakes. Appellant was holding Robb and told her to take off her clothes. She refused and appellant pulled on her dress and began striking her on her head with the butt of the gun. Robb managed to break loose and started running toward the woods. While running she heard gunshots and felt a sharp pain in her buttocks. She fell and crawled into the woods and tried to cover herself with leaves.

Robb further testified she heard someone trying to crank the truck but the motor did not start. Shortly thereafter she heard footsteps running in the direction that came to the place where appellant stopped his truck. Thinking, perhaps, that appellant had left, she emerged from the woods looking for Leslie Hakes. She called his name but he did not answer. She started looking around the truck and found him lying on the ground with a big puddle underneath his head. He didn’t move, so she didn’t touch him. She then crawled down the cliff to another road and lay in the middle of the road waiting for help.

On cross-examination she stated that, when appellant arrived at the clearing, he turned his truck around facing the direction from which it had come. She also stated that she had been dating Hakes for about two months. She admitted that Hakes stayed in her barracks Friday night and they were together all day Saturday. She also admitted that she and Hakes went to a place known as “Poor Richard’s” Saturday night and drank about six beers apiece. She further stated that, although she knew Hakes rolled marijuana cigarettes, she could not recall anyone smoking them. She said even though appellant struck her on the head with the butt end of his pistol this did not cause any bleeding or cause lacerations. She said appellant only hit her once with the pistol before she broke away from him and ran into the woods. She further testified that she did not remember touching the truck after returning from the woods and finding Hakes dead. She admitted that her blood type was A.

On redirect examination Robb testified that she was shot three times that night. In addition to being shot in her left buttock she was shot in her left ear and left arm. She did not really know she had been shot in the ear and arm until she was in the hospital.

John M. Case, a criminalist with the Department of Forensic Sciences, testified that the six cartridge casings found around the truck were all fired from appellant’s gun. Gunpowder was found at the bottom of the back of Hakes’ shirt.

On cross-examination Case testified that, when he test-fired the weapon at a cloth target from a distance of three feet, he found three particles of powder which fell off the cloth with no definite pattern. He said, to find powder burns on the skin, it was his opinion that the shot would have to be fired within a distance of twelve inches.

John Norris, an Evidence Technician with the Anniston Police Department, testified that, on the night of August 20, 1978, he was on Hillyer High Road near the crest of the road on the mountain; that Greenbrier Road was about 400 yards south of him. He was off duty and was there with a friend and his date; that he heard a series of shots. Two shots were in rapid succession, then a pause of several seconds followed by three shots in rapid succession, another pause for about a minute, and then one final shot; that the sound of the shots came from the south in the direction of Greenbrier Road. Upon hearing the series of shots Officer Norris picked up the CB radio and contacted the Anniston Police Department. He remained where he was until a police unit arrived.

On cross-examination Officer Norris stated he heard the shots at about 1:10 a. m. and had arrived in the area approximately five minutes before he heard the gunfire. He said the shots sounded like they were about 300 yards away.

Sergeant Charles Hall of the Anniston Police Department testified that a dispatch came in relating that shots had been fired on Greenbrier Road. He drove to Hillyer High Road and contacted Officer Norris. When he arrived on Greenbrier Road between 2:00 and 3:00 a. m., he found two cars stopped on the road and a woman lying in the roadway. Hall went to the woman and saw that she looked as though she had been beaten and shot. He observed blood coming from the side of her head and she complained of being shot in a section of her back. According to Sergeant Hall the woman kept saying her boyfriend had been shot.

Sergeant Hall left the woman with another police officer and went to search for the man who allegedly had been shot. He proceeded north on Greenbrier Road up to the top of the mountain. Two police officers were in a car behind him. When he went down a deserted road overlooking Greenbrier he saw a green pickup truck which he recognized as belonging to appellant. Hall looked behind the truck and found the body. The body was fifteen or twenty feet beyond the truck with the feet to the rear of the truck with the head pointed south. After securing the scene he searched the wooded area for anyone else who might have been involved, without success. He then called for the detectives and the crime laboratory. He made a diligent effort to find appellant but his efforts proved fruitless.

Sergeant Hall identified State’s Exhibits 1, 2, 4, 5, 7, 8, 9, 10, 11, 12 and 13 as truly depicting the scene as he viewed it at the time he saw it. The court sustained appellant’s objections to Exhibits 1 and 4 but allowed the other photographs into evidence.

During his investigation Hall saw a .45 automatic cartridge casing on the ground near the wheel of the green pickup truck and others scattered around in the area. He also found a half consumed bottle of beer a good way down the road from the truck. The bottle was cold and he picked it up and took it to the truck. He said he may have placed it on a battery there.

On cross-examination Hall stated the cold bottle of beer was found about fifty yards back up the roadway north of the front of the truck.

Lieutenant Richard Townsley of the An-niston Police Department testified that he went to the small clearing at the end of a jeep trail overlooking Greenbrier Road. After examining State’s Exhibit 11, the officer stated there was a cliff just beyond the location of the body shown in the photograph. He also found a fresh-fired .45 caliber cartridge casing on the ground near the truck as well as five other cartridge casings in the same condition in the area. He found a battery on the ground with jumper cables connecting it to the battery under the hood of the truck; an unrolled sleeping bag with appellant’s name on it; some partially smoked marijuana cigarettes; a blood stained hand print on the passenger’s side of the truck; one lead projectile on the ground under the head of Leslie Hakes, and a set of keys to the truck was given to him by Lieutenant Hale. It was Townsley’s opinion that the lead projectile under Hakes’ head was fired downward at a 45 degree angle.

On cross-examination Townsley testified that two freshly rolled marijuana cigarettes were in the truck and a spilled plastic bag of marijuana was on the ground on the passenger’s side of the truck. Particles of marijuana were found on the hands of Hakes. He also found five unopened cans of warm Pabst beer in the truck and a bottle of Michelob beer on top of the battery. He further stated that the heels of Hakes were approximately six yards from the back of the truck and that Hakes was about six feet tall.

On redirect examination Townsley stated that State’s Exhibits 26, 27 and 28, all being photographs of Hakes, accurately depicted the scene as he viewed it that night and were admitted into evidence without objection; that he observed only two holes in Hakes’ body, (1) in the right back portion of the neck, and (2) in the left front portion of the upper neck. The lead projectile was found near the hole on the side of the neck that was facing downward.

Dr. Rembert Reynolds, General Surgeon in the Army and stationed at Fort McClellan, stated that he treated Kathy Robb in the Emergency Room the night she was brought to the hospital. She had been shot in the left earlobe, had abrasions and powder burns about the face and ear. She had wounds in the left upper arm where the bullet had entered and exited, also an entrance wound in the left buttock. X-rays revealed the bullet was lodged near the hip joint, and no attempt was made to remove the bullet.

Dr. William H. Landrum, who was employed by the Department of Forensic Sciences, testified that the blood on the fender of the truck was Group 0 human blood. Hakes’ blood was also Group 0. Three stains of blood were found on appellant’s overalls or coveralls at the bottom of the left pants leg. Group A human blood was on the shoe strings of appellant’s shoe. Group A human blood was the type found on appellant’s pants leg. As we have pointed out, Robb’s blood type is A.

Dr. Joseph Embry of the Department of Forensic Sciences testified that he performed the autopsy on the body of Leslie Hakes and found no gunpowder residue in or around the wounds. State’s Exhibits 33 and 34 showed these wounds. The entrance and exit wounds were on the same level in relation to the top of the head. Hakes also had some blanched or pressure areas on the left cheek and chin.

Appellant testified in his defense. He said he was a licensed gunsmith. He stated he went to a bar in Jacksonville Saturday night and drank about six beers. He was alone. On the way back to Anniston he picked up a couple who were hitchhiking. According to his testimony the man he picked up asked him if he wanted to party and appellant agreed. After failing to get some cold beer at the trailer home of the “bootlegger,” appellant asked the man if he smoked and he said yes. Appellant furnished the marijuana and the man started rolling a cigarette, but appellant told him it wasn t good to ride around and smoke. The man asked him if he knew a place where they could stop and appellant replied that he knew a place close by. Appellant then drove to a place on top of the mountain and turned the truck around so that it faced the way he entered. All three got out of the truck.

The couple went into the woods to relieve themselves and appellant took a bedroll out of the truck and sat on it. A few minutes later the couple returned separately. The man sat in the truck and the girl and appellant were standing by the cab. Appellant stated the man rolled some marijuana cigarettes and the trio smoked them. According to appellant he and the girl went and sat on the bedroll and talked for a while. Then they started walking back to the truck. At this point appellant claimed the man was walking toward him and said, “That will cost you, buddy.” He also told appellant to move away from the girl. The man appeared to have a gun and appellant became afraid and started to pull his gun from his pocket. At this time appellant claimed the girl grabbed his arm and in the struggle his gun went off and the girl relaxed her hold on his arm and he was able to pull his arm away. Appellant denied he hit the girl on the head with the butt of his pistol. He claimed he pushed the girl in the direction of the approaching man and turned around and started to run away. As appellant ran into the woods he fired a few more shots in the direction of the couple.

Appellant stayed in the woods about ten minutes. He then returned to his truck to get his other pistol which had been in the glove compartment of the truck and which he found within a couple of feet of the body of the man he had killed. He tried to crank the truck but it wouldn’t start. Appellant then went back into the woods and stayed until daylight. He then went to the home of a friend and called his father who soon arrived and picked him up. The next day he and his father went to the police station and surrendered both pistols and he turned himself in to the authorities.

Appellant stated his blood type was 0.

On cross-examination appellant admitted that, when his pistol went off the first time, no one else had a finger on the trigger. He further admitted that no one shot at him or even threatened to shoot him or do anything else to him. He also admitted that as he was running away he just pointed the gun in the general direction he came from and fired several times. Appellant admitted that he saw Kathy Robb lying in the middle of Greenbrier Road and he did not go to her and offer to assist her in any way.

It can be readily seen from a recitation of the testimonies of Kathy Robb and appellant that they are poles apart as to what occurred on this fatal occasion on this lonely and deserted mountain top in Calhoun County that left a man dead and a bullet in Robb’s buttock that she will carry with her to the grave. What is the truth? The jury sided with Kathy Robb and against appellant.

Dr. Wendell Sowell testified as an expert for the defense. He stated that he test-fired the .45 caliber automatic in this case into a bar of Octagon soap which has practically the same consistency as the human neck. When he fired at the distance of three feet there was a lot of gunpowder residue in a definite pattern. In none of the tests Dr. Sowell made did the bullet stay on top of the ground.

According to Dr. Sowell the wound in Leslie Hakes’ neck appeared to have been a bullet that had hit something else before striking the deceased. He also said that the blood on appellant’s clothing was drops, not splattered, and would have come from someone bleeding close to appellant. As to the hand print on the truck he said it was not appellant’s because the hand print was 7% inches and appellant’s hand is only 7V4 inches long. It was also Dr. Sowell’s opinion that the bullet found under the head of the deceased was on the ground and the deceased fell on top of the bullet.

On cross-examination this witness said that he had not been a full time Forensic man since 1968. He admitted using hollow-point bullets ammunition during the ballistics tests and that he fired straight into the ground. He did not measure the hand print on the truck but a photograph of the hand print.

Appellant contends he was entitled to a mistrial by the actions of the prosecutor during the voir dire qualifications of the jury venire in asking the venire if any of them knew the defendant and in asking the defendant to stand up. Appellant stood up at the request of the prosecutor before an objection was interposed and his counsel moved for a mistrial on the basis the defendant was asked to give testimony against himself. The trial court overruled the motion.

The law is clear that merely requesting a defendant to stand for purposes of identification before the jury venire is not a violation of his constitutional privilege against self-incrimination. Jones v. State, 54 Ala.App. 167, 306 So.2d 33; judgment affirmed, 293 Ala. 762, 306 So.2d 45.

Appellant claims the prosecutor committed reversible error during his closing argument when he stated, “We’ve got the murder weapon,” and pointed to the .45 automatic pistol which was introduced into evidence without objection. This same pistol was used by appellant in shooting Kathy Robb three times and in killing Leslie Hakes during the shooting spree arising out of the same incident and was clearly a part of the res gestae and fully supported by the evidence.

All facts admitted into evidence are subject to comment by counsel and counsel are allowed considerable latitude in drawing legal inferences from the evidence in their arguments to the jury. Espey v. State, 270 Ala. 669, 120 So.2d 904; Roberts v. State, Ala.Cr.App., 346 So.2d 473, cert. denied, Ala., 346 So.2d 478; Colston v. State, 57 Ala.App. 4, 325 So.2d 520, cert. denied, 295 Ala. 398, 325 So.2d 531; Grissett v. State, 241 Ala. 343, 2 So.2d 399.

The trial court did not err in admitting into evidence photographs of the deceased, Leslie Hakes, as they were clearly a part of the res gestae, and as shedding light on the acts, motive and intent of appellant. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637; Scott v. State, Ala.Cr.App., 353 So.2d 36, cert. denied, 353 So.2d 40; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

The granting or refusal of a motion for a new trial is a matter resting largely in the sound discretion of the trial court, and the exercise of this discretion carries with it a presumption of correctness. Ala. Dig. Key No. 911. We find no error in overruling such motion.

The refused charges, stating correct principles of law, were fairly and adequately covered in the court’s oral charge, or in the given charges requested by appellant.

We have carefully examined the entire record for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Ernest Donald SUGGS. (Re: Ernest Donald Suggs v. State of Alabama).
    80-692.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Ernest Donald SUGGS v. STATE.
    7 Div. 670.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.

      Russell T. McDonald of McDonald, Brown & Tipler, Birmingham, and Robert B. Propst of Wilson, Propst, Isom, Jackson, Bailey & Bolt, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Evans Campbell, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment. Throughout the trial proceedings he was represented by retained counsel who represent him on this appeal. At arraignment, in the presence of his attorneys, he pleaded not guilty. After sentence was imposed he gave notice of appeal.

The pertinent facts leading up to the fatal shooting of the deceased are set forth in the opinion in Suggs v. State, 403 So.2d 303, 7 Div. 692, Ala.Cr.App., released this date. In that cause, which grew out of the same incident as the one here under consideration, appellant was convicted of assault with intent to murder the companion of the deceased of the same incident. For a more definitive statement of the facts involved in the murder conviction reference is made to the opinion involving the assault with intent to murder conviction in which appellant was sentenced to fifteen years imprisonment in the penitentiary and which sentence was made concurrent with the life sentence he received following the murder conviction.

In the murder conviction appellant raised several issues which were not involved in the conviction for assault with intent to murder. Most of these issues were first raised in his motion for a new trial and much evidence was heard in the hearing on that motion. At the conclusion of the hearing on the motion for a new trial the trial court made a written order denying the motion. The order reads as follows:

“ORDER: MOTION FOR NEW TRIAL OVERRULED
Filed 7-18-79
ORDER
“The defendant’s motion for a new trial, as amended, is submitted on the evidence presented through July 3, 1979, in open court, jury questionnaires received by the Court outside of presence of Counsel by agreement of Counsel, arguments and briefs of the attorneys and upon consideration thereof the Court finds:
“1. That the evidence and law support the verdict of the jury.
“2. There is no evidence to support the allegation that a juror slept or was inattentive during the trial. The Court, during the course of this trial, also, from time to time, observed the jury and did not observe any juror sleeping or inattentive.
“3. There is no evidence that a juror had resided in Calhoun County for less than the last twelve (12) months.
“4. One juror had been convicted of assault and battery in Calhoun County Court on a warrant sworn out by his wife, the alleged victim. Section 182 of Article VIII of the Constitution of Alabama lists disqualifications from registering and voting, many are violative of the United States Constitution and therefore are invalid. One is assault and battery on a wife. This cannot be considered any longer as a disqualification to register and vote. See Hopson v. Pow, 434 F.Supp. 362.
“5. On voir dire examination of the jury by the State of Alabama the venire was asked whether any jurors ‘had ever been associated or connected with anyone that had been involved in a criminal case.’ One juror’s son was involved in a ‘hub cap’ case which was more than ten (10) years ago but he did not respond to the question. The Court considers this remote and no prejudice to the defendant has been shown.
“6. The Court qualified the venire by asking the following question: ‘Has anyone of you ever lost the right to vote as a result of conviction of a crime involving moral turpitude? Moral turpitude generally means a crime punishable by imprisonment in the state penitentiary, but includes any crime contrary to honesty, justice, and good morals.’ No juror responded to this question. .One juror, who served on this case, in 1977, has been convicted of petit larceny in the Recorder’s Court of the City of Anniston. It has long been held that convictions in Municipal or Recorder’s Courts are not crimes involving moral turpitude.
Norris v. State, 229 Ala. 226, 156 So. 556. Parker v. State, 280 Ala. 685, 198 So. 261. Huggins v. State, 271 Ala. 428, 123 So. 911.
“The Recorder’s Court of the City of An-niston had only the jurisdiction to enforce its ordinances at the time of the conviction.
“The Court is of the opinion the juror answered the question correctly. He has never been removed from the voting rolls of Calhoun County. This juror and the defendant’s father have been acquaintances for more than fifteen years and it is inconceivable this was not known to the defendant and his attorneys prior to trial as defendant’s father retained the defendant’s counsel. Calhoun County does not have ‘secret venires’ and the jury list was available to the attorneys at least two weeks prior to trial. No prejudice to the defendant has been shown. “7. Defendant alleges that a juror was deaf and cannot read or write. This has not been shown by the evidence and in court and on this hearing the juror appears to the Court to have sufficient hearing, reading and writing ability to qualify for jury service.
“8. There is no evidence to support the contention the jury venire was selected or chosen contrary to law. Also, see: Manson v. State, Ala.Cr.App., 349 So.2d 67. “9. The defendant further claims the Court erred in excluding from the Rule, Mr. Hakes, father of the deceased who sat at the counsel table with the State’s attorney during the trial. The assistant District Attorney asked that Mr. Hakes be excused from the Rule which the Court granted. The Court does not find this to be an abuse of discretion and the State is entitled such request. The defendant has failed to show any prejudice in the trial of this case due to Mr. Hakes’ presence in the Courtroom nor any abuse of discretion by the Court. It is within the discretion of the Court to excuse a witness from the ‘Rule’ and consent of the defendant is not necessary. Mr. Hakes only came to tears one time while he was on the witness stand testifying. “10. During the trial the female companion of deceased, while testifying, became emotionally distressed and Court had to be adjourned for her to regain her composure. She retired to the only witness room and her mother and the mother of the deceased went into said room to comfort her. Part of this occurred in the presence of the Trial Judge. Nothing prejudicial to the defendant has been shown by this event. Defendant has failed to show any prejudice to Defendant or impropriety on the part of any State witness.
“11. Jurors were allowed to separate by agreement with the State and Defendant, which was made in writing prior to trial, and the defendant has not shown any prejudice from this occurrence.
“12. Defendant alleges that it was error to refuse his requested charge # 14 which was marked ‘refused’ by the Court. The Court is of opinion this charge was adequately covered in its oral charge and by requested charges # 20 and # 21 which were given.
“13. There is no evidence to support the allegation that the Jury Commission of this County systematically excluded persons over sixty-five (65) years of age and the Court has personally seen many jurors over sixty-five (65) years of age in jury panels since the new jury box has been filled under the jury law enacted in May of 1978.
“14. In regard to the twentieth ground of defendant’s motion for a new trial the telephone tape of the City of Anniston concerning the day of this incident was reused and not available at the time defendant brought this to the Court’s attention. Nothing inculpatory or exculpatory has been alleged or shown to have been on this tape and no prejudice to the defendant has been shown. The weapons turned in to police by defendant and his father appear to be the only weapons at the scene of the incident and none were found by the police. All physical evidence has been shown to the defendant at his request and only marijuana, which was apparently the defendant’s, was found by the police. The Statement of Cathy Robb was given to defendant prior to trial and there is no evidence a drawing was made by Ms. Robb and therefore could not have been withheld by the State.
“15. The statement by the prosecuting attorney ‘Leslie Hakes was executed by the defendant’ was proper argument in his final argument and a comment on a reasonable inference from the facts of the case as presented in Court.
“16. Photographs of murder victims and scenes are admissible to shed light upon the material inquiry and were particularly helpful due to the conflicting evidence presented.
“17. The political ad of now Judge Nat Owens was publicized in August of 1978. The trial occurred in February, 1979. Nothing has been shown prejudicial to defendant from this ad.
“18. There is no evidence to support ground no. 25 of defendant’s motion nor has there been an offer to do so.
“19. The voir dire questions in ground no. 25 and 26 were not illegal questions and might have assisted the State in selection of jurors if affirmative answers had been given.
“20. The voir dire question in ground no. 28 is a valid inquiry by the State.
“21. There is no evidence or offer thereof to support ground no. 30 of said motion.
“22. The defendant has not shown any prejudice from error in State’s report by Dr. Embry where the blanching on the face of deceased was described as being on one side of the face and Dr. Embry in his testimony described it correctly as being on the other side of the face which was the side on the ground.
“The blood stains on the side of the truck were stated to be on the left side in the police report and the police officer meant left side while facing the vehicle which he testified on the stand as the ‘passenger side’. No prejudice to the defendant has been shown.
“It is therefore ORDERED and ADJUDGED by the Court that defendant’s motion for new trial be and it hereby is overruled.
“Done and ORDERED this 18th day of July, 1979.
/s/ Robert M. Parker
Circuit Judge”

This is a bizarre case. After appellant shot and killed Leslie Hakes and wounded Kathy Robb only two witnesses were left to tell the jury what actually occurred at the scene of this conflicting crime, (appellant and Robb). Their testimonies were in sharp conflict as to the shooting and the physical facts. Robb gave one version and appellant gave another. Appellant claimed the shooting was accidental and Robb contended the shooting was a deliberate act. Appellant claimed that he did not intend to shoot the deceased and did not know that Kathy Robb had been shot. Appellant did admit that while he was running into the woods he turned around and intentionally fired his pistol in the direction of the deceased and that he fired several times.

Conflicting evidence is always a question for the jury to determine, and a verdict rendered thereon will not be disturbed on appeal. Waters v. State, 55 Ala.App. 646, 318 So.2d 342; Vines v. State, 57 Ala.App. 117, 326 So.2d 307; Woods v. State, Ala.Cr.App., 344 So.2d 1225; Young v. State, Ala.Cr.App., 346 So.2d 509.

It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness or falsity of conflicting evidence. Young v. State, Ala.Cr.App., 346 So.2d 509; Williams v. State, Ala.Cr.App., 348 So.2d 1142.

Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution. If facts are presented from which the jury may reasonably infer that the crime has been committed the question must be submitted to the jury and the other evidence tending to implicate the defendant is thereby rendered admissible. Davis v. State, Ala.Cr.App., 331 So.2d 813; Hoback v. State, Ala.Cr.App., 338 So.2d 439; Scroggins v. State, Ala.Cr.App., 341 So.2d 967.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court held:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, do not constitute error. .

We are in full accord with the findings of the trial court in his written order overruling the motion for a new trial. The evidence was more than sufficient to sustain the verdict of the jury in finding appellant guilty of murder in the first degree.

We have carefully searched the four-volume record in this case for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

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


text:
    Ex Parte Ernest Donald SUGGS. (Re: Ernest Donald Suggs v. State of Alabama).
    80-694.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Antonio Daniel MURPHY v. STATE.
    1 Div. 193.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied June 23, 1981.
    Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted for the murder of Leonard Stradford, Sr. Alabama Code 1975, Section 13A-6-2 (Amended 1977). A jury convicted him of manslaughter. Sentence was eight years’ imprisonment. Four issues are presented on appeal.

I

The defendant was seventeen years old when he shot and killed Mr. Stradford. The juvenile court transferred the defendant for criminal prosecution in the Circuit Court pursuant to Alabama Code 1975, Section 12-15-34. The constitutionality of this section was upheld in Brown v. State, 353 So.2d 1384 (Ala.1978).

II

The defendant filed an amendment to his motion to dismiss the indictment alleging that the defendant’s transfer from juvenile court to circuit court for criminal prosecution' did not comply with the statutory requirements governing that procedure. Specifically, the defendant alleges that the circuit court denied his motion to dismiss without any evidence or testimony to support the findings of the juvenile court.

The record shows that the defendant was indicted in the Circuit Court of Mobile County on June 6, 1980. On June 23rd, the defendant was arraigned and youthful offender treatment was denied, “a previous investigation having been made.” On this date, the defendant filed a motion to dismiss the indictment alleging that Alabama Code 1975, Section 12-15-34 was unconstitutional. This motion was amended on October 6th by the addition of the ground that the “Juvenile Court of Mobile County did not comply with the law in referring the case to the Circuit Court of Mobile County for trial of the Defendant as an adult.” The motion sought to have the indictment dismissed and the case remanded to the Juvenile Court.

The record before this Court contains no ruling on the amended motion to dismiss. The minute entry does reflect that the motion to dismiss filed on July 23rd was denied on October 7, 1980.

“This day in open court came the State of Alabama by its District Attorney and defendant’s Motion to Dismiss filed by attorney, James Bryd, July 23rd, 1980, coming to be heard, being argued by Counsel and being understood by the Court; It is ordered and adjudged by the court that defendant’s Motion to Dismiss filed on the 23rd day of July, 1980, be and the same is hereby denied.” (emphasis added)

The defendant did not appeal the order of transfer to “the appropriate appellate court,” A.R.J.P. Rule 28(A) or to the Circuit Court A.R.J.P. Rule 28(B). See Walker v. State, 365 So.2d 668 (Ala.1978). If the defendant wanted to challenge the propriety or sufficiency of the order transferring him for criminal prosecution, he should and could have appealed the order as provided by Rule 28, A.R.J.P., not by a motion to dismiss the indictment.

In his brief, the defendant correctly notes that there is no record of what occurred in the juvenile court:

“No order of the Juvenile Court transferring Appellant for criminal prosecution as an adult was introduced into evidence, nor was there any evidence or testimony as to whether Appellant was afforded his rights as defined in Section 12-15-34(e)(f), Code of Alabama (1975), Section 12-15-65(b), Code of Alabama (1975), Rule 24, Alabama Rules of Juvenile Procedure and Rule 11, Alabama Rules of Juvenile Procedure.”

The defendant could have established a proper record for this Court to review by appealing the order of transfer. See Young v. State, 387 So.2d 825 (Ala.1980). An appellant is charged with the duty of presenting a correct record to an appellate court. Heard v. State, 351 So.2d 686 (Ala.Cr.App.1977). If the defendant desired to make a point on appeal, the record must have so shown. There is nothing to review with respect to the order of transfer where there is no record of any of the proceedings surrounding the order of the juvenile judge nor is there a record of the order itself. This Court has nothing to review with respect to the amended motion to dismiss the indictment attempting to raise the invalidity of the order of transfer where there is no indication that that amended motion was presented to and ruled on, or that such a ruling was refused, by the Circuit Court. In short, all the record before this Court discloses are the bare allegations of counsel without any support whatsoever. Upon such a basis this Court has nothing to review.

Ill

The defendant argues that the trial judge failed to administer an oath to the jury as required by Alabama Code 1975, Section 12-16-170, and therefore the jury verdict is a nullity.

True, the transcript of the trial proceedings does not reflect that such an oath was administered. However, a minute entry does state that the jury was “duly empaneled and sworn according to law.” This alleged defect was not called to the attention of the trial judge even though defense counsel admitted during oral argument that he suspected or had reason to believe that the jury had not been sworn. Since there was no objection, the minute entry will be deemed correct. Armstead v. State, 57 Ala.App. 459, 329 So.2d 150 (1976).

IV

Finally, the defendant argues that the trial judge erred in failing to recuse himself due to the fact that he presided as district judge at the hearing to transfer the defendant to the circuit court for criminal prosecution. The Judge who tried the defendant was not the same circuit judge who ruled on the defendant’s motion to dismiss the indictment.

The provisions of Alabama Code 1975, Section 12-1-12, listing the grounds for disqualification of judges from the trial of cases generally, did not require that the judge recuse himself. We find no bias and prejudice on the part of the trial judge which would mandate his recusal. In re White, 53 Ala.App. 377, 300 So.2d 420, cert. denied, 293 Ala. 778, 300 So.2d 439 (1974).

In ruling on the motion to recuse, the trial judge noted:

“THE COURT: I don’t (know of any prohibition) either. It might be different if I were going to pass judgment on the merits of the case, but since it is a jury trial, I’m up here merely to pass upon the law and the rulings of law, and I don’t believe that that would have any bearing upon the outcome of the case. So I will respectfully deny your motion.”

We specifically note that the defendant has pointed to no occurrence during the trial in which the judge acted in any way other than entirely impartially. We also note that the judge did not give the defendant the maximum sentence allowed by law. Alabama Code 1975, Section 13A-5-6 (Amended 1977).

We have searched the record and found no error prejudicial to the rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: ADAMS, Justice.

text:
    Ex parte Antonio Daniel MURPHY. (re: Antonio Daniel Murphy v. State of Alabama).
    80-690.
    Supreme Court of Alabama.
    Aug. 28, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Tony WILLIAMS v. STATE.
    6 Div. 299.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied June 23, 1981.

      Mark B. Poison, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of forgery in the second degree. The court fixed his punishment at imprisonment for three years and sentenced him accordingly.

The evidence does not show that the defendant as principal forged, or uttered or published as true, the instruments set forth in the indictment. The State has made no contention that he acted as principal in the commission of the alleged crime. A major issue presented on appeal and on the trial is as to appellant’s guilt as an aider or abettor of the one who, according to the evidence, committed the crime.

There was undisputed evidence that on September 19, 1978, about 2:00 P.M., the defendant, a male, and a female companion came into the store known as Quarterly West, at 2600 Twelfth Avenue North in Birmingham and commenced looking at men’s leather jackets. The defendant tried on several of the jackets. Thereafter, defendant’s companion took the jacket to the sales counter and presented a Visa credit card with the name of Ruth Rupert thereon as the name of the person to whom the card was issued. The card had been in the billfold in the purse of the owner, Henrietta Ruth Rupert, until about noon the same day when someone, without the knowledge or consent of the owner, took the billfold from the purse. The price of the leather jacket was $73.14. The owner of the store took the credit card and called the bank that issued it for verification. Before verification of the credit card was obtained, the operator of the store prepared a “SALES-SLIP” for the signature of the customer. Defendant’s female companion signed the sales slip as “Hanrietta Rampton.”

While the store owner and defendant’s companion were awaiting word from the bank before delivery of the merchandise for about twenty-five minutes, defendant and his companion remained together at that part of the store where the transaction occurred. They were seated a large part of the time.

About twenty-five minutes after the credit card was presented to the owner of the store, two employees of the bank issuing the card arrived at the store. One of them inquired of the owner as to who was using the credit card. When he did so, a scuffle took place, in which defendant’s companion reached in her purse, which was immediately seized by one of the men from the bank and in which was a pistol. Almost simultaneously the other man from the bank presented his ID badge to the defendant. According to the testimony of said employee of the bank:

“A. Certainly. I approached him face on, had my identification in my left hand and he brushed my right side as he attempted to leave. And at the time, he was detained.
“Q. Did you grab hold of him at that time?
“A. Yes, sir.
“Q. How many steps, in your best judgment, had he made prior to your grabbing hold of him?
“A. Towards me?
“Q. Yes, sir.
“A. Probably a step and a half.
“Q. Would that also be in the direction of the door?
“A. Yes, sir. I was between him and the door.
“Q. Did you then grab hold of him?
“A. Yes, sir.
“Q. What happened after that, please, sir?
“A. I wrestled him to the floor. At the same time, Mr. Upshaw brought to my attention that he had taken a weapon from the other person, and he assisted in the detaining of Mr. Williams.
“Q. Did you all handcuff Mr. Williams?
“A. Yes, sir.
“Q. Was this prior to any Birmingham Police Officer coming?
“A. Yes, sir, it was.
“Q. Shortly after that, did some police officers arrive there at the scene?
“A. Yes, sir, they did.”

No witness testified on call of the defendant.

In support of his position that the evidence was not sufficient to support a finding of the jury that defendant aided or abetted the principal in the commission of the crime, appellant well argues that he could have been innocent. We agree that he could have been, and the evidence of guilt, purely circumstantial, was not conclusive thereof, but we believe it to be substantial, which justified the submission to the jury of the issue as to defendant’s guilt or innocence. We consider it to be sufficiently strong, although not conclusive, to justify action of the trial court in overruling defendant’s motion for a new trial. In his favor are his right to remain silent and his freedom from any duty to prove his innocence, but weighing heavily against him are the apparent closeness of the relationship between him and the person who, according to the undisputed evidence, was guilty as principal of the crime charged, the apparent awareness on the part of defendant of what was taking place between his companion and the owner of the store, the fact that the jacket was to have been purchased for the defendant himself and defendant’s effort to flee when it became obvious that his companion was in the process of being apprehended in the commission of the crime.

Appellant contends, as he did on the trial, that the court should have granted defendant’s motion for a mistrial based upon the fact that an assistant district attorney, not actually engaged in the prosecution of the instant case, had a conversation with a member of the jury during the course of the trial, while the jurors were in recess and unsequestered. As soon as the matter was brought to his attention, the trial judge conducted a hearing as to what had occurred, and it was determined that the juror initiated a conversation with the assistant district attorney and another, relative to another case that had been disposed of before another judge in another division of the court, and that no part of such conversation was related in any way to the instant case. It was a brief conversation lasting no more than about sixty seconds. There was no contention of any conscious impropriety as to the conversation. Movant made it clear that he was relying upon the asserted proposition that a conversation between any juror trying a criminal case and a member of the “District Attorney’s staff is unauthorized and improper whether or not the subject matter of conversation is the trial or issues upon which the juror is sitting.” The court had instructed the jury in declaring the particular recess, “Don’t talk to anyone and don’t let anyone talk to you. If you will be back in the jury room at 1:15.”

We are confident that the particular instruction was not intended to be as strict as defendant-appellant interprets it. The instruction was given just before a “luncheon break,” which could hardly have been absolutely complied with literally with due regard for a satisfactory lunch. Defendant presented no valid ground for a mistrial, and the court correctly overruled the motion therefor.

During the argument to the jury of counsel for the State, the following occurred:

“There is a very simple reason why Tony Williams didn’t walk up there and present this credit card, this is a Ruth Rupert. And Tony may get by with a lot, but he is not going to be able to get by with being a Ruth Rupert. He is not that dumb. He is not that dumb—Jeanetta Rakestraw—that’s the reason he did not walk up there and present that credit card and say I want to charge this, it belonged to a female. Because they had stolen a female’s credit card.
“MR. POLSON: Now, Judge, I am going to get and move for a mistrial. Mr. Col-lee has said that they just stole a female’s credit card. There is no evidence in this case of theft, there is not even a charge of theft.
“THE COURT: I sustain your objection.
“MR. POLSON: I move for a mistrial.
“THE COURT: Overruled. Members of the jury, you are not to consider that. There is no evidence of that and that is not the charge in this ease. I sustain your objection, Mr. Poison, on that point. Do you understand that, Ladies and Gentlemen? You are not concerned with any stealing of the credit card.”

The argument of counsel for the State falls far short of such highly prejudicial argument that is so ineradicable as to require a mistrial.

Appellant asserts as error the ruling of the court denying defendant’s motion for a mistrial based on another portion of the argument of the counsel for the State as follows:

“MR. COLLEE: If Tony Williams is so innocent why was Jeanetta Rakestraw reaching into her purse trying to pull out a gun when Mr. Meredith was trying to hold this defendant down and the other Mr. Upshaw was also trying to get Mr. Meredith to help—
“MR. POLSON: Judge, I am going to object, there is no evidence at all that the young lady reached for a gun. In fact, there is evidence to the contrary.
“THE COURT: All right. Members of the jury, rely upon what you heard as evidence in that matter.
“MR. COLLEE: And it just so happens that Mr. Pat Upshaw turned around at the last second and saw her fishing in that purse and snatched it out of her hand, or we might have been here for something else.
“MR. POLSON: Now, Judge, I object and move for a mistrial on that basis.
“THE COURT: Well, I sustain the objection.
“MR. POLSON: Well, Judge, I move for a mistrial.
“THE COURT: Overruled. Disregard the remark, Ladies and Gentlemen.”

The court and defense counsel are to be commended for keeping the argument of counsel for the State in line with the issues in the case being tried, but his argument did not furnish a valid ground for a mistrial.

Appellant assigns as error the court’s action in overruling defendant’s objection to the following argument of State’s counsel:

“And, Mr. Meredith went over to this defendant right here and the first thing he said—I believe this was Mr. Meredith, let me make sure—he said T am a bank security officer, let me see your identification.’ And Mr. Meredith told this defendant right here and this innocent man that knows nothing about what’s going on makes a break for it. Ladies and gentlemen, I suggest the Judge will tell you this, that when you are considering the facts put together in this conspiracy, you can consider that that’s flight.”

Counsel for defendant then said:

“Now, Judge, I am going to object to any argument about flight. There is no evidence of flight in this case. And it wouldn’t apply to this situation in any event. I object to it, it is prejudicial. The definition of flight has nothing to do with this case, the legal definition of flight.

Perhaps the last sentence of the quoted argument was objectionable. We say this in light of the fact that the, court did not instruct the jury as suggested by that sentence. However, it appears that the defendant’s objection was not addressed to the last sentence of the quoted argument, or at least it was not addressed directly and solely to that sentence, but “to any argument about flight.” Although the word “flight” was first used by counsel for the State in the third sentence of the quoted argument, it is obvious that he was using the word in connection with what he had just said in the second sentence of said argument as to defendant’s making “a break for it.” The evidence to the effect that at the time the two men from the bank came to the store to inquire as to the party or parties who had presented the credit card the defendant attempted to leave under the circumstances shown by the evidence as briefly narrated above furnished valid ground for the argument of State’s counsel on the subject. The court’s action in overruling defendant’s objection was not erroneous.

Appellant’s final contention is based on the refusal by the trial court of two written charges requested by defendant, numbered 1 and 2. The trial court refused each charge on the ground that it was illegible. Upon our review of a photocopy of each of the charges, we do not question the correctness of the trial judge’s conclusion as to the legibility of each charge. However, after having spent more time than a trial judge usually has to pass upon charges requested of him and with an opportunity to read the cases cited by defendant-appellant in support of the charges respectively, we have been able to determine with reasonable certainty what each charge states. Charge 1 states:

“I charge you ladies and gentlemen that knowledge that another contemplates doing an illegal act does not make one a coconspirator unless he assists other.”

The language is precisely the language of headnote 2 in United States v. Russel], 41 F.2d 852 (S.D.Ala.1930). Except for the grammar flaw to be found in the use of the word “other” instead of the words “the other,” the charge contains a correct principle of law. Even so, it does not follow that it should be given when requested in every case when defendant is sought to be held criminally liable as a coconspirator, or as an aider, abettor or accomplice of a person committing a crime as the principal. In the circumstances of some cases, and in those of the instant case, the use of the word “assists” in the charge could be readily but erroneously interpreted by the jury to require express language or active positive conduct on the part of the defendant. The “assistance” that is necessary and sufficient may be shown by the presence of the defendant with intent to render assistance if necessary if the principal knows that defendant is present at the time and that he intends to render assistance if necessary. Radke v. State, 292 Ala. 290, 293 So.2d 314 (1974); McCovery v. State, Ala.Cr.App., 365 So.2d 358 (1978). The refusal of defendant’s requested charge 1 was not erroneous.

Defendant’s charge 2 states:

“A person’s mere presence at time and place of another’s commission of a felony with intent to give aid therein, if necessary is not ‘aiding or abetting’ commission thereof in absence of prearrangement or preconcert unless principal knows of such person’s presence with such intent.”

The language is that of headnote 2 in Davis v. State, 36 Ala.App. 573, 62 So.2d 224, cert. denied 258 Ala. 281, 62 So.2d 229 (1953). The language is substantially supported by the text of the opinion, and we find no fault with it. However, it, like many other general principles of law, can become misleading to a jury in the particular circumstances of some cases. Although the words “prearrangement” and “preconcert” are often correctly used in connection with the subject of criminal liability of conspirators, aiders, abettors and accomplices of principals in the commission of crimes, they are not to be interpreted to the preclusion of the principle that no definite period of time for the meeting of the minds of the principal and the defendant is requisite. As otherwise correctly stated, with general unanimity of view of the authorities, the qualifying assistance may be rendered by the defendant by the encouragement or support he gives the principal by his presence if, with the knowledge of the principal, the defendant intends to render assistance if necessary and there is an arrangement or agreement between the two parties accordingly, even though the arrangement is made “on the spur of the moment.” Scott v. State, 374 So.2d 316 (Ala.1979); Watkins v. State, Ala.Cr.App., 357 So.2d 156, cert. denied, Ex parte State, 357 So.2d 161 (Ala.1977). The court in its oral charge included ample instructions as to the criminal liability of an accused as an aider, abettor or conspirator. It said, inter alia :

“When by prearrangement, or on the spur of the moment, two or more persons enter upon a common enterprise or adventure, and a criminal offense is contemplated, then each is a conspirator. And if the purpose is carried out, each is guilty of the offense committed whether he did any overt act or not.
“Presence alone is insufficient to establish participation in a conspiracy.”

The court was not in error in refusing defendant’s requested charge 2.

Although apparently not raised on the trial or on appeal, we think it should be noted that notwithstanding the categorization of the crime of which defendant was convicted as “forgery in the second degree,” such name is perhaps strictly speaking not warranted. The incident occurred during the time between the enactment of the Alabama Criminal Code, Acts 1977, No. 607, approved May 16, 1977, and its ultimately effective date of January 1, 1980, in which is found in § 13A-9-14 Commentary:

“Section 13 — 4—32(f) is a credit card forgery offense amply covered by the new section on forgery in the second degree, § 13A-9-3(a)(l).”

According to § 13A-9-3(b), “Forgery in the second degree is a Class C felony.” § 13A-5-6(a)(3) prescribes punishment for a Class C felony of not more than 10 years or less than 1 year and 1 day.

Although the indictment in this case largely followed the Code form of an indictment for forgery in the second degree (§ 15-8-150(58)), the offense actually charged in the indictment more nearly resembles the crime defined by Code of Alabama 1975 § 13-4-32(f) and (g) as follows in pertinent part:

“(f) Counterfeiting of credit card. — A person who, with intent to defraud a purported issuer, a person or organization providing money, goods, services or anything else of value or any other person, falsely makes or falsely embosses a purported credit card or alters such a credit card is guilty of counterfeiting a credit card and is subject to the penalties set forth in subsection (b) of section 13-4-40.
“(g) Signing credit card of another. — A person other than the card holder or a person authorized by him who signs a credit card, sales slip, sales draft or other instrument for the receipt of money, goods, services or anything else of value which evidences a credit card transaction violates this subsection and is subject to penalties set forth in subsection (b) of section 13 — 4-40. The name so signed may be that of the person so signing, the cardholder, another person or a fictitious person.”

Subsection (b) of section 13-4-40 provides, “A person who is subject to the penalties of this subsection shall be imprisoned not more than 10 years.”

It is to be noted that the range of punishment for forgery in the second degree is essentially the same as the range of punishment prescribed for most of the offenses dealt with on the subject of “credit cards” in Article 2 of Chapter 4 (§ 13-4-30 through § 13—4-41 of Code of Alabama 1975), which Chapter 4 is captioned “Forgery and Fraudulent Practices.”

In the indictment, in following the Code form for forgery in the second degree, there were set out therein a photocopy of the stamp of identifying portions of the particular credit card involved and a photocopy of the sales slip for the leather jacket, with the purported signature thereon of defendant’s companion at the time of the transaction.

The sufficiency of the indictment was not challenged, and apparently the anomaly just discussed was not mentioned during the trial. Our consideration of it leads us to the conclusion that the rights of defendant have not been adversely affected by it, that the indictment substantially charged the crime for which he was tried and convicted, by whatever name it may properly be called, and that the punishment fixed was well within the statutory limits. Our reference to the matter is in order to assure all concerned that, in our quest for error prejudicial to defendant, we have not overlooked it.

In searching the record for error prejudicial to defendant, we have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Tony WILLIAMS. (Re: Tony Williams v. State of Alabama).
    80-683.
    Supreme Court of Alabama.
    Aug. 21, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: DeCARLO, Judge.

text:
    Adolphus Karl THOMAS v. STATE.
    6 Div. 444.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.
    Rehearing Denied Aug. 4, 1981.

      Sheldon L. Watkins, of Robinson & Watkins, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Appellant was convicted of rape and sentenced to ten years, with one year to be served in the penitentiary and nine years to be served on probation.

The State’s evidence showed that on the evening of September 14, 1979, the prosecu-trix was waiting for a bus on a street corner in downtown Birmingham, when appellant and one Michael Brown forced her into their automobile and drove her to appellant’s house. They beat her about the face with a coke bottle, dragged her into the bedroom, repeatedly raped her, and forced her to perform unnatural sex acts. The prosecutrix resisted and, at one point, stabbed appellant with a pen, leaving a small red mark on his abdomen.

Upon being released by appellant and Brown, the prosecutrix went home and reported the incident to her mother, who called the police. The victim’s mother stated that her daughter was hysterical and her face was swollen.

That same evening, Officer Donald W. Toole took the prosecutrix to appellant’s house, where she made a positive identification of appellant as her assailant. Officer Toole observed a red mark on appellant’s abdomen and a coke bottle on the bedroom floor. The prosecutrix told Officer Toole that both appellant and Brown had penetrated and ejaculated inside her. At trial, the prosecutrix testified that she did not know whether appellant had ejaculated.

Mr. Kevin Noppinger, serologist with the State Department of Forensic Sciences, testified that from tests he performed on biological specimens taken from appellant and from the victim, there was no indication that appellant had had sexual intercourse with the prosecutrix. The tests confirmed, however, that a person with the same secretion characteristics as Michael Brown had had intercourse with the victim.

Appellant testified in his own behalf and admitted giving the prosecutrix a ride home on the night in question, but stated that she got in the car voluntarily. He testified that he, Michael Brown, and the prosecutrix went to his (appellant’s) house and drank some gin. The appellant denied raping the prosecutrix or having any sexual relations at all with her.

I

Appellant claims that the evidence was insufficient to warrant his conviction. Specifically, he argues that the victim’s inconsistent statements concerning whether or not he ejaculated, taken together with the serologist’s testimony that there was no medical evidence confirming his sexual attack on the prosecutrix, indicate the proof was insufficient to convict him of rape.

Accepting as true the evidence introduced by the State, as we are bound to do under the law in Alabama, Lawrence v. State, Ala.Cr.App., 387 So.2d 318 (1980), it is clear beyond question that the State proved the offense of rape. See Smith v. State, Ala.Cr.App., 345 So.2d 325 (1976), cert. quashed, Ala., 345 So.2d 329 (1977). Whether or not appellant climaxed is immaterial. Emission is not an element of the offense of rape. Waller v. State, 40 Ala. 325 (1867).

II

Appellant contends that the trial court erred in overruling his motion to suppress testimony concerning a prior conviction.

In 1973, when appellant was seventeen years old, he was tried as an adult and convicted of petit larceny. A conviction for petit larceny is admissible for impeachment purposes because it is a crime involving moral turpitude. See Ala.Code § 12-21-162(b) (1975); Caldwell v. State, 282 Ala. 713, 213 So.2d 919 (1968); Payne v. State, 261 Ala. 397, 74 So.2d 630 (1954).

Nevertheless, appellant argues that his prior conviction should have been inadmissible because juvenile court adjudications cannot be introduced to impeach a witness, see Green v. State, Ala.Cr.App., 352 So.2d 1149 (1977), and at the time he was tried for the instant offense, the juvenile age was eighteen, see Ala.Code § 12-15-1 (1975).

Regardless of the juvenile age at the time of the appellant’s trial in 1980, the fact remains that, at the time of his former conviction in 1973, the juvenile age was sixteen, See Ala.Code T. 13, § 350 (1958), and he was then tried and convicted as an adult. His former conviction, therefore, was not a juvenile adjudication, and was not inadmissible to impeach him.

Ill

Appellant testified in his own behalf to a very detailed recollection of the events the night of September 14, 1979. On cross-examination the State asked him whether he remembered making a statement to Sergeant George Grubbs of the Birmingham Police Department indicating that he had only the vaguest memory of the incident. The appellant admitted making the statement but not signing it, and the State did not offer the writing in evidence.

Appellant now insists that the trial court erred in permitting the State to cross-examine him from the statement. Appellant complains that, prior to questioning him from the writing, the prosecution did not allow him to read the statement and did not lay the proper predicate regarding the time, place, and circumstances of making the statement.

Initially we note that, prior to impeachment, a witness must be shown a writing only if the witness (1) wrote the writing, (2) signed the writing, or (3) the writing contains sworn testimony of the witness. Parker v. State, 266 Ala. 63, 94 So.2d 209 (1956); Gamble, McElroy’s Alabama Evidence, § 158.01(2) (3d ed. 1977). Thus, since appellant had not signed or otherwise approved the statement made to Sergeant Grubbs, there was no requirement that he be shown the statement prior to cross-examination from it.

In addition, since appellant admitted making the statement and the State did not attempt to introduce it in evidence, there was no requirement that appellant be asked the customary predicate questions regarding the circumstances of its making. See Gamble, supra at § 157.01(1).

The record reveals, however, that not only was appellant shown the statement at trial, but he was also asked if he “recalled having this conversation on or about the 17th of September, 1979, around 11:40 A.M.” In addition, he was asked whether, prior to questioning by Sergeant Grubbs, he was informed of his rights, or forced or induced in any way to make a statement. It is clear from the record that there was no error in the cross-examination of appellant.

We have searched the record for error and have found none; therefore, the judgment and conviction of the circuit court of Jefferson County is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Henry Lee MACK v. STATE.
    2 Div. 274.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    David A. Reid, Livingston, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

The judgment of conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981); and Ritter v. State, Ala., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur, except BOOK-OUT, J., who dissents for reasons stated in Recardo Cook v. State, Ala.Cr.App., Ms. 6 Div. 561, June 23, 1981.


text:
    Jessie POOLE, Jr. v. STATE.
    3 Div. 228.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Samuel F. Irby, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Presiding Judge.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala.S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur, except BOOK-OUT, J., who dissents for reasons stated in Cook v. State, Ala.Cr.App., Ms. 6 Div. 561, June 23, 1981.


text:
    Anthony BAKER v. STATE.
    3 Div. 233.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Bert W. Rice, Atmore, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981); and Ritter v. State, Ala.S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur, except BOOK-OUT, J., who dissents for reasons stated in Cook v. State, Ms. 6 Div. 561, June 23, 1981.


text:
    Ernest Dwight MARVIN v. STATE.
    4 Div. 707.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Charles T. Morris, Opp, and Griffin Sikes, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Paul E. Johnson, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala.S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So,2d 158 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur, except BOOK-OUT, J., who dissents for reasons stated in Cook v. State, Ms. 6 Div. 561, June 23, 1981.


text:
    Angelo CONLEY v. STATE.
    4 Div. 770.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.

      Kenneth L. Funderburk of Phillips & Funderburk, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Virginia A. Johnston, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981); and Ritter v. State, Ala.S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur, except BOOK-OUT, J., who dissents for reasons stated in Cook v. State, Ms. 6 Div. 561, June 23, 1981.


text:
    Jerry Wayne JACOBS v. STATE.
    6 Div. 31.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    John L. Carroll, Dennis N. Balske, Morris S. Dees and Stephen J. Ellmann, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala.S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM. BOOKOUT, Judge,

text:
    Jerry Wayne BOGGAN v. STATE.
    6 Div. 61.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    James S. Garrett of Vincent, Garrett & Hasty, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Robbery when the victim was intentionally killed by the defendant—§ 13-11-2(a), Code of Ala.1975; sentence: life without parole.

On February 2,1979, appellant was found guilty of the September 12, 1978, robbery and intentional killing of his ninety-nine-year-old aunt, Penny Williams. On March 22, 1976, at his sentencing hearing, the trial judge commuted appellant’s sentence to life without parole.

We pretermit discussion of appellant’s issues raised on appeal as this cause is governed by the recent decisions of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Ex parte Wayne Eugene Ritter, 403 So.2d 154 (Ala.1981); Cook v. State (Ala.Cr.App.1981) [6 Div. 561, Ms. June 23, 1981]; and Lane v. State (Ala.Cr.App.1981) [7 Div. 842, Ms. June 23, 1981].

Under the authorities hereinabove cited, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.

BOOKOUT, Judge,

dissenting:

I respectfully dissent for reasons stated in my dissent in Cook, supra.


author: PER CURIAM.

text:
    Floyd Lee COLEMAN v. STATE of Alabama.
    6 Div. 219.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    George W. Andrews and Jake V. Bivona, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   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 Ritter v. State, 403 So.2d 154 (Ala.1981).

REVERSED AND REMANDED.

All the Judges concur.


text:
    Timothy WATTERS, alias v. STATE.
    6 Div. 325.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Hiram Dodd, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   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 Ritter v. State, 403 So.2d 154 (Ala.1981).

REVERSED AND REMANDED.

All the Judges concur, except BOOK-OUT, J., who dissents for reasons stated in Cook v. State (Ala.Cr.App.1981) [6 Div. 561, Ms. June 23, 1981].


text:
    Matthew L. BEVERLY v. STATE.
    8 Div. 283.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Robert E. Cramer, Jr. and Larry Morgan, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Sp. Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The .judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala.S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Leon JONES v. STATE.
    8 Div. 354.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Walter Allen Davis, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala.S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All Judges concur.