author: TORBERT, Chief Justice. ALMON, Justice

text:
    Ex parte State of Alabama. (In re Pete J. BUFFO v. STATE of Alabama).
    80-298.
    Supreme Court of Alabama.
    March 12, 1982.

      Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for petitioner.
    Charles M. Crook, of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for respondent.
    Thomas L. Krebs, Director, and Asst. Atty. Gen., for amicus curiae Alabama Securities Com’n.
   TORBERT, Chief Justice.

Defendant, Pete J. Buffo, was tried on the charge of aiding and abetting securities fraud, directly or indirectly, in connection with the offer, sale, or purchase of surplus notes issued by Vanguard Security Life Insurance Company (Vanguard) and in violation of Code 1975, § 8-6-17. The jury found the defendant guilty and he was fined $4,000.00 and sentenced to three years in the state penitentiary. Appeal was taken to the Court of Criminal Appeals, 415 So.2d 1146 where the case was reversed. The State petitioned this Court for a writ of certiorari to review the decision below. Because of errors in applying certain provisions of the Alabama Securities Act, we reverse.

Vanguard maintained offices in Montgomery, Alabama, and therefore was subject to the regulations of the Alabama Department of Insurance. On December 31, 1973, Vanguard was insolvent and its capital impaired. Unless this insolvency was cured, receivership proceedings could have been instituted by the Commissioner of Insurance. To solve this problem, Vanguard contracted to purchase property, provided that the property could be valued at not less than $1,180,755.00. In payment therefor, Vanguard was to issue its surplus notes.

Buffo is a California real estate appraiser. On June 3, 1974, he submitted an appraisal report to Vanguard valuing certain property located near Palm Springs, California. Defendant valued a 360-acre tract of remote and inaccessible mountainside property known as “slope property” at $2,000.00 per acre. Defendant’s appraisal report was addressed to the corporate secretary of Vanguard. In the report, the defendant certified that neither his employment nor his compensation was contingent upon the value he reported. The report also stated that it could not be “used for any purpose by [anyone] except the addressee without the previous written consent of the appraiser.”

The appraisal submitted by Buffo was required by the terms of a real estate purchase agreement between Vanguard and Dari-International, Inc., a Washington corporation doing business in California. The contract for the purchase of the property was dated June 30, 1974. Under the terms of the contract, Dari-International, the seller, had the choice of either of two plans for Vanguard’s payment of the purchase price. Dari-International had the option to receive eight surplus notes in the amount of $50,-000.00 each and one surplus note in the amount of $55,777.00, or in the alternative, Dari-International could receive one-half of the net profits derived from the subdivision, development, and sale of the land, plus a surplus note in the amount of $50,000.00. The surplus notes were payable only if on or by their due dates Vanguard’s capital and surplus exceeded $3,100,000.00. In essence, Dari-International was to transfer property approximately equal in value to what it received from Vanguard. Additionally, the contract provided that an appraisal report, prepared by appraisers acceptable to the Alabama Department of Insurance, must demonstrate the market values of two parcels of property, including the one parcel appraised by the defendant, to be no less than $1,180,775.00. On June 30,1974, the same day the sale contract was executed, Dari-International elected to take the second option and Vanguard executed a surplus note in the amount of $50,000.00 with six percent interest due on or before June 30, 1979.

An examiner with the Alabama Department of Insurance testified that Vanguard was insolvent by $474,000.00 on December 31,1973. Vanguard’s insolvency was cured, however, in June or July of 1974 by the purchase of two parcels of land in California and two parcels in Tennessee. The value attributed to the combined real estate totalled $1,509,918.00. Because of this representation, Vanguard appeared to have a net worth of $478,773.00 on December 31, 1974. In the absence of the $2,000.00 per acre appraisal on the 360 acres of slope property, submitted by Vanguard to the Alabama Department of Insurance, Vanguard would not have been solvent and would have been placed into receivership at that time. The surplus note for $50,000.00 given to Dari-International by Vanguard was not registered under the security laws of Alabama.

In early 1976, the defendant engaged Nelson Thompson, a real estate appraiser from Los Angeles, California, to appraise the 360-acre slope property for him. Buffo gave Thompson a copy of his 1974 appraisal report in which the defendant had valued the parcel at $2,000.00 per acre. Thompson, however, appraised the 360 acres of slope property at $55.00 per acre. In addition, he appraised another parcel, 290 acres of “wash” valley property, and found the value of that property to be between $250.00 and $400.00 per acre. When Thompson submitted his reports to the defendant, Buffo replied, “Hell, the appraisal that I put together [in 1974] is much higher, how am I going to look when I send these down with your figures?” The defendant then stated, “For what you get paid we’ll have to change this around.” Buffo and Thompson then changed the appraisal and Thompson’s original appraisal was destroyed in the defendant’s office. Defendant told Thompson that Vanguard needed the appraisals for a capital statement. The altered appraisals valued the 360-acre tract at $4,000.00 per acre and the 290-acre tract at $5,000.00 per acre. Thompson refused to sign the altered appraisals, but saw the defendant sign them. These appraisals were then turned over to Vanguard.

The 1976 appraisals, likewise, it seems, had to reflect a preconceived value. As a result of the inflated appraisals, Buffo’s appraisals accounted for $2,890,000.00 of the $3,100,000.00 that Vanguard subsequently claimed as assets.

Thompson also testified that when an investigator from the Alabama Insurance Department attempted to verify the accuracy of Buffo’s appraisals, Buffo asked Thompson not to talk with him. Thompson further testified:

“A. Yes, the telephone conversation was sort of a hurried hurried, rush rush conversation. Are you gonna be there very long, I said, yes I’ll be here all evening and he said if anybody calls you don’t say anything I’ll explain when I get there, I’m bringing your check.
“Q. Okay.
“A. So he came very rapidly and when he was giving me the check he asked did anyone contact me from Alabama and I said no why should they. So he mentioned there was a guy by the name of Hartley that had introduced Bob Hill and he’s out here from Alabama and he would probably be calling on me and he would suggest that I don’t tell him anything and then he asked where was a place to eat and left the office.”

Robert Hill, a real estate appraiser from Palm Springs, California, appraised the two parcels at the request of the Alabama Department of Insurance. His examination of the property showed that the 360-tract was worth $50.00 per acre for a total value of $18,000.00 and that the 290-acre tract was worth $330.00 per acre for a total value of approximately $95,000.00.

Vanguard did business in Alabama from June 30, 1974, until the Alabama Department of Insurance placed the company in receivership on November 29, 1976. At the present time, Vanguard has 1,880 unpaid claims totaling $2,137,852.66.

At the conclusion of the State’s case, the defendant moved to exclude the evidence on the grounds that the State had failed to prove a prima facie case of securities fraud, and that no evidence was presented to prove a conspiracy between the defendant and Vanguard to defraud the Alabama Department of Insurance. Defendant’s motion to exclude was denied, but the trial court instructed the jury that they could consider the 1976 appraisal only for the purpose of determining the defendant’s intent, since there was no evidence a security was issued in 1976.

In reversing the trial court, the learned Court of Criminal Appeals misconstrued the coverage of the securities laws in criminal prosecutions. That court stated that “there is not one shred of evidence that [Buffo] conspired with Vanguard ‘in connection with the offer, sale, or purchase of any security’ in order to defraud the Alabama Department of Insurance,” and that there “is not even a scintilla of evidence that [Buffo] knew his 1974 appraisal would be submitted to the Department of Insurance.” The Court of Criminal Appeals, as a result of its incorrect application of Federal Rule 10b-5 civil principles to criminal prosecutions also held that neither Buffo nor Vanguard had violated Code 1975, § 8-6-17, stating that “[t]his was simply not a case involving securities fraud.” Finally, the Court of Criminal Appeals incorrectly held that no securities fraud existed because “[n]either Vanguard, its stockholders, creditors, nor the Alabama Department of Insurance were adversely affected by the is-suances of the surplus note. No investor was victimized.”

The Alabama Securities Commission, pursuant to Code 1975, § 8-6-18(c), is charged with the enforcement of the provisions of the Securities Act of Alabama. This includes § 8-6-17, which the defendant, Buf-fo, is charged with violating, and which provides:

“It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly, to:
“(1) Employ any device, scheme or artifice to defraud;
“(2) Make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
“(3) Engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.”

Code 1975, § 8-6-17.

In Manson v. State, 349 So.2d 67, 73 (Ala.Cr.App.), cert. denied, 349 So.2d 86 (Ala.1977), as well as in this action, the Court of Criminal Appeals stated that Code 1975, § 8-6-17, is identical “in all respects, other than the insertion of the word ‘offer,’ and that which is necessary to a delineation between the area of sovereignty of Alabama and that of the United States” to Rule 10b-5 of the Securities and Exchange Commission. See, 17 C.F.R. § 240.10b-5 (1981). Therefore, since there are few Alabama cases construing the Alabama securities laws, federal cases should be reviewed to aid in the proper interpretation of the corresponding sections of Alabama statutory law inasmuch as the sections are virtually identical. Gallion v. Alabama Market Centers, Inc., 282 Ala. 679, 213 So.2d 841 (1968).

The Court of Criminal Appeals held that all three counts of Buffo’s indictment failed to charge him with the substantive offense of securities fraud. It is true that the indictment does not charge in a single terse statement that Buffo, in connection with the offer, sale, or purchase of any security, directly or indirectly employed any device, scheme, or artifice to defraud. The language of the indictment does track, however, the language of § 8-6-17 and states in pertinent part:

“Count I ... Pete J. Buffo .. . did, in connection with the offer, sale, or purchase of any security .. . directly or indirectly employ a device or devices, scheme or schemes, or artifice or artifices to defraud, to-wit: ... Buffo did aid, abet encourage or otherwise assist Vanguard to falsify, inflate, or exaggerate appraisals of certain real estate owned or held by Vanguard....”

This indictment is sufficient to bring Buffo within the scope of § 8-6-17. See, SEC v. Penn Central Co., 450 F.Supp. 908 (E.D.Pa.1978); Gray v. State, 364 So.2d 694, 699 (Ala.Cr.App.1978).

In holding that the acts of Buffo and Vanguard did not violate § 8-6-17 and did not constitute securities fraud, the court below stated that certain principles applicable in federal civil cases, such as the Simba um rule, were directly applicable in this criminal prosecution. In Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir. 1952), it was held:

“[Section 10(b)] was directed solely at that type of misrepresentation or fraudulent practice usually associated with the sale or purchase of securities rather than at fraudulent mismanagement of corporate affairs, and ... Rule X-10B-5 extended protection only to the defrauded purchaser or seller.”

193 F.2d at 464. This rule, however, requires only that a plaintiff in a civil suit asserting a claim for damages under Rule 10b-5 be either a purchaser or seller of securities. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). The Birnbaum rule was undoubtedly intended only as a standing rule for private rights of action and is not applicable to criminal prosecutions or suits by the Securities and Exchange Commission (SEC). See, 5 A. Jacobs, The Impact of Rule 10b-5, § 38.01[d] at 2-48 (rev. 1980). This is best stated by the case of SEC v. Wong, 252 F.Supp. 608, 611 (D.P.R.1966):

“This is the case of a public agency enforcing public policy. The Commission does not have to engage in the purchase or sale of securities. In order to bring suit under the statutes which it has a duty to enforce, a regulatory agency need not be itself the victim. The Commission acts here under the authority of the Securities Exchange Act to protect the public and not to protect itself as an investor. Section 21(e) of the Securities Exchange Act permits the Commission to institute an action to enjoin violations of the provisions such as those allegedly involved here, or, similarly, any provision of the Act or the Rules thereunder, with no further allegations than that the defendants are engaged in acts and practices which have violated Section 10(b) or Rule 10(b)(5).”

252 F.Supp. at 611. Thus, it is obvious that the standing requirements of Birnbaum impose no limitations on the SEC to bring actions under § 10(b) and Rule 10b-5. See also, Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 751 n.14, 95 S.Ct. 1917, 1932 n.14, 44 L.Ed.2d 539 (1975); SEC v. National Securities, Inc., 393 U.S. 453, 467 n.9, 89 S.Ct. 564, 572 n.9, 21 L.Ed.2d 668 (1969); SEC v. Savoy Industries, Inc., 587 F.2d 1149, 1171 (D.C.Cir.1978), cert. denied sub nom. Zimmerman v. SEC, 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979); United States v. Charnay, 537 F.2d 341, 349 n.11 (9th Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 527, 50 L.Ed.2d 610 (1976); United States v. Persky, 520 F.2d 283, 288 n.9 (2d Cir. 1975). Applying these principles to the Alabama Securities Act and the case at bar, it becomes apparent that the Court of Criminal Appeals erred when it held that the Birnbaum rule was directly applicable to this case. Likewise, when the United States Supreme Court adopted the Birn-baum rule in Blue Chip Stamps, it merely decided that the remedies of § 10(b) and Rule 10b-5 were not available to nonpur-ehasers and nonsellers in private civil damage suits. The Court expressly rejected the idea that the purchaser-seller requirement imposed any limitations on the SEC or the regulatory agencies of the states to bring actions for violations under their respective securities laws. 421 U.S. at 751 n.14, 95 S.Ct. at 1932 n.14.

Buffo contends that the Court of Criminal Appeals was correct in holding that neither Vanguard, its stockholders, or its creditors, nor the Alabama Department of Insurance was adversely affected by the issuance of the surplus note and that no investor was victimized. Buffo also contends that the Court of Criminal Appeals was correct in holding that there was no evidence to show that he knew that his 1974 appraisal would be submitted to the Alabama Department of Insurance. This raises the primary issues of this case — that is: (1) What .must be shown to establish that an act is “in connection with” the offer, purchase, or sale of a security, and (2) is the State required to prove specific intent to violate the Alabama Securities Act?

The Court of Criminal Appeals’ holding that the actions of neither Buffo nor Vanguard were in violation of § 8-6-17 appears to be grounded upon remoteness and a lack of causal connections. The court quoted the United States Supreme Court in its opinion in Superintendent of Insurance of New York v. Banker’s Life & Casualty Co., 404 U.S. 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971), a civil action, where that Court stated that in enacting § 10(b), Congress “did not seek to regulate transactions which constitute no more than internal corporate mismanagement.” In Banker’s Life, the defendants financed the purchase of Manhattan Casualty Company by converting Manhattan’s own assets to their use. Manhattan’s records showed only a sale of its assets and use of the proceeds to buy a certificate of deposit. Banker’s Life received its five million dollars and the defendants became the sole owners of Manhattan. The only parties injured were the policy holders, the creditors of Manhattan, and the State of New York. Justice Douglas, in a unanimous decision, wrote:

“The fact that the fraud was perpetrated by an officer of Manhattan and his outside collaborators is irrelevant to our problem. For § 10(b) bans the use of any deceptive device in the “sale” of any security by “any person.” And the fact that the transaction is not conducted through a securities exchange or an organized over-the-counter market is irrelevant to the coverage of § 10(b). Hooper v. Mountain States Securities Corp., 5 Cir., 282 F.2d 195, 201. Likewise irrelevant is the fact that the proceeds of the sale that were due the seller were misappropriated.
“The Congress made clear that 'disregard of trust relationships by those whom the law should regard as fiduciaries, are all a single seamless web’ along with manipulation, investor’s ignorance, and the like.... Since practices ‘constantly vary and where practices legitimate for some purposes may be turned to illegitimate and fraudulent means, broad discretionary powers’ in the regulatory agency ‘have been found practically essential.’ ... Hence we do not read § 10(b) as narrowly as the Court of Appeals; it is not ‘limited to preserving the integrity of the securities markets’ .. ., though that purpose is included. Section 10(b) must be read flexibly, not technically and restrictively. Since there was a ‘sale’ of a security and since fraud was used ‘in connection with’ it, there is redress under § 10(b), whatever might be available as a remedy under state law. [Emphasis added and citations omitted].”

404 U.S. at 10-12, 92 S.Ct. at 168-169. Thus the Court approved a loose nexus between the fraud and the securities transaction made in connection with it. When referring to causation, the Court stated that “[t]he crux of the present case is that [the defrauded corporation] suffered an injury as a result of deceptive practices touching its sale of securities as an investor.” (Emphasis added.) 404 U.S. at 12-13, 92 S.Ct. at 169. See also, Rich v. Touche Ross & Co., 415 F.Supp. 95, 100 (S.D.N.Y.1976).

Other federal courts have followed this line of reasoning and have held that a “classic 10b-5 violation” occurs when a defendant has “caused the corporation to issue materially false statements.” Landy v. Federal Deposit Insurance Corp., 486 F.2d 139, 163 (2d Cir. 1973). See also, SEC v. Penn Central Co., 450 F.Supp. 908, 912 (E.D.Pa.1978).

As has been observed by several commentators, courts should be careful not to confuse the civil fraud concepts of reliance, privity, causation, and the purchaser-seller requirement with the connection or nexus requirement. When nexus is the issue to be determined, the essence of the question becomes whether the fraud has a sufficiently close relationship to the purchase or sale of the security to make it actionable. The cases make it apparent that the fraud does not have to be intrinsic to the specific securities transaction. See 3B H. Bloomenthal, Securities and Federal Corporate Law, § 11.12 at 11-45 (1977). Professor Jacobs has further stated:

“The ‘in connection with’ clause would ordinarily be fulfilled if a securities transaction is involved in some way, even though the fraud did not occur in the purchase or sale that is attacked (assuming the fraud and securities transaction can be integrated into the same scheme), the deceit did not concern the terms of the securities transaction, the claimant was not a party to the deceptive transaction, the fraud and the loss were merely indirectly connected, the securities transaction was only tangentially related to the fraudulent course of conduct, and the fraud was not aimed at causing a purchase or sale of a security.”

5 A. Jacobs, supra at § 38.01[b] at 2-36. Rule 10b-5 has been extended in a number of cases where the fraud was indirectly related to the purchase or sale, including cases where there was a misrepresentation of the value or the consideration paid for it. See, Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1134 n.12 (2d Cir. 1976) (fraud involving the thing given for the security); Hooper v. Mountain States Securities Corp., 282 F.2d 195, 202-03 (5th Cir. 1960), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961) (fraud in the consideration received); Allen Organ Co. v. North American Rockwell Corp., 363 F.Supp. 1117, 1127-1128 (E.D.Pa.1973) (misrepresentation concerning consideration). See also, Emisco Industries, Inc. v. Pro’s Inc., 543 F.2d 38, 40 (7th Cir. 1976); Eason v. General Motors Acceptance Corp., 490 F.2d 654, 656 (7th Cir. 1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974).

Applying the foregoing to the case at bar, it becomes obvious that the court below misconstrued the applicable law when it found no evidence of a securities fraud. In 1973, when Vanguard was declared impaired, it still had some assets, although as a whole the company was insolvent. Vanguard had to find a method by which its capital could be increased in order to avert being placed in receivership. The method employed was the issuance of a surplus note in exchange for real estate. The value of that real estate, as determined by Buffo’s appraisal, was included in Vanguard’s capital statement. Furthermore, the surplus debenture note issued by Vanguard for the purchase price of the property was required by the sale contract to be appraised at a predetermined value. Since the note could only be paid from surplus, and since there was no real expectation of Vanguard ever having a surplus, the entire transaction was a sham. Vanguard gave up virtually nothing, received virtually nothing, but still was able to claim over $1,000,000.00 in assets on its capital statement, thereby defrauding the Alabama Department of Insurance and delaying the institution of receivership proceedings.

There is no doubt that the fraud perpetrated against the Alabama Department of Insurance was “in connection with” the transaction involving the security. The scheme involved the valuation of the consideration given for the security and it is clear that Buffo’s part in this scheme was crucial. Section 8-6-17 was intended to prohibit all fraudulent schemes in connection with the offer, sale, or purchase of securities. This is true whether or not “the artifices employed involve a garden-type variety of fraud, or present a unique form of deception. Novel or atypical methods should not provide immunity from the securities laws.” A. T. Brod & Co. v. Perlow, 375 F.2d 393, 397 (2d Cir. 1967).

As to whether the State must prove specific intent in a securities case, reference to the Comments and Commissioners’ Notes to the Uniform Securities Act, after which the Securities Act of Alabama is modeled, are instructive. The comments to § 409(a), which is similar to Code 1975, § 8-6-17, refer the reader to the comments under § 204(a)(2)(B) and provide:

“As the federal courts and the SEC have construed the term ‘willfully’ ... all that is required is proof that the person acted intentionally in the sense that he was aware of what he was doing. Proof of evil motive or intent to violate the law, or knowledge that the law was being violated, is not required.”

1 Blue Sky L.Rep. (CCH) ¶5524 at 1513 (1980). As required by the statute, Buffo was charged with willfully engaging in fraudulent conduct in connection with the offer, sale, or purchase of a security.

While Alabama cases have held that there must be a guilty knowledge or mens rea, Favor v. State, 389 So.2d 556, 562 (Ala.Cr.App.1980); Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978); Manson v. State, 349 So.2d 67 (Ala.Cr.App.), cert. denied, 349 So.2d 86 (Ala.1977), federal cases have held this to mean:

“We think that the government is required to prove specific intent only as it relates to the action constituting the fraudulent, misleading or deceitful conduct, but not as to the knowledge that the instrument used is a security under the Securities Act. The government need only prove that the object sold or offered is, in fact, a security; it need not be proved that the defendant had specific knowledge that the object sold or offered was a security.
“... [W]here inclusion of the instrument in question in the definition of a security in the context of a fraud case is itself a jural fact, the knowledge and belief of the defendant with respect to this is not a relevant fact requiring proof.”

United States v. Brown, 578 F.2d 1280, 1284 (9th Cir. 1978). A party can willfully violate a securities law without knowing of its existence. United States v. Peltz, 433 F.2d 48 (2d Cir. 1970). It is reasonable to assume that one who connects himself so closely with such a transaction has an interest in that transaction and it places upon him the duty to stay informed as to the consequences of such a transaction. Van Riper v. United States, 13 F.2d 961, 966 (2d Cir. 1926). Thus, intent to deceive means “intent to say something, that is expected to be relied on, that is not believed to be true, or, if strictly true, is hoped will be understood in an untruthful sense.” SEC v. World Radio Mission, Inc., 544 F.2d 535, 540 (1st Cir. 1976). Knowledge that the act is in violation of the securities laws, or that the instrument in question is a security, is not a relevant fact requiring proof. See, United States v. Riedel, 126 F.2d 81 (7th Cir. 1942). For federal cases holding scien-ter unnecessary, see, SEC v. Universal Major Industries Corp., 546 F.2d 1044, 1047 (2d Cir. 1976), cert. denied sub nom. Homans v. SEC, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977); United States v. Schwartz, 464 F.2d 499 (2d Cir. 1972); Gearhart and Otis, Inc. v. SEC, 348 F.2d 798 (D.C.Cir.1965); SEC v. Penn Central Co., 450 F.Supp. 908, 918 (E.D.Pa.1978); United States v. Custer Channel Wing Corp., 247 F.Supp. 481 (D.Md.1965), aff’d, 376 F.2d 675 (4th Cir.), cert. denied, 389 U.S. 850, 88 S.Ct. 38, 19 L.Ed.2d 119 (1967).

Applying the foregoing to the facts of this case, it is clear that, contrary to the holding of the Court of Criminal Appeals, there was sufficient evidence from which the jury could have properly found that the defendant willfully violated § 8-6-17. Evidence was introduced that in 1974, Buffo knowingly prepared a false real estate appraisal, valuing remote and inaccessible mountainside property at forty times its actual worth. Testimony such as the conversations between Buffo and others, the contract between Vanguard and Dari-Inter-national calling for a preconceived valuation of the property, and Buffo’s attempt to prevent Thompson from talking to the representative of the Alabama Insurance Department provide sufficient evidence for a jury to conclude that the defendant knew the appraisal would be used by Vanguard in its capital statement and that the property must show such a preconceived value.

Finally, the Court of Criminal Appeals held that there was not one scintilla of evidence, either direct or circumstantial, to show that Buffo conspired with Vanguard. In Conley v. State, 354 So.2d 1172 (Ala.Cr.App.1977), however, the Court of Criminal Appeals stated:

“In order that the fact of a conspiracy may be established, it need not be proved by evidence of an express agreement or compact between the alleged conspirators, or by any direct evidence of any agreement or compact. It may be proved inferentially, or by circumstantial evidence. Conspiracies from their very nature are usually entered into in secret, and are consequently difficult to be reached by positive testimony, which renders it peculiarly necessary and proper to permit them to be inferred from the circumstances.”

354 So.2d at 1177. From the testimony given, there was sufficient evidence given for the jury to infer from the circumstances that a conspiracy existed.

Although it is contended that the state is attempting to combine two causally unconnected transactions; that is, the issuance of the security for the property and Vanguard’s misrepresentations to the Alabama Department of Insurance; it is clear that the actions of Vanguard and of Buffo were all in connection with the issuance of the security. Buffo’s appraisals accounted for nearly all of Vanguard’s claimed assets and forestalled the institution of receivership proceedings by “curing” Vanguard’s insolvency in both 1973 and 1975. Buffo apparently had enough knowledge that his appraisals were fraudulent that he would try and prevent Mr. Thompson from talking to Mr. Hartley of the Alabama Department of Insurance. Since Buffo’s actions and appraisals were “in connection with” the issuance of the security, and since there was evidence adduced that he knew the appraisals to be fraudulent, we find that the decision of the Court of Criminal Appeals is due to be reversed and the case remanded.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, SHORES, EMBRY and ADAMS, JJ., concur.

ALMON and BEATTY, JJ., dissent.

ALMON, Justice

(dissenting).

It must be remembered that Buffo was not tried for mere fraud, but was tried for fraud in connection with a securities transaction. The Court of Criminal Appeals found as a fact that there was no evidence in the record to connect Buffo with the issuance of a security. In its petition for certiorari the State has offered no additional facts; consequently this Court is bound by the Court of Criminal Appeals’ findings of fact. Rule 39(k), A.R.A.P.

I think the Court has altered existing state law by alluding to several federal decisions. The Court has adopted what it refers to as “a loose nexus between the fraud and the securities transaction.... ” Indeed it has, particularly in view of the Court of Criminal Appeals’ finding that there was no connection or nexus at all.

For one to be convicted under § 8-6-18(a) of “willfully” violating the Securities Act, there must be proof of a guilty knowledge or a mens rea.

“In any type of fraud case, it is essential to prove ‘scienter’ or guilty knowledge because it is an element of the crime itself. Therefore, in securities fraud cases, ‘willfully’ in subsection (a) necessarily ‘requires proof of the guilty knowledge or mens rea.’ ”

Favor v. State, 389 So.2d 556 (Ala.Cr.App.1980).

“[U]nder an indictment charging a violation of the Alabama Securities Act the state has the burden of showing that the conduct was willful and unlawful.” [Emphasis added.]

Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.1978).

There is absolutely nothing in the definition of a violation under the Securities Act to even remotely suggest that the term “willfully” should take on any definition other than that already established in the criminal law. Without some proof of knowledge of the scheme or planned use of his work, I fail to see how Buffo could be guilty of “willfully” violating the Securities Act.

BEATTY, J., concurs.

      . A surplus note is a specialized type of promissory note by which the promisor agrees to pay the agreed principal amount and interest only if and when the company’s financial condition is such that it has capital and surplus in excess of a stated amount.

      . Charles Skinner, an employee with the Alabama Department of Insurance, testified that a small amount of cash, approximately $5,000.00, was transferred from Vanguard to Dari-Inter-national. Thus, the small amount of cash plus the prospect of receiving one-half of any profits realized on resale by Vanguard made the exchanges approximately equal in value.

      . The Court continued: “But we read § 10(b) to mean that Congress meant to bar deceptive devices and contrivances in the purchase or sale of securities whether conducted in the organized markets or face to face.” 404 U.S. at 12, 92 S.Ct. at 169.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Pete J. BUFFO v. STATE.
    3 Div. 97.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
   PER CURIAM.

AFFIRMED ON AUTHORITY OF THE SUPREME COURT OF ALABAMA, 415 So.2d 1158, MS. 80-298, MARCH 12, 1982. NO OPINION.

All the Judges concur.


author: BOWEN, Judge.

text:
    Charles Cartwright JACKSON v. STATE.
    1 Div. 270.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.

      John W. Coleman, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant appeals his revocation of probation. The single issue before us is whether the trial court has authority to order that separate probation periods run consecutively in different youthful offender cases against the same defendant. We answer affirmatively.

The facts in this case are not complicated. On October 21, 1976, the defendant was sentenced under a youthful offender conviction and placed on probation for three years. On April 22, 1977, the same defendant was adjudged guilty of being a youthful offender and was sentenced to three years to run consecutively to the October 21,1976 sentence. The defendant was again placed on probation pending his good behavior.

On February 2, 1981, the defendant was arrested for murder. Delinquent charges were filed by the defendant’s probation officer and in March of 1981 the Mobile District Attorney filed a motion to revoke the defendant’s probation. On March 25, after a hearing, the District Court revoked the defendant’s probation and reinstated the suspended sentence of three years which had been imposed on April 22, 1977.

The defendant relies on Alabama Code Section 15-19-6(a)(2) (1975) and contends that his probation period should have been completed on April 22, 1980, three years after he was last sentenced as a youthful offender. The defendant argues that the trial court did not have jurisdiction to revoke his probation or reinstate the April 22, 1977 sentence because it had been more than three years since that sentence had been imposed. We disagree with this argument.

Alabama Code Section 15-19-6(a) (1975) reads as follows:

“(a) If a person is adjudged a youthful offender and the underlying charge is a felony, the court shall:
(1) Suspend the imposition or execution of sentence with or without probation;
(2) Place the defendant on probation for a period not to exceed three years;
(3) Impose a fine as provided by law for the offense with or without probation or commitment;
(4) Commit the defendant to the custody of the board of corrections for a term of three years or a lesser term.”

The plain wording of subparagraph (2) clearly demonstrates that placing a defendant adjudged a youthful offender on probation for a period not to exceed three years is proper.

Section 15-19-6 simply describes what disposition the court should make when a person is adjudged a youthful offender. Nowhere in the Alabama Youthful Offender Act is there direction as to what to do when multiple sentences under separate youthful offender convictions are imposed. To answer that question another statute, Alabama Code Section 14-3-38(a) (1975), must be considered.

Section 14-3-38(a) describes how sentences are to be served on two or more convictions and reads as follows:

“(a) When a convict is sentenced to imprisonment in the penitentiary on two or more convictions, unless it is specifically ordered in the judgment entry that such sentences be served concurrently, such sentences shall be cumulative and shall be served consecutively, the first term thereof beginning to run from the date on which such prisoner is received at the penitentiary, reformatory or jail for service of the sentence or at some place of detention to await transportation to the place where his sentences are to be served and his second and subsequent terms, each, beginning on the expiration of the preceding term. When the judgment sentence contains a fixed order that the term shall run concurrently, such sentences shall run concurrently from the date on which such convict is received for serving of the sentences as prescribed above.”

Further guidance is found in Rule 11(a) of the Alabama Rules of Criminal Procedure Temporary Rules which provides that “(s)eparate sentences of imprisonment on a defendant for two or more offenses shall run consecutively unless the judge at the time of sentencing directs otherwise,...”

The defendant was sentenced on October 21, 1976, and on April 22, 1977, under the Youthful Offender Act. His April 22, 1977 sentence of probation was to run consecutively to his October 21, 1976 sentence of probation. We find no rule of law or other principle which would prohibit application of either Section 14-3-38(a) or Rule 11(a) where multiple sentences under the Youthful Offender Act are involved.

The District Court’s order revoking the defendant’s probation was proper.

AFFIRMED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Charles Cartwright JACKSON. (Re Charles Cartwright Jackson v. State of Alabama).
    81-234.
    Supreme Court of Alabama.
    May 7, 1982.
    John Coleman, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

We granted the writ of certiorari directed to the Court of Criminal Appeals, 415 So.2d 1167 to review a question of first impression: Whether a trial court has the authority to order that separate probation sentences imposed under the Youthful Offender Act run consecutively. We hold that the imposition of consecutive probationary sentences would contravene the purpose of the Act.

On October 21, 1976, petitioner was sentenced under a youthful offender conviction and placed on probation for three years. On April 22, 1977, petitioner was again adjudged a youthful offender and sentenced to three years of probation to run consecutively to the October 21,1976, sentence. On March 25, 1981, after a hearing on delinquency charges, the District Court of Mobile County revoked petitioner’s probation and reinstated the suspended sentence of three years which had been imposed on April 22, 1977. The Court of Criminal Appeals affirmed the judgment.

Petitioner argued to the Court of Criminal Appeals, and now to this Court, that the trial court was without jurisdiction to reinstate the April 22, 1977, sentence because his probation period ended on April 22, 1980, three years after he was last sentenced as a youthful offender. Petitioner relies upon Code of 1975, § 15-19-6(a)(2), which provides:

“(a) If a person is adjudged a youthful offender and the underlying charge is a felony, the court shall:
“(2) Place the defendant on probation for a period not to exceed three years;”

The Court of Criminal Appeals, finding no direction from the Youthful Offender Act as to what to do when multiple sentences under separate youthful offender convictions are imposed, affirmed the district court and held the consecutive sentences of probation, an aggregate of five and one-half years, to be proper. The Court of Criminal Appeals based its holding upon Code of 1975, § 14-3-38(a) and Rule 11(a) of the Alabama Rules of Criminal Procedure, Temporary Rules, which provide that sentences of imprisonment shall be served consecutively. Neither the statute nor the rule addresses sentences of probation and they are, therefore, inapplicable.

It is our judicial obligation to construe statutes in such a way as to carry out the will of the legislative branch of the government. That is, we are to ascertain and effectuate the intent of the legislature as expressed in the statute. By the enactment of the Youthful Offender Act, the legislature not only sought to provide an alternative method of sentencing minors, but, in fact, created a procedure separate and apart from the criminal procedure dealing with adults accused of the same offense. Raines v. State, 294 Ala. 360, 317 So.2d 559 (1975). Code of 1975, § 15-19-6(a)(2) establishes the maximum probationary sentence or period allowable for a youthful offender, i.e., three years. That limitation on a sentence of probation is obviously one of the intended advantages of the Act. By comparison, the maximum probationary period for “adult” defendants found guilty of a felony is five years. Code of 1975, § 15-22-54(a). Hence, consecutive sentences of probation would thwart the intention of the legislature. Although the Youthful Offender Act does not prohibit the imposition of separate or multiple sentences of probation, clearly each probationary sentence must run from the time of sentencing rather than from the end of the preceding probationary period.

If the defendant had been convicted simultaneously of two separate felonies and placed under sentences of probation, the probationary time could not have exceeded three years. The sentences would have had to be served concurrently rather than consecutively. Occasionally, as here, a case will arise where a defendant currently under probation is sentenced under a subsequent conviction and placed on probation. That new term of probation must commence with sentencing, even though the first period of probation has not yet expired. Otherwise, the maximum time limitation set forth by the legislature would be nullified.

In the present case, although petitioner was actually under probation for an aggregate period exceeding three years (October 21, 1976, to April 22, 1980), he was serving separate sentences of probation. Neither sentence, however, exceeded three years and both commenced at the time of sentencing. For a period of time, from April 22, 1977, to October 21, 1979, the sentences were served concurrently. The second term of probation ran from the date of sentencing, April 22, 1977, to April 22, 1980, the maximum period allowable under Code of 1975, § 15-19-6(aX2). The effect of ordering that the two sentences of probation run consecutively was to thwart the mandate of the statute. Therefore, because petitioner was no longer under probation, we find that the trial court was without jurisdiction to enter the order of revocation on March 25, 1981.

For these reasons the judgment of the Court of Criminal Appeals is reversed, and the case is remanded to that Court for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED.

All the Justices concur.

      . We recognize that nothing prevents a trial court from denying youthful offender status to a defendant on a second offense.

      . Although Code of 1975, § 15-22-54(a) is not before us, we note that our discussion of consecutive probationary periods nonetheless applies to that statute.


text:
    Charles Cartwright JACKSON v. STATE.
    1 Div. 270.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
   AFTER REMANDMENT

BOWEN, Judge.

This cause is reversed and remanded on authority of the opinion of the Supreme Court of Alabama in Jackson v. State, 415 So.2d 1169 (1982).

REVERSED AND REMANDED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Lynn Darnell WILLIAMS v. STATE.
    3 Div. 236.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, July 2, 1982 Alabama Supreme Court 81-646.

      Horace N. Lynn of Piel, Bright & Gog-gans, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

In November, 1979, a Montgomery County Grand Jury indicted appellant for robbery. Appellant was tried and convicted by a Montgomery County Circuit Court jury. Appellant subsequently filed a motion for new trial along with an affidavit. Appellant was sentenced to a fifteen (15) year prison term, and his motion for new trial was denied.

The evidence presented was conflicting. Basically, the state presented evidence establishing a prima facie case of robbery while appellant introduced a defense of alibi, along with other testimony conflicting with the state’s case.

There was undisputed evidence that the victim, Carey Allen Chandler, a store manager for Winn-Dixie Super Market, was robbed on September 5,1979, in the parking lot of the Southlawn Winn-Dixie store in Montgomery.

Mr. Chandler testified that, as part of his managerial duties, he left the store between 10:00 and 11:00 a. m. on September 5, to acquire change needed for the day from a bank in Montgomery. After converting $510.00 into change and one-dollar bills, and picking up a bag of deposit slips and bad checks, Chandler left the bank and returned to the Winn-Dixie store.

Chandler parked his car in the Winn-Dix-ie parking lot. As he was collecting the bags of currency and checks from his car, he noticed a car speeding towards him in the parking lot. As he stepped around his car in order to see who was speeding, Chandler saw someone on the passenger’s side pull a stocking over his face. The masked passenger then stuck a gun out of the window towards Chandler.

Chandler further testified that, after the gun was pulled on him, he dropped the bags and began backing up towards the store. While backing up, Chandler was able to see the driver of the car who was not disguised. As the robber bent down to retrieve the bags, Chandler turned and rushed into the store, instructing a fellow employee to call the police. He then returned outside where he saw the robber retreating towards the street. The robber took off his mask and got back in the car as the car fled the scene.

After Chandler made his in-court identification of appellant as the driver of the car, the prosecutor repeatedly asked Chandler if he was absolutely sure of his identification. Chandler always emphatically replied that he was sure.

Appellant’s counsel on cross-examination pointed out minor discrepancies between two statements made by Chandler to the police. Nevertheless, during cross-examination, Chandler again stated that he was absolutely sure that the driver of the car was appellant.

On re-direct, for the third time during the trial proceedings, Chandler reaffirmed his identification of appellant as the driver of the car. Chandler also stated that he had correctly picked appellant out of the five-man lineup a few days after the crime.

Joseph Horenkamp, an investigator for the Montgomery Police Department, testified that he stopped appellant two days after the robbery. Appellant was driving a light blue Mercedes automobile and gave his name as Lynn Darnell Jarrett. His fiancee, Christine Jarrett, owned the car.

When Horenkamp later arrested appellant, appellant told Horenkamp that he had seen the car used in the robbery before and after the actual robbery, but he had never been in or even touched the car. He told Horenkamp that two acquaintances came by his house the morning of the robbery and asked appellant to take them to pick up a car, apparently the car used in the robbery. He told Horenkamp that he let them out and later that afternoon, after the robbery occurred, he picked them up again at an apartment complex.

Tom Totty, a Montgomery Police Department senior evidence technician at the time of the robbery, testified that he searched the car used in the robbery for latent fingerprints. He found no readable prints in the interior of the car, but he found good quality prints on top of the door frame just above the glass area on the driver’s side of the car. Totty testified that the prints belonged to the appellant. Because of the complete nature of the prints, Totty was of the opinion that the appellant was sitting in the driver’s seat with his hand outside the car, resting above the window when the prints were made unless appellant had intentionally made the prints from the outside.

The state also introduced evidence indicating that the car used in the robbery was stolen.

Appellant’s defense consisted of an alibi in which two acquaintances who worked at a body shop both testified that appellant was at the body shop around the time of the robbery. A school friend also testified that she drove appellant to the body shop on the morning of the robbery.

Sergeant Sidney Williams of the Montgomery Police Department testified that he participated in the lineup in which Chandler identified the appellant as the driver of the car used in the robbery. Williams testified that Chandler gave a “tentative identification” and stated that he could not positively identify appellant by looking at his face, but that Chandler “gave all other general characteristics about the person involved.” On cross-examination, Williams stated that Chandler was able to identify appellant from the lineup as the driver of the car.

Finally, appellant testified in his own defense corroborating his witnesses’ alibi testimony. He also stated that he had put his hand on the outside of the car while talking to friends who were in the car when the robbery occurred. He also admitted having committed two prior grand larcenies.

On rebuttal, Mr. Chandler reaffirmed that he had identified appellant out of a lineup, and, for the fourth time during the trial proceeding, stated that he had no question in his mind that appellant was the driver of the car used in the robbery.

Appellant contends in his brief that the alibi testimony, coupled with an allegedly weak identification of appellant by the victim, “leads to a reasonable conclusion that he was not a participant in the robbery and that the evidence, therefore, does not support his conviction.” We do not agree.

Although the testimony was indeed conflicting, the state presented evidence that established a prima facie case of robbery and would thus support the jury’s verdict.

This court has consistently held that “where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Whether there is evidence of the defendant’s guilt is a question of law and its weight and probative value are for the jury.” Hyman v. State, Ala.Cr.App., 338 So.2d 448 (1976).

There is undeniably evidence of defendant’s guilt in the testimony of the victim and the identification of appellant’s fingerprints on the outside frame of the driver’s side of the car used in the robbery. Chandler, on four different occasions during the trial proceeding, strongly and without reservation testified that he was absolutely sure that appellant was the driver of the car. Also, the story appellant told an investigator as to appellant’s actions on the day of the robbery conflicted with the story appellant told on the witness stand.

Although the victim was the only eyewitness to the robbery, the law in Alabama is well settled that a conviction can be based on only the testimony of one witness such as a victim of the crime. Williamson v. State, Ala.Cr.App., 384 So.2d 1224 (1980). This court has also consistently held that conflicts between alibi testimony presented by a defendant and identification testimony of the victim are to be decided by the jury. In a recent robbery case factually similar to the present case, this court held:

“It is settled law that conflicts in alibi testimony presented by the accused and identification testimony of the victim in a robbery prosecution is peculiarly within the province of the jury to resolve. For a collection of the cases on this principle see Ala.Dig.Cr.Law, Key No. 739(2).
“Appellant contends the State’s case depended on the testimony of the robbery victim alone as against several witnesses for the defense showing that he was elsewhere when the alleged robbery occurred. The answer to appellant’s contention is that in our system of criminal justice, we do not travel on the numerical number of witnesses. Smith v. State, 53 Ala.App. 27, 296 So.2d 925.
“A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Savage v. State, 57 Ala.App. 579, 329 So.2d 638; Williams v. State, Ala.Cr.App., 335 So.2d 249; Ala.Dig.Cr.Law, Key No. 553. “It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness or falsity of conflicting evidence. May v. State, Ala.Cr.App., 335 So.2d 242; Snipes v. State, 50 Ala.App. 139, 277 So.2d 413.” Freeman v. State, Ala.Cr.App., 350 So.2d 768 (1977).

Appellant contends that there was a fatal material variance between the facts alleged in the indictment and the facts adduced in trial. Specifically, appellant contends that the indictment alleged that appellant robbed Carey Chandler of his personal property in the form of $510.00. Appellant asserts that the facts proven in trial were that the money was the property of Winn-Dixie Supermarket and merely in possession of Carey Chandler, an employee of Winn-Dixie. Appellant argues that this variance between indictment and proof is fatal. We do not agree.

The indictment in the instant case reads: “The Grand Jury of said County charge that, before the finding of this indictment, Lynn Darnell Williams, alias Lynn D. Williams, feloniously took five hundred and ten dollars in lawful currency or coinage, or currency and coinage, of the United States of America, a better description of which is unknown to the Grand Jury, of the value of $510.00, the property of Carey Chandler, from his person, and against his will, by violence to his person, ...”

This court recently decided the issue on point in Williams v. State, Ala.Cr.App., 387 So.2d 258, cert. denied, Ex parte Williams, Ala., 387 So.2d 261 (1980). The court stated:

“The appellant asserts that there was a material variance in the allegations of the indictment and the proof offered by the State. He maintains, first, that the State failed to prove that the property taken belonged to Daisy Johnson ...
“The law in Alabama as enunciated in Hobbie v. State, Ala.Cr.App., 365 So.2d 685, is well settled that the ownership of stolen property may be laid in the party in possession either as the owner, bailee or agent. No material variance exists where the indictment charges that the property taken was that of a named individual when the proof later shows that the property in reality belonged to another or to a corporation. The indictment is proper when it shows the party in possession. Hobbie, supra.
“In the present case, as can be seen from the quoted portions of the record, Johnson stated that the money taken from the register belonged to Delchamps, but she added that she was in charge of the register and that the money was in her possession. Under these facts, we fail to see any material variance.”

We find no error in the record and the case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Anthony Tyrone WASHINGTON v. STATE.
    6 Div. 663.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, July 2, 1982 Alabama Supreme Court 81-637.

      J. T. Simonetti, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., Montgomery, for appellee.
   HARRIS, Presiding Judge.

The appellant was indicted and convicted for the first degree murder of Marilyn Copeland by stabbing her with a screwdriver or by striking blows to her head in violation of Ala.Code § 13-1-70 (1975). His punishment was fixed at life imprisonment in the state penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty. He is represented on this appeal, as he was at trial, by court-appointed counsel, and has been furnished with a free transcript.

Appellant raises two issues on this appeal: the sufficiency of the state’s evidence and the admission of photographs of the deceased.

Mrs. Ada Lewis testified that she knew the deceased as a friend and neighbor and spent most of the day with her on June 19, 1979. Mrs. Lewis took the deceased to the intersection of Highway 31 and Interstate 459 in Hoover in Jefferson County around 3:15 p. m. that day, where the deceased planned to hitchhike to Tuscaloosa. The deceased was wearing blue jeans, a multicolored pullover top and sandal-type shoes that had a black velvet strap which held the sandals to the feet. Mrs. Lewis identified state’s exhibit 2 as a photograph of one of the deceased’s flip-flop type sandals. Mrs. Lewis saw the deceased at the Jefferson County morgue the next afternoon. The deceased was twenty-one years of age.

Dr. Ronald L. Rivers, the Jefferson County Medical Examiner/Coroner, performed an autopsy on June 29, 1979, and ascertained that the deceased had received eleven stab wounds to the head and chest and also had a laceration of the brain. The stab wounds were consistent with those which could have been made with a screwdriver. The laceration of the brain was consistent with that which could have been made with a tire iron. Dr. Rivers testified that either the stab wounds or the laceration of the brain matter would have been sufficient to cause the deceased’s death. Dr. Rivers also identified state’s exhibits 5 and 7 as photographs taken of the deceased prior to the autopsy at Cooper Green Hospital.

Mr. Jack R. Parker, Deputy Coroner for Jefferson County, testified that he went to the scene where the deceased’s body was found at the Birmingham Board of Education parking lot around 8:25 a. m. on June 20. He stated that the deceased was discovered lying on her side on the third floor of the parking deck. Mr. Parker identified state’s exhibits 8 and 9 as photographs he took of the deceased at the scene from two angles.

Mr. Michael L. Cochran, an internal officer for the Birmingham Board of Education, testified that he discovered the deceased’s body at the parking deck around 7:40 a. m. on his way to work. Mr. Cochran identified state’s exhibits 8 and 9 as photographs of the deceased. He specifically saw the deceased from the angle depicted in state’s exhibit 8.

Officer Carlos Faught of the Birmingham Police Department also saw the deceased at the parking deck. The body had grass, leaves and blood on it and was nude from the waist down. Officer Faught also identified state’s exhibits 8 and 9 as photographs of the deceased at the parking deck.

Officer L. E. Stricklin, an evidence technician with the Birmingham Police Department on June 20, 1979, testified that he went to the parking deck around 9:50 a. m. Officer Stricklin testified that he and Officer C. R. Wyatt participated in the investigation at the scene. Officer Stricklin’s testimony concerned items of evidence which were recovered and preserved at the scene. He testified in detail as to certain items of clothing that were found in a park approximately 75 to 100 feet from the parking deck. Officer Stricklin stated that the evidence which was recovered at and near the scene was turned over to the state crime lab.

Mr. Henry Crenshaw testified that his residence is located near the Lincoln Memorial Cemetery in the McCalla area of Jefferson County. Between 4:30 and 5:00 p. m., on June 19,1979, while walking through the cemetery, Mr. Crenshaw saw a brown Nova automobile parked behind some bushes on the back road leading into the cemetery. As Mr. Crenshaw continued walking he saw “a big tall man” who weighed “about 200 pounds” walk around the automobile. About a minute later the automobile backed up and began “running real fast on that rough road” out of the cemetery. Mr. Crenshaw explained that the road “was an old abandoned road; had ruts in it some places almost knee deep.” Mr. Crenshaw walked to his cousin’s house, told him what he had seen and the two returned to the cemetery to where the car had been parked.

Mr. Crenshaw and his counsin saw “two big puddles of blood on the ground,” a shoe and “a big long screwdriver ... covered with blood.” Mr. Crenshaw described the shoe as being black, the kind “you can slip your feet in” or a “shower shoe.” He identified state’s exhibit 2 as a photograph of the shoe he saw. Mr. Crenshaw stated that the screwdriver had a red striped handle.

Mr. Crenshaw testified that he later saw a brown Nova like the one he had seen in the cemetery at Ethel Sanders’ house in July. He identified state’s exhibit 11 as a photograph of the car. Mrs. Sanders was appellant’s aunt. Her residence was approximately one mile from the cemetery. Mr. Crenshaw stated that he had seen appellant in the cemetery on Easter Sunday; appellant’s father was buried there. Mr. Crenshaw stated that appellant “was a big, tall man then, and looked like he weighed around 200 pounds.” At the time appellant was arrested he was six feet four inches tall and weighed 215 pounds. Mr. Crenshaw identified appellant at trial but stated that he was “a lot smaller.” According to Mr. Sammy Joe Bryant, Jr., of the Birmingham City Jail, appellant had lost around 100 pounds between the time he was arrested and the time of his trial.

Deputy Bill Carter of the Jefferson County Sheriff’s Department testified that he was directed to the cemetery in question by Mr. Crenshaw on June 20. Deputy Carter saw the puddles of blood, the shoe and the screwdriver which had been there the day before and turned these items over to Officer C. R. Wyatt when he arrived approximately one hour later.

Officer C. R. Wyatt, an evidence technician with the Birmingham Police Department, testified concerning his collection of evidence at the parking deck and at the cemetery. He identified state’s exhibit 2 as a photograph of the sandal that was found in the cemetery. Officer Wyatt also received a blood sample from appellant at the Birmingham City Jail on July 19, 1979.

Mrs. Ethel Sanders testified that appellant, her nephew, lived in the McCalla area with his grandmother in 1979 before he left on July 5 for Detroit, where he had lived previously with his mother and sisters. Mrs. Sanders testified that appellant had worked at Bullock & Ron’s Cafe while he lived in McCalla. She also remembered that he had worked at the Omelet Shoppe at one time.

Mrs. Sanders stated that, when appellant left for Detroit, he left his brown Nova automobile with her. “He wanted me to pay a note on it until he got back.” She identified state’s exhibit 11 as a photograph of appellant’s car. Mrs. Sanders testified that she cut herself and bled a “little bit” inside appellant’s car trunk on one occasion. She had previously testified at appellant’s preliminary hearing that she had not cut herself while going inside the trunk. Mrs. Sanders thought that her blood type was A positive.

Officer John Guerrero of the El Paso, Texas, Police Department, testified that, on July 16, 1979, he met in El Paso with Sergeant Charles Melton of the Birmingham Police Department and proceeded with Sergeant Melton to the Greyhound Bus Depot where they apprehended appellant. Officer Guerrero stated that appellant was sleeping at the time he was arrested and had a carrying case with the name “Tony Washington” next to his leg. Officer Guerrero testified that appellant denied that he was Tony or Anthony Washington three times when he was arrested. Appellant was given his Miranda warnings, was searched and handcuffed. One of the items found in appellant’s carrying case that was later inventoried at the Police Department was a flat-head screwdriver eight to ten inches long. Officer Guerrero identified appellant in court but stated that appellant had lost weight.

Sergeant Charles Melton saw the deceased at the parking deck and at the morgue. He also saw the screwdriver and the shoe Officer Wyatt brought to the morgue that same day. Sergeant Melton described the shoe as a “K-Mart shower shoe.” He stated that he placed the shoe on the deceased’s foot and that the outline of a footprint inside the shoe coincided with the deceased’s foot. Sergeant Melton identified state’s exhibit 2 as a photograph of the shoe.

Sergeant Melton later obtained an arrest warrant for appellant and joined with Officer Guerrero in El Paso in making the arrest. He returned to Birmingham with appellant on July 19 and obtained a saliva sample from him.

Mr. Kevin Noppinger, a forensic serologist with the Department of Forensic Sciences, stated that he received certain items of evidence regarding the investigation of the deceased’s death. Mr. Noppinger ascertained from his analysis of the various articles of evidence he received that the deceased had Type A blood with enzyme AK, Type 1-1 and that appellant had Type 0 blood. The blood on the screwdriver was Type A as was the blood on the leaves and grass he received. The blood on the leaves and grass also tested positive for enzyme AK, Type 1-1. No bloodstains were found on the shower shoe.

In July of 1979 Mr. Noppinger examined appellant’s brown Nova in McCalla. He removed some hairs and a tire iron from the trunk. There was blood present on the lug portion of the tire iron. Mr. Noppinger also took a Type A blood sample from the spare tire, which was inside appellant’s trunk.

Mr. Noppinger further testified that he received from the Coroner’s office vaginal, anal, and oral swabs taken from the body of the deceased. Seminal fluid and spermatozoa were present on the anal and vaginal swabs. Mr. Noppinger was able to detect an H antigen from the vaginal swab which was consistent with someone with Type 0 blood. He explained that 80 percent of the population secrete their blood types into their body fluids: their saliva, semen, vaginal fluid and sweat. Mr. Noppinger determined that appellant, who had Type O blood, was such a secretor from his saliva sample. Appellant secreted Type 0 into his semen. From his examination Mr. Nop-pinger was able to determine that the deceased had had sexual intercourse with a person who secretes Type 0 blood.

Dr. John R. McDuffie, a criminalist with the Department of Forensic Sciences, testified that he compared the known hair samples taken from the deceased with brownish Caucasian hairs found in appellant’s trunk. His comparison revealed that the hairs found in appellant’s trunk had similar microscopic characteristics. “I examined the scale pattern as well as the scale diameter— scale thickness — the color, the diameter of the hair, the pigment granule, size, shape, and so forth, as well as the structure of the medulla of the hair.”

Miss Linda Faye Coleman testified that she knew the appellant prior to June 19, 1979, from his having worked with her at the Omelet Shoppe in Bessemer. Appellant had taken her home from work on more than one occasion and had become angry with her when she refused to “go out with him.”

Around 7:00 p. m. on June 19, 1979, Miss Coleman stated that appellant came to the Omelet Shoppe and she asked him if she could borrow a screwdriver “to tighten the screws on the ice bin.” Appellant replied that he had one she could borrow and “went out to his car to get it.” When Miss Coleman attempted to follow appellant to the trunk of his car, “he looked up, and he saw me. And he met me, and pushed me ... back to the door where, you know, I guess, it was'something he didn’t want me to see. And he closed the trunk.” Miss Coleman described the screwdriver as being long with a red handle.

Miss Coleman stated that, when she returned from a trip to New Orleans, she received a telephone call from appellant on June 23, 1979. “It sounded like he was upset, like he was crying.” Appellant told “he needed some money because he needed to leave town because he had killed somebody .... [H]e said it was a woman, and I stabbed her.”

Miss Coleman further testified that the week before appellant’s trial appellant called her at work and at home. “[H]e just explained to me about not showing up, not coming [to court to testify].... He told me that ... if I did, I wouldn’t be able to because my ear ... would be messed up and I wouldn’t be able to show up.”

Following Miss Coleman’s testimony the state rested its case and the defense moved to exclude. The defense motion was denied and the defense rested its case without presenting any evidence.

Viewing the evidence presented by the prosecution in its most favorable light, as we are required, Livingston v. State, 44 Ala.App. 559, 216 So.2d 731, we find the evidence sufficient to prove appellant’s guilt beyond any reasonable doubt. The state’s evidence clearly supports the jury’s verdict. Even though the state presented no eyewitness to the murder and much of the evidence presented was circumstantial in nature, circumstantial evidence standing alone is sufficient to support a conviction for murder. Dolvin v. State, 391 So.2d 133 (Ala.1980); Hayes v. State, 395 So.2d 127 (Ala.Cr.App.), cert. denied, 395 So.2d 150 (Ala.1981); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

As our Supreme Court stated in Dolvin, supra, quoting from Cumbo, supra:

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); Clark v. United States, 293 F.2d 445 (5th Cir. 1961).
“ ‘(W)e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir. 1967):
“ ‘Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry’s words, * * * the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude. Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14.’ (Emphasis supplied.)
“ ‘The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is to examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged. McGlamory, 441 F.2d at 135 and 136.’
“See also Blair v. State, 18 Ala.App. 615, 93 So. 45 (1922). Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court. Cannon v. State, 17 Ala.App. 82, 81 So. 860 (1919); see also Evans v. State, 39 Ala.App. 404, 408, 103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44 (1958).”

And as we stated in Hayes, supra:

“The jury may properly consider conflicting statements as indicating a consciousness of guilt. Cumbo, supra. Reasonable inferences from the evidence may furnish basis for proof beyond reasonable doubt. Royals v. State, 36 Ala.App. 11, 56 So.2d 363, cert. denied, 256 Ala. 390, 56 So.2d 368 (1951). Guilt need not be proven to the ‘exclusion of every possibility of innocence’ to warrant a conviction. Burks v. State, 117 Ala. 148, 23 So. 530 (1898). The State’s evidence should not be stricken out, as insufficient to support a conviction, merely because, when disconnected it is weak and inconclusive, if, when combined, it may be sufficient to satisfy the jury of an accused’s guilt. Howard v. State, 108 Ala. 571, 18 So. 813 (1895). Circumstantial evidence is entitled to the same weight as direct evidence provided it points to the guilt of the accused. Trammell v. State, 377 So.2d 12 (Ala.Cr.App.1979). The credibility of witnesses is solely for their consideration and cannot be examined by this court. Cumbo, supra.

Furthermore, there is evidence in this case that appellant engaged in flight to avoid prosecution after admitting to Miss Coleman that he had stabbed a woman to death. We find the following rules pertaining to evidence of flight correctly set out in C. Gamble, McElroy’s Alabama Evidence, § 190.01 (3rd Ed. 1977) and authority cited therein:

“In a criminal prosecution the state may prove that the accused engaged in flight to avoid prosecution. This principle is based upon the theory that such is admissible as tending to show the accused’s consciousness of guilt. The flight of the accused is admissible whether it occurred before or after this arrest.
“The state is generally given wide latitude or freedom in proving things that occurred during the accused’s flight. This is especially true of those acts of the accused which tend to show that the flight was impelled by his consciousness of guilt.”

Application of the foregoing principles of law to the facts in this case leaves no doubt that the state’s evidence was sufficient to sustain the verdict. Any conflicts in the evidence were properly resolved by the jury.

The trial court committed no error in admitting photographs of the deceased at the morgue before the autopsy and at the parking deck where her body was discovered. As a general rule photographs are admissible in evidence if they prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (1973). Photographs may be admitted if they tend to shed light on, strengthen, or to illustrate other testimony in the case. Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.), cert. denied, 400 So.2d 427 (Ala.1981). Photographs which show wounds on a victim’s body which tend to corroborate the testimony of a toxicologist as to the number and location of the wounds are admissible. Palmore v. State, 283 Ala. 501, 218 So.2d 830 (1969).

Photographs of the deceased in a murder prosecution are not required to be taken only at the scene and may be taken at the morgue as well. Brown v. State, 288 Ala. 684, 264 So.2d 553 (1972). Furthermore, photographs which depict the character and location of external wounds on the body of a deceased victim are admissible even though they are cumulative evidence based upon an undisputed matter. Ellenburg v. State, 353 So.2d 810 (Ala.Cr.App.1977). The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury. Carpenter, supra; Richards v. State, 337 So.2d 171 (Ala.Cr.App.), cert. denied, 337 So.2d 173 (Ala.Cr.App.1976). For these reasons the photographs objected to were properly admitted.

We have carefully reviewed the issues presented by appellant and have found no errors injuriously affecting his substantial rights. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Thomas Marshall IRWIN v. STATE.
    7 Div. 873.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, July 2, 1982 Alabama Supreme Court 81-629.

      J. Doyle Fuller, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Violation of the Alabama Uniform Controlled Substances Act; sentence: seven and one-half years.

Appellant was tried without a jury on facts stipulated by the parties. On January 28, 1980, St. Clair County law enforcement officers, along with Birmingham police officers, went to the residence of the appellant and conducted a search pursuant to a warrant. Birmingham Police Sgt. Cameron Guy testified that it was daylight, approximately 6:30 a. m., when the warrant was executed. He said that when the officers arrived they approached the back door of appellant’s trailer, knocked, and announced their identity and purpose for being there. On receiving no response, they tried the back door, found it unlocked, and entered the trailer. According to Guy, they had waited about twenty-seconds before entering the residence.

Sgt. Guy stated that when they entered the appellant’s bedroom they found an automatic pistol, a small bag of cocaine, and a female companion in the appellant’s bed with him. The search also revealed a large bag of cocaine in a plastic cooler and some marijuana in a trash can in the appellant’s bedroom.

Deputy Luther McCain of the St. Clair County Sheriff’s Department testified that he participated in the search of the appellant’s residence. He stated that he had the search warrant in his hand when he knocked on the door and identified himself as a police officer. McCain said he announced that he had a search warrant and, after ten or fifteen seconds, he knocked again. At that time he checked the door to see if it was locked and, finding that it was not, he and the other officers stepped inside and again made the announcement of their identity and purpose. McCain gave his opinion that he and the other officers waited a sufficient time for the occupants of the trailer to have heard them knocking before the officers entered.

No issue is made that the substance found in the appellant’s bedroom was not cocaine.

I

The appellant contends that the search warrant failed to comply with the provisions of § 15-5-8, Code of Alabama 1975, because it did not direct whether the search was to be made in the daytime or at any time of the day or night. Section 15-5-8, supra reads:

“A search warrant must be executed in the daytime unless the affidavits state positively that the property is on the person or in the place to be searched, in which case it may be executed at any time of the day or night. The issuing judge or magistrate must state in the warrant, according to the character of the affidavits, whether it is to be executed by day or at any time of the day or night.”

While it is true that the statute uses mandatory language (“must state”) indicating that the time of execution must be specified, we can determine the purpose of § 15-5-8, or the legislature’s intent, only by examining the statute as a whole. See McWhorter v. State Board of Registration for Professional Engineers and Land Surveyors ex rel. Baxley, Ala., 359 So.2d 767 (1978). We should also consider the particular evils at which the legislation is aimed. McWhorter, supra.

In our judgment, a reading of the statute as a whole compels the conclusion that it was the legislative intent to protect the citizen against service of a search warrant at night. By requiring the issuing judge to state the time during which a warrant could be executed, the legislature intended to insure that a magistrate had considered the affidavits and decided whether the facts justified the unusual course of a nighttime search.

In the present case the affidavit filed with the search warrant did not meet the requirements for a nighttime search, but it did satisfy the statutory mandate for a daytime search. Therefore, the warrant was authorized to be served only in the daytime. The undisputed testimony showed that the warrant was, in fact, served in the daylight hours.

Warrants containing no direction or permission for nighttime service must be served in the daytime. Pugliese v. United States, 343 F.2d 837 (1st Cir. 1965); Moore v. United States, 57 F.2d 840 (5th Cir. 1932); Johnson v. United States, 46 F.2d 7 (6th Cir. 1931). In Johnson, supra, the Court of Appeals for the Sixth Circuit held that any error in the omission of the time of execution of the warrant, when the warrant was actually served in the daytime, was harmless.

In Jones v. State, 54 Ala.App. 167, 306 So.2d 33 (1974), affirmed, 293 Ala. 762, 306 So.2d 45 (1975), we held that a warrant which lacked the mandatory statutory language “To any sheriff ...,” but which was, in fact, executed by the sheriff, was valid. Under the rationale of Jones, supra, we hold that, although the warrant in question does not contain the language regarding time of service, it was in fact served at the proper time and was, therefore, not invalid.

II

The appellant next insists that the manner in which the warrant was executed violated the provisions of § 15-5-9, Code of Alabama 1975, and rendered the search invalid. That section, known as the “knock and announce” rule, provides the following:

“To execute a search warrant, an officer may break open any door or window of a house, any part of a house or anything therein if after notice of his authority and purpose he is refused admittance.” [Emphasis added]

In the present case, the evidence is undisputed that the officers complied with the requirement that they announce their identity and purpose. The issue is whether they were “refused admittance.” A verbal or affirmative refusal, however, is not always required, and if the occupants of the dwelling fail to respond within a reasonable time, refusal can be presumed. Laffitte v. State, Ala.Cr.App., 370 So.2d 1108, cert. denied, Ala., 370 So.2d 1111 (1979). See also Conner v. State, Ala.Cr.App., 382 So.2d 601 (1979), cert. denied, Ala., 382 So.2d 605 (1980). What constitutes a “reasonable time” is necessarily dependent on the particular facts and circumstances of each individual case. See Daniels v. State, Ala., 391 So.2d 1021 (1980).

Appellant relies on Reynolds v. State, 46 Ala.App. 77, 238 So.2d 557, cert. denied, 286 Ala. 740, 238 So.2d 560 (1970), for the proposition that a two and one-half to five minute time lapse is unreasonable. He therefore maintains that the twenty-second interval in the present case was insufficient.

In Reynolds, supra, police officers armed with a search warrant went to the accused’s residence, knocked on the doors and tapped on the windows for two and a half to five minutes. After receiving no answer, but without announcing their authority and purpose, the officers pulled the latch out of the back door frame and entered the house. Writing for this court, Judge Price observed that the officers had failed to comply with the knock and announce statute. The critical point in Reynolds was not the time lapse before entry but the unannounced nature of the intrusion. Reynolds, therefore, is not authority for a particular time lapse which must occur before entry is accomplished. As the Alabama Supreme Court observed in Daniels v. State, “There are simply no set rules on the length of time an officer with a warrant must wait before using force to enter a house.” 391 So.2d at 1023.

The reasonableness of the officer’s delay depends on a number of factors, including the likelihood of destruction of the evidence and the possibility of danger to the officers or occupants of the dwelling. See generally, Annot., 70 A.L.R.3d 217 (1976).

When, as here, the evidence is narcotics, and the likelihood of easy and swift destruction of the evidence is great, see Conner v. State, supra, the time which must elapse before entry is necessarily shortened. In addition, when, as in the case before us, there is not violent or forcible intrusion but entry through an unlocked door, the possibility of danger to the police or to the residents within is lessened. See 70 A.L.R.3d 217, § 3 at 228.

Finally, when the officers announce themselves not only at the outer door, but also once they have gained an unforced entry to the premises, as was done in the present case, the policies underlying the “knock and announce” statute have been doubly served. Officers Guy and McCain testified that they walked through an unlocked door, repeated their announcement of authority and purpose “all the way down the hallway,” and there “should have been enough time for anybody to have heard.”

We find that the twenty-second interval between announcement and entry here was reasonable. Although the officers did not hear “scurrying,” Conner v. State, supra, “running,” Laffitte v. State, supra, or “movement,” Daniels v. State, supra, inside appellant’s trailer before they walked in, they were faced with the probability of easy disposal of the narcotics if they had delayed. In addition, their entry required no destruction of appellant’s property and their repeated announcements, outside and inside the premises, provided the occupants a reasonable time to have heard them and refused admittance. We therefore hold, based on the specific facts of this case, that the method of execution of the warrant was proper.

We have examined the record and find no error; therefore the judgment of conviction by the St. Clair Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ronnie RAMPEY v. STATE.
    7 Div. 858.
    Court of Criminal Appeals of Alabama.
    March 9, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, June 25, 1982 Alabama Supreme Court 81-621.

      Rowan S. Bone and Edward Cunningham, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

On December 5, 1980, the Etowah Grand Jury indicted appellant. The indictment was in two counts: Count I, theft of property in the second degree, and Count II, violation of 36-25-5(a), Code of Alabama 1975, the Alabama Ethics Act.

Appellant’s trial began on March 30,1981. At the close of the trial, the trial court instructed the State to elect between the two separate offenses with which appellant was charged in the indictment. The State elected to proceed under Count II of the indictment, violation of the Ethics Act.

The jury returned a verdict of guilty on April 1,1981 and the trial court fined appellant five thousand ($5,000) dollars on April 28, 1981.

The record shows that appellant, in late April, 1980, while Mayor of Glencoe, Alabama, bought lumber to build a fence around his private swimming pool and charged the lumber to the City of Glencoe. Appellant had City employees pick up the lumber in a City truck and deliver the lumber to his home.

The City Clerk received invoices for the lumber, and the invoices were presented to the City Council for approval. While the City Council discussed payment of the invoices, the appellant, attending the meeting as Mayor, told the Council that the lumber was for a concession stand to be built in a City park.

The invoices remained on the appellant’s desk for two months at which time he returned them to the City Clerk, instructing her to write a check from the City for the lumber since the Council had approved the invoices. While the invoices were in his possession for two months, appellant had apparently altered the invoices by adding this to the words:

“Concession
Girl’s Field in field.”

Around four months after the original purchase, and after he had instructed the City Clerk to pay for the lumber, appellant requested that the lumber company write him a receipt indicating that he had personally paid for the lumber. He told the lumber company that he had paid the City back for the lumber, when in fact he had not done so. The receipt was backdated to around the time of the original purchase.

In October, 1980, appellant called a State investigator (who was working on the case after a former councilman had tipped the State), and asked to meet with him. The next day the investigator took down a statement in which appellant admitted taking the lumber for his personal use and charging the lumber to the City of Glencoe. Just prior to the meeting, some six months after the original purchase, appellant reimbursed the City for the purchase price of the lumber. The lumber was used by appellant to build a fence around his swimming pool.

Appellant argues that the State improperly charged and prosecuted appellant under the Alabama Ethics Act, when in fact the State presented a prima facie case of theft only. Appellant was prosecuted under § 36-25-5(a) which states that “no public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law.”

Appellant maintains that the legislature, in passing the Ethics Act, did not intend that acts such as appellant committed be governed by the Act. Appellant emphasizes portions of the Act that state its purpose is to prevent conflicts of interests between a public official’s duties of office and his private interests. See § 36-25-2, Code of Alabama, 1975. Appellant argues that there was no conflict of interests and that the Act was not intended to apply to the facts presented in this case.

We do not agree.

Appellant correctly states that the Ethics Act itself, in § 36-25-2, enunciates the legislative intent behind the statute. It is also true that the words “conflicts of interest” are found in this section. However, from a reading of the introductory sentence and the section as a whole, it is clear that the legislature intended the Act to prohibit the actions and conduct of appellant as shown by the facts in this case.

The broad introductory sentence of the legislative intent section reads: “It is essential to the proper operation of democratic government that public officials be independent and impartial; that government decisions and policy be made in the proper channels of the government structure; that public office not be used for private gain other than remuneration provided by law; and that there be public confidence in the integrity of government.” (Emphasis added.)

The tenor of the section read as a whole is that the legislature passed the act to prevent public officials from using their offices to reap private gains. The “conflicts of interests” referred to in the section are conflicts between an official’s private interests and his official duties. Muncaster v. Alabama State Ethics Commission, Ala., 372 So.2d 853, 855 (1979); Stephens, William T., Alabama Ethics Cases, 10 Cumberland Law Review 317, 319. Appellant’s acts constituted a flagrant abuse of the public trust reposed in him and this is precisely the reason the legislature enacted the Ethics law. Appellant’s acts also constitute a “conflict of interest” under the statute in that his private interests in obtaining free lumber for his personal use conflicted with his public duties as Mayor to see that the taxpayers’ money was properly spent.

Appellant, while Mayor of Glencoe, bought lumber for his personal use, had the invoice doctored, and instructed the City Clerk to pay for the purchase. Appellant also, in his capacity as Mayor, pursuaded the City Council to approve the City’s payment of the purchase by falsely telling them that the lumber was to be used in building a concession stand in a public park. In other words, appellant abused his mayoral duty of properly administering City government funds in spending them for his own private gain and benefit.

In doing so, appellant committed acts that the legislature clearly intended the Ethics Act to prohibit, and his acts constituted a clear violation of § 36-25-5(a) as charged in the indictment.

The fact that the State also proved a prima facie case of theft but elected to prosecute under the Ethics Act presents no problem. This court has held that the legislature may create two or more criminal offenses that may be committed by a single act. The state in this situation may elect to prosecute under either offense. Coleman v. State, 276 So.2d 589, 290 Ala. 346 (1973).

Appellant also asserts that the State could not prosecute appellant because the State did not prove that the private citizen who initially reported the violation to the State investigators had first filed a complaint to the Ethics Commission under § 36-25-24. Appellant contends that the State’s failure to introduce such evidence at trial was a fatal absence of the necessary burden of proof. Appellant also argues that the Ethics Commission should have first heard the complaint in order to determine if appellant’s acts had constituted an Ethics violation.

Section 36-25-24 reads: “Any citizen wishing to file a complaint against any public official or employee covered by this chapter shall initially file said complaint with the commission. If the commission does not take proper action within 45 days, then the said citizen may file the said complaint with the attorney general or other officers authorized to enforce this chapter.”

This court has previously addressed the issue of whether an Ethics Commission hearing is a condition precedent to actual prosecution of the case by the State. Allen v. State, 380 So.2d 313 (Ala.Cr.App.), cert. denied, Ex parte Allen, 380 So.2d 341 (Ala.1980). Although the court was not deciding the specific issue of a private citizen complaint under the Ethics Act, the reasoning of the court in Allen applies in the instant case. The court, in holding that the lack of a pre-trial ethics committee hearing did not violate defendant’s due process rights, stated that:

“Section 36-25-27, reads in pertinent part:
“ ‘(b) All prosecutions for violations of the provisions of this chapter shall be initiated and prosecuted by the attorney general of the state or by the district attorney having jurisdiction of the offense.’ [Emphasis added.]
“This provision of Act 130, as codified in the Code of Alabama 1975, specifically directs that prosecution for violations of Chapter 25, the code of ethics for public officials and employees, is to be initiated and prosecuted by the district attorney. Although the ‘ethics commission’ established under this Act has the authority to investigate and to report suspected violations to the appropriate law enforcement authorities, nowhere is it mandated that the commission has any authority to prosecute. Affording the appellant in the present case a hearing before the commission would not have prevented the district attorney or the attorney general of Alabama from prosecuting a violation of this Act. It was for the district attorney or the attorney general to determine whether a prosecution was to be initiated.” (Emphasis added.)

Only the district attorney, after reviewing evidence, regardless of the source, may decide to prosecute or not. As stated in Allen, this decision to prosecute is unrelated to whether a pre-trial Ethics Commission hearing was held or not.

We have carefully searched the record for errors and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.