author: DeCARLO, Judge.

text:
    Ronnie JOHNSON v. STATE.
    4 Div. 945.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Nov. 24, 1982 Alabama Supreme Court 81-897.

      Robert P. Lane of Phillips & Funderburk, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Theft of services, second degree; fifteen years sentence (habitual offender).

The appellant was charged with theft under the following indictment which, omitting the formal parts reads:

“The Grand Jury of said County charge that before the finding of this Indictment Ronnie Johnson did, between October 15, 1980 and February 11, 1981 intentionally and by deception, threat, false token or other means to avoid payment for said services, obtain from South Central Bell Telephone Company services to-wit, a series of long distance telephone calls, of the value of more than one hundred and no/100 ($100.00) dollars, known by him to be available only for compensation, in violation of § 13A-8-10.2 Code of the Code of Alabama 1975, as amended.”

The State alleged that appellant intentionally obtained telephone services by calling from one telephone and charging the calls to another number listed under the name of Bobby Graham.

Bobby Graham and the appellant had been friends for “quite a few years.” Graham testified that during the month of September, 1980, he gave the appellant permission to charge long-distance telephone calls to his (Graham’s) home telephone. According to Graham, the appellant assured him that he would pay for the calls, but when the October billing for the long-distance calls was received, the appellant avoided payment by stating that he was unable to pay. Graham said that on several occasions in November he requested payment from the appellant, but he received only excuses from the appellant for nonpayment. Graham also testified that the appellant told him that the long-distance calls were made to the appellant’s girlfriend, Michele Marinko, who lived with her parents in Kansas.

Graham stated that on, November 16, 1980, he told the appellant not to charge any more calls to his (Graham’s) home telephone. According to Graham, however, the calls continued, and in December, 1980, when Graham received his telephone bill, he again asked the appellant for payment.

During cross-examination, Graham admitted that the appellant had given him approximately sixty-seven dollars for calls made with Graham’s permission in September of 1980. Graham testified that South Central Bell was still billing him for the long-distance charges on the calls made by the appellant in November and December, and during the trial, he identified the phone bills he had received.

Mrs. Carol Adams, the residence department supervisor with South Central Bell in Phenix City testified that the approximate amount due as a result of the long-distance calls charged to Mr. Graham’s phone was $300.

Sandra Long Graham, the wife of Bobby Graham, testified that sometime after January 16, 1981, she and her husband had a conversation with the appellant. At that time, the appellant admitted making the phone calls, stating that the reason he made them was because “I needed to talk to my girl friend [sic].”

At the end of the State’s case, the appellant made a motion to exclude the State’s evidence, which the trial court overruled. The appellant did not present any evidence in his behalf.

I

The appellant contends that the State failed to prove each and every element of the offense of theft of services in the second degree. He argues that the State failed to prove that South Central Bell Telephone Company performed any service in connection with any of the alleged unauthorized telephone calls. Further, he maintains that the State failed to show either the value of the services performed by South Central Bell Telephone Company, or that he was the one who made the telephone calls which were billed to Mr. Graham’s home telephone. The appellant also insists that the State’s proof of his girlfriend’s residence, by a business record of the Alabama Power Company and by a returned postage receipt to one of the State’s investigators, was hearsay and improperly admitted.

The appellant was charged with theft of services under § 13A-8-10, Code of Alabama 1975, and the foregoing indictment tracks this statute. Section 13A-8-10(a)(l) provides:

“A person commits the crime of theft of services if: (1) He intentionally obtains services known by him to be available only for compensation by deception, threat, false token or other means to avoid payment for the services.... ”

Section 13A-8-10(b) designates “telephone services” as one of the services subject to theft under the statute, and § 13A-8-l(10) indicates that “the supplying of... a [public utility] commodity to premises from an outside source by means of wires, pipes, conduits or other equipment shall be deemed a rendition of a service.... ” Thus, there is no question that the legislature intended to prohibit theft of services rendered by a telephone company. The appellant argues, however, that because the telephone calls were interstate and were made by using the lines of various subsidiaries of AT & T other than South Central Bell, South Central Bell itself rendered no service in connection with the calls.

While we recognize that certain long-distance telephone calls, such as the ones at issue here, may not involve the actual physical use of South Central Bell’s lines, we cannot say that these calls do not represent a “service” rendered by South Central Bell. Although there is no definition of “telephone service” in the criminal code, the legislature has defined the term in § 37-6-40(1), Code of Alabama 1975, as follows:

“Any communication service, including all telephone lines, facilities or systems used in the rendition of such service.” [Emphasis added]

In our judgment, interstate calls originating from or charged to a Russell County number but actually transmitted over other telephone companies’ lines, involve a “service” rendered by South Central Bell to the Russell County subscriber. The service performed is simply the extension of credit: (1) the subscriber is entitled to make a telephone call to anywhere in the world from his own number and “charge it” without paying cash; (2) the subscriber is entitled to make a call from anywhere in the world and have it billed to his own number without paying cash; (3) the subscriber receives only one bill, and that is from South Central Bell. Regardless of how many other telephone companies’ lines were used for his calls, and no matter which company owned the equipment through which his calls passed, the Russell County subscriber is not responsible for paying any entity other than South Central Bell.

All of the foregoing result in ease of communication and convenience for the subscriber, and they are part of the “service” rendered by South Central Bell to its subscribers. South Central Bell is thus analogous to the issuer of a credit card. The telephone company extends credit to its subscribers in much the same way as the card issuer does for its cardholders. In the present case, when South Central Bell was asked to bill a Russell County subscriber for charges on long-distance calls to Salina, Kansas, it was, through its billing function, furthering the telephone or communications service.

The value of the services was shown by the testimony of South Central Bell’s subscriber, Bobby Graham, and by the phone bill which amounted to three-hundred dollars and sixty-seven cents. Our examination of that bill indicates that approximately twenty telephone calls were made to Salina, Kansas from Phenix City between December 15, 1980 and January 4, 1981, all after the date Graham instructed the appellant not to charge other long-distance calls to his (Graham’s) home telephone. The South Central Bell bill dated January 16, 1981, alone indicated a total of long-distance calls of some one-hundred and twenty-six dollars and ninety-seven cents, and of the total calls, only six were made to a location other than Salina, Kansas. Further, the approximately twenty-two telephone calls made to Salina, Kansas as shown on the bill dated January 16, 1981, reflected a cost in excess of one-hundred dollars. In our judgment, therefore, the value of the service rendered was properly in evidence.

In the present case, the criminal conduct that the statute seeks to condemn grows out of the misrepresentation of the accused’s relationship with the South Central Bell Telephone Company. The analogy may be made again to the credit card operations. The criminality of the unauthorized use of a credit card by a third party is in the misrepresentation by the third party that he has a contractual relationship with the issuer of the credit card. The card issuer then stands behind the authorized card user. The unauthorized use of the card by a third person results in the misrepresentation of the present existing fact (that he is authorized to sign the card) upon which another relies to his detriment. See Stokes v. State, 366 P.2d 425 (Okl.Cr.App.1961). Here, appellant misrepresented to South Central Bell that he was authorized to charge calls to Mr. Graham’s number.

Since Graham, his wife, or someone to whom he gave permission had authority to charge calls, the jury could find that the South Central Bell Telephone Company relied upon the appellant’s misrepresentation when it permitted the long-distance calls to be charged to Graham’s home telephone.

The appellant’s intent is evidenced from the uncontroverted testimony of Graham who testified that, after he informed the appellant not to charge any other long-distance calls to his home telephone, Graham received bills for more long-distance calls amounting to one-hundred and twenty-six dollars and ninety-seven cents on his January, 16, 1981 telephone bill.

Further, the testimony was uncontrovert-ed that the appellant told Graham the calls were made to his girlfriend, Michele Marin-ko, who had gone back to live with her family in Kansas. It was also undisputed that appellant admitted to Mrs. Graham after January 16, 1981, that he made the long-distance telephone calls and said “I needed to talk to my girlfriend.”

Appellant complains of error in the admission of evidence presented by the State, through an Alabama Power Company employee who had custody of the records, that the appellant’s girlfriend, Michele Marinko, or someone purporting to be her, had executed a card requesting service from the Alabama Power Company. The card showed that Michele Marinko’s father lived in Salina, Kansas. In brief, the appellant maintains that the admission of the Power Company security deposit card was hearsay. However, at trial the appellant objected to the admission of the card because it was not “relative to the issues in the case. Ms. Marinko is not on trial.”

The trial court cannot be placed in error on grounds not asserted. Hargrove v. State, 344 So.2d 823 (AIa.Cr.App.), cert. denied, 344 So.2d 826 (Ala.1977). The court was required to pass only upon the ground of the objection specified by the appellant and those not announced are waived. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). Thus, the appellant failed to preserve this matter for appellate review. Hargrove v. State, supra.

There was also evidence presented by the State, through an investigator with the Russell County District Attorney’s office, that a subpoena was mailed to Michele Marinko with a return receipt requested. The United States postal return receipt, which was identified and allowed into evidence, showed Ms. Marinko’s signature and her address as 1430 Pawnee Drive, Salina, Kansas. The postal return receipt is admissible as an exception to the hearsay rule allowing a statement that is useful to identify a person, time, place or other thing. C. Gamble, McElroy’s Alabama Evidence § 273.01 (3d ed. 1977). Although the postal return receipt cannot be considered evidence of the truth of the fact that a subpoena was sent to Michele Marinko, it may be used for the limited purpose of identifying the place where the letter containing the subpoena addressed to her was sent. See Gamble, supra.

The evidence presented by the State was sufficient to prove that the appellant was guilty of the offense of theft of services. The sufficiency of this proof, viewed in the light most favorable to the State, was such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

II

The appellant contends that the trial court committed reversible error when it did not instruct the jury concerning certain circumstantial evidence.

The record indicates that at the end of the court’s instructions to the jury the State announced that it was satisfied with the court’s instructions and the jury was excused to begin their deliberations in the case.

The appellant did not request a written instruction on circumstantial evidence but he made an oral request out of the presence of the jury after the jury had retired to deliberate. The exceptions to an oral charge must be made in the presence of the jury and prior to their retirement for deliberations. Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.1978).

Our examination of the record shows that after the State announced “satisfied,” an off-the-record bench conference occurred. Whether at that time the appellant was given permission to make his exceptions out of the presence of the jury is not indicated by this record. In the absence of a timely objection to the court’s oral instructions in the jury’s presence this court had nothing to review. Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967).

Ill

The appellant complains that he was improperly sentenced under the Habitual Felony Offender Act because, for the nine prior forgery convictions used to enhance his punishment, he had been given a certificate granting restoration of his civil and political rights by the State Board of Pardons and Paroles. He maintains that this certificate constituted a pardon under § 15-22-36, Code of Alabama 1975 as amended, and it was error to use these convictions to enhance punishment.

The certificate, a copy of which appears in the record, does not state that the appellant was pardoned for the nine convictions, merely that the State Board of Pardons and Paroles had restored to him his civil and political rights.

Although we recognize that the State Pardon and Paroles Board does have the authority to grant a pardon under § 15-22-36, supra, the certificate appearing in the record is not a pardon. Moreover, even if it were a full pardon it would not, in our judgment, preclude those convictions from being used to enhance appellant’s punishment. See Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), affirmed, 267 Ala. 507, 103 So.2d 341 (1958). In Mason, the sole question raised was whether the appellant’s possession of a pistol, after conviction for a crime of violence was illegal in view of the pardon that Mason had been granted. The court observed that the question of a pardon’s effect had been reviewed in cases dealing with punishment imposed under multiple offender statutes. The court cited Peoples v. Biggs, 9 Cal.2d 508, 71 P.2d 214, 116 A.L.R. 205, and quoted the following excerpts:

“ ‘It is universally established that a pardon exempts the individual from the punishment which the law inflicts for the crime which he has committed; and generally speaking, it also removes any disqualifications or disabilities which would ordinarily have followed from the conviction. To say, however, that the offender is a ‘new man,’ and as ‘innocent as if he had never committed the offense,’ is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it place no restraints upon him following his conviction. The criminal character or habits of the individual, the chief postulate of habitual criminal statutes, is often as clearly disclosed by a pardoned conviction as by one never condoned....
“ ‘With respect to the precise question before us, namely, the effect of a prior conviction which has been pardoned, the courts are in conflict; but perhaps the weight of authority, and certainly of critical opinion, is to the effect that the pardon is immaterial, and that the defendant may be adjudged a prior offender and given the increased punishment as such. See People v. Carlesi, 154 App.Div. 481, 139 N.Y.S. 309, affirmed 208 N.Y. 547, 101 N.E. 1114; Id., 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843; People v. Murphy, 244 App.Div. 834, 279 N.Y.S. 762; Mount v. Commonwealth, 2 Duv. 93, 63 Ky. 93; Herndon v. Commonwealth, 105 Ky. 197, 48 S.W. 989, 88 Am.St.Rep. 303; State v. Edelstein, 146 Wash. 221, 262 P. 622; 16 C.J. 1342, § 3157; notes, 58 A.L.R. 20, 49; 13 Columb.L.Rev. 418; 14 Minn.L.Rev. 293; 78 U.Pa.L.Rev. 561; 28 Harv.L.Rev. 647, 655; 41 Harv.L.Rev. 918; 5 Fordham L.Rev. 166; 3 So.Cal.L.Rev. 438; 22 Journ.Crim.Law 122. As the court states in People v. Carlesi, supra, 154 App.Div. 481, 139 N.Y.S. 309, 312: “The pardon of this defendant did not ‘make a new man’ of him. It did not ‘blot out’ the fact or the record of his conviction. * * * The pardon in this case merely restored the defendant to his civil rights. If it had been granted before his term of imprisonment had been served, it would also have relieved the defendant of that. But it did not obliterate the record of his conviction or blot out the fact that he had been convicted. *, * * It relieved the defendant of the consequences which the law attached to his offense. But the defendant is to be punished now solely in consequence of his second offense.”
“ ‘The other view, holding that the pardoned offense cannot be considered, is based upon the literal application of the theory that the pardon ‘blots out guilt,’ and ‘wipes out the offense,’ which is then regarded as never having been committed. See Edwards v. Commonwealth, 78 Va. 39, 49 Am.Rep. 377; State v. Martin, 59 Ohio St. 212, 52 N.E. 188, 43 L.R.A. 94, 69 Am.St.Rep. 762; Tucker v. State, 14 Okl.Cr. 54, 167 P. 637; State v. Lee, 171 La. 733, 132 So. 219; Scrivnor v. State, 113 Tex.Cr.R. 194, 20 S.W.2d 416.’ ”

Judge Harwood, writing for the court in Mason, noted that “[a] pardon cannot wipe out the historical fact of the conviction, and as appropriately stated by one court, it involves forgiveness and not forgetfulness.” Mason v. State, 39 Ala.App. at 4-5, 103 So.2d at 341. Based on the authority cited in Mason, which holds that prior convictions can be used for enhancement purposes, it would follow that if a pardon did not “blot out” the record of a defendant’s conviction, then certainly a certificate merely restoring the appellant’s civil and political rights would also not erase the conviction. Therefore we hold that a conviction can be used to enhance punishment under the Alabama Habitual Felony Offender Act, § 13A-5-9, Code of Alabama 1975, notwithstanding the fact that the offender has been restored to his civil and political rights.

Based on the foregoing, it is our judgment that the trial court properly considered the appellant’s nine prior convictions for first degree forgery for enhancement purposes under the Alabama Habitual Felony Offender Act, supra. There being no error in the record, the judgment of conviction by the Russell Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.

ON REHEARING

We have extended the opinion in this case in order to clarify a question not addressed in our original opinion.

The record reveals that on September 1, 1981, appellant was sentenced by the trial court to a term of five years. Then, in response to a motion filed by the State on September 29, 1981, to reconsider the sentence in light of the Habitual Felony Offender Act as it had been construed in Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981), the appellant was sentenced to fifteen years. The court conducted the second sentencing “in accordance with the mandate of Watson v. State,’’ finding that appellant’s nine prior forgery offenses should count as nine, rather than as one previous conviction for purposes of sentencing.

Appellant argues that once he filed his notice of appeal following imposition of the first sentence, the trial court lost all jurisdiction over the case and had no authority to re-sentence him twenty-eight days later.

Under former law, the trial court retained jurisdiction over a cause for a period of thirty days following judgment and had the power to alter or modify its decree within that period. Ala.Code Tit. 13, § 119 (1940); Essex v. State, 45 Ala.App. 141, 227 So.2d 138 (1969). Title 13, § 119, however, was superseded as to civil cases in 1977 by Rules 59, 60 and 62 of the Alabama Rules of Civil Procedure. See A.R.C.P. Appendix II. See also A.R.A.P. 4 (Court Comments Applicable to the [June 6,1978] Amendment to Rule 4(b)).

Furthermore, the 1975 Code does not contain a section corresponding to T. 13, § 119, and the statute was therefore repealed by virtue of § 1-1-10 of the Code of Alabama 1975. The latter section provides, in pertinent part, the following:

“Subject to the provisions of this Section, or as may be otherwise provided in this Code, all statutes of a public, general and permanent nature, not included in this Code, are repealed.... ”

Under present law, then, the trial judge does not retain jurisdiction over a case for all purposes under the “thirty-day rule,” which we hold is no longer the law in Alabama. The court retains jurisdiction for the following limited purposes pursuant to § 12-22-133 of the Code of Alabama 1975:

“Where an appeal is taken from the judgment of any municipal, district or circuit court in criminal cases, the trial court retains jurisdiction for the purpose of granting a motion for new trial and also retains jurisdiction for the purpose of enforcing its judgment where the appeal is dismissed before the judgment of the appellate court is entered.” [Emphasis added]

Implicit in the wording of the appellate rules is the fact that the trial court also retains jurisdiction over a criminal case, even though notice of appeal has been filed, until the pronouncement of sentence. See A.R.A.P. 4(b) (“A notice of appeal filed after the announcement of a decision or order, but before pronouncement of the sentence, shall be treated as having been filed after pronouncement of the sentence and on the day thereof.”)

The term “sentence,” of course, assumes a valid statutorily-imposed punishment. Appellant’s first sentence, which was not in accord with the mandatory provisions of the Habitual Felony Offender Act, was invalid. The trial court had not only the power but the duty to sentence appellant as required by law. See Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947); In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149 (1894); Thompson v. United States, 495 F.2d 1304 (1st Cir.1974); Garcia v. United States, 492 F.2d 395 (10th Cir.1974); Caille v. United States, 487 F.2d 614 (5th Cir.1973). As the Court of Appeals for the First Circuit observed in Thompson v. United States:

“The full import of Bozza [v. United States] is that a trial court not only can alter a statutorily-invalid sentence in a way which might increase its severity, but must do so when the statute so provides.” 495 F.2d at 1306 [Emphasis in original]

Accordingly, we find no error in the trial court’s vacating appellant’s original punishment and re-sentencing him according to law.

OPINION EXTENDED; APPLICATION OVERRULED

All the Judges concur.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Willie James TAYLOR, alias Willie James Thomas v. STATE.
    4 Div. 959.
    Court of Criminal Appeals of Alabama.
    June 8, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-963.

      Samuel J. Clenney, III, Abbeville, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of an assault in the first degree upon Anna Kay Kennedy as charged in an indictment pursuant to Code of Alabama 1975, § 13A-6-20(a)(1), which provides:

“A person commits the crime of assault in the first degree if:
“With intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument; ... . ”

Appellant had been previously convicted of a felony, and the court fixed his punishment at imprisonment for twelve years and sentenced him accordingly.

The evidence is unsatisfactory and contradictory as to the time of night of the particular incident, but there can be no doubt that it shows that on the night of January 23-24,1981, the alleged victim was injured in the face by a blast from a shotgun in the hands of defendant. Several pellets entered the victim’s skin, and she was treated in a hospital for her wounds about two weeks. The controverted issue of fact was whether defendant intentionally shot the victim.

The victim testified:

“Q. Do you ■ know where Rob Danzy lives?
“A. Yes.
“Q. Were you anywhere close to his house at that time?
“A. I was by his house.
“Q. Okay. As you were walking, did you hear someone call your name?
“A. Yes.
“Q. Did you recognize that voice?
“A. Yeah.
“Q. All right. Whose voice was it?
“A. Willie James [otherwise identified as the defendant].
“Q. Had you known him before?
“A. Yes, sir.
“Q. Had you gone with him, Anna?
“A. Yes. Used to, yes.
“Q. When you turned around, what happened then?
“A. That is when he shot.
“Q. And where were you hit?
“A. In the face.
“Q. Okay. Can you tell what kind of shot it was, did you see the gun?
“A. No, sir.
“Q. Okay. Now, say you were hit in the face?
“A. Yes, sir.
“Q. And, when you were hit in the face, what did you do then?
“A. I ran.
“Q. Where did you run to?
“A. Over to next-door. I forgot her name at the house there.
“Q. Did an ambulance or rescue squad come to that house?
“A. Yes.”

According to the testimony of defendant, he had returned from a squirrel hunt and was in the process of taking his shotgun from the trunk of his car when it went off; he was not aware of the presence of the victim at the time, or of anyone being hurt by shot from the gun, until he heard about it the next day.

Appellant’s first insistence on a reversal is that his “statement was the product of an illegal arrest without probable cause and was improperly admitted” in evidence. The statement of. defendant was admitted in evidence during the testimony of Abbeville Police Officer Johnny Bradley just after the following occurred:

“Q. All right, sir. What was the statement that he made to you at that time?
“MR. ADAMS: We object, because the proper predicate hasn’t been laid.
“THE COURT: I overrule you.”

In the light of the present criticism of the admission in evidence of the defendant’s statement, the evidence was probably not as clear as it should have been as to the circumstances of defendant’s arrest. Even so, we think them sufficient to show there was probable cause therefor. Appellant argues in his brief on the point as follows:

“It is clear also that no testimony was presented in the instant case explaining how investigating officers connected the Appellant to the shooting incident. No probable cause was shown for the arrest of Willie James Taylor.”

According to the transcript of the evidence, the arrest of defendant was made by Officer Johnny Bradley during the afternoon of January 24, 1981. He found defendant at defendant’s brother’s house and had a conversation with the defendant there “at approximately 2:25 P.M.” on that day and took him down to the city jail where the statement was given to him after unquestioned sufficient warnings and instructions as to his constitutional rights, including his right to the presence of an attorney at no expense to him, which he expressly declined. Abbeville Police Officer Wayne Adkinson testified that he saw Anna Kennedy in her wounded condition, which appeared to him to be a shotgun wound of her face, before she was sent to the hospital. He further said:

“Q. All right. Did you look, try to find Willie James Thomas that evening?
“A. Yes, I did.
“Q. Did you find him that evening?
“A. No, sir. I did not.”

Notwithstanding the undesirable scarcity of the evidence of the information possessed by police officers as to the identity of the person who had shot the victim, we cannot accept any view that Officer Adkinson did not learn from her, at the time he first saw her in her wounded condition, that she recognized the voice of the defendant immediately before she was shot. At the time she was observed by Officer Adkinson, she was conscious and rational. It is hardly reasonable to conclude that Officer Adkinson would have tried to find the defendant that evening without his having ascertained, directly or indirectly from the victim, information that tended to link defendant with the shooting. Nor do we think that it is reasonable to conclude that Officer Bradley did not have the benefit of this information, or substantially the same information, approximately twelve hours thereafter, when he located defendant at defendant’s brother’s house, had a conversation with him there and took him to jail. This is especially true, we think, in the light of the failure of defendant to contend otherwise on the trial and the fact that a woman had been shot in the face with a shotgun and had been sent to the hospital would hardly have escaped the notice of the Abbeville Police Department in general during the intervening approximately twelve hours between the incident and defendant’s arrest. The mere fact that an arresting or detaining officer does not personally have probable cause to believe that a felony has been committed, and that the one arrested or detained committed the felony, does not invalidate the arrest. Robinson v. State, Ala.Cr.App., 361 So.2d 379, 382 (1978), writ denied, 361 So.2d 383.

We do not agree with appellant’s contention that there was no independent proof of the corpus delicti prior to the admission in evidence of defendant’s inculpa-tory statement. The victim’s identification of defendant’s voice as the one she heard calling her name at the time she was shot and the fact that defendant did not remain at the scene, and was not located until approximately twelve hours thereafter, constitute, we think, ample evidence of the corpus delicti.

"... To prove prima facie corpus delicti in a murder prosecution, for example, the state does not have to negative beyond a reasonable doubt that the death did not result from an accident, suicide, or natural causes, but it is required to show only a reasonable probability that a criminal act of another was the cause of death.” Gamble, McElroy’s Alabama Evidence, § 200.13 (1977)

During the closing argument of counsel for the State, the following occurred:

“MR. ADAMS: Judge, I object. There is no testimony that he had any trouble with her prior to this.
“MR. SORRELLS: They had busted up, broken up.
“THE COURT: There was some evidence they had been together and were separated. I overrule you. I think that is an inference that could be drawn from the evidence.”

As to her acquaintance with defendant, the victim had testified on interrogation by the State:

“Q. Had you known him before?
“A. Yes, sir.
“Q. Had you gone with him, Anna?
“A. Yes. Used to. Yes.”

On cross-examination by defendant, she testified:

“Q. Anna, how long had you gone with Willie James before this happened?
“A. We had quit for two months.
“Q. Are you all going together now?
“A. Now?
“Q. Yeah.
“A. No, sir.
“Q. Not going together at all?
“A. No, sir.”

The argument of counsel for the State indicates on its face that counsel was not endeavoring to inject some fact based on his own knowledge as distinguished from what he inferred from the evidence. The court in ruling on defendant’s objection made it clear that the argument should not be interpreted otherwise. This kind of argument is usually entirely proper. Emerson v. State, 281 Ala. 29, 198 So.2d 613 (1967); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Evans v. State, Ala.Cr.App., 389 So.2d 567 (1980). We think the inference sought to be drawn by the prosecuting attorney did not transcend the proper latitude that should be allowed counsel in drawing infér-ences from the evidence and that the ruling of the trial court in this particular was not erroneous.

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

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

AFFIRMED.

All the Judges concur.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

With his application for rehearing, appellant files a motion for a finding of additional facts pursuant to Rule 39(k) ARAP. He alleges additional facts as follows:

“Anna Kennedy stated that she never did actually see the Appellant on the night she was shot and further stated that she did not know who shot her (R. 11-12).
“Officer Johnny Bradley testified concerning the taking of the statement from the Appellant. (R. 18-20). The questioning lasted approximated twenty minutes. (R. 20). Appellant had been in custody only fifteen to twenty minutes before the questioning began. (R. 21). He further stated that he found out all the details of the incident from the Appellant. (R. 24). Although this officer was the arresting officer, no testimony was elicited from him which tended to explain why he arrested this Appellant.
“Officer Wayne Adkinson was the investigating officer on the scene. While this officer was asked whether he attempted to locate the Appellant that evening, no testimony was ever elicited which would explain how or why he focused in on this Appellant. (R. 14-16).
“Willie James Thomas testified that he had seen and gone with Ms. Kennedy almost every day since the incident until the date of trial. (R. 31-32). Appellant told the officers that the firing of the weapon was accidental. (R. 33). He denied making the statement attributed to him by Officer Bradley, (R. 38) and further stated that he could not read. (R. 40).”

We accept the appellant’s statement of additional facts, which when considered with all the evidence in the case would not, we think, cause a change in the result of our opinion on original submission.

Although not necessary, we think, to reach the conclusion we have reached, we now add to our opinion by stating that should there be any concern as to whether there was probable cause for believing that defendant had committed an assault in the first degree, the crime for which he was expressly charged and convicted, there is no basis for any doubt that there was probable cause for believing that defendant was guilty of an assault in the second degree, which is also a felony, and is thus defined in part by Code 13A-6-21(a)(3).

“A person commits the crime of assault in the second degree if;
“He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument ... . ”

The trial court submitted to the jury not only the issue of guilt as to assault in the first degree but also as to assault in the second degree and assault in the third degree.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


author: TYSON, Judge.

text:
    Sam TOMBRELLO, Jr. v. STATE.
    2 Div. 309.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-946.
    William T. Coplin, Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Sam Tombrello, Jr. was indicted on March 3,1981, by the Greene County Grand Jury for the November 6, 1980, first-degree burglary of the residence of Thomas Sum-merville located in Pleasant Ridge, a small community near Eutaw. After a lengthy trial, appellant was found guilty as charged. The trial court sentenced him to life imprisonment. From that conviction he now appeals in forma pauperis.

Appellant raises no issue on appeal challenging the sufficiency of the state’s evidence. Thus, only a short narration of the facts is necessary.

Sometime during the first part of 1980, appellant contacted George Gore whom he had met about one and one-half years prior to the date of appellant’s trial, in an attempt to solicit his aid in procuring assistance in various robberies and burglaries he was planning. Appellant asked Gore to find some “syndicate” individuals from Chicago who could open safes and deactivate alarm systems. Appellant was expecting Gore to put him in contact with someone in Chicago who could assist him. In late October, 1980, after numerous telephone conversations with appellant, Gore contacted F.B.I. agent Robert Pecoraro in Chicago whom Gore had previously met. Gore informed agent Pecoraro of appellant’s requests.

Subsequent thereto, on October 27, 1980, Gore informed agent Pecoraro of an Alabama telephone number at which appellant was expecting Gore to contact him. Agent Pecoraro contacted several other agents and had an informant, Robert Martin, call appellant on October 28, at 2:00 p.m. During this conversation, which appellant thought was from the Chicago “syndicate” contact supplied by Gore, appellant discussed his need for assistance in his planned criminal activities and informed Martin that he would fly to Chicago for further discussions.

On October 29, appellant was met at O’Hare Airport in Chicago by agent Pecora-ro who posed as a member of the Mafia. They went to a nearby motel and discussed the burglary of the Summerville residence. The conversation, which lasted about two hours, was recorded. During the meeting appellant made a drawing of the Summer-ville residence and adjacent store. Before leaving Chicago, appellant gave agent Pe-coraro two Birmingham telephone numbers at which he could be contacted. After-wards appellant returned to Birmingham.

On October 30, telephone calls were made to the Birmingham numbers given agent Pecoraro by appellant and a meeting between appellant, Pecoraro and Martin in Birmingham was planned. The telephone conversations were recorded. On November 5, agent Pecoraro, accompanied by agents John O’Rourke and John Dolan, arrived in Birmingham and met Martin at a local motel. That evening appellant was telephoned and a meeting with him was scheduled for the next day. This conversation was also recorded.

Around 10:00 a.m. the next day appellant and Floyd Watson met agents Pecoraro and Dolan and informant Martin at the motel. A meeting lasting about four hours followed during which appellant drew a rough sketch of the layout of the Summerville house as well as their store where a large safe was located. Around 8:00 p.m. the agents left the motel and met appellant, Watson, and an individual identified by appellant as Jim Wright at a local restaurant. A meeting lasting about forty-five minutes to one hour occurred. Afterwards, the agents, appellant, and his confederates travelled to the Summerville residence and observed the layout of the home and store. It was not completely dark at the time they viewed the Summerville residence.

Subsequent thereto, the agents and appellant went to O’Jim’s Restaurant and had dinner. There appellant discussed the manner in which the crime should be committed. About thirty to forty minutes later, they returned to the Summerville residence. A short time later appellant, armed with a .25 caliber Bauer automatic pistol, was arrested in the house by agents who had hidden therein.

There was no motion to exclude the evidence made at the close of the State’s case.

I

Appellant contends that the trial court erred in denying his motion for a continuance due to the unavailability of a witness. Appellant made an offer of proof as to the substance- of the testimony expected from the witness. The state produced evidence that the witness had little connection with the investigation of the case and took an active role only on the day of the crime. Furthermore, the record reflects that the first witness called by appellant on his behalf was the same one over which appellant had attempted to continue his case.

From this state of the record, it is clear that appellant suffered no prejudice by the trial court’s denial of his motion in light of the fact that his witness was present and called by him at trial. Although the witness did not testify as appellant had indicated in his offer of proof, he nonetheless had the opportunity to question him. Based upon the foregoing, we find no error in the trial court’s ruling. Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982); Godfrey v. State, 383 So.2d 575 (Ala.Cr. App.), cert. denied, 383 So.2d 579 (Ala.1980); Potts v. State, (Ms. March 2, 1982), (Ala.Cr.App.1982).

II

Appellant asserts that the trial court committed reversible error in failing to order a presentence report on appellant prior to sentencing.

After the jury had returned its verdict the following transpired:

“THE COURT: Mr. Tombrello, please come around. (Defendant complies) The jury has returned a verdict finding you guilty of burglary in the first degree. Do you have anything to say before I impose sentence of law upon you?
“MR. TOMBRELLO: No, sir. I don’t.
“THE COURT: Do you wish to have a presentence report before I impose sentence of law, or do you wish to waive that and let me go ahead and sentence you today?
“MR. TOMBRELLO: May I consult my attorney?
“THE COURT: Yes, sir.
(Consultation between attorney and Mr. Tombrello was had, after which the following occurred:)
“THE COURT: Would you like for me to sentence you today?
“MR. TOMBRELLO: Yes, sir.
“THE COURT: Do you have anything at all in which to say or that you wish to offer to me before I impose sentence of law upon you?
“MR. TOMBRELLO: No, sir.”
(R. 354-355)

Under A.R.Crim.P. 3(a)(2), on motion of the trial court or written motion of either party, the trial court shall have prepared a written report of a presentence investigation of a defendant convicted of a felony and the defendant shall not be sentenced until the report is presented to and considered by the trial court. A.R.Crim.P. 6(b)(1) allows for the parties to waive, with the consent of the trial court, the sentence hearing at which the presentence report is considered.

In the instant case, no written motion for a presentence report was filed by appellant. Nevertheless, the trial court would have allowed an oral motion to substitute therefor. However, after consulting with his trial counsel, appellant waived the preparation of a presentence report as well as the sentence hearing.

In addition, appellant’s argument that the judgment and sentence was not reduced to writing is wholly without merit, as the record contains a written minute entry styled “Judgment of Conviction” in full compliance with A.R.Crim.P. 8.

Thus, appellant’s contentions are without merit.

Ill

Contrary to appellant’s contention the sentence of life imprisonment imposed by the trial court, and which is authorized for the instant offense, Ala.Code §§ 13A-5-6(a)(l), -7-5(a)(l) (Supp.1981), does not constitute cruel and unusual punishment under either Art. I § 15 of the 1901 Alabama Constitution or the eighth amendment to the United States Constitution. As stated in Messelt v. State, 351 So.2d 636, 639 (Ala.Cr.App.), cert. denied, 351 So.2d 639 (Ala.1977):

"... Where the punishment prescribed by the Legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment.”
(Citations omitted).

See also Holley v. State, 397 So.2d 211 (Ala.Cr.App.), cert. denied, 397 So.2d 217 (Ala.1981); Burch v. State, 375 So.2d 546 (Ala.Cr.App.1979); Serritt v. State, 401 So.2d 248 (Ala.Cr.App.), cert. denied, 401 So.2d 251 (Ala.1981).

IV

Appellant argues that the trial court committed reversible error by commenting upon certain aspects of the ease, calling to our attention four instances where such occurred.

A

The first three instances occurred during appellant’s cross-examination of FBI agent John O’Rourke. Appellant’s cross-examination focused primarily on refuting the accuracy of transcripts of several recorded telephone conversations between appellant and Martin. After a lengthy inquiry into such, which consisted of several pages in the transcript, the state objected, stating that the jury had previously heard the tapes of the conversations and appellant’s questions were quoting portions of one transcript out of context. At that point the trial court overruled the objection stating, “I guess he is entitled to cross-examination.” (R. 129).

Appellant continued to cross-examine agent O’Rourke as to the accuracy of the transcripts, reading portions thereof at length. The state, without objecting, noted that the accuracy of the transcripts had previously been established. In fact, appellant had suggested to the court and state that they be admitted. The trial court acknowledged such, stating, “. .. that is why we introduced it into evidence” and directed appellant to ask the witness “detailed questions.” (R. 136-137).

Having carefully reviewed the above three instances, we find nothing to suggest that the trial court did anything other than attempt to move the trial expeditiously along. There was no limitation placed upon appellant’s cross-examination other than to require it to be directed toward relevant and material matters.

The trial judge is vested with discretion in the conduct of a trial, and appellate courts will not interfere unless there has been an abuse of that discretion. The trial judge has a duty to move the testimony expeditiously along. Shelton v. State, 384 So.2d 869 (Ala.Cr.App.), cert. denied, 384 So.2d 871 (Ala.1980).

As we stated in Ball v. State, 337 So.2d 31, 35 (Ala.Cr.App.), cert. quashed, 337 So.2d 39 (Ala.1976):

“The latitude and extent of cross-examination has been held to be subject to some limitation. Both state and federal decisions vest trial judges with the limited discretion to cut off questions on cross-examination which: (1) are repetitious, (2) concern wholly collateral matters, (3) are irrelevant, or (4) are harassing, annoying or humiliating.” (Citations omitted.)

See also Ellis v. State, 353 So.2d 48 (Ala.Cr. App.), cert. denied, 353 So.2d 50 (Ala.1977); Mitchell v. State, 57 Ala.App. 601, 329 So.2d 658, cert. denied, 295 Ala. 412, 329 So.2d 663 (1976); Burke v. State, 44 Ala.App. 379, 209 So.2d 859 (1968).

Based upon the foregoing, we find no error in the trial court’s actions.

B

Appellant’s last insistence of error concerns the trial court’s comment after it had sustained an objection made by the state. The trial court stated “Improper” after making its ruling.

“The law does not prohibit the trial judge from giving trial counsel his reasons in making certain rulings as to the law applicable to the case. This falls far short of a comment on the evidence.
“In 23 C.J.S. Criminal Law § 993, p. 1024, it is said, ‘Generally, it is not improper comment on the evidence for the judge to explain his ruling on a matter of law, and he may refer to testimony and state its legal effect, in deciding a point raised during the trial.’ (Citations omitted). McDonald v. State, 340 So.2d 80, 83 (Ala.Cr.App.) cert. denied, 340 So.2d 84 (Ala.1976).

Furthermore, casual remarks by the trial judge concerning testimony which are directed to counsel rather than the jury do not constitute prejudicial comments on the evidence. Carpenter v. State, 400 So.2d 417 (Ala.Cr.App.), cert. denied, 400 So.2d 427 (Ala.1981).

Consequently, we find no merit to appellant’s contention.

V

Lastly, appellant contends that he was denied effective assistance of counsel. However, appellant argued in brief not that specific acts or omissions of his trial counsel rendered his representation inadequate, but that certain acts or omissions of the trial court frustrated such.

Initially, we have carefully reviewed the record and find that the proceedings therein were not reduced to a farce, sham, or mockery of justice. Further, there was no denial of “reasonably effective” assistance of counsel as that standard is utilized by the United States Court of Appeals for the Fifth Circuit. Sheehan v. State, 411 So.2d 824 (Ala.Cr.App.1981); McKinnis v. State, 392 So.2d 1266 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1270 (Ala.1981). We specifically find no lack of diligence on the part of trial counsel in preparing for trial.

As to appellant’s contention that the trial court’s actions rendered his trial counsel’s representation inadequate, he directs our attention to four instances where such occurred. One instance has previously been discussed in part I of this opinion.

As to the trial court’s failure to rule on several motions filed by appellant, our search of the record reveals that in addition thereto, appellant made no request for a ruling or an objection to the trial court’s failure to rule. Thus, nothing is preserved for our review. Parker v. State, 406 So.2d 1036 (Ala.Cr.App.), cert. denied, 406 So.2d 1041 (Ala.1981); Boykin v. State, 398 So.2d 766 (Ala.Cr.App), cert. denied, 398 So.2d 771 (Ala.1981); Stewart v. State, 398 So.2d 369 (Ala.Cr.App.), cert. denied, 398 So.2d 376 (Ala.1981); and cases cited therein.

Appellant asserts that the trial court failed to give him ample time to procure several witnesses he had subpoenaed.

Appellant was arrested on November 6, 1980. On March 16, 1981, appellant was appointed counsel. On May 4,1981, he was arraigned apparently after having been transferred from the federal penitentiary in Talladega, Alabama, to the Greene County jail. On May 18, 1981, appellant’s trial began.

In the record, the trial court noted that there was no record of subpoenas being issued for two of the witnesses. In fact, the record is silent as to whether any of the witnesses were subpoened. In addition, there is no evidence in the record of appellant requesting the trial court to issue attachments on the witnesses. Appellant did not file a motion for a new trial raising the above contention and made no showing as to the expected testimony of the witnesses or whether he could locate the witnesses and have them served within a reasonable time.

Over six months elapsed from the date of appellant’s arrest and his trial. From the date of his appointment of trial counsel and the date of trial, a little over two months had passed.

Apparently, appellant is arguing that by not granting him a continuance, the trial court severely impaired his ability to prepare his defense. Thus, he seeks to place the blame for such on his trial counsel. Such an assertion is wholly without merit. Appellant’s motion for a continuance, previously discussed in part I of this opinion, contained no ground in support thereof other than that the absence of one witness which was not included in those appellant now claims were vital to his defense. The record indicates that the trial court specifically requested from trial counsel any other grounds to support his motion. None were offered.

A careful review of the record leads us to the conclusion that the trial court made no ruling that prevented appellant’s trial counsel from preparing and presenting an adequate and effective defense. Morrison v. State, 398 So.2d 730 (Ala.Cr.App.1979), rev’d on other grounds, 398 So.2d 751 (Ala.1981); Smith v. State, 368 So.2d 298 (Ala.Cr.App.1978), cert. denied, 368 So.2d 305 (Ala.1979).

Furthermore, the record in this case does not support the appellant’s contentions concerning the caliber of representation by his trial counsel. We specifically find that counsel rendered effective representation within the meaning of due process at trial.

We have reviewed appellant’s contentions on this appeal and find no error. This cause is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    James C. WRIGHT, alias v. STATE.
    3 Div. 284.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Nov. 24, 1982
    Alabama Supreme Court 81-959.

      Calvin M. Whitesell, Roger S. Morrow, and Richard D. Shinbaum, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Receiving embezzled property; ten years.

Appellant was found guilty of receiving embezzled property under Counts III, IV and V of a five-count indictment returned by the November, 1979 Term of the Montgomery County Grand Jury. Appellant was found not guilty of embezzlement under Count I of the indictment and the trial court sustained appellant’s demurrer to Count II, eliminating that count from the jury’s consideration.

Counts III — V of the indictment charge that appellant:

“... did feloniously receive money, checks, bank notes, bills of exchange or other evidence of debt, the property of Associates Financial Services Company of Alabama, Inc., a corporation [in the amounts of $43,629.98, $33,629.98, and $27,834.43, respectively,] knowing that said money, checks bank notes or bills of exchange had been embezzled, fraudulenty converted or fraudulently secreted with intent to prevent the recovery thereof to defraud the rightful owner.”

I

Appellant contends that the indictment under which he was charged is void because no legal evidence was presented to the November, 1979 Montgomery County Grand Jury. While it is clear that a grand jury may not indict merely on their own suspicions and must have sworn witnesses or self-proving documents before them, State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779, cert. denied, 292 Ala. 506, 296 So.2d 784 (1974); Ala.Code § 12-16-200 (1975), it is also clear that the State is not required to prove the sufficiency of any such documentary evidence or testimony. Fikes v. State, 263 Ala. 89, 81 So.2d 303 (1955), rev’d on other grounds, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957).

In response to appellant’s motion to dismiss or, in the alternative, to quash the indictment on December 6, 1979, the trial court, on February 27, 1980, ordered the State to produce evidence that the November 27, 1979 Term of the Montgomery County Grand Jury had before it either documentary evidence or the testimony of a witness at the time it returned a true bill on appellant’s indictment. Then, at the beginning of appellant’s trial before opening statements, the trial court entered the following stipulation into the record:

“COURT: Stipulating the witness for the State who testified before the Grand Jury is Mr. Macon Brock and he was the sole witness. He was the only witness and he was represented by the law firm of Jordan and Heard.”

No objections were made to this stipulation.

On the third day of trial, March 26,1980, the appellant called Macon Brock as his first witness; Mr. Brock had previously testified as a State witness. During his direct examination by appellant the following exchanges occurred:

“Q. You have testified as a witness for the State before the grand jury, haven’t you?
“A. Yes, sir, that’s correct.
“Q. I don’t want you to give me your exact answer unless you know it, but in your best judgment how many times have you appeared before the grand jury?
“A. That’s easy, just one.
“Q. Just one time?
“A. To the best of my knowledge, yes, sir.
“Q. That was in the James Wright case?
“A. Yes, sir.
“Q. Alright, sir. You recall when you testified before the Grand Jury; you only testified once?
“A. To the best of my memory it was last summer or fall.
“Q. Summer or fall, you don’t know which?
“A. It could have been in the last — it could have been in the winter, it could have been in the last four or five months.
“Q. Mr. Brock, you haven’t testified but before one Grand Jury and in one case.
Just give us—
“MR. BEERS: Your Honor—
“A. Mr. Whitesell, that wasn’t the biggest day of my life.
“MR. BEERS: Mr. Brock. We object at this time. He has testified here today but he did testify before the Grand Jury against this man and that is all he is required to do. We object to any further questioning on this matter. Mr. White-sell knows it is not proper.
“Q. Alright. You recall whether you testified in July of last year before the Grand Jury?
“A. I don’t remember the day I testified before the Grand Jury. I know I testified. I have already said that but I do not remember the date.
“Q. I’m not asking you for the date. I am asking you if it was in the month of July.
“MR. BEERS: Objection, Your Honor. He has answered that question to the best of his ability. I don’t know whether Mr. Whitesell is trying to trap him into something that he has answered that question.
“THE COURT: Overruled.
“Q. Did you testify in July, Mr. Brock, of 1979?
“A. It could have been, I just don’t remember.
“Q. Do you have any memory at all about the season of the year?
“A. Yes, sir.
“Q. Well, was it summer time?
“A. I wasn’t connecting the season to the date. I testified before the Grand Jury, Mr. Whitesell. To tell you the truth, it was about the most unpleasant experience I have ever had and I want to never have it again and I didn’t pay any attention to the date.
“Q. Yes, sir. I do understand that fully, Mr. Brock but it’s important not just to you but to everybody in the case, that you do exercise the best memory you can as to whether it was July or November.
“A. To the best of my memory, I think it might have been July but I am not positive.”

The controversy over whether Mr. Brock had testified at the July Term or the November Term of the Montgomery County Grand Jury arose because of an earlier indictment which had been presented to the July Term of the grand jury charging appellant with receiving embezzled property. Appellant claims that Mr. Brock testified at the July Term of the grand jury and that, according to the trial court’s stipulation and Mr. Brock’s statement that he testified only once before the grand jury, no legal evidence was presented to the November Term. In his motion for a new trial or, in the alternative, for a judgment of acquittal, appellant insists that Brock did not testify before the November Term. Appellant argues now on appeal that the trial court’s stipulation concerning Brock’s testimony before the grand jury was in error due to “the falsity of the representations” by the State.

In a motion to quash an indictment alleging failure by the State to present legal evidence to the grand jury, the burden of proof is on the defendant. Sparks v. State, 46 Ala.App. 357, 242 So.2d 403, cert. denied, 286 Ala. 738, 242 So.2d 408 (1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1382, 28 L.Ed.2d 650 (1971); Hill v. State, 20 Ala.App. 197, 101 So. 298 (1924). From the record before us appellant failed to carry his burden of proof. An appellate court may only consider matters contained in the record as it is filed on appeal. Lucy v. State, 340 So.2d 840 (Ala.Cr.App.), cert. denied, 340 So.2d 847 (Ala.1976).

At most, Brock’s testimony that he could not remember whether he testified at the July Term or November Term of the grand jury was inconclusive. Contrary to appellant’s allegations, Brock did not deny that he had testified before the November Term, nor did he state with any certainty that he had testified before the July Term. He did remember testifying, and to testifying only one time before the grand jury. Appellant offered no other evidence, besides Brock’s testimony, to show that the November Term of the grand jury did not have legal evidence before them at the time the indictment was returned in this cause. This proof, or lack of proof, offered by appellant falls short of contradicting the stipulation entered by the trial court.

The testimony of a single witness before the grand jury is sufficient to comply with Ala.Code § 12-16-200 (1975). Douglas v. State, 42 Ala.App. 314, 163 So.2d 477 (1963), cert. denied, 276 Ala. 703, 163 So.2d 496 (1964), rev’d on other grounds, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). When it appears that witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged. Fikes, supra; Sparrenberger v. State, 53 Ala. 481 (1875); Evans v. State, 338 So.2d 1033 (Ala.Cr.App.1976), cert. denied, 348 So.2d 784 (Ala.1977).

II

Appellant next questions the sufficiency of the State’s evidence. In deciding whether the trial court properly overruled appellant’s motion to exclude this court is required to view the evidence in the light most favorable to the State. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968).

Macon A. Brock, Sr., a key witness for the State, testified that he had been employed at Associates Financial Services of Alabama for approximately sixteen and one-half years prior to October 23,1978, the date he left the company. Associates Financial Services had formerly been Cumberland Capital and Brock had opened the Madison Avenue branch of that lending institution in Montgomery as branch manager and employee supervisor in 1971.

The witness had known appellant since 1972 or 1973, when appellant first inquired about obtaining a loan. Appellant had been referred to Brock by a representative of Central Bank. Around the time appellant and his second meeting with him, Brock became aware that appellant was a bookmaker “which presented a problem of me making a loan.” The loan was made, however, and shortly thereafter Mr. Brock began placing bets with appellant on football games. Brock said, “I would bet one or two a week right to start or more.” He would then have weekly meetings with appellant to discuss the bets. Those meetings were at first unrelated to any business transactions appellant had with Associates Financial Services. He testified that it was the next fall before he (Brock) had a “close” gambling relationship with appellant. Brock continued to place weekly bets with appellant during football season, “but from time to time I did let Mr. Wright borrow money too.”

Brock stated that he “lost a lot more that [he] won” during that second fall and began to borrow money to pay his gambling debts. He borrowed from other companies, banks, personal friends and “anyway [he] could get it.” He also began betting with other bookies besides appellant. Brock testified that at the conclusion of the 1974 football season he had lost so much from gambling that he had to sell his house to pay a portion what he owed to the various bookies, including appellant. Brock made payments to appellant out of the proceeds from the sale of his house in the spring of 1975. He stated that the total of his gambling debts at that time' was approximately $15,000.

Brock continued to gamble with appellant and others after selling his house and he continued to lose. He stated that on one occasion he lost approximately $2,500 to appellant that he could not pay. At this point appellant suggested that a friend of his could take out a loan with Associates Financial Services, pay him (appellant) the money and that Brock could make the payments on the loan. Brock testified that he was opposed to this idea and said “after we talked a couple of other times he (appellant) asked could he get it in his name and me make the payments.” The witness stated that he made the type “loan” suggested by appellant in the Fall of 1975 or Spring of 1976.

The witness admitted that he continued to gamble and to lose money to appellant after this “loan” transaction and that appellant continued to come to him to get similar loans. Brock could not recall the exact number of these loans that he made to appellant between 1976 and March of 1978. He explained to appellant that he could not put “bookmaker” on any of the loan documents or show “the exact cause that he was getting the money.” He further explained to appellant that he could not put all the loans in appellant’s name, that the home office of Associates Financial Services would detect the loan transactions by computer and know it was above his loan limit of $10,000. Thereafter, appellant began to receive loans from Brock in other names. Brock continued to lose to appellant and to others as well during this period. From time to time, Brock also refinanced some of appellant’s “loans.”

Brock specifically remembered a loan transaction involving approximately $43,-000, the subject of this cause, which he discussed with appellant and one Jimmy Burgess, another gambling creditor, on March 6, 1978. In addition, appellant had taken out a loan in the name of Joe Hood, Burgess’ uncle. Brock detailed the discussion he had with appellant concerning the $43,000 loan as follows:

“A. To the best of my knowledge, the conversation went as such, there’s a number of accounts in several people’s names. It was several in Mr. Wright’s name and I explained that we had to do something in order to get them combined, where they wouldn’t be as readily examined or audited.
“In order to explain this in detail, where it would sound sensible, you would have to know a little bit about computers and about the way the operation worked. Any time a loan was made you had printouts in the original home office and the home office. And any payments that was made or loans that were made, they had tapes just like we had in the branch. If they noticed, if they happened to be looking for or if they noticed more than one or two transactions to any one individual, they could easily check and see what the amounts of the other loans were or was. And also if they exceeded my credit limit. So, — (interrupted)
“Q. What was your credit limit at that time?
“A. Ten thousand dollars.
“Q. Okay, sir. Continue.
“A. I explained if we didn’t get them combined that sooner or later the auditors were going to come in and discover where I had been lending money to him. Of course, some of it was lent to him strictly for personal reasons. And then some of it was lent to him that I had lost, that I was to pay back myself.
“Once they discovered this, of course, I knew, it was my job, possibly my family and possibly any future I might have had at that time. And I also knew and he knew that it would get him in trouble at the same time.
“Due to me owing him money, him owing the company money, Burgess owing the company money, he owing Burgess money, and Burgess owing him money, it was just like a — it was one reason it was very hard to keep up with every transaction. “But I explained at this time that in order to get enough or a greater enough amount of money to do any good, to combine several of these loans, it would have to be on real estate. I knew that eventually I would have to get approval on it, from Nashville, Tennessee which is the original home office at that time. “I explained that it would have to be on property and that they should buy or try to find as cheap a property as possible, unimproved property, acreage. And to buy it at a cheap enough price where we could pay part of it, in order to pay part of it first of all to get title of it. And then the way the rest of it would go to combine accounts that was already in their names.
“After explaining all this it was decided on at that time, that they would try to find some property in order for us to do this.
“Q. Why did you explain to them that they needed to find some real estate property?
“A. Because I knew by making a loan of that size that I had to get approval on it and I knew that in getting that type of approval, even with lying, and inflating the value of it, and saying anything I could possibly say, that it had to be on real estate.”

Brock testified that appellant and Jimmy Burgess later reported that they had located a suitable forty-acre tract of property in Elmore County for $20,000. Appellant’s one-half of this tract was twenty acres and its purchase price was $10,000. This twenty-acre tract was to be used as collateral for the $43,000 loan to appellant. Brock explained to appellant and Jimmy Burgess that there was no way he could show a $10,000 or $20,000 purchase price for a $43,-000 loan. To comply with the percentages Associates Financial Services would allow for a loan on unimproved real estate, Brock said that it was necessary to state an appraised value of $66,000 on the loan documents for the twenty acres to make a $43,-000 loan. The necessary false representations and falsified documents were made at Brock’s direction. Appellant was completely aware of these procedures. Brock stressed the importance of getting as many of appellant’s prior loans combined as possible and of paying them off out of the $43,000 transaction. “[W]e knew that we had to get the ones together that would come nearer hiding the number of loans that was made.”

Brock testified that he was familiar with the loans, the amounts on the checks and the number of accounts involved in the $43,000 loan transaction. Brock stated that the $43,000 figure:

“[W]as the most money that I felt that we could possibly get by with making. And the very most that we could show a loan for in order to combine the accounts and not be called or questioned.”

Brock next testified that four checks, State Exhibits 3-6, were issued from the $43,000 transaction and were made payable as follows:

“This first one is a check to James C. Wright and Mary Wright and Tidmore-Adams Realty, for $10,000. It was the check that went to the purchase of the property.
“The next check was $27,834.43 made to James C. Wright and Mary Wright. And it was the check that was made to them in order to combine five different accounts and make payments on two or three.
“The next one is in the amount of $5,795.55, made to James C. Wright and Mary Wright and Associates Financial Services Company of Alabama, Inc. And that’s was just another one of their accounts that was paid off by the loan.
“The next cheek is to James C. Wright and Mary Wright for $192.12. And the best I recall it was for insurance.... ”

Brock testified that misrepresentations were made on all of appellant’s loan documents, including those on which he (Brock) was to make the payments, as well as on those which were personal loans to appellant. The misrepresentations were fully discussed with appellant. Brock concluded his direct examination by admitting that he had pleaded guilty to embezzlement from Associates Financial Services.

John D. Boyd, senior vice-president of Associates Financial Services, testified that he came to Montgomery from Dallas, Texas on October 31,1978 to investigate a number of multiple accounts at the Madison Avenue branch. Boyd stated that his audit of that branch revealed forgeries, misrepresentations, fictitious loans, multiple loans, loans made to fictitious corporations and other irregular financial transactions that “ran the entire gamut.” As part of his audit procedures Boyd stated that:

“[W]e contacted by telephone or in person those accounts with balances in excess of $2,000, again concentrating on those customers that had more than one account and that procedure would involve contacting the customer, verifying that the customer did exist and that collateral, if any as described on the account did exist. That the customer acknowledged the obligation and that the balance was in agreement with our records. That the customer in acknowledging the obligation agreed to make the payments to continue the liquidation of the account.”

During this investigation Boyd discovered five accounts in appellant’s name totaling approximately $91,000, one account in appellant’s wife’s name with a balance of $4,000 and one account in his son’s name with a balance of $11,000. Mr. Boyd stated that none of these loans had been paid out any earlier than two years from October of 1978, but that he knew appellant had had accounts with Associates Financial Services prior to that time.

Boyd testified that he was familiar with the $43,000 real estate loan taken out by appellant and his wife on March 6, 1978. He identified State Exhibits 1A-1M which related to the $43,000 loan. These exhibits included the loan application, the appraisal on the twenty acres in Elmore County which showed a purchase price of $60,000, the mortgage and note on the twenty acres, the credit approval for the loan, the title insurance on the property, the disbursement record for the $43,000, and certain other documents signed by appellant and his wife which related to the $43,000 loan. Boyd stated that according to the disbursement record, State Exhibit 1G, $27,834.43 went to appellant and his wife, $5,795.55 went to Associates Financial Services, $192.12 went to appellant and his wife and $10,000 went to Tidmore-Adams Realty.

Boyd next identified State Exhibits 3-6 and verified that these exhibits were the checks issued on the account of Associates Financial Services and signed by Macon Brock and Richard Thornton. These four checks totaled the proceeds from the $43,-900 loan transaction. Each of the four checks was made payable to, was endorsed by appellant and his wife, or appellant, his wife and a third party. Boyd determined from Associates Financial Services’ transaction journal for March 7 and 8, 1978 that the proceeds from two of the four checks, the one for $27,834.43 made payable to appellant and his wife, and the one for $5,795.55 made payable to appellant, his wife and Associates Financial Services, were used by appellant to pay off prior accounts he had with Associates Financial Services, an account in the name of James Burgess and an account in the name of Joe Hood. Boyd explained that the proceeds from the checks were disbursed in accordance with appellant’s directions.

“We put it on there at the direction of the customer. The customer tells us where the funds are to be applied. We don’t just take an arbitrary amount from a customer and apply it where we want to apply it. We apply it where the customer says it should be applied.”

Boyd testified that he had a conversation with appellant concerning these loans on November 9, 1978. During the conversation appellant informed Boyd that he was a “bookie” and confirmed the existence of the accounts in question. .

Boyd further maintained that as far as Associates Financial Services was concerned appellant still owed them money.

“We have charged off over $100,000 on this man.... I’d accept a $100,000 from them today and write them a receipt and say that’s paid in full, good luck.”

Boyd explained that it was the policy of Associates Financial Services to limit loans on unimproved real estate to 50% of the property’s appraised value, but with regional or divisional approval a loan could go as high as 70-80% of the property’s appraised value. Boyd stated that the appraised value that was represented on the $43,000 loan for the twenty acres was $65,000. He further stated that it would not have been proper policy to loan $43,000 on collateral worth $10,000.

Bill Adams, a real estate broker with Tidmore-Adams Realtors, testified that he helped appellant and Jimmy Burgess locate the acreage in Elmore County in February, 1978. Adams stated that the purchase price for appellant’s twenty acres was $10,000. The asking price had been $550 per acre. He verified that the legal description for the property was the same as the description listed on the $43,000 loan transaction.

Phillip Fisher, a real estate appraiser with Paul Corwin Agency, testified that the twenty acres purchased by appellant would have had a fair market value between $10,-000 and $12,000 on the date of purchase. When asked if the property could have been worth $65,000, Fisher responded, “I see no way that it could be anything close to that. That would be a grossly high figure. It’s just not worth it.”

Mrs. Margie Poole testified that she had been employed with Associates Financial Services under the supervision of Brock. At Brock’s direction, she filled out appellant’s loan applications. Mrs. Poole stated that appellant came into the office several times a week to see Brock and that, to her knowledge, the normal policy procedures were not followed in the loans made to appellant. For the $43,000 loan Mrs. Poo.le was directed to use the information on appellant’s prior loan applications with Associates Financial Services. She stated, “That was not company procedure at all.”

Richard Thom testified that he had previously been employed with Associates Financial Services and was familiar with Brock’s loan transactions with appellant. Thorn stated that he drew up various loan documents, including the $43,000 loan transaction, for appellant at Brock’s directions.

From these facts we find that the State’s evidence was sufficient to support appellant’s conviction for receiving embezzled property beyond any reasonable doubt. The applicable statute for this offense, Ala. Code § 13-3-38 (1975) reads as follows:

“Any person who buys or receives property knowing that it has been embezzled, fraudulently converted or fraudulently secreted with intent to prevent the recovery thereof or to defraud the rightful owner shall be punished, on conviction, as if he had stolen it.
“An offender may be tried and convicted under this section although the person who embezzled the property has not been tried and convicted.”

Appellant argues correctly that for a conviction of receiving embezzled property it must be shown that the property received was, in fact, embezzled. See Canellos v. State, 17 Ala.App. 278, 84 So. 396 (1919). There can be no question in this case that Macon Brock embezzled property from Associates Financial Services in violation of Ala.Code § 13-3-20 (1975). It was through Brock’s fiduciary relationship as a branch manager with Associates Financial Services that the money was embezzled, or fraudulently converted or secreted, to his own use or the use of appellant and others. From Brock’s own testimony it affirmatively appears that he acted intentionally.

Appellant does not challenge the fact that an embezzlement occurred. Instead, he contends that his intimacy with the entire embezzlement scheme indicated that he was an accomplice to the crime of embezzlement and could not, therefore, be a “receiver” of embezzled property. In our opinion, whether appellant was an accomplice to the offense of embezzlement or whether he committed the offense of receiving embezzled property in violation of Section 13-3-38 presented a question of fact for the jury which they resolved. See Thomas v. State, 389 So.2d 552 (Ala.Cr.App.1980).

The trial court correctly charged the jury that if they found appellant guilty of embezzlement, they could not find him guilty of receiving embezzled property, and conversely, that if they found appellant guilty of receiving, they could not find him guilty of the actual embezzlement. The jury decided appellant was guilty of receiving embezzled property. Certainly, the facts support their conclusion. Every material ingredient for the offense was proved beyond any reasonable doubt. Canellos, supra. Clearly, appellant knew that the checks he received, which represented the proceeds from the fraudulent $43,000 loan transaction, had been embezzled. Despite his contention to the contrary, we find that appellant’s receipt of the checks was sufficient to constitute receiving embezzled property. Each of the four checks issued in connection with the $43,000 loan transaction required appellant’s endorsement, and it cannot be said that he did not have control and dominion over the embezzled property. By receipt of the checks appellant was able to purchase twenty acres of property, pay off the debt he owed to Jimmy Burgess, pay off the account taken out in Joe Hood’s name, pay off certain of his “personal” loans with Associates Financial Services and make payments on still other loans with that company. It does not matter that none of the money went directly into appellant’s pocket. It is obvious that Associates Financial Services was defrauded by this action.

Thus, the State not only proved that the property appellant received had been embezzled, but it also proved the additional elements necessary for receiving embezzled property which are set out in Canellos, supra: * :

“It must also be shown by the evidence beyond a reasonable doubt that the defendant at the time knew that the goods had been so embezzled and had the intent to prevent the recovery thereof, or to defraud the rightful owner... . ” 84 So. at 398.

In Thomas, supra, the defendant could have been found guilty under evidence of either larceny or buying, receiving, or concealing stolen property. This court wrote the following:

“Where the evidence affords a reasonable inference that the offense for which one is charged has been committed, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).” 389 So.2d, at 556.

The-jury was properly charged in this case and we find no error.

Furthermore, we find that as a matter of law, appellant was not convicted on the uncorroborated testimony of an accomplice. Just as the receiver of stolen property is not, as a matter of law, an accomplice to the thief, Childs v. State, 43 Ala.App. 529, 194 So.2d 861 (1966), cert. denied, 280 Ala. 711, 194 So.2d 864 (1967), neither is one who receives embezzled property an accomplice to the embezzler. Even assuming that Macon Brock was an accomplice to appellant, we find that his testimony was sufficiently corroborated. Yarber v. State, 375 So.2d 1229 (Ala.1978); Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978).

Moreover, we do not find that appellant has received criminal sanctions in this cause for the nonperformance of his obligations under a contract, i.e. his failure to pay back the $43,000 loan. That body of law which condemns the use of criminal sanctions to enforce the collection of civil debts does not apply here. While appellant may, in fact, still be obligated from a contractual standpoint to repay the $43,000, as well as other monies, to Associates Financial Services, this prosecution did not arise out of the fact appellant owed money; rather, it arose because appellant had received embezzled property in violation of Ala.Code § 13-3-38 (1975). The crime in this case is predicated upon appellant’s “tortious act” of receiving embezzled property, not upon his failure to perform under a contract. See Davis v. State, 237 Ala. 143, 185 So. 774 (1938).

Ill

In response to a pretrial motion by appellant, the trial court entered an order requiring the State to produce “any documents ... which are clearly exculpatory as to defendant.” On the first day of trial, a Monday, appellant learned that there were two documents in the possession of the State which he had not seen. The documents belonged to Associates Financial Services and related to accounts listed in the names of Jimmy Burgess and Joe Hood and paid off out of appellant’s $43,000 loan transaction.

Defense counsel had been to the district attorney’s office the previous Thursday and had been given all the documents then in the possession of the prosecution. According to one of the assistant district attorneys prosecuting the case:

“I had Mr. Whitesell, Mr. Riggs and Mr. Shinbaum come to my office and gave them my whole box, Your Honor, of all the records I had. I didn’t know whether or not they had received any records from Associates or not. I told them, here’s what I had in order comply with the Court’s order.”

The prosecution did not come into possession of the two additional documents until 5:00 P.M. on Friday afternoon. The prosecution admitted that it had not called defense counsel over the weekend, but stated that any failure to comply with the court order to produce was unintentional.

After further discussion the trial court ordered that the two documents be produced for the inspection of defense counsel. The trial was then continued until 10:00 A.M. the next morning. No further motions were made by the defense on this matter when the second day of trial began.

Appellant maintains that the two documents were exculpatory in nature and that the State’s failure to produce them before trial was violative of the trial court’s order. We find no error in the trial court’s decision in this matter.

A close examination of the record reveals that at the time it became apparent that the two documents had not been handed over, defense counsel simply requested the following:

“We want these files produced for our inspection and time to inspect them before cross-examination of this witness and any witness concerning this case.”

The trial court saw that this was done. Defense counsel further stated:

“I really don’t, personally don’t want a mistrial. I want to go ahead and try the lawsuit but I’m charged under oath with the duty to represent my client and my client said I’d have to ask for one.”

The grant or denial of a mistrial is a matter within the sound discretion of the trial court which will only be disturbed upon a showing of manifest abuse. Durden v. State, 394 So.2d 967 (Ala.Cr.App.1980), writ quashed, 394 So.2d 977 (Ala.1981). We find no such abuse here. As this court stated in Jones v. State, 396 So.2d 140, 142 (Ala.Cr.App.1981), an opinion authored by Judge Clark:

“Although suppression of evidence to which a defendant is entitled in a criminal case may constitute a violation of the due process clause of the Fifth Amendment as amplified in coverage by the Fourteenth Amendment to the Constitution of the United States irrespective of whether the suppression has been intentional, the evidence must have a material bearing upon the question of the guilt or innocence of the defendant, which would exclude evidence that tends merely to cause defendant to over extend himself tactically....
“The protection of the due process clause is primarily in the field of exculpatory rather than inculpatory evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).”

While the absence of the two documents may have given defense counsel the impression that the prosecution had made a “mathematical error” in their computation of the proceeds which were disbursed out of the fraudulent $43,000 loan, we do not believe that these two documents were exculpatory or consistent with appellant’s innocence. If anything, the documents tend to show the series of loose ends appellant was attempting to tie by receiving embezzled property.

IV

It was not error for the State to refer to appellant as a “bookie” during its case in chief and during closing argument. The entire record is replete with evidence of gambling activities. Many references to appellant as a “bookie” or “bookmaker” came through the testimony of witnesses and remarks by the prosecution were not made out of context.

Appellant’s gambling activities led to the offense, see Kelley v. State, 409 So.2d 909 (Ala.Cr.App.1981), cert. denied, (Ala.1982), and evidence that he was a “bookie” or “bookmaker” was admissible to show his motive for receiving embezzled property. A prosecutor as well as defense counsel had the right to present his impression from the evidence. He may argue every legitimate inference from the evidence and may examine, collate, sift, and treat the evidence in his own way. See Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. denied, 398 So.2d 332 (Ala.1981) and authorities cited therein.

We have examined each issue raised by appellant and find no error. Therefore, the judgment of conviction by the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.

      . The trial court made reference to this in its oral charge. There is nothing in this record which demonstrates what witnesses testified at the July Term of the Montgomery County Grand Jury or whether that grand jury returned a true bill or a no bill against appellant.

      . For the elements which must coexist to support a conviction for embezzlement under Ala. Code § 13-3-20 (1975), see Pullam v. State, 78 Ala. 31 (1884).

      . Ala.Code § 13-3-39 (1975) provides:
      “In an indictment for embezzlement or other offense under this article, it is sufficient to describe the property in general terms, as ‘money,’ ‘bank notes,’ ‘checks,’ ‘bills of exchange,’ or other evidence of debt, of or about a certain amount.”

      . See Harris v. State, 378 So.2d 257 (Ala.Cr.App.) cert. denied, 378 So.2d 263 (Ala.1979).