author: TYSON, Judge.

text:
    Wayne Cameron HURST v. STATE.
    6 Div. 260.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      William N. Clark, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Appellant was indicted for the unlawful killing of Clyde Ottis Alverson, III by shooting him with a shotgun. A jury found appellant guilty of first degree manslaughter and fixed his punishment at ten years in the State penitentiary. After sentence was imposed appellant gave notice of appeal.

The State’s evidence was sufficient to prove appellant’s guilt beyond any reasonable doubt. Appellant’s sole contention in defense, that the shooting was accidental, was rejected by the jury. It is not the function of this Court to reweigh the evidence, but to review the evidence presented in the light most favorable to the State. Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975).

Briefly, the State’s evidence revealed that shortly after midnight on March 24, 1979 appellant, appellant’s girlfriend, C. J. Guy and Jeff Morris drove to Alverson’s apartment in Gardendale. James Carl Johnson, a friend of the deceased, opened the door and saw appellant, Guy and Morris “standing one right next to the other, side by side.” (R.p. 32) Johnson saw appellant with a shotgun “pointed in towards the door at me ¿nd Mr. Alverson.” (R.p. 34) Appellant had “his left hand up under the breach, up under the barrel, and had his other hand back by the trigger.” (R.p. 33) Johnson testified that he and Alverson were unarmed and that neither of the three visitors nor the deceased said anything. Johnson said he “sorta sidesteped (sic) and said hey, you’ve got to be kidding. ... Right after I said that he just pulled the trigger.” (R.p. 33, 34) An autopsy revealed that Al-verson’s death resulted from shock and hemorrhage due to a shotgun wound to the chest.

Guy and his girlfriend, Anna Humphries, had been at Alverson’s apartment earlier, on the afternoon of March 23, and an argument had ensued between Guy and Alver-son. Johnson stated that “they were fixing to fight,” but that Guy had left after he (Johnson) told him it would be “the best thing for him to do.” (R.p. 24)

According to appellant’s confession, Guy was incensed after his first visit to Alver-son’s apartment and had said “I’ve got to straighten this out tonight.” (R.p. 87) Appellant stated that Guy went to his house and got a shotgun and a motorcycle chain. Appellant, appellant’s girlfriend, Guy and Morris then “proceeded” to Alverson’s apartment and, upon arriving, appellant got the shotgun out of the trunk and “was just walking up there because I didn’t know nothing about these people. . .. [Guy] said they were pretty vicious.” (R.p. 88, 90) Appellant contended he “was trying to wave him (deceased) back with the shotgun. Lord knows how the gun went off ... because I, to my knowledge, did not have my hand on the trigger.” (R.p. 88)

Appellant and his companions left the scene because they “didn’t know what to do;” but, within four minutes of the police arrival at 12:23 a. m., appellant returned to the scene and made spontaneous exclamations to the officers that “he was the guy that had shot him”, that “it had been an accident.” (R.p. 88, 132) Appellant’s girlfriend made similar statements.

I.

Based on the foregoing facts, the jury verdict of first degree manslaughter is well supported. Wiggins v. State, 354 So.2d 340 (Ala.Cr.App.1978); Eddy v. State, 352 So.2d 1161 (Ala.Cr.App.1977); Ala.Code § 13-1-90 (1975).

II.

The trial court committed no error in admitting State’s exhibits 1, 2 and 3, which were photographs made of the deceased at the scene. As a general rule, photographs are admissible in evidence if they tend to 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. Chunn v. State, 339 So.2d 1100 (Ala.Cr.App.1976). The fact that a photograph is gruesome is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury. Richards v. State, 337 So.2d 171 (Ala.Cr.App.), cert. denied, 337 So.2d 173 (Ala.1976): And the fact that photographic evidence is merely cumulative of detailed oral testimony does not affect its admissibility. Farris v. State, 57 Ala.App. 390, 328 So.2d 640 (1976). The admission of cumulative evidence, even upon an undisputed fact, is not prejudicial error. Robinson v. State, 342 So.2d 1331 (Ala.Cr.App.1977).

For the same reasons, a photograph of the motorcycle chain found outside Alverson’s apartment and the chain itself were properly admitted. Any fact which has a causal connection or a logical relation to another fact, so as to make the other fact either more or less probable, is competent or relevant. Stokes v. State, 373 So.2d 1211 (Ala.Cr.App.), cert. denied, 373 So.2d 1218 (Ala.1979). Appellant’s confession contained evidence that a motorcycle chain, along with the shotgun and a “stick,” was carried to the deceased’s apartment. The admission of evidence which is merely cumulative of an admitted fact is, at most, error without injury to the accused. Senn v. State, 35 Ala.App. 62, 43 So.2d 540 (1949).

III.

During the cross-examination of State witness James Carl Johnson the trial court sustained an objection by the State to the following question:

“Q During the whole time that you lived there were you at any time you were there not under the influence of either alcohol or marijuana?” (R.p. 45)

The trial court also sustained an objection by the State to the defense introducing evidence that the deceased had a tattoo of a marijuana leaf with the words “Canabis Sativa” on his right arm.

Clearly, the trial court acted within its discretion in disallowing this evidence. Neither an answer to the question propounded to Johnson, nor evidence that the deceased had a tattoo on his right arm would have had any bearing on the case. Johnson had already testified to drinking two or three beers and smoking two marijuana cigarettes during the day prior to the deceased’s death. Defense counsel was permitted to cross-examine Johnson at length concerning his consumption of alcohol and marijuana on the date in question. As to the “identifying” (R.p. 74) tattoo on the deceased’s right arm, the deceased, in preceding evidence, had been identified repeatedly as the victim of the crime. To have admitted evidence that he had a tattoo could have in no wise enlightened the jury as to any material aspect in the case. The attempted proffer by appellant in both instances would only have served to confuse the issues. The trial court’s exclusion of this evidence was, therefore, proper.

It is the court’s duty to confine the evidence to the points in issue in order that the attention of the jury may not be distracted, or that their minds may not be withdrawn from the main issue and directed to matters which are foreign or of questionable or doubtful relevancy. Gulley v. State, 342 So.2d 1362, 1365 (Ala.Cr.App.1977).

IV.

Dr. Ronald L. Rivers testified that he observed “a blood stained white short-sleeved crew neck T-shirt with a defect in the top front . .. consistent with a shotgun wound to the chest in that same area” during the course of the deceased’s autopsy. (R.p. 67) Deputy Coroner C. C. Robey assisted Dr. Rivers in performing the autopsy. (R.p. 71) Lawden Yates, a Firearm and Tool Mark Examiner with the Department of Forensic Sciences, testified that in connection with his participation in the case he received a T-shirt “from Mr. C. C. Robey of the Jefferson County Coroner’s Office.” (R.p. 119) He also received the shotgun used in the killing from Officer Wallace Campbell of the Gardendale Police Department. Mr. Yates was duly qualified as an expert witness with regard to determining “relative distances from the muzzle to the impact point of a shotgun blast.” (R.p. 119) Based upon his experience and training, and upon examination of the shotgun and the T-shirt, Mr. Yates testified, over objection, that, in his opinion, the distance between the muzzle of the shotgun and the impact point of the T-shirt was two to ten feet.

We find no error in the reception of this evidence. If a State witness is shown to be an expert in the use of firearms, it is permissible to allow him to express an opinion as to the distance between the deceased and the barrel of gun held by the defendant at the time the fatal shot was fired. Straughn v. State, 270 Ala. 229, 121 So.2d 883 (1960). In any event, the reception of this evidence could not have harmed appellant. Dr. Rivers had previously testified that the fatal shot was not a contact wound, and eyewitness Johnson had testified that appellant was approximately five feet from the doorway at the time the shot was fired. Mr. Yates’ opinion was in all respects consistent with their testimony. Furthermore, appellant freely admitted that he shot the deceased. ARAP, Rule 45.

V.

During closing argument by defense counsel the following exchange occurred:

“MR. CLARK (Defense counsel): I submit to you that no one is sorrier that that occurred than Wayne Hurst.
MR. MAHON (Deputy District Attorney): I object. I object to that. It’s illegal evidence and I ask the jury not to consider that.
THE COURT: The jury is not to consider that. Go ahead.” (R.p. 139)

Appellant contends that the trial court’s ruling may have left the jury with the impression that he was not sorry and that his acts were intentional rather than accidental. There is no merit to this argument.

In a criminal prosecution the trial judge has broad discretion in controlling closing argument. Elston v. State, 56 Ala.App. 299, 321 So.2d 264 (1975); Smith v. City of Birmingham, 36 Ala.App. 72, 52 So.2d 394 (1951). Each case must be determined on its own peculiar facts, leaving much discretion to the trial judge, who as a rule, can best determine when discussion by counsel is legitimate and when it degenerates into abuse. Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958). After considering all the facts and circumstances of the instant case we cannot say, as a matter of law, that the trial court abused its discretion in so limiting appellant’s closing argument.

VI.

We have carefully reviewed the trial court’s oral charge and supplemental instructions to the jury, and find that the court’s use of the word “accidentally” in defining second degree manslaughter was correct. Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973).

VII.

The trial court refused appellant’s requested charge number 10 which reads as follows (R. 189):

“The Court instructs the jury that a person charged with a felony should not be convicted, unless the evidence excludes to a moral certainty every reasonable hypothesis but that of his guilt; no matter how strong the circumstances are they do not come up to the full measure of proof which the law requires if they can be reasonably reconciled with the theory that the Defendant is innocent. Therefore, the Court further instructs the jury that if after considering the evidence in this case unless you are convinced beyond a reasonable doubt that the evidence excludes to a moral certainty every reasonable hypothesis but that of the guilt of Wayne Cameron Hurst then you should return a verdict of not guilty.”

The majority of the State’s case was derived from direct evidence. Since very little of the State’s case was derived from circumstantial evidence the refusal of this charge was harmless. Harris v. State, 46 Ala.App. 497, 243 So.2d 770 (1970); Johnson v. State, 42 Ala.App. 511, 169 So.2d 773 (1964).

We have examined each issue raised by appellant. In addition, we have searched the entire record for errors prejudicial to appellant’s substantial rights and have found none. The Circuit Court’s judgment of conviction is, therefore, due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TORBERT, Chief Justice.

license: Public Domain

text:
    Ex parte Wayne Cameron HURST. (Re: Wayne Cameron Hurst v. State of Alabama).
    80-359.
    Supreme Court of Alabama.
    April 24, 1981.
   TORBERT, Chief Justice.

WRIT DENIED — NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Darwin Hoyet McALPIN, alias v. STATE.
    6 Div. 281.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    E. Calhoun Wilson, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction of robbery and a sentence to imprisonment for fifty years.

There was undisputed evidence that about 3:15 A.M. on January 25, 1979, the defendant robbed the night auditor of Ramada Inn in Tuscaloosa of approximately $3200 by threatening her with a pistol, tying her hands behind her back and her ankles together. No evidence was offered by defendant on the trial.

The first of the only two issues raised by appellant is thus stated in his brief:

“Whether the defendant was entitled to a dismissal of the case against him based on his motion for speedy trial filed under the provisions of Sections 15-9-82 et seq., Code of Alabama (1975, as amended), and the failure of the State to try the ease within ninety days of the date of the filing of the notice.”

We are not enlightened by the parties as to their respective views as to any direct or analagous application of the cited sections of the Code to the instant case, in which defendant at the time of the indictment against him was confined in the Marengo County Jail on an unrelated charge and continued to be in custody of prison authorities of Alabama until the instant case was tried; the sections of the Code cited by appellant are part of a codification of the Alabama Uniform Mandatory Disposition of Detainers Act (Acts 1978, No. 590, p. 693). Said Act, as its name implies and its contents show, relates exclusively to problems pertaining to interstate extradition. Without any comment from either party as to the relevancy of the cited statutory law, we refrain from any further discussion of it. As to whether defendant was denied his right to a speedy trial, we accept the following “ORDER” of the trial court:

“1. Defendant was indicted herein on October 26, 1979, on a charge of Robbery.
“2. On October 25, 1979, Defendant prepared a ‘Request to Proceed in Forma Pauperis’ and ‘Motion for Fair & Speedy Trail [sic],’ which was mailed by First Class Mail to the District Court of Tuscaloosa County, Alabama, from the Maren-go County Jail on or about November 1, 1979, and filed in the Circuit Clerk’s office on November 6, 1979.
“3. On November 5, 1979, the Sheriff of Tuscaloosa County, Alabama, was ordered by this Court to transport the Defendant from the Blount County Jail to the Tuscaloosa County Jail for his arraignment herein scheduled for November 14, 1979.
“4. Defendant was arraigned on November 14, 1979, in the Circuit Court of Tuscaloosa County, Alabama. There is no evidence that the Motion for Speedy Trial was called to the attention of the Judge presiding at the arraignment.
“5. This case was called for trial on the dockets of December 11, 1979, and January 29,1980, and was announced ‘for settlement’ on both occasions.
“6. Defense counsel stipulates that he had no knowledge of the Motion for Speedy Trial prior to a few days prior to this hearing, and no evidence appears that the Motion for Speedy Trial was called to the attention of the District Attorney’s Office prior to Defense Counsel calling said Motion to the attention of the District Attorney other than Defendant’s representation and testimony that he mailed a copy to that office by Registered or Certified Mail. No receipt was produced, and Defense Counsel informs the Court that he has made a diligent effort to obtain such a receipt and has found none.
“Thereupon this Court finds that this case was called for trial at the earliest opportunity after Defense Counsel informed the District Attorney of the Motion for Speedy Trial. The Court further finds that the Defendant has not complied with the requirements of §§ 15-9-82, et seq., Code of Alabama (1975, as amended). The Court further finds no violation of the Defendant’s right, statutory or constitutional, to a speedy trial.”

The trial court was not in error in not granting defendant’s motion for a “dismissal of the case against him based on his motion for a speedy trial.”

The other issue raised by appellant is stated in his brief as follows:

“Whether the trial court should have ordered a new trial based on testimony that the prosecuting witness was shown only pictures of the defendant, from which photographs she identified him.”

We do not find in the record or in the transcript of the proceedings any motion for a new trial. In the absence of such a motion “filed within 30 days from entry of judgment” as required by Code of Alabama 1975, § 15-17-5, no action or inaction of the trial court is before us for review. However, we should mention that the “prosecuting witness” made a definite in-court identification of defendant.

Our review of the record convinces us that there is no error therein prejudicial to defendant. The judgment of the trial court should.be affirmed.

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

AFFIRMED.

All the Judges concur.


author: ADAMS, Justice.

text:
    Ex parte Darwin Hoyet McALPIN. (Re: Darwin Hoyet McAlpin, alias v. State of Alabama).
    80-346.
    Supreme Court of Alabama.
    May 1, 1981. .
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: DeCARLO, Judge.

text:
    Johnny HOLLEY, Jr. v. STATE.
    6 Div. 312.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      Joel L. Sogol, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Johnny Holley, Jr., was convicted by a jury in Tuscaloosa County for robbery in the first degree and later was sentenced to life without parole when the Alabama Habitual Felony Offender Act was invoked upon a showing of seven prior felony convictions.

Johnny Holley, Jr. was identified by witnesses as the man they saw on Sunday, January 13,1980, outside the Chapel A.M.E. Zion Church in Tuscaloosa County, carrying a box of tools away from a truck belonging to Baylock Sledge. No one saw him break into the truck, and when Holley was accosted he stated that he had bought the tool box. When Sledge and others pursued the appellant, Holley set the box down, pulled a knife and moved toward Sledge. As Sledge and the others drew near, Holley warned, “Don’t come up on me or I’ll cut the hell out of you.” He started to “wave” the knife, but then turned and ran away. The next day the appellant was arrested after being chased into a wooded area.

After the State completed its case, the appellant made a motion to exclude the State’s evidence because the State had failed to make out a prima facie case. The motion was denied and the appellant rested his case without presenting any evidence.

Subsequently, the jury returned a guilty verdict and the court adjudged the appellant guilty in accordance with the jury’s verdict. Afterwards, the State requested a sentencing hearing so that evidence could be presented as to the accused’s record.

A sentencing hearing was held after the appellant had been given reasonable notice. At the hearing, the appellant was represented by counsel and no objection was made to the sentencing hearing, nor was there a motion for a continuance.

During the sentencing hearing the State produced certified copies of judgment entries of seven prior felony' convictions. Also, the State offered testimony of a police officer who had known the appellant for ten years and testified concerning his knowledge of two grand larcenies and one burglary in which the appellant had been involved.

The appellant did not produce any witnesses during the sentencing hearing, but his attorney did take advantage of the opportunity to cross-examine one of the two State witnesses.

At the completion of the sentencing hearing and arguments by the parties, the trial court found that the appellant, after having been previously convicted of seven felonies in Alabama, committed the offense of robbery in the first degree. The court therefore sentenced the appellant to imprisonment for life without parole, pursuant to § 13A-5-9(c)(3), Code of Alabama 1975.

I

The appellant contends that the Alabama Habitual Felony Offender Act, § 13A-5-9(c)(3), Code of Alabama 1975, is unconstitutional as applied to him.

First, he argues that the statute is constitutionally impermissible because the prior felony convictions charged to him were not alleged in the indictment. In support of this contention, he cites Funches v. State, 56 Ala.App. 22, 318 So.2d 762, and Wilson v. State, Ala.Cr.App., 371 So.2d 932.

Funches v. State, supra, involved a trial for possession of heroin after having been previously convicted of a controlled substance offense. The offense in Funches, involving T. 22, § 258(53), (a)(b), Code of Alabama 1940, Recompiled 1958, which provided for the enhancement of punishment upon conviction of a second or subsequent offense relating to narcotic drugs, required the allegation and proof of a prior narcotics conviction.

Wilson v. State, supra, involved a capital murder offense which required by statute an allegation of the prior murder conviction in the indictment.

In our judgment, the foregoing cases are clearly distinguishable and not applicable to the facts or the law in the case at bar.

The United States Supreme Court, in Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917, addressed the issue of the constitutionality of the habitual offender act in West Virginia. In particular, the court discussed the question whether an accused was denied due process of law where the information charging him with prior convictions was not alleged in the indictment. There the Supreme Court said:

“[I]t cannot be contended that in proceeding by information instead of by indictment, there is any violation of the requirement of due process of law.
“Although the state may properly provide for the allegation of the former conviction in the indictment, for a finding by the jury on this point in connection with its verdict as to guilt, and thereupon for the imposition of the full sentence prescribed, there is no constitutional mandate which requires the state to adopt this course even where the former conviction is known. It may be a convenient practice, but it is not obligatory.” (Emphasis added.)

In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446, the United States Supreme Court stated:

“[T]he determination of whether one is an habitual criminal is ‘essentially independent’ of the determination of guilt on the underlying substantive offense.... ‘it is a distinct issue, and it may appropriately be the subject of separate determination.’. . . . [D]ue process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding.”

Therefore, “advance notice” of the State’s intention to proceed against Holley as a recidivist prior to his trial for the “substantive offense” which triggers the operation of the Alabama Habitual Felony Offender Act, supra, was not required. The Supreme Court in Oyler v. Boyles, supra, held that, although due process does not require notice prior to trial on the “substantive offense,” a defendant must have “reasonable notice”, and an opportunity to be heard relative to the recidivist charge, and the assistance of counsel.

The Alabama Habitual Felony Offender Act provides for those requirements as laid down in Oyler v. Boyles, supra. Section 13A-5-10(a), provides that procedures be established by the court. Section 13A-5-10(a) reads:

“The court may conduct a hearing upon the issue of whether a defendant is a repeat or habitual offender under section 13A-5-9, according to procedures established by rule of court.”

The Supreme Court of Alabama, on February 8, 1980, promulgated “temporary rules” entitled “Alabama Rules of Criminal Procedure-Temporary Rules.” Those rules became effective on February 23, 1980, and in pertinent part, appear as Rule 6(b)(3)(i), (ii), (iii).

“(3) Habitual Felony Offenders.
“(i) In any case involving an alleged habitual felony offender as provided in Act 607, § 1235, Acts of Alabama 1977, p. 812, as amended by Act 79-471, Acts of Alabama 1979, p. 862, and as amended by Act 79-664, Acts of Alabama 1979, p. 1163 (§ 13A-5-9, Alabama Criminal Code, as amended), after a determination of guilt, the court on its own motion, or on a motion of the district attorney or other prosecutor, or on motion of the defendant, shall hold a hearing at a date to be set by'the court, if such hearing is necessary in order to establish the alleged prior conviction or convictions in the record,
“(ii) At a reasonable time prior to the hearing the defendant shall be given notice of the prior conviction or convictions upon which the State intends to proceed,
“(iii) At the hearing the burden of proof shall be on the State to show that the defendant has been convicted of a previous felony or previous felonies. Disputed facts shall be determined by the court by a preponderance of the evidence. Evidence may be presented by both the State and the defendant as to any matter the court deems relevant to the application of the law. The State or the court may examine the defendant under oath at the hearing as to relevant matters. If at the hearing the defendant disputes any conviction presented by the State, the court may allow the State to present additional evidence of the disputed conviction, either by way of rebuttal or at a future time to be set by the court.”

The record reflects that after the jury returned its verdict, the State informed the court that it was requesting a sentencing hearing so that it could present evidence as to the appellant’s record. Also, the record reflects that pursuant to Rule 6(b)(3)(h), of the Alabama Rules of Criminal Procedure Temporary Rules, the State gave written notice after the appellant’s trial and prior to the sentencing hearing. Further, the record indicates that a sentencing hearing was held on April 11, approximately two days after the jury had found the appellant guilty on the “substantive offense.”

Therefore, it is our judgment that allegations of prior felony convictions in an indictment are not required under the Alabama statute, nor is it constitutionally impermissible under the United States Constitution to determine separately whether one is an habitual criminal. Due process does not require advance notice prior to trial on the “substantive offense” which triggers the operation of the Alabama Habitual Felony Offender Act. Only reasonable notice is required and that was given in the case at bar.

II

The appellant also raises the issue of unconstitutionality in regard to the Alabama Habitual Felony Offender Acts as applied to him because the court was not allowed to consider any mitigating circumstances. In support of his contention, the appellant has cited Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973. Each of these cases involved a death sentence.

In this context, we note that, in Rummel v. Estelle, 445 U.S. 263, 63 L.Ed.2d 382, 100 S.Ct. 1133, the court stated:

“Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel.”

We believe that due to the unique nature of the punishment involved in these cases their rationale would be of questionable assistance in recidivist cases. In Williams v. People of State of New York supra, the question was whether the rules of evidence were applicable to the manner in which the trial judge may obtain information that guides him in the imposition of sentence against a person who has already been convicted. In Williams v. People of State of New York, a New York statute existed which required the trial judge, before pronouncing sentence, to have submitted to him the accused’s criminal record and the results of any mental, psychiatric, or physical examination. Further, the statute said that the trial judge could seek any information that would aid him in determining the proper sentence.

The question then in Williams v. People of State of New York, supra, was not whether the trial judge was constitutionally mandated to consider mitigating circumstances before sentencing, as appellant insists, but whether the information that he received prior to sentencing in accordance with the statute offended due process because the defendant had no opportunity to confront the people providing that information to the trial judge.

In Lockett v. Ohio, supra, the Supreme Court recognized:

“[I]n noncapital cases, the established practice of individual sentences rests not on constitutional commands but public policy enacted into statutes.”

The court went on to say:

“Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases.”

It is clear that these eases are distinguishable and do not give support to the contention of the appellant that he accords to them.

Section 13A-5-9(c), Code of Alabama 1975, in pertinent part, reads:

“(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows:
“(3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole.” (Emphasis added.)

These provisions of the Alabama Habitual Felony Offender Act leave no discretion with regard to sentencing for a Class A Felony as § 13A-5-9(a), and § 13A-5-9(b) do.

In our system of government the Alabama legislature makes the law, the governor executes it and the courts construe and enforce the law. The legislature alone is given the authority to fix the maximum and minimum punishment for all crimes. No discretionary power is given to the courts in this respect unless it be conferred by law. Under the mandate found in § 13A-5-9(c)(3), a criminal defendant convicted of three felonies who commits a subsequent felony must be punished by imprisonment for life without the benefit of parole. No inherent power exists in the courts to modify statutes in this respect, even where exceptional circumstances or cases exist.

In our judgment, the Alabama Habitual Felony Offender Act, Code of Alabama, 1975, is not unconstitutional because it does not provide for the consideration of any mitigating circumstances involving the appellant recidivist.

Ill

The appellant asserts that his sentence of life without parole under the Alabama Habitual Felony Offender Act constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution. In support of this contention, the appellant has cited Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982. This case, and other death cases, noted by the United States Supreme Court in Rummel v. Estelle, supra, due to their “unique nature” are of “limited assistance” in applying the “constitutional prohibition” against cruel and unusual punishment to cases other than capital.

In Rummel v. Estelle, supra, the Supreme Court noted:

“Given the unique nature of the punishments considered in Weems and in the death-penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes conced-edly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.”

The United States Supreme Court in earlier cases reached the same conclusion that it was not cruel and unusual punishment in cases involving recidivists. In McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542, assessing the Massachusetts statute involving habitual criminals, the court stated:

“The statute does not impair the right of trial by jury or put the accused twice in jeopardy for the same offense or impose a cruel or unusual punishment.”

In that case, McDonald had four previous convictions, (2 forgery, 1 false pretense and 1 perjury) and he was adjudged guilty and sentenced as an habitual criminal to be punished by imprisonment in the state prison for the term of twenty-five years.

In 1912, the Supreme Court decided the case of Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917, which involved a horse thief who had been sentenced to life in prison under the West Virginia recidivist statute. Prior to his sentence, Graham had been convicted of stealing horses on three different occasions. In that case, the Supreme Court stated:

“What has been said, and the authorities which have been cited, sufficiently show that there is no basis for the contention that plaintiff in error has been put in double jeopardy, or that any of his privileges or immunities as a citizen of the United States has been abridged. Nor can it be maintained that cruel and unusual punishment has been inflicted.”

Recently, the Supreme Court of the United States in Rummel v. Estelle, supra, held that the mandatory life sentence imposed upon Rummel did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. In Rummel v. Estelle, the court noted:

“Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.”

Historically, life imprisonment has been employed by the state and the federal government as punishment for crimes. An assertion that life imprisonment is cruel and unusual punishment cannot be successfully supported.

The right to a parole is a privilege granted by the people of Alabama to those committed to our penal institutions as punishment for crimes. Withholding this favor by an act of the legislature for any particular class of criminals for whom this privilege is unmerited cannot be said to inflict punishment which is either cruel or unusual. Granting or denying parole to any particular class of criminal is a matter of discretion which is left to the legislature of our government, and the courts should not interfere. It seems clear that, when one by his conduct, has indicated that he is an habitual criminal, there is no reason for saying that society may not protect itself from his “future ravages.” It is not cruel or unusual punishment to say that an habitual criminal should receive the punishment based upon his criminal proclivities.

Therefore, it is our judgment that the sentence meted out to Holley of life imprisonment without benefit of parole was not cruel or unusual punishment and not in conflict with the Eighth Amendment of the United States Constitution.

We have examined the record and transcript of evidence and have found the evidence, submitted by the State, was sufficient and find no error prejudicial to appellant. Therefore, the judgment of conviction by the Tuscaloosa Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Johnny HOLLEY, Jr. (Re: Johnny Holley, Jr. v. State of Alabama).
    80-364.
    Supreme Court of Alabama.
    April 24, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: BOOKOUT, Judge.

text:
    Jerome TERRY v. STATE.
    6 Div. 348.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      William K. Higgins, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

On the evening of October 20, 1979, Clarence Rymes, Jr., was shot to death in the home of Janice Robinson. Alberta Henderson and Rymes were visiting Janice Robinson, and all three were seated on a sofa when several shots were fired through a window behind them. Rymes was hit by four bullets causing his death. A few days later Janice Robinson saw the appellant at a local grocery store at which time he showed her a gun and said, “If you say anything to anybody about what happened, I am going to kill you and your daughter.” She contacted the police immediately thereafter. She had had prior difficulties with the appellant which will be discussed hereinafter in more detail.

The appellant raises three major contentions on appeal.

I

On October 25, 1979, Sergeant W. T. Gaut, a City of Birmingham homicide detective, and two other officers went to Stock-ham Valve and Fitting Company in Birmingham, the appellant’s place of employment, to execute a warrant to search the appellant’s automobile. They stopped at the company guard’s office at the plant entrance and spoke with the company’s chief of security, James Nelson. The officers were informed that company rules required all employees to check any firearms with the guards before entering the premises. The company also did not allow police officers to go into the plant to locate and question employees. Therefore, Nelson sent for the appellant and had him brought to the administrative building and allowed the three police officers to talk to him in private in one of the offices. Nelson did not participate in the conference and did not overhear their conversation.

At the end of the discussion between the officers and appellant, they came out of the office, and Sergeant Gaut told Nelson that “they were going to take him [appellant] in and do some checking, and if things worked out all right he would be back to work. If not, he would not.” Nelson saw the officers leaving with the appellant, but said he did not go to the gate with them. He saw them stop at the guard office, but could not observe what took place there.

Sergeant Gaut testified that when he first confronted appellant in the company office he identified himself as a homicide officer, showed appellant his badge, and asked if his name was Jerome Terry. After appellant affirmed his name, Sergeant Gaut asked if appellant “still owned a .38 caliber pistol, R. G. type,” and appellant replied that he did. Gaut then showed him the search warrant and informed him it was a warrant to search his vehicle. Appellant responded by saying, “Well, my gun is not in the car, it is out at the Guard Station.” Appellant was not technically under arrest at the time he acknowledged ownership of the pistol and told the officers the location of the gun. Those two statements, however, were suppressed by the trial judge in a pretrial suppression hearing because appellant had not been apprised of his Miranda rights at that time.

Sergeant Gaut testified that on leaving the plant, as the group got even with the window to the guard station, James Nelson opened a drawer exposing several pistols and asked appellant, “which one of these is yours?” Gaut said the appellant pointed out a pistol to Nelson, who then handed it to appellant. Gaut then took the pistol from appellant’s hand, examined it, and then placed him under arrest and read the Miranda rights to him.

Appellant contends (a) that his reply to the company guard (whether Nelson or another company guard) prior to receipt of the Miranda warning should have been suppressed, and (b) the seizure of the pistol under the above circumstances violated his Fourth Amendment rights and the pistol should not have been introduced into evidence.

A

We find no error on the part of the trial court in admitting into evidence the appellant’s reply to the question asked by the company security guard.

“Miranda is limited to custodial interrogations only. Custodial interrogation is defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Miranda, [384 U.S. 436] 86 S.Ct. at 1612 [16 L.Ed.2d 694]. This is what is meant in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), by reference to an investigation which had ‘focused’ on the accused. Miranda [384 U.S. 436] 86 S.Ct. at 1612, fn. 4.
“The Miranda warnings are not required simply because the questioned person is one whom the police suspect or one on whom the investigation has focused . .. . ” Harris v. State, Ala.Cr.App., 376 So.2d 773, cert. denied, Ala., 376 So.2d 778 (1979).

Miranda has no application where an inculpatory statement, otherwise admissible, is made to persons who are not officers of the law or their agents. Truex v. State, 282 Ala. 191, 210 So.2d 424 (1968); Ellis v. State, Ala.Cr.App., 338 So.2d 428 (1976); Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408 (1972).

In the instant case the appellant was clearly in custody when the officers apprised him that they were “taking him in” and began escorting him off the company property. He was therefore in custody when he obtained his pistol at the gate and when the officers saw and overheard him identify which pistol was his. However, the remaining question is whether or not the Stockham guard was acting as an agent for the police in opening the drawer containing the guns and asking appellant, “which one of these is yours?”

There is no evidence in the record to support the contention that the plant guard was acting as an agent for the police at that time. Appellant, pursuant to company rules, had relinquished possession and control of the pistol to the company guards on entering the premises. He was then leaving the premises, and the guard was returning his pistol to him. The question was addressed to the appellant, and the gun was handed directly to him by the guard. There is no evidence that the guard was acting under the control of or at the request of the police in returning the pistol. In fact, Sergeant Gaut was not certain which guard returned the pistol. He testified that it was James Nelson; however, Nelson said he did not go to the gate with them at that time.

B

We find the seizure of the pistol from the appellant’s hand to be lawful.

The officers were armed with a warrant to search appellant’s car. Appellant’s brief infers that the officers should have searched the car in the Stockham parking lot without first speaking with the appellant. We find nothing wrong with seeking out the appellant to ascertain his identity and to notify him of the search warrant. Section 15-5-9, Code of Ala.1975, authorizes an officer in executing a search warrant to break and enter a dwelling only after giving notice of his authority and purpose and being refused admittance. Although that section applies to houses, nothing in the law requires officers to break into an automobile without first notifying the owner of the search warrant. The officers were well within their rights to identify the owner and show him the search warrant before breaking into his car.

The officer’s question to appellant, “do you still have a .38 caliber pistol,” and appellant’s answer were excluded from evidence. The officers then apprised appellant of the warrant to search his car, and he replied that “the gun is not in the car, it is at the Guard Station.” Whether that statement caused the officers to stop at the guard station on their way out is left to conjecture. The testimony at the suppression hearing would support a finding that the stop there and return of the gun were spontaneous actions occasioned by the unsolicited conduct of the company guard. In any event, we do not believe the appellant’s statement that the gun was not in the car but at the guard station was inadmissible even though the trial court excluded it.

It is doubtful that appellant was in custody at that point. He was properly presented with a warrant to search his car, and his statement was unsolicited and not in response to any interrogation at that point. He volunteered the information as to the whereabouts of the gun. The officers certainly did not ask him where it was. Spontaneous or volunteered statements fall outside the mandate of Miranda. Luker v. State, Ala.Cr.App., 344 So.2d 1219 (1976), cert. quashed, Ala., 344 So.2d 1224 (1977). Likewise, statements not made in answer to questioning are outside the scope of Miranda. Barnes v. State, 45 Ala.App. 6, 221 So.2d 399 (1969).

When the appellant identified his pistol and the guard handed it to him, the police officer could lawfully seize and examine it without first obtaining another warrant to search the guard station or the appellant. The officers had come to the company armed with a warrant to search the appellant’s car for a “.38 caliber revolver ‘R.G.’ Model # 31, Serial # Q118251,” specifically set out in the warrant. When presented with the warrant, appellant informed the officers that the pistol in question was at the guard station. When the guard handed the pistol to the appellant, it was in plain view which is an exception to the warrant requirement. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

Additionally, when the appellant voluntarily relinquished possession and control over the pistol by leaving it at the guard station while on the premises, he relinquished any expectation of privacy he may have had in possessing the gun. “What a person knowingly exposes to the public, even in his own home or office, is not subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). See also Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The trial court therefore committed no reversible error in the instant case in admitting the pistol into evidence.

II

Appellant contends he was denied a fair trial by (a) the trial court’s failure to declare a mistrial after a prosecution witness, Janice Robinson, had a seizure while testifying, and (b) by the court’s solicitous conduct toward the witness following the seizure.

A

The record reveals that after a few minutes of questioning Janice Robinson on direct examination the prosecutor asked for a recess and the trial judge granted it and sent the jury out. The following then occurred:

“MR. HIGGINS: Your Honor, for the record, I would like to move for a mistrial at this time. I believe in light of the facts that have been brought home in opening statements, and so forth, about all of the interaction that supposedly took place between the defendant and this witness, that the unfortunate incident here is so prejudicial that he would not be able to get a fair trial before this jury. “THE COURT: All right. Overruled. I have talked to the doctor and the doctor says she is able to go on this afternoon. That she could have another one of these, but it is riot harmful to her. And we would just have to stop the trial again if she has another one. The nurse is going to go downstairs and tell them where she is going to be and she is going to come back upstairs and stay in the Courtroom over on the side in case she needs any help.
“MR. COLEE: Judge, would the Court consider putting off testimony until in the morning?
“THE COURT: I will. I would like to try one more time. I think it would be all the harder for her, so we will try one more time.
“MR. COLEE: I feel the effect would be so damaging, either if she does it again, or if she is unable to testify at all.
“THE COURT: If she is unable to testify or if she has another one of these seizures, then we’ll stop until tomorrow morning.
“(Whereupon, the jurors were brought in and the following was had and done before Court and jury.)
“THE COURT: Members of the jury, Mrs. Robinson feels better and we are going to try to go ahead. And if she doesn’t feel better I told her we will have a recess at any time.”

The examination of the witness then continued.

We are unable to ascertain from the record what happened to occasion the recess except that the trial judge mentioned that “if she has another one of these seizures, then we’ll stop until tomorrow morning.” It is apparent that the witness had some type seizure, but we do not know the severity, length, or other circumstances of the attack. The defense counsel did not state for the record what occurred. There is no showing that the occurrence affected the jury and no request that the jury be polled at the time. The trial judge was in a more advantageous position to observe what occurred than we are. He was able to observe what transpired and its effect upon the trial of the. case and upon the jury.

A motion for a mistrial is a matter addressed to the sound discretion of the trial judge, and his ruling thereon will not be revised except where a clear abuse of discretion is shown. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967). Here, the appellant has not shown any abuse of discretion on the part of the trial court. We must look to the record and the evidence presented therein and not to assertions contained in counsel’s brief. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971).

B

During the course of Janice Robinson’s testimony, after her seizure or illness, the trial judge on several occasions inquired if she was feeling well or told her to let him know if she needed a recess, etc. The witness was subjected to very lengthy examination and cross-examination by both sides. While the record reveals the trial judge was concerned with the health of the witness, we cannot say that the trial judge’s conduct was so solicitous as to bolster the credibility of the witness and deny the appellant a fair trial. Defense counsel made no objections to the trial judge’s actions regarding the witness during the course of the testimony, and the record fails to reflect any improper conduct on the part of the trial judge which was prejudicial to the appellant. Error is not presumed, but must be clearly shown by the appellant. Bryson v. State, 264 Ala. 111, 84 So.2d 785 (1955).

Ill

Appellant contends the trial court erred in failing to exclude testimony of prior unrelated criminal acts on his part.

Janice Robinson testified that she had seen the appellant on three occasions prior to the shooting in question. The first time she was accosted on the street by appellant who wanted to buy her a drink. On the second occasion the appellant was attempting to break in and enter the bedroom window, and she and her child were forced to flee her home. On the next occasion appellant gained entrance to her home by coming through that same bedroom window. He grabbed her and began wrestling with her and fondling her body and private parts. Appellant told the witness that if he could not have her no one else would and that he was going to kill her. Her brother entered the front of the house, and the appellant fled through the window by which he had gained entry.

Approximately one week later Clarence Rymes was shot and killed by bullets fired into the same window as Rymes and Janice Robinson sat on a sofa which was located in front of the window. The State therefore sought to show the prior acts of the appellant to prove his identity, motive and intent, and to establish the crime of first degree murder via transferred intent to kill. That is, appellant was attempting to and intended to kill Janice Robinson, but instead killed Rymes. His intent to kill is therefore transferred to Rymes. Harris v. State, 46 Ala.App. 189, 239 So.2d 331 (1970).

The general rule in Alabama is that evidence of distinct and independent offenses is not admissible in the trial of a person accused of a crime; however, there are several well-recognized exceptions to the general rule. Evidence of prior distinct offenses is admissible to show “knowledge, intent, plan or design, motive, identity and inseparable crimes.” Mason v. State, 259 Ala. 438, 441, 66 So.2d 557 (1953). Also see Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947), and Gamble, McElroy’s Alabama Evidence (3d ed. 1977), § 69.01, et seq.

Here, the evidence of appellant’s prior conduct of breaking into Janice Robinson’s house, his violent acts toward her, and his threat were relevant and go toward identifying the appellant as the person who fired the pistol and likewise go toward showing his motive and intent in committing the crime charged. The trial court therefore committed no error in failing to exclude that testimony. We have reviewed the appellant’s remaining contentions and find them to be without merit. We have likewise reviewed the record as required by law and find no error prejudicial to the appellant’s rights.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Jerome TERRY. (Re: Jerome Terry v. State of Alabama).
    80-407.
    Supreme Court of Alabama.
    May 1, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: BOWEN, Judge.

text:
    James E. CORLEY v. STATE.
    6 Div. 381.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      E. Calhoun Wilson, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Marda J. Walters, Asst. Atty. Gen., Montgomery, for appellee.
   BOWEN, Judge.

This is a consolidated appeal from a judgment of the Circuit Court of Tuscaloosa County denying James E. Corley’s Petition for Writ of Error Coram Nobis. Represented by counsel from the Public Defender’s Office, Corley, pursuant to a “settlement agreement”, pled guilty on February 1, 1978, to six three-count indictments charging him with burglary, larceny, and buying, receiving, or concealing stolen property. The trial court sentenced Corley to three years in the State penitentiary for each case. No appeal was ever taken in these cases.

Corley’s pro se petition was filed with the Tuscaloosa Circuit Court on April 3, 1980, and a hearing was held on July 11, 1980. Again represented by appointed counsel, Corley testified that at the time he entered his guilty pleas “I was under the influence I was pleading guilty to burglary.” Corley stated that he was not being considered for “minimum custody or work release or anything like that” because the six indictments he pled guilty to contained three counts each. He admitted that he had “several more” felony convictions, including one for escape, in addition to his six guilty pleas. No other witness testified. The State cited Jones v. State, 373 So.2d 1221 (Ala.Cr.App.), cert. denied, 373 So.2d 1225 (Ala.1979), the trial court denied Corley’s petition, and oral notice of appeal was given.

Corley argues that he should not have been found guilty of both larceny and buying, receiving, or concealing the same property; however, he does admit that no appeal was taken on his six guilty pleas and that the three year sentence he received was less than it could have been had he been convicted on all three counts in each case.

Jones, supra, clearly holds that while an accused may not be found guilty of both larceny and buying, receiving, or concealing the same stolen property, that issue must be “properly and timely raised in the trial court.” 373 So.2d at 1225. Here there is not even the assertion that this issue was ever raised prior to the instant petition. There is no claim that Corley’s guilty pleas were the product of fraud, intimidation or duress. Stephens v. State, 36 Ala.App. 57, 52 So.2d 169 (1951), and there is only his naked allegation that he “was under the influence” he was “pleading guilty to burglary.” Johnson v. Williams, 244 Ala. 391, 13 So.2d 683 (1943). Corley at no time asserted he was innocent of the crimes charged or that he had a valid defense, a defect fatal in itself to the issuance of a writ of error coram nobis. Mayola v. State, 344 So.2d 818, 822 (Ala.Cr.App.), cert. denied, 344 So.2d 822 (Ala.1977).

An application for error coram no-bis should make a full disclosure of the facts relied on, not mere conclusions as to the nature and effect of facts. Thomas v. State, 274 Ala. 531, 150 So.2d 387 (1963). Corley had every opportunity at his hearing to present whatever evidence he desired. The petitioner bears the burden of submitting clear, full and satisfactory proof which extends beyond a mere balancing of probabilities to clearly and convincingly satisfy the court on the merits and allegations of the petition. Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979).

It appears to this Court that Cor-ley is attempting to appeal his original convictions. However, the writ of error coram nobis does not serve the purpose of an appeal. Mayola, supra, 344 So.2d at 822. It is “not intended to provide a review by appeal where the complaining party has not sought to appeal and the time for appeal has long since expired.” Creel v. State, 53 Ala.App. 226, 298 So.2d 647, 649 (1974).

Consequently, the judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte James E. CORLEY. (Re: James E. Corley v. State of Alabama).
    80-360.
    Supreme Court of Alabama.
    April 24, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    James IRWIN v. STATE.
    7 Div. 709.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    J. Doyle Fuller, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

First degree murder; sentence, life imprisonment.

A detailed account of the facts is unnecessary since a single issue raised by appellant is dispositive of this appeal.

The record does not reflect any pre-trial discussion among the court, the district attorneys, and the attorneys for appellant on whether the jury would be permitted to separate during the course of the trial. It is apparent, however, that one or both parties did not consent to the separation of the jury. At the close of the first day of a two and one-half day trial, the court discussed arrangements for the overnight accommodation of the jury. The following occurred.

“JUROR: If we left our automobiles here would they be protected?
“THE COURT: I think what we will do is to bring your automobiles and park them... . How have we been doing it? “THE CLERK: They’ve been parking them in front.
“THE COURT: All right. Does the defendant have any objection to letting the Jurors go individually to get their cars and bring them to the front of the Courthouse?
“THE COURT: If the defendant has no objection, each one of the individual Jurors can go to their respective cars and bring it around to the front of the Courthouse.”

Section 12-16-9, Code of Alabama 1975, states as follows:

“(b) It shall be improper for the trial court to ask the accused, counsel for the accused or the prosecuting attorney, in the hearing of the jury, whether he or they will consent to a separation of the jury pending the trial.
“(c) It shall be improper for the accused, counsel for the accused or the prosecuting attorney to state to the trial court in the hearing of the jury that he or they consent to a separation of the jury pending the trial.”

By the actions of the trial court, appellant was placed in the untenable position which the Alabama Supreme Court stated T. 30, § 97(1), Code of Alabama 1940, Re-comp. 1958, [now § 12-16-9(b) and (c)] was designed to prevent. In Kennedy v. State, 291 Ala. 62, 277 So.2d 878, 879 (1973), the court observed:

“[T]he purpose and intent of Title 30, § 97(1) is twofold: (1) to prevent the defendant from being prejudiced by the jury’s knowledge that he has refused to consent to their separation; and (2) to prevent the jury from showing undue favoritism to a defendant by reason of knowledge that he has consented to their separation.”

Had appellant answered the court’s inquiry in either the affirmative or the negative, he would have been in violation of § 12-16-9(c). As the Alabama Supreme Court stated in Thomas v. State, 124 Ala. 48, 58-59, 27 So. 315:

“The defendant was not required by law to make any response involving his consent or refusal . . . but had the right to say nothing on this question.... It was error for the court to put the defendant in this predicament before the jury, by putting the onus upon him of refusing to enter into this consent.”

Ragland v. State, 383 So.2d 897 (Ala.Cr.App.1980), and Wright v. State, 57 Ala.App. 401, 328 So.2d 650, are distinguishable from the instant case. In both Ragland, supra, and Wright, supra, the conversation regarding jury separation was not conducted in the presence and hearing of the jury. We believe that, by asking appellant’s consent to a separation in the hearing of the jury, the trial court committed reversible error.

REVERSED AND REMANDED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte State of Alabama. (Re: James IRWIN v. STATE of Alabama).
    80-374.
    Supreme Court of Alabama.
    April 30, 1981.
   ALMON, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Charles STATON, Jr. v. STATE.
    7 Div. 720.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.
    Mary Lil Owens and A. W. Bolt, II of Wilson, Bolt, Isom, Jackson, Bailey & Owens, Anniston, for appellant.

      Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr. and J. Michael Horsley, Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the robbery of Ruth Gilliam. Sentence was twelve years’ imprisonment.

I

Initially it is argued that the evidence is insufficient to support the verdict because the conviction rests on the uncorroborated testimony of an accomplice contrary to the provisions of Alabama Code 1975, Section 12-21-222.

Four witnesses testified for the State. The defense did not present any evidence.

Mrs. Ruth Gilliam testified that around 8:00 on the evening of June 26, 1979, a black man knocked on her door, said that he had run out of gas and asked to use the telephone. Mrs. Gilliam allowed the man to use her telephone, which she testified that he “pretended” to use. The man grabbed Mrs. Gilliam and held a knife to her throat. In struggling with the intruder, Mrs. Gilliam was forced to the floor. A second individual appeared and the first intruder placed a towel over Mrs. Gilliam’s face and mouth. She never saw this second intruder and “never heard him open his mouth.” The two individuals took “around $35.00 worth of money”, her billfold, checkbook, balance books and a clock and also her “master savings book.” The robbers fled after tying Mrs. Gilliam’s hands and feet.

Mrs. Gilliam identified the knife and the towel her assailants had used in the robbery.

On cross examination Mrs. .Gilliam testified that she let the first individual stand on her porch for four or five minutes before she let him in and that the porch light was on.

Mrs. Gilliam stated that she could not identify 'her attackers the next day at a lineup because she was “in shock.” Defense counsel then inquired:

“Q. And you had seen this person who came in your house for four or five minutes and the very next morning you couldn’t identify him in the lineup?
“A. No, because he had his hair — .” * * * * * ’ *
“Q. Mrs. Gilliam, have you ever at any point identified Mr. Staton as the man who entered your house that night and robbed you? Isn’t it a fact that you have never identified him?
“A. I couldn’t swear to it. They didn’t ask me.”

On redirect, the prosecution pursued this line of questioning:

“Q. .. . Why couldn’t you identify him?
“A. Because when I was in — When they had him in the lineup, the night he came to my house he had an afro hairdo, when I went to the lineup he had his hair slicked down.”

Mrs. Gilliam testified that she had known Gweneva Miller since she was a small child and that Mrs. Miller’s grandmother had “been with” her for fifteen years. Mrs. Gilliam had last seen Mrs. Miller on the Thursday before the robbery which was on Tuesday night.

On re-cross examination of Mrs. Gilliam, defense counsel elicited the following:

“Q. But the light, the entire time that you talked to the Defendant, was off in the hallway and on the front porch?
“A. No, it was not on in the hallway. It was on on the porch.
“Q. And that’s where you saw him for four or five minutes?
“A. Yes, that’s the only time I saw him except for his back.
“Q. . . . You did not identify Mr. Staton in the lineup the day after the crime; is that right?
“A. No, I did not.
“Q. You did not identify him at the preliminary hearing. And isn’t it true that even today sitting right here you cannot say for sure one hundred percent certain that this man walked into your house that night and robbed you; is that correct?
“A. No, I couldn’t -” (Emphasis added)

Mrs. Gilliam was then excused as a witness without further testimony.

Jerry Chandler is a Deputy Sheriff of Calhoun County. He investigated the robbery of Ruth Gilliam. He noticed a wrecker “hooking up” a car “right down from Mrs. Gilliam’s house ... about a hundred foot.” On the front seat of the car he found a towel and a pocket knife which Mrs. Gilliam later identified as having been used by her assailants.

In the back seat of the car, Deputy Chandler found a power bill or delinquency notice from the power company addressed to Gregory O’Neal Clay at 1800 McElroy Avenue. Shortly after this, Clay was arrested at this residence.

Chandler recovered some of the stolen merchandise at the Bynum Post Office two days after the robbery.

Deputy Chandler was unable to get any fingerprints off the knife or from anywhere in Mrs. Gilliam’s house.

Under cross examination, he testified that he had “no way of tying this car with the Defendant at all.”

Henrietta Boozer lived in Pine’s Motel Apartment number two. She is the defendant’s first cousin. On June 26 she saw the defendant and Gregory Clay at the Pine’s Motel between 9:00 and 9:30 P.M.

When she saw the defendant Gweneva Miller was with her. Mrs. Miller had called Mrs. Boozer and told her that “Charles said come pick them up.” * * * “Pick them up, and I said who are they. She said me and him (defendant) and Greg.” Mrs. Boozer picked Mrs.' Miller up at “Jerry’s Super Valu over in Bynum” between 9:00 and 9:30 P.M. When Mrs. Boozer picked up Mrs. Miller, Mrs. Miller was carrying a brown shoulder bag. When Mrs. Boozer returned with Mrs. Miller from Bynum, the defendant and Clay were standing in the driveway of the motel by one of Mrs. Boozer’s mother’s cars.

When Mrs. Boozer arrived they all went inside and she started folding clothes while Mrs. Miller, Greg and the defendant were “sitting talking among each other.” Mrs. Miller poured the contents of the bag on the floor, and the three of them looked at the contents. According to Mrs. Boozer the contents included “jewelry and papers”. Included was a driver’s license with the first name of “Ruth” on it. There was about $9.00 showing and Mrs. Miller “showed Charles and Greg where the other money was, it was about $20.00. She said that was where the money was kept.” This money was “in a pouch of some kind, a little green pouch.”

Mrs. Miller telephoned her brother-in-law, Walter Rutledge, and he arrived about 10 or 15 minutes later and they (Mrs. Miller, Greg, the defendant and Rutledge) all left together.

Mrs. Boozer didn’t know Mrs. Miller until Mrs. Miller started going with the defendant two or three years ago. Mrs. Boozer never saw the defendant with the bag.

Gregory Clay, the accomplice, testified that he first saw the defendant on June 26th around 7:00 or 8:00 that evening at the defendant’s house. Present with the defendant was Gweneva Miller. The defendant said that “he knew a place in Bynum we could go to and get some money.”

“He told me that — He was telling me about how to do it and everything and we — He told me to go in and he was going to knock on the door and — for the woman to let him when he rang the doorbell, and he was going to grab her and for me to come in and find the money.”
sfc s}: * üe sf: *
“(H)e told me that Gwen (Mrs. Miller) was going to drive the car while we — She was going to drive the car and when we come out of the house and everything.”

Clay, Mrs. Miller and the defendant drove straight to the house in Bynum. Clay then related how the defendant gained entrance to the house by telling the woman that he was out of gas and how together they robbed the woman. His version of the way the robbery occurred is substantially identical to Mrs. Gilliam’s testimony.

Both Clay and the defendant ran to the car where Mrs. Miller was waiting. In trying to free the key which was stuck upside down in the ignition, the defendant broke the key. They all started running towards the Super Valu Store. At the store, Mrs. Miller made a telephone call while the defendant and Clay ran up a hill, “and she was supposed to have come along in the car.” Clay and the defendant went up the hill and over to Pine’s Motel and waited outside until Mrs. Boozer and Mrs. Miller drove up.

They all went in Mrs. Boozer’s apartment and the defendant got the bag from Mrs. Miller and “he spread the stuff out and we was looking through it.”

Clay, Mrs. Miller and the defendant remained at Mrs. Boozer’s apartment for approximately thirty minutes before they left with Walter Rutledge.

Clay testified that the defendant was wearing his hair “in an afro” that night. He stated that the knife used by the defendant during the robbery belonged to Mrs. Miller.

Clay also testified that after they got the money they went to Gadsden and bought some heroin. This was about 11:00 or 12:00 that night.

Before making his decision, the trial judge had the following testimony of Mrs. Gilliam read into the record:

“Q. You mentioned that you were faced downward in a dark room. What room was that?
“A. The front bedroom.
“Q. The light was off in there?
“A. Yes.
“Q. Okay.
“A. My guest bedroom.
“Q. The lights the entire time you talked to the defendant was on in the hallway and on the front porch?
“A. Not in the hallway.
“Q. Okay. It was on the front porch. That’s where you saw him four or five minutes?
“A. That’s the only time I saw him except for his back.

Defense counsel argued that the reference to the “Defendant” in her cross examination of Mrs. Gilliam “was a slip of the tongue due to (her) inexpertise.” Defense counsel argued: “I am sure Mr. Hubbard (Assistant District Attorney) wouldn’t contend that a Defendant’s lawyer can by his or her phrasing of the question and plea the Defendant guilty.”

At trial, the State, in arguing against the defendant’s motion to exclude, did not contend that the victim, Mrs. Gilliam, had identified the defendant.

In denying the defendant’s motion to exclude the trial judge made the following remarks:

“Certainly I think the vast majority of the victim’s testimony would define (sic) the tryer of fact that they could determine, in fact, that she (Mrs. Gilliam) did not identify the accused, or rather I think the purposes of this examination, the question is is there any testimony that tends to connect the Defendant with the commission of the offense absent the testimony of the accomplice. Now if the tryer of the fact were to accept this particular examination and answer which was read into the record, the Court finds that that would be a testimony that does tend to connect the Defendant with the offense, that is, that the victim by her answer here is stating that the accused was on her front porch and that she saw him on her front porch and then the only other time she saw him was from the back. So, when balancing all of that, the Court is going to deny the motion to exclude at this time.”

Only after the court made its ruling did defense counsel move to strike the question and answer “on the basis that it was mis-phrasing of the question and a slip of the tongue." The trial judge denied this request.

The question we must answer is whether the testimony, excluding that of accomplice Clay, legitimately tends to connect the defendant with the crime charged in the indictment. That is the test of the sufficiency of the evidence necessary to corroborate the testimony of an accomplice. Alabama Code 1975, Section 12-21-222; Senn v. State, 344 So.2d 192 (Ala.1977); Andrews v. State, 370 So.2d 320 (Ala.Cr.App.), cert. denied, 370 So.2d 323 (Ala.1979). The testimony of an accomplice “remains in limbo as no evidence at all” until it is corroborated by other evidence tending to incriminate the accused. Leonard v. State, 43 Ala.App. 454, 465, 192 So.2d 461 (1966).

Viewing the evidence in this case, we find three factors which, when combined, corroborate the accomplice and tend to connect the defendant with the robbery. While, in this particular case, no single factor is sufficient, their combination is adequate to satisfy the requirements of corroboration.

Initially we note that the defendant was in the company of an accomplice in close proximity in time and place to the commission of the crime. Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977).

Second, the defendant was present with the accomplice when the contents of a bag were emptied on the floor. The jury was authorized to draw a reasonable inference that the items in the bag belonged to the victim because of the circumstances surrounding this examination of the contents of the bag by the accomplice, the defendant and Mrs. Miller; the time and place where it occurred and the time and location of the robbery, the manner in which the three individuals arrived at and left from Mrs. Boozer’s apartment; and the fact that among the items in the bag was a driver’s license bearing the name of “Ruth”—the victim’s first name also being Ruth.

Third, the inferences contained in the testimony of Ruth Gilliam, the victim, tend to connect the defendant to the crime charged and thereby corroborate the testimony of the accomplice. True, Mrs. Gilliam never positively identified the defendant as one of the robbers. However, she was never asked if she “thought” the defendant was her assailant. A witness may testify to facts within his knowledge, although his recollection thereof is vague or imperfect. Alexander v. State, 370 So.2d 330, (Ala.Cr.App.), cert. denied, 370 So.2d 332 (Ala.1979). Mrs. Gilliam’s testimony that she could not identify the defendant in the lineup because he had his hair “slicked back” implies that ■the defendant was indeed in the lineup but that Mrs. Gilliam could not positively identify him because of his changed appearance.

That portion of the record which defense counsel maintains was inadvertently phrased was found by the trial judge to supply the necessary corroboration. The logical and ultimate import of this testimony is that the defendant was present on Mrs. Gilliam’s porch and was one of the robbers. Although, as previously stated, Mrs. Gilliam never positively identified the defendant, there is a subtle inference from her testimony that the defendant was the intruder. However, we do not rely solely upon the victim’s testimony to corroborate the testimony of the accomplice.

After carefully examining all the evidence, we find that the defendant’s conviction was not had on the uncorroborated testimony of an accomplice. Although we find that Clay’s testimony was corroborated, it was just barely corroborated by evidence tending to connect the defendant to the crime. Certainly the corroborative evidence in this case was not sufficient in and of itself to support a conviction; yet it need not be. Corroborative evidence need not “be strong, nor sufficient of itself to support a conviction, the criterion being that it legitimately tends to connect the accused with the offense.” Moore v. State, 30 Ala.App. 304, 307, 5 So.2d 644 (1941).

The general rule on the sufficiency of corroborative evidence is found in 23 C.J.S. Criminal Law, Section 812(5) (1961).

“While the corroborating facts or circumstances must be such as would lead to the inference that accused is guilty, independently of the testimony of the accomplice, and while the corroborating facts or circumstances must tend, at least slightly or in some degree, to implicate accused, the corroborative evidence standing alone, need not absolutely or actually connect accused with the crime, as any corroborative evidence fairly, reasonably, or legitimately tending to connect accused with the crime charged, or the commission thereof, or from which such connection on the part of accused may reasonably be inferred, or from which such connection on the part of the accused may fairly be inferred, may be sufficient to warrant a conviction, although standing by itself it would be only slight proof of guilt and. entitled to but little consideration.”

See also Senn v. State, 344 So.2d 192 (Ala.1977); Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). This rule must be considered along with the related principle that “evidence which merely raises a conjecture, surmise, speculation, or suspicion that accused is the guilty person is not, ... sufficiently corroborative of the testimony of an accomplice to warrant a conviction.” 23 C.J.S. Criminal Law, Section 812(5)(b). Uncertain or equivocal corroboration will not suffice. Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947).

“ ‘Any circumstantial evidence is sufficient if it proves that accused was connected with the criminal act or tends to connect him with the commission thereof, or if such connection may reasonably or clearly be inferred from the corroborative evidence; and where the accomplice is strongly corroborated by facts and circumstances connecting accused with the crime, a conviction will be sustained.’ 23 C.J.S. Criminal Law, Section 812(3), p. 109.” O’Neal v. State, 53 Ala.App. 133, 140-1, 298 So.2d 62, cert. denied, 292 Ala. 744, 298 So.2d 70 (1974).

II

The defendant has cited other adverse rulings upon which he predicates error. We have carefully examined each allegation and find all to be without merit. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Charles STATON, Jr. (Re Charles Staton, Jr. v. State of Alabama).
    80-368.
    Supreme Court of Alabama.
    April 24, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Vicky Renoe TERRELL, alias v. STATE.
    7 Div. 760.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Appellant was convicted of first degree murder and sentenced to life imprisonment. He was also convicted of robbery and sentenced to twenty years’ imprisonment to run concurrently with the life sentence.

During the course of the trial, the prosecution called as a witness Herman Rollins, a companion of the appellant. The witness was sixteen years old and had been with the appellant on the day of the crime. After a few questions, the prosecutor claimed surprise when the witness apparently changed his testimony from a previous statement he had given. Over strenuous objection by defense counsel, the district attorney was allowed to proceed with his examination of Rollins by using leading questions. From the record:

“Q. Back on Friday morning, December the 1st, 1978, that is the day, Herman, that this man was shot down at Campbell Oil. Were you at Gadsden High School with Vicky?
“MR. ALLENSTEIN: For the record, I would also like to object to leading.
“THE COURT: Overruled.
“A. At school.
“Q. At school?
“A. We was at school and then left.
“Q. You left with Vicky?
“A. Yeah.
“Q. Where did you go when you left with Vicky?
“A. We went up to his house and ate lunch, and then we went to the field house and played basketball.
“Q. Did you smoke any pot?
“MR. ALLENSTEIN: I object to that and move for a mistrial.
“THE COURT: Overruled.
“A. Yes.
“Q. Four joints?
“A. Two joints.
“MR. ALLENSTEIN: If I might, I would like to approach the Bench and make this a part of the record.
“(The following was held at Bench sotto voce):
“MR. ALLENSTEIN: Your Honor, I would move to exclude any testimony about my client smoking four joints of marijuana and move for a mistrial. That is a separate and unstated offense as opposed to this one to start with.
“THE COURT: The statute of limitations has run out as to the offense mentioned, and he’s not charged with smoking marijuana.
“MR. ALLENSTEIN: It will prejudice him in the eyes of the jury.
“THE COURT: Overrule your objection and deny your motion for a mistrial.”

Appellant contends that the district attorney compounded the error by prejudicial comments made during closing arguments when the following occurred:

“MR. ALLENSTEIN: Your Honor, Mr. Rayburn is accusing the defendant of smoking marijuana. This man is not accused of smoking marijuana in this case. This is an improper argument, and I move for a mistrial.
“THE COURT: Disregard the statement made by the District Attorney in his closing argument about smoking pot. The defendant is not charged with smoking pot or anything of that nature. If he was the statute of limitations would have passed because it would be a misdemean- or.
“MR. RAYBURN: May I say something? Judge, Your Honor, the testimony—
“THE COURT: I know what the testimony is
“MR. RAYBURN: I was merely seeking to argue the evidence and every reasonable inference from the evidence.
“THE COURT: He is not accused of smoking pot. He is accused of murder in the first degree and robbery.
“MR. RAYBURN: I was arguing the evidence that came from the stand.
“MR. ALLENSTEIN: Is my motion denied?
“THE COURT: I deny your motion for a mistrial.”

A universally recognized rule of law is that it is impermissible to introduce evidence of distinct and independent offenses not charged in the indictment on which an accused is being tried. Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947); Racine v. State, 290 Ala. 225, 275 So.2d 655 (1973); Horton v. State, 41 Ala.App. 16, 122 So.2d 920, cert. denied, 291 Ala. 699, 122 So.2d 923 (1966); Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973); Anderson v. State, Ala.Cr.App., 354 So.2d 1156, cert. denied, Ala., 354 So.2d 1161 (1977); Tillman v. State, Ala.Cr.App., 374 So.2d 922, cert. quashed, Ala., 374 So.2d 926 (1978); Gamble, McElroy’s Alabama Evidence, (3d ed. 1977), § 69.01(1), et seq.

The Alabama Supreme Court gave a comprehensive discussion of the rule against use of evidence of prior collateral crimes or misconduct in Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966), and in Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953). Throughout the cases on this point of law, relevancy is the key factor in determining whether collateral misconduct of a defendant is admissible in evidence.

Evidence which tends to show the commission of a collateral crime or wrongful act not charged in the indictment is inadmissible in order “to prevent conviction based on a jury belief that the accused is a person of bad character. The jury’s determination of guilt or innocence should be based on evidence relevant to the crime charged.” United States v. Turquitt, 557 F.2d 464, at 468 (5th Cir.1977).

In Johnson v. State, 38 Ala.App. 82, 76 So.2d 351 (1954), it was held to be reversible error on a charge of obtaining property by false pretense to admit into evidence, over objection, that the appellant had given the same bank in question a false financial statement previous to the transaction for which he was being tried.

In McMickens v. State, 16 Ala.App. 78, 75 So. 626 (1917), in a prosecution for larceny of scrap brass, which the defendant sold to a scrap yard, it was held to be error to show other sales of wire and brass by the defendant to the same dealer at various times during the year. Likewise, in Gibson v. State, 14 Ala.App. 111, 72 So. 210 (1916), in a prosecution for sale of illegal liquor, it was held to be error to allow a witness to testify to having seen large quantities of whiskey stored in the back room of the defendant’s store some time prior to the sale in question. Since the charge was for selling, the evidence of illegal possession, another similar crime, was held to be irrelevant. The court there stated:

“It is the established rule that when irrelevant or improper testimony is admitted on a criminal trial, against the objection of the defendant, it will work a reversal unless it affirmatively appear that the effect was to the benefit of, or not injurious to, the defendant....”

In a much earlier case, the use of evidence of irrelevant but suspicious acts met with the same result. In a prosecution for receiving stolen cotton, the Alabama Supreme Court held it to be error to allow testimony that, during the week previous to discovery of the stolen cotton in the defendant’s storehouse, persons were seen going into that storehouse just before and about daybreak “with sacks of cotton, and coming out with the sacks empty.” Gassenheimer v. State, 52 Ala. 313 (1875).

The rare exceptions to the rule against use of evidence of other offenses “may be summarized as knowledge, intent, plan or design, motive, identity and inseparable crimes.” Mason, supra. None of those exceptions exist in the instant case.

It has been said that courts are more lenient toward the admission of such evidence where it comes in on cross-examination rather than on direct examination. United States v. King, 505 F.2d 602 (5th Cir.1974). However, in the instant case, the improper question was deliberately asked by the district attorney on direct examina-, tion. The response to that question should have been excluded; however, the trial court overruled defense counsel’s motion to exclude stating that the statute of limitations had already run on the offense of possession of marijuana. In that ruling the trial court erred.

It is immaterial whether or not the statute of limitations has run on the prior offense of the accused, for his susceptibility to prosecution is not the reason for the exclusionary rule here. The purpose of the rule is to prevent the State from introducing evidence of prior unrelated misconduct which will adversely reflect upon the accused’s character and show him up in a light to the jury as a person of bad character with propensity to commit the crime charged. Bullard v. United States, 395 F.2d 658 (5th Cir.1968), and authorities herein-above cited.

In the instant case, the evidence of the appellant’s smoking marijuana had absolutely no relevancy to the crime charged in the indictment. The district attorney should not have elicited such evidence, and the trial judge should have promptly granted the appellant’s motion to exclude that testimony. The appellant is, therefore, entitled to a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte State of Alabama. (Re Vicky Renoe TERRELL, alias v. STATE of Alabama).
    80-377.
    Supreme Court of Alabama.
    May 1, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    Bobby Joe HOPE v. STATE.
    7 Div. 773.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      Hewitt L. Conwill of Harrison, Conwill, Harrison & Justice, Columbiana, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

The indictment charged Bobby Joe Hope with the first degree murder of Louie Earl Jones “by drowning him.” Following a jury trial, appellant was found guilty of murder in the first degree and punishment fixed at life imprisonment. The trial court set sentence accordingly. The first appeal of this cause was reversed in an opinion in which certain facts are reported as Hope v. State, Ala.Cr.App., 378 So.2d 745, cert. denied, Ala., 378 So.2d 747 (1979). This appeal is from a second trial under the indictment in question.

The appellant’s brother, Phillip Stanley Hope, was also charged, tried and convicted of first degree murder and, likewise, his punishment was fixed at imprisonment for life. This appeal was affirmed by this Court, 5 Div. 488, Ala.Cr.App., 390 So.2d 1077, June 17, 1980, rehearing denied, July 29, 1980. The essential facts in the instant case are as stated in the two prior opinions hereinabove mentioned and need not be here repeated.

On the instant appeal, the appellant asserts the insufficiency of the evidence to sustain his conviction, and also the failure of the trial court to sufficiently charge on circumstantial evidence.

I

At appellant’s insistence, we have again considered the evidence in this cause and are of the opinion that the trial court correctly submitted this case to the jury.

As stated by this Court in Phillip Stanley Hope, supra, June 17, 1980:

“We have long held, however, that circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and if facts are presented from which the jury may reasonably infer the crime has been committed, the question must be submitted to the jury. Kontos v. State, Ala.Cr.App., 363 So.2d 1025 (1978), and cases therein cited; McDowell v. State, 238 Ala. 101, 198 So. 183 (1939).”

II

At the conclusion of the trial court’s extensive oral charge in this cause, both the State and the defendant announced, “Satisfied Your Honor” (R. 368). The trial court gave several written requested charges (R. 367-368).

The appellant’s requested charges were either covered by the trial court’s oral charge or other given charges, or were abstract charges not properly predicated on the evidence in the case, or were incorrect statements of the applicable legal principles. Kuczenska v. State, Ala.Cr.App., 378 So.2d 1182, cert. denied, Ala., 378 So.2d 1186 (1979), and authorities cited therein.

Appellant’s requested charges on circumstantial evidence (R. 34, 37-41) were properly refused.

“As we have held in previous cases on requested charges similar to those presently before us, where not all of the State’s case is derived from circumstantial evidence and where the requested charges do not call for consideration of all the evidence, such charges concerning circumstantial evidence are properly refused. Johnson v. State, 55 Ala.App. 581, 317 So.2d 548 (1975); Jones v. State, 54 Ala.App. 167, 306 So.2d 33 (1974). Also, the requested charges were not hypothesized on a ‘belief from the evidence’ and were defective for that reason. Thompson v. State, 369 So.2d 50 (Ala.Cr.App.), cert. denied, 369 So.2d 52 (Ala.1979); Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976).”
Murrell v. State, Ala.Cr.App., 377 So.2d 1102, cert. denied, Ala., 377 So.2d 1108 (1979).

We have carefully examined this record and find same to be free of error. This case is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Bobby Joe HOPE. (Re: Bobby Joe Hope v. State of Alabama).
    80-370.
    Supreme Court of Alabama.
    April 24, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Willie McDANIEL v. STATE.
    7 Div. 782.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.
    Rehearing Denied Feb. 24, 1981.

      Stephen E. Harrison of Burns, Shumaker & Davis, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Willie McDaniel appeals from an order of the Cherokee Circuit Court “affirming” a district court’s determination that probation imposed for the conviction of McDaniel on an earlier offense be revoked and McDaniel thereby committed to jail to serve his sentence. It appears that, on September 20, 1979, appellant had been convicted in the district court for violation of the prohibition law by being in possession of an unlawful quantity of alcoholic beverages, and had been sentenced to pay a fine and serve six months in the county jail. The term of incarceration was subsequently ordered suspended for the period of one year on the conditions that appellant “not engage in illegal alcoholic activity, that he not associate with persons involved in illegal alcoholic activity, and that he not be in the presence of illegal alcoholic activity” (R. 18).

On October 19, 1979, however, law enforcement officers entered certain buildings owned by appellant, and under authority of a warrant seized a large quantity of alcoholic beverages. This led to written notice being filed and served on appellant informing him that he had been in violation of the terms of his suspended sentence. On December 17,1979, the district court convicted appellant of this second offense of violating the prohibition law, and immediately after that trial conducted a hearing, after which the court ordered appellant’s prior probation revoked. Subsequent motions for ha-beas corpus and for a writ of error coram nobis were denied by the Circuit Court, and appellant appealed the revocation to the Circuit Court. That court in effect remanded the case to the district court for a determination that the requirements of Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), had been complied with during the proceedings before that court.

On June 17, 1980, the district court returned a memorandum which detailed its compliance with Armstrong, and subsequently, on July 8, 1980, after a hearing, the Circuit Court affirmed the district court’s order that appellant be committed to jail to serve the six months sentence.

I

Appellant first contends that the procedures followed by the Circuit Court in first remanding the cause to the district court for the Armstrong determination and in then only affirming the trial court’s decision were erroneous because the Circuit Court was required by statute to hold a trial de novo on the issue of the probation revocation. The State argues that appellant’s only recourse was to appeal the district court’s determination to this Court in the first place, and therefore this appeal should be dismissed as not being timely filed. The basis for appellant’s argument is § 12-12-71, Code of Alabama 1975, which states:

“Except as provided in section 12-12-72 and in subsection (e) of section 12-15-120, all appeals from final judgments of the district court shall be to the circuit court for trial de novo.
“An appellant shall not be entitled to a jury trial in circuit court unless it is demanded in the notice of appeal, and an appellee shall have no right to a jury trial unless written demand is filed in circuit court within 14 days of service upon him of notice of appeal.”

We do not think that this section affords appellant the right to a trial de novo from a probation revocation determined by a district court for several reasons. It seems clear that § 12-12-71 was intended to provide an avenue by which criminal defendants or civil litigants might enjoy and be guaranteed their respective constitutional rights to a trial before a jury, which is certainly not contemplated in a probation revocation proceeding. Martin v. State, 46 Ala.App. 310, 241 So.2d 339 (1970). By statute, both district and circuit courts enjoy the power to suspend imposed sentences or grant probation, see § 15-22-50, Code of Alabama 1975, and we do not see the logic in a system which would mandate that a circuit court go through the identical proceedings required of the district court when review in the nature of certiorari would be considered equally effective and certainly less duplicitous. Further, the existence of appeal is statutory, and we have not been cited to any section of the Code which expressly confers the right to a trial de novo in the circuit court, following the instance of a probation revocation by a district court. We feel that the method employed by the Circuit Court here, which was, in essence, a review of the district court’s proceedings in the nature of certiorari, was quite proper. In the absence of a statute to the contrary, such is the correct method in such instances. See, Essix v. City of Birmingham, 54 Ala.App. 348, 308 So.2d 259 (1975), and authorities cited.

On the other hand, we decline to accept the State’s rationale that § 12-12-72 provides an exception into which such situation conveniently fits; our study of that section does not demonstrate its applicability to the situation shown by this record. Appellant was therefore within his right to appeal the final decision of the Circuit Court to this Court.

II

Appellant finally argues that the Circuit Court erroneously allowed evidence in the form of “bench notes purporting to show that appellant had been convicted of a second offense following his original conviction of violation of the prohibition law.” We have examined the record and only find that properly certified judgment entries of appellant’s original conviction and a number of prior convictions were introduced below. We find no error in this regard. See Palmer v. State, 54 Ala.App. 707, 312 So.2d 399 (1975); and Hall v. State, Ala.Cr.App., 352 So.2d 8, cert. denied, 352 So.2d 11 (Ala.1977).

The determination of the Circuit Court that the district court was correct in revoking appellant’s suspended sentence is

AFFIRMED.

All the Judges concur.


text:
    Ex parte Willie McDANIEL. (Re: Willie McDaniel v. State of Alabama).
    80-382.
    Supreme Court of Alabama.
    April 24, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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