author: TORBERT, Chief Justice. BLOODWORTH, Justice

text:
    Ex parte State of Alabama ex rel. Attorney General. (In re: Ronnie Gene HOUSE v. STATE of Alabama).
    78-491.
    Supreme Court of Alabama.
    Sept. 28, 1979.
    Rehearing Denied Dec. 7, 1979.
    Charles A. Graddick, Atty. Gen. and Sarah Kathryn Farnell, Asst. Atty. Gen., for the State.
    Michael E. Sparkman, Hartselle, for respondent.
   TORBERT, Chief Justice.

The respondent, Ronnie Gene House, was indicted under Code 1975, § 13-1-42, for unlawfully assaulting Edward Wilburn with a deadly weapon “at which time the said Edward Wilburn was engaged in the active discharge of his lawful duty or duties as a Deputy Sheriff for Morgan County, Alabama.” The jury convicted him “as charged” and the court set the punishment at fifteen (15) years’ imprisonment. On March 27,. 1979, the Court of Criminal Appeals reversed and rendered appellant’s conviction, holding that the fact that Edward Wilburn was actually a jailer and not a deputy sheriff constituted a fatal variance between the indictment and proof, and that absent the essential proof that Edward Wilburn was a deputy sheriff the evidence was insufficient to support the jury’s verdict. On April 17, 1979, the Court of Criminal Appeals denied the state’s application for rehearing. This court granted the state’s petition for writ of certiorari on July 16, 1979, to determine whether the variance between the indictment and proof in this case is material.

The indictment charged that “Edward Wilburn” was assaulted by the respondent Ronnie Gene House, “at which time the said Edward Wilburn was engaged in the active discharge of his lawful duty or duties as a deputy sheriff for Morgan County, Alabama” when in fact the said Edward Wilburn was engaged in his lawful duties as a jailer at the time of the assault. The wording of the statute under which the respondent was indicted is as follows:

Whenever ANY PEACE OFFICER OR OTHER LAW ENFORCEMENT OFFICER OF THIS STATE OR ANY POLITICAL SUBDIVISION OF THIS STATE shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to commit any assault with a deadly instrument upon such officer, and any person guilty of such assault with a deadly instrument shall be guilty of a felony and, upon conviction, shall be imprisoned in the penitentiary for not less than two years nor more than 20 years. (Acts 1967, No. 746, p. 1600, § 3.)

Code 1975, § 13-1-42. (Emphasis added.)

We believe that a jailer as well as a deputy sheriff is a peace officer within the meaning of Code 1975, § 13-1-42. Acts 1967, No. 746, p. 1600, § 3, is codified in Code 1975, § 13 — 1—42. The Court of Criminal Appeals of Alabama gave an expansive interpretation to Acts 1967, No. 746, p. 1600, § 3, and held that a custodian of a convict does fall within the statutory phrase “any peace officer or other law enforcement officer.”

While a correctional officer may not have authority to make an arrest for criminal violations away from the premises of our prisons in Alabama, he is clothed with complete authority to arrest inmates who commit crimes in prison and on properties under the control of the Alabama Board of Corrections.
We hold that Mr. Fails and Mr. Lee were “peace officers or other law enforcement officer(s)” engaged in the active discharge of their lawful duties at the time they were assaulted and stabbed by Lowe and Smith.

Lowe v. State, 54 Ala.App. 280 at 283, 307 So.2d 86 at 89 (1974). The special concurrence of Presiding Judge Cates, who reached the same result that the majority of the court reached, but on a different rationale, was adopted by all the judges on rehearing. In that special concurrence, Judge Cates relied heavily on the opinion of the Superior Court of New Jersey in State v. Grant, 102 N.J.Super. 164, 245 A.2d 528:

The crime here in question is denounced in § 3 of Act No. 746, September 8,1967. Said Act [also set out in the 1973 Pocket Part Supplement of Michie’s unofficial 1958 Code as T. 14, §§ 374(18)-(20)] contains no definition of the expression “peace officer or other law enforcement officer.”
The expression “peace officer” used in Act No. 208 of August 16, 1966, as amended, is overbroad in that it “includes” all employees of the department of corrections and institutions. This could embrace not only prison guards but also stenographers, file clerks, auditors, computer programmers and other office workers, as well as the custodians of the convicts.
The latter category I do consider to be within § 3 of Act 746, supra, of instant concern. However, I reach that conclusion by slightly different reasoning from that used by my Brother Harris. Instead, I would rely on the language in State v. Grant, 102 N.J.Super. 164, 245 A.2d 528, wherein the court says:
“Defendant first urges that an Essex County Penitentiary correction officer is not a ‘law enforcement officer’ within the intendment of N.J.S. 2A:90-4, N.J.S.A. The functions and responsibilities of correction officers performing the duties described above, are such that we are unable to agree with defendant’s contention. Whether those performing such duties bear the title of jail guard, warden or correction officer, overseeing the custody and punishment of law violators is as much a part of law enforcement as undertaking the detection and apprehension of such violators. Moreover, they have the further duty of detecting and preventing violations of law by prisoners, e. g., assaults on other prisoners, escapes, etc., and in that sense are literally law enforcement officers. * * * We are satisfied that the Legislature intended to encompass within the scope of the statute those persons whose duty it is to supervise the administration of criminal punishment and to maintain security within and without the confines of the State’s penal institutions. We find no basic [sic] in logic or reason for limiting the meaning of the term “law enforcement officer” to persons empowered by law to investigate, arrest and prosecute violators of the law, as urged by defendant. * * ”
I have only written to such length because I think it’s elemental that penal statutes must be strictly construed. If the instant statute applied only to “peace officers” I might have voted to reverse. However, I do think that prison guards are “law enforcement officers,” particularly since it is their duty to force the convicts to obey and endure the sentence of the law.

Lowe v. State, 54 Ala.App. 280, 285, 307 So.2d 86, 90-91 (1974).

In Hill v. State, 339 So.2d 601 (Ala.Cr.App. 1976), the Court of Criminal Appeals again gave an expansive interpretation to the phrase “peace officers” by construing it to include railroad policemen. Under the reasoning of the Court of Criminal Appeals in Lowe and Hill, which we adopt, it is immaterial whether the victim is a deputy sheriff or jailer so long as he is a law enforcement officer, engaged in his duties at the time of the assault. This is not a case where the indictment charged an assault against a peace officer and the proof at trial revealed that the assaulted person was not, in fact, a peace officer. Such a variance is clearly material. This is not a case where the defendant was misled by the variance between the indictment and proof in regard to the capacity in which the victim of the assault was employed. The law in this state is well settled that: “To be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be misleading or substantially injurious to accused in making his defense, or to expose him to the danger of a second trial on the same charge.” Rupert v. State, 45 Ala.App. 84, 86, 224 So.2d 921, 923 (1969); Helms v. State, 40 Ala.App. 622, 624, 121 So.2d 104 (1960); Johnson v. State, 34 Ala.App. 623, 43 So.2d 424 (1949); Tyson v. State, 361 So.2d 1182, 1188 (Ala.Cr.App.1978).

Moreover, in order to determine whether the variance between the indictment and proof was material in this case it is necessary to examine the policy or reason behind the rule of law which requires that “the proof at trial must correspond with the material allegations of the indictment.” Owens v. State, 46 Ala.App. 591, 246 So.2d 478 (1971).

The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted and proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled. Citing Alabama cases as authority, C.J.S. states the rule as follows:

Where it is necessary to state the name of a third person as a part of the description of the offense, the name must be correctly stated and a material variance is fatal. . . . The modern rule, however, is that it is a question of identity; and where the identity of the person named in the indictment with the one named in the evidence is established, or where the inaccuracy is not misleading or substantially injurious to accused, the variance is not fatal. It is sufficient if the record is such as to inform accused of the charge and to protect him against another prosecution for the same offense.

42 C.J.S. Indictments and Informations § 265 (1944).

This court has stated the policy behind the fatal variance rule as follows: “The purpose of the rule is for identification and notice to defendant, and if those purposes are met no substantial injury to defendant results.” Vaughn v. State, 236 Ala. 442, 445, 183 So. 428, 430 (1938). The same policy was enunciated by this court in McCoy v. State, 232 Ala. 104, 106, 166 So. 769, 770 (1936), in the following manner: “[A] mere inaccuracy, where the identity of the person named in the indictment with the one named in the evidence is established, is not fatal under the modern rule.” Thus the rule of law governing in this state is that a variance between an indictment and proof at trial is not material where “the identity of the person named in the indictment with the one named in the evidence is established.” McCoy, supra.

Both the indictment and the proof at trial specifically named the assaulted peace officer as “Edward Wilburn.” The indictment stated that Edward Wilburn was a deputy sheriff and the proof showed that Edward Wilburn was actually a jailer. The question thus presented to this court is whether the variance between the indictment and the proof, in regard to the capacity in which the said Edward Wilburn, was employed, was material enough to deprive the respondent, Ronnie Gene House, of sufficient notice and opportunity to defend himself against the crime with which he was charged. We hold that that variance in regard to Edward Wilburn’s job was not material because he was specifically identified by name both in the indictment and at trial.

The law of this state is well settled that “[tjhere is no material variance where there is proof of so much of an indictment as shows the defendant committed a substantial offense specified therein.” Dotson v. State, 337 So.2d 83 (Ala.Cr.App.1976). See also Owens v. State, 291 Ala. 107, 278 So.2d 693 (1973); Taylor v. State, 47 Ala. App. 285, 253 So.2d 354 (1971); Fuller v. State, 39 Ala.App. 219, 96 So.2d 829 (1957); Blakeney v. State, 244 Ala. 262, 13 So.2d 430 (1943); Tyson v. State, 361 So.2d 1182, 1188 (Ala.Cr.App.1978). But see Gray v. State, 346 So.2d 974 (Ala.Cr.App.1976). The trial court found that this defendant assaulted the peace officer “Edward' Wilburn,” who was identified by name in the indictment and at trial. Thus “there [was] proof of so much of [the] indictment as shows the defendant committed [the] substantial offense specified [in Code 1975, § 13-1—42],” Dotson, supra, and therefore the variance in regard to Edward Wilburn’s job was not material.

For each of the foregoing reasons, i. e., the defendant was not misled by the variance, the victim of the assault was identified by name in the indictment and at trial, and proof was adduced at trial that Ronnie Gene House committed the substantial offense of assaulting a peace officer; we hold that the variance in regard to the capacity in which the victim of the assault was employed was not material.

Justice Bloodworth, with whom Justices Almon, Embry, and Beatty join, in dissent, poses the following question: “If the majority is right in concluding that it is immaterial whether the victim is ‘deputy sheriff’ or ‘jailer,’ and ‘deputy sheriff’ is not a material averment of the indictment would it matter if ‘deputy sheriff’ were left out altogether?” Our answer is certainly it would matter because Code 1975, § 13-1-42, only proscribes assaults against peace officers and has no application to assaults generally. Absent some allegation that the victim was a peace officer, it would be impossible to prove the conduct prohibited by § 13-1-42, i. e., an assault on a peace officer. The hypothetical posed by Justice Bloodworth deletes the sole allegation in the indictment that the victim was a peace officer and therefore clearly removes the conduct, i. e., assault on a civilian, from the purview of the statute, which applies only to assaults on peace officers.

For the same reasons the dissenters’ reliance on Owens v. State, 46 Ala.App. 591, 246 So.2d 478 (1971), is inapt. In that case, unlike the instant case, the defendant was indicted under the wrong statute. In Owens the defendant was indicted under the 1958 Recompiled version of Code 1940, Tit. 14, § 153, which refers solely to escapes from a penitentiary, when he should have been indicted under Tit. 14, § 151, “Escape of convict from jail or HARD LABOR’’ (emphasis added). The defendant, who was working on a road gang twelve miles from the penitentiary, not being in a penitentiary, clearly could not be proven to have escaped from a penitentiary. In the instant case the indictment left no doubt but that the victim was a peace officer. Thus, the assault on this peace officer, Edward Wilburn, whether he be a jailer or a deputy sheriff, clearly falls within the purview of § 13-1-42 under which Ronnie Gene House was indicted. Such is not the case with Owens (where the defendant was indicted for escaping from a penitentiary when he was not in a penitentiary at the time) and such would not be the case if the facts were as posed in Justice Bloodworth’s hypothetical where the indictment charging an assault on a peace officer failed to allege that the victim was a peace officer. We fail to see how Ronnie Gene House was in any way “misleding or substantially injurious . in making his defense,” Rupert, supra, and therefore we hold the variance in regard to the victim’s specific occupation was not material.

REVERSED AND REMANDED.

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

BLOODWORTH, J., with whom ALMON, EMBRY and BEATTY, JJ., join, dissents.

BLOODWORTH, Justice

(dissenting).

This petition for writ of certiorari presents a classic case of a variance between indictment and proof. The Court of Criminal Appeals unanimously reversed the cause. That court should be affirmed in my judgment. Thus, I must respectfully dissent from the majority’s reversal of that court.

The indictment charged defendant with assaulting Edward Wilburn with a deadly weapon at which time Wilburn was engaged in his lawful duties as a deputy sheriff for Morgan County.

The proof showed Wilburn was not a deputy sheriff but instead was a jailer for Morgan County.

The jury found defendant to be guilty “as charged.”

Absent proof Wilburn was a deputy sheriff, the Court of Criminal Appeals concluded, and correctly so in my judgment, that “the evidence was not sufficient to sustain the verdict of the jury.”

This is precisely the same- basic issue Mr. Justice Almon addressed in Owens v. State, 46 Ala.App. 591, 246 So.2d 478 (1971), when he was a judge on the Court of Criminal Appeals. There, the indictment charged defendant with escaping from a road camp, i. e., “Camp Eight Mile,” while the proof showed he had escaped from the custody of a prison guard while working on a road gang twelve miles away from “Camp Eight Mile.” The court reversed because of a total variance between indictment and proof and held, viz:

“No proposition of law is more fundamental than the one requiring that the proof at trial must correspond with the material allegations of the indictment.”

That is exactly the same conclusion reached by the Court of Criminal Appeals in the case before us. But, the majority reverses the Court of Criminal Appeals, saying “there is no material variance where there is proof of so much of an indictment as shows the defendant committed a substantial offense specified therein” [emphasis supplied], citing, inter alia, Dotson v. State, 337 So.2d 83 (Ala.Cr.App.1976).

I do not quarrel with that proposition of law but none of the cases cited are factually apposite with the case at bar. In Dotson, a forgery case, the indictment charged that defendant lived at “955 Highland Avenue” but proof showed he lived at “955 High Street.” The Court of Criminal Appeals held that the name of the street where defendant lived is not material to the charge but that everybody who knows Montgomery knows that High Street flows into and becomes Highland Avenue, that they are one and the same.

The majority cites two cases for their conclusion that a jailer falls within the statutory definition of “peace officer or other law enforcement officer,” Code 1975, § 13-1-42. Neither is apposite.

In Lowe v. State, 54 Ala.App. 280, 307 So.2d 86 (1974), the indictment charged an assault with a deadly weapon upon one Fails, “a law enforcement officer of the State of Alabama, viz: a Correctional Officer of the William G. Holman Unit,” etc. The Court of Criminal Appeals held that a correctional officer is a “peace officer or other law enforcement officer” within the statute. Likewise, in the case at bar, if the indictment had charged that the assault was committed upon one who was “a peace officer or other law enforcement officer” it would have been sufficient, or if the indictment had added to this averment “viz: the jailer,” it would have been sufficient and the proof would have sustained the indictment.

In Hill v. State, 339 So.2d 601 (Ala.Cr. App.1976), the assaulted officer’s name was left out of the indictment although it charged an assault against “a peace officer or a law enforcement officer,” etc. The proof showed an assault against an L&N Railroad policeman. The Court of Criminal Appeals held that the failure to allege the assaulted officer’s name in the indictment was not raised by demurrer and was presented for the first time on appeal. The fact that the one assaulted was a duly commissioned railway policeman made him fall within the ambit of the statute.

The majority opinion concludes that “it is immaterial whether the victim is a deputy sheriff or jailer so long as he is a law enforcement officer.” This is not the issue. It is immaterial whether a jailer is a law enforcement officer or not because the indictment charges the victim is a “deputy sheriff” and that is what the state must prove the victim to be or suffer a fatal variance.

I pose this question:

“If the majority is right in concluding that it is immaterial whether the victim is ‘deputy sheriff’ or ‘jailer,’ and ‘deputy sheriff’ is not a material averment of the indictment, would it matter if ‘deputy sheriff’ were left out altogether?”

I submit, under the majority’s reasoning, the answer would be no. But, if it is left out, the indictment would, aver simply the victim’s name with no designation of his capacity, and the indictment would not allege an offense under the statute.

The majority opinion states that my reliance on Owens, supra, is inapt because the defendant Owens was indictéd under the wrong statute, i. e., Tit. 14, § 153, which the majority says “refers solely to escapes from a penitentiary.” The majority are incorrect. That' statute makes it an offense to “escape from the penitentiary, or from any person or guard having him in charge . either within or outside the walls of the penitentiary . . . .” Thus, defendant Owens was indicted not under the wrong statute but for the wrong kind of escape under the statute.

The majority also say defendant House was not misled or injured by the failure to allege Wilburn was a “peace officer or other law enforcement officer” or by alleging he was a “deputy sheriff” when he was not. My response is that he was injured because Conviction of § 13-1-42 (assault on peace officer with deadly instrument) is a felony and carries imprisonment in the penitentiary from two to twenty years as punishment upon conviction. But, § 13-1-40 (assault and battery), an assault and battery upon one other than a “peace officer or other law enforcement officer” is a misdemeanor and carries, upon conviction, only a fine of up to $500 and imprisonment in the county jail or hard labor for the county for up to six months. In reading the indictment, House would be misled into believing that by leaving out “peace officer” etc. in the indictment, the state had elected to proceed against him for the misdemeanor of assault and battery rather than for the felony of assault on a peace officer, etc.

I would affirm the Court of Criminal Appeals, and I respectfully dissent from the majority opinion.

ALMON, EMBRY and BEATTY, JJ., concur.

      . As authority, C.J.S. cites the following Alabama cases: Vaughn v. State, 236 Ala. 442, 183 So. 428 (1938), and McCoy v. State, 232 Ala. 104, 166 So. 769 (1936).

      . C.J.S. pocket part cites: Blackmon v. State, 46 Ala.App. 274, 240 So.2d 696, cert. denied, 286 Ala. 733, 240 So.2d 699 (1970).

      . C.J.S. pocket part cites: Johnson v. State, 34 Ala.App. 623, 43 So.2d 424, cert. denied, 253 Ala. 194, 43 So.2d 431 (1949).

      . C.J.S. pocket part cites: Hollis v. State, 37 Ala.App. 453, 70 So.2d 279 (1954).

      . C.J.S. pocket part cites: Rupert v. State, 45 Ala.App. 84, 224 So.2d 921 (1969).


source: Caselaw Access Project

license: Public Domain

text:
    Ronnie Gene HOUSE v. STATE.
    8 Div. 122.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
   After Remandment from Alabama Supreme Court.

Affirmed on authority of House v. State, Alabama Supreme Court (1979), 380 So.2d 940.

All the Judges concur.


author: DeCARLO, Judge. BOWEN, Judge,

text:
    William Coy TRAWEEK v. STATE.
    6 Div. 750.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Rehearing Denied May 22, 1979.

      Walter P. Crownover and Jack Lowther, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

This is an appeal from a conviction by a Tuscaloosa County jury, wherein the appellant was found guilty of first degree murder and sentenced to life imprisonment.

At trial, at the close of the State’s case, the appellant made a motion to exclude the State’s evidence on the grounds that the State had failed to prove murder in the first degree or “any of the lesser included offenses.” This motion was overruled by the trial court.

Subsequent to his conviction, appellant filed a motion for a new trial, which was overruled by the trial court on May 12, 1978, after arguments on the motion had been heard.

The facts in this case are as follows:

On the morning of January 17, 1977, the appellant left Holeman’s Grocery Store in Tuscaloosa County, Alabama, “around nine o’clock,” with two others, “to ride around and drink some Vodka” belonging to one of the other men, “Ricky” Garner. According to Garner, the men made several stops along the road and returned to the store “about an hour and a half” later. There he and the appellant left the other man and joined another, “Buddy” Smith.

These three men, the appellant, Ricky Garner and Buddy Smith, left in Smith’s car “to get some more beer,” and continued riding around in the car drinking beer and vodka for another hour and a half. The men then stopped at the appellant’s truck, where Smith left, and the appellant and Garner returned to the store in the truck.

From the store the two men “went up to [the deceased] (Smith’s) house,” where they observed him “out working on his car,” and “asked him did he want to ride around and have a few drinks. . . . ” According to Garner, Smith responded that he “had to go to work,” and after “about six or eight minutes,” the appellant and Garner got back in appellant’s truck to leave.

Garner testified that, at that point, the appellant “spun some backwards” in his truck, causing “a little” gravel to be thrown by the tires of the truck, as they were leaving. “Pretty soon” the appellant and Garner were overtaken on the road by James Smith, who “pulled in right in front of [appellant’s] truck and motioned for [them] to slow down.”

Garner stated that the two vehicles then pulled off the road and the men got out. According to Garner, “[t]hey was arguing and James [Smith] was asking him [the appellant] why was he trying to tear his driveway up or something.” Garner stated that he saw no weapon in the hand of either man when the argument began but that later he noticed that the appellant “had a knife” and was “holding it keeping James from jumping on him or something.”

At one point during the argument, Garner interrupted the men to talk to Smith about an argument he had had with the deceased the previous week and stated that “it was a fine time to settle it. . . .” According to Garner, Smith had responded that “he was just drunk. . . . and he wanted to make friends. . . . ” Garner recalled that he thought he then shook hands with James Smith and testified that he had said, “I’m not on either side, I am out of it, I won’t take up for either one.”

After the above exchange between himself and Smith, Garner stated that he “went back and leaned up against the corner of the [appellant’s] truck.” At that time, Garner continued, Smith “moved on up toward Coy. . . . like he was fixing to jump on him.” The appellant then obtained his shotgun from his truck and shot Smith.

The appellant’s knife was the only weapon seen by the eyewitness, Ricky Garner, during the argument between appellant and the deceased, until the appellant, according to Garner, “run to his truck and got his gun.”

According to Garner’s testimony, the appellant “fired three times.” He “shot [James Smith] twice real quick,” but that there was “time enough for [Garner] to go on the other side of the truck” before the third shot was fired.

Garner stated that, after the third shot, “I went through the woods up to Hall Skel-ton’s and called the ambulance.” He testified further, that when he returned, the appellant was still at the scene, and that several people, including the homicide investigators, had arrived. He also stated that neither of the vehicles had been moved from its original position, nor had the body of James Smith been moved, and that “everything was the same as it was.”

On cross-examination Garner stated that he “did not remember” how much he had had to drink on the date in question. He agreed that the appellant had told him “[h]e had lost some deer dogs” and that he and Traweek “were going to ride around and kind of look for them. . . .’’He also stated that the original conversation with James Smith outside his home had been friendly, although Garner had not expected it to be.

Finally, Garner testified that . James Smith was “cussing Coy, giving him down, the road,” and that Smith was “pushing himself” on the appellant. He stated that it “seemed like” the appellant was trying to leave the scene of the argument. However, at one point, Garner also said that “James [the deceased] kept trying to get him [the appellant] to put the knife up.”

On re-direct examination, Garner repeated that he had not seen a weapon in the hands of the deceased during the argument. He also stated that the deceased had not followed the appellant back to his truck when Traweek went to the truck to get his shotgun.

The State then presented the testimony of “Buddy” Smith, who stated that he had been drinking with the appellant and Ricky Garner on the day of the shooting and had left the other two men to go home. Smith later encountered the appellant and several other men at the scene of the shooting, where the appellant stated to him, “I killed the S.O.B.” Smith indicated that he had not coerced the remark from appellant, nor had he promised appellant any reward before the statement was made.

Smith further testified that he had taken appellant’s shotgun from him to “check it,” and had noticed that there was no shell in the chamber at the time he took the gun. Smith testified that he then carried the shotgun with him when he went to “a house located across the road” from the scene to call the sheriff’s department. Smith returned with the gun and “laid the shotgun by the rear wheel of James Smith’s [the deceased’s] pickup.”

On cross-examination, Smith stated that he had found a pistol “wrapped up in a rag. . about the middle of the seat” of the deceased’s truck and that he moved the pistol prior to informing the homicide investigators of it, but that he did not “carry it around” with him. Smith also testified that, when he first arrived at the scene, the appellant and several other people were present, and that he “walked up to the body. . . . [and] checked it for a pulse,” but did not find one.

Included in the State’s case was testimony from two State toxicologists, one of whom performed the autopsy on deceased’s body, and three of the homicide investigators for Tuscaloosa County who had conducted the investigation of the shooting. These witnesses served to establish that, in the opinion of the toxicologist who performed the autopsy, “death in this case resulted because of damage to the lungs and heart as a result of a gunshot load delivered to the right chest.”

The witnesses for the State also established the chain of custody of those State’s exhibits introduced into evidence, over defense objections, including photographs of the deceased illustrating the three wounds sustained by him. Also introduced over defense objections were buckshot pellets taken from deceased’s wounds, which were largely “consistent with . . . number one buckshot,” and three spent shotgun shells found in the vicinity of the deceased’s body. These shells, in the opinion of the State Toxicologist, had been fired from the Sears twelve-gauge shotgun also found at the scene.

Testimony by the toxicologist, who performed laboratory tests on the evidence gathered at the scene, indicated that, in his opinion, “the muzzle of the shotgun was no closer than eight feet and no further than twelve feet from the [deceased’s] shirt at the time of the discharge,” and that there was no “presence of ethyl alcohol in the blood specimen” taken from the deceased. However, there was no testimony given by the State as to the measurements between appellant and the deceased at the scene, or anything other than approximate distances given by the eyewitness, Ricky Garner, and a homicide investigator who had “stepped off” the distances between the body and the vehicles.

Finally, testimony by one of the Tuscaloosa County homicide investigators indicated that he had found a “hunting knife,” with the blade extended, “on the front seat of the defendant’s truck.” The officer also stated that he had taken both of the guns into custody at the scene, and that the shotgun was loaded with “three live-shot shells” at the time he found it “lying at the rear of the deceased’s truck next to the left rear wheel,” and that it was a “twelve-gauge pump shotgun.”

Testimony of one of the homicide investigators, who was familiar with firearms, revealed that the shotgun had an odor of gunpowder about it, indicating that it had been fired recently. One officer stated that there was “one spent round” in the deceased’s revolver, but no evidence of “any odor or presence of any burned gunpowder,” which indicated that, in his opinion, the gun had not been recently fired.

Taken together, the testimony of the two State toxicologists and the three investigators served to establish a chain of custody of the physical evidence introduced by the State sufficient to connect them with the appellant or the scene and to support their admission. Also, due to this testimony, adequate foundations and identifications of those photographs admitted were made pri- or to their admission into evidence.

The defense presented testimony by Larry and Gary Watson, two men who had arrived at the scene shortly after the shooting. This testimony, for the most part, corroborated the testimony of State’s witnesses as to the location of the body, the appellant, the weapons, and the vehicles at the scene. However, both men denied hearing the appellant’s statement to “Buddy” Smith as that witness had recalled it and Larry Watson stated that the appellant had said only, “I had to do it.” Gary Watson stated that Smith had placed appellant’s shotgun “by the body” before taking it with him to call the police.

Terry Holeman testified, for the defense, that he had gone to the scene in response to Larry Watson’s statement that “James Smith was laying up there in the highway.” Holeman stated that, after arriving, he had “asked [the appellant] what happened” and that Traweek had “said he shot him, that he had to.”

Holeman also testified that Buddy Smith had placed the appellant’s shotgun “behind James [Smith] in the road” after taking it from appellant and that the appellant had at first told him, “I shot him, but I had to, he had pulled a gun on me.”

In response to questioning, Holeman also stated that the appellant had changed his story and said it was a knife rather than a gun that the deceased had “pulled.”

Finally, Holeman testified that he had been standing between the appellant and Buddy Smith but had not heard the appellant make any statement to Smith.

The appellant then took the stand in his own behalf. He stated that, on the morning of January 17, 1977, he had been asked by Ricky Garner and Gary Watson “to ride around with him and have a drink of Vodka,” and that they were also “going to hunt my deer dogs.” Traweek recalled later riding around and drinking with Garner and Buddy Smith but did not recall stopping at James Smith’s house or having a conversation with him on that date.

The appellant stated that the first time he saw the deceased on that day was when Smith overtook Garner and himself on the highway and motioned for them to pull over. Traweek reported the argument that he had had with the deceased, but again denied ever being in Smith’s driveway that day. Appellant also stated that he had tried to leave and that the deceased had told him, “If you get in your Goddamn truck, I will blow your head off.”

During this exchange, Traweek claimed he “saw what I believed was a knife,” in the deceased’s hand, and that Smith had threatened to kill him. He also stated that he “could” have had a knife but did not remember whether or not he did. Finally, the appellant testified that he believed that Smith was going to kill him, and recalled reaching for his gun but did not remember shooting Smith.

On cross-examination, Traweek identified State’s Exhibit No. 33 as his knife, which he admitted having with him on the day he killed Smith. Appellant claimed that Smith had also threatened Garner on that occasion and that Smith had told Garner, “if he didn’t get back out of the way, he was going to get the same Goddamn thing I was going to get.”

The appellant testified that Smith had “had a pocket knife in his hand,” during the argument, but that all he had “seen was the end of it.” Traweek stated that he had also seen “the print of a pistol in [the deceased’s] pocket, and that, “he told me he had a pistol.”

The defense then introduced testimony by five character witnesses to the effect that the general reputation of the deceased in his community for peacefulness and “for carrying a gun” was “bad.” One of these witnesses stated that the deceased had “pulled a gun” on him “for no reason.” On cross-examination, it was revealed that one of these witnesses had signed the appellant’s bond.

The defense then introduced testimony by two witnesses who stated that the general reputation in the community of the appellant “for truth and veracity” was good and that they would believe him under oath. Over defense objections, the State made inquiry of these witnesses regarding the deceased’s general reputation in the community, and whether they “had heard in the community [that appellant] had been charged with assault with a weapon,” or that he had been arrested previously.

The defense presented testimony by the minister of appellant’s church who had known him as a youth and for the past three years, but who stated he had no knowledge of appellant’s reputation in the community for truth and veracity.

Finally, two more character witnesses were called by the defense, who also testified that appellant’s reputation in his community for truth and veracity was good, but these witnesses were unable to state specific instances or conversations where they had heard such reputation discussed. Over defense objection, the State inquired, on cross-examination, whether the final witness had heard of appellant’s prior arrests and his arrest for “highway intoxication.”

At one point in the defense case, one of the homicide investigators was recalled and testified that the deceased had had, at the time of his death, “a three-blade pocket knife . . . about two and one-half to three inches long,” which had been turned over “to the coroner” along with “other personal items” of the deceased which were in his possession at his death. The officer stated that the small knife was found by the employees of the funeral home among the deceased’s personal effects. The knife was not introduced into evidence or otherwise referred to at trial.

I

In his brief before this court, appellant asserts that:

“[W]here defendant’s requested charge, concerning the jury’s right to consider threats of the deceased in justification of the homicide, stated a correct proposition of law, was supported by ample evidence, and was not covered in the court’s oral charge, it was the duty of the court to read said charge to the jury and refusal to do so constituted reversible error.”

Specifically, appellant complains that it was error by the trial court to refuse defendant’s requested charge No. 20, as follows:

“The Court charges the jury that while threats alone will not serve as a justification for homicide, if the Jury believe from the evidence that the deceased, at the time of the homicide was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the Defendant, you may then consider the threats made by the deceased in justification of the homicide.”

Appellant, in support of this contention, cites primarily Hunter v. State, 295 Ala. 180, 325 So.2d 921, in which he states, “a murder conviction was reversed solely on the failure of the trial court to read the exact charge relied upon by [appellant] in the case at bar.” Appellant goes on to cite Pollard v. State, 193 Ala. 32, 69 So. 425, in support of the proposition that:

“Each party has the undoubted right to have the Court charge the jury correctly the law as applied to any theory of the case which the evidence tends to establish. A defendant in a criminal case has been held to have this right, though his evidence alone tends to establish such theory.” (citing Munkers v. State, 87 Ala. 94, 6 So. 357.)

We distinguish the present case from those cited above. Here, there is a glaring and important distinction between the facts of the cases relied upon and those which occurred in the present case.

A close reading of the above cited cases reveals that, in each, there was evidence, from a source other than the defendant, that the deceased actually had a weapon (in both cases, a pistol or other firearm), and thus had the present means “to execute the threats against the Defendant,” as the requested charge requires.

In each case, it was reasonable for the jury to conclude that the deceased “was manifesting an intention to carry such threats into execution,” or “was attempting to execute the threats.” Therefore, the charge, or one similar to it, was improperly denied by the court in both of the cases cited. See Hunter v. State, supra.

In addition, the Supreme Court, in its reversal of this court’s original opinion in Hunter v. State, supra, refers to this charge as the Karr charge, in reference to its use in Karr v. State, 100 Ala. 4, 14 So. 851. We note that the evidence Karr used to support this instruction to the jury indicates that there was uncontradicted testimony presented at the trial that the deceased was armed with a firearm at the time he was shot and, thus, had, to the mind of a reasonable man, the present means to carry out the threats referred to in the charge. Thus, the charge was also properly given in Karr.

The requested charge, itself, states that it must “have appeared to a reasonable mind, under the circumstances” [Emphasis added] that the deceased was attempting to carry out his threats. We believe that the trial court was correct in determining that, where there was no evidence presented that the deceased might have had a knife, nor any evidence that the deceased was able to carry out his threats, if any were, in fact, made, it would not appear to a reasonable mind, that he was attempting to do so. The trial court thus properly refused the requested charge.

Appellant’s argument that, even though his evidence alone tended to establish the theory of self-defense, he was entitled to “have the court charge the jury correctly” concerning that theory is also not supported by the authorities cited.

Appellant’s quotation from Pollard, supra, in support of the above contention, omits the citation of authority relied upon by that case for the broad statement that a defendant has a right to a requested charge when he, alone, presents evidence of self-defense. Munkers v. State, 87 Ala. 94, 6 So. 357, which is the case relied upon in Pollard, concerns a charge of seduction, rather than a case of homicide involving a plea of self-defense. Thus, in quoting Munkers, Pollard is making a general statement of the law, rather than one which specifically applies to every incidence of a plea of self-defense in a prosecution for homicide.

Also, in Pollard, supra, the court goes on to say, in the same paragraph quoted by appellant:

“A party has no right, however, to single out his evidence alone, or any other part thereof, as tending to prove the given fact or theory touching which he desires special instructions, as this would tend to have the jury ignore other evidence which might tend to disprove the particular fact or theory to which the requested instruction was directed.” [Emphasis added].

Therefore, we hold that, as stated in Pollard, the requested charge is “objectionable as singling out a part of the evidence,” and was properly refused by the trial court.

II

Appellant complains that the trial court was in error in overruling his objections to questions asked by the State on cross-examination of character witnesses whose testimony on direct examination was limited to the good character for the specific trait of truth and veracity.

“By presenting evidence of good character [the] accused parts his character in issue and permits the prosecution to introduce evidence in rebuttal . . . .” 22A C.J.S. Criminal Law § 676(b).

It is also recognized that good character evidence offered by the accused, prior to an attack on his character by the prosecution, must be limited to his general character for peace and quiet, and he is “not entitled to offer evidence of his general good character or good character for truth and veracity to bolster up his own testimony.” Baugh v. State, 218 Ala. 87, 117 So. 426; 22A C.J.S. Criminal Law § 677(5).

In the present case, subsequent to appellant’s testimony in his own behalf, the defense attempted to introduce testimony regarding his general reputation in the community for truth and veracity alone.

Also, in our review of the record, we find that the prosecution limited its inquiry, on cross-examination, to that particular trait, until the following exchange occurred:

“Q. You have never done that, you don’t know from your own experience or what other people have said to you about if he [the appellant] got in trouble, whether or not he would claim, I just don’t remember, rather than testifying truthfully about it?
“A. I have never heard anybody in the community speak nothing against him.”

We also note the following responses by appellant’s character witnesses on cross-examination, to questions regarding his reputation for truth and veracity:

“A. I have never heard anybody say anything bad about him.
“A. Well, I have worked around him, and he worked with my boy three or four years, and I always found him to be a good moral man, and I believe what he said.
“A. Well, I have always heard folds say he is a mighty good neighbor to live in the community, and he would help anybody that he could. I have never heard anybody say anything bad against him.

We hold that the above testimony was sufficient to place appellant’s general good character in issue and to bring the inquiry on cross-examination under the rule in Smith v. State, 38 Ala.App. 23, 80 So.2d 302, allowing the prosecution to show evidence of appellant’s bad character for peace and quiet prior to the killing. See also Echols v. State, 36 Ala.App. 302, 55 So.2d 522, reversed on other grounds, 256 Ala. 389, 55 So.2d 530; Lynn v. State, 21 Ala.App. 29, 104 So. 870.

In our review of the record, we find that, during the cross-examination of one such defense witness, James Preston An-ders, all of the prosecution’s questions concerning whether he had heard of certain “unworthy acts” by the appellant were responded to in the negative, which would render any error in allowing the questions harmless. Hamlett v. State, 19 Ala.App. 218, 96 So. 371; Johnson v. State, 260 Ala. 276, 69 So.2d 854.

In view of the above facts, it is our judgment that the trial court was not in error in overruling appellant’s objections to the questions propounded, when the defense witnesses had previously testified to appellant’s good general character, Smith v. State, supra.

Ill

The appellant complains that the trial court’s refusal to allow him to make inquiry of defense witnesses testifying to the bad general reputation of the deceased, concerning the deceased’s reputation for being "overbearing,” and for “pulling a gun,” constituted reversible error.

It is well settled in Alabama that, after an accused has made an offer of evidence tending to show self-defense, he is entitled to offer proof showing the violent and bloodthirsty nature of the deceased. Aberhart v. State, Ala.Cr.App., 353 So.2d 6; Headley v. State, 51 Ala.App. 148,283 So.2d 458.

We distinguish Vander Weilan v. State, 47 Ala.App. 108, 251 So.2d 240; Frazier v. State, 48 Ala.App. 210, 263 So.2d 511, and King v. State, Ala.Cr.App., 355 So.2d 1148. These cases stand for the principle that, after proof of self-defense had been offered by the accused, testimony concerning the deceased’s bad reputation may involve questions of that witness whether the deceased was a “gun toter,” “carried a pistol,” or was a “knife toter.” These cases are to be distinguished because the question under scrutiny here did not concern whether the appellant was a “gun toter” or “carried a pistol,” but whether he had a reputation for “pulling a gun.”

In our judgment, the trial judge did not commit error in disallowing the questions concerning the deceased’s reputation for “pulling a gun,” from a review of the record, it appears that the questions allowed by the court carried substantially the same inference that would be gained by a question concerning deceased’s reputation for “pulling” a gun. It would seem reasonable that, if a man were a “gun toter,” he would also have the propensity for “pulling” the gun.

Regarding appellant’s insistence of error concerning the trial court’s refusal to allow the question whether the deceased was “overbearing,” we find any error to be without injury. Although the appellant was not allowed to use this phrasing, he received the entire benefit of the question, in that he was allowed to show that the deceased’s character was violent, dangerous and turbulent. Whatever advantage this question would have for the defendant was not diminished to such a degree as to be prejudicial by the court’s disallowance of the adjective “overbearing.”

Based on the foregoing reasons, as well as the extensive charge by the trial court on the elements of self-defense, it is our judgment that any error committed by the trial court in refusing to allow the use of the word “overbearing” was harmless.

IV

Appellant contends that the trial court improperly charged the jury with respect to the burden of proof required in a plea of self-defense. Specifically, appellant stated that thé following portions of the court’s charge placed an improper burden of proof upon him.

“Now, under certain conditions, gentlemen, and as I say, it is important for you to understand what these conditions are, which the law has laid down, which must be shown by the defendant, unless the evidence for the State proves these things for him, before he, the defendant, can justify or excuse himself on the ground of self defense. . . . ” [Emphasis as in brief of appellant.]

According to the appellant, “[t]he Court at no other place in its charge clarified or explained the burden in a homicide case as to the defense of self-defense,” and refused defendant’s written requested charges No. 13, 16, 17, and 30, dealing with this burden.

As authority for this contention, appellant relies upon Vaughn v. State, 293 Ala. 365, 304 So.2d 6, and cases cited therein. Appellant states that, because of the ruling in Vaughn, “[t]he danger sought to be avoided is that of stating the charge in such a manner as to appear to place the burden of proof on the defendant or to create confusion as to where the burden lies.”

We do not agree that the portion of the court’s oral charge complained of placed the burden of proof on appellant in the manner referred to in Vaughn. First, we would point out that, in Vaughn and each of the cases cited therein, the offending charge referred to “the burden resting on the Defendant . . . the burden of proof is on the defendant. . . .” [Emphasis added.]

Appellant cites Davis v. State, 40 Ala.App. 118, 112 So.2d 353, as indicating that the words “burden of proof” are not required m order to render a charge objectionable. In that case, the Supreme Court was concerned that, although additional instructions to the jury were made by the trial court, after exceptions to the oral charge were taken by the defense, “the court yet left the establishment of self-defense to rest upon a reasonable doubt generated from the evidence brought forth by the defendant.” Davis, supra, at 120, 112 So.2d at 354. We do not find this to be true of the court’s oral charge in the case at bar.

A reading of the entire oral charge, as it was read to the jury, reveals that twice prior to the portion quoted by appellant, and at least once afterwards, the court charged the jury that the State must meet the burden of proving the defendant guilty beyond a reasonable doubt and to a moral certainty.

The court’s oral charge, with respect to the plea of self-defense reads as follows:

“. . . Now, the defendant comes in here, as I say, presumed to be innocent, and the burden is not cast upon him to prove anything to you, gentlemen. He can just more or less let the State prove it beyond a reasonable doubt and to a moral certainty; but in this case, he claims and alleges that he is not guilty of the offense of murder in any degree, and he says under the pleadings in this case that even if he did in fact kill the deceased, and he does not admit it by this plea, but he says if you should find from the evidence that has come to you in this case that he did in fact bring about the death of the deceased, he nevertheless is not guilty of any degree of murder because under the doctrine of self defense, he was justified in this instance in taking the life of the deceased, and he claims that the evidence shows to you gentlemen that he was in fact not guilty because he had a legal right under the circumstances to defend himself.
“Now, it is necessary, of course, for you gentlemen and it is important for you to understand what we mean when we use the term self defense in law, and as I say, under his plea of not guilty in this case, he, without admitting the facts necessary to be proven by the State to make out a case of criminal homicide under the indictment, he says the facts themselves set up self defense.
“Now under certain conditions, gentlemen, and as I say, it is important for you to understand what these conditions are, which the law has laid down, which must be shown by the defendant, unless the evidence for the State proves these things for him, before he, the defendant, can justify or excuse himself on the ground of self defense, and you must find and it must be shown that first of all there must be present impending peril to his life or great bodily harm, real or so apparent as to create a bona fide belief of an existing necessity to shoot to save himself from death or great bodily harm. That is the first element of the plea of self defense.
“Sécondly, that there was no other reasonable mode of escape by retreat or by abandoning the difficulty; that the defendant, another element of the plea of self defense that must be shown is that the defendant was not the aggressor and did not provoke or bring on the difficulty, which he alleges took place between he and the accused. So, he says he didn’t bring it on, and he was not the aggressor, and so you have there the three elements, gentlemen, that you must find from the evidence in this case if you find he was justified to do the act he allegedly committed by reason of self defense. As to the danger or apparent danger that I have mentioned in laying down the rule when a defendant may kill his adversary, such danger whether real or apparent, must be present, not prospective, not even in the near future.
“It is important, gentlemen, that you understand the elements of self defense. One, the defendant must be without fault in provoking or bringing on the difficulty. Second, there must have existed at the time, either really or so apparently as to lead a reasonable mind to the belief that it actually existed, a present, imperious, impending necessity to shoot in order to save himself from death or great bodily harm, and third, there must have been no other reasonable mode of escape by retreat, or by avoiding the combat, with safety and without adding peril or endangering his life or suffering great bodily harm at the hands of the deceased, the man he allegedly killed. These elements, these three elements I have mentioned constitute the elements of self defense. You would have to find he was free from fault in bringing on the difficulty. You would have to find that there existed at the time either really or so apparently real as to lead a reasonable mind to the belief that there actually existed a present impending necessity to shoot in order to save himself from death or great bodily harm and there must have been no other reasonable mode of escape.”

We do not agree that the emphasized portion of the court’s oral charge when read with the remainder of the charge, is actually prejudicial. It was immediately qualified by the statement, “unless the evidence for the State proves these things for him . . ” which is simply another way of saying that the jury’s conclusions about the plea of self-defense must come from the evidence, whether part of the State or of the appellant.

Those charges which have been held to be invalid, as we have said, have stated specifically that the defendant has the burden of proof of the elements of self-defense. See Vaughn v. State, supra, and cases cited therein. Or, as in Davis v. State, supra, they have asked, “do those elements that he had brought in generate in your mind a doubt as to whether the defendant is guilty as charged in the indictment,” which implies that the doubt must arise from the defendant’s evidence alone.

We believe that the court’s statement concerning “these conditions [of self-defense] . . . which must be shown by the defendant, unless the evidence for the State proves these things for him . .” did not place the burden of proof of the elements of self-defense on appellant or “create confusion as to where the burden lies.”

We hold that the court’s charge complained of, suggested only that appellant must offer some evidence tending to generate a reasonable doubt of his guilt, if this was not at first accomplished by the State’s case, if, indeed, it suggests anything. We do not find the charge to be in conflict with the authorities discussed above, and we do not find that the court erred in refusing appellant’s four written requested charges.

Each of the written charges requested by appellant at trial, while perhaps making a correct statement of the law, dealt with the required elements of the plea of self-defense and the requirement of reasonable doubt of guilt in order to acquit. As we have stated, the trial court, in its oral charge, adequately defined for the jury the term reasonable doubt and the elements of self-defense. The charges requested were, therefore, redundant and, thus, were properly refused by the court.

We have reviewed the entire record and find no error prejudicial to the appellant. Therefore it is our opinion that the judgment of conviction should be affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON, J., concur.

BOOKOUT and BOWEN, JJ., dissent.

BOWEN, Judge,

with whom BOOKOUT, J., joins, dissenting.

I must respectfully dissent from Part I of the majority’s opinion.

This Court recently set forth the controlling principles of law governing the refusal of the trial judge to give a written requested charge.

“In determining whether a requested charge should be given, the question is not whether the court believes the evidence supporting the charge, ‘but simply whether such evidence was presented.’ Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1976).
“The trial judge may have had reason to disbelieve the appellant’s version of the facts, however, he did not have legal cause to withhold that version of the facts from the jury’s consideration.
“In Burns v. State, 229 Ala. 68, 155 So. 561 (1934), our Supreme Court held in part as follows:
‘Our decisions are to the effect that every prisoner at the bar is entitled to have charges given, which without being misleading, correctly stated the law of his case, and are supported by any evidence, however weak, insufficient, or doubtful in credibility. Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St. Rep. 96. And in Morris v. State (Ala. Sup.), 39 So. 608, 611, it is said: ‘It matters not how slight the tendency of evidence may be towards establishing any material fact involved, the court cannot exclude it from the jury. Its weight is for their determination . .’ (Emphasis supplied.)
“Likewise, in Chavers v. State, Ala., 361 So.2d 1106 (1978), the Alabama Supreme Court stated:
‘. . . (O)ur decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility . .’ Curtis Sanders Giles v. State, 366 So.2d 351 (Ala.Cr.App.1978).”

See also Miller v. State, 40 Ala.App. 533, 119 So.2d 197, cert. denied, 270 Ala. 739, 119 So.2d 201 (1960); Bradberry v. State, 37 Ala.App. 327, 67 So.2d 561 (1960); Degro v. State, 34 Ala.App. 232, 38 So.2d 354 (1949); Duncan v. State, 30 Ala.App. 356, 6 So.2d 450, cert. denied, 242 Ala. 329, 6 So.2d 454 (1942).

The requested charge should have been given regardless of which side presented the evidence to support the charge.


author: TORBERT, Chief Justice.

text:
    Ex parte William Coy TRAWEEK. (In re: William Coy Traweek v. State of Alabama)
    No. 78-599.
    The Supreme Court of Alabama.
    Dec. 7, 1979.
    Walter P. Crownover of Crownover & Mountain, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State, respondent.
   TORBERT, Chief Justice.

This petition for writ of certiorari to the Court of Criminal Appeals seeks review of petitioner’s conviction of first degree murder in the circuit court of Tuscaloosa County on February 18, 1978. The Court of Criminal Appeals affirmed the judgment on May 1,1979, and overruled the timely application for rehearing on May 22, 1979.

Petitioner asserts that the decision of the Court of Criminal Appeals below is in conflict with the decision of this court in Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1975). We agree and reverse and remand.

The facts as contained in the opinion of the Court of Criminal Appeals are as follows:

On January 17,1977, the appellant Traw-eek and two of his friends drove around in appellant’s truck drinking vodka and looking for appellant’s deer dogs. They stopped by the house of the deceased, Smith, and asked him to join them. When Smith told Traweek that he had to go to work, Traw-eek returned to his truck and spun gravel as he left Smith’s driveway. Smith got in his car, pursued and overtook Traweek’s truck and a heated argument ensued. Smith was holding a pocket knife throughout the argument. Traweek testified that he had seen “the print of a pistol in [the deceased’s] pocket” and that “he [the deceased] told me he had a pistol.” Traweek also testified that he had tried to leave and the deceased told him: “If you get in your . truck, I will blow your head off.” Traweek ran to his truck, got his gun and fired three blasts into the deceased. The Court of Criminal Appeals held that the Tuscaloosa County Circuit Court was not in error in refusing defendant’s requested jury charge number 20, which reads as follows:

The Court charges the jury that while threats alone will not serve as a justification for homicide, if the Jury believe from the evidence that the deceased, at the time of the homicide was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the Defendant, you may then consider the threats made by the deceased in justification of the homicide.

The rationale of the Court of Criminal Appeals in affirming the trial court is found in the following language from that court’s opinion:

We distinguish the present case from those cited above. Here, there is a glaring and important distinction between the facts of the cases relied upon and those which occurred in the present case.
A CLOSE READING OF THE ABOVE CITED CASES REVEALS THAT, IN EACH, THERE WAS EVIDENCE, FROM A SOURCE OTHER THAN THE DEFENDANT, THAT THE DECEASED ACTUALLY HAD A WEAPON (in both cases, a pistol or other firearm), and thus had the present means “to execute the threats against the Defendant,” as the requested charge requires.
In each case, it was reasonable for the jury to conclude that the deceased “was manifesting an intention to carry such threats into execution,” or “was attempting to execute the threats.” Therefore, the charge, or one similar to it, was improperly denied by the court in both of the cases cited. See Hunter v. State, supra. [Emphasis supplied.]

During oral argument of this case, as well as in briefs, the state advanced the same reasoning as that expressed by the Court of Criminal Appeals, supra, i. e., Hunter, supra, is inapplicable to the instant case because in Hunter an eyewitness, other than the accused, presented evidence that the deceased had a gun and was making threats.

To the extent that the opinion of the Court of Criminal Appeals holds that in order for the defendant in a murder trial to be entitled to a jury charge on self defense, EVIDENCE MUST BE PRESENTED BY SOMEONE OTHER THAN THE ACCUSED tending to show that the defendant was in reasonable apprehension of grievous bodily harm from the decedent, that opinion is in error.

In Hunter v. State, supra, the facts of which are strikingly similar to the facts in the instant case, this court held:

It would appear that the Court of Criminal Appeals has fallen into the error of attempting to “weigh” the evidence — in stating that other witnesses saw no overt act and heard no threat. The question is not what is their, or our, view of the evidence but simply whether such evidence was presented. It was.

Hunter, 295 Ala. at 184, 325 So.2d at 925 (emphasis added).

As pointed out by the dissenting opinion below of Judge Bowen joined by Judge Bookout:

In Burns v. State, 229 Ala. 68,155 So. 561 (1934), our Supreme Court held in part as follows:
Our decisions are to the effect that every prisoner at the bar is entitled to have charges given, which without being misleading, correctly stated the law of his case, and are supported by any evidence, however weak, insufficient, or doubtful in credibility. Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St.Rep. 96. And in Morris v. State (Ala.Sup.), 39 So. 608, 611, it is said: “It matters not how slight the tendency of evidence may be towards establishing any material fact involved, the court cannot exclude it from the jury. Its weight is for their determination . .” [Emphasis supplied.]
Likewise, in Chavers v. State, Ala., 361 So.2d 1106 (1978), the Alabama Supreme Court stated:
. [0]ur decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility . . [Citation omitted].
See also Miller v. State, 40 Ala.App. 533, 119 So.2d 197, cert. denied, 270 Ala. 739, 119 So.2d 201 (1960); Bradberry v. State, 37 Ala.App. 327, 67 So.2d 561 (1953); Degro v. State, 34 Ala.App. 232, 38 So.2d 354 (1949); Duncan v. State, 30 Ala.App. 356, 6 So.2d 450, cert. denied, 242 Ala. 329, 6 So.2d 454 (1942).
The requested charge should have been given regardless of which side presented the evidence to support the charge.

Traweek v. State, 380 So.2d 946 (Ala.Cr.App.1979).

We hold that the Court of Criminal Appeals erred in affirming the decision of the Circuit Court of Tuscaloosa County to refuse to give requested charge number 20 on self defense because the only evidence supporting that charge was produced by the defendant. We hold, in accord with Hunter, supra, that a charge which is supported by evidence must be given whether the evidence which supports the charge is produced by the defendant or some third party.

REVERSED AND REMANDED.

All the Justices concur.


text:
    William Coy TRAWEEK, alias v. STATE.
    6 Div. 750.
    Alabama Court of Criminal Appeals.
    Jan. 22, 1980.
   Reversed and remanded on authority of Ex parte Traweek, Ala., 380 So.2d 958 (1979).

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Eon TRENT v. STATE.
    8 Div. 211.
    Court of Criminal Appeals of Alabama.
    Aug. 21, 1979.
    Rehearing Denied Oct. 2, 1979.

      Larry Edwin Perry, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of murder in the first degree and a sentence to imprisonment for life.

The fatal difficulty between defendant and the alleged victim, George J. Coutu, constituted the only meeting ever between the two. It was at the mobile home of Diana DeFloreo, of whom defendant had been enamored and whom Coutu was visiting at the time. About 7:00 P.M. August 27, 1978, according to the testimony of Ms. DeFloreo, she and Coutu were sitting on the patio in front of her mobile home in Triana Trailer Park in Huntsville when defendant drove up in an automobile. He entered the trailer through the back door; Ms. DeFloreo went inside where a violent argument occurred between her and defendant. Defendant went outside through the front door, grabbed Coutu, a much smaller man, and picked him up out of the lawn chair in which he was sitting. Ms. DeFloreo attempted to break up the tussle between defendant and Coutu, and defendant shoved her down. She saw a knife in defendants hand at the time and ran inside the trailer to call the police, but remembering that appellant had torn the phone from the wall while arguing with her a few minutes before, she left through the back door to go to a neighbor’s mobile home to call the police, but recalling that she had another phone in her trailer she turned around before reaching her neighbor’s trailer. Upon returning, she met appellant in the back yard, who told her, “Forgive me. I just stabbed your boyfriend.” She saw Coutu lying on the ground in the front yard with blood on his shirt. She went in her trailer and called the police, then went to the front yard where she saw defendant with a knife in his hand and holding Coutu. She told defendant to leave the premises, and he did so in his automobile.

There was little, if any, material conflict between the testimony of Ms. DeFloreo and the testimony of defendant. He did not deny stabbing Coutu but testified that he had no recollection of having done so. His testimony as a whole was to the effect that he was tremendously distraught on the occasion and was filled with remorse for what had happened. He acknowledged an affection for Ms. DeFloreo and completely exonerated Coutu of any blameworthy conduct. He recalled his violent conduct in the trailer, his having hit Ms. DeFloreo and torn the phone from the wall, and his unprovoked attack upon Coutu. It would serve no useful purpose to narrate his lengthy testimony, a part of which was as follows:

“And I don’t know, I think at that point I had the knife-in my hand, because I had —it’s true I had lifted up my hand or something and gave it to — tried to give it to Dee [Ms. DeFloreo] and I was really— kneeling there next to George put me out of it, it was quite an experience.
“Q If you did in fact stab him or if you had stabbed him did you know that you had done it?
“A No, sir. If I knew I had done it I would admit to it. This is something you’ve got to live, to really go through and to understand how it feels.
“Q What did you say after she came up? What did you do after that?
“A Well, I think at that point, I don’t know whether I had assumed I had stabbed the man or not, but I did make that indication to her and tried to hand her the knife. And she put her hand on it and — but didn’t give too much pressure about taking it away from me. And I just held on to it, you know. The blade, I think the blade was laying against my wrist. And after she let go she looked down at George and noticed the blood on his shirt. And she took off after a second. .
“I never seen Dee after that point. I can’t say how long this was, but after a little more time I just got up and I just sort of walked to my car and got in the car and just headed out of the trailer court the same way I had come in.
“Q How do you become, what do you mean you have a problem? How do you become when you lose your temper?
“A I think in my case I let — have a tendency to let pressure build up over a long period of time, and sometimes I just really don’t know how to cope with it. But I think lots of times, you might say blow off steam, I do a lot of talking. But there is no — I have never hurt anybody anytime from any kind of a confrontation or anything. I would rather back off from a fight than get into it with someone.”

The evidence shows almost conclusively that Coutu’s death resulted from a wound inflicted by the knife to which Ms. DeFloreo referred in her testimony and which defendant admitted he had in his hand.

Defendant turned himself in to appropriate authorities the next morning, after he had reported what he had done to a friend and they had checked on the physical condition of Coutu and, according to defendant, he had spent a night wandering and contemplating suicide.

Defendant had pleaded not guilty and not guilty by reason of insanity, but he offered no evidence as to his plea of insanity, and the trial court did not submit such issue to the jury. Appellant does not contend that a jury issue as to insanity was presented ,by the evidence.

One of the two issues now presented by appellant is as to the action of the court, or counsel for the State, relative to the knife involved. It appears that counsel for the State had the particular knife identified as State’s Exhibit 1 and was in the process of identifying it as one that had been found by one of the officers in defendant’s automobile, that defendant contended that seizure of it resulted from an illegal search and requested a hearing on the matter out of the presence of the jury, which was granted. During the voir dire, the court expressed some doubt as to the validity of the search, and thereupon counsel for the State said, “State does not insist,” and the' hearing before the jury was then resumed without any further effort by the State to offer the knife in evidence or to show that a knife was found in defendant’s automobile. Appellant states:

“After the Appellant objected to any further testimony in the trial concerning the knife, on the ground that it had been recovered as the result of an illegal search (ROA p. 84) the District Attorney was permitted to question the defense witness, Eddie Grantland (ROA p. 90) as to the knife, over objection by appellant.”

The cited page (90) of the record and page 91 thereof show the following:

“Q Eddie, let me show you State’s Exhibit 1 and ask you if you can identify that, please.
“A Yes, sir.
“Q What is that, please, sir?
“A That’s a Cutco knife that belongs to a set, belongs to me. Belongs to a set of knives that I have hanging on my wall in the trailer.
“MR. PERRY: At this time I would like to make an objection as to the use of that. I thought that matter had been settled.
“THE COURT: It hasn’t been settled, Mr. Perry.
“MR. PERRY: Okay, sir.
“Q Is that the knife that came from your set out of your trailer?
“A Yes, sir.”

The record shows no further objection by defendant as to the knife. No ruling adverse to defendant was made; the ruling invoked by defendant was obviously not insisted upon. No error was committed by the court as to the matter.

A major insistence of appellant is that “. . . the cumulative effect of the Prosecutor’s questioning and remarks during cross-examination of Appellant and closing arguments were so prejudicial to the Appellant as to warrant the granting of a new trial in view of the fact that the Prosecutor persisted in such questioning and remarks in spite of Appellant’s objections thereto being sustained by the Court.”

The part of the cross-examination of appellant to which the reference is made is as follows:

“Q Now, Mr. Trent, these people are here to decide this case, would you look at them and you tell us, you tell them how do they know in the future that pressure won’t build up and you won’t be able to cope with it and you can’t control your temper.
“MR. PERRY: We object to that.
“Q And you will panic and kill somebody else.
“THE COURT: Sustained.
“Q Can you tell us, can you give anybody any assurance that the pressure won’t build up?
“MR. PERRY: Make the same objection.
“Q You won’t be able to cope with it and you can’t control your temper and you won’t kill somebody else?
“THE COURT: Sustained.
“Q But you don’t know if you will ever stab anybody again or kill anybody again.
“MR. PERRY: The same objection, Your Honor.
“THE COURT: Sustained.
“Q And you can’t tell the Court nor to the jury that you won’t kill somebody again, can you?
“MR. PERRY: We object, Your Honor.
“THE COURT: Sustained.
“Q You are telling us here today that you don’t remember, but you went over and told Johnny that you stabbed a man? Didn’t you hear him testify from the stand that you came over there and told him that you stabbed a man?
“A I told Your Honor that I got into a fight over at Miss DeFloreo’s trailer and it was possible that someone was hurt over there and that’s as far as I told him when I left George was still alive.
“Q Everything else is crystal clear to you except when you slammed that knife into that man’s chest, isn’t it?
“A I don’t know where the knife came into play. I honestly don’t. If I did I would tell the people here.
“Q But you can’t tell these people that you will never kill again?
“MR. PERRY: We object to that at this point and ask the Court to declare a mistrial.
“THE COURT: Sustain the objection and overrule that.
“MR. SIMPSON: I don’t guess we have any further question.”

We agree with appellant that counsel’s persistence in asking defendant on cross-examination questions substantially the same as those to which the court had sustained objections of the defendant was improper and that if it was so grossly improper and highly prejudicial that its evil influence could not be eradicated from the minds of the jury, defendant was entitled to the mistrial for which he moved. Application in this State of that principle is first found in Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389, 392 (1930) and quickly followed by Pointer v. State, 24 Ala.App. 23, 129 So. 787 (1930). In Birmingham Baptist Hospital, the questions asked pertained to treatment by the defendant of plaintiff’s arm, particularly hypodermic injections, which was foreign to the issue between the parties, namely, whether defendant’s employees were negligent in applying a hot water bottle to the lower part of plaintiff’s abdomen. Appellant frankly concedes in his brief that the principle established in Birmingham Baptist Hospital v. Blackwell and followed in the other cases cited by appellant, is not applicable unless the conduct complained of was of “such prejudicial character that the probable effect is ineradicable by the sustaining of an objection and proper instruction to the jury by the Court.” The questions repeated on cross-examination of defendant are not to be likened to the questions complained of in Birmingham Baptist Hospital v. Blackwell and the other cases cited by appellant, which pertained to matters of fact unrelated to the issues in the cases. Even though the questions asked in the instant case may have been much more objectionable than the questions asked in the other cases, they did not tend to seek to bring other matters of fact into the case. They constituted argumentative questions, to some extent a badgering of the witness, and they should not have been asked, and a continuous repetition thereof is not to be condoned, but we have no doubt that any prejudicial effect of the questions would have been readily eradicated by stern instructions of the trial judge. Such being true, the questions are removed from the rationale of Birmingham Baptist Hospital v. Blackwell, supra. It is not for us to say why the trial court did not ex mero motu admonish the jury on the subject. Nor is it for us to say why defendant did not request the trial court to do so. It may well be that all concerned were of the view that the repeated questions accomplished no good for the State and resulted in no harm to defendant. We are convinced that a mistrial would not have been appropriate under the circumstances and that the trial court was not in error in denying the defendant’s motion therefor.

We now set forth that part of the record that seems to be the basis for appellant’s contention that argument of counsel to the jury was so improper and prejudicial that the judgment should be reversed and the cause remanded for a new trial:

“MR. PERRY: Your Honor, we object to Counsel in closing arguments referring to he might try to kill somebody in the future. I think it has been dealt with about four times in the trial.
“THE COURT: I didn’t understand what was said. If it was said I sustain it. “(Whereupon, Mr. Simpson continued to address the jury in final closing arguments on behalf of the State; at which time, the following occurred:)
“MR. PERRY: We object to that remark. He is still insinuating that some time in the future if this client is released or found guilty of a lesser offense other than first degree murder that he will commit a similar crime to this in the future.
“MR. SIMPSON: I haven’t said such a thing, if it please the Court.
“THE COURT: I don’t sustain it on the basis of your remarks, but I will sustain it.
“(Whereupon, Mr. Simpson continued to address the Jury in final closing arguments on behalf of the State; at which time, the following occurred:)
“MR. PERRY: Your Honor, we object to that statement, same basis as before. Jury owes no explanation to the District Attorney for its verdict.
“THE COURT: Well, I sustain it. I will sustain it.
“MR. PERRY: Ask the Court to instruct the jury to disregard that statement. “THE COURT: All right.
“MR. PERRY: And declare a mistrial at this time.
“THE COURT: Overruled.”

It should be readily observed from the portion of the record quoted above that it is impossible for us to tell just what defendant’s counsel argued that constituted the basis for the objection and the motion for a mistrial. We should say, however, that if, as indicated by defendant’s objection, counsel for the State was arguing that if defendant was not convicted of murder in the first degree, he “might try to kill somebody in the future,” we would not condemn it as improper argument. Argumentative questions to a witness are inappropriate, but the use of argumentative language in addressing a jury is the right and duty of an attorney. Argument that a defendant charged with murder in the first degree should be punished by imprisonment for life is not to be analogized to argument by the State that, “a man like this, if he was to get off with life imprisonment, he would be out and around . . .. or kill some convict there in the penitentiary,” which furnished a basis for a reversal in Eaton v. State, 278 Ala. 224, 177 So.2d 444, and which is relied upon by appellant. In Eaton, the court dealt with a charge of murder in the first degree at a time when punishment to be fixed by the jury was death or imprisonment for life. The prosecuting attorney was appealing for the death penalty; he was arguing against punishment by life imprisonment. The argument there was antipathetic to the argument in the instant case. Under the law as it was then, whereby the jury determined whether punishment should be fixed at death or life imprisonment, the soundness of what was held cannot be seriously questioned. As was stated at 278 Ala. 227, 177 So.2d 447:

“The only inference to be drawn from the solicitor’s argument in the present case that, ‘a man like this, if he was to get off with life imprisonment, he would be out and around’ — would be that the accused would either escape the penitentiary, or be paroled. Neither event was for the consideration of the jury.”

In defendant’s motion for a new trial there was one ground that was predicated upon alleged improper argument of counsel for the State which ground does not aid us any more than does the quotation from the record above, as to what counsel for the State actually stated in the argument complained of. In this circumstance and by reason of our view that appellant’s criticism of the argument allegedly made is not justified, we find no error in the court’s overruling the motion for a new trial.

“The objections and exceptions reserved to excerpts from the argument of the solicitor are without merit. Counsel in the presentation of their cases must be allowed a wide range in the exhortations to the jury to discharge the duties resting upon them, in such manner as, not only to punish crime, but to protect the public from like offenses, and as an example to deter others from committing like offenses.” Witt v. State, 27 Ala.App. 409, 174 So. 794, cert. denied, 234 Ala. 391, 174 So. 795 (1937).

We are favorably impressed by the apparently sincere remorse of defendant and his recognition of the seriousness of the crime he committed, but we have little doubt that the jury, also probably favorably impressed by defendant’s attitude, acted with sincerity in returning their verdict on the issue that was clearly within their province to decide. We find no error in the record. 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 New 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: PER CURIAM. JONES, Justice

text:
    Ex parte Eon TRENT. In re Eon Trent v. State of Alabama.
    79-64.
    Supreme Court of Alabama.
    Feb. 8, 1980.
    Larry Edwin Perry, Huntsville, for petitioner.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C. J., and MADDOX, FAULKNER, SHORES and BEATTY, JJ., concur.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., dissent.

JONES, Justice

(dissenting):

I respectfully dissent.

We granted the Petition for Writ of Certiorari to review the opinion of the Court of Criminal Appeals on one issue: Whether the appellate court erred in affirming the trial Court’s denial of Defendant’s motion for a mistrial following the District Attorney’s repeated questioning of the Defendant in spite of the Court’s sustaining of Defendant’s objections to such questions. (For a complete statement of the facts of this case, see Trent v. State, 380 So.2d 960 (Ala.Cr.App.1979). I would hold that the Court of Criminal Appeals did so err; therefore, I would reverse and remand.

In order to put this issue into perspective, I quote from the pertinent portion of the record the entire line of questions, the responses, the objections and motions, and the Court’s rulings:

“Q And I believe in answer to questions on Cross Examination you said that you panicked.
“A Reference to what?
“Q At the trailer.
“A I would say so. I would say I lost control, yes, sir.
“Q And back when you painted Johnny’s door red you panicked?
“A Yes, sir.
“Q You threatened his life?
“A I don’t remember that part of it.
“Q But you panicked at that time?
“A John is a truthful person. If he said I did, I probably did.
“Q And you panicked at that time and you panicked on August 27th, is that correct?
“A I think maybe can use a different word other than panic. I lost control. There is a difference.
“Q Lost control?
“A Difference between the two words.
“Q You say that the pressure builds up and you can’t cope with it and you lost control?
“A It has on occasion.
“Q Has on some occasions?
“A Yes, sir.
“Q And you are telling the Jury that you can’t control your temper?
“A I believe I can. I think like I said, I am basically a talker, you can’t find anything to prove that I have done anything to anybody.
“Q Now, Mr. Trent, these people are here to decide this case, would you look at them and you tell us, you tell them how do they know in the future that pressure won’t build up and you won’t be able to cope with it and you can’t control your temper.
“MR. PERRY: We object to that.
“Q And you will panic and kill somebody else.
“THE COURT: Sustained.
“Q Can you tell us, can you give anybody any assurance that the pressure won’t build up?
“MR. PERRY: Make the same objection.
“Q You won’t be able to cope with it and you can’t control your temper and you won’t kill somebody else?
“THE COURT: Sustained.
“Q But you don’t know if you will ever stab anybody again or kill anybody again.
“MR. PERRY: Make the same objection, Your Honor.
“THE COURT: Sustained.
“Q And you can’t tell the Court nor to the Jury that you won’t kill somebody again, can you?
“MR. PERRY: We object, Your Honor.
“THE COURT: Sustained.
“Q You are telling us here that you don’t remember, but you went over and told Johnny that you stabbed a man? Didn’t you hear him testify from the stand that you came over there and told him that you stabbed a man?
“A I told John that I had got into a fight over at Miss DeFloreo’s trailer and it was possible that someone was hurt over there and that’s as far as I told him. When I left George was still alive.
“Q Everything else is crystal clear to you except when you slammed that knife into that man’s chest, isn’t it?
“A I don’t know where the knife came into play. I honestly don’t. If I did I would tell the people here.
“Q But you can’t tell these people that you will never kill again?
“MR. PERRY: We object to that at this point and ask the Court to declare a mistrial.
“THE COURT: Sustain the objection and overrule that.
“MR. SIMPSON: I don’t guess we have any further questions.”

I next quote the following language from the opinion of the Court of Criminal Appeals:

“The questions repeated on cross-examination of defendant are not to be likened to the questions complained of in Birmingham Baptist Hospital v. Blackwell [221 Ala. 225, 128 So. 389 (1930)] and the other cases cited by appellant, which pertained to matters of fact unrelated to the issues in the cases. Even though the questions asked in the instant case may have been much more objectionable than the questions asked in the other cases, they did not tend to seek to bring other matters of fact into the case. They constituted argumentative questions, to some extent a badgering of the witness, and they should not have been asked, and a continuous repetition thereof is not to be condoned, but we have no doubt that any prejudicial effect of the questions would have been readily eradicated by stern instructions of the trial judge.”

I find myself in substantial agreement with the appellate court’s analysis, on a comparative basis, of the instant case and Birmingham Baptist Hospital. In Birmingham Baptist Hospital, the questions complained of attempted to inject unrelated factual matters into the issues of the case. Here, the questions complained of were objectionable on different grounds. The issue, then, is whether, because of this difference, this case is “removed from the rationale of Birmingham Baptist Hospital, supra”; that is, whether “the conduct complained of was of ‘such prejudicial character that the probable effect is ineradicable by the sustaining of an objection and proper instruction to the jury by the court.’ ”

If the only distinction between Birmingham Baptist Hospital and the instant case consisted of the substantive or qualitative difference in the questions complained of, I would agree with the appellate court that “the [instant] questions are removed from the rationale of Birmingham Baptist Hospital v. Blackwell.” Ordinarily, of course, questions which seek to inject unrelated and prejudicial matters are not comparable to questions which are merely argumentative. Where the issue is one of ineradicable prejudice, the effect of a question merely argumentative in nature can be cured by sustaining of an objection and proper instructions to the jury by the court; and, in such case, a motion for mistrial is due to be overruled.

Here, however, the questions are not merely argumentative; or, perhaps, more accurately stated, although the challenged questions are objectionable as being argumentative, the full context in which the alleged error below occurred consists of two additional aspects, or added dimensions, invoking the “ineradicable prejudice” rule: 1) the cumulative effect of the questions in creating a prejudicial atmosphere; and 2) the failure of the trial court to retain control of the proceedings.

Because of their overlapping and interrelating nature, and because of their combined effect, these two aspects of the problem can hardly be discussed separately. Nevertheless, for analytical purposes, there is value in approaching each of them apart from the other. I begin by reviewing the substance of the question complained of. The original question asks the Defendant to “. . . tell [the jury] how do they know in the future that pressure won’t build up and you won’t be able to cope with it and you can’t control your temper [Here, defense counsel objected] and you will panic and kill somebody else. [Here, the Court sustained the objection.]” The substance of this two-part question was repeated five times. Clearly, these were not questions to which the District Attorney sought an answer. Indeed, his purpose was better served by being able to repeat the question, over and again, without its being answered. In addition to its argumentative character, the question (whether answered or not) was calculated to engender bias and prejudice in the minds of the jury.

The “cumulative effect” rule is ingrained into the jurisprudence of our State, and is well stated in Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944):

“In determining the question before the court, we do not think that each of the above statements must be analyzed separately to see whether or not, if standing alone, it would create an ineradicable bias or prejudice. We think, on the contrary, that these various statements should be considered together to determine whether or not, in their cumulative effect, they created a prejudicial atmosphere.”

To the above statement of the rule should be added, of course, as Blue assumes, that the challenged statements must be inadmissible as evidence or excludable as argument, as the case may be. I agree with the Court of Criminal Appeals that “the questions asked in the instant case may have been much more objectionable than the questions asked in [Birmingham Baptist Hospital and other cases cited by Petitioner] and they should not have been asked.”

It is the context in which the trial Court ruled on defense counsel’s objection, then, that invokes the “cumulative effect” rule; and I think the probability of prejudice, created by the District Attorney’s asking the same question six times, required the trial Court to grant Defendant’s motion for a mistrial.

I believe ;his conclusion is buttressed by the further fact that each repetition of the question came after an adverse ruling by the trial Court. To be sure, defense counsel interposed his original objection at the conclusion of the first part of the two-part question. In view of the trial Court’s subsequent ruling, sustaining the objection, it is obvious that, had proper court room decorum been observed, this would have ended the matter and the latter part of the question (“And you will panic and kill somebody else.”) would never have been asked. In point of fact, however, it was asked five additional times in face of an adverse ruling each time.

This brings me to a discussion of the second aspect of the problem: The trial Judge’s exercise of control of his court room, thus assuring the orderly administration of justice in proceedings before him. Here, in an apparent effort to allow counsel wide latitude within which to discharge their respective roles as advocates, the trial Court relinquished its judicial role.

Hence, the District Attorney was allowed to play his hand beyond the bounds of propriety not merely in spite of the trial Court’s adverse rulings, but, to an enhanced degree, because of such rulings. Defendant, on the other hand, suffered unwarranted prejudice in spite of the trial Court’s favorable rulings; and this because of the Court’s failure to enforce its rulings. I believe the trial Court’s lack of control of the instant proceedings contributed to the cumulative effect of the impropriety of the challenged repetitive questions in creating a prejudicial atmosphere which could have been cured only by granting the Defendant’s motion for mistrial.

The State, in support of its contention for affirmance, asserts that, because the trial Court ruled favorably to Defendant upon the Defendant’s objections, it was incumbent upon him to ask the Court for proper jury instructions (to disregard the question) as a prerequisite to his motion for mistrial. I agree that mistrials áre not favored; and, in the interest of judicial time, mistrials should be granted only in extreme situations after all other reasonable means to cure the error have been exhausted. The record before us, however, shows unusual restraint on behalf of defense counsel. He had every right to expect his adversary to respect and honor the trial Court’s ruling. Likewise, he had the right to expect the trial Court to enforce its rulings. While it is incumbent upon trial counsel to invoke a ruling to preserve reviewable error, the rules of procedure impose no affirmative action upon counsel to require the court to enforce its rulings in order for defendant to invoke the “cumulative effect” rule.

Here, the defense counsel was content to continue his objections and accept the Court’s favorable rulings thereon, without more, through the fifth repetition of the same question. Finally, it appeared that the District Attorney was honoring the Court’s persistent adverse rulings and for two questions he changed the subject to nonobjectionable matters. Then came the question for the sixth time, “But you can’t tell these people that you will never kill again?” And only then did defense counsel combine with his objection a motion for a mistrial. Again, the trial Court sustained the objection but overruled the motion.

The cumulative effect of the District Attorney’s improper conduct as a ground for Defendant’s motion for mistrial, under the circumstances of this case, is not dependent upon the Defendant’s earlier request for proper jury instructions to disregard the District Attorney’s repetitive questions. I think it is clear that by the time the District Attorney’s conduct, in its cumulative effect, created a prejudicial atmosphere, such bias or prejudice had become so ineradicable as to require the declaring of a mistrial to insure the Defendant a fair trial.

      . If the second portion of the two-part question is counted as a separate question, the District Attorney asked the objectionable question a total of seven times.-